<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999 OR
_ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
_____________ TO _____________
Commission file number 0-21796 CDW
Computer Centers, Inc.
(Exact name of registrant as specified in its charter)
Illinois 36-3310735
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 N. Milwaukee Ave. 60061
Vernon Hills, Illinois (Zip Code)
(Address of principal executive offices)
(847) 465-6000
(Registrant's telephone number, including area code)
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
------------ ------------
Applicable only to issuers involved in bankruptcy proceedings during the
preceding five years:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court.
Yes No
------------ ------------
Applicable only to corporate issuers:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
As of November 15, 1999, 43,314,278 common shares were issued and 43,214,278
were outstanding.
<PAGE> 2
CDW COMPUTER CENTERS, INC.
TABLE OF CONTENTS
Page No.
-----------
PART I. Financial Information
Item 1. Financial Statements (unaudited):
Condensed Consolidated Balance Sheets -
September 30, 1999 and December 31, 1998 1
Condensed Consolidated Statements of Income -
Three and nine months ended September 30, 1999 and 1998 2
Condensed Consolidated Statement of Shareholders' Equity -
Nine months ended September 30, 1999 3
Condensed Consolidated Statements of Cash Flows -
Nine months ended September 30, 1999 and 1998 4
Notes to Condensed Consolidated Financial Statements 5 - 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9 - 16
PART II. Other Information
Item 1. Legal Proceedings 17
Item 6. Exhibits and Reports on Form 8-K 17
Signatures 18
ii
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM I. FINANCIAL STATEMENTS
CDW COMPUTER CENTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------- ------------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 16,296 $ 4,230
Marketable securities 76,562 66,458
Accounts receivable, net of allowance for doubtful
accounts of $4,300 and $3,185, respectively 242,700 152,308
Miscellaneous receivables 6,400 5,896
Merchandise inventory 87,142 64,392
Prepaid expenses and other assets 1,223 1,423
Deferred income taxes 4,886 5,081
--------- ---------
Total current assets 435,209 299,788
Property and equipment, net 38,509 37,056
Deferred income taxes and other assets 7,125 4,977
--------- ---------
TOTAL ASSETS $ 480,843 $ 341,821
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 98,947 $ 41,358
Accrued expenses:
Compensation 20,555 16,279
Income taxes - 5,146
Exit costs 2,262 2,715
Other 6,614 5,560
--------- ---------
Total current liabilities 128,378 71,058
--------- ---------
Commitments and contingencies
Shareholders' equity:
Preferred shares, $1.00 par value; 5,000 shares
authorized; none issued - -
Common shares, $ .01 par value; 75,000 shares
authorized; 43,266 and 43,142 shares issued
respectively 217 216
Paid-in capital 94,477 81,352
Retained earnings 260,446 192,259
Unearned compensation (586) (975)
--------- ---------
Subtotal shareholders' equity 354,554 272,852
--------- ---------
Less cost of common shares in treasury, 100 shares (2,089) (2,089)
--------- ---------
Total shareholders' equity 352,465 270,763
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 480,843 $ 341,821
========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
1
<PAGE> 4
CDW COMPUTER CENTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
----------------------------- ----------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales $ 683,012 $ 462,720 $1,819,972 $1,256,256
Cost of sales 597,398 403,857 1,591,705 1,096,539
--------- --------- ---------- ----------
Gross profit 85,614 58,863 228,267 159,717
Selling and administrative expenses 43,523 31,707 118,423 84,350
--------- --------- ---------- ----------
Income from operations 42,091 27,156 109,844 75,367
Interest income 1,363 1,305 3,366 3,516
Other expense (96) (77) (317) (239)
--------- --------- ---------- ----------
Income before income taxes 43,358 28,384 112,893 78,644
Income tax provision 17,170 11,243 44,706 31,145
--------- --------- ---------- ----------
Net income $ 26,188 $ 17,141 $ 68,187 $ 47,499
========= ========= ========== ==========
Earnings per share
Basic $ 0.61 $ 0.40 $ 1.58 $ 1.10
========= ========= ========== ==========
Diluted $ 0.59 $ 0.39 $ 1.55 $ 1.09
========= ========= ========== ==========
Weighted average number of
common shares outstanding
Basic 43,150 43,076 43,104 43,086
========= ========= ========== ==========
Diluted 44,108 43,344 43,972 43,404
========= ========= ========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
2
<PAGE> 5
CDW COMPUTER CENTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Total
Common Shares Paid in Retained Unearned Treasury Shares Shareholders'
Shares Amount Capital Earnings Compensation Shares Amount Equity
--------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1998 43,142 $ 216 $ 81,352 $ 192,259 $ (975) 100 $(2,089) $ 270,763
MPK Restricted Stock Plan forfeitures (101) 101 -
Amortization of unearned compensation 288 288
Exercise of stock options 124 1 1,545 1,546
Tax benefit from stock option transactions 11,681 11,681
Net income 68,187 68,187
--------------------------------------------------------------------------------------
BALANCE AT SEPTEMBER 30, 1999 43,266 $ 217 $ 94,477 $ 260,446 $ (586) 100 $(2,089) $ 352,465
======================================================================================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
3
<PAGE> 6
CDW COMPUTER CENTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended September 30,
-------------------------------
1999 1998
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 68,187 $ 47,499
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation 5,143 3,429
Accretion of marketable securities, net (2,184) (2,033)
Allowance for doubtful accounts 1,115 935
Stock-based compensation expense 288 355
Legal fees assumed by majority shareholder, net of tax - 673
Deferred income taxes 698 144
Tax benefit from stock option exercises 11,681 3,268
Changes in assets and liabilities:
Accounts receivable (91,507) (49,554)
Miscellaneous receivables (504) (2,111)
Merchandise inventory (22,750) 6,652
Prepaid expenses and other assets 191 (71)
Accounts payable 57,589 1,472
Accrued compensation 4,276 2,230
Accrued income taxes and other expenses (4,092) (4,363)
Accrued exit costs (453) (554)
-------- --------
Net cash provided by operating activities 27,678 7,971
-------- --------
Cash flows from investing activities:
Purchases of available-for-sale securities (66,703) (24,810)
Redemptions of available-for-sale securities 44,292 21,250
Purchases of held-to-maturity securities (50,020) (64,945)
Redemptions of held-to-maturity securities 64,511 69,656
Investments in and advances to joint venture (2,642) -
Purchase of property and equipment (6,596) (12,426)
-------- --------
Net cash used in investing activities (17,158) (11,275)
-------- --------
Cash flows from financing activities:
Proceeds from exercise of stock options 1,546 453
Repurchases of treasury shares - (2,089)
-------- --------
Net cash provided by / (used in) financing activities 1,546 (1,636)
-------- --------
Net increase / (decrease) in cash 12,066 (4,940)
Cash and cash equivalents - beginning of period 4,230 18,233
-------- --------
Cash and cash equivalents - end of period $ 16,296 $ 13,293
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
4
<PAGE> 7
CDW COMPUTER CENTERS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. Description of Business
CDW Computer Centers, Inc. and its subsidiaries (collectively the
"Company") are engaged in the distribution of brand name personal computers and
related products primarily through direct marketing to end users within the
United States. The Company's primary business is conducted from a combined
sales, corporate office, warehouse and showroom facility located in Vernon
Hills, Illinois. The Company also operates a sales office in Buffalo Grove,
Illinois, a retail showroom in Chicago, Illinois and a government sales office
in Chantilly, Virginia.
The Company extends credit to business, government and institutional
customers under certain circumstances based upon the financial strength of the
customer. Such customers are typically granted net 30 day credit terms. The
balance of the Company's sales are made primarily through third-party credit
cards and for cash-on-delivery.
2. Summary of Significant Accounting Policies
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have
been prepared in conformity with generally accepted accounting principles. Such
principles were applied on a basis consistent with those reflected in the 1998
Annual Report on Form 10-K and documents incorporated therein as filed with the
Securities and Exchange Commission. The accompanying financial data should be
read in conjunction with the notes to consolidated financial statements
contained in the 1998 Annual Report on Form 10-K and documents incorporated
therein. In the opinion of management, the accompanying unaudited condensed
consolidated financial statements contain all adjustments (consisting solely of
normal recurring accruals) necessary to present fairly the financial position of
the Company as of September 30, 1999 and December 31,1998, the results of
operations for the three and nine months ended September 30, 1999 and 1998, the
cash flows for the nine months ended September 30, 1999 and 1998, and the
changes in shareholders' equity for the nine months ended September 30, 1999.
The unaudited condensed consolidated statements of income for such interim
periods are not necessarily indicative of results for the full year.
Pervasiveness of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements. Additionally, such estimates and assumptions affect the reported
amounts of revenues and expenses during the reporting period. Actual results
could differ from those estimates.
Earnings Per Share
A reconciliation of basic and diluted earnings per-share computations in
accordance with Financial Accounting Standards No. 128 "Earnings Per Share"
(SFAS 128) is included in Note 6 to the financial statements.
5
<PAGE> 8
On April 20, 1999, the Board of Directors of the Company approved a
two-for-one stock split to be effected in the form of a stock dividend payable
on May 19, 1999 to all common shareholders of record at the close of business on
May 5, 1999. All per share and related amounts contained in these financial
statements and notes have been adjusted to reflect the stock split.
3. Marketable Securities
The amortized cost and estimated fair values of the Company's investments
in marketable securities at September 30, 1999, were (in thousands):
<TABLE>
<CAPTION>
Gross
Unrealized
Holding
Estimated ------------------------- Amortized
Fair Value Gains (Losses) Cost
-------------------------------------------------
<S> <C> <C> <C> <C>
Security
Type
Available-for-sale:
U.S. Government and Government Agency Securities $ 25,129 $ - $ (19) $ 25,148
-------------------------------------------------
Total available-for-sale 25,129 - (19) 25,148
-------------------------------------------------
Held to maturity:
U.S. Government and Government Agency Securities 51,356 - (58) 51,414
-------------------------------------------------
Total held-to-maturity 51,356 - (58) 51,414
-------------------------------------------------
Total marketable securities $ 76,485 $ - $ (77) $ 76,562
=================================================
</TABLE>
The Company's investments in securities held-to-maturity at September 30,
1999 were all due in one year or less by contractual maturity. Estimated fair
values of marketable securities are based on quoted market prices.
4. Facilities & Exit Accrual
In July 1997, the Company relocated to its current facility in Vernon Hills
and vacated its Buffalo Grove facility. The Company recorded a pre-tax
non-recurring charge to operating results for exit costs in the first quarter of
1996. The exit costs consist primarily of the estimated cost to the Company of
subleasing the vacated facility, including holding costs, the estimated costs of
restoring the building to its original condition and certain asset write-offs
resulting from the relocation.
The Company reopened the office portion of the Buffalo Grove facility
during the fourth quarter of 1998 as a telemarketing facility. Accordingly, the
Company records a proportionate share of the rent and other operating costs to
selling and administrative expenses. The Company sublet the warehouse and
showroom portions of the Buffalo Grove facility to a third party for the period
beginning June 15, 1999, and continuing through December 31, 2003, the end of
the lease term. The remaining portion of the rent not covered by the sublease or
the amount recorded to selling and administrative expenses continues to be
charged against the exit accrual. There is no assurance that the remaining exit
liability of $2.3 million at September 30, 1999, will be adequate to cover
actual costs in the event the sublessee is unable or unwilling to complete the
lease term.
During the nine months ended September 30, 1999, the Company charged
approximately $453,000 against the exit accrual in cash payments for rent, real
estate taxes and maintenance of the facility, net of sub-lease payments received
which totaled approximately $187,000. During the comparable period in 1998, the
Company charged approximately $554,000 against the exit accrual for similar
costs.
6
<PAGE> 9
On October 11, 1999 the Company entered into a lease agreement for two
floors of office space totaling approximately 72,000 square feet in Chicago,
Illinois. The Company plans to establish a sales office in the facility with the
lease commencing for one floor on April 1, 2000, and for the second floor on
September 1, 2000. The lease provides a ten year term, with certain expansion
and renewal options. The Company plans to expend between $8 million and $10
million for computer and telecommunication equipment, furniture and improvements
related to the facility. Minimum future rent payments for all the Company's
lease obligations, including the new Chicago facility are as follows (in
thousands):
Years Ended December 31, Amount
------------------------ -----------------
2000 $ 1,467
2001 1,925
2002 1,926
2003 1,958
2004 1,149
Thereafter 2,402
-----------------
$ 10,827
=================
5. Financing Arrangements
The Company has an aggregate $50 million available pursuant to two $25
million unsecured lines of credit with two financial institutions, one which
expires in June 2000, at which time the Company intends to renew the line, and
another which does not have a fixed expiration date. Borrowings under the first
credit facility bear interest at the prime rate less 2 1/2%, LIBOR plus 1/2% or
the federal funds rate plus 1/2%, as determined by the Company. Borrowings under
the second credit facility bear interest at the prime rate less 2 1/2%, LIBOR
plus .45% or the federal funds rate plus .45%, as determined by the Company. At
September 30, 1999, there were no borrowings against either of the credit
facilities.
The Company has entered into security agreements with certain financial
institutions ("Flooring Companies") in order to facilitate the purchase of
inventory from various suppliers under certain terms and conditions. The
agreements allow for a maximum credit line of $64.0 million collateralized by
inventory purchases financed by the Flooring Companies. At September 30, 1999,
all amounts owed the Flooring Companies are included in trade accounts payable.
6. Earnings Per Share
The Company had approximately 43,266,000 issued and 43,166,000 shares
outstanding at September 30, 1999. The Company has also granted options to
purchase common shares to the directors and coworkers of the Company under
several stock option plans. These options have a dilutive effect on the
calculation of earnings per share. The following is a reconciliation of the
numerators and denominators of the basic and diluted earnings per share
computations as required by SFAS 128.
7
<PAGE> 10
<TABLE>
<CAPTION>
Three Months Ended Nine months Ended
September 30, September 30,
---------------------------- ----------------------------
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Basic earnings per share:
Income available to
common shareholders (numerator) $ 26,188 $ 17,141 $ 68,187 $ 47,499
------------ ------------ ------------ ------------
Weighted average common
shares outstanding (denominator) 43,150 43,076 43,104 43,086
------------ ------------ ------------ ------------
Basic earnings per share $ 0.61 $ 0.40 $ 1.58 $ 1.10
============ ============ ============ ============
Diluted earnings per share:
Income available to
common shareholders (numerator) $ 26,188 $ 17,141 $ 68,187 $ 47,499
------------ ------------ ------------ ------------
Weighted average common
shares outstanding 43,150 43,076 43,104 43,086
Effect of dilutive securities:
Options on common stock 958 268 868 318
------------ ------------ ------------ ------------
Total common shares and dilutive
securities (denominator) 44,108 43,344 43,972 43,404
------------ ------------ ------------ ------------
Diluted earnings per share $ 0.59 $ 0.39 $ 1.55 $ 1.09
============ ============ ============ ============
</TABLE>
7. Leasing Joint Venture
In April 1999, CDW Capital Corporation, a wholly-owned subsidiary of CDW,
and First Portland Corporation ("FIRSTCORP") formed CDW Leasing, L.L.C.
("CDW-L"), a 50/50 joint venture. CDW-L provides captive leasing services to CDW
customers. FIRSTCORP is a full-service leasing organization that has provided
third party leasing solutions to CDW customers for more than three years. Under
the terms of an operating agreement, FIRSTCORP provides leasing management
services to CDW-L, with net earnings of the venture allocated 50% to CDW and 50%
to FIRSTCORP. CDW Capital Corporation contributed $100,000 to the capital of
CDW-L and has committed to loan up to $10 million to CDW-L on a secured basis to
fund new leases initiated by CDW-L. The investment in CDW-L is accounted for
using the equity method. The investment and loan to CDW-L at September 30, 1999
is not material to the total assets of the Company and is included in Deferred
Income Taxes and Other Assets on the consolidated Balance Sheets. In addition,
the income recognized by the Company from its investment in CDW-L for the three
and nine months ended September 30, 1999 were not material to the total income
of the Company as reported on the consolidated Statements of Income.
8
<PAGE> 11
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following discussion and analysis of the Company's financial condition
and results of operations should be read in conjunction with the Company's
unaudited condensed consolidated financial statements and the notes thereto
included elsewhere herein.
Results Of Operations
The following table sets forth financial information derived from the
Company's statements of income expressed as a percentage of net sales, and
certain operating statistics.
<TABLE>
<CAPTION>
Financial Information Percentage of Net Sales
-----------------------------------------------------------
Three Months Ended Nine months Ended
September 30, September 30,
-----------------------------------------------------------
------------------------- -------------------------------
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Net sales 100.0 % 100.0 % 100.0 % 100.0 %
Cost of sales 87.5 87.3 87.5 87.3
------------------------- ------------------------
Gross profit 12.5 12.7 12.5 12.7
Selling and administrative expenses 6.4 6.9 6.5 6.7
------------------------- ------------------------
Income from operations 6.1 5.8 6.0 6.0
Other income, net 0.2 0.3 0.2 0.3
------------------------- -------------------------
Income before income taxes 6.3 6.1 6.2 6.3
Income tax provision 2.5 2.4 2.5 2.5
------------------------- -------------------------
Net income 3.8 % 3.7 % 3.7 % 3.8 %
========================= =========================
</TABLE>
<TABLE>
<CAPTION>
Operating Statistics Three Months Ended Nine months Ended
September 30, September 30,
------------------------------- ----------------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Number of invoices processed 770,356 595,015 2,127,800 1,730,674
Average invoice size $931 $828 $901 $775
Number of account managers, end of period 744 625
Customers serviced - commercial 126,000 107,000 233,000 205,000
% of sales to commercial customers 93.5% 89.0% 92.4% 87.2%
Annualized inventory turns 28 31 28 25
----------------------------------------------------------------
</TABLE>
9
<PAGE> 12
The following table presents net sales by product line as a percentage of
total net sales. Product classifications are based upon internal product code
classifications and are retroactively adjusted for the addition of new
categories but not for changes in individual product categorization.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
Analysis of Product Mix September 30, September 30,
1999 1998 1999 1998
--------------------------------------------
<S> <C> <C> <C> <C>
Notebooks & Laptops 21.3 % 19.3 % 20.2 % 19.8 %
Desktop Computers 14.1 15.2 15.0 15.7
Software 13.0 13.7 13.3 13.6
Printers 11.1 12.7 11.4 12.7
Data Storage Devices 11.0 12.1 10.5 11.6
Network & Communication Products 9.8 9.9 9.6 9.3
Monitors & Video Products 7.1 7.6 7.2 7.9
Add-On Boards & Memory 4.7 3.7 4.6 4.0
Supplies 3.7 1.1 3.6 .4
Input Devices 1.9 2.3 2.2 2.6
Multi-Media Devices 1.1 1.9 1.3 2.0
Other Accessories 1.2 0.5 1.1 0.4
-------------------------------------------
Total 100.0 % 100.0 % 100.0 % 100.0 %
===========================================
</TABLE>
Three months ended September 30, 1999 compared to three months ended September
30, 1998
Net sales in the third quarter of 1999 increased 47.6% to a record $683.0
million compared to $462.7 million in the third quarter of 1998. The growth in
net sales is primarily attributable to a higher concentration of commercial
accounts, a higher level of sales per active account and increases in the
average invoice size and number of invoices processed. Sales to commercial
accounts, including business, government, educational and institutional
customers, increased to 93.5% of net sales in the third quarter of 1999 from
89.0% in the third quarter of 1998. The number of active commercial customers
increased 17.8% to 126,000 in the third quarter of 1999 from 107,000 in the
third quarter of 1998. For the three months ended September 30, 1999, the
average invoice size increased 12.4% to $931 and the number of invoices
processed increased 29.5% to over 770,000. Notebook computers continue to
represent the largest component of the Company's product mix.
The average selling price of desktop and server CPU's decreased 1.3% and
the average selling price of notebook CPU's declined 5.3% from the third quarter
of 1998. The Company believes there may be future decreases in prices for
personal computers and related products. Such decreases require the Company to
sell more units in order to maintain or increase the level of sales. The
Company's sales growth rate and operating results could be adversely affected by
future manufacturer price reductions or if the Company's sales and marketing
efforts fail to increase the level of unit sales. Sales of Compaq, Hewlett
Packard, IBM, Microsoft and Toshiba products comprise a substantial portion of
the Company's sales. The loss of any of these, or any other key vendors, could
have an adverse effect on the Company's results from operations. The statement
concerning future prices, sales and results from operations are forward looking
statements that involve certain risks and uncertainties such as stated above.
10
<PAGE> 13
The fastest growing product categories in terms of sales dollars and the
respective growth rates in the third quarter of 1999 compared to the third
quarter of 1998 were:
Product Category Growth Rate
---------------- -----------
Add-On Boards & Memory 87.7%
Notebooks & Laptops 62.8%
Network and Communication Products 46.6%
Software 40.0%
Monitors & Video Products 36.8%
Demand for certain products and the growth of certain product categories, are
driven by advances in technology and the development of new products and
applications by the industry manufacturers, and acceptance of these new
technologies and products by end-users. Any slowdown in the rate of
technological advancement and new product development by industry manufacturers
could have a material adverse effect on the Company's future sales growth.
Gross profit decreased as a percentage of net sales to 12.5% for the three
months ended September 30, 1999, compared to 12.7% in the third quarter of 1998.
The decrease in gross profit as a percentage of net sales is primarily the
result of lower selling margins achieved on certain product lines and lower
levels of vendor support programs. On a forward-looking basis, it is likely that
the gross profit margin achieved will fluctuate from quarter to quarter and may
be lower than the 12.5% achieved in the third quarter of 1999. The statement
concerning future gross profit is a forward looking statement that involves
certain risks and uncertainties such as the continued participation by vendors
in inventory price protection and rebate programs, pricing strategies, product
mix, market conditions and other factors which could result in a fluctuation of
gross margins below recent experience. Certain manufacturers may make additional
changes that limit the amount of price protection for which the Company is
eligible. Such changes could have a negative impact on gross margin in future
periods. Vendor rebate programs are at the discretion of the vendor and many of
these programs are dependent on achieving certain goals and objectives.
Accordingly, there is no certainty that such programs will continue at their
current levels or that the established goals and objectives will be attained.
Selling and administrative expenses, which include net advertising expense,
other selling administrative expenses and the executive incentive bonus pool
declined to 6.4% of net sales in the three months ended September 30, 1999 from
6.9% in the same period of 1998.
Net advertising expense decreased as a percentage of net sales to 0.52%
from 0.85% for the three months ended September 30, 1999 and 1998, respectively.
Gross advertising expense increased $2.6 million, while decreasing as a
percentage of net sales in the third quarter to 2.4% from 3.0% in the third
quarter of 1998. The Company decreased catalog circulation versus the prior year
while increasing the number of national advertising pages and expanding its
spending on its corporate branding campaign and other direct marketing
activities. Based upon the Company's planned marketing initiatives, future
levels of gross advertising expense as a percentage of net sales are likely to
be relatively consistent with or higher than the level achieved in the third
quarter of 1999. Cooperative advertising reimbursements decreased as a
percentage of net sales to 1.9% of net sales in the third quarter of 1999 from
2.1% in the third quarter of 1998. The cooperative advertising reimbursement
rate may fluctuate in future quarters depending on the level of vendor
participation achieved, changes in vendor programs and collection experience.
The statements concerning future advertising expense and cooperative advertising
reimbursements are forward looking statements that involve certain risks and
uncertainties including the ability to identify and implement cost effective
incremental advertising and marketing programs as well as the continued
participation of vendors in the cooperative advertising reimbursement program.
Other selling and administrative costs decreased to 5.5% of net sales in
the third quarter of 1999 from 5.7% in the same period of 1998. Increases in
coworker productivity offset increased payroll and associated costs related to
expansion of the sales force. As of September 30, 1999, there were 744 sales
11
<PAGE> 14
account managers, an increase of 19.0% from 625 sales account managers as of
September 30, 1998. Approximately 76% of the 744 sales account managers had
fewer than 24 months experience and 56% had fewer than 12 months, as compared to
72% and 56% at September 30, 1998. The Company plans to increase the number of
sales account managers to 800 by December 31, 1999 and to within the range of
1,050 to 1,150 by December 31, 2000.
In October 1999, the Company agreed to lease approximately 72,000 square
feet of office space in Chicago, Illinois as an additional sales office (see
Working Capital and Footnote 4 to the financial statements). Average annual
future minimum lease expense for the new sales office is approximately $1.1
million per year. As a result of the expansion of the sales force and the new
sales office the Company's selling and administrative costs may increase as a
percentage of net sales in future periods.
The executive incentive bonus pool increased to $2.5 million in the third
quarter of 1999 from $1.0 million in the third quarter of 1998. For 1999, the
Compensation and Stock Option Committee established the bonus pool at 15% of the
increase in operating income over the prior year.
Interest income, net of other expenses, increased slightly to $1.3 million
in the third quarter of 1999 compared to $1.2 million in the third quarter of
1998.
The effective income tax rate, expressed as a percentage of income before
income taxes, was 39.6% for the three months ended September 30, 1999 and 1998.
Net income for the three months ended September 30, 1999, was $26.2
million, a 52.8% increase over $17.1 million for the three months ended
September 30, 1998. Diluted earnings per share was $0.59 for the three months
ended September 30, 1999 and $0.39 in the same period of 1998, an increase of
51.3%. All per share amounts have been adjusted to reflect the two-for-one stock
split effected in the form of a stock dividend paid on May 19, 1999.
Nine months ended September 30, 1999 compared to nine months ended September 30,
1998
Net sales in the first nine months of 1999 increased 44.9% to a record
$1.820 billion compared to $1.256 billion in the first nine months of 1998. The
growth in net sales is primarily attributable to a higher concentration of
commercial accounts, a higher level of sales per active account and increases in
the average invoice size and number of invoices processed. Sales to commercial
accounts, including business, government, educational and institutional
customers, increased to 92.4% of net sales in the first nine months of 1999 from
87.2% in the first nine months of 1998. The number of active commercial
customers increased 13.7% to 233,000 in the first nine months of 1999 from
205,000 in the first nine months of 1998. For the nine months ended September
30, 1999, the average invoice size increased 16.3% to $901 and the number of
invoices processed increased 23.0% to over 2.1 million. Notebook computers
continue to represent the largest component of the Company's product mix.
The average selling price of desktop and server CPU's increased 4.4% and
the average selling price of notebook CPU's declined 4.1% from the first nine
months of 1998. The Company believes there may be future decreases in prices for
personal computers and related products. Such decreases require the Company to
sell more units in order to maintain or increase the level of sales. The
Company's sales growth rate and operating results could be adversely affected by
future manufacturer price reductions or if the Company's sales and marketing
efforts fail to increase the level of unit sales. Sales of Compaq, Hewlett
Packard, IBM, Microsoft and Toshiba products comprise a substantial portion of
the Company's sales. The loss of any of these, or any other key vendors, could
have an adverse effect on the Company's results from operations. The statement
concerning future prices, sales and results from operations are forward looking
statements that involve certain risks and uncertainties such as stated above.
12
<PAGE> 15
The fastest growing product categories in terms of sales dollars and the
respective growth rates in the nine months ended September 30, 1999 compared to
the nine months ended September 30, 1998 were:
Product Category Growth Rate
---------------- -----------
Add-On Boards & Memory 66.9%
Network & Communication Products 48.9%
Notebooks & Laptops 48.3%
Software 41.5%
Desktop Computers 38.3%
Demand for certain products and the growth of certain product categories, are
driven by advances in technology and the development of new products and
applications by the industry manufacturers, and acceptance of these new
technologies and products by end-users. Any slowdown in the rate of
technological advancement and new product development by industry manufacturers
could have a material adverse effect on the Company's future sales growth.
Gross profit decreased as a percentage of net sales to 12.5% for the nine
months ended September 30, 1999, compared to 12.7% in the first nine months of
1998. The decrease in gross profit as a percentage of net sales is primarily the
result of lower selling margins achieved on certain product lines and lower
levels of vendor support programs. On a forward-looking basis, it is likely that
the gross profit margin achieved will fluctuate from quarter to quarter and may
be lower than the 12.5% achieved in the first nine months of 1999. The statement
concerning future gross profit is a forward looking statement that involves
certain risks and uncertainties such as the continued participation by vendors
in inventory price protection and rebate programs, pricing strategies, product
mix, market conditions and other factors which could result in a fluctuation of
gross margins below recent experience. Certain manufacturers may make additional
changes that limit the amount of price protection for which the Company is
eligible. Such changes could have a negative impact on gross margin in future
periods. Vendor rebate programs are at the discretion of the vendor and many of
these programs are dependent on achieving certain goals and objectives.
Accordingly, there is no certainty that such programs will continue at their
current levels or that the established goals and objectives will be attained.
Selling and administrative expenses, which include net advertising expense,
other selling administrative expenses and the executive incentive bonus pool
declined to 6.5% of net sales in the nine months ended September 30, 1999 from
6.7% for the same period of 1998.
Net advertising expense decreased as a percentage of net sales to 0.62%
from 0.75% for the nine months ended September 30, 1999 and 1998, respectively.
Gross advertising expense increased $9.6 million while decreasing as a
percentage of net sales in the first nine months to 2.6% from 3.1% in the same
period of 1998. The Company decreased catalog circulation and the number of
national advertising pages versus the prior year, while expanding its spending
on its corporate branding campaign and other direct marketing activities. Based
upon the Company's planned marketing initiatives, future levels of gross
advertising expense as a percentage of net sales are likely to be relatively
consistent with or higher than the level achieved in the first nine months of
1999. Cooperative advertising reimbursements as a percentage of net sales
declined to 2.0% of net sales in the first nine months of 1999 from 2.3% for the
nine months ended September 30, 1998. The cooperative advertising reimbursement
rate may fluctuate in future quarters depending on the level of vendor
participation achieved, changes in vendor programs and collection experience.
The statements concerning future advertising expense and cooperative advertising
reimbursements are forward looking statements that involve certain risks and
uncertainties including the ability to identify and implement cost effective
incremental advertising and marketing programs as well as the continued
participation of vendors in the cooperative advertising reimbursement program.
Other selling and administrative costs decreased to 5.6% of net sales in
the first nine months of 1999 from 5.7% in the same period of 1998. Increases in
coworker productivity offset increased payroll and associated costs related to
expansion of the sales force.
13
<PAGE> 16
In October 1999, the Company agreed to lease approximately 72,000 square
feet of office space in Chicago, Illinois as an additional sales office (see
Working Capital and Footnote 4 to the financial statements). Average annual
future minimum lease expense for the new sales office is approximately $1.1
million per year. As a result of the expansion of the sales force and the new
sales office the Company's selling and administrative costs may increase as a
percentage of net sales in future periods.
The executive incentive bonus pool increased to $5.7 million in the first
nine months of 1999 from $2.2 million in the first nine months of 1998. For
1999, the Compensation and Stock Option Committee established the bonus pool at
15% of the increase in operating income over the prior year.
Interest income, net of other expenses, decreased to $3.0 million in the
first nine months of 1999 compared to $3.3 million in the first nine months of
1998.
The effective income tax rate, expressed as a percentage of income before
income taxes, was 39.6% for the nine months ended September 30, 1999 and 1998.
Net income for the nine months ended September 30, 1999, was $68.2 million,
a 43.6% increase over $47.5 million for the nine months ended September 30,
1998. Diluted earnings per share was $1.55 for the nine months ended September
30, 1999, and $1.09 for the same period of 1998, an increase of 42.2%. All per
share amounts have been adjusted to reflect the two-for-one stock split effected
in the form of a stock dividend paid on May 19, 1999.
Liquidity and Capital Resources
Working Capital
The Company has historically financed its operations and capital
expenditures primarily through cash flow from operations, short-term borrowings
and public offerings of common stock.
At September 30, 1999, the Company had cash, cash equivalents and
marketable securities of $92.8 million and working capital of $306.8 million,
representing an increase of $22.2 million in cash, cash equivalents and
marketable securities and an increase of $78.1 million in working capital from
December 31, 1998.
The Company has an aggregate $50 million available pursuant to two $25
million unsecured lines of credit with two financial institutions, one which
expires in June 2000, at which time the Company intends to renew the line, and
another which does not have a fixed expiration date. Borrowings under the first
credit facility bear interest at the prime rate less 2 1/2%, LIBOR plus 1/2% or
the federal funds rate plus 1/2%, as determined by the Company. Borrowings under
the second credit facility bear interest at the prime rate less 2 1/2%, LIBOR
plus .45% or the federal funds rate plus .45%, as determined by the Company. At
September 30, 1999, there were no borrowings against either of the credit
facilities.
The Company plans to expend between $8 million and $10 million during the
next twelve months for computer and telecommunication equipment, furniture and
improvements related to the new sales office in Chicago, Illinois.
The Company's current primary and anticipated use of cash is to fund future
growth in working capital and capital expenditures. The Company believes that
14
<PAGE> 17
the funds held in cash, cash equivalents and marketable securities, and funds
available under the credit facilities will be sufficient to fund the Company's
working capital and cash requirements at least through September 30, 2000.
Cash flows for the nine months ended September 30, 1999
Net cash provided by operating activities for the nine months ended
September 30, 1999, was $27.7 million. The primary factors that historically
affect the Company's cash flows from operations are accounts receivable,
merchandise inventory and accounts payable. The increase in accounts receivable
resulted from increased sales volume and an increase in the percentage of net
sales generated from commercial accounts with open credit terms to 69.5% for the
nine months ended September 30, 1999 from 61.9% for the same period of 1998. The
accounts receivable days sales outstanding at September 30, 1999 was 32.7 as
compared with 29.0 at December 31, 1998. Inventory increased during the period
in response to increased sales volume. Annualized inventory turnover increased
to approximately 28 times for the nine months ended September 30, 1999 from 25
for the nine months ended September 30, 1998. The increase in accounts payable
reflects timing of payments to vendors at the end of the respective periods as
well as the increase in inventory levels during the year.
Cash provided by operating activities for the nine months ended September
30, 1999, was positively impacted by a $11.7 million tax benefit recorded to
paid-in-capital, relating to the exercise of shares pursuant to the MPK Stock
Option Plan and the CDW Incentive Stock Option Plan.
Net cash used in investing activities for the nine months ended September
30, 1999, was $17.2 million, including approximately $7.0 million used for
capital expenditures. The capital expenditures made by the Company were
primarily related to the purchase of machinery and equipment for the Vernon
Hills facility.
Year 2000 Readiness Disclosure
General
The Year 2000 Issue ("Y2K") is the result of computer programs being
written using two digits rather than four to define the applicable year. Any of
the Company's computer programs that have date-sensitive software may recognize
a date using "00" as the year 1900 rather than 2000. This could result in a
system failure or miscalculations causing disruptions of operations, including,
among other things, a temporary inability to process transactions, receive or
ship products, send invoices, or engage in similar normal business activities.
The Company has established a Y2K project designed to make all its hardware
and software systems Y2K compliant by December 31, 1999.
Project
CDW's Y2K project consists of two components,internal and external. The internal
section has been divided into five steps:
1. Awareness - Awareness includes evaluating industry best practices,
generating management and employee awareness, establishing communications
methods and establishing the project team.
2. Assessment - This phase includes hardware and software compliance
assessment, establishment of the size and scope of the project,
establishment of a project timeline, priorities, budgeting and allocation
of resources.
3. Renovation - Renovation consists of establishing a detailed implementation
plan, the design of new systems and system corrections, writing of system
code and software and hardware testing.
4. Validation - Validation includes testing new systems and system corrections
to ensure they will function properly in operation.
15
<PAGE> 18
5. Implementation - Final certification of the new and corrected systems,
implementation of the systems and monitoring to ensure they continue to
function.
Substantially all phases of the project as they relate to internal systems
were completed as of March 31, 1999. The Company plans to focus the majority of
its efforts for the remainder of 1999 on the external portion of the project.
The Company will also test all its internal systems a second time to ensure
those systems are properly converted.
The external portion of the project focuses on assessing the Y2K readiness
of product and service vendors and its potential impact on the Company's
operations. The Company distributed questionnaires to these vendors for this
purpose. To date the Company has received responses from over 30% of the vendors
contacted, each indicating they were not anticipating business disruption due to
Y2K. The Company is working to obtain responses from all significant vendors and
work to resolve identifiable issues, if any, to minimize potential business
interruptions. This portion of the project is expected to be completed prior to
December 31, 1999.
Costs
The Company originally estimated that total costs for the Y2K project,
through December 31, 1999, would range between $750,000 and $1 million. Actual
costs incurred to date for the Y2K project have been lower than originally
estimated. As such, the Company now estimates that total costs for the project
will range between $500,000 and $650,000. As of September 30, 1999 the Company
has incurred, and recorded as operating expenses, approximately $370,000 in
costs related to the project, of which approximately $130,000 was incurred
during the nine months ended September 30, 1999. The Company's expenditures to
date consist primarily of internal payroll costs related to the assessment and
correction of internal systems. Of the estimated remaining costs of $130,000 to
$280,000, approximately 75% relate to the cost of assessing and communicating
with vendors and 25% relate to the correction of internal systems.
Risks
The failure to correct a material Y2K problem could result in an
interruption in, or a failure of, certain normal business activities or
operations. Such failures could materially and adversely affect the Company's
results of operations and financial condition. Due to the general uncertainty
inherent in the Y2K problem, resulting in part from the uncertainty of the Y2K
readiness of third-party suppliers, the Company is unable to determine at this
time whether the consequences of Y2K failures will have a material impact on the
Company's results of operations and financial condition. The Company's Y2K
project is expected to significantly reduce the Company's level of uncertainty
about the Y2K problem and, in particular, about the Y2K compliance and readiness
of its material vendors. The Company believes that, with the completion of the
project as scheduled, the possibility of significant interruptions of normal
operations should be minimized.
The statements concerning future impact of the Y2K issue are forward
looking statements that involve certain risks and uncertainties, such as the
inability to receive products on a timely basis from vendors, ship products to
customers, receive payments from customers and other factors which could have a
material impact on the Company's results from operations. Certain vendors may
fail to adequately prepare their information systems or the Company's own Y2K
project may not correct all Y2K issues. Accordingly, there is no certainty that
the Company's vendors will complete their Y2K projects prior to December 31,
1999, which if not completed could affect the operations of the Company as noted
above.
Certain statements included in Management's Discussion and Analysis of
Financial Condition and Results of Operations concerning the Company's sales
growth, gross profit as a percentage of sales, advertising expense, cooperative
advertising reimbursements and the potential impact on operations of the Y2K
issue are forward-looking statements that involve certain risks and
uncertainties, as specified herein.
16
<PAGE> 19
Part II Other Information
Item 1. Legal Proceedings
The Company is currently not a party to any material legal proceedings.
Item 5. Other information
On November 2, 1999 pursuant to unanimous consent of the Company's Board of
Directors, the Company expanded its Board of Directors to seven members
from five, and elected Casey Cowell and Donald P. Jacobs to fill the newly
created positions, effective immediately. Each new member's term will run
until the 2000 annual meeting at which time all directors' terms expire.
Mr. Cowell co-founded U.S. Robotics, one of the world's leading suppliers
of data communications products and systems. He served as Chairman and CEO
of U.S. Robotics from inception until its acquisition by 3Com in June 1997.
Mr. Cowell is chairman and principal owner of Durandal, Inc., a holding
company for several diversified private companies, and serves on the board
of directors of 3Com. A graduate of the University of Chicago, Mr. Cowell
is a member of the board of trustees for the University of Chicago and the
Illinois Institute of Technology.
Dr. Donald P. Jacobs is the dean of the J.L. Kellogg Graduate School of
Management and has been a member of the Kellogg faculty since joining the
school in 1957. Dr. Jacobs serves as chairman of the public review board
of Arthur Andersen and serves on the board of directors of several
corporations, including Commonwealth Edison, Hartmarx and Terex. Dr. Jacobs
received his Bachelor of Arts degree from Roosevelt University, Master of
Arts degree and Doctorate in economics from Columbia University and
numerous honorary degrees from prestigious national and international
universities.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10 (zz) Lease Agreement Dated October 11, 1999 between the Company as
Lessee and Solano Associates as Lessor
27 (a) Financial Data Schedule (for the three months ended September 30,
1999)
(b) Reports on Form 8-K:
There were no reports on Form 8-K filed for the three months ended
September 30, 1999.
17
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CDW Computer Centers, Inc.
(Registrant)
Date November 15, 1999 /s/ Harry J. Harczak, Jr.
--------------------- --------------------------
Harry J. Harczak, Jr.
Chief Financial Officer &
Treasurer
Date November 15, 1999 /s/ Sandra M. Rouhselang
--------------------- --------------------------
Sandra M. Rouhselang
Controller
18
<PAGE> 21
Index to Exhibits
10 (zz) Lease Agreement Dated October 11, 1999 between the Company as Lessee
and Solano Associates as Lessor
27 Financial Data Schedule
<PAGE> 1
EXHIBIT 10 (zz)
Lease Agreement Dated October 11, 1999
Between the Company as Lessee
and Solano Associates as Lessor
<PAGE> 2
TABLE OF CONTENTS
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS...........1
1.1 Basic Lease Definitions...........................................1
1.2 Exhibits..........................................................3
1.3 Additional Definitions............................................3
2. GRANT OF LEASE.........................................................6
2.1 Demise............................................................6
2.2 Quiet Enjoyment...................................................6
2.3 Landlord and Tenant Covenants.....................................7
3. TERM...................................................................7
3.1 Commencement Date.................................................7
3.2 Early Occupancy...................................................7
3.3 Delayed Occupancy.................................................7
3.4 Surrender.........................................................7
3.5 Holding Over......................................................7
4. RENT...................................................................8
4.1 Base Rent.........................................................8
4.2 Additional Rent...................................................8
4.3 Other Taxes.......................................................9
4.4 Terms of Payment..................................................9
4.5 Interest on Late Payments.........................................9
4.6 Right to Accept Payments..........................................9
4.7 Expense Cap.......................................................9
4.8 Tenant's Right to Audit...........................................10
5. CONDITION OF PREMISES..................................................10
6. USE AND OCCUPANCY......................................................11
6.1 Use...............................................................11
6.2 Compliance........................................................11
6.3 Occupancy.........................................................12
7. SERVICES AND UTILITIES.................................................12
7.1 Landlord's Standard Services......................................12
7.2 Electricity.......................................................14
7.3 Additional Services...............................................15
7.4 Interruption of Services..........................................15
8. REPAIRS................................................................16
8.1 Repairs Within the Premises.......................................16
8.2 Failure to Maintain Premises......................................16
8.3 Notice of Damage..................................................16
9. ALTERATIONS............................................................16
9.1 Alterations by Tenant.............................................16
9.2 Alterations by Landlord...........................................17
i
<PAGE> 3
10. LIENS...............................................................17
11. INSURANCE...........................................................18
11.1 Landlord's Insurance..............................................18
11.2 Tenant's Insurance................................................18
12. DAMAGE OR DESTRUCTION...............................................19
12.1 Termination Options...............................................19
12.2 Repair Obligations................................................20
12.3 Rent Abatement....................................................20
13. WAIVERS AND INDEMNITIES..............................................20
13.1 Landlord's Waivers................................................20
13.2 Tenant's Waivers..................................................21
13.3 Landlord's Indemnity..............................................21
13.4 Tenant's Indemnity................................................21
14. CONDEMNATION........................................................21
14.1 Full Taking.......................................................21
14.2 Partial Taking....................................................21
14.3 Awards............................................................22
15. ASSIGNMENT AND SUBLETTING...........................................22
15.1 Limitation........................................................22
15.2 Notice of Proposed Transfer; Landlord's Options...................22
15.3 Consent Not to Be Unreasonably Withheld...........................22
15.4 Form of Transfer..................................................23
15.5 Payments to Landlord..............................................23
15.6 Change of Ownership...............................................23
15.7 Permitted Transfers...............................................24
15.8 Effect of Transfers...............................................24
16. PERSONAL PROPERTY...................................................24
16.1 Installation and Removal..........................................24
16.2 Responsibility....................................................24
16.3 Landlord's Lien...................................................25
17. ESTOPPEL CERTIFICATES...............................................25
18. TRANSFER OF LANDLORD'S INTEREST.....................................25
18.1 Sale, Conveyance and Assignment...................................25
18.2 Effect of Sale, Conveyance or Assignment..........................25
18.3 Subordination and Nondisturbance..................................25
18.4 Attornment........................................................26
19. RULES AND REGULATIONS...............................................26
20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES............................26
20.1 Default...........................................................26
20.2 Remedies..........................................................27
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES............................29
21.1 Default...........................................................29
21.2 Remedies..........................................................29
ii
<PAGE> 4
21.3 Cure by Encumbrance Holder........................................29
22. SECURITY DEPOSIT. INTENTIONALLY DELETED.............................29
23. BROKERS.............................................................30
24. LIMITATIONS ON LANDLORD'S LIABILITY.................................30
25. NOTICES.............................................................30
26. MISCELLANEOUS.......................................................30
26.1 Binding Effect....................................................30
26.2 Complete Agreement; Modification..................................30
26.3 Delivery for Examination..........................................30
26.4 No Air Rights.....................................................31
26.5 Enforcement Expenses..............................................31
26.6 Building Planning.................................................31
26.7 Building Name.....................................................31
26.8 Building Standard.................................................31
26.9 No Waiver.........................................................31
26.10 Recording; Confidentiality.....................................31
26.11 Captions.......................................................32
26.12 Invoices.......................................................32
26.13 Severability...................................................32
26.14 Jury Trial.....................................................32
26.15 Authority to Bind..............................................32
26.16 Only Landlord/Tenant Relationship..............................32
26.17 Covenants Independent..........................................32
26.18 Governing Law..................................................32
26.19 Enforcement of Reasonable Consent..............................32
27. OPTION TO EXTEND THE TERM.........................................32
28. MARKET RENT.........................................................33
29. EARLY TERMINATION...................................................34
30. OPTION TO EXPAND....................................................35
31. RIGHT OF FIRST OFFER................................................36
32. SIGNAGE.............................................................38
33. YEAR 2000 COMPLIANCE................................................38
34. GENERATOR...........................................................38
iii
<PAGE> 5
OFFICE LEASE AGREEMENT
120 South Riverside Plaza building
Chicago, Illinois
THIS OFFICE LEASE AGREEMENT ("Lease") is entered into as of the Date, and by and
between the Landlord and Tenant, identified in Section 1.1 below.
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS.
1.1 Basic Lease Definitions.
In this Lease, the following defined terms have the meanings indicated.
(a) "Date" means the date of full execution of this Lease, which
is _______________________.
(b) "Landlord" means SOLANO ASSOCIATES, a California limited
partnership, d/b/a TrizecHahn 120 South Riverside Management L.P.
(c) "Tenant" means: CDW Computer Centers, Inc., an Illinois
corporation.
(d) "Premises" means those premises known as Suites 800 and 900
consisting of the entire eighth (8th) and ninth (9th) floors
respectively of the 120 South Riverside Plaza Building, 120 South
Riverside, Suite 310, Chicago, Illinois 60606 ("Building") and
identified on Exhibit A which is hereby deemed to be 71,984 rentable
square feet. The rentable square footage of the Premises shall be
subject to final measurement based on the 1996 ANSI Standard Method of
Measurement as adopted by BOMA as reasonably agreed upon between the
parties. If the parties cannot come to an agreement within a reasonable
time, not to exceed 60 days after the applicable Phase Commencement
Date, a certificate by Landlord's architect as to the final square
footage shall be controlling.
(e) "Use" means general office, including, but not limited to,
sales office to conduct sales of computers, software, electronics and
related peripheral and accessory products and such other functions as
are necessary to support such sales and no other use. Notwithstanding
what is set forth herein at no time shall the Premises be used for
computer repair or servicing or for walk-in retail sales to the public.
(f) "Term" means the duration of this Lease, which will be
approximately ten (10) years six (6) months for the 9th floor Premises
and ten (10) years for the 8th floor Premises, beginning on the
applicable "Commencement Date" (as defined in Section 3.1 below) and
ending on the "Expiration Date" (as defined below), unless terminated
earlier or extended further as provided in this Lease. The "Expiration
Date" means (i) if the Commencement Date for the 8th floor Premises is
the first day of a month, the ten (10) year anniversary of the day
immediately preceding the Commencement Date for the 8th floor Premises;
or (ii) if the Commencement Date for the 8th floor Premises is not the
first day of a month, the ten (10) year anniversary of the last day of
the month in which the Commencement Date for the 8th floor Premises
occurs.
(g) "Scheduled Commencement Date" means April 1, 2000 for the
9th floor and September 1, 2000 for the 8th floor.
1
<PAGE> 6
(h) "Base Rent" means the Rent payable according to Section 4.1,
which will be in an amount per month applicable during each Lease Year.
<TABLE>
<CAPTION>
Period Amount of Base Rent Annual Base Rent
Payable per Month
<S> <C> <C>
9th Floor Commencement Date
to 8th Floor Commencement
Date $43,490.33 $521,883.96
8th Floor Commencement Date to
1 year thereafter (Year 1) $86,980.67 $1,043.768.04
Year 2 $89,590.09 $1,075,081.08
Year 3 $92,277.79 $1,107,333.48
Year 4 $95,046.12 $1,140,553.44
Year 5 $97,897.50 $1,174.770.00
Year 6 $100,834.43 $1,210,013.16
Year 7 $103,859.46 $1,246,313.52
Year 8 $106,975.24 $1,283,702.88
Year 9 $110,184.50 $1,322,214.00
Year 10 $113,490.04 $1,361,880.48
</TABLE>
(i) "Tenant's Share" means, with respect to the calculation of
Additional Rent according to Section 4.2, 10.90% (.1090).
(j) "Security Deposit" means NONE
(k) "Landlord's Building Address" means:
TrizecHahn 120 South Riverside Management L.P.
120 South Riverside
Suite 310
Chicago, IL 60606
Attention: Property Manager
(l) "Landlord's General Address" means:
TrizecHahn 120 South Riverside Management L.P.
TrizecHahn Office Properties Inc.
Sears Tower
233 S. Wacker Drive
Suite 4600
Chicago, IL 60606
Attention: Senior Vice President
With a copy of notices of default to:
TrizecHahn 120 South Riverside Management L.P.
TrizecHahn Office Properties Inc.
3011 W. Grand Blvd.
Suite 450
Detroit, MI 48202
Attention: Regional Legal Counsel
2
<PAGE> 7
(m) "Tenant's Notice Address" means,
for notices given before the Commencement Date:
CDW Computer Centers, Inc.
200 North Milwaukee Ave.
Vernon Hills, IL 60061
Attn: Harry J. Harczak, Jr.
and for notices given after the Commencement Date:
CDW Computer Centers, Inc.
200 North Milwaukee Ave.
Vernon Hills, IL 60061
Attn: Harry J. Harczak, Jr.
With a copy of Notices of Default to:
Michael S. Tepper
Arnstein & Lehr
120 South Riverside Plaza, Suite 1200
Chicago, IL 60606
(n) "Tenant's Invoice Address" means:
CDW Computer Centers, Inc.
200 North Milwaukee Ave.
Vernon Hills, IL 60061
Attn: Harry J. Harczak, Jr.
(o) "Brokers" means the following brokers who will be paid by
Landlord in accordance with Section 23 herein:
TrizecHahn Office Properties Inc. on behalf of Landlord and
CB Richard Ellis, Inc. on behalf of Tenant.
(p) "Liability Insurance Amount" means $5,000,000.00.
1.2 Exhibits.
The Exhibits listed below are attached to and incorporated in this
Lease. In the event of any inconsistency between such Exhibits and the
terms and provisions of this Lease, the terms and provisions of the
Exhibits will control. The Exhibits to this Lease are:
Exhibit A - Plan Delineating the Premises
Exhibit B - Possession and Leasehold Improvements Agreement
Exhibit C - Occupancy Estoppel Certificate
Exhibit D - Rules and Regulations
Exhibit E - Equitable's Standard SNDA Form
Exhibit F - Janitorial Specifications
Exhibit G - Tenant's Trade Fixtures To Be Removed
Exhibit H - Existing Tenant Rights
1.3 Additional Definitions.
In addition to those terms defined in Section 1.1 and other sections of
this Lease, the following defined terms when used in this Lease have
the meanings indicated:
(a) "Additional Rent" means the Rent payable according to Section
4.2.
(b) "Building" means the office and retail building commonly known
as the 120 South Riverside Plaza Building located on the Land and in
which the Premises are located.
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(c) "Business Hours" means the hours from 8:00 a.m. to 6:00 p.m.
on Monday through Friday and from 8:00 a.m. to 1:00 p.m. on Saturday,
excluding Holidays.
(d) "Common Areas" means certain interior and exterior common and
public areas located on the Land and in the Building as may be
designated by Landlord for the non-exclusive use in common by Tenant,
Landlord and other tenants, and their employees, guests, customers,
agents and invitees. Changes in Common Areas shall result in
recalculations of Tenant's Share accordingly.
(e) "Construction Administration Fee" means for all work performed
in the Premises except the initial buildout of the Premises pursuant to
Exhibit B herein, whether performed by Landlord or Tenant, Tenant shall
pay to Landlord five percent (5%) of the cost of the work.
(f) "Expenses" means the aggregate of any and all costs (other
than those expressly excluded below) incurred or accrued during each
Fiscal Year according to generally accepted accounting principles
for operating, managing, administering, equipping, securing,
protecting, repairing, replacing, renewing, cleaning, maintaining,
decorating, inspecting, and providing water, sewer and other energy
and utilities to the Land, Building and Common Areas and expenses
incurred by Landlord in connection with any change of any company
providing electricity service; administrative fees in an amount
equal to a market management fee (provided that if Landlord elects
to use the services of a managing agent, Expenses will include,
instead of administrative fees, management fees calculated in the same
manner as administrative fees); fees and expenses (including reasonable
attorney's fees) incurred in contesting the validity of any Laws that
would cause an increase in Expenses; depreciation on personal property
and moveable equipment which is or should be capitalized on Landlord's
books ; occupancy costs associated with the Building management
office, consisting of Base Rent costs plus the proportionate share of
Expenses and Taxes attributable to such office; Capital expenses
made by reason of insurance requirements and costs (whether capital or
not) that are incurred in order to conform to changes subsequent to the
Date in any Laws, or that are made by reason of insurance requirements,
or that are commercially reasonably intended to reduce Expenses or
the rate of increase in Expenses (such costs will not be included in
Expenses for the Base Year, if any, and will otherwise be charged
to Expenses in annual installments over the useful life of the items
for which such costs are incurred [in the case of items required by
changes in Laws or insurance requirements] or over the period Landlord
reasonably estimates that it will take for the savings in Expenses
achieved by such items to equal their cost [in the case of items
intended to reduce Expenses or their rate of increase], and in
either case together with interest, each Fiscal Year such costs are
charged to Expenses, on the unamortized balance at an interest rate of
1% in excess of the average Prime Rate in effect during such Fiscal
Year. Expenses will not include (1) mortgage principal or interest;
(2) ground lease payments; (3) leasing commissions; (4) costs of
advertising space for lease in the Building; (5) costs for which
Landlord is reimbursed by insurance proceeds or from tenants of the
Building (other than such tenants' regular contributions to Expenses);
(6) any depreciation or capital expenditures (except as expressly
provided above); (7) legal fees incurred for negotiating leases or
collecting rents; (8) costs directly and solely related to the
maintenance and operation of the entity that constitutes the Landlord;
(9) real estate brokers' leasing commissions or compensation and
advertising and marketing expenses and attorney's fees incurred in
connection with leasing space in the Building;(10)costs for sculptures,
paintings or other objects of art in excess of $1,500.00 per piece
(except that there shall not be excluded the reasonable costs of
maintaining such objects in the public areas of the Building nor shall
there be excluded the reasonable costs of repairing and insuring such
objects); (11) attorney fees, costs, and other expenditures incurred
in connection with negotiations, disputes, and claims with other
tenants or occupants of the Building or with other third persons
except (a) as specifically otherwise provided in this Lease, and (b)
except those attorney fees, costs, and other expenditures incurred
in connection with negotiations, disputes, and claim against
Tenant relating to items of Expenses, enforcement of rules and
regulations of the Building and such other matters which relate
to the maintenance of standards; (12) any cost or expense reimbursed by
a tenant of the Building, except for amounts reimbursed as Taxes or
Expenses; (13) any interest on any debt or amortized payments on any
mortgage or any rent under any ground or underlying lease; (14)
expenses in connection with services which Tenant is not entitled to
receive under this Lease but which are provided to other tenants or
occupants of the Building without reimbursement by direct payment;
(15) wages and salaries of (i) management or supervisory personnel
above the level of General Manager of the city in which the Building
is located, (ii) leasing personnel, (iii) off-site personnel or
personnel who do not devote substantially all of thei time to the
Building unless such wages and benefits are prorated to reflect time
spent on operating and managing the Building, however the parties
acknowledge that certain personnel shall be maintained off-site and the
pro-rata costs of same shall be included in Expenses, including
accounting, technical services and information services; (16) any
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expense for which Landlord is compensated through proceeds of
insurance or which would have been compensated for had Landlord
maintained insurance customarily carried by similar landlords, except
that any deductible amounts under any insurance policies maintained
by Landlord shall not be excluded from Expenses to the extent such
deductible amount does not exceed that maintained by similar buildings
in downtown Chicago; (17) costs of management fees in excess of
reasonable and customary fees charged in comparable large office
buildings in downtown Chicago; (18) costs incurred by Landlord due to
any violation of any lease or occupancy agreement in the Building,
except for interest which may accrue on delinquent payments during the
pendency of any good faith contest or challenge of the obligation on
the part of the Landlord to pay such costs; (19) costs incurred due
to the violation or failure of Landlord to timely comply with or pay
amounts due as required by Laws or with respect to any contractual
requirement, except for interest which may accrue on delinquent
payments during the pendency of any good faith contest of same and
except to the extent that such failure is caused by Tenant's failure to
timely comply with the terms of this Lease; (20) Landlord's general
overhead, except as it related to management of the Building and except
as specifically set forth herein; (21) any cost or expense applicable
to or incurred in connection with operation of a parking garage
facility in the Building; (22) any compensation paid to any person or
entity controlled directly or indirectly by Landlord or any principal
of Landlord but only to the extent such compensation exceeds what
would have been earned had such services, supplies or materials been
provided on a competitive basis or by Landlord on a stand alone basis;
(23)all expenses related to removal of asbestos containing material
from any floor in the Building and installation of substitute fire
retardant materials and all expenses related to repairs,(24)alterations
or improvements to the Building necessary to comply with the American
Disabilities Act in effect and as interpreted as of the date of
execution of this Lease; and (25) cost of broadcasting facilities,
recreational and/or athletic facilities, conference facilities to the
extent the costs of same are recovered from conference facility
users, restaurants or an observatory, operated by Landlord as a common
facility, if any. For each Fiscal Year during the Term, the amount
by which those Expenses that vary with occupancy(such as cleaning costs
and utilities) would have increased had the Building been 95% occupied
and operational and had all Building services been provided to all
tenants will be reasonably determined and the amount of such increase
will be included in Expenses for such Fiscal Year.
(g) "Encumbrance " shall have the meaning set forth in Section
18.3.
(h) "Fiscal Year" means Landlord's fiscal year, which ends on
December 31st of each calendar year and may be changed at Landlord's
discretion.
(i) "Force Majeure" means any acts of God, governmental
restriction, strikes, labor disturbances, shortages of materials or
supplies, or any other cause or event beyond the parties' reasonable
control (but not because of insolvency, lack of funds or other
financial cause), by which either party is hindered or prevented from
performance of any act under this Lease, then performance of such act
shall be excused for the period during which such performance is
rendered impossible; and time for performance shall be extended
accordingly. However, Force Majeure shall not relieve either party from
any obligation under this Lease. No such delay shall constitute an
actual or constructive eviction in whole or in part, or entitle Tenant
to any abatement or diminution of rents or other charges due, or impose
any liability upon Landlord or its agents because of inconvenience to
Tenant or injury to or interruption of Tenant's business.
(j) "Holidays" means New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day.
(k) "Land" means the real property located at 120 South Riverside,
City of Chicago, County of Cook, State of Illinois as more fully
described on Schedule 1 attached and incorporated herein, less any
portions that may be conveyed separately from the Building by Landlord
from time to time, plus any additional real property located proximate
to the Land that may be operated by Landlord from time to time in
conjunction with the Land.
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(l) "Laws" means any and all present or future federal, state or
local laws, statutes, ordinances, rules, regulations or orders of any
and all governmental or quasi-governmental authorities having
jurisdiction.
(m) "Lease Year" means each successive period of 12 calendar
months during the Term, ending on the same day and month (but not year,
except in the case of the last Lease Year) as the day and month on
which the Expiration Date will occur. If the Commencement Date is not
the first day of a month, the first Lease Year will be greater than 12
months by the number of days from the Commencement Date to the last day
of the month in which the Commencement Date occurs.
(n) "Prime Rate" means the rate of interest announced from time to
time by Citibank, N.A., or any successor to it, as its prime rate. If
Citibank, N.A. or any successor to it ceases to announce a prime rate,
Landlord will designate a reasonably comparable financial institution
for purposes of determining the Prime Rate.
(p) "Rent" means the Base Rent, Additional Rent and all other
amounts required to be paid by Tenant under this Lease.
(q "Taxes" means the amount incurred or accrued during each
Fiscal Year according to generally accepted accounting principles for
that portion of the following items that is allocable to the Land and
Building: all ad valorem real and personal property taxes and
assessments, special or otherwise, levied upon or with respect to the
Land or Building, the personal property used in operating the Building,
and the rents and additional charges payable by tenants of the
Building, and imposed by any taxing authority having jurisdiction;
all taxes, levies and charges which may be assessed, levied or
imposed in replacement of, or in addition to, all or any part of ad
valorem real or personal property taxes or assessments as revenue
sources, and which in whole or in part are measured or calculated by
or based upon the Land or Building, the leasehold estate of Landlord
or the tenants of the Building, or the rents and other charges payable
by such tenants; capital and place-of-business taxes, and other
similar taxes assessed relating to the Building; and any reasonable
expenses incurred by Landlord in attempting to reduce or avoid an
increase in Taxes, including, without limitation, reasonable legal
fees and costs. Taxes will not include any net income taxes, capital,
stock, succession, transfer, franchise, gift, estate or inheritance
taxes of Landlord.
(r) "Untenantable" shall have the meaning set forth in Section 7.4
herein.
2. GRANT OF LEASE.
2.1 Demise.
Subject to the terms, covenants, conditions and provisions of this
Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises, together with the non-exclusive right to use the Common
Areas, for the Term.
2.2 Quiet Enjoyment.
Landlord covenants that during the Term Tenant will have quiet and
peaceable possession of the Premises, subject to the terms, covenants,
conditions and provisions of this Lease, and Landlord will not disturb
such possession except as expressly provided in this Lease.
2.3 Landlord and Tenant Covenants.
Landlord covenants to observe and perform all of the terms, covenants
and conditions applicable to Landlord in this Lease. Tenant covenants
to pay the Rent when due, and to observe and perform all of the terms,
covenants and conditions applicable to Tenant in this Lease.
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3. TERM.
3.1 Commencement Date.
"Commencement Date" means the first day of the Term, which the parties
acknowledge will be in Phases, with Phase 1 containing the 9th Floor
and Phase 2 containing the 8th Floor. The Commencement Date for each
Phase (i.e. the "9th Floor Commencement Date" and "the 8th Floor
Commencement Date") will be the earlier of (i) the first day on which
Tenant occupies the applicable Phase for the regular conduct (not
testing) of its business; or (ii) the Scheduled Commencement Date for
the applicable Phase (as the same may be extended according to Section
3.3 below).
3.2 Early Occupancy
Tenant has no right to enter the Premises until Landlord tenders
possession. With Landlord's express written consent, Tenant may occupy
the Premises for regular conduct of Tenant's business prior to the
Scheduled Commencement Date. If Tenant takes possession of any part of
the Premises for the regular conduct of Tenant's business prior to the
applicable Scheduled Commencement Date with Landlord's prior written
consent, all of the covenants and conditions of the Lease will bind
both parties with respect to such portion of the Premises, and Tenant
will pay Landlord for such portion of the Premises for the period of
such occupancy according to Section 4 of the Lease at the rates
applicable to the first Lease Year (excluding any periods of excused or
free rent, if any), prorated for the time and portion of the Premises
so occupied. No early occupancy under this Section 3.2 will change the
Commencement Date or the Expiration Date.
3.3 Delayed Occupancy
Delayed Occupancy shall be governed by Paragraph 2 of Exhibit B
attached hereto.
3.4 Surrender.
Upon the expiration or other termination of the Term, Tenant will
immediately vacate and surrender possession of the Premises in good
order, repair and conditions, broom clean, except for ordinary wear and
tear. Upon the expiration or other termination of the Term, at
Landlord's option, Tenant agrees to (a) remove those changes, additions
and improvements installed for or during Tenant's occupancy, whether
made by Landlord (pursuant to Sections 7.3(b), 8.2, 12.2, or 14.2) or
by Tenant, that were not approved in the initial buildout of the
Premises or which Landlord, at the time that Tenant submitted plans for
same for Landlord's approval pursuant to Section 9.1 herein, requested
Tenant to remove, and (b) remove all of Tenant's trade fixtures, office
furniture, office equipment and other personal property, including
without limitation the items set forth in Exhibit G. Tenant will pay
Landlord on demand the cost of repairing any damage to the Premises or
Building caused by the installation or removal of any such items.
Except as described herein in this Section 3.4, any of Tenant's
property remaining in the Premises will be conclusively deemed to have
been abandoned by Tenant and may be appropriated, stored, sold,
destroyed or otherwise disposed of by Landlord without notice or
obligation to account to or compensate Tenant, and Tenant will pay
Landlord on demand all reasonable costs incurred by Landlord relating
to such abandoned property.
3.5 Holding Over.
Tenant understands that it does not have the right to hold over at any
time unless agreed to by Landlord, in its sole discretion, and Landlord
may exercise any and all remedies at law or in equity to recover
possession of the premises, as well as any damages incurred by
Landlord, due to Tenant's failure to vacate the Premises and deliver
possession to Landlord as required by this Lease. If Tenant holds over
after the Expiration Date without Landlord's prior written consent,
Tenant will be deemed a tenant at sufferance, at a daily Base and
Additional Rent, payable in advance, equal to 110% for the first thirty
(30) days and 150% thereafter of the Base and Additional Rent per day
payable during the last year of the Term, and Tenant will be bound by
all of the other terms, covenants and agreements of this Lease as the
same may apply to a tenancy at sufferance. The provisions of this
Section 3.5 shall not operate as a waiver by Landlord of any right of
re-entry hereinbefore provided.
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4. RENT.
4.1 Base Rent
Commencing on the Commencement Date and then throughout the Term,
Tenant agrees to pay Landlord Base Rent according to the following
provisions. Base Rent during each Lease Year (or portion of a Lease
Year) described in Section 1.3(k) will be payable in monthly
installments in the amount specified for such Lease Year (or portion)
in Section 1.1(h), in advance, on or before the first day of each and
every month during the Term. However, if the Term commences on other
than the first day of a month or ends on other than the last day of a
month, Base Rent for such month will be appropriately prorated.
4.2 Additional Rent.
Tenant agrees to pay Landlord, as Additional Rent, in the manner
provided below for each Fiscal Year that contains any part of the Term,
Tenant's Share of (i) the amount of Expenses for such Fiscal Year
("Additional Expenses"); and (ii) the amount of Taxes for such Fiscal
Year ("Additional Taxes").
(a) Estimated Payments. Prior to or as soon as practicable after
the beginning of each Fiscal Year, Landlord will notify Tenant of
Landlord's estimate of Tenant's Share of Additional Expenses and
Additional Taxes for the ensuing Fiscal Year. On or before the first
day of each month during the ensuing Fiscal Year, Tenant will pay to
Landlord, in advance, 1/12 of such estimated amounts, provided that
until such notice is given with respect to the ensuing Fiscal Year,
Tenant will continue to pay on the basis of the prior Fiscal Year's
estimate until the month after the month in which such notice is given.
In the month Tenant first pays based on Landlord's new estimate, Tenant
will pay to Landlord one-twelfth ((1)/12th) of the difference between
the new estimate and the prior year's estimate for each month which has
elapsed since the beginning of the current Fiscal Year. If at any time
or times it appears to Landlord that Tenant's Share of Additional
Expenses or Tenant's Share of Additional Taxes for the then-current
Fiscal Year will vary from Landlord's estimate by more than 5%,
Landlord may, by notice to Tenant, revise its estimate for such year
and subsequent payments by Tenant for such year will be based upon the
revised estimate, all of which are subject to the limitations contained
in Section 4.7.
(b) Annual Settlement. As soon as practicable, but no later than
120 days after the close of each Fiscal Year, Landlord will deliver to
Tenant its statement of Tenant's Share of Additional Expenses and
Additional Taxes for such Fiscal Year. If on the basis of such
statement Tenant owes an amount that is less than the estimated
payments previously made by Tenant for such Fiscal Year, Landlord will
either refund such excess amount to Tenant or credit such excess amount
against the next payment(s), if any, due from Tenant to Landlord. If on
the basis of such statement Tenant owes an amount that is more than the
estimated payments previously made by Tenant for such Fiscal Year,
Tenant will pay the deficiency to Landlord within 30 days after the
delivery of such statement. If this Lease commences on a day other than
the first day of a Fiscal Year or terminates on a day other than the
last day of a Fiscal Year, Tenant's Share of Additional Expenses and
Additional Taxes applicable to the Fiscal Year in which such
commencement or termination occurs will be prorated on the basis of the
number of days within such Fiscal Year that are within the Term.
(c) Final Payment. Tenant's obligation to pay the Additional Rent
and Landlord's obligation to refund or credit any overpayment of
Additional Rent provided for in this Section 4.2 which is accrued but
not paid for periods prior to the expiration or early termination of
the Term will survive such expiration or early termination. Prior to or
as soon as practicable after the expiration or early termination of the
Term, but no later than 120 days after the end of the Fiscal Year in
which such expiration or early termination occurs, Landlord may submit
an invoice to Tenant stating Landlord's estimate of the amount by which
Tenant's Share of Additional Expenses and Additional Taxes through the
date of such expiration or early termination will exceed Tenant's
estimated payments of Additional Rent for the Fiscal Year in which such
expiration or termination has occurred or will occur. Tenant will pay
the amount of any such excess to Landlord or Landlord shall pay to
Tenant the amount of any Tenant's overpayment within 30 days after the
date of Landlord's invoice.
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4.3 Other Taxes.
Tenant will reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes and taxes included in
Taxes) whether or not now customary or within the contemplation of
Landlord and Tenant: (a) upon, measured by or reasonably attributable
to the cost or value of Tenant's equipment, furniture, fixtures and
other personal property located in the Premises: (b) upon or measured
by Rent; (c) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion of the Premises; and
(d) upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. If
it is not lawful for Tenant to reimburse Landlord, the Base Rent
payable to Landlord under this Lease will be revised to yield to
Landlord the same net rental after the imposition of any such tax upon
Landlord as would have been payable to Landlord prior to the imposition
of any such tax.
4.4 Terms of Payment.
All Base Rent, Additional Rent and other Rent will be paid to Landlord
(Solano Associates d/b/a TrizecHahn 120 South Riverside Management
L.P.) in lawful money of the United States of America, at Old Kent Bank
Slot 30243 PO Box 66973 Chicago IL 60666-0973 or to such other person
or at such other place as Landlord may from time to time designate in
writing, without notice or demand and without right of deduction,
abatement or setoff, except as otherwise expressly provided in this
Lease.
4.5 Interest on Late Payments.
All amounts payable under this Lease by Tenant to Landlord, if not paid
within 5 days of when due, will bear interest from the due date until
paid at the lesser of the highest interest rate permitted by law or the
then-current Prime Rate.
4.6 Right to Accept Payments.
No receipt by Landlord of an amount less than Tenant's full amount due
will be deemed to be other than payment "on account", nor will any
endorsement or statement on any check or any accompanying letter effect
or evidence an accord and satisfaction. Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance
or pursue any right of Landlord. No payments by Tenant to Landlord
after the expiration or other termination of the Term, or after the
giving of any notice (other than a demand for payment of money) by
Landlord to Tenant, will reinstate, continue or extend the Term or make
ineffective any notice given to Tenant prior to such payment. After
notice or commencement of a suit, or after final judgment granting
Landlord possession of the Premises, Landlord may receive and collect
any sums of Rent due under this Lease, and such receipt will not void
any notice or in any manner affect any pending suit or any judgment
obtained.
4.7 Expense Cap.
"Capped Expenses" shall mean all Expenses exclusive of Non-Capped
Expenses as defined below. For the purpose of determining Additional
Rent, during the initial Term of the Lease only, Capped Expenses for
any calendar year shall not be increased over the amount of Capped
Expenses during the calendar year in which the term of this Lease
commences by more than five percent (5%) per year on a cumulative
basis, compounded annually. For example, if Capped Expenses during the
calendar year in which the term of this Lease commences were $100,000,
the cap on Capped Expenses for the fifth full calendar year would be
$121,550.63 ($100,000 times 1.05 times 1.05 times 1.05 times 1.05).
Notwithstanding what is set forth herein, Landlord shall not increase
Capped Expenses more than ten percent (10%) in any one year, however,
Landlord may carry over any increase in Capped Expenses over ten
percent for a particular year to apply toward Capped Expenses in future
years until recovered. It is understood and agreed that there shall be
no cap on Non-Capped Expenses, which are hereby defined to mean all
Expenses that in Landlord's sole discretion and judgment may be subject
to increases which are outside of Landlord's control, including but not
limited to, all utility expenses, snow removal expenses, insurance
premiums, costs governed by collective bargaining, costs incurred due
to requirements of Law or insurance carriers, major repairs, or costs
incurred due to casualty or condemnation to the extent same are not
reimbursed by insurance required to be carried under this Lease or by
condemnation award. At no time shall there be any cap on Taxes.
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4.8 Tenant's Right to Audit.
Landlord shall maintain complete and accurate books and records
detailing all Expenses and Taxes for not less than the preceding one
(1) year. Landlord may keep the books and records at the Building or at
Landlord's regional office. Within ninety days of receipt of Landlord's
annual statement for Tenant's Share of Additional Expenses and
Additional Taxes as described in Section 4.2(b) above and upon thirty
(30) days written notice Tenant and/or its representatives (which shall
be members of one of the "Big Five" accounting firms and shall not be
compensated on a contingency fee basis for this audit) shall have the
right, at Tenant's expense, to examine (but not to copy), and audit
during normal business hours, Landlord's books and records pertaining
to the Expenses and Taxes for the preceding year to enable Tenant to
verify the accuracy thereof. Landlord shall reasonably cooperate with
Tenant in any such examination. Any information reviewed by Tenant
and/or its representatives shall be kept confidential and may only be
disclosed as set forth in Section 26.10. If it is determined that the
Expenses and Taxes reported by Landlord are in excess of one hundred
five (105%) percent of the actual amount of Expenses and Taxes, then if
(i) Landlord fails to dispute such finding, or (ii) Landlord agrees
with such finding, or (iii) following a dispute of Tenant's audit by
Landlord the reconciled audits still evidence that Tenant was
overcharged by more than 5% as set forth above, then Tenant's
reasonable actual costs of said audit shall be payable by Landlord on
demand. Any overpayment by Tenant shall be credited to Tenant and any
undercharge shall be paid by Tenant as soon as reasonably possible.
Failure by Tenant to contest or dispute the allocation of Additional
Rent within ninety days of receipt of Landlord's annual statement for
Tenant's Share of Additional Expenses and Additional Taxes as described
in Section 4.2(b) above (a) is deemed a waiver of the applicable audit
or dispute right and any right to contest the Additional Rent charges
(undercharges or overcharges) for the applicable Lease year; (b) is
deemed acceptance of the Additional Rent charges as submitted to and
reviewed by Tenant; and (c) CONSTITUTES FULL RELEASE OF LANDLORD BY
TENANT FOR ANY OVERCHARGES of Additional Rent for the applicable Lease
year . Such audit review by Tenant shall not postpone or alter the
liability and obligation of Tenant to pay any amounts due under the
Terms of the Lease, nor shall Tenant be entitled to conduct such an
audit if Tenant is otherwise in Default under this Lease. No subtenant
shall have any right to conduct an audit and no assignee shall conduct
an audit for any period during which such assignee was not in
possession of the Premises. The foregoing provisions shall survive
termination or expiration of the Lease.
5. CONDITION OF PREMISES.
Subject to any provision of this Lease concerning the making of
Leasehold Improvements by Landlord in the Premises, including without
limitation Exhibit B herein, by taking possession of the Premises
hereunder, Tenant accepts the Premises as being in good order,
condition and repair, and otherwise as is, where is and with all
faults. Except as may be expressly set forth in this Lease, including
Exhibit B, Tenant acknowledges that neither Landlord, nor any employee,
agent or contractor of Landlord has made any representation or warranty
concerning the Land, Building, Common Areas or Premises, or the
suitability of either for the conduct of Tenant's business. The
Premises do not include any areas above the finished ceiling or below
the finished floor covering installed in the Premises or any other
areas not shown on Exhibit A as being part of the Premises. Landlord
reserves, for Landlord's exclusive use, any of the following (other
than those installed for Tenant's exclusive use) that may be located in
the Premises: janitor closets, stairways and stairwells; fan,
mechanical, electrical, telephone and similar rooms; and elevator, pipe
and other vertical shafts, flues and ducts. Notwithstanding what is set
forth herein, Tenant, subject to Landlord's reasonable prior approval,
may have non-exclusive use of the area above the finished ceiling and
below the finished floor for electrical, telephone and other cabling
and other similar rooms serving the Premises to run voice /data
communication cabling.
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6. USE AND OCCUPANCY.
6.1 Use.
(a) Tenant agrees to use and occupy the Premises only for the Use
described in Section 1.1(e), or for such other purpose as Landlord
expressly authorizes in writing.
(b) The use of the Premises permitted under Section 6.1(a) shall
not include, and Tenant shall not use, or permit the use of, the
Premises or any part thereof for: (i) the offices or business of a
governmental or quasi-governmental bureau, department or agency,
foreign or domestic, including an autonomous governmental corporation
or diplomatic or trade mission; or (ii) conduct or maintenance of any
gambling or gaming activities or any political activities of any club
activities, or a school or employment or placement agency; or (iii) any
use which would (1) violate any agreement which affects the Building or
binds Landlord, including without limitation, any exclusive uses
granted to existing tenants or (2) conflict, in Landlord's sole
opinion, with retail uses currently in existence in the Building.
Landlord agrees that Tenant's initial use and space plan do not require
any improvements, alterations or changes in services per this Article.
Education, training and recruitment of Tenant's employees and
prospective employees in conjunction with Tenant's Use hereunder shall
be deemed a permitted Use hereunder. Use includes the rights granted
under Section 34.
6.2 Compliance.
(a) Tenant agrees to use the Premises in a safe, careful and
proper manner, and to comply with all Laws applicable to Tenant's use
and occupancy of the Premises. If, (i) due to the nature or manner of
any use or occupancy of the Premises by Tenant, or (ii) to a condition
created by Tenant, or a breach of Tenant's obligations hereunder or the
negligence of Tenant or its invitees, or (iii) the requirement of
installation or modification of any gas, smoke or fire detector or
alarm or any sprinkler or other system to prevent or extinguish fire or
combustion or to promote fire safety, any improvements or alterations
to the Premises or Building or changes in the services provided by
Landlord according to Section 7 are required to comply with any Laws,
or with requirements of Landlord's insurers, then Tenant will pay all
costs of the required improvements, alterations or changes in services.
(b) Landlord and Tenant agree that, during the Term, each will
comply with all Laws governing, and all procedures established by
Landlord for, the use, abatement, removal, storage, disposal or
transport of any substances, chemicals or materials declared to be, or
regulated as, hazardous or toxic under any applicable Laws ("Hazardous
Substances") and any required or permitted alteration, repair,
maintenance, restoration, removal or other work in or about the
Premises, Building or Land that involves or affects any Hazardous
Substances. Each party will indemnify and hold the other and the
other's "Affiliates" (as defined in Section 13.1) harmless from and
against any and all claims, costs and liabilities (including reasonable
attorneys' fees) arising out of or in connection with any breach by
such party of its covenants under this Section 6.2(b). The parties'
obligations under this Section 6.2(b) will survive the expiration or
early termination of the Term.
(c) The parties hereby agree that throughout the Term of this
Lease, the Landlord shall be responsible, at its sole cost and expense,
for compliance with the Americans With Disabilities Act of 1990 and all
regulations issued by the U.S. Attorney General or other authorized
agencies under the authority of such Act ("ADA") in the Common Areas of
the Building and that Tenant shall be responsible for compliance with
the ADA in the Premises. Tenant agrees that in the event it provides
any plans or specifications for improvements, alterations or additions
to the Premises pursuant to the terms and conditions of this Lease,
Tenant shall be obligated to cause such plans to conform to all then
applicable requirements of the ADA and shall otherwise cause them to be
in accordance with the agreements contained in this Section 6.2(c) and
Tenant shall notify Landlord of any particular requirements that Tenant
may have to enable Landlord to meet its obligations under this Section
6.2(c). Landlord and Tenant covenant and agree to reimburse and
indemnify each other for any expenses incurred by the indemnified party
due to the indemnified party's failure to conform to the requirements
of the ADA as agreed to in this Section 6.2(c), including, but not
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limited to, the cost of making any alterations, renovations or
accommodations required by the ADA, or any governmental enforcement
agency, or any court, any and all fines, civil penalties and damages
awarded resulting from a violation of the ADA and all reasonable legal
expenses incurred in defending such claims made under the ADA or in
enforcing this indemnification, including, but not limited to,
reasonable attorney's fees. Such indemnification shall survive the
expiration or termination of this Lease.
(d) Landlord has disclosed to Tenant that the Building contains
asbestos containing material ("ACM") and that the Premises are free of
ACM except in sealed perimeter columns. Landlord has established an ACM
management program that will govern all work in the Building that could
disturb any ACM. Regardless of any provision of the Lease to the
contrary, Tenant will not undertake any work in the Premises or the
Building (including, without limitation, any alteration, repair,
maintenance, restoration or removal work contemplated by Sections 8.1,
9.1, 12.2 or 16.1 of the Lease) that could disturb any ACM in the
sealed perimeter columns in the Premises or ACM in other parts of the
Building without first notifying Landlord of the proposed work and
cooperating with Landlord to ensure that such work complies with
Landlord's ACM program. Tenant agrees that its failure to comply with
this Section 6.2(d) will constitute a material breach of the Lease;
however, such agreement will not be deemed to limit the materiality of
any other Tenant breach of the Lease for failure to comply with any
other Rules and Regulations.
6.3 Occupancy.
Tenant will not do or permit anything which obstructs or interferes
with other tenants' rights or with Landlord's providing Building
services, or which injures or annoys other tenants. Tenant will not
cause, maintain or permit any nuisance in or about the Premises and
will keep the Premises free of debris, and anything of a dangerous,
noxious, toxic or offensive nature or which could create a fire hazard
or undue vibration, heat or noise. If any item of equipment, building
material or other property brought into the Building by Tenant or on
Tenant's request causes a dangerous, noxious, toxic or offensive effect
including an environmental effect) and in Landlord's reasonable opinion
such effect will not be permanent but will only be temporary and is
able to be eliminated, then Tenant will not be required to remove such
item, provided that Tenant promptly and diligently causes such effect
to be eliminated, pays for all costs of elimination and indemnifies
Landlord against all liabilities arising from such effect. Tenant will
not make or permit any use of the Premises which may jeopardize any
insurance coverage, increase the cost of insurance or require
additional insurance coverage. If by reason of Tenant's failure to
comply with the provisions of this Section 6.3(a) any insurance
coverage is jeopardized as evidenced by a written notice from
Landlord's insurance carrier then Landlord will have the option to
terminate this Lease after giving written notice to Tenant and
providing that Tenant shall cure same as soon as reasonably possible
after said notice but no less than 30 days thereafter and Tenant shall
have failed to cure same within said cure period, or (b) insurance
premiums are increased, then Landlord may require Tenant to immediately
pay Landlord as Rent the amount of the increase in insurance premiums
directly attributed to its use. Notwithstanding anything herein
contained to the contrary, Landlord agrees that Tenant's Use of the
Premises is an acceptable use under this Section 6.3 and this Lease and
that occupancy of up to 1 person per 100 rentable square feet in the
Premises is an acceptable level of occupancy for the Premises, except
as otherwise specifically set forth in the Lease including Sections
7.1(b) and (f ) and shall not constitute a default hereunder.
Notwithstanding what is set forth in the preceding sentence, Landlord
makes no warranty or representation regarding the compliance of
Tenant's Use or its occupancy of 1 person per 100 rentable square feet
in the Premises with any zoning laws.
7. SERVICES AND UTILITIES.
7.1 Landlord's Standard Services.
During the Term, Landlord will operate and maintain the Building in
compliance with all applicable Laws which are not the obligation of
Tenant and in good condition and repair according to those standards
from time to time prevailing for office buildings of a similar size and
age in the area in which the Building is located. Landlord represents
that as of the Date (i) the plumbing, electrical wiring, water and
sewerage systems, fire protection and sprinkler system, heating system,
air-conditioning equipment and elevators serving the Common Areas of
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the Building and the heating/air-conditioning distribution duct work to
the exterior of the Premises are in good operating condition, (ii) the
Building structure, to the best of its knowledge, is in good condition,
and (iii) the perimeter induction units, toilets and sinks located in
the Premises are in good working condition. Landlord will provide the
following services according to such standards, the costs of which will
be included in Expenses to the extent provided in Section 1.3(f):
(a) repair, maintenance and replacement of all the exterior and
structural elements of the Building including the exterior windows and
the Common Areas and all general mechanical, plumbing and electrical
systems installed in the Building, but excluding those portions of any
mechanical, plumbing or electrical systems that exclusively serve the
Premises such as (by means of illustration only) supplemental heating,
ventilation and air-conditioning ("HVAC") systems, kitchen plumbing and
equipment, plumbing for restrooms exclusively used by Tenant and wall
plugs and switches ("Exclusive Systems").; and
(b) heating and air-conditioning the Premises and Common Areas
during Business Hours, at temperatures and in amounts as may be
reasonably required for comfortable use and occupancy under normal
business operations with "Customary Office Equipment" and a personnel
density not to exceed 1 person per 100 rentable square feet as to
heating and 1 person per 200 rentable square feet as to
air-conditioning (however a density of 1 person per 100 rentable square
feet is achievable with supplemental air-conditioning installed by
Tenant), subject to compliance with all applicable voluntary and
mandatory regulations and laws (as used in this Lease, "Customary
Office Equipment" will include typewriters, calculators, dictation
recorders, desk top personal computers, small reproduction machines and
similar devices and equipment; but will not include any machines,
devices or equipment that adversely affect the temperature otherwise
maintained in the Premises such as equipment which generates
substantial amounts of heat disproportionate to its size). A computer
room will be constructed in the Premises at Tenant's cost and
supplemental cooling provided therefore. If Tenant requires heating or
air-conditioning for the Premises outside Business Hours, Landlord will
furnish the same for the hours specified in a request from Tenant
(which request will be made at the time and in the manner reasonably
designated by Landlord for such requests from time to time), and for
this service Tenant will pay Landlord, within 30 days after the date of
Landlord's invoice, the hourly rate reasonably determined by Landlord
from time to time; After hours charges for heating and cooling using
interior VAV fan operation only shall be $45.00 per hour per floor; and
(c) cold water from City of Chicago mains for small kitchens, hot
and cold water for Building standard washrooms and water for drinking
fountains (excluding water for air conditioning units for exclusive use
by Tenant) Water for Tenant's supplemental air-conditioning systems, if
any, is available at the rate reasonably determined by Landlord from
time to time which as of the Date is $253.00 per ton per year.; and
(d) janitorial services to the Premises and Building Common Areas,
exclusive of Holidays. Tenant shall not provide any janitor services
without Landlord's written consent. Janitorial services shall be
consistent with those of other comparable office buildings in downtown
Chicago, and subject to the following specifications as attached as
Exhibit F hereto and
(e) passenger elevators for access to and from the floor(s) on
which the Premises are located. At least one passenger elevator shall
be available to provide access to the Premises 24 hours a day, every
day of the year, and Landlord shall use reasonable efforts to maintain
at least three (3) elevators available for Tenant's non-exclusive use
during Building Business Hours; and
(f) toilet facilities sufficient for normal office use with
a density not to exceed 1 person per 200 rentable square feet; and
(g) electric lighting for all Common Areas that require electric
light during the day or are open at night, including replacement of
tubes and ballasts in lighting fixtures; and
(h) security service for the Building comparable to that provided
by comparable buildings in comparable areas of downtown Chicago,
Illinois using manners and methods deemed necessary by Landlord in its
sole and reasonable judgment.; and
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(i) Landscaping comparable to that provided by comparable
buildings in comparable areas of downtown Chicago, Illinois using
manners and methods deemed necessary by Landlord in its sole and
reasonable judgment; and
(j) Snow removal from sidewalks and exterior Common Areas
comparable to that provided by comparable buildings in comparable areas
of downtown Chicago, Illinois using manners and methods deemed
necessary by Landlord in its sole and reasonable judgment; and
(k) Insect, rodent and vermin control in the Building and Premises
comparable to that provided by comparable buildings in comparable areas
of downtown Chicago, Illinois using manners and methods deemed
necessary by Landlord in its sole and reasonable judgment.
7.2 Electricity.
(a) Electric Service Provider. Electricity for the Premises shall
not be furnished by Landlord but shall be furnished by the electric
utility company serving the Building. Landlord has advised Tenant that
presently Commonwealth Edison ("Electric Service Provider") is the
utility company selected by Landlord to provide electricity service for
the Building. Tenant shall make all necessary arrangements with the
Electric Service Provider for metering and paying for electric current
furnished by said Electric Service Provider to the Tenant and Tenant
shall pay for all charges for electric current consumed on the Premises
during the Term of this Lease. Tenant's electrical use in the Premises
shall not exceed the capacity of the existing system serving the
Premises, nor shall Tenant use more than its proportionate share of the
Building electrical riser capacity. Tenant may purchase from Landlord,
Landlord's agent, or from a third party all lamps, bulbs, ballasts and
starters used in the Premises (provided that Tenant may at its sole
cost and expense engage directly a licensed union electrician to change
lamps and bulbs used in the Premises).
(b) Alternate Service Provider. Notwithstanding the foregoing, if
permitted by Law, Landlord or Tenant shall have the right at any time
and from time to time during the Term to either contract for service
from a different company or companies providing electricity service
(each such company shall hereinafter be referred to as an "Alternate
Service Provider") or continue to contract for service from the
Electric Service Provider. Tenant shall cooperate with Landlord, the
Electric Service Provider, and any Alternate Service Provider at all
times and, as reasonably necessary, shall allow Landlord, Electric
Service Provider, and any Alternate Service Provider reasonable access
to the Building's electric lines, feeders, risers, wiring, and any
other machinery within the Premises. If Tenant selects an Alternate
Service Provider to provide electricity service for the Building,
Tenant shall make all necessary arrangements with the Alternate Service
Provider for metering and paying for electric current furnished by the
Alternate Service Provider to the Tenant and Tenant shall pay for all
charges for electric current consumed on the Premises during the Term
of this Lease. Landlord shall in no way be liable or responsible for
any loss, damage, or expense that Tenant may sustain or incur by reason
of any change, failure, interference, disruption, or defect in the
supply or character of the electric energy furnished to the Premises,
or if the quantity or character of the electric energy supplied by the
Electric Service Provider or any Alternate Service Provider is no
longer available or suitable for Tenant's requirements, and no such
change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under the Lease. Notwithstanding
what is set forth herein, Tenant may not select an Alternate Service
Provider that is different from the one selected for the Building by
Landlord if Tenant's selection will adversely affect Landlord's
selection of an Alternate Service Provider in any way.
7.3 Additional Services.
(a) If Tenant requires electric current, water or any other
utilities in excess of the amounts provided by Landlord according to
Sections 7.1 and 7.2, such excess electric, water or other utility
requirements will be supplied only with Landlord's consent, which
consent will not be unreasonably withheld. If Landlord grants such
consent, Tenant will pay all costs of meter service and installation of
facilities or professional services necessary to measure and/or furnish
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the required excess capacity. Tenant will also pay the entire cost at
the prevailing rate of such additional electricity, water or other
utility so required.
(b) If Tenant installs any machines, equipment or devices in the
Premises other than those approved by Landlord in the initial buildout
of the Premises that do not constitute Customary Office Equipment and
such machines, equipment or devices cause the temperature in any part
of the Premises to exceed the temperature the Building's mechanical
system would be able to maintain in the Premises were it not for such
machines, equipment or devices, then Landlord reserves the right upon
prior reasonable written notice and Tenant's failure to install same in
a reasonable amount of time, to install supplementary air conditioning
units in the Premises, and Tenant will pay Landlord all costs of
installing, operating and maintaining such supplementary units.
(c) If Tenant requires any janitorial or cleaning services in
excess of the amounts provided by Landlord according to Section 7.1
(such as cleaning services beyond normal office janitorial services for
areas such as kitchens, computer rooms or other special use areas),
Landlord will provide such excess services to Tenant within a
reasonable period after Tenant's request made to Landlord's Building
manager ("Property Manager"), provided that such excess services are
available from Landlord's regular janitorial or cleaning contractor.
Tenant will pay the cost of such excess services at prevailing rates.
Landlord will also provide, within a reasonable period after Tenant's
request made to the Property Manager, at Tenant's cost and to the
extent available to Landlord, replacement of bulbs, tubes or ballasts
in any non-Building standard lighting fixtures in the Premises.
(d) Tenant will pay as Rent, within 30 days after the date of
Landlord's invoice, all costs which may become payable by Tenant to
Landlord under this Section 7.3.
7.4 Interruption of Services.
If any of the services provided for in this Section 7 are interrupted
or stopped, Landlord will use due diligence to resume the service;
provided, however, no irregularity or stoppage of any of these services
will create any liability for Landlord (including, without limitation,
any liability for damages to Tenant's personal property caused by any
such irregularity or stoppage), constitute an actual or constructive
eviction or, except as expressly provided below, cause any abatement of
the Rent payable under this Lease or in any manner or for any purpose
relieve Tenant from any of its obligations under this Lease. If, due to
reasons within Landlord's reasonable control to remedy (provided such
unavailability is not caused by Tenant, Tenant's Contractors or any of
their respective agents or employees), any of the services required to
be provided by Landlord under this Section 7 should become unavailable
and should remain unavailable for a period in excess of three (3) days
after notice of such unavailability from Tenant to Landlord, and if
such unavailability should render all or any portion of the Premises
where Tenant is actually unable to use any or all of the Premises for
the normal conduct of its business ("Untenantable"), then commencing
upon the expiration of such 3 day period, Tenant's Rent will equitably
abate in proportion to the portion of the Premises so rendered
Untenantable for so long as such services remain unavailable for such
reasons. Without limiting those reasons for an irregularity or stoppage
of services that may be beyond Landlord's control, any such
irregularity or stoppage that is required in order to comply with any
Laws will be deemed caused by a reason beyond Landlord's control.
8. REPAIRS.
8.1 Repairs Within the Premises.
Subject to the terms of Sections 6, 7.1(a), 12 and 14, and except to
the extent Landlord is required or elects to perform or pay for certain
maintenance or repairs according to those sections, Tenant will, at
Tenant's own expense: (a) at all times during the Term, maintain the
Premises, including without limitation all glass, doors, fixtures,
equipment, and appurtenances therein and those portions of any
Exclusive Systems in good order and repair and in a condition that
complies with all applicable Laws; and (b) promptly and adequately
repair all damage to the Premises and replace or repair all of such
glass, doors, fixtures, equipment and portions of the Exclusive Systems
that are damaged or broken, all under the supervision of Landlord at
Landlord's option and subject to the prior reasonable approval of
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Landlord. All work done by Tenant or its contractors (which contractors
will be subject to Landlord's reasonable approval) will be done in a
first-class workmanlike manner using only grades of materials at least
equal in quality to Building standard materials and will comply with
all insurance requirements and all applicable Laws.
8.2 Failure to Maintain Premises.
If Tenant fails to perform any of its obligations under Section 8.1,
then Landlord may perform such obligations and Tenant will pay as Rent
to Landlord the cost of such performance, including an amount
sufficient to reimburse Landlord for overhead and supervision, within
30 days after the date of Landlord's invoice. For purpose of performing
such obligations, or to inspect the Premises, Landlord may enter the
Premises upon not less than 30 days' prior notice to Tenant provided
that Tenant has not cured same within said period (except in cases of
actual or suspected emergency, in which case no prior notice will be
required or in cases where Tenant's failure to repair has an adverse
affect on the Building or other tenants, in which case only 10 days
notice will be required) without liability to Tenant for any loss or
damage incurred as a result of such entry, provided that Landlord will
take reasonable steps in connection with such entry to minimize any
disruption to Tenant's business or its use of the Premises.
8.3 Notice of Damage.
Tenant will notify Landlord promptly after Tenant learns of (a) any
fire or other casualty in the Premises; (b) any damage to or defect in
the Premises, including the fixtures and equipment in the Premises, for
the repair of which Landlord might be responsible; and (c) any damage
to or defect in any parts of appurtenances of the Building's sanitary,
electrical heating, air conditioning, elevator or other systems located
in or passing through the Premises.
9. ALTERATIONS.
9.1 Alterations by Tenant.
Tenant may from time to time at its own expense make changes, additions
and improvements to the Premises (individually or collectively referred
to as "Alterations") to better adapt the same to its business, provided
that any such Alterations: (a) will comply with all applicable Laws and
Tenant will provide Landlord with permits evidencing same; (b) will be
made only with the prior written consent of Landlord, which consent
will not be unreasonably withheld; (c) will equal or exceed Building
standard (d) will be carried out only by persons selected by Tenant and
approved in writing by Landlord, who will if required by Landlord
deliver to Landlord before commencement of the work performance and
payment bonds; (e) do not exceed or adversely affect the capacity,
maintenance, operating cost or integrity of the Building's structure or
any of its heating, ventilating, air conditioning, plumbing,
mechanical, electrical, communications or other systems; (f) is
approved by the holder of any Encumbrance if so required by the terms
of said Encumbrance; (g) does not violate any agreement which affects
the Building or binds Landlord of which Tenant is given notice; (h)
does not alter the exterior of the Building in any way. Tenant will
maintain, or will cause the persons performing any such work to
maintain, worker's compensation insurance and public liability and
property damage insurance (with Landlord named as an additional
insured), in amounts, with companies and in a form reasonably
satisfactory to Landlord, which insurance will remain in effect during
the entire period in which the work will be carried out. If requested
by Landlord, Tenant will deliver to Landlord proof of all such
insurance. Tenant will promptly pay, when due, the cost of all such
work and, upon completion, Tenant will deliver to Landlord, to the
extent not previously received by Landlord, evidence of payment,
contractors' affidavits and full and final waivers of all liens for
labor, services or materials. Tenant shall pay the Construction
Administration Fee on all Alterations. Tenant will also pay any
increase in property taxes on, or fire or casualty insurance premiums
for, the Building attributable to such Alterations and the cost of any
modifications to the Building outside the Premises that are required to
be made in order to make the Alterations to the Premises. Tenant, at
its expense, will have promptly prepared and submitted to Landlord
reproducible as-built CAD plans of any such Alterations upon their
completion. All permanent Alterations to the Premises, made or paid for
by Landlord or Tenant will, without compensation to Tenant, become
Landlord's property upon installation, subject to Section 3.4 herein.
Notwithstanding the foregoing, Tenant shall have the right to make
non-structural interior alterations to the Premises upon notice to
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Landlord, but without first obtaining Landlord's prior written consent
provided that: (i) such interior alterations shall be completed in a
good and workman-like manner in accordance with Landlord's design
criteria for the Building and the plans and specifications for the
Premises originally approved by Landlord; (ii) the cost of any such
interior alterations shall not exceed in the aggregate $25,000.00 per
floor per Lease Year (the substitution of equipment in the Premises by
Tenant shall not be included in the computation of said $25,000.00
amount); (iii) such interior alterations do not affect Building Systems
and (iv) Tenant shall indemnify, defend and hold Landlord harmless from
and against all claims, causes of action, damages and liabilities
sustained by Landlord as a result of any such work performed by Tenant,
its employees, agents or contractors, unless caused by the act or
omission of Landlord.
9.2 Alterations by Landlord.
Landlord may from time to time make repairs, changes, additions and
improvements to the Building, Common Areas and those Building systems
necessary to provide the services described in Section 7, and for such
purposes Landlord may enter the Premises upon not less than 30 days'
prior notice to Tenant (except in cases of actual or suspected
emergency, in which case no prior notice will be required) without
liability to Tenant for any loss or damage incurred as a result of such
entry, provided that in doing so Landlord will not disturb or interfere
with Tenant's use of the Premises and operation of its business any
more than is reasonably necessary in the circumstances and will repair
any damage to the Premises caused by such entry. No permanent change,
addition or improvement made by Landlord will materially impair access
to the Premises, however Landlord may temporarily close doors,
entryways, public space and corridors within the Building and to
interrupt or temporarily suspend services and facilities without being
deemed or held guilty of an eviction of Tenant or for damages to
Tenant's property, business or person, and the rent reserved herein
shall in no way abate while said repairs, alterations, improvements or
additions are being made, and Tenant shall not be entitled to maintain
any set-off or counterclaim for damages of any kind against Landlord
for any reason thereto. Landlord may, at its option, make all such
repairs, alterations, improvements or additions in and about the
Building and the Premises during ordinary business hours, but if Tenant
desires to have the same done at any other time, Tenant shall pay for
all overtime and additional expenses resulting therefrom.
10. LIENS.
Tenant agrees to pay before delinquency all costs for work, services or
materials furnished to Tenant for the Premises, the nonpayment of which
could result in any lien against the Land or Building. Tenant will keep
title to the Land and Building free and clear of any such lien. Tenant
will immediately notify Landlord of the filing of any such lien or any
pending claims or proceedings relating to any such lien and will
indemnify and hold Landlord harmless from and against all loss, damages
and expenses (including reasonable attorneys' fees) suffered or
incurred by Landlord as a result of such lien, claims and proceedings.
In case any such lien attaches, Tenant agrees to cause it to be
immediately released and removed of record (failing which Landlord may
do so at Tenant's sole expense), unless Tenant has a good faith dispute
as to such lien in which case Tenant may contest such lien by
appropriate proceedings so long as Tenant deposits with a title company
acceptable to Landlord a bond or other security in an amount reasonably
acceptable to Landlord which may be used by Landlord to release such
lien. Upon final determination of any permitted contest, Tenant will
immediately pay any judgment rendered and cause the lien to be
released.
11. INSURANCE.
11.1 Landlord's Insurance.
During the Term, Landlord will provide and keep in force the following
insurance:
(a) commercial general liability insurance relating to Landlord's
operation of the Building, for personal and bodily injury and death,
and damage to others' property; and
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(b) all risk or fire insurance (including standard extended
coverage endorsement perils, leakage from fire protective devices and
other water damage) relating to the Land and Building (but excluding
Tenant's fixtures, furnishings, equipment, personal property,
documents, files, inventory, stock-in-trade and work products and all
leasehold improvements in the Premises); and
(c) loss of rental income insurance or loss of insurable gross
profits commonly insured against by prudent landlords; and
(d) boiler and machinery insurance; and
(e) such other insurance as Landlord reasonably elects to obtain
or any Building mortgagee requires.
(f) workers' compensation insurance with limits as statutorily
defined in the State of Illinois.
Insurance effected by Landlord under this Section 11.1 will be in
amounts which Landlord from time to time reasonably determines
sufficient or any Building mortgagee requires; in the case of insurance
under Section 11.1(b) will be for replacement value and for the
insurance in Section 11.1(a) will not be less than the Liability
Insurance Amount, will be subject to such deductibles and exclusions as
Landlord reasonably determines; will, in the case of insurance under
Sections 11.1 (b), (c) and (d), permit the release of Tenant from
certain liability under Section 13.1 (as long as such permission can be
obtained without material additional cost and without rendering void
the protection afforded by the policy); and will otherwise be on such
terms and conditions as Landlord from time to time reasonably
determines sufficient. Tenant acknowledges that Landlord's loss of
rental income insurance policy provides that payments by the insurer
may be limited to a period of one year following the date of any damage
or destruction and that no insurance proceeds will be payable in the
case of damage or destruction caused by an occurrence not included in
the policies described in Sections 11.1(b), (c) and (d). Landlord shall
provide Tenant with a copy of certificates evidencing the above
insurance prior to the Commencement Date and upon written request by
Tenant but no more than once each Lease Year.
11.2 Tenant's Insurance.
During the term, Tenant will provide and keep in force the following
insurance:
(a) commercial general liability insurance relating to Tenant's
business (carried on, in or from the Premises) and Tenant's use and
occupancy, for personal and bodily injury and death, and damage to
others' property, with limits of not less than the Liability Insurance
Amount for any one accident or occurrence; and
(b) all risk or fire insurance (including standard extended
endorsement perils, leakage from fire protective devices and other
water damage) relating to Tenant's fixtures, furnishings, equipment,
documents, files, work products, inventory, stock-in-trade and all
leasehold improvements in the Premises on a full replacement cost basis
in amounts sufficient to prevent Tenant from becoming a co-insurer and
subject only to such deductibles and exclusions as Landlord may
reasonably approve and
(c) if any boiler or machinery is operated in the Premises,
boiler and machinery insurance; and
(d) business interruption insurance with a minimum limit equal to
Tenant's annual rental expense;
(e) workers' compensation insurance with limits as statutorily
defined in the State of Illinois;
(f) employers liability insurance with limits not less than
$1,000,000.
Landlord, the holder of any Encumbrance and any other entity requested
by Landlord will be named as an additional insureds in the policy
described in Section 11.2(a), which will include cross liability and
severability of interests clauses and will be on an "occurrence" (and
not a "claims made") form. Landlord, the holder of any Encumbrance and
any other entity requested by Landlord will be named as a loss payee,
as its interest may appear, in the policies described in Sections
11.2(b) and (c), and such policies will permit the release of Landlord
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and the holder of any Encumbrance from certain liability under Section
13.2. Tenant's insurance policies will provide thirty (30) day notice
to Landlord prior to cancellation and will otherwise be upon such terms
and conditions as Landlord from time to time reasonably requires.
Tenant will file with Landlord, on or before the Commencement Date and
at least 10 days before the expiration date of expiring policies, such
copies of either current policies, an insurance binder (countersigned
by the insurer), Evidence of Insurance (in form Accord 27) or a binding
certificate, or other proofs, as may be reasonably required to
establish Tenant's insurance coverage in effect from time to time and
payment of premiums. If Tenant fails to insure or pay premiums, or to
file satisfactory proof as required, Landlord may, upon a minimum of
24-hours' notice, effect such insurance and recover from Tenant on
demand any premiums paid.
11.3 Self Insurance
Notwithstanding anything set forth to the contrary in this Lease,
Tenant may, upon written notice to Landlord, self-insure the insurance
coverage required under Section 11.2(b) above. However, the decision to
self-insure shall not relieve Tenant of any liability as outlined in
Section 11.2(b) above. Tenant shall hold Landlord harmless for any
losses sustained that would have been covered by insurance had Tenant
not elected to self-insure. This right to self insure is personal to
Tenant and is not available to any subtenant or assignee without
Landlord's prior written consent in its sole but reasonable discretion.
12. DAMAGE OR DESTRUCTION.
12.1 Termination Options.
If the Premises or the Building are damaged by fire or other casualty
Landlord will, promptly after learning of such damage, notify Tenant in
writing of the time necessary to repair or restore such damage, as
estimated by Landlord's architect, engineer or contractor (and shall
use diligent efforts to provide same within 90 days of the casualty if
commercially, reasonably possible). If such estimate states that repair
or restoration of all of such damage that was caused to the Premises or
to any other portion of the Building necessary for Tenant's occupancy
cannot be completed within 180 days from the date of such damage (or
within 30 days from the date of such damage if such damage occurred
within the last 12 months of the Term), then Tenant will have the
option to terminate this Lease. If such estimate states that repair or
restoration of all such damage that was caused to the Building cannot
be completed within 180 days from the date of such damage, or if such
damage occurred within the last 12 months of the Term and such estimate
states that repair or restoration of all such damage that was caused to
the Premises or to any other portion of the Building necessary for
Tenant's occupancy cannot be completed within 30 days from the date of
such damage, or if such damage is not insured against by the insurance
policies required to be maintained by Landlord according to Section
11.1, then Landlord will have the option to terminate this Lease. Any
option to terminate granted above must be exercised by written notice
to the other party given within 30 days after Landlord delivers to
Tenant the notice of estimated repair time. If either party exercises
its option to terminate this Lease, the Term will expire and this Lease
will terminate 10 days after notice of termination is delivered;
provided, however, that Rent for the period commencing on the date of
such damage until the date this Lease terminates will be reduced to the
reasonable value of any use or occupation of the Premises by Tenant
during such period and Landlord will be entitled to all proceeds of the
insurance policy described in Section 11.2(b) applicable to any damaged
leasehold improvements in the Premises.
12.2 Repair Obligations.
If the Premises or the Building are damaged by fire or other casualty
and neither party terminates this Lease according to Section 12.1,
Landlord shall be required to restore the Building and Premises to
their condition prior to such destruction or damage, with reasonable
promptness, subject to delays for insurance adjustments and delays
caused by matters beyond Landlord's control. Landlord will have no
liability to Tenant and Tenant will not be entitled to terminate this
Lease if such repairs and restoration are not in fact completed within
the estimated time period, provided that Landlord promptly commences
and diligently pursues such repairs and restoration to completion.
Notwithstanding what is set forth herein, Tenant may terminate this
Lease if Landlord fails to repair the Premises or any portion of the
Building necessary for Tenant's occupancy within 270 days from the date
of casualty, subject to delays for insurance adjustments and delays
caused by matters beyond Landlord's reasonable control, then Tenant may
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terminate the Lease by written notice to Landlord. which notice shall
be delivered to Landlord no later than fifteen (15) days after the date
that such repairs should have been completed pursuant to the terms of
the previous sentence, and then, unless such repairs have been
completed the Lease will terminate thirty (30) days after Landlord's
receipt of such notice. In no event will Landlord be obligated to
repair, restore or replace any of the property required to be insured
by Tenant according to Section 11.2; Tenant agrees to repair, restore
or replace such property as soon as possible after the date of damage,
to at least the condition existing prior to its damage, using materials
at least equal to Building standard. However, in connection with its
repair and restoration of such damage, Landlord may, at its option,
elect to repair and restore the damage, if any, caused to all of the
leasehold improvements required to be insured by Tenant according to
Section 11.2(b). If Landlord makes such election, Landlord will be
entitled to all proceeds of the insurance policy described in Section
11.2(b) applicable to the leasehold improvements Landlord so elects to
repair or restore.
12.3 Rent Abatement.
If any fire or casualty damage renders the Premises untenantable and if
this Lease is not terminated according to Section 12.1 or 12.2, then
Rent will abate beginning on the date of such damage. Such abatement
will end on the date which is the earlier of (i) the date the Tenant
fully reopens for business in such portion of the Premises, and (ii)
the date which is ninety (90) days after the Landlord has substantially
completed the repairs and restoration Landlord is required to perform
according to Section 12.2. Such abatement will be in an amount bearing
the same ratio to the total amount of Rent for such period as the
Untenantable portion of the Premises bears to the entire Premises. In
no event will Landlord be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from
damage caused by fire or other casualty or the repair of such damage,
provided however that, to the extent Tenant remains in possession of a
portion of the Premises, Landlord will take all reasonable steps to
minimize the disruption to Tenant's business and use of such portion of
the Premises during the period of repair.
13. WAIVERS AND INDEMNITIES.
13.1 Landlord's Waivers.
As used in this Section 13, a party's "Affiliates" means that party's
parent, subsidiary and affiliated corporations and its and their
partners, directors, officers, shareholders, agents, servants and
employees. Tenant and its Affiliates will not be liable or in any way
responsible to Landlord for, and Landlord waives all claims against
Tenant and its Affiliates for, any loss, injury or damage that is
insured or required to be insured by Landlord under Sections 11.1(b),
(c) or (d), so long as such loss, injury or damage results from or in
connection with this Lease or Tenant's use and occupancy of the
Premises. Landlord's waivers under this Section 13.1 will survive the
expiration or early termination of the Term.
13.2 Tenant's Waivers.
Except to the extent caused by the willful or negligent act or omission
or breach of this Lease by Landlord or anyone for whom Landlord is
legally responsible, Landlord, its Affiliates and the holder of any
Encumbrance will not be liable or in any way responsible for, and
Tenant waives all claims against Landlord, its Affiliates and the
holder of any Encumbrance for any loss, injury or damage suffered by
Tenant or others relating to (a) loss or theft of, or damage to,
property of Tenant or others; (b) injury or damage to persons or
property resulting from fire, explosion, falling plaster, escaping
steam or gas, electricity, water, rain or snow, or leaks from any part
of the Building or from any pipes, appliances or plumbing, or from
dampness; or (c) damage caused by other tenants, occupants or persons
in the Premises or other premises in the Building, or caused by the
public or by construction of any private or public work. Landlord, its
Affiliates and the holder of any Encumbrance will not be liable or in
any way responsible to Tenant for, and Tenant waives all claims against
Landlord, its Affiliates and the holder of any Encumbrance for, any
loss, injury or damage that is insured or required to be insured by
Tenant under Sections 11.2(b) or (c), so long as such loss, injury or
damage results from or in connection with this Lease or Landlord's
operation of the Building. Tenant's waivers under this Section 13.2
will survive the expiration or early termination of the Term.
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13.3 Landlord's Indemnity.
Subject to Section 7.4 and 13.2 and except to the extent caused by the
willful or negligent act or omission or breach of this Lease by Tenant
or anyone for whom Tenant is legally responsible, Landlord will
indemnify and hold Tenant harmless from and against any and all
liability, loss, claims, demand, damages or expenses (including
reasonable attorneys' fees) due to or arising out of any willful or
negligent act or omission or breach of this Lease by Landlord or anyone
for whom Landlord is legally responsible. Landlord's obligations under
this Section 13.3 will survive the expiration or early termination of
the Term.
13.4 Tenant's Indemnity.
Subject to Section 13.1 and except to the extent caused by the willful
or negligent act or omission or breach of this Lease by Landlord or
anyone for whom Landlord is legally responsible, Tenant will indemnify
and hold Landlord and the holder of any Encumbrance harmless from and
against any and all liability, loss, claims, demands, damages or
expenses (including reasonable attorneys' fees) due to or arising out
of any accident or occurrence on or about the Premises (including,
without limitation, accidents or occurrences resulting in injury,
death, property damage or theft) or any willful or negligent act or
omission of or breach of this Lease by Tenant or anyone for whom Tenant
is legally responsible. Tenant's obligations under this Section 13.4
will survive the expiration or early termination of the Term.
14. CONDEMNATION.
14.1 Full Taking.
If all or substantially all of the Building or Premises are taken for
any public or quasi-public use under any applicable Laws or by right of
eminent domain, or are sold to the condemning authority in lieu of
condemnation, then this Lease will terminate as of the date the earlier
of when the condemning authority takes physical possession of or title
to the Building or Premises.
14.2 Partial Taking.
(a) Landlord's Termination of Lease. If only part of the Building
or Premises is thus taken or sold, and if after such partial taking, in
Landlord's reasonable judgment, alteration or reconstruction is not
economically justified, then Landlord (whether or not the Premises are
affected) may terminate this Lease by giving written notice to Tenant
within 60 days after the taking.
(b) Tenant's Termination. If over 20% of the Premises is thus
taken or sold and Landlord is unable to provide Tenant with comparable
replacement premises in the Building, Tenant may terminate this Lease
if in Tenant's reasonable judgment the Premises cannot be operated by
Tenant in an economically viable fashion because of such partial
taking. Such termination by Tenant must be exercised by written notice
to Landlord given not later than 60 days after Tenant is notified of
the taking of the Premises.
(c) Effective Date of Termination. Termination by Landlord or
Tenant will be effective as of the date when physical possession of the
applicable portion of the Building or Premises is taken by condemning
authority.
(d) Election to Continue Lease. If neither Landlord nor Tenant
elects to terminate this Lease upon a partial taking of a portion of
the Premises, the Rent payable under this Lease will be diminished by
an amount allocable to the portion of the Premises which was so taken
or sold. If this Lease is not terminated upon a partial taking of the
Building or Premises, Landlord will, at Landlord's sole expense,
promptly restore and reconstruct the Building and Premises to
substantially their former condition to the extent the same is
feasible. However, Landlord will not be required to spend for such
restoration or reconstruction an amount in excess of the net amount
received by Landlord as compensation or damages for the part of the
Building or Premises so taken.
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14.3 Awards.
As between the parties to this Lease, Landlord will be entitled to
receive, and Tenant assigns to Landlord, all of the compensation
awarded upon taking of any part or all of the Building or Premises,
including any award for the value of the unexpired Term. However,
Tenant may assert a claim in a separate proceeding against the
condemning authority for any damages resulting from the taking of
Tenant's trade fixtures or personal property, or for moving expenses,
business relocation expenses or damages to Tenant's business incurred
as a result of such condemnation.
15. ASSIGNMENT AND SUBLETTING.
15.1 Limitation.
Without Landlord's prior written consent, Tenant will not assign all or
any of its interest under this Lease, sublet all or any part of the
Premises or permit the Premises to be used by any parties other than
Tenant, its employees and its Permitted Transferees pursuant to Section
15.7 herein.
15.2 Notice of Proposed Transfer; Landlord's Options.
If Tenant desires to enter into any assignment of this Lease or a
sublease of all or any part of the Premises, Tenant will first give
Landlord written notice of the proposed assignment or sublease, which
notice will contain the name and address of the proposed transferee,
the proposed use of the Premises, statements reflecting the proposed
transferee's current financial condition and income and expenses for
the past 2 years, a copy of the fully executed proposed assignment or
sublease and any other information reasonably requested by Landlord.
Except in the case of any transfer permitted under Section 15.7,
Landlord will have the option, upon the receipt of such notice to
cancel this Lease in the case of a proposed assignment of this Lease or
a proposed subletting of all the Premises, or to cancel this Lease with
respect to the portion to be so subleased, in which latter event the
Base Rent and Tenant's Share as defined herein shall be adjusted on the
basis of the number of square feet of rentable area of the Premises
retained by Tenant, and this Lease as so amended shall continue
thereafter in full force and effect. If Landlord wishes to exercise
such option to cancel, Landlord shall, within ten (10) business days
after Landlord's receipt of such notice from Tenant, send to Tenant a
notice so stating and in such notice Landlord shall specify the date as
of which such cancellation is effective, which date shall be not less
than thirty (30) and not more than ninety (90) days after the date on
which Landlord sends such notice. Tenant shall pay Landlord's
reasonable costs and attorney's fees for review of the assignment or
subletting documentation, of not less than $500.00 but not more than
$1,000.00 per assignment or sublease.
15.3 Consent Not to Be Unreasonably Withheld.
If Landlord does not exercise its applicable option under Section 15.2,
then within said ten (10) business days of the receipt of the
documentation set forth in Section 15.2 above, Landlord will either
consent to or disapprove of the proposed assignment or sublease.
Landlord will not unreasonably withhold or delay its consent to the
proposed assignment or subletting if each of the following conditions
is satisfied:
(a) the proposed transferee, in Landlord's reasonable opinion, has
sufficient financial capacity and business experience to perform
Tenant's obligations under this Lease; and
(b) the proposed transferee will make use of the Premises which in
Landlord's reasonable opinion (i) is lawful, (ii) is consistent with
the permitted use of the Premises under this Lease, (iii) is consistent
with the general character of business carried on by tenants of a
first-class office building, (iv) does not conflict with any exclusive
rights or covenants not to compete in favor of any other tenant or
proposed tenant of the Building, (v) will not increase the likelihood
of damage or destruction to the Building, (vi) will not cause an
increase in insurance premiums for insurance policies applicable to the
Building, and (viii) will not require new tenant improvements
incompatible with then-existing Building systems and components; and
(c) the proposed transferee does not have a poor business
reputation or reputation as being an undesirable tenant in the general
business community.
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(d) the proposed transferee, at the time of the proposed transfer,
is neither a tenant in the Building or the 10 South Riverside Building
for whom Landlord has space of an adequate size to fulfill such
tenant's needs in either building, nor a party with whom Landlord is
then negotiating for the lease of space in the Building or the 10 South
Riverside Building; and
(e) Intentionally deleted; and
(f) at the time of the proposed transfer no "Default" (as defined
in Section 20.1) exists under this Lease.
15.4 Form of Transfer.
If Landlord consents to a proposed assignment of sublease, Landlord's
consent will not be effective unless and until Tenant delivers to
Landlord an original duly executed assignment or sublease, as the case
may be, that provides, in the case of a sublease, that the subtenant
will comply with all applicable terms and conditions of this Lease,
and, in the case of an assignment, an assumption by the assignee of all
of the terms, covenants and conditions which this Lease requires Tenant
to perform.
15.5 Payments to Landlord.
If Landlord does not exercise its applicable option under section 15.2
and Tenant effects an assignment or sublease, then Landlord will be
entitled to receive and collect, either from Tenant or directly from
the transferee, 50% of the amount by which the consideration required
to be paid by the transferee for the use and enjoyment of Tenant's
rights under this Lease. (after deducting from such consideration
Tenant's reasonable costs incurred in effecting the assignment or
sublease) exceeds the Rent payable by Tenant to Landlord allocable to
the transferred space. Such percentage of such amount will be payable
to Landlord at the time(s) Tenant receives the same from its transferee
(whether in monthly installments, in a lump sum, or otherwise).
15.6 Change of Ownership.
Any change by Tenant in the form of its legal organization (such as,
for example, a change from a general to a limited partnership), any
transfer of 51% or more of Tenant's assets, and any other transfer of
interest effecting a change in identity of persons exercising effective
control of Tenant will be deemed an "assignment" of this Lease
requiring Landlord's prior written consent. The transfer of any
outstanding capital stock of a corporation whose stock is
publicly-traded will not, however, be deemed a "transfer of interest"
under this Section 15.6.
15.7 Permitted Transfers.
Tenant may, upon notice to Landlord, but without obtaining Landlord's
consent, assign this Lease or sublease all or any part of the Premises
to (i) any corporation which controls, is controlled by, or is under
common control with Tenant, (ii) any corporation resulting from the
merger or consolidation of Tenant, or (iii) any person or entity which
acquires all of the assets of Tenant as a going concern of the business
that is being conducted on the Premises, provided that such transferee
assumes in full the obligations of Tenant under the Lease ("Permitted
Transferee"). Notwithstanding the foregoing, Tenant's right to assign
or sublet without Landlord's consent is conditioned upon (x) the
transferee having a net worth, as reflected by audited financial
statements, equal to or greater than that of Tenant as of the date of
this Lease, and (y) the transferee not being engaged in a business that
violates the provisions of any existing leases governing in the
Building
15.8 Effect of Transfers.
No subletting or assignment will release Tenant from any of its
obligations under this Lease unless Landlord agrees to the contrary in
writing. Acceptance of Rent by Landlord from any person other than
Tenant will not be deemed a waiver by Landlord of any provision of this
Section 15. Consent to one assignment or subletting will not be deemed
a consent to any subsequent assignment or subletting. In the event of
any default by any assignee or subtenant or any successor of Tenant in
the performance of any Lease obligation, Landlord may proceed directly
against Tenant without exhausting remedies against such assignee,
subtenant or successor. The voluntary or other surrender of this Lease
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by Tenant or the cancellation of this Lease by mutual agreement of
Tenant and Landlord will not work a merger and will, at Landlord's
option, terminate all or any subleases or operate as an assignment to
Landlord of all or any subleases; such option will be exercised by
notice to Tenant and all known subtenants in the Premises. If Landlord
shall choose to take an assignment of a sublease then the subtenant
shall be bound to Landlord for the balance of the Term thereof and
shall attorn directly to Landlord under all of the executory terms of
the sublease except that Landlord shall not (a) be liable for any
previous act, omission or negligence of Tenant, (b) be subject to any
counterclaim, defense or offset not expressly provided for in the
sublease and accruing against Tenant, (c) be bound by any previous
modification or amendment of the sublease made without Landlord's
consent or by any previous prepayment of more than one month's Rent, or
(d) be obligated to perform any repairs or other work beyond Landlord's
obligation under this Lease. Each subtenant shall execute and deliver
such instruments as Landlord may reasonably request to evidence said
attornment.
16. PERSONAL PROPERTY.
16.1 Installation and Removal.
Tenant may install in the Premises its personal property (including
Tenant's usual trade fixtures) in a proper manner, provided that no
such installation will interfere with or damage the mechanical,
plumbing or electrical systems or the structure of the Building, and
provided further that if such installation would require any change,
addition or improvement to the Premises, such installation will be
subject to Section 9.1. Any such personal property installed in the
Premises by Tenant (a) may be removed from the Premises from time to
time in the ordinary course of Tenant's business or in the course of
making any changes, additions or improvements to the Premises permitted
under Section 9.1, and (b) will be removed by Tenant at the end of the
Term according to Section 3.4. Tenant will promptly repair at its
expense any damage to the Building resulting from such installation or
removal.
16.2 Responsibility.
Tenant will be solely responsible for all costs and expenses related to
personal property used or stored in the Premises. Tenant will pay any
taxes or other governmental impositions levied upon or assessed against
such personal property, or upon Tenant for the ownership or use of such
personal property, on or before the due date for payment. Such personal
property taxes or impositions are not included in Taxes.
16.3 Landlord's Lien. Intentionally Deleted.
17. ESTOPPEL CERTIFICATES.
Promptly upon Landlord's request after Tenant has occupied the
Premises, Tenant will execute and deliver to Landlord an Occupancy
Estoppel Certificate in the form of Exhibit C. In addition, the parties
agree that at any time and from time to time (but on not less than 10
days prior written request by either party and not more than once each
Lease Year by Tenant), the other party will execute, acknowledge and
deliver to the requesting party a certificate indicating any or all of
the following: (a) the Commencement Date and Expiration Date; (b) that
this Lease is unmodified and in full force and effect (or, if there
have been modifications, that this Lease is in full force and effect or
the reason it is not, as modified, and stating the date and nature of
each modification); (c) the date, if any, through which Base Rent,
Additional Rent and any other Rent payable have been paid; (d) that no
default by the requesting party, to the best of the other party's
knowledge, or the other party exists which has not been cured, except
as to defaults stated in such certificate; (e) provided such events
have occurred, that Tenant has accepted the Premises and that all
improvements required to be made to the Premises by Landlord have been
completed according to this Lease; (f) that, except as specifically
stated in such certificate, Tenant, and only Tenant, currently occupies
the Premises; (g) the amount of Security Deposit held by Landlord and
(h) such other matters as may be reasonably requested by said party.
Any such certificate may be relied upon by the requesting party and any
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prospective purchaser or present or prospective mortgagee, deed of
trust beneficiary or ground lessor of all or a portion of the Building.
18. TRANSFER OF LANDLORD'S INTEREST.
18.1 Sale, Conveyance and Assignment.
Nothing in this Lease will restrict Landlord's right to sell, convey,
assign or otherwise deal with the Building or Landlord's interest under
this Lease.
18.2 Effect of Sale, Conveyance or Assignment.
A sale, conveyance or assignment of the Building will automatically
release Landlord from liability under this Lease from and after the
effective date of the transfer, except for any liability relating to
the period prior to such effective date; and Tenant will look solely to
Landlord's transferee for performance of Landlord's obligations
relating to the period after such effective date. This Lease will not
be affected by any such sale, conveyance or assignment and Tenant will
attorn to Landlord's transferee.
18.3 Subordination and Nondisturbance.
This Lease is and will be subject and subordinate in all respects to
any ground lease, mortgage or deed of trust now or later encumbering
the Building, and to all their renewals, modifications, supplements,
consolidations and replacements (an "Encumbrance"). With respect to any
Encumbrance first encumbering the Building subsequent to the Date of
this Lease, Landlord will , at Landlord's sole cost and expense to
cause the holder of such Encumbrance to agree (either in the
Encumbrance or in a separate agreement with Tenant, which agreement
shall be in a form reasonably acceptable to Tenant, with the parties
acknowledging that the form set forth in Exhibit E is acceptable to
Tenant) that so long as Tenant is not in default of its obligations
under this Lease, this Lease will not be terminated and Tenant's
possession of the Premises will not be disturbed by the termination or
foreclosure, or proceedings for enforcement, of such Encumbrance. While
such subordination will occur automatically, Tenant agrees, upon
request by and without cost to Landlord or any successor in interest,
to promptly execute and deliver to Landlord or the holder of an
Encumbrance such instrument(s) as may be reasonably required to
evidence such subordination. In the alternative, however, the holder of
an Encumbrance may unilaterally elect to subordinate such Encumbrance
to this Lease. This Lease is subject to the Tenant at Landlord's sole
cost and expense obtaining a Subordination and Non-Disturbance
Agreement in the form set forth in Exhibit E, attached and
incorporated, from the Equitable Life Assurance Company, the existing
holder of the mortgage covering the Building. Landlord agrees to use
reasonable efforts to obtain, such agreement. If such agreement is not
obtained within thirty (30) days after the Date, either Landlord or
Tenant may terminate this Lease by giving written notice of termination
to the other party within thirty five (35) days after the Date. Unless
such agreement has then been obtained, this Lease will terminate upon
the giving of such notice. Such termination right will be in full
settlement of all claims that either party might otherwise have against
the other by reason of Landlord's failure to deliver said Agreement.
18.4 Attornment.
If the interest of Landlord is transferred to any person (a "Successor
Landlord") by reason of the termination or foreclosure, or proceedings
for enforcement, of an Encumbrance, or by delivery of a deed in lieu of
such foreclosure or proceedings, Tenant will immediately and
automatically attorn to the Successor Landlord. Upon attornment this
Lease will continue in full force and effect as a direct lease between
the Successor Landlord and Tenant, upon all of the same terms,
conditions and covenants as stated in this Lease Lease except that a
Successor Landlord shall not be (a) liable for any previous act or
omission or negligence of Landlord under this Lease, (b) subject to any
counterclaim defense or offset not expressly provided for in this Lease
and asserted with reasonable promptness, which therefore shall have
accrued to Tenant against Landlord, (c) bound by any previous
modification or amendment of this Lease or by any previous prepayment
of more than one month's rent, unless such modification or prepayment
shall have been approved in writing by the holder of any Encumbrance
through or by reason of which the Successor Landlord shall have
succeeded to the rights of Landlord under this Lease or (d) obligated
to perform any repairs or other work beyond Landlord's obligations
under this Lease.. Tenant agrees, upon request by and without cost to
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the Successor Landlord, to promptly execute and deliver to the
Successor Landlord such instrument(s) as may be reasonably required to
evidence such attornment.
19. rules and regulations.
Tenant agrees to faithfully observe and comply with the Rules and
Regulations set forth in Exhibit D and with all reasonable
modifications and additions to such Rules and Regulations (which will
be applicable to all Building tenants) from time to time adopted by
Landlord and of which Tenant is notified in writing. No such
modification or addition will contradict or abrogate any right
expressly granted to Tenant under this Lease. Landlord's enforcement of
the Rules and Regulations will be uniform and nondiscriminatory, but
Landlord will not be responsible to Tenant for failure of any person to
comply with the Rules and Regulations. Violation of any rule or
regulation shall constitute a default under Section 20.1(b) herein and
shall be subject to the notice and cure provisions thereunder.
20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
20.1 Default.
This Lease and the Term and estate hereby granted are subject to the
following limitations which will each constitute a material breach by
Tenant and a "Default" under this Lease:
(a) Failure to Pay Rent. Tenant fails to pay Base Rent, Additional
Rent or any other Rent payable by Tenant under the terms of this Lease
when due, and such failure continues for 5 days after written notice
from Landlord to Tenant of such failure; provided that with respect to
Base Rent and Additional Rent, Tenant will be entitled to only 3
notices of such failure during any Lease Year and if, after 3 such
notices are given in any Lease Year, Tenant fails, during such Lease
Year, to pay any such amounts when due, such failure will constitute a
Default without further notice by Landlord or additional cure period.
(b) Failure to Perform Other Obligations. Tenant breaches or fails
to comply with any other provision of this Lease applicable to Tenant,
and such breach or noncompliance continues for a period of 30 days
after notice by Landlord to Tenant; or, if such breach or noncompliance
cannot be reasonably cured within such 30-day period, Tenant does not
in good faith commence to cure such breach or noncompliance within such
30-day period or does not diligently complete such cure as soon as
possible, but no later than 60 days after such notice from Landlord.
However, if such breach or noncompliance causes or results in (i) a
dangerous condition on the Premises or the Building, (ii) any insurance
coverage carried by Landlord or Tenant with respect to the Premises or
Building being jeopardized, or (iii) a material disturbance to another
tenant, then a Default will exist if such breach or noncompliance is
not cured as soon as reasonably possible after notice by Landlord to
Tenant, and in any event is not cured within 30 days after such notice.
For purposes of this Section 20.1 (b), financial inability will not be
deemed a reasonable ground for failure to immediately cure any breach
of, or failure to comply with, the provisions of this Lease.
(c) Intentionally Deleted.
(d) Transfer of Interest without Consent. Tenant's interest under
this Lease or in the Premises is transferred or passes to, or devolves
upon, any other party in violation of Section 15.
(e) Execution and Attachment Against Tenant. Tenant's interest
under this Lease or in the Premises is taken upon execution or by other
process of law directed against Tenant, or is subject to any attachment
by any creditor or claimant against Tenant and such attachment is not
discharged or disposed of within 15 days after levy.
(f) Bankruptcy or Related Proceedings. Tenant files a petition in
bankruptcy or insolvency, or reorganization or arrangement under any
bankruptcy or insolvency Laws, or voluntarily takes advantage of any
such Laws by answer or otherwise, or dissolves or makes an assignment
for the benefit of creditors, or involuntary proceedings under any such
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Laws or for the dissolution of Tenant are instituted against Tenant, or
a receiver or trustee is appointed for the Premises or for all or
substantially all of Tenant's property, and such proceedings are not
dismissed or such receivership or trusteeship vacated within 90 days
after such institution or appointment.
20.2 Remedies.
Time is of the essence. If any Default occurs, Landlord will have the
right, at Landlord's election, then or at any later time, to exercise
any one or more of the remedies described below. Exercise of any of
such remedies will not prevent the concurrent or subsequent exercise of
any other remedy provided for in this Lease or otherwise available to
Landlord at law or in equity. Notwithstanding, Landlord shall be
obligated at all times to use it's reasonable efforts to mitigate
Landlord's damages caused by Tenant's Default.
(a) Cure by Landlord. Landlord may, at Landlord's option, after
providing tenant notice and the opportunity to cure as set forth in
Section 20.1 above, but without obligation to do so, and without
releasing Tenant from any obligations under this Lease, make any
payment or take any action as Landlord deems necessary or desirable to
cure any Default in such manner and to such extent as Landlord deems
necessary or desirable. Landlord may do so without additional demand
on, or additional written notice to, Tenant and without giving Tenant
an additional opportunity to cure such Default. Tenant covenants and
agrees to pay Landlord, upon demand, all advances, costs and expenses
of Landlord in connection with making any such payment or taking any
such action, including reasonable attorney's fees, together with
interest at the rate described in Section 4.5, from the date of payment
of any such advances, costs and expenses by Landlord
(b) Termination of Lease and Damages. Landlord may terminate this
Lease, effective at such time as may be specified by written notice to
Tenant, and demand (and, if such demand is refused, recover) possession
of the Premises from Tenant. Tenant will remain liable to Landlord for
damages in an amount equal to the Base Rent, Additional Rent and other
Rent which would have been owing by Tenant for the balance of the Term
had this Lease not been terminated, less the net proceeds, if any, of
any reletting of the Premises by Landlord subsequent to such
termination, after deducting all Landlord's expenses in connection with
such recovery of possession or reletting. Landlord will be entitled to
collect and receive such damages from Tenant on the days on which the
Base Rent, Additional Rent and other Rent would have been payable if
this Lease had not been terminated. Alternatively, at Landlord's
option, Landlord will be entitled to recover from Tenant, as damages
for loss of the bargain and not as a penalty, an aggregate sum equal to
(i) all unpaid Base Rent, Additional Rent and other Rent for any period
prior to the termination date of this Lease (including interest from
the due date to the date of the award at the rate described in Section
4.5), plus any other sum of money and damages owed by Tenant to
Landlord for events or actions occurring prior to the termination date;
plus (ii) the present value at the time of termination (calculated at
the rate commonly called the discount rate in effect at the Federal
Reserve Bank of New York on the termination date) of the amount, if
any, by which (A) the aggregate of the Base Rent, Additional Rent and
all other Rent payable by Tenant under this Lease that would have
accrued for the balance of the Term after termination (with respect to
Additional Rent, such aggregate will be calculated by assuming that
Expenses and Taxes for the Fiscal Year in which termination occurs and
for each subsequent Fiscal Year remaining in the Term if this Lease had
not been terminated will increase by 8% per year over the amount of
Expenses and Taxes for the prior Fiscal Year), exceeds (B) the amount
of such Base Rent, Additional Rent and other Rent which Landlord will
receive for the remainder of the Term from any reletting of the
Premises occurring prior to the date of the award, or if the Premises
have not been relet prior to the date of the award, the amount, if any,
of such Base Rent, Additional Rent and other Rent which could
reasonably be recovered by reletting the Premises for the remainder of
the Term at the then-current fair rental value, in either case taking
into consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new tenant,
leasing brokers' commissions and other costs which Landlord has
incurred or might incur in leasing the Premises to a new tenant; plus
(iii) interest on the amount described in (ii) above from the
termination date to the date of the award at the rate described in
Section 4.5.
(c) Repossession and Reletting. Landlord may, with due process of
law, re-enter and take possession of all or any part of the Premises,
without additional demand or notice but not until Tenant has exhausted
all cure periods as set forth in Section 20.1 above, and repossess the
same and expel Tenant and any party claiming by, through or under
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Tenant, and remove the effects of both using such force for such
purposes as may be necessary, without being liable for prosecution for
such action or being deemed guilty of any manner of trespass, and
without prejudice to any remedies for arrears of Rent or right to bring
any proceeding for breach of covenants or conditions. No such reentry
or taking possession of the Premises by Landlord will be construed as
an election by Landlord to terminate this Lease unless a written notice
of such intention is given to Tenant. No notice from Landlord or notice
given under a forcible entry and detainer statute or similar Laws will
constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right, following
any reentry or reletting, to exercise its right to terminate this Lease
by giving Tenant such written notice, in which event the Lease will
terminate as specified in such notice. After recovering possession of
the Premises, Landlord may, from time to time, but will not be
obligated to, relet all or any part of the Premises for Tenant's
account, for such term or terms and on such conditions and other terms
as Landlord, in its discretion, determines. Landlord may make such
repairs, alterations or improvements as Landlord considers appropriate
to accomplish such reletting, and Tenant will reimburse Landlord upon
demand for all costs and expenses, including attorneys' fees, which
Landlord may incur in connection with such reletting. Landlord may
collect and receive the rents for such reletting but Landlord will in
no way be responsible or liable for any failure to relet the Premises
or for any inability to collect any rent due upon such reletting.
Regardless of Landlord's recovery of possession of the Premises, Tenant
will continue to pay on the dates specified in this Lease, the Base
Rent, Additional Rent and other Rent which would be payable if such
repossession had not occurred, less a credit for the net amounts, if
any, actually received by Landlord through any reletting of the
Premises. Alternatively, at Landlord's option, Landlord will be
entitled to recover from Tenant, as damages for loss of the bargain and
not as a penalty, an aggregate sum equal to (i) all unpaid Base Rent,
Additional Rent and other Rent for any period prior to the repossession
date (including interest from the due date to the date of the award at
the rate described in Section 4.5), plus (ii) the present value at the
time of repossession (calculated at the rate commonly called the
discount rate in effect at the Federal Reserve Bank of New York on the
repossession date) of the amount, if any, by which (A) the aggregate of
the Base Rent, Additional Rent and all other Rent payable by Tenant
under this Lease that would have accrued for the balance of the Term
after repossession (with respect to Additional Rent, such aggregate
will be calculated by assuming that Expenses and Taxes for the Fiscal
Year in which repossession occurs and for each subsequent Fiscal Year
remaining in the Term if Landlord had not repossessed the Premises will
increase by 8% per year over the amount of Expenses and Taxes for the
prior Fiscal Year), exceeds (B) the amount of such Base Rent,
Additional Rent and other Rent which Landlord will receive for the
remainder of the Term from any reletting of the Premises occurring
prior to the date of the award, or if the Premises have not been relet
prior to the date of the award, the amount, if any, of such Base Rent,
Additional Rent and other Rent which could reasonably be recovered by
reletting the Premises for the remainder of the Term at the
then-current fair rental value, in either case taking into
consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new tenant,
leasing brokers' commissions and other costs which Landlord has
incurred or might incur in leasing the Premises to a new tenant; plus
(iii) interest on the amount described in (ii) above from the
repossession date to the date of the award at the rate described in
Section 4.5.
(d) Bankruptcy Relief. Nothing contained in this Lease will limit
or prejudice Landlord's right to prove and obtain as liquidated damages
in any bankruptcy, insolvency, receivership, reorganization or
dissolution proceeding, an amount equal to the maximum allowable by any
Laws governing such proceeding in effect at the time when such damages
are to be proved, whether or not such amount be greater, equal or less
than the amounts recoverable, either as damages or Rent, under this
Lease.
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
21.1 Default.
If Tenant believes that Landlord has breached or failed to comply with
any provision of this Lease applicable to Landlord, Tenant will give
written notice to Landlord describing the alleged breach or
noncompliance. Landlord will not be deemed in default under this Lease
if Landlord cures the breach or noncompliance within 20 days after
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receipt of Tenant's notice or, if the same cannot reasonably be cured
within such 20-day period, if Landlord in good faith commences to cure
such breach or noncompliance within such period and then diligently
pursues the cure to completion. Tenant will also send a copy of such
notice to the holder of any Encumbrance of whom Tenant has been so
notified in writing by Landlord, and such holder will also have the
right to cure the breach or noncompliance within the period of time
described above.
21.2 Remedies.
If Landlord breaches or fails to comply with any provision of this
Lease applicable to Landlord, and such breach or noncompliance is not
cured within the period of time described in Section 21.1, then Tenant
may exercise any right or remedy available to Tenant at law or in
equity, except to the extent expressly waived or limited by the terms
of this Lease.
21.3 Cure by Encumbrance Holder.
If any act or omission by Landlord shall give Tenant the right,
immediately or after the lapse of time, to cancel or terminate this
Lease or to claim a partial or total eviction, Tenant shall not
exercise any such right until (a) it shall have given written notice of
such act or omission to each holder of any Encumbrance and (b) a
reasonable period for remedying such act or omission shall have elapsed
following such notice and following the time when such holder of an
Encumbrance shall have become entitled under its Encumbrance to remedy
the same (which shall in no event be less than the period to which
Landlord would be entitled under this Lease to effect such remedy)
provided such holder of an Encumbrance shall, with reasonable
diligence, give Tenant notice of its intention to remedy such act or
omission and shall commence and continue to act upon such intention.
22. SECURITY DEPOSIT. INTENTIONALLY DELETED.
23. BROKERS.
Landlord and Tenant represent and warrant that no broker or agent
negotiated or was instrumental in negotiating or consummating this
Lease except the Brokers. Neither party knows of any other real estate
broker or agent who is or might be entitled to a commission or
compensation in connection with this Lease. Landlord will pay all fees,
commissions or other compensation payable to the Brokers pursuant to
the terms of a separate agreement. Each party will indemnify and hold
the other harmless from all damages paid or incurred by the other
resulting from any claims asserted against the other party by brokers
or agents claiming through the indemnifying party.
24. LIMITATIONS ON LANDLORD'S LIABILITY.
Any liability for damages, breach or nonperformance by Landlord, or
arising out of the subject matter of, or the relationship created by,
this Lease, will be collectible only out of Landlord's interest in the
Building and no personal liability is assumed by, or will at any time
be asserted against, Landlord, its parent and affiliated corporations,
its and their partners, venturers, directors, officers, agents,
servants and employees, or any of its or their successors or assigns;
all such liability, if any, being expressly waived and released by
Tenant. Landlord's review, supervision, commenting on or approval of
any aspect of work to be done by or for Tenant (under Section 9,
Exhibit B or otherwise) are solely for Landlord's protection and except
as expressly provided, create no warranties or duties to Tenant or to
third parties.
25. NOTICES.
All notices required or permitted under this Lease must be in writing
and will only be deemed properly given and received (a) when actually
given and received, if delivered in person to a party who acknowledges
receipt in writing; or (b) one business day after deposit with a
private courier or overnight delivery service, if such courier or
service obtains a written acknowledgment of receipt; or (c) 2 business
days after deposit in the United States mails, certified or registered
mail with return receipt requested and postage prepaid. All such
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notices must be transmitted by one of the methods described above to
the party to receive the notice at, in the case of notices to Landlord,
both Landlord's Building Address and Landlord's General Address, and in
the case of notices to Tenant, the applicable Tenant's Notice Address,
or, in either case, at such other address(es) as either party may
notify the other of according to this Section 25. Time shall be of the
essence for the giving of all notices required or permitted under the
provisions of this Lease.
26. MISCELLANEOUS.
26.1 Binding Effect.
Each of the provisions of this Lease will extend to bind or inure to
the benefit of, as the case may be, Landlord and Tenant, and their
respective heirs, successors and assigns, provided this clause will not
permit any transfer by Tenant contrary to the provisions of Section 15.
26.2 Complete Agreement; Modification.
All of the representations and obligations of the parties are contained
in this Lease and no modification, waiver or amendment of this Lease or
of any of its conditions or provisions will be binding upon a party
unless in writing signed by such party.
26.3 Delivery for Examination.
Submission of the form of the Lease for examination will not bind
Landlord or Tenant in any manner, and no obligations will arise under
this Lease until it is signed by both Landlord and Tenant and delivery
is made to each.
26.4 No Air Rights.
This Lease does not grant any easements or rights for light, air or
view. Any diminution or blockage of light, air or view by any structure
or condition now or later erected will not affect this Lease or impose
any liability on Landlord.
26.5 Enforcement Expenses.
Each party agrees to pay, upon demand, all of the other party's costs,
charges and expenses, including the reasonable fees and out-of-pocket
expenses of counsel, agents, and others retained, incurred in
successfully enforcing the other party's obligations under this Lease.
All obligations under this Section 26.5 will survive the expiration or
early termination of the Term.
26.6 Building Planning.
At any time after the Date, Landlord may (upon at least 30 days prior
notice) substitute (i) for the those portions of the Premises, if any,
that occupy less than a full floor of the Building and are not
vertically contiguous to a portion of the Premises that does occupy a
full floor, other premises in the Building, or (ii) for any Generator
Space other space in the Building, (each a "New Premises") provided
that the New Premises will be similar to the Premises in area and
usable for Tenant's purpose. If Tenant is already occupying the
Premises, then Landlord will also pay the reasonable expenses of
Tenant's moving from the Premises to the New Premises (including any
necessary costs of replacing stationery, business cards and marketing
material, if any, not to exceed $5,000.00) and for improving the New
Premises so that the leasehold improvements in the New Premises are
substantially similar to those in the Premises. Such move will be made
during evenings, weekends or otherwise so as to incur the least
inconvenience to Tenant.
26.7 Building Name.
Tenant will not, without Landlord's consent, use Landlord's or the
Building's name, or any facsimile or reproduction of the Building, for
any purpose; except that Tenant may use the Building's name in the
address of the business to be conducted by Tenant in the Premises.
Landlord reserves the right, upon reasonable prior notice to Tenant, to
change the name or address of the Building. If Landlord changes the
address of the Building, it will reimburse Tenant for the costs of
stationery, business cards and marketing material not to exceed
$5,000.00.
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26.8 Building Standard.
The phrase "Building standard" will, in all instances, mean the type,
brand and/or quality of materials Landlord designates from time to time
to be the minimum quality to be used in the Building or the exclusive
type, grade or quality of material to be used in the Building and the
then-current standard described in Landlord's most recently published
schedule of Building standard or, if no such schedule has been
published, to the standard which commonly prevails in and for the
entire Building.
26.9 No Waiver.
No waiver of any provision of this Lease will be implied by any failure
of either party to enforce any remedy upon the violation of such
provision, even if such violation is continued or repeated
subsequently. No express waiver will affect any provision other than
the one specified in such waiver, and that only for the time and in the
manner specifically stated.
26.10 Recording; Confidentiality.
Neither party will record this Lease, or a short form memorandum,
without the other party's written consent and any such recording
without such written consent will be a Default. Each party agrees to
keep the Lease terms, provisions and conditions confidential and will
not disclose them to any other person without the other's prior written
consent. However, each may disclose Lease terms, provisions and
conditions as required by Law or a court of law or to its accountants,
attorneys, managing employees, lenders or prospective lenders, partners
and others in privity with Tenant, as reasonably necessary for Tenant's
business purposes, without such prior consent.
26.11 Captions.
The captions of sections are for convenience only and will not be
deemed to limit, construe, affect or alter the meaning of such
sections.
26.12 Invoices.
All bills or invoices to be given by Landlord to Tenant will be sent to
Tenant's Invoice Address. Tenant may change Tenant's Invoice Address by
notice to Landlord given according to Section 25. If Tenant fails to
give Landlord specific written notice of its objections within one (1)
year after receipt of any bill or invoice from Landlord, such bill or
invoice will be deemed true and correct and Tenant may not later
question the validity of such bill or invoice or the underlying
information or computations used to determine the amount stated.
26.13 Severability.
If any provision of this Lease is declared void or unenforceable by a
final judicial or administrative order, this Lease will continue in
full force and effect, except that the void or unenforceable provision
will be deemed deleted and replaced with a provision as similar in
terms to such void or unenforceable provision as may be possible and be
valid and enforceable.
26.14 Jury Trial.
Landlord and Tenant waive trial by jury in any action, proceeding or
counterclaim brought by Landlord or Tenant against the other with
respect to any matter arising out of or in connection with this Lease,
Tenant's use and occupancy of the Premises, or the relationship of
Landlord and Tenant. However, such waiver of jury trial will not apply
to any claims for personal injury. If Landlord commences any summary or
other proceeding for non-payment of rent or recovery of possession of
the Premises, Tenant shall not interpose any counterclaim in any such
proceeding, unless failure to raise same would constitute a waiver.
26.15 Authority to Bind.
The individuals signing this Lease on behalf of Landlord and Tenant
represent and warrant that they are empowered and duly authorized to
bind Landlord or Tenant, as the case may be, to this Lease according to
its terms.
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26.16 Only Landlord/Tenant Relationship.
Landlord and Tenant agree that neither any provision of this Lease nor
any act of the parties will be deemed to create any relationship
between Landlord and Tenant other than the relationship of landlord and
tenant.
26.17 Covenants Independent.
The parties intend that this Lease be construed as if the covenant
between Landlord and Tenant are independent and that the Rent will be
payable without offset, reduction or abatement for any cause except as
otherwise specifically provided in this Lease.
26.18 Governing Law.
This Lease will be governed by and construed according to the laws of
the State of Illinois. All proceedings hereunder, shall be held in
Chicago, Illinois.
26.19 Enforcement of Reasonable Consent.
27. OPTION TO EXTEND THE TERM.
Provided that Tenant has not defaulted in performing and failed to cure
any of its obligations under the Lease, and is not in (i) monetary
default or Material non-monetary default or (ii) in non-monetary,
non-material default beyond any applicable cure period set forth in
this Lease, at the time of its exercise of this option, Tenant shall
have the option, during the initial Term only, to extend the Term of
the Lease ("Extension Option") for one five (5) year period only ("1st
Extension Term") upon all of the following conditions:
(A) Tenant shall exercise this Extension Option by written notice
to Landlord which must be received by Landlord no later than 5:00 p.m.
on the date three hundred sixty five (365) days prior to the Expiration
Date, but no earlier than eighteen months prior to the Expiration Date;
and
(B) Within thirty (30) days after the date of Tenant's notice
Landlord shall compute the "Extension Rate" which shall be ninety five
percent (95%) of Market Rent as provided below and notify Tenant in
writing of the resulting amount ("Determination Date"). All other terms
of this Lease, except this Extension Option and any Landlord's work or
Allowances shall apply during the 1st Extension Term.
(C) Time is of the essence of the Extension Option.
(D) For the purposes of this Section 27, a "Material non-monetary
default" shall mean a breach or noncompliance by Tenant of the terms
and/or conditions of this Lease that causes or results in (i) a
dangerous condition in the Premises or the Building, (ii) any insurance
coverage required to be carried under this Lease by Landlord or Tenant
with respect to the Premises or Building being jeopardized (as
evidenced by a written notice from Landlord's insurance carrier),
including failure to provide same, (iii) an unreasonable disturbance to
another tenant, (iv) a substantial failure by Tenant to comply with
Laws with respect to the Premises or use thereof.; or (v) a substantial
and adverse affect on the operation of Building systems.
This Extension Option applies only to an extension of the Lease for the
1st Extension Term only. Except for the above modifications, all other
provisions and conditions of the Lease shall apply in the 1st Extension
Term. This Extension Option shall be void if Tenant fails to exercise
it precisely according to each and all of the conditions stated above,
or if Tenant assigns the Lease or sublets the Premises or otherwise
transfers all or part of its interest in the Lease or the Premises,
except as allowed under Section 15.7 of the Lease.
28. MARKET RENT.
(A) "Market Rent" for the 1st Extension Term shall mean the market
annual Base and Additional rental rate for the Premises, based on
renewing tenancies (for a term comparable to the time period in
question) covering office space of comparable size and quality to the
Premises in comparable buildings in comparable location in the West
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Loop District of downtown Chicago, Illinois, including the Building,
(and the rent for which such renewal tenancy was determined and
commenced within twelve (12) months before the Determination Date)
taking into account all pertinent factors including but not limited to
Tenant's credit worthiness, the involvement or non-involvement of a
broker, that Tenant may not require an improvement allowance, rental
abatement or other concessions, if any, typical to a new tenant and
assuming Landlord and Tenant to be prudent persons willing to lease but
being under no compulsion to do so. By the above reference to the
absence of a compulsion to enter into a renewal tenancy, Landlord and
Tenant do not intend to exclude renewal tenancies arising out of a
tenant's exercise of a fixed option to extend its lease term.
(B) If Landlord and Tenant have not agreed on Market Rent on or
prior to a date thirty (30) days after the Determination Date, then
each party shall appoint an arbitrator who shall be an independent,
disinterested person knowledgeable in rental rates and lease
transactions in the Building and other comparable buildings. The
arbitrators shall be real estate brokers who shall have at least ten
(10) years continuous experience in the procuring of leases in the
downtown Chicago Illinois market and are knowledgeable in rental rates
and lease transactions in the Building and the West Loop District of
downtown Chicago, Illinois. The two arbitrators appointed shall appoint
a third arbitrator within ten (10) days of the appointment of the last
arbitrator. The three arbitrators shall meet and hear oral
presentations by, and receive written materials from, Landlord and
Tenant and their representatives. The arbitration shall be conducted
according to the Commercial Arbitration Rules of the American
Arbitration Association, or its successor. The three arbitrators shall
determine Market Rent on or before the effective date for the Base and
Additional Rent and a decision of any two of the three arbitrators
shall be controlling. If the decision of the arbitrators regarding
Market Rent shall not be made prior to the effective date for Base and
Additional Rent, then Tenant shall pay Base and Additional Rent at the
rate or rates in effect as of the end of the Initial Term or preceding
Extended Term, if applicable, subject to adjustments once the Base and
Additional Rent is determined by the arbitrators.
(C) A determination of Market Rent by the arbitrators shall be
binding on the parties and Base and Additional Rents shall be paid in
accordance with this Lease.
(D) The parties shall equally share the costs of arbitration.
29. EARLY TERMINATION.
Tenant shall have the option to terminate this Lease effective as of
the Last day of the fifth (5th) Lease Year following the 8th Floor
Commencement Date upon the conditions stated below. This "Termination
Option" shall be void unless exercised precisely according to these
conditions:
(A) Tenant shall exercise this Termination Option by written
notice ("Termination Notice") identifying the intended termination date
("Termination Date"); such Termination Notice must be received by
Landlord at least three hundred sixty five (365) days prior to the
Termination Date; and
(B) Tenant shall not be in (i) monetary default or Material
non-monetary default or (ii) in non-monetary, non-material default
beyond any applicable cure period set forth in this Lease, of any of
the provisions or conditions of this Lease at the time of Termination
Notice and for the remainder of the Term through the Termination Date;
and
C) Simultaneously with the Termination Notice, Tenant shall tender
payment in full of (1) the unamortized costs of any Tenant concessions
paid by Landlord regarding this Lease, including without limitation any
broker's commissions, leasehold improvement costs and moving allowances
(excluding the Base Building Allowance), such costs to be amortized
over the initial term of the Lease at an interest rate of ten percent
(10%); and (2) any and all other miscellaneous charges due Landlord,
including any construction repayments due Landlord as elsewhere
described in this Lease or in a collateral agreement remaining unpaid
by Tenant. Tenant shall continue to pay Base and Additional Rent as
they come due under the Lease, however, if at anytime after the
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Termination Notice Tenant fails to timely make said Rent payments and
fails to cure same within the applicable cure periods this Termination
Option and Tenant's exercise of same shall become null and void and of
no further effect; and
(D) Tenant shall continue fully liable after the Termination Date
for Tenant's financial obligations accruing through the Termination
Date (including, without limitation, rents and charges identified above
and other costs, if any), and Tenant shall pay all amounts in full
within 30 calendar days of the date of Landlord's invoice(s).
(E) Time is of the essence of this Termination Option.
(F) For the purposes of this Section 29, a "Material non-monetary
default" shall mean a breach or noncompliance by Tenant of the terms
and/or conditions of this Lease that causes or results in (i) a
dangerous condition in the Premises or the Building, (ii) any insurance
coverage required to be carried under this Lease by Landlord or Tenant
with respect to the Premises or Building being jeopardized (as
evidenced by a written notice from Landlord's insurance carrier),,
including failure to provide same, (iii) an unreasonable disturbance to
another tenant, (iv) a substantial failure by Tenant to comply with
Laws with respect to the Premises or use thereof.; or (v) a substantial
and adverse affect on the operation of Building systems.
This Termination Option applies to Tenant only and shall be void if
Tenant fails to exercise it precisely according to each and all of the
conditions stated above, or if Tenant assigns the Lease or sublets the
Premises or otherwise transfers all or part of its interest in the
Lease or the Premises.
30. OPTION TO EXPAND.
Provided that Tenant has not defaulted in performing and failed to cure
any of its obligations under the Lease, and is not in (i) monetary
default or Material non-monetary default or (ii) in non-monetary,
non-material default beyond any applicable cure period set forth in
this Lease, at the time of its exercise of this option, Tenant shall
have the option to expand ("Expansion Option") into all or a portion of
the tenth (10th) floor of the Building ("Expansion Area 1"), upon all
of the following conditions:
(A) The parties acknowledge that Expansion Area 1 is currently
under lease to the Illinois Criminal Justice Information Authority in
Suite 1000, which lease expires July 31, 2002 and to Waterhouse
Securities, Inc. in Suite 1050, which lease expires May 31, 2001
("Current Expansion Leases"). The day following each expiration date
for the Current Expansion Lease shall be the "Expansion Area 1
Availability Date" for that applicable portion of Expansion Area 1
(i.e. August 1, 2002 for Suite 1000 and June 1, 2001 for Suite 1050) .
(B) Tenant shall exercise this Expansion Option by written notice
identifying what portion of Expansion Area 1 Tenant wishes to expand
(provided that Tenant must expand into all or a portion of Expansion
Area 1 that becomes available on the applicable Expansion Area
Availability Date); which must be received by Landlord at least two
hundred seventy (270) days prior to the applicable Expansion Area
Availability Date;and
(C) The Lease Term for the applicable portion for Expansion Area 1
shall commence the earlier of Tenant's occupancy of Expansion Area 1
for the regular conduct of business or ninety (90) days after the later
of the applicable Expansion Area Availability Date or the vacation of
the current tenant from the area ("Expansion Area 1 Commencement Date")
and shall expire on the Expiration Date.
(D) The applicable portion of Expansion Area 1 shall be delivered
in "as-is" condition and Landlord shall provide Tenant an allowance not
to exceed the product of $35.00 times the rentable square footage of
the applicable portion of Expansion Area 1 multiplied by a fraction the
numerator of which is the number of months remaining in the initial
Lease Term as of the applicable Expansion Area 1 Commencement Date and
the denominator of which is 120 ("Expansion Area 1 Allowance") to be
applied toward the cost of Leasehold Improvements to the applicable
portion of Expansion Area 1; and
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(E) The Base Rent for the applicable portion of Expansion Area 1
shall be at the rates prevailing under this Lease and
(F) Additional Rent shall be calculated pursuant to Section 4 of
this Lease and the Tenant's Share shall be increased proportionately;
and
(G) Time is of the essence of this Expansion Right; and
(H) This Expansion Option is subordinate to any rights of existing
tenants as of the Date in Expansion Area 1.
(I) For the purposes of this Section 30, a "Material non-monetary
default" shall mean a breach or noncompliance by Tenant of the terms
and/or conditions of this Lease that causes or results in (i) a
dangerous condition in the Premises or the Building, (ii) any insurance
coverage required to be carried under this Lease by Landlord or Tenant
with respect to the Premises or Building being jeopardized (as
evidenced by a written notice from Landlord's insurance carrier),,
including failure to provide same, (iii) an unreasonable disturbance to
another tenant, (iv) a substantial failure by Tenant to comply with
Laws with respect to the Premises or use thereof.; or (v) a substantial
and adverse affect on the operation of Building systems.
Except as to the above modifications, all other provisions of this
Lease shall apply to Expansion Area 1. This Expansion Option applies to
Tenant only and shall be void if Tenant fails to exercise it precisely
according to each and all of the conditions stated above, or if Tenant
assigns the Lease or sublets the Premises or otherwise transfers all or
part of its interest in the Lease of the Premises except as allowed
under Section 15.7 herein
31. RIGHT OF FIRST OFFER.
Provided that Tenant has not defaulted beyond any applicable cure
periods, and, providing Tenant is not in (i) monetary default or
Material non-monetary default or (ii) in non-monetary, non-material
default beyond any applicable cure period set forth in this Lease,
under the Lease at the time of its exercise of this First Offer Right
Landlord hereby grants to Tenant the one time option to lease, upon the
terms and conditions hereinafter set forth, all or a portion of the
tenth (10th) floor, and the fourteenth (14th) floor of the Building,
and the on-going right upon the terms and conditions hereinafter set
forth, all or a portion of fourth (4th), floor (each a "ROFO Area" and
collectively the "ROFO Area") when it becomes "available for leasing"
(as determined in accordance with subsection (A) below) during the
initial Term of the Lease ("First Offer Right").
(A) The ROFO Area shall be deemed to be "available for
leasing" upon, and only upon, the occurrence of one of the following
events:
(i) The ROFO Area is not the subject of an Existing
Lease (as hereinafter defined);
(ii) if the ROFO Area is subject to a right or option
granted in an Existing Lease (whether to extend/renew
or to expand), all of which rights or options are not
exercised, the expiration of the last of such
unexercised right or option; and
(iii) if the ROFO Area is subject to a right or
option granted in an Existing Lease, which right or
option is exercised, the expiration or termination of
the term of such Existing Lease or any later date
upon which the term of the demise of such portion of
the ROFO Area created by the exercise of such right
or option expires (including any renewals or
extensions thereof granted in such Existing Lease);
and
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<PAGE> 40
(iv) As to the fourth floor only, the ROFO Area is
not subject to any rights granted to a tenant
(including without limitation renewal options) in a
lease entered into by Landlord after Tenant has been
offered and has declined to lease the ROFO Area.
(B) During the initial Term of the Lease, prior to Landlord's
leasing all or a potion of the ROFO Area to a party other than a
tenant leasing premises in the ROFO Area as of the Date, and subject
to the rights of existing tenants in the ROFO Area as of the Date,
Landlord shall give Tenant a written notice (the "Offer Notice")
setting forth the availability date and the portion of the ROFO Area
being offered to Tenant (the "the ROFO Area Availability Date"). The
ROFO Area Availability Date shall not be less than sixty (60) days
after the date such notice is given by Landlord. The Base and
Additional Rent for the ROFO Area shall be Market Rent as determined
in Section 28 above and the ROFO Area shall be delivered in "as-is"
condition; and
(C) Tenant's right to lease the ROFO Area on the terms
described in the applicable Offer Notice shall be exercisable by
written notice from Tenant to Landlord given not later than ten (10)
days after the Offer Notice is delivered. Tenant shall be deemed to
have declined a lease for the offered portion of the ROFO Area if its
acceptance is delayed or if the acceptance changes any term or
condition of the Offer Notice. If such right is not so exercised, then
at such time Tenant's First Offer Right for the offered portion of the
ROFO Area, except for any ROFO Area located on the 4th floor, shall be
null and void and of no further force or effect and Landlord shall
have the right to lease the all or any portion of the offered portion
of the ROFO Area to a third party on the same or any other terms and
conditions, whether or not such terms and conditions are more or less
favorable than those offered to Tenant. As to any ROFO Area located on
the 4th floor, if Tenant declines or is deemed to decline a lease as
set forth above, then for the following one hundred eighty (180) days
Landlord shall have the right to Lease said portion of the ROFO Area
located on the 4th floor to a third party on materially the same terms
as those offered to Tenant and otherwise shall follow the procedure
set forth in subsection B above; and
(D) If Tenant has validly exercised this First Offer Right for
the offered portion of the ROFO Area in accordance with the terms
hereof, Landlord and Tenant, within thirty (30) days after request by
either party hereto, shall enter into a written amendment to this
Lease confirming the terms, conditions and provisions applicable to
such portion of the ROFO Area as determined in accordance herewith;
and
(E) The Lease Term for the ROFO Area shall commence the
earlier of Tenant's occupancy of the ROFO Premises for the regular
conduct of business or ninety (90) days after Landlord's delivery of
same and shall expire on the Expiration Date; and
(F) As used herein, the term "Existing Lease" shall mean (i) a
lease (other than this Lease) of any space in the Building in effect
as of the date hereof (including extensions and renewals thereof
pursuant to options granted therein or otherwise), whether or not the
term of such lease has yet commenced and (ii) any lease in effect as
of the date of the commencement of the initial Term of the Lease,
whether or not the term of such lease has then commenced. In the event
two leases are in effect for any portion of the the ROFO Area (for
example, the term of a lease which is now in effect for a portion of
the the ROFO Area will soon expire, and another lease covering part or
all of such space has already been executed with a new tenant for a
term commencing after the expiration of the term of the former lease),
only one of such leases shall be an Existing Lease. In such case, the
Existing Lease shall be determined by comparing the dates upon which
the respective terms of such two leases end, and the lease with the
later expiration date shall be deemed to be the Existing Lease and the
other lease shall be disregarded.; and
(G) Time is of the essence of this First Offer Right; and
(H) If Tenant leases this the ROFO Area under this First Offer
Right, Tenant shall have the right to extend the term of the Lease for
the ROFO Area upon the same terms and conditions in Section 27 above
and to terminate the Lease for the ROFO area on the same terms and
conditions in Section 29 above; and
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(I) Notwithstanding what is set forth above, Landlord shall
have the right to extend the term of any lease for any tenant
occupying any portion of the ROFO Area which lease is in effect as of
the Date, whether by exercise of a lease option or otherwise; and
(J) Notwithstanding what is set forth above, Tenant's First
Offer Right is subordinate to the rights of existing tenants as of the
Date in the ROFO Area, which, to the best of Landlord's knowledge as
of the Date, are those rights set forth in Exhibit H attached and
incorporated herein.
(K) For the purposes of this Section 31, a "Material
non-monetary default" shall mean a breach or noncompliance by Tenant of
the terms and/or conditions of this Lease that causes or results in (i)
a dangerous condition in the Premises or the Building, (ii) any
insurance coverage required to be carried under this Lease by Landlord
or Tenant with respect to the Premises or Building being jeopardized
(as evidenced by a written notice from Landlord's insurance carrier),,
including failure to provide same, (iii) an unreasonable disturbance to
another tenant, (iv) a substantial failure by Tenant to comply with
Laws with respect to the Premises or use thereof.; or (v) a substantial
and adverse affect on the operation of Building systems.
This First Offer Right applies to Tenant only and shall be void if
Tenant fails to exercise it precisely according to each and all of the
conditions stated above, or if Tenant assigns the Lease or sublets the
Premises or otherwise transfers all or part of its interest in the
Lease or the Premises, except as allowed under Section 15.7 of the
Lease.
32. SIGNAGE.
During the Term of this Lease, including any renewal terms, provided that
(i) Tenant is not in default of any of the terms or conditions of this
Lease, (ii) Tenant has not assigned the Lease or sublet the Premises or
otherwise transferred all or part of its interest in the Lease or the
Premises, and (iii) Tenant is in occupancy of the entire Premises,
Landlord shall provide Tenant, at Landlord's sole cost and expense, with
identification signage on a monument sign in the exterior Plaza
("Monument Signage"), with ground floor lobby signage ("Lobby Signage")
and with elevator button signage within the elevator cabs for the floors
where Tenant occupies the entire floor ("Elevator Button Signage"). The
placement, location, design, material, color and size of the Monument
Signage, Lobby Signage and Elevator Button Signage shall be in Landlord's
sole discretion and for identification of Tenant shall contain only
Tenant's name and/or corporate logo. The Monument Signage may, at
Landlord's sole discretion, also contain the name of the Building and up
to one (1) additional tenant name. At the expiration or earlier
termination of this Lease, or if Tenant fails to comply with this Section
32, Tenant's name shall be removed from the Monument Signage, the Lobby
Signage and Elevator Button Signage shall be removed. In addition,
Landlord shall provide company and individual name listings for Tenant's
employees, not to exceed fifty (50) names, in the Building's computerized
directory, and Building standard Tenant identification signage in the
elevator lobbies of the floors occupied by Tenant.
33. YEAR 2000 COMPLIANCE.
Landlord shall be responsible for Year 2000 compliance of all services
furnished by Landlord to Tenant pursuant to this Lease. If Landlord
obtains actual knowledge that any of those services are not Year 2000
compliant, Landlord shall promptly take such measures as are appropriate
to cause those services to become Year 2000 compliant, but Landlord shall
have no obligations with respect to any failure of its services that
arise because third party systems not under its control are not Year 2000
compliant
34. GENERATOR.
Provided that Tenant is not in Default, throughout the Term of the
Lease, including any Extension Term, Landlord shall provide Tenant with
approximately 200-300 exclusive, restricted access rentable square feet
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in the Building in a location to be determined by Landlord to house an
emergency back-up electrical generator to service the Premises
("Generator Space") and for no other use, at Landlord's expense during
the Term or any extension thereof. Tenant's occupancy and use of the
Generator Space shall be pursuant to all of the terms and conditions of
this Lease except that Tenant shall not be required to pay Base or
Additional Rent for the Generator Space. Tenant's use of the Generator
Space to house said generator is subject to review and approval of the
generator and its specifications by Landlord and the City of Chicago.
In addition, Landlord shall also have the right to approve the location
of the generator in the Generator Space for purposes of floor loading
and shall approve all ventilation locations and methods and the
location of all fuel sources. :Landlord shall deliver the Generator
Space to Tenant in "as-is" condition on the 9th floor Scheduled
Commencement Date, and Tenant shall, at its sole cost and expense
improve the Generator Space to provide for the lawful installation of
the generator system and to meet Landlord's reasonable sound and
vibration attenuation requirements. The parties understand that the
Generator shall have a self contained fuel source. Tenant agrees that
it will comply with all Laws governing, and all reasonable procedures
established by Landlord for, the use, abatement, removal, storage,
disposal or transport of any gasoline, fuel oil, propane or other fuels
used to power the generator ("Fuels") and any substances, chemicals or
materials declared to be, or regulated as, hazardous or toxic under any
applicable Laws ("Hazardous Substances") and any required or permitted
alteration, repair, maintenance, restoration, removal or other work in
or about the Premises or Building that involves or affects any Fuels or
Hazardous Substances. Upon the expiration of the Lease or sooner
termination hereof, Tenant shall remove the generator, transfer switch,
fuel storage tank and their accompanying Improvements (excluding any
electrical panels, electrical meters, sprinklers or vents) and shall
repair and restore the Generator Space to its original condition,
normal wear and tear excepted. Tenant will indemnify and hold Landlord
harmless from and against any and all claims, costs and liabilities
(including reasonable attorney's fees) arising out of or in connection
with any breach by Tenant of its covenants under this Section 34.
Tenant's obligations under this Section will survive the expiration or
early termination of the Term.
HAVING READ and intending to be bound by the terms and provisions of this Lease,
Landlord and Tenant have signed it as of the Date.
TENANT LANDLORD
CDW COMPUTER CENTERS, INC.. SOLANO ASSOCIATES, a California
limited partnership, d/b/a
TRIZECHAHN 120 SOUTH RIVERSIDE
MANAGEMENT L.P.
By: TrizecHahn Centers Inc.,
a California corporation, as
sole general partner
By: By:
-------------------------------- --------------------------
Name: Harry J. Harczak, Jr. Name: Antonio A. Bismonte
ts: Chief Financial Officer Its: Executive Vice President
By:
--------------------------
Name: Stephen E. Budorick
Its: Senior Vice President
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SCHEDULE 1
LAND DESCRIPTION
Two certain parcels of land in Cook County, Illinois, bounded and described as
follows:
Parcel 1:
A part of Lot 2 in Railroad Companies Resubdivision of Blocks 62 to 76 both
inclusive, 78, parts of 61 and 77 and certain vacated streets and alleys in
School Section Addition to Chicago, a Subdivision of Section 16, Township 39
North, Range 14 East of the Third Principal Meridian, according to the plat of
said Resubdivision recorded in the Recorder's Office of Cook County, Illinois on
March 29, 1924 in Book 188 of Plats at Page 16 as Document Number 8339751, said
parts of Lots 1 and 2 which is bounded and described as follows: Beginning at
the northeast corner of said Lot 1 and running thence southwardly along the
easterly line of said Lot 1 a distance of 199.495 feet to an angle point in said
easterly lot line; thence continuing southwardly along said easterly line a
distance of 199.23 feet to its intersection with the north line of the south 33
feet of said Lot 1; thence west along the north line of the south 33 feet of
said Lot 1 and of the west 20 feet of said Lot 2; thence north along said east
line of the west 20 feet of said Lot 2 a distance of 398.19 feet to its
intersection with the north line of said Lot 2, and thence east along the north
line of said Lot 2 and of said Lot 1 a distance of 239 feet to the Point of
Beginning, excepting from the parcel of land above described, the respective
portions thereof lying vertically below the following horizontal planes:
(A) a horizontal plane 18.5 feet above Chicago City Datum, the perimeter of
which is described as follows: Beginning at the northwest corner of said parcel
and running thence easterly along the north line of said parcel to the
intersection of said north line and a line (the "Limiting Plane Line") 168 feet
east of and parallel to the west line of said parcel; thence southwardly long
the Limiting Plane Line to the intersection of said line and the south line of
said parcel; thence westerly along the south line of said parcel to the
southwest corner thereof; thence northerly along the west line of said parcel to
the northwest corner of said parcel, which is the point of beginning of said
horizontal plane; and
(B) a horizontal plane 21.0 feet above Chicago City Datum over that portion of
said parcel which is not vertically below the horizontal plane described in
clause (A) above.
Parcel 2:
All land and spaces below the horizontal planes described in Parcel 1 above
which are occupied by the columns, caissons, foundations, gussets and all other
supporting structures, for the building and improvements constructed in Parcel 1
and by all other improvements, plenums, mechanical and electrical equipment,
pipes, wires, conduits, utilities and other structures located below said
horizontal planes in connection with said building and improvements, including,
but not limited to the space occupied by the improvements and structures shown
on the Plat of Survey prepared and certified by Chicago Guarantee Survey Company
dated July 8, 1966 (consisting of three sheets identified as Order Nos. 6311001
K and 6311001-S and 6311001 N. respectively), which was recorded as part of
document 19881999.
Parcel 3:
An easement appurtenant to Parcels 1 and 2 in, over and across the west 20 feet
of Lot 2 in said Railroad Companies' Resubdivision to construct, use, maintain,
repair, replace or renew from time to time such columns, gussets trusses,
horizontal structural members, caissons, foundations and other supports as may
be reasonably necessary or appropriate to maintain and support the plaza and
other improvements contemplated by the Lease, including, without limitation, the
columns (designated `DD') and the caissons, foundations and related structures
shown on the Plat of Survey referred to in Parcel 2 above.
Parcel 4:
A nonexclusive appurtenant easement in favor of the leasehold interest in
Parcels 1 and 2 as created by Deed of Easement dated January 16, 1990 and
recorded January 31, 1990 as Document 90047309 made by LaSalle National Bank, as
Trustee under Trust Agreement dated November 17, 1983 and known as Trust Number
107292 to Gateway IV Joint Venture, an Illinois general partnership, LaSalle
National Bank, as Trustee under Trust Agreement dated December 1, 1983 and known
as Trust Number 107361, LaSalle National Bank, as Trustee under Trust Agreement
dated December 1, 1983 and known as Trust Number 107362, and LaSalle National
Bank, as Trustee under Trust Agreement dated December 1, 1983 and known as Trust
Number 107363, for the use of 1,100 public parking spaces in the garage, as
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defined therein, with rights of ingress and egress and an easement for the
purpose of construction of such repairs or restoration for the period required
to complete such repairs or restoration, on over, and across the following
described legal description:
Lots 5, 6, 7, and 8 (except from said lots that part falling in alley) in Block
49 in School Section Addition to Chicago in Section 16, Township 39 North, Range
14 East of the Third Principal Meridian, in Cook County, Illinois.
As amended by First Amendment to Deed of Easement dated February 9, 1990, and
recorded October 9, 1990, as Document Number 904914486.
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A-1
EXHIBIT A
120 SOUTH RIVERSIDE PLAZA BUILDING
PLAN DELINEATING THE PREMISES
SUITE 800
<PAGE> 46
EXHIBIT A
120 SOUTH RIVERSIDE PLAZA BUILDING
PLAN DELINEATING THE PREMISES
SUITE 900
<PAGE> 47
B-9
EXHIBIT B
120 SOUTH RIVERSIDE PLAZA BUILDING
LEASEHOLD IMPROVEMENTS AGREEMENT
1. Conflicts; Terms. If there is any conflict or inconsistency
between the provision of the Lease and those of this Exhibit B ("Work
Letter"), the provisions of this Work Letter will control. Except for
those terms expressly defined in this Work Letter, all initially
capitalized terms will have the meanings stated for such terms in the
Lease. The following terms, which are not defined in the Lease, have
the meanings indicated:
(a) "Scheduled Commencement Date" means the date set forth in
subsection 1.1(g) of the Lease, unless the Scheduled Commencement Date
is extended according to Paragraph 2 below.
(b) "Commencement Date" means the first day of the Term, which
will be the earlier of (1) the first day on which Tenant occupies the
Premises for the regular conduct of its business or (2) the Scheduled
Commencement Date (as the same may be extended according to paragraph 2
below).
(c) "Start Date" means the first day of the Tenant Finish
Period, which will be November 15, 1999 for the 9th floor Phase of the
Premises and December 15, 1999 for the 8th floor Phase of the Premises
unless the applicable Start Date is extended according to Paragraph 2
below.
(d) "Tenant Finish Period" means the period beginning on the
Start Date and ending on the Commencement Date.
(e) "Submission Date" means thirty (30) days prior to
construction but no later than the date of Tenant's execution of this
Lease.
(f) "Landlord's Representative" means Linnea Allum, Building
Manager.
(g) "Tenant's Representative" means Douglas Eckrote.
(h) "Tenant's Architect" means Partners By Design, or such
other licensed or registered professional engineers as may be selected
by Tenant and reasonably approved by Landlord.
(i) "Tenant's Engineers" means Environmental System Design.
(j) "Leasehold Improvement Allowance" means: $35.00 per
rentable square foot of the Premises, which the parties agree is
$2,519,440.00. Tenant may use up to $5.00 per rentable square foot of
the Premises of unused Leasehold Improvement Allowance (but not any
portion of the Allowances set forth below) upon written notice to
Landlord, as a credit against Rent during the initial Lease Year. In
addition to the Leasehold Improvement Allowance set forth above,
Landlord shall contribute $20,000.00 to Tenant's enlargement of the
existing Premises restrooms ("Restroom Allowance"). $24,000.00 toward
supplemental cooling to be installed in the Premises ("Cooling
Allowance"), $235,870.00 toward the installation of (A) two (2)
Building standard water coolers; (B) 16 Building standard VAV boxes on
the 9th floor; (C) two (2) 300 KVA transformers and all associated
piping, wiring, disconnect switches, and labor for installation of
same, (D) a VAV loop on the 9th floor and (E) the main sprinkler loop
on the 8th and 9th floors ("Base Building Allowance") and Landlord
shall pay all costs of Landlord's engineering review of Tenant's plans
(the "Leasehold Improvement Allowance", "Restroom Allowance" , "Cooling
Allowance" and "Base Building Allowance" collectively "Allowances").
(k) "Leasehold Improvements" means all alterations,
improvements and installations to be constructed or installed by
Landlord or Tenant in the Premises according to this Work Letter.
B-1
<PAGE> 48
(l) "Landlord's Work" means those Leasehold Improvements to be
constructed or installed by Landlord according to Paragraph 4 below.
(m) "Tenant's Work" means all Leasehold Improvements other
than Landlord's Work.
(n) "Preliminary Plans" means space plans and general
specifications for Tenant's Work prepared by Tenant's Architect in such
form (and on such scale in the case of plans and drawings) as Landlord
may reasonably specify.
(o) "Construction Documents" means complete construction plans
and specifications for Tenant's Work prepared by Tenant's Architect and
Tenant's Engineers in such form (and on such scale in the case of plans
and drawings) as Landlord may reasonably specify and detailing all
aspects of Tenant's Work, including, without limitation, the location
of libraries, safes and other heavy objects, stairwells, walls, doors,
computer equipment, telephone and related equipment, and electrical,
plumbing, heating, ventilation and air conditioning equipment
(including equipment in excess of that required for normal use).
Tenant's Engineers will perform all mechanical and electrical design
work included in the Construction Documents.
(p) "Tenant's Costs" means all costs required to be expended
by Tenant under this Work Letter in connection with Tenant's Work,
including, without limitation, the costs of: preparing the Preliminary
Plans, Construction Documents and the as-built plans described in
Paragraph 8; performing Tenant's Work; obtaining all required
insurance, licenses and permits; satisfying all requirements of
applicable laws, codes and regulations; letting all contracts;
Landlord's services provided under Paragraph 14; and all required
electrical and telephone panels and/or meters. Tenant's Costs will not,
however, include any costs incurred by Tenant for furniture or other
personal property, for fixtures or equipment (unless such fixtures or
equipment will constitute permanent additions to the Premises and are
shown on the Construction Documents), or for moving to the Premises.
2. Tenant Finish Period; Commencement Date. The Tenant Finish
Period for each Phase of the Premises will begin on the applicable
Start Date specified in subparagraph 1(b) above, unless said Start Date
is extended according to the following provisions. If on or before the
applicable Start Date specified in subparagraph 1(b), (a) Landlord's
Work has not been completed to the extent that Tenant's Work may begin
except for any Landlord's Work which has been delayed, hindered or
prevented by Tenant or (b) Tenant has not been permitted entry to that
portion of the Premises for the conduct of Tenant's Work, then the
applicable Start Date will be extended until the date on which both
such events have occurred and the applicable Phase Scheduled
Commencement Date will be extended for an equivalent period of time. If
either Start Date has not occurred within two (2) months after the date
specified in subparagraph 1(b), (plus any period of delay caused by
Forced Majeure), then Tenant will have the right to terminate the Lease
by delivering written notice of termination to Landlord not more than
thirty (30) days after the end of such two (2) -month period. Upon such
termination, each party will, upon the other's request, execute and
deliver an agreement in recordable form containing a release and
surrender of all right, title and interest in and to the Lease; neither
Landlord nor Tenant will have any further obligations to each other,
including, without limitation, any obligations to pay for work
previously performed in the Premises; all improvements to the Premises
will become and remain the property of Landlord; and Landlord will
refund to Tenant any sums paid to Landlord by Tenant in connection with
the Lease. Such postponement of a Start Date and the applicable Phase
Scheduled Commencement Date (and therefore the postponement of the
commencement of the Term as to such Phase), and such termination and
refund right, will be in full settlement of all claims that Tenant
might otherwise have against Landlord by reason of Landlord's failure
to deliver said portion of the Premises or any delay in commencing or
completing any of Landlord's Work.
3. Representatives. Landlord appoints Landlord's Representative to
act for Landlord in all matters covered by this Work Letter. Tenant
appoints Tenant's Representative to act for Tenant in all matters
covered by this Work Letter. All inquiries, requests, instructions,
authorizations and other communications with respect to the matters
covered by this Work Letter will be made to Landlord's Representative
or Tenant's Representative, as the case may be. Tenant will not make
any inquiries of or requests to, and will not give any instructions or
authorizations to, any other employee or agent of Landlord, including
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<PAGE> 49
Landlord's architect, engineers and contractors or any of their agents
or employees, with regard to matters covered by this Work Letter.
Either party may change its Representative under this Work Letter at
any time by prior written notice to the other party.
4. Landlord's Work. Landlord shall deliver and Tenant shall accept
the Premises in "as-is" condition, except for all representations set
forth in Section 7.1 of the Lease and except for Landlord's Work as set
forth below. Landlord, at its expense and as Landlord's Work, will
complete in or for the Premises, in a good and workmanlike manner and
according to all applicable Laws, the following, with the parties
understanding that the both the Landlord's and Tenant's work is to be
done in two (2) phases, the 8th Floor Phase and the 9th Floor Phase and
Landlord shall tender possession of the applicable Phase of the
Premises to Tenant when Landlord's Work for that Phase have been
completed:
Necessary demolition on the 8th floor (including removal of any
ACM to comply with Section 6.2(d)) to provide the Premises in raw shell
condition with a slab floor, perimeter columns and core and exterior
walls in "as-is "condition . In addition, Landlord shall provide after
the Start Date but prior to the Commencement Date as scheduled in
conjunction with Tenant's contractor, Building standard window film on
all exterior Premises windows. Landlord shall not unreasonably
interfere with Tenant's contractor during the installation of said
window film.
Landlord will pay for the design costs associated with Landlord's
Work; provided that to the extent Landlord's Work requires design
information (such as heating or air conditioning load factors) that
would be prepared in connection with the preparation of the Preliminary
Plans or the Construction Documents, Tenant will be responsible for the
cost of such design information. The Premises will be delivered to
Tenant when Landlord has substantially completed Landlord's Work,
subject only to completion of minor construction details which would
not materially interfere with Tenant's Work, and Tenant will accept the
Premises upon from Landlord that Landlord's Work has been substantially
completed. Landlord and Tenant agree that all alterations, improvements
and additions made to the Premises according to this Work Letter,
whether paid for by Landlord or Tenant, will, without compensation to
Tenant, become Landlord's property upon installation and will remain
Landlord's property at the expiration or earlier termination of the
Term.
5. Landlord's Punch List. Upon substantial completion of
Landlord's Work, Landlord's Representative and Tenant's Representative
will inspect the Premises and prepare and sign a punch list identifying
all items of Landlord's Work which require correction or completion.
Landlord will, within ten (10) days after execution of such punch list,
begin correction or completion of any items identified on such punch
list and will complete such work in a prompt and diligent manner.
Landlord will not be responsible for any items or damage caused by
Tenant, its agents, independent contractors or suppliers. Except for
any items identified on such punch list, and except for any latent
defect in Landlord's Work of which Tenant notifies Landlord within one
year after the Commencement Date, Tenant's taking possession of any
portion of the Premises will be conclusive evidence that such portion
of the Premises was in good order and satisfactory condition when
Tenant took possession. Failure to advise Landlord in writing within
one year of the Commencement Date of any latent defects shall result in
a waiver of any claims regarding said defects by Tenant. No promises to
alter, remodel, or improve the Premises or Building and no
representations concerning the condition of the Premises or Building
have been made by Landlord to Tenant other than as may be expressly
stated in the Lease (including this Work Letter).
6. Early Access. Tenant will not be entitled to exclusive
possession of the Premises until Landlord's Work is completed. Landlord
may, in its discretion, permit Tenant to enter the Premises prior to
the Start Date so that Tenant may do such work as may be required to
prepare the Premises for Tenant's Work. If Landlord permits such entry
prior to the Start Date, Tenant shall work in harmony with Landlord and
will not interfere with the performance of Landlord's Work, or with the
work of any other tenant or occupant. If at any time such access causes
or threatens to cause disharmony or interference, including labor
disharmony, Landlord will have the right to immediately withdraw such
permission. At all times while Tenant is in occupation of the Premises
prior to the Commencement Date (including the Tenant Finish Period),
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<PAGE> 50
Tenant will be subject to and will comply with all of the terms and
provisions of the Lease, except that no Base Rent or Additional Rent
will be payable by Tenant prior to the Commencement Date.
7. Landlord's Approval. All Preliminary Plans and Construction
Documents, and any revisions to the same (whether in the form of a
change order or otherwise) are expressly subject to Landlord's prior
written approval.
Landlord may withhold its approval of any such items that require work
which:
(a) exceeds or adversely affects the capacity or integrity of
the Building's structure or any of its heating, ventilating,
air conditioning, plumbing, mechanical, electrical,
communications or other systems;
(b) is not approved by the holder of any Encumbrance;
(c) would not be approved by a prudent owner of property
similar to the Building;
(d) violates any agreement which affects the Building or
binds Landlord;
(e) Landlord reasonably believes will increase the
cost of operating or maintaining any of the Building's
systems;
(f) Landlord reasonably believes will reduce the market
value of the Premises or the Building at the end of the Term;
(g) does not conform to applicable building code or is
not approved by any governmental authority having
jurisdiction over the Premises;
(h) does not meet or exceed Building standard; or
(i) Landlord reasonably believes will infringe on the
architectural or historical integrity of the Building.
8. Tenant's Plans. On or before the Submission Date, Tenant, at
its expense, will cause the Preliminary Plans to be prepared and
submitted to Landlord for its approval. Such submittal will include one
(1) sepia, five (5) sets of blueline prints and three (3) sets of those
specifications not shown on the drawings. If the submitted materials
are not acceptable to Landlord, Landlord will so notify Tenant by
returning the sepia with required changes noted within five (5)
business days of receipt of same. If Landlord so notifies Tenant of any
required change to the Preliminary Plans, Tenant will cause the same to
be revised according to the returned sepia and resubmitted to Landlord
within seven (7) days after receipt of such notice. Within fifteen (15)
days after Landlord notifies Tenant of Landlord's approval of the
Preliminary Plans, Tenant, at its expense, will cause the Construction
Documents to be prepared and submitted to Landlord for its approval.
Such submittal will include one sepia, five (5) sets of blueline
prints, three (3) sets of specifications and a complete color and
finish board for Tenant's Work. The Construction Documents must
strictly conform to the Preliminary Plans approved by Landlord and must
be in all respects sufficient for the purpose of obtaining a building
permit for Tenant's Work. If the submitted materials are not acceptable
to Landlord, Landlord will so notify Tenant by returning the sepia with
required changes noted within five (5) business days of receipt of same
If required by Landlord, Tenant will cause the Construction Documents
to be resubmitted to Landlord for its approval within seven (7) days
after Landlord notifies Tenant of any required changes. Tenant's Work
will not commence prior to Landlord's approval of the Construction
Documents. If the Landlord fails to deliver to Tenant Landlord's
written approval or its written request for revisions within five (5)
business days after Landlord receives any required revisions to them,
Tenant will receive a credit against Base Rent beginning on the
Commencement Date equal to one day's Base Rent for each day subsequent
to the fifth (5th) business day after Tenant's submittal until the day
of Landlord's response. Except as provided in Paragraph 2 above, no
delays in the design or performance of Tenant's Work will change the
Start Date or the Commencement Date. Upon completion of Tenant's Work,
Tenant will provide Landlord a complete set of reproducible as-built
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<PAGE> 51
plans of the Premises. If Tenant fails to provide such plans, Landlord
may obtain them, directly or by field verification, and charge Tenant
for all costs incurred by Landlord in doing so. No approval by Landlord
of the Preliminary Plans, the Construction Documents or any revisions
to them will constitute a representation or warranty by Landlord as to
the adequacy or sufficiency of such plans, or the improvements to which
they relate, for any use, purpose or condition, but such approval will
merely be the consent of Landlord to the construction or installation
of improvements in the Premises according to such plans.
9. Tenant's Work. During the Tenant Finish Period, Tenant, at its
expense, will construct or cause to be constructed in the Premises all
of Tenant's Work according to the Construction Documents approved by
Landlord. Tenant, at its expense, will obtain: (a) all permits
(including, without limitation, building permits) required for
construction of Tenant's Work; (b) all contracts and insurance required
under this Work Letter; and (c) all certificates required for occupancy
of the Premises from the appropriate governmental authorities. Tenant
will cause all of Tenant's Work to be diligently completed in a good
and workmanlike manner, according to the approved Construction
Documents and all applicable laws, and free and clear of any liens or
claims for liens.
10. Tenant's Contractor. Landlord will have the right to approve
Tenant's contractor ("Contractor") and all subcontractors, which
approvals will not be unreasonably withheld or delayed. Landlord will
provide Tenant with a list of contractors and subcontractors that are
acceptable to Landlord. Tenant may select its Contractor and
subcontractors from such list or may request Landlord's approval of a
Contractor and subcontractors not on such list. Tenant will not execute
any contract for the performance of Tenant's Work until Landlord's
approvals of the Contractor and subcontractors have been obtained, and
Tenant will cause its proposed Contractor and subcontractors (if not on
such list) to submit such information, including financial information,
as may be reasonably required by Landlord to determine whether such
Contractor and subcontractors should be approved.
11. Construction Contract. Tenant's construction contract for
Tenant's Work will provide (and Tenant will deliver a copy of it to
Landlord so that Landlord may confirm it provides) that: (a)
Intentionally Deleted (b) construction of Tenant's Work will not
interfere with Landlord's or Landlord's tenants' activities in, or use
or enjoyment of, the Building; (c) Contractor will cooperate with other
contractors in the Building to insure harmonious working relationships,
including, without limitation, coordinating with other contractors in
the Building concerning use of elevators, trash removal and water and
utility usage; (d) Contractor will leave all Common Areas in neat,
clean, orderly and safe condition at the end of each day during
construction of Tenant's Work; (e) Contractor will procure and maintain
and cause its subcontractor(s) to procure and maintain the insurance
described in Paragraph 12 below; (f) upon completion of Tenant's Work,
Contractor will provide to Landlord and Tenant as-built drawings
together with mechanical balance reports and any maintenance manuals on
equipment installed in the Premises as part of Tenant `s Work;; and g)
all labor and material supplied according to the contract will be fully
warranted by Contractor for a period of not less than one year from
substantial completion of Tenant's Work and such warranty will provide
that it is for the benefit of both Landlord and Tenant and may be
enforced by either. The construction contract will also contain the
following indemnification and defense provisions:
"Contractor will protect, defend, hold harmless, and indemnify
[Landlord's name to be inserted] and its successors, assigns,
directors, officers and employees (collectively,
"Indemnitees") from and against all claims, actions,
liabilities, damages, losses, cost and expense (including
attorney's fees) arising out of or resulting from the
performance of the work contemplated by this contract by
Contractor or any of its subcontractors, provided that any
such claims, action, liabilities, damages, losses, cost or
expense (1) are attributable to bodily injury, sickness,
disease, or death, or to injury to or destruction of tangible
property (other than the work contemplated by this contract
itself) including the loss of use resulting therefrom and (2)
are caused in whole or in part by the negligent act or
omission of Contractor, any subcontractor, or any of them may,
directly or indirectly, be liable. Such obligations will not
be construed to negate, abridge or otherwise reduce any other
right or obligation of indemnity which would otherwise exist
as to any party or person described in this paragraph.
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<PAGE> 52
Contractor agrees to protect, defend, hold harmless and
indemnify the Indemnitees from and against any and all claims,
actions, liabilities, damages, losses, costs, and expenses
(including attorneys' fees) arising out of or resulting from
Contractor's failure to purchase all insurance required under
Paragraph 11 of the Possession and Leasehold Improvements
Agreement attached to and made a part of the Lease Agreement
dated [Date of Lease to be inserted] between [Landlord's name
to be inserted] and [Tenant's name to be inserted], and
Contractor's failure to require and obtain proper insurance
coverage from its subcontractors. In any and all claims
against the Indemnitees or any employee of Contractor or any
subcontractor, anyone directly or indirectly employed by any
of them or anyone for whose acts any of them may be liable,
the indemnification obligation under this provision will not
be limited in any way by any limitation of the amount or type
of damages, compensation or benefits payable by or for
Contractor or any subcontractor under Worker's' or Workmen's
Compensation Acts, disability benefit acts, or other employee
benefit acts.
The indemnification and defense obligations stated above
will not apply to any claims, actions, liabilities, damages,
losses, cost or expenses caused directly and solely by the
affirmative gross negligence or intentional tortious act of
the Indemnities."
12. Contractor's Insurance. Tenant will cause Contractor (and,
except as provided below, all of Contractor's subcontractors ) to
procure and maintain in effect during the entire period of construction
of Tenant's Work the following insurance:
(a) Worker's compensation insurance with statutory benefits
and limits which fully comply with all state and federal
requirements;
(b) Employer's liability insurance with limits of not
less than $200,000.00;
(c) Automobile liability insurance including owned,
non-owned, leased and hired car coverage, naming Landlord as
an additional insured, providing primary (and not
contributing) coverage, and containing cross-liability and
severability of interest clauses; limits of liability will be
as follows: if the total amount of Contractor's contract for
the performance of Tenant's Work is $150,000.00 or less,
coverage will be in an amount of not less than $1,000,000.00
combined single limit per occurrence; if the total amount of
Contractor's contract is over $150,000.00, coverage will be
in an amount of not less than $2,000,000.00 combined single
limit per occurrence;
(d) Comprehensive general liability insurance including
personal injury, owner's and contractor's protective
liability, explosion, collapse and underground damage
liability endorsement (commonly called X, C and U hazard),
products, completed operations, blanket contractual and broad
form property damage coverage, naming Landlord as an
additional insured, providing primary (and not contributing)
coverage, and containing cross-liability and severability of
interest clauses; limits of liability will be as follows: if
the total amount of Contractor's contract for the performance
of Tenant's Work is $150,000.00 or less, coverage will be in
an amount of not less than $2,000,000.00 combined single
limit per occurrence; if the total amount of Contractor's
contract is over $150,000.00, coverage will be in an amount
of not less than $5,000,000.00 combined single limit per
occurrence; and
(e) "All risk" builders risk property insurance for the full
replacement cost of Tenant's Work on a completed value basis,
naming Landlord as a loss payee, as its interest may appear,
providing primary (and not contributing) coverage, and
including a waiver of all rights of subrogation against
Landlord.
All of the above insurance policies must be placed with insurance
companies reasonably acceptable to Landlord and must be endorsed to
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<PAGE> 53
require thirty (30) days' written notice to Landlord prior to any
cancellation or material change in coverage. Prior to the commencement
of any Tenant's Work, Tenant will cause Contractor to deliver to
Landlord original certificates of insurance evidencing the insurance
coverage required above. Tenant will also cause Contractor to obtain
certificates or evidence of similar insurance from each of Contractor's
subcontractors before their work commences and deliver such
certificates or evidence to Landlord. Each subcontractor must be
covered by insurance of the same character and in the same amount as
specified for Contractor above, except that (a) a subcontractor's
comprehensive general liability insurance will have combined single
limits not less than $2,000,000.00 per occurrence, if the total amount
of Contractor's contract for the performance of Tenant's Work is
$150,000.00 or less, and not less than $5,000,000.00 per occurrence, if
the total amount of Contractor's contract is over $150,000.00; (b) so
long as Contractor's builders risk policy covers all of Tenant's Work,
no subcontractor will be required to maintain builders risk property
insurance. Contractor and Landlord may agree to lesser limits in
writing because of the nature of the particular subcontract work.
13. Additional Requirements Concerning Tenant's Work. The
following additional requirements will apply to Tenant's Work:
(a) All of Tenant's Work will be: (1) of a quality at least
equal to Building standard; (2) completed only according to
the Construction Documents approved by Landlord; (3)
conducted in a manner so as to maintain harmonious labor
relations and not to interfere with or delay any other work
or activities being carried on by Landlord or Landlord's
contractors or other tenants; (4) designed, performed and
completed in substantial compliance with all applicable
standards and regulations established by Landlord and
provided to Tenant in advance of the commencement of
construction of Tenant's Work as well as all safety, fire,
plumbing and electrical and other codes and governmental and
insurance requirements; (5) completed only by the Contractor
approved by Landlord; (6) coordinated by the approved
Contractor so as to insure timely completion; and (7)
performed and conducted in such a manner so as not to alter
the structure or systems of the Building.
(b) Under no circumstances will Tenant, Contractor or any of
their authorized representatives ever alter or modify or in
any manner disturb any "Central" (as defined below) system or
installation of the Building, including, without limitation,
the Central plumbing system, Central electrical system,
Central heating, ventilating and air conditioning system,
Central fire protection and fire alert system, Central
Building maintenance systems, Central structural system,
elevators and anything located within the Central core of the
Building. Only with Landlord's express written permission
will Tenant, Contractor or their authorized representatives
alter or modify or in any manner disturb any "Branch" (as
defined below) of any Central system or installation of the
Building which serves or is located within the Premises.
"Central" means that portion of any Building system or
component which is within the core of the Building system or
component which is within the core of the Building or common
to or serves or exists for the benefit of other tenants in
the Building, and "Branch" means that portion of any Building
system or component which serves to connect or extend Central
systems to the Premises. Any and all interfacing with, or
tie-ins to, any Central Building systems or Branches will be
scheduled with Landlord not later than five (5) days prior to
the commencement of any such work. Any such interfacing with,
or tie-ins to, any such Building systems, and any checks of
such interfacing or tie-ins, will be performed only after the
same have been scheduled with, and approved by, Landlord.
(c) Contractor may submit to Landlord written request for use
of any Building standard materials which have been prestocked
by Landlord. Any such request will indicate the quantity and
description of the prestocked materials needed. Contractor
will be responsible for the relocation and allocation of any
such materials to the Premises under the supervision of, and
only with the consent of, Landlord's Representative or
contractor. Contractor will be solely and exclusively
responsible for signing for and verifying any such prestocked
materials so used. Landlord will deduct from the amount of
the Allowance described in Paragraph 17 below the value of
any prestocked materials so requested by Contractor from
Landlord. The value of any such prestocked materials will be
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<PAGE> 54
determined by the quantities required in accordance with
generally accepted costs in the metropolitan area in which
the Building is located.
(d) All construction personnel engaged in the performance of
Tenant's Work must use the Building's freight elevator and
not the passenger elevators for access to the Premises. All
deliveries of materials for use in connection with the
construction of Tenant's Work requiring the freight elevator
of the Building must be scheduled in advance with landlord.
In addition, any of Tenant's Work which is to be performed
during hours other than Business Hours must be scheduled in
advance with Landlord.
(e) Tenant agrees that if Contractor fails to leave all
Common Areas in a neat, clean, orderly and safe condition at
the end of each day during construction of Tenant's Work,
Landlord will have the right to immediately take such action
as Landlord deems appropriate to render the Common Areas
neat, clean, orderly and safe and Tenant will, upon
Landlord's written demand, reimburse Landlord for all
Landlord's costs of taking such action.
14. Landlord's Services. During construction of Tenant's Work,
Landlord will provide the following services related to such
construction, the cost of which will be paid by Landlord: all
electricity and other utilities; and Tenant shall pay as a part of
Tenant's Costs for any other services requested by Tenant or Contractor
that Landlord agrees to provide (such as engineering, maintenance or
housekeeping services). Tenant shall supply, at its sole cost and
expense all refuse removal (including dumpsters) and shall place and
use same pursuant to Landlord's rules and regulations. All Tenant's
Costs that are payable to Landlord will be paid by Tenant within ten
(10) days after the date of Landlord's invoice.
15. Inspection; Stop Work; Non-complying Work. Landlord reserves
the right to inspect Tenant's Work in the Premises at all reasonable
times, provided that such inspection(s) will in no way make Landlord
responsible for any of Tenant's Work and will not constitute a
representation or warranty by Landlord as to the adequacy or
sufficiency of Tenant's Work. Landlord reserves the right to stop any
and all work performed (or to be performed) if Landlord considers any
such work, or its performance, to be dangerous or creating a nuisance,
or otherwise injurious to Tenant, Landlord or any other Building
tenants. If any inspection by Landlord reveals any items of Tenant's
Work that does not comply with Tenant's obligations under this Work
Letter, Landlord may so notify Tenant and require that the item be
corrected to so comply. Within ten (10) days after the date of any such
notice from Landlord, Tenant will begin correction of any such
non-complying item and will then promptly and diligently pursue such
correction to completion. If any such item is not so corrected,
Landlord may enter the Premises at any time and correct the item at
Tenant's expense (to be paid by Tenant promptly upon demand).
16. Mechanics' Liens. In the conduct of Tenant's Work, Tenant will
take all action necessary to ensure that no mechanic's or other liens
attach to the Premises or Building. Without limitation, Tenant will
post notices, with form and content and in the manner as specified by
any applicable law, notifying all persons or entities which may supply
labor or materials in connection with Tenant's Work that Landlord's
interest in the Premises and Building will not be subject to any lien
for the same. If any such lien should be filed, the provisions of
Article 10 of the Lease will apply.
17. Landlord's Allowances Landlord agrees to pay Tenant the
"Allowances" as defined in Paragraph 1(j) of this Exhibit B above, to
be applied to the cost of designing and performing Tenant's Work, in
progress payments after the commencement of the Tenant Finish Period.
Such progress payments will be made not later than thirty (30) days
after receipt by Landlord from Tenant of copies of Tenant's invoices
from Contractor (and, where applicable, copies of Contractor's invoices
from its subcontractors or suppliers) together with a certificate from
Tenant's Architect (or other evidence satisfactory to Landlord)
indicating that the work to which such invoices relate has been
substantially completed and/or the materials to which such invoices
relate have been installed in, or delivered to, the Premises. Such
progress payments will be made payable to Tenant and Contractor, and
will be for the amount of the submitted invoices, less a ten percent
(10%) retainage. As a condition precedent to Landlord's issuing any
such progress payment subsequent to the first such progress payment,
Tenant will deliver to Landlord original lien waivers from Contractor
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<PAGE> 55
and any applicable subcontractor or supplier indicating the claims for
mechanics' or materialmen's liens with respect to the labor and
materials reflected in the invoiced submitted for the immediately
preceding progress payment have been waived. A further condition
precedent to Landlord's issuing the last such payment for the amount of
the retainage will be that Landlord has received from Tenant (either
prior to or simultaneously with the issuance of such final payment) the
following: (1) written notice from Contractor and Tenant`s Architect
(or other evidence satisfactory or Landlord) that Tenant's Work has
been completed (including completion of any punch list items); (2)
final and unconditional original lien waivers from Contractor and all
subcontractors, suppliers, materialmen and other parties who performed
labor at, or supplied materials to, the Premises in connection with
Tenant's Work; and (3) a copy of the certificate of occupancy for the
Premises issued by the appropriate governmental authorities. Landlord
will have no obligation to make any such progress payment at any time
that a Default exists under the Lease and the total of all such
progress payments will in no event exceed the amount of each Allowance.
18. General. Failure by either party to pay any amounts due
under this Work Letter will have the same effect as failure to pay
Rent under the Lease as to Tenant and a Landlord's default under the
Lease as to Landlord, and such failure or either parties failure to
perform any of its other obligations under this Work Letter will
constitute a Default under Section 20.1 of the Lease as to Tenant
and Section 21 of the Lease as to Landlord, entitling the other party
to all of its remedies under the Lease as well as all remedies
otherwise available to the other party.
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C-1
120 SOUTH RIVERSIDE PLAZA BUILDING
OCCUPANCY ESTOPPEL CERTIFICATE
THIS OCCUPANCY ESTOPPEL CERTIFICATE ("Certificate") is given by CDW
COMPUTER CENTERS, INC. ("Tenant") to SOLANO ASSOCIATES, a California limited
partnership, d/b/a TrizecHahn 120 South Riverside Management L.P. ("Landlord"),
with respect to that certain Lease Agreement dated ____________________, 1999
("Lease"), under which Tenant has leased from Landlord certain premises known as
Suites 800 and 900 ("Premises") in the 120 South Riverside Plaza Building, 120
South Riverside, Chicago, Illinois 60606 ("Building").
In consideration of the mutual covenants and agreements stated in the
Lease, and intending that this Certificate may be relied upon by Landlord and
any prospective purchaser or present or prospective mortgagee, deed of trust
beneficiary or ground lessor of all or a portion of the Building, Tenant
certifies as follows:
1. Except for those terms expressly defined in this Certificate, all
initially capitalized terms will have the meanings stated for such terms in the
Lease.
2. Landlord first delivered possession of the Premises to Tenant (either
for occupancy by Tenant or for the commencement of construction by Tenant) on
_______________, 19 ____.
3. Tenant moved into the Premises (or otherwise first occupied the
Premises for Tenant's business purposes) on ____________________, 19 ____.
4. The Commencement Date occurred on _______________, 19___, and the
Expiration Date will occur on ____________________, 19 ____.
5. Tenant's obligation to make monthly payments of Base Rent under the
Lease began (or will begin) on __________________, 19 ____.
6. Tenant's obligation to make monthly estimated payments of Additional
Rent under the Lease began (or will begin) on _________________, 19 ___.
7. Tenant has deposited a Security Deposit in the amount of $________
with Landlord.
Executed this _______ day of ______________, 19 ___.
TENANT:
CDW COMPUTER CENTERS, INC.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
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D-3
EXHIBIT D
120 SOUTH RIVERSIDE PLAZA BUILDING
RULES AND REGULATIONS
1. Rights of Entry. Tenant will have the right to enter the Premises at
any time, but outside of Business Hours Tenant will be required to furnish
proper and verifiable identification. Landlord will have the right to enter the
Premises at all reasonable hours to perform janitorial services or clean
windows; and also at any time during the last six (6) months of the Term, with
reasonable prior notice to Tenant, to show the Premises to prospective tenants.
2. Right of Exclusion. Landlord reserves the right to require each
person entering the Building to sign a register and either (i) to present a
Building pass, or (ii) to be announced to Tenant such person is visiting and to
be accepted as a visitor by Tenant or to be otherwise properly identified.
Landlord may exclude from the Building any person who cannot comply with such
requirement. Landlord also reserves the right to require any person leaving the
Building to sign a register or to surrender any special entry pass given to such
person. If Landlord elects to exercise the rights reserved above, Landlord will
furnish a Building pass to all persons designated by Tenant in writing. Finally,
Landlord reserves the right to exclude or expel from the Building any person
who, in Landlord's judgment, is intoxicated or under the influence of alcohol or
drugs.
3. Obstruction. Tenant will not obstruct or place anything in or on the
sidewalks or driveways outside the Building, or in the lobbies, corridors,
stairwells or other Common Areas. Landlord may remove, at Tenant's expense, any
such obstruction or thing without notice or obligation to Tenant.
4. Refuse. Tenant will place all refuse in the Premises in proper
receptacles provided and paid for by Tenant, or in receptacles provided by
Landlord for the Building, and will not place any litter or refuse on or in the
sidewalks or driveways outside the Building, or the Common Areas, lobbies,
corridors, stairwells, ducts or shafts of the Building.
5. Public Safety. Tenant will not throw anything out of doors, windows
or skylights, down passageways or over walls. Tenant will not use any fire exits
or stairways in the Building except in case of emergency.
6. Keys; Locks. Landlord may from time to time install and change locks
on entrances to the Building, Common Areas and the Premises, and will provide
Tenant a reasonable number of keys to meet Tenant's requirements. If Tenant
desires additional keys, they will be furnished by Landlord and Tenant will pay
a reasonable charge for them.. Tenant will not add or change existing locks on
any door in or to the Premises without Landlord's prior written consent. If with
Landlord's consent, Tenant installs lock(s) incompatible with the Building
master locking system
(a)Landlord, without abatement of Rent, will be relieved of any
obligation under the Lease to provide any service that requires access
to the affected areas:
(b)Tenant will indemnify Landlord against any expense as a result
of forced entry to the affected areas which may be required in an
emergency; and
(c)Tenant will, at the end of the Term and at Landlord's request,
remove such lock(s) at Tenant's expense.
(d)At the end of the Term, Tenant will promptly return to
Landlord all keys for the Building and Premises which are in Tenant's
possession.
7. Aesthetics. Tenant will not attach any awnings, signs, displays or
projections to the outside or inside walls or windows of the Building which are
visible from outside the Premises without Landlord's prior written approval,
which may be withheld in Landlord's sole discretion. Tenant will use only
Building Standard lighting in areas where such lighting is visible from outside
the Building.
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8. Window Treatment. If Tenant desires to attach or hang any curtains,
blinds, shades or screens to or in any window or door of the Premises, Tenant
must obtain Landlord's prior written approval. Tenant will not coat or sunscreen
the interior or exterior of any windows without Landlord's express written
consent. Tenant will not place any objects on the windowsills that cause, in
Landlord's reasonable opinion, an aesthetically unacceptable appearance.
9. Intentionally deleted.
10. Building Control. Landlord reserves the right to control and operate
the Common Areas as well as facilities furnished for the common use of tenants
in such manner as Landlord deems best for the benefit of tenants generally.
Landlord reserves the right to prevent access to the Building during an
emergency by closing the doors or otherwise, for the safety of tenants and
protection of the Building and property in the Building.
11. Engineering Consent. All plumbing, electrical and heating,
ventilating and air conditioning ("HVAC") work for and in the Premises requires
Landlord's prior written consent to maintain the integrity of the Building's
electrical, plumbing and HVAC systems.
12. HVAC Operation. Tenant will not place objects or other obstructions
so as to interfere with the HVAC convectors or diffusers and will not permit any
other interference with the HVAC system. Whenever the HVAC system is operating,
Tenant will cause the shades, blinds or other window coverings in the Premises
to be drawn as reasonably required by the position of the sun.
13. Plumbing. Tenant will only use plumbing fixtures for the purpose for
which they are constructed. Tenant will pay for all damages resulting from any
misuse by Tenant of the plumbing fixtures.
14. Equipment Location. Landlord reserves the right to specify where
Tenant's heavy business machines, mechanical equipment and heavy objects will be
placed in the Premises in order to best absorb and prevent vibration, noise and
annoyance to other tenants, and to prevent damage to the Building. Tenant will
pay the cost of any required professional engineering certification or
assistance.
15. Bicycles; Animals. Tenant will not bring into, or keep about, the
Premises any bicycles, vehicles, birds, animals (except seeing eye dogs) or
organic Christmas decor of any kind. Bicycles and vehicles may only be parked in
areas designated for such purpose.
16. Intentionally deleted.
17. Proper Conduct. Tenant will conduct itself in a manner which is
consistent with the character of the Building and will ensure that Tenant's
conduct will not impair the comfort or convenience of other tenants in the
Building.
18. Elevators. Any use of the passenger elevators for purposes other
than normal passenger use (such as moving to or from the Building or delivering
freight), whether during or after Business Hours, is prohibited. Such use must
be handled by the freight elevator which shall be scheduled through the office
of the Building for any after hours use. Tenant will reimburse Landlord for any
extra costs incurred by Landlord in connection with any such non-passenger use
of the elevators.
19. Deliveries. Tenant will ensure that deliveries of materials and
supplies to the Premises are made through such entrances, elevators and
corridors and at such times as may from time to time be reasonably designated by
Landlord. Such deliveries may not be made through any of the main entrances to
the Building without Landlord's prior permission. Tenant will use or cause to be
used, in the Building, hand trucks or other conveyances equipped with rubber
tires and rubber side guards to prevent damage to the Building or property in
the Building. Tenant will promptly pay Landlord the cost of repairing any damage
to the Building caused by any person making deliveries to the Premises.
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20. Moving. Tenant will ensure that furniture and equipment and other
bulky matter being moved to or from the Premises are moved through such
entrances, elevators and corridors and at such times as may from time to time be
reasonably designated by Landlord, and by movers or a moving company reasonably
approved by Landlord. Tenant will promptly pay Landlord the cost of repairing
any damage to the Building caused by any person moving any such furniture,
equipment or matter to or from the Premises.
21. Solicitations. Canvassing, soliciting and peddling in the Building
are prohibited and Tenant will cooperate in preventing the same. Landlord
acknowledges that Tenant's business involves phone solicitation and that it does
not violate the Building's Rules and Regulations.
22. Food. Only persons approved from time to time by Landlord may
prepare, solicit orders for, sell, serve or distribute food in or around the
Building. Except as may be specified in the Lease or on construction drawings
for the Premises approved by Landlord, and except for microwave cooking, Tenant
will not use the Premises for preparing or dispensing food, or soliciting of
orders for sale, serving or distribution of food. Tenant shall be allowed to
utilize outside vendors to provide food to its employees at the Tenant's cost,
including but not limited to Tuesday and Thursday morning pastries, fruit and
vegetables, and periodic catered lunches. Vending machines in Tenant's Premises
are hereby permitted by Landlord during the Term and any extension thereof.
23. Combustibles. Tenant shall not use or keep in the Premises or any
portion of the Building any kerosene, gasoline or flammable or combustible fluid
or material, or without Landlord's prior written approval, use any method of
heating or air-conditioning other than that supplied by Landlord.
24. Work Orders. Tenant requirements will be attended to only upon
application to Landlord. Building employees shall not be requested to perform,
and shall not be requested by any tenant to perform, any work outside of regular
duties, unless under specific instructions from Landlord.
25. Tenant's Contractors. Tenant may hire contractors or other personnel
("Tenant's Contractors") to perform services in the Premises for Tenant, subject
to Landlord's reasonable approval and permission. The use of Tenant's
Contractors will not interfere with the functioning or operation of the
Building, or with any other tenant or occupant of the Building. If at any time
the use of Tenant's Contractors causes or threatens to cause disharmony or
interference with the functioning or operation of the Building or with any other
tenant or occupant of the Building, including labor disharmony, Landlord will
have the right to immediately withdraw the permission to use such Tenant
Contractor.
26. Employees, Agents and Invitees. In these Rules and Regulations,
"Tenant" includes Tenant's employees, agents, invitees, licensees and others
permitted by Tenant to access, use or occupy the Premises.
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E-7
EXHIBIT E
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of this ___ day of ___________, 1999 by and
among THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York
corporation having an office and place of business at 1290 Avenue of the
Americas, New York, New York ("Lender"), SOLANO ASSOCIATES, a California limited
partnership d/b/a TrizecHahn 120 S. Riverside Management L.P. ("Landlord"), and
CDW COMPUTER CENTERS, INC., having an office at 200 North Milwaukee Avenue,
Vernon Hills, IL 60061, ("Tenant").
WITNESSETH
WHEREAS, Tenant has entered into a certain lease (the "Lease") dated
______________, 1999 with Landlord covering premises consisting of Suites 800
and 900 (the "Premises") within a certain building known as 120 South Riverside
Plaza, located in Chicago, IL (a true and correct conformed copy of said Lease
has been delivered to Lender by Landlord); and
WHEREAS, Lender has made a certain loan to Landlord, which loan is secured by
the mortgages (the "Mortgages") more particularly described in Exhibit A annexed
here to and affecting the premises known as 120 South Riverside Plaza , in the
City of Chicago, Illinois; and
WHEREAS, Lender has been requested by Tenant and by Landlord to enter
into a non-disturbance agreement with Tenant;
WHEREAS, Tenant has been requested by Lender and Landlord to enter into
this subordination, non-disturbance and attornment Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto mutually covenant and agree as
follows:
1. The Lease and any extensions, renewals, replacements or
modifications thereof, and all of the right, title and interest of Tenant
thereunder in and to the Premises are and shall be subject and subordinate to
the Mortgages and to all of the terms and conditions contained therein, and to
any renewals, modifications, replacements, consolidations and extensions
thereof.
2. Lender consents to the Lease and, in the event Lender comes into
possession of or acquires title to the Premises as a result of the foreclosure
or other enforcement of the Mortgages or the notes secured by the Mortgages, or
as a result of any other means, Lender agrees that, so long as Tenant is not
then in default hereunder or under the Lease and so long as Tenant is then in
possession of the Premises, Lender will recognize Tenant and will not disturb
Tenant in its possession of the Premises for any reason other than one which
would entitle Landlord to terminate the Lease under its terms or would cause,
without any further action by Landlord, the termination of the Lease or would
entitle Landlord to dispossess Tenant from the Premises.
3. Tenant agrees with Lender that if the interests of Landlord in the
Premises shall be transferred to and owned by Lender by reason of foreclosure or
other proceedings brought by it, or any other manner, or shall be conveyed
thereafter by Lender or shall be conveyed pursuant to a foreclosure sale of the
Premises, Tenant and Lender or its successors shall be bound to one another,
except as provided herein, under all of the terms, covenants and conditions of
the Lease for the balance of the term thereof remaining and any 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 Lender were the landlord under
the Lease, and Tenant does hereby attorn to Lender as its landlord, said
attornment to be effective and self-operative without the execution of any
further instruments on the part of any of the parties hereto immediately upon
Lender succeeding to the interest of Landlord in the Premises. Tenant agrees,
however, upon the election of and written demand by Lender within twenty (20)
days after Lender receives title to the Premises, to execute an instrument in
confirmation of the foregoing provisions, satisfactory to Lender and Tenant] in
which Tenant and Lender shall acknowledge such attornment and non-disturbance
agreement and shall set forth the terms and conditions of its tenancy.
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4. Tenant agrees with Lender that if Lender shall succeed to the
interest of Landlord under the Lease, Lender shall not be (a) liable for any
action or omission of any prior landlord under the Lease, or (b) subject to any
offsets or defenses which Tenant might have against any prior landlord, or (c)
bound by any rent or additional rent which Tenant might have paid for more than
the current month to any prior landlord, or (d) bound by any security deposit
which Tenant may have paid to any prior Landlord, unless such deposit is in an
escrow fund available to Lender, or (e) bound by an amendment or modification of
the Lease made without Lender's written consent, or (f) bound by any provision
in the Lease which obligates the landlord to erect or complete any building or
to perform any construction work or to make any improvements to the Premises or
to expand or rehabilitate any existing improvements or to restore any
improvements following any casualty or taking, or (g) bound by any notice of
termination given by Landlord to Tenant without Lender's written consent
thereto, or (h) personally liable under the Lease and Lender's liability under
the Lease shall be limited to the ownership interest of Lender in the Premises.
Tenant further agrees with Lender that Tenant will not voluntarily subordinate
the Lease to any lien or encumbrance without Lender's written consent.
5. In the event that Landlord shall default in the performance or
observance of any of the terms, conditions or agreements in the Lease, Tenant
shall give written notice thereof to Lender and Lender shall have the right (but
not the obligation) to cure such default. Tenant shall not take any action with
respect to such default under the Lease, including, without limitation, any
action in order to terminate, rescind or void the Lease or to withhold any
rental thereunder, for a period of 10 days after giving of such written notice
by Lender with respect to any such default capable of being cured by the payment
of money and for a period of 30 days after receipt of such written notice by
Lender with respect to any other such default (provided, that in the case of any
default which cannot be cured by the payment of money and) cannot with diligence
be cured within such 30 day period because of the nature of such default or
because Lender requires time to obtain possession of the Premises in order to
cure the default, if Lender shall proceed promptly to attempt to obtain
possession of the Premises, where possession is required, and to cure the same
and thereafter shall prosecute the curing of such default with diligence and
continuity, then the time within which such default may be cured shall be
extended for such period as may be necessary to complete the curing of the same
with diligence and continuity).
6. Landlord has agreed in the Mortgages that the rentals payable under
the Lease may be paid directly by Tenant to Lender upon the occurrence of a
default by Landlord under the Mortgages. Accordingly, after notice is given by
Lender to Tenant that the rentals under the Lease should be paid to Lender,
Tenant shall pay to Lender, or in accordance with the directions of Lender, all
rentals and other moneys due and to become due to Landlord under the Lease, or
amounts equal thereto. Landlord acknowledges that Tenant shall have no
responsibility to ascertain whether such demand by Lender is permitted under the
Mortgages, Landlord hereby waives any right, claim or demand it may now or
hereafter have against Tenant by reason of such payment to Lender, and any such
payment to Lender shall discharge the obligations of Tenant to make such payment
to Landlord.
7. Tenant declares, agrees and acknowledges that:
(a) Lender, in making disbursements pursuant to any
agreement relating to the Loan, is under no obligation or duty
to, nor has Lender represented that it will, see to the
application of such proceeds by the person or persons to whom
Lender disburses such proceeds, and any application or use of
such proceeds for purposes other than those provided for in such
agreement shall not defeat the subordination herein made in whole
or in part; and
(b) Subject to the terms and conditions hereof, it
intentionally and unconditionally waives, relinquishes and
subordinates the Lease and its leasehold interest thereunder in
favor of the lien or charge of the Mortgages, and that in
consideration of this waiver, relinquishment and subordination,
specific loans and advances are being and will be made by Lender
to Landlord and, as part and parcel thereof, specific monetary
and other obligations are being and will be entered into by
Landlord and Lender which would not be made or entered into but
for said reliance upon this waiver, relinquishment and
subordination.
8. This Agreement shall bind and inure to the benefit of the parties
hereto, their successors and assigns. As used herein the term "Tenant" shall
include Tenant, its successors, sublessees and assigns; the words "foreclosure"
and "foreclosure sale" as used herein shall be deemed to include the acquisition
of Landlord's estate in the Premises by voluntary deed (or assignment) in lieu
of foreclosure; and the word "Lender" shall include the Lender herein
specifically named and any of its successors, participants and assigns,
including anyone who shall have succeeded to Landlord's interest in the Premises
by, through or under, foreclosure of the Mortgage. Lender shall promptly give
notice to Tenant of anyone who shall have succeeded to Lender's interest under
the Mortgages hereunder.
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9. All notices, consents and other communications pursuant to the
provisions of this Agreement shall be in writing and shall be sent by registered
or certified mail, return receipt requested, or by a reputable commercial
overnight carrier that provides a receipt, such as Federal Express or Airborne,
and shall. be deemed given when postmarked and addressed as follows:
If to Lender: The Equitable Life Assurance Society of the United
States
1290 Avenue of the Americas
New York, New York 10104
Attn: Real Estate Legal Department
With a copy to: Lend Lease Real Estate Investments, Inc.
3424 Peachtree Road NE Suite 800
Atlanta, Georgia 30326
Attn: Mortgage Servicing
If to Tenant:
CDW Computer Centers, Inc.
200 North Milwaukee Ave.
Vernon Hills, IL 60061
Attn: Harry J. Harczak, Jr.
With a copy to:
Michael S. Tepper
Arnstein & Lehr
120 South Riverside Plaza, Suite 1200
Chicago, IL 60606
If to Landlord: Solano Associates
d/b/a TrizecHahn 120 South Riverside Management L.P.
120 South Riverside
Suite #310
Chicago, Illinois 60606
or to such other address as shall from time to time have been designated by
written notice by such party to the other parties as herein provided.
10. This Agreement shall be the whole and only agreement between the
parties hereto with regard to the subordination, non-disturbance and attornment
of the Lease and the leasehold interest of Tenant thereunder to the lien or
charge of the Mortgages in favor of Lender, and. shall supersede and control any
prior agreements as to such, or any subordination, including, but not limited
to, those provisions, if any, contained in the Lease, which provide for the
subordination of the Lease and the leasehold interest of Tenant thereunder to a
deed or deeds of trust or to a mortgage or mortgages to be thereafter executed,
and shall not be modified or amended and no provision herein shall be waived
except in writing by the party against whom enforcement of any such modification
or amendment is sought.
The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural. when the sense requires. In the event any one or more of the
provisions of this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
[Signature to immediately follow]
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IN WITNESS WHEREOF the parties hereto have placed their hands and seals
the day and year first above written.
Signed and acknowledged in TENANT:
the presence of us: CDW COMPUTER CENTERS, INC.
_______________________ By:______________________________
Typed Name:
Title:
LANDLORD:
SOLANO ASSOCIATES, a California
limited partnership
d/b/a TrizecHahn 120 S. Riverside
Management L.P.
By: TrizecHahn Centers Inc., a
California corporation
as sole general partner
_______________________ By:______________________________
Typed Name:
Title:
LENDER:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
_______________________ By:______________________________
Typed Name:
Title:
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STATE OF _______________________)
) -SS-
COUNTY OF____________ _________)
This Subordination, Non-disturbance and Attornment Agreement was
acknowledged before me this _______ day of ____________,19___ by
________________________________________
as_______________________________of The
Equitable Life Assurance Society of the United States.
WITNESS my hand and official seal.
-------------------------------
Notary Public
My commission expires: _________________________________.
STATE OF ILLINOIS )
) -SS-
COUNTY OF COOK )
This Subordination, Non-disturbance and Attornment Agreement was
acknowledged before me this ___________day of _______________,
199___ by Stephen E. Budorick as Senior Vice President of
TrizecHahn Centers, Inc. as sole general partner of SOLANO
ASSOCIATES.
WITNESS my hand and official seal.
-------------------------------
Notary Public
My commission expires: ________________________________.
STATE OF _________ )
) -SS-
COUNTY OF _________ )
This Subordination, Non-disturbance and Attornment Agreement was
acknowledged before me this ___________day of _______________,
199___ by _________________________as
_____________________________ of ____________________.
WITNESS my hand and official seal.
-------------------------------
Notary Public
My commission expires: ________________________________.
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EXHIBIT A
LAND DESCRIPTION
Two certain parcels of land in Cook County, Illinois, bounded and described as
follows:
Parcel 1:
A part of Lot 2 in Railroad Companies Resubdivision of Blocks 62 to 76 both
inclusive, 78, parts of 61 and 77 and certain vacated streets and alleys in
School Section Addition to Chicago, a Subdivision of Section 16, Township 39
North, Range 14 East of the Third Principal Meridian, according to the plat of
said Resubdivision recorded in the Recorder's Office of Cook County, Illinois on
March 29, 1924 in Book 188 of Plats at Page 16 as Document Number 8339751, said
parts of Lots 1 and 2 which is bounded and described as follows: Beginning at
the northeast corner of said Lot 1 and running thence southwardly along the
easterly line of said Lot 1 a distance of 199.495 feet to an angle point in said
easterly lot line; thence continuing southwardly along said easterly line a
distance of 199.23 feet to its intersection with the north line of the south 33
feet of said Lot 1; thence west along the north line of the south 33 feet of
said Lot 1 and of the west 20 feet of said Lot 2; thence north along said east
line of the west 20 feet of said Lot 2 a distance of 398.19 feet to its
intersection with the north line of said Lot 2, and thence east along the north
line of said Lot 2 and of said Lot 1 a distance of 239 feet to the Point of
Beginning, excepting from the parcel of land above described, the respective
portions thereof lying vertically below the following horizontal planes:
(A) a horizontal plane 18.5 feet above Chicago City Datum, the perimeter of
which is described as follows: Beginning at the northwest corner of said parcel
and running thence easterly along the north line of said parcel to the
intersection of said north line and a line (the "Limiting Plane Line") 168 feet
east of and parallel to the west line of said parcel; thence southwardly long
the Limiting Plane Line to the intersection of said line and the south line of
said parcel; thence westerly along the south line of said parcel to the
southwest corner thereof; thence northerly along the west line of said parcel to
the northwest corner of said parcel, which is the point of beginning of said
horizontal plane; and
(B) a horizontal plane 21.0 feet above Chicago City Datum over that portion of
said parcel which is not vertically below the horizontal plane described in
clause (A) above.
Parcel 2:
All land and spaces below the horizontal planes described in Parcel 1 above
which are occupied by the columns, caissons, foundations, gussets and all other
supporting structures, for the building and improvements constructed in Parcel 1
and by all other improvements, plenums, mechanical and electrical equipment,
pipes, wires, conduits, utilities and other structures located below said
horizontal planes in connection with said building and improvements, including,
but not limited to the space occupied by the improvements and structures shown
on the Plat of Survey prepared and certified by Chicago Guarantee Survey Company
dated July 8, 1966 (consisting of three sheets identified as Order Nos. 6311001
K and 6311001-S and 6311001 N. respectively), which was recorded as part of
document 19881999.
Parcel 3:
An easement appurtenant to Parcels 1 and 2 in, over and across the west 20 feet
of Lot 2 in said Railroad Companies' Resubdivision to construct, use, maintain,
repair, replace or renew from time to time such columns, gussets trusses,
horizontal structural members, caissons, foundations and other supports as may
be reasonably necessary or appropriate to maintain and support the plaza and
other improvements contemplated by the Lease, including, without limitation, the
columns (designated `DD') and the caissons, foundations and related structures
shown on the Plat of Survey referred to in Parcel 2 above.
Parcel 4:
A nonexclusive appurtenant easement in favor of the leasehold interest in
Parcels 1 and 2 as created by Deed of Easement dated January 16, 1990 and
recorded January 31, 1990 as Document 90047309 made by LaSalle National Bank, as
Trustee under Trust Agreement dated November 17, 1983 and known as Trust Number
107292 to Gateway IV Joint Venture, an Illinois general partnership, LaSalle
National Bank, as Trustee under Trust Agreement dated December 1, 1983 and known
as Trust Number 107361, LaSalle National Bank, as Trustee under Trust Agreement
dated December 1, 1983 and known as Trust Number 107362, and LaSalle National
Bank, as Trustee under Trust Agreement dated December 1, 1983 and known as Trust
Number 107363, for the use of 1,100 public parking spaces in the garage, as
defined therein, with rights of ingress and egress and an easement for the
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purpose of construction of such repairs or restoration for the period required
to complete such repairs or restoration, on over, and across the following
described legal description:
Lots 5, 6, 7, and 8 (except from said lots that part falling in alley) in Block
49 in School Section Addition to Chicago in Section 16, Township 39 North, Range
14 East of the Third Principal Meridian, in Cook County, Illinois.
As amended by First Amendment to Deed of Easement dated February 9, 1990, and
recorded October 9, 1990, as Document Number 904914486.
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Exhibit F
120 South Riverside
Janitorial Specifications
<TABLE>
<CAPTION>
<S> <C>
1. OFFICE AREAS
Service Descriptions Frequency
-------------------- ---------
Vacuum clean all carpeted areas, edge vacuum as necessary. Nightly
Spot clean minor stains on carpet, as necessary. Nightly
Gather all waste paper and remove for disposal. Replace can Nightly
liners, as necessary.
Empty and damp wipe all ashtrays. Nightly
Sweep and dust mop all hard surface floors. Nightly
Spot clean or damp mop all stains on tile floors, as Nightly
required, break areas to be mopped nightly.
Dust desks, chairs, tables, file cabinets, counter Nightly
tops, telephones, and other office furniture
and wall mounted objects; tenant will remove property
from areas to be cleaned.
Dust all ledges and other flat surfaces within reach; Nightly
tenant will remove property from areas to be
cleaned.
Remove fingerprints from doors and partition glass. Nightly
Spot clean coffee stains, etc. from desktops. Nightly
Wash all drinking fountains. Nightly
Properly arrange furniture in offices; do not force Nightly
chairs under desks.
Close all drapes / blinds as directed. Nightly
Turn off all lights, unless directed otherwise. Nightly
Secure all doors, unless directed otherwise. Nightly
Clean all entry and clear store glass. Nightly
Remove dust and cobwebs as necessary. Nightly
Remove fingerprints from woodwork, walls and partitions. Weekly
Polish or clean door kick plates, door levers / Weekly
knobs, and thresholds.
Clean disinfect all telephones, unless directed otherwise. Weekly
Spot clean all corridor walls. Weekly
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<PAGE> 68
Dust blinds. Weekly
Dust door jams. Weekly
Vacuum or brush clean upholstered furniture. Monthly
Damp wipe all wood and vinyl base. Monthly
Dust all high partitions and ledges. Monthly
Wash and clean all doors. Monthly
Clean and refinish all resilient flooring with a Monthly
slip-retardant floor finish.
Lift and clean under all plastic floor pads. Monthly
Dust or vacuum all return air vents. Quarterly
Bonnet clean all heavy traffic carpeted areas. Quarterly
Retreat parquet flooring, per manufacturer's specifications. Quarterly
Damp wipe all light fixtures. Annually
2.RESTROOMS AND LOUNGES
Service Descriptions Frequency
-------------------- ---------
Clean and sanitize all urinals, commodes, and wash Nightly
basins to include chrome fittings and all
bright work.
Clean mirrors and frames. Nightly
Wet mop floors. Nightly
Dust ledges and partitions. Nightly
Spot clean walls, doors, and partitions. Nightly
Fill all dispensers from building stock. Nightly
Empty and sanitize all feminine napkin disposal units. Nightly
Empty trash from containers, clean exterior of containers. Nightly
Spot wax traffic paths in lounges. Weekly
Clean and polish all door kick plates and thresholds. Weekly
Wash interiors of trash containers. Weekly
Thoroughly wash all walls, partitions, and tile baseboards. Weekly
Dust or wash all air diffusers and air vents. Weekly
Thoroughly scrub and refinish all resilient floors Monthly
with a slip-retardant floor finish (lounges
only).
F-2
<PAGE> 69
Dust all door jams. Monthly
Thoroughly machine scrub floors. Quarterly
Damp wipe all fixtures. Annually
3. LOBBIES AND PUBLIC CORRIDORS
Service Descriptions Frequency
-------------------- ---------
Public telephones shall be cleaned. Nightly
Carpet cleaning extraction. Annually
Stairwells - spot clean. Nightly
Stairwells - dust. Monthly
Stairwells - damp wiped. Monthly
Freight area - hard surface floors shall be dust
mopped and damp Nightly mopped.
Freight area - hard surface floors shall be buffed. Weekly
Freight area - hard surface floors shall be machine scrubbed and Once every
refinished. month
Freight area - hard surface floors shall be stripped Twice per
andrefinished. year
Empty and damp wipe ash trays Nightly
Sweep and / or dust mop all tile floors; spot clean all stains. Nightly
Vacuum clean all carpeted areas; spot clean minor stains. Nightly
Wash all drinking fountains. Nightly
Remove fingerprints from doors, walls, etc. Nightly
Mop main lobby nightly with stone cleaner provided by EOP. Nightly
Clean all entry glass and damp wipe frames. Nightly
Dust all tenant signage, directories, wall hangings, Nightly
pictures, etc.
Polish elevator cab stainless steel, using proper Nightly
chemicals to prevent build-up.
Clean elevator completely, including thresholds. Nightly
Damp wipe all plant containers. Nightly
Spot wash all lobby walls and doors. Weekly
Polish or clean all door kick plates and thresholds. Weekly
F-3
<PAGE> 70
Dust all doorjambs. Weekly
Remove and thoroughly sweep under recessed entrance
walk-of mats.
Thoroughly dust and / or vacuum all ceiling HVAC Monthly
diffusers and return air vents.
Bonnet clean carpet in elevator lobby and main floor corridors. Monthly
Thoroughly wash and treat all vinyl baseboards with Quarterly
silicone restorer.
Damp wipe all light fixtures. Annually
4. PLAZA
Sweep and pick up garbage. Daily
Empty waste receptacles and ash urns. Daily
</TABLE>
F-4
<PAGE> 71
EXHIBIT G
TENANT'S TRADE FIXTURES
TO BE REMOVED
THE FOLLOWING ARE CATEGORIES OF TRADE FIXTURE ISSUES THAT SHALL BE REMOVED BY
TENANT, AS TENANT'S PROPERTY, AT THE CONCLUSION OF THE LEASE TERM. BELOW EACH
GROUP ARE SOME EXAMPLES OF SPECIFIC ITEMS THAT MAY BE INCLUDED IN THE GROUP. THE
GROUP IS NOT LIMITED TO THE EXAMPLE ISSUES LISTED (A,B,C). EACH GROUP MAY
INCLUDE ADDITIONAL SIMILAR ITEMS, HOWEVER TENANT MAY NOT REMOVE ITEMS THAT
BECOME AFFIXED TO THE PREMISES.
1). TELEPHONE / COMPUTER SYSTEMS:
A) SWITCH
B) PATCH PANELS
C) UPS SYSTEM
2). FREESTANDING CUSTOM FURNITURE / MILLWORK:
A) RECEPTION DESK
B) CONFERNECE TABLES
C) APPLIANCES
D) PREFABRICATED COUNTER AND STORAGE UNITS FOR DISTRIBUTION AREAS.
3). FREESTANDING MANUFACTURED FURNITURE AND EQUIPMENT:
A) DESKS, CHAIRS, FILES, COUNTERS, WORKSTATIONS
B) COMPUTERS, PRINTERS, COPIERS
4). ARTWORK:
A) PAINTINGS
B) GRAPHICS, MURALS
C) CUSTOM RUGS, UNATTACHED
5). PLANTINGS
6). SECURITY SYSTEMS:
A) CARDS, READERS
B) SECURITY SYSTEM DRIVERS
C) CAMERAS
7). INTERIOR SIGNAGE
8). PAGING SYSTEM
G-1
<PAGE> 72
EXHIBIT H
EXISTING TENANT RIGHTS
<TABLE>
<CAPTION>
<S> <C> <C>
4th Floor
Roberts & Schaefer Company Right of First Offer Suites 422, 432, 454, 460 and 464
Roberts & Schaefer Company Expansion Suite 470
Allstate Insurance Company Right of First Offer Any portion of Floor
Roberts & Schaefer Company Renewal Option
Soros Associates, Inc. Renewal Option
Equitable Life Assurance Society Renewal Option
10th Floor
Arnstein & Lehr Right of First Offer Any portion of Floor
Illinois Criminal Justice Area identified in Exhibit 1 of Lease
14th Floor
Arnstein & Lehr Expansion (multiple rights) Suites 1430, 1410, 1420
Fluor Daniel, Inc. Right of First Offer Any unencumbered space
Scott Wetzel Services, Inc. Right of First Offer 1,310 rsf
Arnstein & Lehr Right of First Offer Any portion of floor
</TABLE>
H-1
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Form 10-Q
dated September 30, 1999 and is qualified in its entirety by reference to such
financial statements
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollar
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<EXCHANGE-RATE> 1
<CASH> 16,196
<SECURITIES> 76,562
<RECEIVABLES> 242,700
<ALLOWANCES> 4,300
<INVENTORY> 87,142
<CURRENT-ASSETS> 435,209
<PP&E> 38,509
<DEPRECIATION> 13,764
<TOTAL-ASSETS> 480,843
<CURRENT-LIABILITIES> 128,378
<BONDS> 0
0
0
<COMMON> 217
<OTHER-SE> 352,248
<TOTAL-LIABILITY-AND-EQUITY> 480,843
<SALES> 683,012
<TOTAL-REVENUES> 683,012
<CGS> 597,398
<TOTAL-COSTS> 597,398
<OTHER-EXPENSES> 43,523
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 43,358
<INCOME-TAX> 17,170
<INCOME-CONTINUING> 26,188
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 26,188
<EPS-BASIC> 0.61
<EPS-DILUTED> 0.59
</TABLE>
