CDW COMPUTER CENTERS, INC.
SECOND LEASE AMENDMENT
THIS SECOND LEASE AMENDMENT is made as of the 15th day of April, 2001
by and between ORLEANS ILLINOIS VENTURE, an Illinois Limited Partnership, by IJM
Management Limited Partnership an Illinois Limited Partnership (hereinafter
referred to as "Landlord"), and CDW COMPUTER CENTERS, INC., an Illinois
corporation (hereinafter referred to as "Tenant").
WITNESSETH:
A. Landlord and Tenant entered into a lease date January 25, 1995, as
amended by Lease Amendment dated June 15, 1996 (hereinafter referred to as the
"First Amendment") whereby Landlord leased to Tenant certain premises
(hereinafter referred to as the "Premises") in the building located at 317 West
Grand Avenue, Chicago Illinois, for a term (hereinafter referred to as the
"Term") expiring February 28, 1999 (the aforesaid lease as so amended is
hereinafter referred to as the "Lease").
B. Tenant desires to extend the Term and Landlord is willing to
extend the term as aforesaid on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein and in
the Lease contained, and in consideration of the forgoing recitals which are
incorporated herein by this reference, is hereby agreed as follows:
1. Extension of Term. The expiration of the Term is hereby
extended from June 30, 2001 to June 30, 2006 (hereinafter referred to as the
"Second Extended Term"), subject to paragraph 14 hereof.
2. Monthly Base Rent for New Premises . Commencing on July 1, 2001,
(hereinafter referred to as the "New Deal Date") the Annual Base Rent and
Monthly Base Rent for the entire Premises during the Second Extended Term shall
be set forth in this paragraph 2. Tenant shall pay to Landlord Base Rent for the
Second Extended Term without set-off or deduction whatsoever in the amount of
One Million Seventy Four Thousand Four Hundred Eighty Seven Dollars and Thirty
Six Cents ($1,074,487.36) payable in monthly installments in the amount of the
applicable Monthly Base Rent set forth below on the New Deal Date and on the
first day of each and every month of the Second Extended Term:
(i) During the period commencing on July 1, 2001 and ending on
June 30, 2002 the Annual Base Rent shall be One Hundred Ninety Eight
Thousand Three Hundred Seventy Nine Dollars and Fifty Cents
($198,379.50) and the Monthly Base Rent shall be Sixteen Thousand Five
Hundred Thirty One Dollars and Sixty Three Cents ($16,531.63).
(ii) During the period commencing on July 1, 2002 and ending
on June 30, 2003 the Annual Base Rent shall be Two Hundred Six Thousand
Three Hundred Fourteen Dollars and Sixty Eight Cents ($206,314.68) and
the Monthly Base Rent shall be Seventeen Thousand One Hundred Ninety
Two Dollars and Eighty Nine Cents ($17,192.89).
(iii) During the period commencing on July 1, 2003 and ending
on June 30, 2004 the Annual Base Rent shall be Two Hundred Fourteen
Thousand Five Hundred Sixty Seven Dollars and Twenty Seven Cents
($214,567.27) and the Monthly Base Rent shall be Seventeen Thousand
Eight Hundred Eighty Dollars and Sixty One Cents ($17,880.61).
(iv) During the period commencing on July 1, 2004 and ending
on June 30, 2005 the Annual Base Rent shall be Two Hundred Twenty Three
Thousand One Hundred Forty Nine Dollars and Ninety Six Cents
($223,149.96) and the Monthly Base Rent shall be Eighteen Thousand Five
Hundred Ninety Five Dollars and Eighty Three Cents ($18,595.83).
(v) During the period commencing on July 1, 2005 and ending on
June 30, 2006 the Annual Base Rent shall be Two Hundred Thirty Two
Thousand Seventy Five Dollars and Ninety Six Cents ($232,075.96), and
the Monthly Base Rent shall be Nineteen Thousand Three Hundred Thirty
Nine Dollars and Sixty Six Cents ($19,339.66).
3. Gross Rent. Effective on the New Deal Date: (i) paragraph
L of Section 1 of the Lease; (ii) Section 2 of the Lease; and (iii) paragraphs
11,12,13 of the Rider attached to the Lease, shall be no force or effect with
respect to the Second Extended Term and the Renewal Term (hereinafter defined).
4. Signs. Effective upon full execution hereof, paragraph 7
of the First Amendment shall be deleted and the following shall be inserted
in place thereof:
"Tenant may, at its sole cost and expense, affix and maintain: (i) upon
the west exterior wall of the building in which the Premises are
located, a sign identifying Tenant, containing the logo of Tenant and
containing an electronic message board.; and (ii) on the southern wall
of the existing fitness center a sign identifying Tenant. Tenant shall
maintain such signs in good order and repair during the Term and shall
remove such sign at the end of the Term and shall replace and repair
any damage caused by any such removal. Any such sign shall be in
compliance with all applicable laws, statutes and ordinances and the
erection of such sign shall be deemed a portion of the Tenant's Work as
described in paragraph 5 hereof and shall comply in all respects with
the provisions relating thereto."
5. Termination. In the event that Tenant is not in default under the
terms of the Lease, as amended hereby, and no event has occurred which, with the
giving of notice or the passage of time, or both, would constitute an event of
default, Tenant shall have the right to cancel this Lease, effective on June 30,
2003, June 30, 2004 or June 30, 2005 (each such date is hereinafter referred to
as a "Cancellation Date"), which right may only be exercised by Tenant's
delivery of written notice (hereinafter referred to as the "Cancellation
Notice") to Landlord at least six (6) months prior to the applicable
Cancellation Date, which Cancellation Notice shall be accompanied by a certified
or cashier's check in the amount of: (i) Thirty Thousand Dollars and No Cents
($30,000.00) if the Lease is canceled effective June 30, 2003; (ii) Twenty
Thousand Dollars and No Cents ($20,000.00) if the Lease is canceled effective
June 30, 2004; or (iii) Ten Thousand Dollars and No Cents ($10,000.00) if the
Lease is canceled effective June 30, 2005, payable to Landlord as a fee for such
cancellation. The Cancellation Notice shall provide the applicable Cancellation
Date. In the event Tenant timely elects to cancel this Lease, Tenant shall
vacate the Premises in the condition required herein and shall pay to Landlord
all rent and any other sums that have accrued under the terms of this Lease up
to and including the Cancellation Date. The failure of Tenant to timely deliver
the Cancellation Notice or to pay the requisite sums in accordance with the
terms of this section shall preclude Tenant from exercising its option pursuant
to this Paragraph.
6. Allowance. Landlord will provide a refurbishing allowance in the
amount of Twenty Thousand Dollars and No Cents ($20,000.00) (hereinafter
referred to as the Refurbishing Allowance") at the New Deal Date for the purpose
of re-carpeting and painting the Premises. The Refurbishing Allowance shall be
paid to Tenant no later than thirty (30) days after receipt by Landlord of all
documentation required by Landlord pursuant to Section 8 of the Lease and
Paragraph 5 of the First Amendment plus evidence of full payment for such
re-carpeting and painting the Premises.
7. Condition. Tenant accepts the Premises in its then as-is
condition on the New Deal Date and acknowledges that Landlord has made no
representation with respect to and shall not be responsible for the condition
of the Premises.
8. Brokers. Tenant and Landlord each represent and warrant to the other
that neither Tenant nor Tenant's officers or agents, nor any other person acting
on Tenant's behalf, nor Landlord, nor Landlord's officers or agents, nor any
other person acting on Landlord's behalf, as the case may be, has dealt with any
real estate broker other than CB Richard Ellis, Inc. (hereinafter referred to as
"CB") in the negotiation and making of this Amendment. Tenant and Landlord each
agree to indemnify and hold each other harmless from the claim or claims of any
other broker or brokers (other than CB) to the effect that it or they have
caused Tenant or Landlord, as the case may be, to enter into this Amendment.
Landlord shall pay or cause to be paid all commissions, consulting fees and any
other compensation, if any, owing to CB in connection with the making of this
Amendment in accordance with any separate lease commission or similar agreement
heretofore entered into between Landlord and CB.
9. Binding Effect. Except as modified herein, the terms, conditions and
covenants of the Lease shall remain in full force and effect during the Second
Extended Term, and shall be binding upon and inure to the benefit of Landlord,
Tenant and their respective successors and permitted assigns. The paragraph
headings herein contained are for convenience and shall not be deemed to govern
or control the substance hereof. It is understood and agreed that all
understandings and agreements heretofore had between the parties hereto are
merged in the Lease as amended by this Second Lease Amendment which alone fully
and completely express their agreements, and that neither party is relying upon
any statement or representation, not embodied in the Lease as amended hereby,
made by the other. Each party expressly acknowledges that, except as expressly
provided in the Lease as amended hereby, the other party and the agents and
representatives of the other party have not made, and the other party is not
liable for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Premises. The preparation of this Second Lease Amendment has
been a joint effort of the parties hereto and the resulting documents shall not,
solely as a matter of judicial construction, be construed more severely against
one of the parties than the other.
10. Governing Law. This Second Lease Amendment shall be governed
and construed under the laws of the State of Illinois.
11. No Default. Tenant hereby warrants that it is not presently
in default under the Lease. Landlord hereby warrants that it is not
presently in default under the Lease.
12. Inconsistency. Except as modified herein, the terms,
conditions and covenants of the Lease shall remain unchanged and otherwise
in full force and effect, and are hereby ratified and reaffirmed. In the
event of an inconsistency between this Second Amendment to Lease and the Lease,
the terms herein shall control.
13. Representations and Acknowledgments. Tenant hereby acknowledges and
agrees that, to the best knowledge of Tenant, as of the date of this Second
Lease Amendment: (i) there are no offsets, defenses or counterclaims against
Landlord arising out of or in any way relating to the Lease; (ii) neither
Landlord nor Tenant is in default under or has breached the Lease; and (ii) the
Lease as amended hereby represents the entire agreement between the parties
thereto as to the Premises, and Tenant neither has nor claims any right or
interest in or under any contract, option or agreement involving the Premises.
14. Renewal Option. Tenant shall have one (1) option (hereinafter
referred to as the "Renewal Option") to extend the Term of the Lease for all of
the Premises as of the expiration of the Second Extended Term, for an additional
period of five (5) years (hereinafter referred to as the "Renewal Term"), upon
the following terms and conditions:
(a) Tenant gives Landlord written notice of its exercise of
the Renewal Option at least nine (9) months prior to the expiration of
the Second Extended Term.
(b) Tenant is not in default under this Lease either on the
date Tenant delivers the notice required under (a) above or at any time
thereafter prior to the commencement of the Renewal Term.
(c) All of the terms and provisions of this Lease (except this
paragraph 14 and except as otherwise provided in this Second Lease
Amendment) shall be applicable to the Renewal Term, except that Annual
Base Rent for the Renewal Term shall be equal to the Fair Value (as
hereinafter defined). For purposes of this Lease, the "Fair Value"
shall mean an annual amount per rentable square foot for a term
equivalent to the period for which Fair Value is being determined
beginning with the first (1st) day of the subject period that a
willing, creditworthy, new non-equity tenant leasing comparable space
would pay and a willing, comparable landlord of comparable space in the
Chicago, Illinois/River North Area (hereinafter referred to as the
"Market") would accept at arm's length, giving appropriate
consideration to generally applicable terms and conditions prevailing
for such comparable space. Should Tenant notify Landlord of its
exercise of the Renewal Option, Landlord shall notify Tenant of
Landlord's determination of Fair Value not later than ten (10) months
prior to the expiration of the Second Extended Term. Should Tenant not
object in writing to the determination of Fair Value made by Landlord
within fourteen days of receipt thereof, the determination of Fair
Value made by Landlord shall be binding on the parties. Should Tenant
object in writing to the determination made by Landlord within said
fourteen (14) day period, Fair Value shall be determined by an
appraiser mutually agreed upon by the parties hereto, it being further
agreed that each of the parties shall pay one-half of the fees of such
appraiser; provided, however, that if the parties cannot agree upon an
appraiser within ten (10) days following the date on which Tenant
objects to the determination of Fair Value by the Landlord, Landlord
shall, within seven (7) days after the expiration of said ten (10) day
period advise Tenant of the names of three (3) appraisers acceptable to
Landlord. Tenant shall within five (5) days of receipt of such list of
appraisers choose one of such appraisers who shall be engaged to
determine the Fair Value as described herein, it being further agreed
that each of the parties shall pay one-half of the fees of such
appraiser. In the event that Fair Value has not been determined by the
date on which the Renewal Term commences, Tenant shall continue to pay
Annual Base Rent in the amount payable immediately prior to the
commencement of the Renewal Term and the amount of any difference
between that amount and the Fair Value for that part of the Renewal
Term for which Annual Base Rent was paid at the former rate shall be
paid by or refunded to Tenant promptly following determination of the
applicable new rate based on Fair Value. Any appraiser selected
hereunder shall be a real estate broker who has at least seven (7)
years experience leasing comparable properties in the Market.
(d) Failure to exercise the Renewal Option shall be
deemed to be a waiver of Tenant's right to exercise the Renewal Option.
(e) Tenant agrees to accept the Premises to be covered by this
Lease during the Renewal Term in an "as is" physical condition and
Tenant shall not be entitled to receive any allowance, credit,
concession or payment from Landlord for the improvement thereof.
(f) The Renewal Option herein granted shall automatically
terminate upon the earliest to occur of (i) the expiration or
termination of this Lease, (ii) the termination of Tenant's right to
possession of the Premises, (iii) any assignment or subletting by
Tenant, or (iv) the failure of Tenant to timely or properly exercise
the Renewal Option.
IN WITNESS WHEREOF, this Second Lease Amendment is executed as of the
day and year set forth above.
LANDLORD: ORLEANS ILLINOIS VENTURE, an Illinois Limited
Partnership, by IJM Management Limited Partnership,
an Illinois Limited Partnership
By: _/s/ Irving J. Markih_____
Name: _Irving J. Markih_________
Title: President________________
TENANT: CDW COMPUTER CENTERS, INC., an Illinois corporation
By: __/s/ Doug Eckrote_________
STATE OF ___IL______ )
)
COUNTY OF __Cook_____ )
I, _Chrystal L. Foss___, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY that _Irving J. Markih____, as
_President_____ of IJM MANAGEMENT LIMITED PARTNERSHIP, the _agent____ of ORLEANS
ILLINOIS VENTURE, an Illinois limited partnership, who is personally known to me
to be the same person whose name is subscribed to the foregoing instrument as
such _President_____ of said Limited Partnership, appeared before me this day in
person and acknowledged that __he__ signed and delivered the said instrument as
_his__ own free and voluntary act and as the free and voluntary act of said
Limited Partnership, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this __7th__ day of
__June____, 2001.
/s/ Chrystal L. Foss
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Notary Public
STATE OF ___IL_____ )
)
COUNTY OF _Cook_____ )
I, _Michael Tepper___________, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY that _Doug Eckrote________, as
_SR VP of Purchasing_ of CDW COMPUTER CENTERS, INC., who is personally known to
me to be the same person whose name is subscribed to the foregoing instrument as
such __SR VP___ of said Corporation, appeared before me this day in person and
acknowledged that __he__ signed and delivered the said instrument as _his___ own
free and voluntary act and as the free and voluntary act of said Corporation,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this __6th____ day of
__June_____, 2001.
/s/ Michael Tepper
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Notary Public