Exhibit 10 (i)
FIRST AMENDMENT TO LEASE
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This FIRST AMENDMENT TO LEASE (this "Agreement") is made and entered into
as of the 11th day of July, 2002, by and between DAVIS WEST MADISON LLC, a
Delaware limited liability company ("Landlord"), and THE NORTHERN TRUST COMPANY,
an Illinois banking corporation ("Tenant"), with reference to the following:
RECITALS:
A. LaSalle Bank National Association, as successor trustee to American
National Bank and Trust Company of Chicago, as Trustee under Trust Agreement
dated April 5, 1990 and known as Trust No. 110513-07 ("Former Landlord"), as
landlord, and Tenant, as tenant, heretofore entered into a certain lease dated
as of November 29, 2000 (the "Original Lease"), for certain premises (the
"Premises") in a building located on the real estate commonly known as 181 West
Madison Street, Chicago, Illinois (the "Building"), as more particularly set
forth in the Original Lease.
B. Former Landlord and Tenant heretofore modified the Original Lease by
entering into those certain agreements listed on Exhibit C attached hereto (each
of such agreement being herein referred to as a "Letter Agreement" and all of
such agreements collectively being referred to herein as the "Letter
Agreements"). The Original Lease, as modified by the Letter Agreements, is
herein referred to as the "Lease."
C. Landlord has succeeded to all of Former Landlord's right, title and
interest in and to the Lease.
D. Landlord and Tenant desire to further modify the Lease, among other
things, (i) to change the Put Space and the dates upon which Landlord will
deliver possession of such Put Space to Tenant, and (ii) to provide for the
leasing by Tenant of certain additional premises in the Building, upon the terms
and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
1. Incorporation. The recital paragraphs set forth above are hereby
incorporated herein as if fully set forth herein.
2. Defined Terms. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Lease.
3. Put Space.
A. Section 48 of the Lease is hereby further modified solely by
deleting the schedule set forth therein together with the three (3) lines
immediately following said schedule on Page 67 of the Lease and
substituting the following schedule therefor:
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Square Feet of Put Space Put Space Rent
Put Space Rentable Area Commencement Date Commencement Date
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Floor 24 21,804 See below July 1, 2002
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Floors 18 43,464 November 1, 2002 March 1, 2003
and 19
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B. Tenant acknowledges and agrees that Landlord has heretofore
delivered to Tenant possession of the 26th floor of the Building as Put
Space in accordance with the terms and provisions of Section 48 of the
Original Lease, as modified by the Letter Agreement dated April 27, 2001.
Landlord and Tenant desire to substitute for such Put Space the 24th floor
of the Building and, in furtherance thereof, on or before the fifth (5th)
business day following the date hereof, (a) Tenant shall relinquish
possession of the 26th floor of the Building, whereupon Tenant shall have
no further rights with respect to such 26th floor, and (b) Landlord shall
deliver to Tenant possession of the 24th floor of the Building, which 24th
floor thereafter shall be deemed the Put Space, subject to all terms,
covenants and conditions set forth in the Lease, except that, in
consideration for Tenant agreeing to substitute the 24th floor for the 26th
floor as set forth above, (i) The Put Space Rent Commencement Date for such
24th floor shall be deemed to be June 1, 2002 rather than February 1, 2002,
and (ii) Tenant shall be permitted to use the Put Space Allowance allocable
to such Put Space for improvements made by Tenant in any part of the
Premises.
C. If Landlord, Tenant and LaSalle Bank National Association, acting
individually and not as a trustee, effect the 17/24 Exchange, and Landlord
thereafter notifies Tenant in writing that the 24th floor of the Building
is available for leasing (either directly by Landlord or on a sublease
basis by LaSalle Bank or the then existing tenant of such 24th floor), and
Tenant desires to make available for subleasing all or any portion of the
Premises, Tenant shall make a good faith effort but shall not be obligated
to include within the portion of the Premises available for subleasing the
23rd floor of the Building.
D. Tenant and Landlord further acknowledge and agree that Tenant
currently is negotiating with the tenant of the Building which has current
possessory rights in and to the 17th floor of the Building (the "Existing
17th Floor Tenant"), to effect a transaction whereby Tenant and the
Existing 17th Floor Tenant will swap their respective rights in and to
floors 24 and 17 (the "17/24 Exchange"). If Tenant and the Existing 17th
Floor Tenant are able to reach agreement on such 17/24 Exchange, Landlord
shall cooperate with such exchange to effect direct contractual rights for
each of Tenant and the Existing 17th Floor Tenant in and to such 17th and
24th floors respectively. If Tenant succeeds in effecting the 17/24
Exchange, (i) the 17th floor will replace the 24th floor as the Put Space,
and (ii) the 24th floor shall become the Expansion
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Space available under the Second Expansion Option (subject to Landlord's
right to select another floor to serve as the Expansion Space available
under the Second Expansion Option pursuant to Section 52(A)(ii) of the
Original Lease).
4. Expansion Space
A. The Expansion Spaces available under the Third Expansion Option
and the Fourth Expansion Option, as set forth in Section 52 of the Original
Lease, will not be available to Tenant as a result of floors 18 and 19
(and, if the 17/24 Exchange is effected, floor 17) being designated as Put
Space as set forth above. In lieu thereof, and notwithstanding anything to
the contrary contained in said Section 52, Landlord, within ten (10) days
following its receipt of written notice from Tenant of Tenant's exercise of
the applicable Expansion Option, shall designate a floor of the Building
(on any of the 17th through 38th floors of the Building, both inclusive)
which will serve as the applicable Expansion Space and the date upon which
Landlord will make such Expansion Space available to Tenant notwithstanding
the Expansion Space Commencement Date set forth in the Original Lease.
Landlord shall deliver possession of such Expansion Space to Tenant during
the period which commences on the 180th day prior to the applicable
Expansion Space Commencement Date and ends on the 180th day following the
applicable Expansion Space Commencement Date. If Landlord shall be unable
to designate a full floor of the Building as the applicable Expansion
Space, Landlord shall be permitted to make available to Tenant as such
Expansion Space any two (2) areas on two separate floors on any of the 17th
through 38th floors of the Building, both inclusive, which in the aggregate
consist of not less than 20,000 square feet and not more than 23,000 square
feet of Rentable Area, to serve as the applicable Expansion Space available
for said Expansion Option. Tenant, following its receipt of Landlord's
designation of the applicable Expansion Space, shall have the right to
rescind its exercise of the applicable Expansion Option by delivering
written notice of such exercise to Landlord within thirty (30) days
following it receipt of such designation from Landlord, failing which,
Tenant shall be deemed to have accepted Landlord's designation of such
Expansion Space.
B. Notwithstanding anything to the contrary contained in Section 52
of the Original Lease, Tenant acknowledges and agrees that (i) the
Expansion Space available under the First Expansion Option (such Expansion
Option currently designated as the 21st floor of the Building (subject to
substitution thereof pursuant to Section 52(A)(i))) is currently leased to
a tenant (the "Existing 21st Floor Tenant") that has the right to terminate
its lease at any time upon 12 months prior written notice. If at any time
prior to November 1, 2004 (such date being the date which is 12 months
prior to the Expansion Space Commencement Date for the First Expansion
Option), the Existing 21st Floor Tenant exercises its right to terminate
its lease pursuant to the terms thereof such that the First Expansion Space
will be available for leasing by Tenant prior to the scheduled Expansion
Space Commencement Date, Landlord shall have the right to redesginate the
Expansion Space Commencement Date applicable to the First Expansion Option
to a date prior to the scheduled Expansion Space Commencement Date (but in
no event earlier than the 1st day of the 13th calendar month following the
day on which Landlord so notifies Tenant of such redesignation in writing).
If Landlord delivers written notice to Tenant of any such redesignation
(the "Landlord's Redesignation Notice"), Tenant thereafter shall have
thirty (30) days within which to exercise the First
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Expansion Option, whereupon the Expansion Space Commencement Date for such
First Expansion Space shall be redesignated as set forth above, failing
which, Tenant shall be deemed to have elected not to exercise the First
Expansion Option, said option shall thereupon terminate, and Tenant shall
not thereafter have any right to lease any Expansion Space pursuant to said
First Expansion Option.
5. Additional Premises. Landlord hereby leases to Tenant, and Tenant
hereby accepts from Landlord, the approximately 4,900 square feet of Rentable
Area located on the 16th floor of the Building (the "16th Floor Space"), such
16th Floor Space being identified more particularly on Exhibit A attached
hereto, for a term commencing on the later of (i) August 1, 2003, or (ii) the
date of delivery of possession of said 16th Floor Space (either (i) or (ii), as
applicable, is hereby referred to as the "16th Floor Space Commencement Date")
and ending on the Expiration Date.
Tenant's leasing of the 16th Floor Space shall be subject to all of the
terms, covenants and conditions of the Lease except as otherwise hereinafter
provided:
A. The Base Rent per square foot of Rentable Area of the 16th Floor
Space shall be the same as the Base Rent, expressed on per square foot of
Rentable Area basis, as is attributable to the Put Space, as such Base Rent
increases from time to time, as set forth in the Lease. Base Rent, Tenant's
Proportionate Share of Operating Expenses and the Special Tenant Fee
attributable to the 16th Floor Space shall be abated, however, for the
ninety (90) day period commencing on the 16th Floor Space Commencement
Date.
B. The 16th Floor Space, effective as of the 16th Floor Space
Commencement Date, shall be deemed a part of the Premises under the Lease.
C. Tenant shall accept possession of the 16th Floor Space in as-is
condition, it being acknowledged that no agreement of Landlord to alter,
remodel, decorate, clean or improve 16th Floor Space has been made by
Landlord or any party acting on Landlord's behalf.
D. Tenant acknowledges and agrees that the 16th Floor Space currently
is occupied by another tenant of the Building. Tenant further acknowledges
and agrees that Landlord shall not be labile to Tenant in the event
Landlord does not deliver possession of the 16th Floor Space to Tenant on
August 1, 2003 due to a holding over by the existing tenant of such 16th
Floor Space in violation of the terms of such tenant's lease On the
occurrence of any such holdover, Landlord shall use reasonable efforts to
obtain possession of such 16th Floor Space from such tenant and the 16th
Floor Space Commencement Date shall not be deemed to have occurred until
Landlord shall deliver the right of possession of such 16th Floor Space to
Tenant.
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6. Future Space Negotiations. Landlord and Tenant acknowledge and
agree that they have evaluated their respective space needs in the Building for
the foreseeable future and shall negotiate the modification of Tenant's rights
to additional space in the Building in good faith to maximize the marketing of
contiguous blocks of leased premises in the Building.
7. Waiver of First Offer Space. Tenant hereby confirms that it has
heretofore waived its rights to lease, pursuant to Section 51 of the Lease, (i)
the 27th floor of the Building and (ii) approximately 9,928 square feet of
Rentable Area located on the 21st floor of the Building which square footage is
depicted on Exhibit B attached hereto. The foregoing waiver shall not limit any
rights which Tenant may have to lease either of said tenant premises once same
again become Available for Lease. Landlord and Tenant acknowledge and agree
that, for purposes of this Section 7, said tenant premises shall be deemed to be
Available for Lease if Landlord shall have not entered into binding written
agreements for the leasing of said tenant premises on or before the 540th day
following the date of this Agreement.
8. Tax Identification Numbers. Exhibit F of the Lease is hereby
amended by adding the following additional tax identification number thereto:
17-16-203-006-0000.
9. Real Estate Broker. Tenant and Landlord represent and warrant to
each other that except for MB Real Estate and, with respect solely to Tenant's
leasing of the 16th Floor Space, The Staubach Company (the "Identified
Brokers"), neither party has dealt with any real estate brokers in connection
with this Agreement and, to their knowledge, no brokers other than the
Identified Brokers initiated or participated in the negotiation of this
Agreement, or is entitled to any commission in connection herewith. Tenant
hereby agrees to indemnify, defend and hold harmless Landlord from and against
any and all claims of any other real estate broker claiming to have dealt with
Tenant for any commission in connection with this Agreement. Landlord hereby
agrees to indemnify, defend and hold harmless Tenant from and against any and
all claims of any real estate broker claiming to have dealt with Landlord
(including the Identified Brokers) for any commission in connection with this
Agreement. Landlord shall pay all commissions due and owing the Identified
Brokers in connection with this Agreement under separate agreement.
10. Integration of Lease and Controlling Language. This Agreement and
the Lease shall be deemed to be, for all purposes, one instrument. In the event
of any conflict between the terms and provisions of this Agreement and the terms
and provisions of the Lease, the terms and provisions of this Agreement, in all
instances, shall control and prevail.
11. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is or shall be deemed illegal,
invalid or unenforceable, the remaining provisions hereof shall remain in full
force and effect and this Agreement shall be interpreted as if such legal,
invalid or unenforceable provision did not exist herein.
12. Entire Agreement. This Agreement and the Lease contain the entire
integrated agreement between the parties respecting the subject matter of this
Agreement and the Lease and supersede all prior and contemporaneous
understandings and agreements, other than the Lease, between the parties
respecting the subject matter of this Agreement and the Lease. There are no
representations, agreements, arrangements or understandings, oral or in writing,
between or among the parties to this Agreement relating to the subject matter of
this Agreement or the Lease which are not fully expressed in this Agreement and
the Lease, and no party hereto
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has relied upon any other such representations, agreements, arrangements or
understandings. The terms of this Agreement and the Lease are intended by the
parties as the final expression of their agreement with respect to those terms
and may not be contradicted by evidence of any prior agreement or of any
contemporaneous agreement. The parties further intend that no extrinsic evidence
whatsoever may be introduced in any judicial proceeding involving this
Agreement.
13. Successors and Assigns. Each provision of the Lease and this
Agreement shall extend to and shall bind and inure to the benefit of Landlord
and Tenant, their respective heirs, legal representatives, successors and
assigns.
14. Time of the Essence. Time is of the essence of this Agreement and
the Lease and each provision hereof.
15. Multiple Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
shall together constitute in one and the same instrument.
16. Authority. Landlord and Tenant each represent and warrant that it
has full authority to execute and deliver this Agreement.
17. Ratification. Except as amended and modified hereby, the Lease
shall be and shall remain unchanged and in full force and effect in accordance
with its terms, and, as the Lease is amended and modified hereby, the Lease is
hereby ratified, adopted and confirmed.
18. Limitation of Liability. Any liability of Landlord under the Lease
or this Agreement shall be limited solely to its equity interest in the
Building, and in no event shall any personal liability be asserted against
Landlord or any of its members or any of their respective members, partners,
agents or employees in connection with the Lease or this Agreement nor shall any
recourse be had to any other property or assets of Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment
to Lease as of the day and year first above written.
LANDLORD: TENANT:
DAVIS WEST MADISON LLC, a Delaware THE NORTHERN TRUST COMPANY,
limited liability company an Illinois banking corporation
By: /s/ Theodore F. Kahan By: /s/ E. Paul Dunn
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Print Name: Theodore F. Kahan Print Name: E. Paul Dunn
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Title: Authorized Signatory Title: Senior Vice President
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EXHIBIT A
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16th Floor Space
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EXHIBIT B
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ROFO Space
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EXHIBIT C
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Letter Agreements
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1. Letter dated May 15, 2001 re: Special Tenant Fee
2. Letter dated April 26, 2001 re: Termination of right to purchase
3. Letter dated April 4, 2001 re: Revising Exhibit II base rent
4. Letter dated March 30, 2001 re: Notice of Landlord intent to sell Building
5. Letter dated April 27, 2001 re: Change in put space
6. Letter dated March 15, 2001 re: Right of First Offer 22nd and 26th floors
7. Letter dated December 21, 2000 re: Right of First Offer suite 2135
8. License Agreement dated February 2, 1994 - ATM
9. License Agreement dated March 25, 1998 - Antenna
10. Letter dated July 2, 2001 re: Right of First Offer suite 3650
11. Letter dated July 27, 2001 re: Right of First Offer suite 3525
12. Letter dated August 3, 2001 re: Approval of payment for 23rd floor Tenant
Improvement
13. Letter dated October 22, 2001 re: Right of First Offer Suite 3850
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