EXHIBIT 10.17
_______________________________________________________________________________
THREE NATIONAL PLAZA AT WOODFIELD
LEASE WITH
CONFERENCE PLUS
---------------
TENANT
LEASING AGENTS
MIGLIN-BEITLER MANAGEMENT CORPORATION
181 West Madison Street
Suite 3900
Chicago, Illinois 60602
_______________________________________________________________________________
TABLE OF CONTENTS
Page
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1. Lease of Premises . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. Operating Expenses . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7. Landlord's Services and Obligations . . . . . . . . . . . . . . . . 8
8. Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . . . 9
9. Rights Reserved to Landlord . . . . . . . . . . . . . . . . . . . . 13
10. Telephone, Electric and Other Services . . . . . . . . . . . . . . 15
11. Landlord's Title . . . . . . . . . . . . . . . . . . . . . . . . . 16
12. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . 16
13. Waiver of Certain Claims . . . . . . . . . . . . . . . . . . . . . 16
14. Condition of Premises . . . . . . . . . . . . . . . . . . . . . . 17
15. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . 18
17. Untenantability . . . . . . . . . . . . . . . . . . . . . . . . . 20
18. Rights and Remedies of Landlord . . . . . . . . . . . . . . . . . 20
19. Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . 23
20. Subordination or Superiority of This Lease . . . . . . . . . . . . 23
21. Sprinklers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
22. Prior Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . 24
23. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
24. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 24
25. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
26. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 26
27. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . 28
28. Landlord's Exoneration . . . . . . . . . . . . . . . . . . . . . . 29
29. Construction of Premises - Credit and Payment . . . . . . . . . . 29
30. Operating Expense Modification . . . . . . . . . . . . . . . . . . 30
31. Cancellation Option . . . . . . . . . . . . . . . . . . . . . . . 31
32. Expansion Option . . . . . . . . . . . . . . . . . . . . . . . . . 32
LANDLORD'S ACKNOWLEDGEMENT . . . . . . . . . . . . . . . . . . . . . . 38
TENANT'S ACKNOWLEDGMENT . . . . . . . . . . . . . . . . . . . . . . . . 39
CORPORATE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 40
NON-CORPORATE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . 42
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EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Plan of Premises
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Construction Rider
EXHIBIT C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
RULES AND REGULATIONS
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LEASE
FOR
THREE NATIONAL PLAZA AT WOODFIELD
THIS LEASE is made and entered into at Chicago, Illinois, as of the 24th day of
December, 1991, by and between THE FIRST NATIONAL BANK OF BOSTON, as Trustee
(the "REMIC Trustee") pursuant to that certain Pooling and Servicing Agreement
dated as of April 1, 1988 by and among CIGNA Mortgage Securities, Inc. and
CIGNA INVESTMENTS, INC., as Servicer ("Servicer") (the REMIC Trustee and
Servicer are collectively referred to herein as the "Landlord"), and CONFERENCE
PLUS, a __________ corporation, (the "Tenant") as follows:
1. LEASE OF PREMISES. The Landlord hereby leases to the Tenant and
the Tenant hereby accepts the lease of the premises consisting of that certain
office space shown outlined in red or a heavy line on the plan attached hereto
as Exhibit A and incorporated herein by reference (the "Premises") located on
the THIRD (3rd) floor in the office building (the "Building") located on the
real estate commonly known as THREE NATIONAL PLAZA AT WOODFIELD, located at 999
Plaza Drive, Schaumburg, Illinois (the "Real Estate"). The Building and the
Real Estate together with the vehicular drives, the above and below ground
parking facilities, the easement areas appurtenant thereto and all other
structures and improvements now or hereinafter located upon the Real Estate are
hereinafter sometimes collectively referred to as the "Property". It is
mutually agreed that the Premises contain 969 rentable square feet.
2. TERM. The said lease of the Premises is for the term of FIVE (5)
YEARS commencing on the 1st day of March, 1992 and ending on the last day of
February, 1997 (the "Term"), unless sooner terminated as hereinafter provided.
3. RENT. Tenant will pay to Landlord's rental agents, MIGLIN-BEITLER
MANAGEMENT CORPORATION, (the "Rental Agents") at 181 West Madison Street, Suite
3900, Chicago, Illinois 60602, or to such other persons or at such other places
as the Landlord may direct from time to time by written notice to the Tenant,
in coin or currency which at the time of payment is legal tender for the
payment of public and private debts in the United States of America, without
setoff, recoupment or deduction whatsoever and, except as hereinafter provided,
without demand or billing, the aggregate of the following, all of which are
hereby declared to be "Rent".
A. As annual "Base Rent" and monthly installments of Base
Rent, the following sums are due and payable during the Term of this Lease:
RATE MONTHLY
MONTH PER INSTALLMENT ANNUAL
OF TERM SQUARE FOOT OF BASE RENT BASE RENT
- ------- ----------- ------------ ---------
1 - 12 $5.25 $423.94 $5,087.25
13 - 24 5.36 432.82 5,193.84
25 - 36 5.47 441.70 5,300.43
37 - 48 5.58 450.59 5,407.02
49 - 60 5.69 459.47 5.513.61
Notwithstanding the foregoing, the first monthly installment of Base Rent will
be paid by the Tenant concurrently with the execution of this Lease;
B. The "Rent Adjustments", "Tenant's Proportionate Share of
Operating Expenses", "Rent Adjustment Deposits" and "Operating Expense
Deposits" (hereinafter defined);
C. Interest at the "Default Rate" from the due date of each
payment of Rent due under this Lease until paid. The phrase "Default Rate"
means the lower of" (i) the highest lawful rate, or (ii) a rate of interest
equal to the sum of three percent (3 %) plus the "Prime Rate". The phrase
"Prime Rate" means that rate of interest most recently announced by the First
National Bank Of Chicago ("First") as its prime rate or base rate, changing
simultaneously and automatically with each announced change by First in its
prime rate or its base rate, such change to be effective as of and on the date
announced by First as the effective date for the change in its said prime rate
or base rate. A certificate made by an officer of First stating its prime rate
or its base rate in effect on a certain day or prime rates or base rates in
effect during a certain period shall, for the purposes hereof, be conclusive
evidence of First's prime rate or rates or base rate or rates on said day or
such period, as may be stated in any such certificate. In the event First
ceases to use the term Prime Rate in setting a base rate of interest for
commercial loans, then the Prime Rate herein shall be determined by reference
to be the rate used by First as a base rate of interest for commercial loans as
the same shall be designated by First to the Landlord. In the event First
shall discontinue to announce and/or publish a prime rate or base rate,
Landlord shall substitute therefor, in Landlord's judgment reasonably
exercised, the prime rate or base rate or similar rate of interest announced or
published by a major United States bank or major business publication or
financial publication.
In the event the Term of this Lease commences on a day other
than the first day of a calendar month or in the event that this Lease ends
prior to the end of a twelve month period or ends on a day other than the last
day of a calendar month, the
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Rent for such month or such period shall be prorated. Tenant's covenant to pay
Base Rent is independent of every other covenant set forth in this Lease.
D. All other payments required to be made by the Tenant under
this Lease.
4. OPERATING EXPENSES.
A. DEFINITIONS. For the purposes of this Lease, the
following terms, words or phrases shall have the meanings and definitions
described in this subsection 4A:
(i) "Base Year" means that calendar year which includes the
date of commencement of the term of this Lease described in Section 2.
(ii) "Lease Year" for the purposes of the Base Year means
that period of time from and including the earlier of (x) the date of
the commencement of the Term of this Lease, or (y) the day upon which
Tenant occupies the Premises through December 31, of said calendar
year and, thereafter, "Lease Year" means a consecutive twelve month
period commencing January 1 and ending December 31, both inclusive.
In the event the term of this Lease ends on a date other than December
31, then in such event, "Lease Year" also means that period ending on
the date of expiration of the term of this Lease and commencing on the
immediately preceding January 1.
(iii) "TENANT'S PROPORTIONATE SHARE" means 969/134,249, or 0.7218 percent.
(iv) "OPERATING EXPENSES" means Taxes (as hereinafter
defined) and all costs, expenses and disbursements of every kind,
nature or description, paid or incurred by the Landlord or its
beneficiaries relating to the ownership, management, operation,
maintenance and repair of the Property and the personal property,
fixtures, machinery, equipment, systems and apparatus located therein
or used in connection therewith, including, but not limited to: the
costs of electricity, steam, water, fuel, heating, lighting, air
conditioning, window cleaning, janitorial services; insurance
(including, but not limited to, fire, extended coverage, liability,
workmen's compensation, elevator or any other insurance carried in
good faith by the Landlord and applicable to the Property or the said
personal property); painting; uniforms; customary management fees;
supplies; sundries; sale or use taxes on supplies or services; costs
of wages and salaries of all persons at and below the level of
building manager engaged in the operation, maintenance and repair of
the Property and so-called "fringe benefits" (including, but not
limited to, social security taxes, unemployment insurance taxes, costs
for providing coverage for disability benefits, costs for any
pensions, hospitalization, welfare or retirement plans, vacation or
severance pay, or any other similar or
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like expense incurred under the provisions of any collective
bargaining agreement, or any costs or expenses which the Landlord, or
its beneficiaries, pays or incurs to provide benefits for employees so
engaged in the operation, maintenance and repair of the Property); the
charges of any independent contractor who, under a contract with the
Landlord, or its representatives, does any of the work of operating,
maintaining or repairing of the Property; legal and accounting
expenses; or any other expense or charge, similar or dissimilar,
whether or not heretofore mentioned, which, in accordance with
generally accepted management and accounting principles, would be
considered as an expense of maintaining, operating or repairing the
Property or the said personal property.
Operating Expenses shall not include, however, the following:
costs of alterations of any premises in the Building for other tenants
of the Building; costs of capital additions to the Property (except
that Operating Expenses shall include (1) the cost during the Term, as
reasonably amortized by Landlord with interest at a rate equal to
Landlord's then applicable borrowing rate on the unamortized amount,
of any capital improvement completed after the commencement of the
Term intended to reduce any component cost included within Operating
Expenses; and (2) the cost of any capital improvements which Landlord
is required to make, or which Landlord shall deem necessary, to keep
the Property in compliance with all applicable insurance and
governmental rules and regulations applicable from time to time
thereto); interest and principal payments on mortgages; ground rental
payments; and leasing commissions or fees.
If the Property is not fully occupied during all or any
portion of the Calculation Year, Landlord may elect to make an
appropriate adjustment of the "Operating Expenses" for such year,
employing sound management principles, to determine the amount of
"Operating Expenses" that would have been paid or incurred by the
Landlord had the Property been fully occupied and the amount so
determined shall be deemed to have been the amount of "Operating
Expenses" for such Calculation Year. If any Operating Expenses,
though paid in one year, relates to more than one Lease Year, at the
option of the Landlord, such Operating Expense may be allocated among
such related Lease Years in such a manner as Landlord may reasonably
determine. If any Operating Expense relates to more than one parcel
of property, at the option of the Landlord, such Operating Expense may
be allocated among all parcels of property to which it relates in such
a manner as Landlord may reasonably determine. If Landlord is not
furnishing any particular work or service (the cost of which if
performed by Landlord would constitute an Operating Expense) to a
tenant who has undertaken to perform such work or service in lieu of
the performance thereof by Landlord, Operating Expenses shall be
determined to be increased by an amount equal to the additional
Operating Expense which reasonably would have been
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incurred during such period by Landlord if it had at its own expense
furnished such work or service to such tenant.
(v) "Taxes" means all federal, state and local governmental
taxes, assessments and charges (including transit district taxes or
assessments) of any kind or nature, whether general, special, ordinary
or extraordinary, which Landlord or its beneficiaries shall pay or
become obligated to pay because of or in connection with ownership,
leasing, management, control or operation of the Property or of the
personal property, fixtures, machinery, equipment, systems and
apparatus located therein or used in connection therewith, including
without limitation, all ad valorem taxes, the Illinois Replacement Tax
and any tax measured or based upon rental or rental receipts. The
amount included in Taxes for any Lease Year shall be the amount
indicated by the tax bills payable during that Lease Year, except that
if the tax bills for such year are not available as of the date of the
statement, the amount of such taxes may be reasonably estimated by the
person preparing the statement. There shall be deducted from Taxes,
as determined for any year, the amount of any refund of taxes received
by landlord during such year. There shall be included in Taxes for
any year the amount of all fees, costs and expenses (including
Attorney's fees) paid by Landlord during such year in seeking or
obtaining any refund or reduction of Taxes. Taxes shall not include
any federal or state franchise, capital stock, inheritance, income
from all sources generally, or estate taxes, except that if a change
occurs in the method of taxation resulting in the substitution of any
such taxes for any Taxes as hereinabove defined, such substituted
taxes shall be included in Taxes.
(vi) **INTENTIONALLY OMITTED**
(vii) **INTENTIONALLY OMITTED**
(viii) "OPERATING EXPENSE DEPOSITS" means one-twelfth
(1/12th) of the amount of the Tenant's Proportionate Share of
Operating Expenses for the then current Lease Year as Landlord shall
reasonably estimate from time to time and communicate in writing to
Tenant.
(ix) "ANNUAL BASE RENT" means a sum equal to the product of
the monthly installment of Base Rent described in subsection 3 A of
this Lease, multiplied by twelve (12).
(x) "CALCULATION YEAR" means that Lease Year for which the
Tenant's Proportionate Share of Operating Expenses described in this
Section 4 is payable, applicable or calculated.
B. **INTENTIONALLY OMITTED**
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C. **INTENTIONALLY OMITTED**
D. OPERATING EXPENSES. Notwithstanding any provision of this
Lease to the contrary, it is mutually agreed that the Base Rent payable by the
Tenant under this Lease do not include Operating Expenses. The Tenant agrees
to pay to Landlord's Rental Agents the Tenant's Proportionate Share of all
Operating Expenses, as follows:
(i) For the Base Year, the greater of either (a) the Tenant's
Proportionate Share of the Operating Expenses paid or accrued during
the Base Year multiplied by that fraction, the numerator of which is
twelve (12), minus the number of months that have elapsed from January
1 of the Base Year to the month immediately preceding the month in
which the Term of this Lease commences and the denominator of which is
twelve, or (b) one cent (.01); and
(ii) and for each Lease Year thereafter, the Tenant's
Proportionate Share of that amount equal to the greater of either (a)
the Operating Expenses paid or accrued during the Subject Lease Year,
or (b) one cent (.01).
E. OPERATING EXPENSE DEPOSITS. Tenant agrees to pay to the
Rental Agent on the first day of each and every month during the term of this
Lease the Operating Expense Deposit. The Operating Expense Deposit shall be
deposited against the Tenant's Proportionate Share of the Operating Expenses
due or to become due for the Lease Year during which such deposits are required
to be made. All Operating Expense Deposits may be commingled and need not be
segregated by the Landlord or the Landlord's Rental Agent, and may be held and
utilized by the Landlord without payment to the Tenant of interest or any sums
for the use of any of said deposits. During the last Lease Year or during any
partial Lease Year during which this Lease terminates, Landlord may include in
the Operating Expense Deposit its estimates of the Tenant's Proportionate Share
of the Operating Expenses which may not be finally be determined until after
the expiration or termination of this Lease.
F. LANDLORD'S STATEMENT - PAYMENT OF TENANT'S PROPORTIONATE
SHARE OF OPERATING EXPENSES. As soon as reasonably feasible after the
expiration of each Lease Year of this Lease, the Landlord shall cause to be
furnished to the Tenant a statement showing the following:
(i) Operating Expenses for the Calculation Year.
(ii) **INTENTIONALLY OMITTED**
(iii) **INTENTIONALLY OMITTED**
(iv) The amount of the Tenant's Proportionate Share of
Operating Expenses due to the Landlord for the Calculation Year, less
credit for Operating
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Expense Deposits both paid by the Tenant in and allocable to the said
Calculation Year.
(v) **INTENTIONALLY OMITTED**
(vi) The Operating Expense Deposit due monthly, as aforesaid,
during Lease Year next following the Calculation Year for which the
statement is given (subject to revision as aforesaid), including the
amount or revised amount for the months prior to the rendition of the
statement.
Within ten days after the receipt of any such statement, the
Tenant shall pay to the Rental Agent the amount of the Tenant's Proportionate
Share of Operating Expenses due to the Landlord for the Calculation Year, as
reflected in said statement, and the amount of the Operating Expense Deposit
due for the months between the expiration of the Calculation Year described in
the statement to and including the month in which the statement is furnished.
If such statement shall reflect an amount due from the Landlord to the Tenant,
then Landlord shall first apply such amount against the next due Operating
Expense Deposit and, if not exhausted, then to the next ensuing Monthly Base
Rent, and if there is any remaining balance, and Tenant is not in default
hereunder, said remaining balance shall be paid to the Tenant.
G. ALLOCATION-SURVIVAL. If the Lease Term ends on any day
other than the last day of December, any Tenant's Proportionate Share of
Operating Expense payment due Landlord shall be prorated, and the Tenant shall
pay such amount within ten (10) days after being billed. The Tenant's
obligation and covenants to pay the Operating Expense Deposits and the Tenant's
Proportionate Share of Operating Expenses are each and all independent of every
other covenant set forth in this Lease and shall survive the expiration or
termination of this Lease.
H. BOOKS AND RECORDS. Landlord shall maintain books and
records in accordance with sound accounting and management practices,
reflecting the Operating Expenses and Taxes. The Tenant or his representative
shall have the right to examine the Landlord's books and records relative to
Operating Expenses during normal business hours at any time within ten (10)
days following the furnishing by the Landlord to the Tenant of any statement
described in subsection 4F above. Unless the Tenant shall take written
exception to any item within twenty (20) days, after the furnishing of the said
statement, the said statement an all items and matters reflected therein shall
be considered as final and accepted by the Tenant. Any amount due to the
Landlord as shown on the said statement, whether or not written exception is
taken hereto, shall be paid by the Tenant within twenty (20) days after the
Landlord shall have submitted the said statement, without prejudice to any such
written exception. If Tenant makes such timely written exception, a
certification as to the proper amount of Tenant's Proportionate Share of
Operating Expenses shall be made by Landlord's independent certified Public
accountant which shall be final and conclusive. Tenant agrees to pay
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the cost of such certification unless it is determined Landlord's original
determination of the aggregate of Rent Adjustments and Tenant's Proportionate
Share of operating Expenses for the subject Calculation Year was in error by
more than 5% of said Operating Expenses.
5. SECURITY DEPOSIT. As additional security for faithful and prompt
performance f its obligations hereunder, Tenant shall concurrently with the
execution of this Lease pay to Landlord's said Rental Agent the sum of
$1,043.16. Said security deposit need not be segregated and may be applied by
Landlord for the purpose of curing any default or defaults of Tenant hereunder,
in which event, Tenant shall replenish said deposit in full by promptly paying
to Landlord on demand the amount so applied. Landlord shall not pay any
interest on said deposit, except as required by law. If Tenant has not
defaulted hereunder and Landlord has not applied said deposit to cure a
default, or Landlord has applied said deposit to cure a default and Tenant has
replenished the same, then said deposit, or such remaining portion thereof,
shall be paid to Tenant after the termination of this Lease. Said deposit
shall not be deemed an advance payment of Rent or a measure of Landlord's
damages for any default hereunder by Tenant.
6. USE. Tenant shall occupy and use the Premises for general office
purposes only.
7. LANDLORD'S SERVICES AND OBLIGATIONS. So long as Tenant is not in
default hereunder, Landlord shall furnish the following services:
A. HEATING-AIR CONDITIONING. Landlord shall furnish heat and
air conditioning to provide a temperature and humidity condition required, in
Landlord's judgment, for comfortable occupancy of the Premises under normal
business operations, daily from 8:00 a.m. to 6:00 p.m. (Saturday to 1:00 p.m.),
Sundays and holidays excepted. Tenant will be charged for all heating and
cooling requested and furnished before or after these hours at rates to be
established by Landlord. Wherever heat generating machines or equipment are
used in the Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord reserves the right to provide and install
supplementary air conditioning units in the Premises and the cost of providing,
installing, operating and maintaining the same shall be paid by Tenant to
Landlord's Rental Agent as additional Rent.
B. WATER. Landlord shall furnish cold water from municipal
mains from regular Building outlets for drinking, lavatory and toilet purposes
drawn through fixtures installed by Landlord, or by Tenant with Landlord's
prior written consent, and hot water for public lavatory purposes from the
regular supply of the Building. Tenant shall pay Landlord's Rental Agent at
rates fixed by Landlord for water furnished for any other purpose as additional
Rent hereunder upon being invoiced for the same. Tenant shall not waste or
permit the waste of water.
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C. WINDOW WASHING. Landlord shall furnish window washing of
all exterior windows, weather permitting, at intervals to be determined by the
Landlord, but not less than once per calendar year.
D. JANITOR SERVICE. Landlord shall famish daily janitor
services in the Premises, Saturdays, Sundays and holidays excepted. Tenant
shall not provide janitor services without the prior written consent of
Landlord and then only subject to the supervision of the Landlord and at
Tenant's sole responsibility, cost and expense, by contractors or employees at
all times satisfactory to Landlord. Landlord shall not be required to famish
janitorial services to deal with conditions generated by receptions, parties,
renovations, redecorating, remodelling or conditions not within the scope of
ordinary office use.
E. ELEVATOR SERVICE. Landlord shall furnish passenger
elevator service in common with Landlord and other tenants, daily. Daily
freight elevator service shall be available in common with Landlord and other
tenants of the Building and any use of the freight elevator service by
contractors, agents or employees of Tenant shall be at Tenant's sole cost,
responsibility and expense and at all times satisfactory to Landlord.
F. WINDOW COVERING. Landlord shall furnish blinds for all
exterior windows of standard type and color for the Building, which Tenant
agrees not to remove or alter.
G. INTERRUPTION OF SERVICES. Landlord does not warrant that
any service will be free from interruptions caused by labor controversies,
accidents, inability to obtain fuel, steam, water or supplies, governmental
regulations, or other causes beyond the reasonable control of Landlord. No
such interruption of service shall be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or any part thereof, or render
Landlord liable to Tenant for damages, by abatement of rent or otherwise, or
relieve Tenant from performance of Tenant's obligations under this Lease.
Tenant hereby waives and releases all claims against Landlord for damages for
interruption or stoppage of service.
8. TENANT'S OBLIGATIONS.
A. REPAIRS. Except for ordinary wear and as otherwise
provided in this Lease, Tenant shall, at all times during the Term hereof, at
its sole expense, keep all Tenant's movable and removable fixtures located in
or appurtenant to the Premises in good order, repair and condition, and Tenant
shall promptly arrange with Landlord to have Landlord (or Landlord's agent)
make repairs of all other damages to the Premises and the replacement or repair
of all damaged or broken glass (including signs thereon), fixtures and
appurtenances (including hardware and heating, cooling, ventilating,
electrical, plumbing and other mechanical facilities in the Premises), with
materials equal in quality and class to the original materials damaged or
broken, within any
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reasonable period of time specified by Landlord. Landlord may, but shall not
be required to do so, enter the Premises at all reasonable times to make any
repairs, alterations, improvements or additions, including, but not limited to,
ducts and all other facilities for heating and air conditioning service, as
Landlord shall desire or deem necessary for the, safety, preservation or
improvement of the Building, or as Landlord may be required to do by the
municipality in which the Building is located or by the order or decree of any
court or by any other proper authority. The cost of all repairs made by
Landlord to the Property which are made necessary as a result of misuse or
neglect by Tenant or Tenant's employees, invitees or agents shall be
immediately paid as additional Rent by Tenant to Landlord upon being billed for
same. The cost of all other repairs and replacements (except those caused by
Tenant's misuse or negligence and those relating to Tenant's movable fixtures)
shall be paid for by the Landlord and deemed an item of Operating Expenses.
B. REMOVAL PERMIT. Tenant shall list all furniture,
equipment and similar articles Tenant desires to remove from the Premises or
the Building and deliver a copy to Landlord and procure a removal permit from
the rental agent authorizing Building employees to permit such articles to be
removed.
C. DOORS TO BE LOCKED. Before leaving the Premises
unattended, Tenant shall close and securely lock all doors and shut off all
utilities in the Premises. Any damage resulting from failure to do so shall be
paid by Tenant.
D. HOLDING OVER. Tenant shall pay to the Landlord for each
day Tenant retains possession of the Premises or any part thereof after
termination hereof, by lapse of time or otherwise, 150% of the amount of the
daily rate of rental then required by the terms hereof for the last monthly
period prior to the date of such termination and also pay all reasonable
damages sustained by Landlord by reason of such retention, or, if Tenant holds
over for in excess of thirty days and Landlord gives notice in writing to
Tenant of Landlord's election thereof (and not otherwise), such holding over
shall constitute renewal of this Lease for one year at the higher of (i) 150%
of the then current Rent; or (ii) that amount set forth in a written notice
from Landlord to Tenant prior to the holding over, but acceptance by Landlord
of Rent after such termination shall not constitute a renewal nor waive
Landlord's right of reentry or any other right.
E. LAWS AND REGULATIONS. Tenant shall comply with all
reasonable rules and regulations Landlord may adopt from time to time for the
protection and welfare of the Building, the Property and its tenants and
occupants, and comply with all laws, ordinances, orders and regulations and
with the directions of any public officers authorized by law with respect to
the Premises and the use and occupancy thereof.
F. SIGNS. Tenant shall not paint, display, inscribe or affix
any sign, trademark, picture, advertising, notice, lettering or direction on
any part of the outside or inside of the Building, or on the Premises, except
on the public hallways of the
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Premises, and then only such name or names or matter and of such location,
color, size, style, character and material as shall be first approved by
Landlord in writing. Landlord reserves the right to remove any other matter,
without notice to Tenant and at the cost and expense of Tenant.
G. ADVERTISING. Tenant shall not advertise the business,
profession or activities of Tenant in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining thereto or use the name of the Building for any purpose
other than that of the business address of tenant, or use any picture or
likeness of the Building or "THREE NATIONAL PLAZA AT WOODFIELD" or any other
name by which the Building may from time to time be known, on any letterhead,
envelope, circular, notice, advertisement, container or wrapping material,
without the prior written consent of Landlord.
H. ARTICLES SOLD. Tenant shall not exhibit, sell or offer
for sale, rent or exchange in the Premises or on the Property any article,
thing or service except those ordinarily embraced within the use of the
Premises specified in Section 6 without the prior written consent of Landlord.
I. HAZARDOUS MATERIALS. Tenant shall not use, cause or
permit to be brought into or kept, held, located or disposed of on, under or at
the Premises or on the Property any inflammable oils or fluids, or any
explosive or other articles deemed "Hazardous Materials". For the purposes of
this Lease, "Hazardous Materials" means and includes any hazardous, toxic or
dangerous waste substance or material defined as such in (or for purposes of)
the Comprehensive Environmental Response, Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law, or any other federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree or other
requirement of any governmental authority regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter in effect.
J. VARIOUS PROHIBITED USES. Tenant shall not install or operate any
refrigerating, heating or air conditioning apparatus or carry on any
manufacturing, production or mechanical business, operation or activity without
the prior written consent of Landlord; use the Premises for housing, lodging or
sleeping purposes; permit preparation or warming of food in the Premises
(warming of coffee and individual lunches of employees excepted), or permit
food to be brought into the Premises for consumption therein, without the prior
written consent of Landlord. Landlord may in its sole discretion refuse such
permission or impose any conditions in granting it, and revoke it at will.
Tenant shall not occupy or use the Premises or permit the Premises to be
occupied or used for any purpose, act or thing which is in violation of any
public law, ordinance or governmental regulation or which may be dangerous to
persons or property, or which may invalidate or increase the amount of premiums
for any policy of insurance carried on the Building or covering its operation
or violate the terms thereof;
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provided, however, that if any additional amounts of insurance premiums are
caused by Tenant's occupancy or use of the Premises, without limitation of any
other rights or remedies of Landlord, Tenant shall pay to Landlord said
additional amounts. Tenant, at its sole expense, shall comply with all rules,
regulations and requirements of the Illinois Inspection and Rating Bureau.
Tenant shall not do or permit anything to be done upon the Premises, or bring
or keep anything thereon which is in violation of rules, regulations or
requirements of the local fire department, Illinois Inspection and Rating
Bureau, Fire Insurance Rating Organization, or any other similar authority
having jurisdiction over the Building. Tenant shall not use the Premises for
housing accommodations or, for any immoral or illegal purposes. Tenant shall
not at any time do or permit the manufacture, sale, purchase, use or gift of
any spirituous, fermented, intoxicating or alcoholic liquors.
K. SOUND DEVICES. Tenant shall not place any radio or television or
other antenna aerial or wires or other equipment on the roof or on or in any
part of the inside or outside of the Building other than the inside of the
Premises; operate or permit to be operated any musical or sound producing
instalment or device inside or outside the Premises which may be heard outside
the Premises, operate any electrical, electronic or other device from which may
emanate electrical, electronic or other waves which may interfere with or
impair radio or television broadcasting or reception or any other transmission
to, from or in the Building or elsewhere.
L. NUISANCES. Tenant shall not bring or permit to be in the Building
any bicycle or other vehicle, or dog (except in the company of a blind person)
or other animal; make or permit any noise, vibration or odor to emanate from
the Premises; do anything therein tending to create, or maintain, a nuisance;
disturb, solicit or canvass any occupant of the Building, or do any act tending
to injure the reputation of the Building.
M. CLEANLINESS AND OBSTRUCTION OF PUBLIC AREAS. Tenant shall not
place anything or allow anything to be placed near the glass of any door,
partition, or window which may be unsightly from outside the Premises; take or
permit to be taken in or out of other entrances of the Building, or take or
permit on other elevators, any item normally taken in or out through the
trucking concourse or service doors or in or on freight elevators; or, whether
temporarily, accidentally, or otherwise, allow anything to remain in, place or
store anything in, or obstruct in any way, any passageway, exit, stairway,
elevator, shipping platform, or truck concourse. Tenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and move all supplies, furniture and equipment as soon as
received directly to the Premises and move all such items and waste, other than
waste customarily removed by employees of the Building, being taken from the
Premises, directly to the shipping platform at or about the time arranged for
removal therefrom.
N. ADDITIONAL LOCKS. Tenant shall not attach or permit to be
attached additional locks or similar devices to any door, transom or window;
change existing locks or the
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mechanism thereof, or make or permit to be made any keys for any door other
than those provided by Landlord. (If more than two keys for one lock are
desired, Landlord will provide them upon payment therefor by Tenant.)
O. OVERLOAD ANY FLOOR. Tenant shall not overload any floors.
P. DEFACING PREMISES. Tenant shall not do any painting or decorating
in the Premises; or mark, paint, cut or drill into, drive nails or screws into,
or in any way deface any part of the Premises or the Building, outside or
inside, without the prior written consent of Landlord. (If Tenant desires
signal, communication, alarm or other utility or service connections installed
or changed, the same shall be made by and at the expense of Tenant, with the
approval and under direction of Landlord.)
Q. ALTERATIONS. Tenant shall not make installations, alterations or
additions in or to the Premises without submitting plans and specifications to
Landlord and securing the prior written consent of Landlord in each instance.
Such work shall be done at the sole cost and expense of Tenant by employees of
or contractors employed by Landlord, or with Landlord's consent in writing
given prior to letting of contract, by contractors employed by Tenant, but in
each case, only under written contract previously approved in writing by
Landlord, and subject to all conditions Landlord may impose including, without
limitation, conditions which will assure Landlord that all work will be
performed lien free. All installations, alterations and additions shall be
constructed in a good and workmanlike manner and only new and good grades of
material shall be used, and shall comply with all insurance requirements, and
with all ordinances and regulations of the local governmental subdivisions or
any department or agency thereof, and with the requirements of all statutes and
regulations of the State of Illinois or any department or agency thereof.
Tenant shall permit Landlord to supervise all construction operations within
the Premises and pay to the Landlord a supervision fee equal to 15% of the cost
of all such construction. If alterations are made by Tenant's contractors,
Tenant shall furnish to Landlord prior to commencement thereof, building
permits and certificates of appropriate insurance and bonds, and upon
completion of any installation, alteration or addition, Contractor's Affidavits
and full and final Waivers of Lien covering all labor and material expended and
used. Tenant shall hold Landlord harmless from all claims, costs, damages,
liens and expenses which may arise out of or be connected in any way with said
installations, alterations or additions.
R. RULES AND REGULATIONS. Tenant agrees to and agrees to cause its
employees, agents, clients, customers, invitees, visitors and guests to comply
with the reasonable Rules and Regulations for the Building promulgated by the
Landlord from time to time.
9. RIGHTS RESERVED TO LANDLORD. Landlord shall have the following
rights exercisable without notice and without liability to Tenant for damage or
injury to property, person or business (all claims for damage being hereby
released), and without
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effecting an eviction or disturbance or Tenant's use or possession or giving
rise to any claim for setoffs, or abatement of rent:
A. To change the name or street address of the Building.
B. To install and maintain signs on the exterior and interior
of the Building or anywhere on the Property.
C. To designate all sources furnishing sign painting and
lettering, ice, mineral or drinking water, beverages, foods, towels, vending
machines or toilet supplies used or consumed on the Premises.
D. To have passkeys to the Premises.
E. To decorate, remodel, repair, alter or otherwise prepare
the Premises for reoccupancy during the last month of the Term hereof, if
during or prior to such time Tenant vacates the Premises, or any time after
Tenant abandons the Premises.
F. To enter the Premises at reasonable hours to make
inspections, or to exhibit the Premises to prospective tenants, purchasers or
others, or for other reasonable purposes.
G. To have access to all mail chutes according to the rules
of the United States Post Office.
H. To require all persons entering or leaving the Building
during such hours as Landlord may from time to time reasonably determine to
identify themselves to a watchman by registration or otherwise and to establish
their right to leave or enter, and to exclude or expel any peddler, solicitor
or beggar at any time from the Premises or the Property.
I. To approve the weight, size and location of safes,
computers, all other heavy articles in and about the Premises and the Building
and to require all such items and other office furniture and equipment to be
moved in and out of the Property and Premises only at such time and in such
manner as Landlord shall direct and in all events at Tenant's sole risk and
responsibility.
J. At any time or times, to decorate and to make, at its own
expense, repairs, alterations, additions and improvements, structural or
otherwise, in or to the Premises, the Property or part thereof, and to perform
any acts related to the safety, protection or preservation thereof, and during
such operations to take into and through the Premises or any part of the
Property all material and equipment required and to close or temporarily
suspend operation of entrances, doors, corridors, elevators or other
facilities, provided that Landlord shall cause as little inconvenience or
annoyance to
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Tenant as is reasonably necessary in the circumstances, and shall not do any
act which permanently reduces the size of the Premises. Landlord may do any
such work during ordinary business hours and Tenant shall pay Landlord for
overtime and for any other expenses incurred if such work is done during other
hours at Tenant's request.
K. To do or permit to be done any work in or about the
Premises or the Property or any adjacent or nearby building,land, street or
alley.
L. To grant to anyone the exclusive right to conduct any
business or render any service on the Property, provided such exclusive right
shall not operate to exclude Tenant from the use expressly permitted by Section
6 of this Lease.
M. To close the Building at 8:00 p.m. or at such other
reasonable time as Landlord may determine, subject, however, to Tenant's right
to admittance under such regulations as shall be prescribed from time to time
by Landlord.
N. To prohibit the placing of vending or dispensing machines
of any kind in or about the Premises without the prior written permission of
the Landlord.
O. Landlord reserves the right to require Tenant to move to
other space in the Building which, except for location or floor, is equivalent
to the Premises, upon receipt of thirty (30) days' written notice from
Landlord, in which event, Landlord shall pay all moving costs and all other
reasonable costs associated with moving, the new space shall thereupon become
the Premises demised hereunder at the same Rents as are provided for herein and
the space from which Tenant is required to move shall cease to be the Premises
demised hereunder.
P. All other rights reserved by the, Landlord pursuant to the
provisions of this Lease.
10. TELEPHONE, ELECTRIC AND OTHER SERVICES.
A. Tenant shall make arrangements directly with the telephone
companies servicing the Building for such telephone service in the Premises as
may be desired by Tenant. Tenant shall pay the entire cost of the installation
and maintenance of an electrical meter in the Premises, all telephone charges,
electricity consumed within the Premises, maintenance of light fixtures and
replacement of lamps, bulbs, tubes, ballasts and starters. Landlord and Tenant
do hereby acknowledge that the electricity for the lighting fixtures located in
the Premises does not (or will not) run through and be measurable by the
electrical meter installed (or to be installed) in the Premises.
B. If Tenant desires telegraphic, telephonic, burglar alarm,
computer installations or signal service (which service shall be at Tenant's
sole expense), Landlord shall, upon request, direct where and how all
connections and wiring for such service
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shall be introduced and run. In the absence of such directions, Tenant shall
make no borings, cutting or install any wires or cables in or about the
Premises.
C. Tenant covenants and agrees that Landlord shall in no
event be liable or responsible to Tenant for any loss, damage or expense which
Tenant may sustain or incur if either the quality or character of electrical
service is changed or is no longer suitable for Tenant's requirements. Tenant
covenants and agrees that at all times its use of electric current shall never
exceed the capacity of existing feeders to the Building when reviewed in
conjunction with electrical usage of other tenants in the Building or the
Premises or wiring or installation; and also that it shall make no alterations
or additions to the electric equipment and/or appliances without the prior
written consent of Landlord in each instance.
11. LANDLORD'S TITLE. Landlord's title is and always shall be
paramount to the title of Tenant. Nothing herein contained shall empower
Tenant to do any act which can, shall or may encumber the title of Landlord.
12. QUIET ENJOYMENT. Subject to the provisions of this Lease,
Landlord covenants that Tenant, on paying the Rent and performing the covenants
of this Lease on its parts to be performed, shall and may peaceably and quietly
have, hold and enjoy the Premises for the Term of this Lease.
13. WAIVER OF CERTAIN CLAIMS. To the full extent now, or hereafter,
permitted by law, except any act of negligence on the part of Landlord, Tenant
waives and releases all claims against Landlord, its officers, directors,
agents, employees and servants, in respect of, and they shall not be liable for
injury to person or damage to property sustained by Tenant or by any occupant
of the Premises or the Property, or any other person, occurring in or about the
Property, or the Premises resulting directly, or indirectly, from any existing
or future condition, defect, matter or thing in the Premises, the Property or
any part of it, or from equipment or appurtenances therein, or from accident,
or from any occurrence, act, or from negligence or omission of any Tenant or
occupant of the Property, or of any other person including Landlord, its
officers, directors, agents, employees and servants. This section shall apply
especially, but not exclusively, to damage caused as aforesaid or by the
flooding of basements or other subsurface areas or by refrigerators, sprinkling
devices, air conditioning apparatus, water, snow, frost, steam, excessive heat
or cold, falling plaster, broken glass, sewage, gas, odors or noise, or the
bursting or leaking of pipes or plumbing fixtures, and shall apply equally
whether any such damage results from the act or omission of other tenants,
occupants or servants of the Property or of any other persons including
Landlord, its officers, directors, agents, employees and servants, and whether
such damage be caused or result from any thing or circumstance above mentioned,
or any other thing or circumstance whether alike or wholly different in nature.
If any such damage to the Premises or the Property or any equipment or
appurtenance therein, or to tenants thereof, results from any act or omission
or negligence of Tenant, its agents, employees or invitees, Landlord
-16-
may, at Landlord's option, repair such damage and Tenant shall, upon demand by
Landlord, reimburse Landlord forthwith for all costs of such repairs and
damages both to the Property and to the tenants thereof. All property on the
Property or in the Premises belonging to Tenant, its agents, employees or
invitees, or to any occupant of the Premises shall be there at the risk of
Tenant or other person only, and Landlord shall not be liable for damage
thereto or theft, misappropriation or loss thereof. Tenant agrees to hold
Landlord, its officers, directors, agents, employees and servants harmless and
to indemnify it against claims and liability for injuries to all persons and
for the damage to, or the theft, misappropriation or loss of all property
occurring in or about the Premises, or due to any act or omission of Tenant,
its agents or employees or invitees.
14. CONDITION OF PREMISES. Tenant's taking possession shall be
conclusive evidence that the Premises were then in good order, repair and
satisfactory condition. Except as may be set forth in Exhibit B attached
hereto, no promise has been made to alter, remodel, improve, repair, decorate
or clean the Premises or any part thereof, and no representation respecting the
condition of the Premises or the Property has been made to Tenant, except as
made herein.
15. TERMINATION. At the termination of this Lease, by lapse of time
or otherwise:
A. SURRENDER OF KEYS. Tenant shall surrender all keys of the
Premises to Landlord and make known to Landlord the explanation of all
combination looks remaining on the Premises.
B. RETURN OF PREMISES. Tenant shall return to Landlord the
Premises and all equipment and fixtures of Landlord in as good a condition and
state of repair as when Tenant originally took possession subject, however, to
(a) the provisions of Paragraphs C and D of this Section 15; (b) ordinary wear
and loss or damage by fire; or (c) other casualty covered in Section 17 hereof,
failing which Landlord may restore the Premises, equipment and fixtures to such
condition and state of repair and Tenant shall, upon demand, pay to landlord
the cost thereof.
C. REMOVAL OF ADDITIONS. All installations, additions,
hardware, non-trade fixtures and improvements temporary or permanent, except
movable furniture and equipment belonging to Tenant, in or upon the Premises,
whether placed there by Tenant or Landlord, shall be Landlord's property and
shall remain upon the Premises, all without compensation, allowance or credit
to Tenant; provided, however, that if prior to such termination or within ten
days thereafter Landlord so directs by notice, Tenant shall promptly remove the
installations, additions, hardware, non-trade fixtures and improvements, placed
in or upon the Premises by Tenant and designated in the notice, failing which
Landlord may remove the same and Tenant shall, upon demand, pay to Landlord the
cost of such removal and of any necessary restoration of the Premises.
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D. FLOOR COVERING. Tenant may remove any floor covering
entirely paid for and laid by Tenant, provided Tenant (a) removes all
fastenings, paper, glue, bases and other vestiges thereof and restores the
floor surface to its previous condition, or (b) pays to Landlord, upon demand,
the cost of restoring the floor surface condition.
E. PROPERTY PRESUMED ABANDONED. All fixtures, installations,
and personal property belonging to Tenant not removed from the Premises upon
termination of this Lease and not required by Landlord to have been removed as
provided in Paragraph C of this Section 15, shall be conclusively presumed to
have been abandoned by Tenant and title thereto shall pass to Landlord under
this Lease as by a Bill of Sale.
16. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord in each instance: (i) assign, transfer, mortgage,
pledge, hypothecate or encumber, or subject to or permit to exist upon or be
subjected to any lien or charge, this Lease or any interest under it; (ii)
allow to exist or occur any transfer of or lien upon this Lease or the Tenant's
interest herein by operation of law; (iii) sublet the Premises or any part
thereof, or (iv) permit the use or occupancy of the Premises or any part
thereof for any purpose not provided for under Section 6 of this Lease or by
anyone other than the Tenant and Tenant's employees. In no event shall this
Lease be assigned or assignable by voluntary or involuntary bankruptcy
proceedings or otherwise, and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings.
Tenant shall, by notice in writing, advise Landlord of its intention
from, on and after a stated date (which shall not be less than sixty (60) days
after date of Tenant's notice) to assign or transfer its interest as Tenant in
this Lease, or sublet any part or all of the Premises for the balance or any
part of the Term, and in such event, Landlord shall have the right to be
exercised by giving written notice to Tenant thirty (30) days after receipt of
Tenant's notice, to recapture the space. described in Tenant's notice and such
recapture notice shall, if given, cancel and terminate this Lease with respect
to the space therein described as of the date stated in Tenant's notice.
Tenant's said notice shall state the name and address of the proposed subtenant
or assignee and a true and complete copy of the proposed sublease or assignment
shall be delivered to Landlord with said notice. If Tenant's notice shall
cover all of the Premises, and Landlord shall give the aforesaid recapture
notice with respect thereto, the Term of this Lease shall expire and end on the
date stated in Tenant's notice as fully and completely as if that date had been
herein definitely fixed for the expiration of the Term. If, however, this
Lease is canceled pursuant to the foregoing with respect to less than the
entire Premises, the Rent herein reserved shall be adjusted on the basis of the
number of square feet retained by Tenant in proportion to the number of square
feet contained in the Premises, as described in this Lease, Tenant shall pay
for the cost of physically separating the portion of space so recaptured from
the Premises, and this Lease, as so amended, shall continue thereafter in full
force and effect. If Landlord, upon receiving Tenant's said notice with
respect to any such space, shall not exercise its right to cancel
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as aforesaid, Landlord will not unreasonably withhold its consent to Tenant's
assignment as aforesaid or subletting the space covered by its notice.
Any subletting or assignment hereunder shall not release or discharge
Tenant of or from any liability, whether past, present or future, under this
Lease, and Tenant shall continue fully liable thereunder. The subtenant or
subtenants or assignee shall agree to comply with and be bound by all of the
terms, covenants, conditions, provisions and agreements of this Lease to the
extent of the space sublet or assigned, and Tenant shall deliver to Landlord
promptly after execution, an executed copy of each such sublease or assignment
and an agreement of compliance by each such subtenant or assignee.
Notwithstanding anything to the contrary in this Section 16, if Tenant
is a corporation whose shares of stock are not publicly traded and if during
the Term of this Lease the ownership of the shares of stock which constitutes
control of Tenant changes by reason of sale, gift or death, Tenant shall notify
Landlord of such change within five (5) days thereof, and if, and only if, the
operation from the Premises changes the corporation, after giving effect to
such change in ownership, has a net worth of less than the Tenant on the date
of execution of this Lease, the Landlord, at its option, may at any time
thereafter terminate this Lease by giving Tenant written notice of said
termination at least sixty (60) days prior to the date of termination stated in
the notice. The term "control", as used herein, means the power to directly or
indirectly direct or cause the direction of the management or policies of the
Tenant.
If Tenant shall assign or transfer its interest in this Lease or
sublet the Premises whether or not it first obtained Landlord's consent at a
rental in excess of the rent due and payable by Tenant under the provisions of
Sections 3 and 4 of this Lease, 50% of said excess rent and all other
consideration received by the Tenant relating to such assignment or sublet
shall be paid to the Landlord and the Tenant shall be entitled to retain the
remaining 50%.
Any sale, assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this paragraph at Landlord's
written election shall be of no effect and void.
The Landlord may assign this Lease and thereafter shall not be liable
hereunder; provided, that the Landlord's assignee shall assume the Landlord's
obligations hereunder. No assignee, sublettee or licensee of Tenant shall be
entitled to exercise or receive the benefits of any option or right contained
in this Lease or any rider or future amendment hereto granting the Tenant the
right:
(1) to extend or renew the Term;
(2) to lease any additional space in the Building;
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(3) to utilize any reserved or underground parking space; or
(4) to utilize any health club memberships.
17. UNTENANTABILITY. In the event (a) Premises are made
substantially untenantable by fire or other casualty, or (b) the Building is so
damaged by fire or other casualty that Landlord shall decide to demolish or not
rebuild the same, then, in any of such events, Landlord shall have the right to
terminate this Lease by notice to Tenant within ninety (90) days after the date
of such fire or other casualty and the Rent shall be apportioned on a per them
basis and paid to the date of such fire or other casualty. In the event the
Premises are made untenantable by fire or other casualty and Landlord shall
decide to rebuild and restore the same, this Lease shall not terminate and
Landlord shall repair and restore the Premises at Landlord's expense and with
due diligence, subject, however, (i) to reasonable delays for insurance
adjustments and (ii) delays caused by forces beyond Landlord's control, and the
Rent shall abate on a per diem basis during the period of reconstruction and
repair.
In the event the Premises are not made substantially untenantable,
then Landlord shall, except during the last year of the term hereof, proceed
with all due diligence to repair and restore the Premises, subject, however, to
(i) reasonable delays for insurance adjustments, and (ii) delays caused by
forces beyond Landlord's control. In such event, the Rent shall abate in
proportion to the non-useability of the Premises during the period while
repairs are in progress unless such partial damages are due to the fault or
neglect of Tenant. If the partial damage is the result of the fault or neglect
of Tenant, Rent shall not abate during said period. If the Premises are made
partially untenantable as aforesaid during the last year of the Term hereof,
Landlord or Tenant shall have the right to terminate this Lease as of the date
of fire or other casualty, in which event, the Rent shall be apportioned on a
per diem basis and paid to the date of such fire or other casualty.
18. RIGHTS AND REMEDIES OF LANDLORD. All rights and remedies of
Landlord herein enumerated shall be cumulative and none shall exclude any other
right or remedy allowed by law.
A. If any voluntary or involuntary petition or similar
pleading under any section or sections of any bankruptcy act shall be filed by
or against Tenant, or any voluntary or involuntary proceeding in any court or
tribunal shall be instituted to declare Tenant insolvent or unable to pay
Tenant's debts, or Tenant makes an assignment for Tenant or for the major part
of assignment for the benefit of its creditors, or a trustee or receiver is
appointed for Tenant or for the major part of Tenant's property, then and in
any such event, Landlord may, if Landlord so elects, but not otherwise, and
with notice of such election, and with or without entry or other action by
Landlord, forthwith terminate this Lease, and, notwithstanding any other
provisions of this Lease, Landlord shall forthwith upon such termination be
entitled to recover damages in an amount
-20-
equal to the then present value of the Rent specified in Sections 3 and 4 of
this Lease for the residue of the stated term hereof and any extension or
renewal thereof agreed to by Tenant, less the fair rental value of the Premises
for the residue of the stated term and any extension or renewal thereof agreed
to by Tenant.
B. If Tenant defaults in the prompt payment of Rent and such
default shall continue for ten or more days after the same be due and payable
or in the performance or observance of any other provision of this Lease and
such other default shall continue for ten or more days after notice thereof
shall have been given to Tenant, or if the leasehold interest of Tenant be
levied upon under execution or attached by process of law, or if Tenant
abandons the Premises, then and in any such event, Landlord, if it so elects,
with or without notice or demand, forthwith, or at any time thereafter while
such default continues, either may terminate Tenant's right to possession,
without terminating this Lease, or may terminate this Lease. If the term of
any lease, other than this Lease, made by Tenant for any premises in the
Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall
empower Landlord, at Landlord's sole option, to terminate this Lease by notice
to Tenant.
C. Upon termination of this Lease, whether by lapse of time
or otherwise, or upon any termination of Tenant's right to possession without
termination of this Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and hereby
grants to Landlord full and free license to enter into and upon the Premises in
such event with or without process of law and to repossess Landlord of the
Premises as of Landlord's former estate and to expel or remove tenant and any
others who may be occupying or within the Premises and to remove any and all
property therefrom, using such force as may be necessary, without being deemed
in any manner guilty of trespass, eviction, forcible entry or detainer, or
conversion of property, and without relinquishing Landlord's rights to Rent or
any other right given to Landlord hereunder or by operation of law. Tenant
expressly waives the right to a jury trial. Except for the notices
specifically required by this Lease, Tenant expressly waives the service of any
demand for payment of Rent or for possession and the service of any notice of
Landlord's election to terminate this Lease or to reenter the Premises,
including any and every form of demand and notice prescribed by any statute or
other law, and agrees that the simple breach of any covenant or provision of
this Lease by Tenant shall, of itself, without the service of any notice or
demand whatsoever, except for the notices specifically required by this Lease,
constitute a forcible detainer by Tenant of the Premises within the meaning of
the statutes of the State of Illinois.
D. If Tenant abandons the Premises or otherwise entitles
Landlord so to elect, and if Landlord elects to terminated Tenant's right
without terminating this Lease, Landlord may, at Landlord's option, enter upon
the Premises, remove Tenant's signs and other evidences of tenancy, and take
and hold possession thereof as provided in Paragraph C of this Section 18,
without such entry and possession terminating this
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Lease, or releasing Tenant, in whole or in part, from Tenant's obligation to
pay the Rent hereunder for the full term, and in any such case, Tenant shall
pay forthwith to Landlord a sum equal to the present value of the entire amount
of the Rent specified in Section 3 of this Lease for the residue of the stated
term plus any other sums then due hereunder. Upon and after entry into
possession without termination of this Lease, Landlord may, but need not, relet
the Premises or any part thereof for the account of Tenant to any person, firm
or corporation other than Tenant for such rent, for such time and upon such
terms as Landlord in Landlord's sole discretion shall determine, and Landlord
shall not be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant about such reletting. In any such case, Landlord
may make repairs, alterations and additions in or to the Premises, and
redecorate the same to the extent deemed by Landlord necessary or desirable,
and Tenant shall, upon demand, pay the cost thereof, together with all expenses
of the reletting. If the consideration collected by Landlord upon any such
reletting for Tenant's account is not sufficient to pay the full amount of
unpaid Rent reserved in this Lease, together with the cost of repairs,
alterations, redecorating and Landlord's expenses, Tenant shall pay to Landlord
the amount of any deficiency, upon demand. If the consideration so collected
from any-such reletting is more than sufficient to pay the full amount of the
rent reserved herein, together with the costs and expenses of Landlord,
Landlord, at the end of the stated term of this Lease, shall account for the
surplus to Tenant.
E. **INTENTIONALLY OMITTED**
F. Any and all property which may be removed from the
Premises by Landlord pursuant to the authority of this Lease or of law, to
which Tenant is or may be entitled, may be handled, removed or stored in a
commercial warehouse or otherwise by Landlord at the risk, cost and expense of
Tenant, and Landlord shall in no event be responsible for the value,
preservation and safekeeping thereof. Tenant shall pay to Landlord, upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the game shall be in Landlord's possession or
under Landlord's control. Any such property of Tenant not removed from the
Premises or retaken from storage by Tenant at the end of the term, however
terminated, shall by Landlord's election made at any time be conclusively
deemed to have forever abandoned by Tenant.
G. The prevailing party shall be entitled to collect, all
costs, charges and expenses, including the fees of counsel, agents and others
retained by the prevailing party, incurred by the prevailing party in enforcing
the non-prevailing party's obligations hereunder or incurred by the prevailing
party in any litigation, negotiation or transaction in which the non-prevailing
party causes prevailing party, without its fault, to become involved or
concerned.
H. If Tenant violates any of the terms and provisions of this
Lease, or defaults in any of its obligations hereunder, other than the payment
of Rent or other
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sums payable hereunder, such violations may be restrained or such obligation
enforced by injunction.
I. Tenant hereby grants to Landlord a second lien and
security interest upon the interest of Tenant under this Lease and the personal
property of the Tenant located in the Premises to secure the payment of monies
due under this Lease, which lien may be foreclosed.
19. EMINENT DOMAIN. If the Property, or any portion thereof which
includes a substantial part of the Premises, shall be taken or condemned by any
competent authority for any public use or purpose, the term of this Lease shall
end upon, and not before, the date when the possession of the part so taken
shall be required for such use or purpose, and without apportionment of the
award. Rent shall be apportioned as of the date of such termination. If any
condemnation proceeding shall be instituted in which it is sought to take or
damage any part of the Property, or if the grade of any street or alley
adjacent to the Property is changed by any competent authority and such change
of grade makes it necessary or desirable to remodel the Property to conform to
the changed grade, Landlord shall have the right to cancel this Lease upon not
less than ninety (90) days' notice prior to the date of cancellation designated
in the notice. No money or other consideration shall be payable by Landlord to
Tenant for said cancellation, and the Tenant shall have no right to share in
the condemnation award or in any judgment for damages caused by said eminent
domain proceeding. Notwithstanding the foregoing, Tenant shall have the right
to make a separate claim with the condemning authorities for Tenant's moving
costs and unamortized costs of Tenant improvements paid for by the Tenant.
20. SUBORDINATION OR SUPERIORITY OF THIS LEASE. The rights and
interests of Tenant under this Lease shall be subject and subordinate to any
mortgage or trust deed that exists now or may hereafter be placed upon the
Building or Real Estate or Property and to any and all advances to be made
thereunder and to the interest thereon, and to all renewals, replacements and
extensions thereof. Any mortgagee or trustee may elect to give the rights and
interests of Tenant under this Lease priority over the lien of its mortgage or
trust deed. In the event of such election and upon notification by such
mortgagee or trustee to Tenant to that effect, the rights and interests of
Tenant under this Lease shall be deemed to have priority over the lien of said
mortgage or trust deed, whether this Lease is dated prior to or subsequent to
the date of such mortgage or trust deed. Tenant shall promptly execute and
promptly deliver whatever reasonable instruments may be required for such
purposes and in the event Tenant fails to so do within ten (10) days after
demand, in writing, Tenant shall, without further notice, be deemed in default
hereunder.
In the event of a foreclosure of a mortgage or the sale of the
Property pursuant to a trust deed or if Landlord's interest in the Premises is
conveyed or transferred in lieu of foreclosure (i) the successor landlord shall
not be liable for any default of a prior
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landlord or any other matter which occurred prior to the date such successor
succeeded to the Landlord's interest nor shall such successor be bound by or
subject to any offsets or defenses which Tenant may have against Landlord; (ii)
upon request of the successor landlord, Tenant shall attorn and will execute
and deliver such instruments as may be necessary to evidence such attornment;
and (iii) no successor to Landlord shall be bound to recognize any prepayment
of Rent by more than thirty days, nor (iv) shall any successor to Landlord have
any liability for any security deposit not physically received by it.
21. SPRINKLERS. If at any time during the Term a "sprinkler system"
exists or is installed on the Property and if such "sprinkler system" (if any)
or any of its appliances shall be damaged or injured or not in proper working
order by reason of any act or omission of Tenant, Tenant's agents, servants,
employees, licensees or visitors, Tenant shall forthwith restore the same to
good working condition at its own expense; and if the Board of Fire
Underwriters or Fire insurance Exchange or any bureau, department or official
of the state or city government, requires or recommends that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied by reason of Tenant's business or the location of partitions,
trade fixtures, or other contents of the Premises, or for any other reason, or
if any such changes, modifications, alterations, additional sprinkler heads or
other equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate as fixed by said Exchange, or by any fire insurance company, Tenant shall,
at Tenant's expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler heads or other equipment.
22. PRIOR OCCUPANCY. In the event Tenant is permitted to occupy the
Premises prior to commencement of the Term, then all the provisions of this
Lease shall be in full force and effect commencing at such occupancy; such
occupancy shall be on the basis of a month-to-month tenancy, and Rent for such
period shall be paid at the monthly rate set forth in Sections 3 and 4.
23. NOTICE. In every instance where it shall be necessary or
desirable for Tenant to give or serve any notice or demand upon Landlord, such
notice or demand shall be sent by United States Registered or Certified Mail,
postage prepaid, addressed to Landlord c/o the Rental Agent at the place where
rental under this Lease is then being paid. Any notice or demand to be given
or served by Landlord to Tenant shall be effective if mailed or delivered by
Landlord or Landlord's Rental Agent to the Premises, or to such other address
as may appear on the records of Landlord. Notice mailed as aforesaid shall be
conclusively deemed to have been served at the close of the second business day
following the date said notice was mailed.
24. SUCCESSORS AND ASSIGNS. Each provision hereof shall extend to
and shall, as the case may require, bind and inure to the benefit of Landlord
and Tenant and their respective heirs, legal representatives, successors and
assigns, provided that this Lease
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shall not inure to the benefit of any assignee, heir, legal representative,
transferee or successor of Tenant except upon the prior written consent or
election of Landlord, as provided in Section 16.
The term "Landlord", as used in this Lease, means only the owner, or
the mortgagee in possession, for the time being, of the Property (or the owner
of a lease of the Building or of the Real Estate and the Building) of which the
Premises form a part, so that in the event of any sale or sales of said Real
Estate and the Building or of said Lease, or in the event of a lease of the
Building, or of the Real Estate and the Building, Landlord shall be and hereby
is entirely free and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser at any such sale, or the said lessee of the Building, or of the
Real Estate and the Building, that the purchaser or the lessee of the Building
has assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder.
25. INSURANCE.
(a) Landlord and Tenant agree to have all property insurance
policies which may be carried by either of them endorsed with a clause
providing that any release from liability of or waiver of claim for recovery
from the other party entered into in writing by the insured thereunder prior to
any loss or damage shall not affect the validity of said policy or the right of
the insured to recover thereunder. Without limiting any release or waiver of
liability or recovery contained in any other paragraph of this Lease but rather
in confirmation and furtherance thereof, Landlord and Tenant each hereby waive
any and every claim for recovery from the other, its officers, agents,
employees and beneficiaries for any and all loss of or damage to the Property
or to the contents thereof, which loss or damage is covered by valid and
collectible fire and extended coverage insurance policies, to the extent that
such loss or damage is recoverable under said insurance policies. Inasmuch as
this mutual waiver will preclude the assignment of any such claim by
subrogation (or otherwise) to an insurance company (or any other person),
Landlord and Tenant each agree to give to each insurance company which has
issued, or in the future may issue, to its policies of fire and extended
coverage insurance, written notice of the terms of this mutual waiver, and to
have said insurance policies properly endorsed, if necessary to prevent the
invalidation of said insurance coverage by reason of said waiver.
(b) At all times during the Term of this Lease, Tenant shall
at its sole cost and. expense maintain in full force and effect insurance
protecting Tenant and Landlord and Landlord's beneficiaries and their
respective agents and any other parties designated by Landlord from time to
time, with terms, coverages and in companies at all times satisfactory to
Landlord and with such increases in limits as Landlord may, from time to time,
request. Initially, such coverage shall be in the following amounts:
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(i) Comprehensive General Liability Insurance, including
Contractual Liability insuring the indemnification provisions
contained in this Lease, with limits of not less than One Million
Dollars ($1,000,000.00) combined single limit per occurrence for
Bodily Injury, Death and Property Damage. The Comprehensive General
Liability policy shall include as additional insureds the Landlord,
with a severability of interest endorsement.
(ii) Insurance against (A) "All Risks" of physical loss
coverage for, movable fixtures, office equipment, furniture, trade
fixtures, merchandise and all other items of Tenant's property on the
Premises, and (B)loss of use of the Premises.
Tenant shall, prior to the commencement of the Term hereof and
prior to the expiration of any policy, furnish Landlord certificates evidencing
that all required insurance is in force and providing that such insurance may
not be cancelled or changed without at least thirty (30) days' prior written
notice to Landlord and Tenant (unless such cancellation is due to non-payment
of premiums, in which event ten (10) days' prior written notice shall be
provided).
26. MISCELLANEOUS.
A. Force Majeure. Wherever there is provided in this lease a
time limitation for performance by the Landlord or Tenant of any construction,
repair, maintenance or service (but not the payment of Rent), the time provided
for shall be extended for as long as and to the extent that delay in compliance
with such limitation is due to an act of God, strikes, governmental control or
other factors beyond the reasonable control of the Landlord or Tenant.
B. If any provision of this Lease or application to any party
or circumstances shall be determined by any court of competent jurisdiction to
be invalid and unenforceable to any extent, the remainder of this Lease or the
application of such provision to such person or circumstances, other than those
as to which it is so determined invalid or unenforceable to any extent, shall
not be affected thereby, and each provision hereof shall be valid and shall be
enforced to the fullest extent permitted by law.
C. The headings of sections are for convenience only and do
not define, limit or construe the contents of such sections or subsections.
References made in this Lease to numbered sections and subsections shall refer
to the numbered sections or subsections of this Lease, unless otherwise
indicated.
D. The Lease is to be executed in copies, each of which
executed copy shall constitute an original. In the event of a conflict between
the provisions of any
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original lease with the provisions of any other original lease, then in such
event, the provisions of Landlord's original lease will govern and control.
E. Each of the parties agrees, at the request of the other,
to execute such instruments or documents as any party may reasonably request,
acknowledging: the date of Completion of the Premises; the date of acceptance
of possession of the same; the date of commencement of rentals; the
commencement of the term; the commencement and expiration dates of this Lease;
the Operating Expenses; Taxes for any Lease Year; the number of rentable square
feet demised to the Tenant; Annual Base Rental amount; and the compliance or
noncompliance by any party with any of the terms or provisions of this Lease;
and to evidence such other or further matters as may be so reasonably requested
by Tenant, Landlord or any Mortgagee or Trustee having a valid lien on the
Property or any part thereof.
F. Tenant represents that except for Miglin-Beitler
Management Corporation and C.B. Commercial Real Estate Group, Inc., it has not
dealt with any real estate broker in connection with this Lease and, to its
knowledge, no broker other than Miglin-Beitler Management Corporation and C.B.
Commercial Real Estate Group, Inc. initiated or participated in the negotiation
of this Lease, submitted or showed the Premises or any other space in the
Building to Tenant or is entitled to any commission in connection with this
Lease. Tenant hereby agrees to indemnify, defend, and hold Landlord harmless
from and against any and all claims of any other real estate broker for
commissions in connection with this Lease who claim to have dealt with the
Tenant.
G. No receipt of money by Landlord from Tenant after the
termination of this Lease, the service of any notice, the commencement of any
suit or final judgment for possession shall reinstate, continue or extend the
term of this Lease or affect any such notice, demand, suit or judgment.
H. No waiver of default of Tenant shall be implied, and no
express waiver shall affect any default other than the default specified in
such waiver and that only for the time and to the extent therein stated.
I. Clauses, plats, exhibits and riders, if any, signed by
Landlord and Tenant and endorsed on or affixed to this Lease are part hereof
and in the event of variation or discrepancy, the duplicate original hereof,
including such clauses, plats and riders, if any, held by Landlord shall
control.
J. Submission of this instrument for examination or signature
by Tenant does not constitute a reservation of or option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant. Submission of this instrument to Landlord, signed by
Tenant, shall construe and irrevocable offer to lease the Premises on the terms
herein stated for a period of thirty (30) days from the date of such
submission.
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K. Wherever the consent of either Landlord or Tenant is
required by the provisions of this Lease, such party shall not unreasonably
withhold or delay such consent.
L. Rentable Area of the Premises. Tenant acknowledges that
the rentable square feet of the Premises attributes to the Premises a portion
of the common and service areas of the Building.
M. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and may be
modified or altered only by agreement, in writing, between Landlord and Tenant.
No modifications, termination or surrender of this Lease or surrender of the
Premises or any part thereof or of any interest therein by Tenant shall be
valid or effective unless agreed to and accepted, in writing, by Landlord, and
no act by any representative or agent of Landlord, other than delivery of such
a written agreement and acceptance by Landlord shall constitute an acceptance
thereof.
N. This Lease shall be construed and enforced in accordance
with the laws of the State of Illinois.
O. As used herein, the terms "Landlord" or "Tenant" and any
pronouns used to refer to Landlord or Tenant shall, as the context requires,
include the singular and the plural, and the masculine, feminine and neuter.
P. This Lease has been jointly reviewed and modified by all
of the parties hereto and shall be construed accordingly; any principle or rule
of construction which construes any provision of this Lease against the draftor
of the Lease is hereby declared to be inapplicable to this Lease and all
parties to this Lease.
Q. Any claim which Tenant may have against Landlord for
default in performance in any of the obligations herein contained to be kept
and per-formed by the Landlord shall be deemed waived, unless such claim is
asserted by written notice thereof to the Landlord within thirty (30) days of
the commencement of the alleged default or of accrual of the cause of action
and unless suit is brought thereon within twelve (12) months subsequent to the
accrual of such cause of action. Furthermore, Tenant agrees to look solely to
Landlord's interest in the Property for the recovery of any judgment from
Landlord, it being agreed that Landlord or if Landlord is a partnership, its
partners, whether general or limited, or if Landlord is a corporation, its
directors, officers or shareholders, shall never be personally liable for any
such judgment.
27. ESTOPPEL CERTIFICATES. The Tenant agrees that, from time to time
upon not less than ten days prior written request by Landlord, the Tenant, or
Tenant's duly authorized representative having knowledge of the following
facts, will deliver to
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Landlord a statement in writing certifying: (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications that the
Lease, as modified, is in full force and effect); (ii) the dates to which Rent
and other charges have been paid; and (iii) that the Landlord is not in default
under any provision of this Lease, or, if in default, the nature thereof in
detail, it being intended that any such statement may be relied upon by any
prospective purchaser or tenant of the Property, any mortgagees or prospective
mortgagees thereof, or any prospective assignee of any mortgage thereof.
Tenant shall execute and deliver whatever instruments may be required for such
purposes and in the event Tenant fails so to do within twenty (20) days after
demand in writing, Tenant shall be considered in default under this Lease.
28. LANDLORD'S EXONERATION. It is expressly understood and agreed by
and between the parties hereto, anything herein to the contrary
notwithstanding, that each and all of the representations, warranties,
covenants, undertakings and agreements herein made on the part of any Landlord
while in form purporting to be the representations, warranties, covenants,
undertakings and agreements of such Landlord are, nevertheless, each and every
one of them made and intended, not as personal representations, warranties,
covenants, undertakings and agreements by such Landlord, or for the purpose or
with the intention of binding such Landlord personally, but are made and
intended for the purpose only of subjecting such Landlord's interest in the
Premises and the Property to the terms of this Lease and for no other purpose
whatsoever, and in case of default hereunder by such Landlord (or default
through, under or by any of its beneficiaries, or any of the agents or
representatives of the Landlord or said beneficiaries), Tenant shall look
solely to the interests of such Landlord in the Premises and the Property; that
no Landlord nor any of the beneficiaries of any Landlord which is a land trust
shall have any personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained and no
liability or duty shall rest upon any Landlord which is a land trust to
sequester the trust estate or the rents, issues and profits arising therefrom,
or the proceeds arising from any sale or other disposition thereof, that no
personal liability or personal responsibility of any sort is assumed by, nor
shall at any time be asserted or enforceable against, Landlord, individually or
personally, or against any of its beneficiaries or any of the beneficiaries
under any land trust which may become the owner of any representation,
warranty, covenant, if any, being expressly waived and released by Tenant and
by all persons claiming by, through or under Tenant.
29. CONSTRUCTION OF PREMISES - CREDIT AND PAYMENT. The Landlord and
the Tenant do hereby acknowledge that Tenant has delivered to the Landlord and
Landlord has approved that certain set of plans (including Final Working
Drawings) (the "Final Plans") dated January 31, 1992, prepared by The Interior
Design Group, consisting of four pages, labelled 1 of 4, 2 of 4, 3 of 4 and 4
of 5. The Landlord does hereby agree to build out the Premises substantially
in accordance with the Final Plans. Notwithstanding the provisions of Exhibit
B to the Lease to the contrary, the cost of all work (the "Work") necessary to
build out the Premises in accordance with the Final Plans
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(including, but not limited to, Landlord's Work, Extra Work and all plans
(including spare plans), specifications, working drawings, permits, meters,
blinds and all labor and materials) shall, subject to the credit granted
herein, be the responsibility of the Tenant and payment of such amount in
excess of the credit granted herein shall be made by the Tenant to the Landlord
no later than the Completion Date. The Landlord does hereby grant to the
Tenant a credit (the "Construction Credit") equal to the lesser of: (i) the
actual cost of the Work; or (ii) that amount determined by multiplying the
number of rentable square feet contained in the Premises by $12.00. The
Construction Credit shall be applied by the Landlord to pay the cost of all
Work necessary to build out the Premises, pursuant to said Exhibit B as the
Work progresses.
30. OPERATING EXPENSE MODIFICATION. Section 4 of the Lease is
amended by adding thereto the following provision:
"D. OPERATING EXPENSES. Notwithstanding any provision of
this Lease to the contrary, it is mutually agreed that the Base Rent
payable by the Tenant under this Lease does not include Operating
Expenses. The Tenant agrees to pay to Landlord's Rental Agents the
Tenant's Proportionate Share of all Operating Expenses, as follows:
(i) For the Base Year, the greater of either (a) the
Tenant's Proportionate Share of the Operating Expenses paid or
accrued during the Base Year multiplied by that fraction the
numerator of which is twelve (12), minus the number of months
that have elapsed from January 1 of the Base Year to the month
immediately preceding the month in which the Term of this
Lease commences and the denominator of which is twelve, or (b)
one cent (.01);
(ii) For the first Lease Year immediately following
the Base Year, the greater of either (a) the Tenant's
Proportionate Share of the Operating Expenses paid or accrued
during the said Lease Year, but not to exceed one hundred and
eight percent (108%) of the amount that Tenant would have been
required to pay if the Term of this Lease had commenced on
January 1 of the Base Year, or (b) one cent (.01);
(iii) For the second Lease Year immediately
following the Base Year, the greater of either (a) the
Tenant's Proportionate Share of the Operating Expenses paid or
accrued during the said Lease Year, but not to exceed one
hundred sixteen percent (116%) of the amount that Tenant would
have been required to pay if the Term of this Lease had
commenced on January 1 of the Base Year, or (b) one cent
(.01);
(iv) For the third Lease Year immediately following
the Base Year, the greater of either (a) the Tenant's
Proportionate Share of the Operating
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Expenses paid or accrued during the said Lease Year, but not to exceed
one hundred twenty-four percent (124%) of the amount that Tenant would
have been required to pay if the Term of this Lease had commenced on
January 1 of the Base Year, or (b) one cent (.01);
(v) For the fourth Lease Year immediately following the Base
Year, the greater of either (a) the Tenant's Proportionate Share of
the Operating Expenses paid or accrued during the said Lease Year, but
not to exceed one hundred thirty-two percent (132%) of the amount that
Tenant would have been required to pay if the Term of this Lease had
commenced on January 1 of the Base Year, or (b) one cent (.01); and
(vi) For the fifth Lease Year immediately following the Base
Year, subject to the provisions of paragraph 4G of this Lease, the
greater of either (a) the Tenant's Proportionate Share of the
Operating Expenses paid or accrued during the said Lease Year, but not
to exceed one hundred forty percent (140%) of the amount that Tenant
would have been required to pay if the Term of this Lease had
commenced on January 1 of the Base Year, or (b) one cent (.01)."
31. CANCELLATION OPTION. Provided, and only provided, that the
Tenant shall not have exercised either of the "Options" specified in Section 32
below, the Tenant is hereby granted an option to cancel this Lease effective as
of the last day of any full calendar month which is more than _____-five (__)
______________________ the Commencement Date (the "Termination Option") under
the following terms and conditions:
(i) If the Tenant desires to exercise its Termination Option
to so terminate this Lease, it shall so notify the Landlord, in
writing, at least twelve (12) months in advance of the intended date
of termination of this Lease which shall be stated in said notice (the
"Termination Date"), and only at a time when the Tenant is not in
default under the terms of this Lease, the applicable cure period for
which has expired.
(ii) The Tenant, after delivery of said notice, shall
continue to comply with the terms and provisions of this Lease, as
amended (including continuing to pay Rent, when due), to and including
the Termination Date, as if no notice to terminate had been given.
(iii) The Tenant shall on or before the Termination Date
deliver to the Rental Agent a cashier's check (the "Termination Fee")
made payable to the order of the Rental Agent in an amount equal to
the product of $350.00, multiplied by that number of months determined
by subtracting from 60 the number of months from and including the
first full calendar month of the Term to and including the month in
which the Termination Date occurs. The
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Termination Fee is not refundable and is payable by Tenant in addition
to any other Rent payable by the Tenant under the Lease.
(iv) In the event the Tenant shall have delivered the notice
required hereby and shall continue to make payments of Rent and all
other sums due and owing under this Lease in a timely manner, without
default, to and including the Termination Date and further provided
that the Tenant vacates the Premises and returns the same to Landlord
in the condition required by Section 15 of this Lease by the
Termination Date, then in such event, and only in such event and
subject to subparagraph (v) below, this Lease and all of Tenant's
rights and liabilities thereunder shall terminate as of and upon the
end of the Termination Date.
(v) Any attempt by the Tenant to exercise the right to
terminate this Lease in any other manner or at any other time than as
provided above or the Tenant's subsequent failure to make timely
payments of such sums due up to and including the Termination Date,
pursuant to the terms and provisions of this Lease, or to vacate the
Premises within the time and in the manner proscribed above shall
result, at Landlord's election, in either:
(a) The termination of Tenant's right to cancel this
Lease, as provided herein, or
(b) Shall constitute a default under this Lease, the
liability for which (notwithstanding any other provision of
this Section 31 to the contrary), including, but not limited
to, the liability to pay all Rent and the Termination Fee,
shall continue, notwithstanding the termination of this Lease
as of the Termination Date and the Landlord shall be entitled
to all remedies provided in this Lease, as if the Tenant were
holding over after the expiration of the Term.
The Landlord shall notify the Tenant of its election no later than
that date which is thirty business days subsequent to the Termination Date. In
the event the Landlord shall have elected to terminate the Tenant's right to
cancel this Lease, as provided hereinabove, this Lease shall continue in full
force and effect for the remainder of the Term, as if the Tenant had not
elected to exercise the cancellation option described in this Section 31.
32. EXPANSION OPTION. The Tenant is hereby granted two options (the
"Options") to acquire all or any part of:
A. Effective during the first eighteen months of the Term,
Tenant shall have the option (the "First Option") to acquire
approximately 1,000 rentable square feet of additional contiguous
space to the Premises, the location of which
-32-
shall be selected by the Landlord (the "First Option Space") for
occupancy commencing on the "Completion Date" of the First Option
Space on the terms and conditions and only on the terms and conditions
set forth in this subsection 32 A. If the Tenant desires to exercise
the First Option, it shall do so in the following and only in the
following manner:
(i) Tenant shall notify the Landlord of its desire
to exercise the First Option, in writing, given no later than
six (6) months prior to the expiration of the eighteenth
(18th) month of the Term of this Lease and indicate in said
notice the number of rentable square feet (up to 1,000)
desired. Such notice shall only be effective if delivered at
a time when the Tenant is not in default of its obligations
pursuant to the terms of the Lease, as amended.
(ii) As soon as practical after the receipt of the
notice by the Tenant electing to exercise the First Option,
the Landlord shall forthwith prepare and transmit to the
Tenant an appropriate lease amendment, specifying the location
of the First Option Space, increasing the number of rentable
square feet contained in Section 1 of the Lease by the number
of rentable square feet designated in Tenant's notice and
modifying Exhibit A to the Lease to indicate the inclusion of
the First Option Space in the Premises. Such amendment shall
also increase the Base Rent by the product of the then
escalated per square foot rental rate (including Rent
Adjustments), multiplied by the number of rentable square feet
contained in the First Option Space and modifying the monthly
installments of Base Rent to equal one-twelfth (1/12th) of the
new Base Rent, as determined aforesaid. Such amendment shall
also increase the numerator set forth in subsection 4A(iii) of
the Lease by the number of rentable square feet contained in
the First Option Space and modify the percentage contained in
such subsection accordingly. Such amendment shall also
increase the security deposit described in Section 5 by an
amount equal to the monthly increase in Base Rent caused by
the addition of the First Option Space.
If the First Option Space has been previously
improved for another tenant, the Tenant shall take possession
thereof in its then "as is" condition. If the First Option
Space has not been previously improved for another tenant,
there will be attached as an exhibit to the amendment an
Exhibit B, identical in form to the Exhibit B to the Lease,
with the following modifications:
(a) Any reference to the Premises in such
Exhibit B will be construed as meaning only the First
Option Space.
-33-
(b) The date contained in subsection 3(d) of
Exhibit B to the Lease will be deleted and in
substitution thereof a date which is thirty days from
the date of notice of exercise of the First Option by
the Tenant will be inserted in lieu thereof.
(c) All references in said Exhibit B to
"Completion", "Completion Date" shall refer solely
and only to the improvements required to be made in
and to the First Option Space as a result of Tenant's
exercise of its Option.
(d) The provisions of subsection 6(b) of the
current Exhibit B to the Lease shall have no
application to the Exhibit B attached to said
amendment and such provision shall be deleted.
(e) Paragraph 29 of the Lease, modified by
deleting therefrom the phrase "contained in the
Premises" and substituting therefor the phrase
"contained in the 'First Option Space'", will be
applicable to the First Option Space.
The effective date of the amendment shall be as of
the Completion Date pursuant to the new Exhibit B attached to
the amendment.
(iii) Promptly upon receipt of said amendment, the
Tenant shall execute the same, and transmit it, together with
the amount of the additional security deposit, to the Landlord
within ten (10) days of the date of such receipt. The failure
of the Landlord to receive the amendment so executed within
ten days of the date of Landlord's transmission of the same to
the Tenant will result, at Landlord's option, in the Tenant's
exercise of the First Option automatically being null and void
and of no further force or effect. Any attempt by the Tenant
to exercise the Option granted hereby at a time or in a manner
other than as specifically set forth herein shall be at the
Landlord's sole option of no force or effect.
B. Provided and only provided Tenant has validly exercised
the option granted to it pursuant to the provisions of subsection 32A
and Tenant has not theretofore exercised its option to cancel granted
to it pursuant to the provisions of Section 31, then in such event,
effective during the period commencing on the first day following the
Tenant's exercise of its First Option and ending on the last day of
the thirty-sixth (36th) month of the Term, Tenant shall have the
option (the "Second Option") to acquire approximately 1,000 rentable
square feet of additional contiguous space to the Premises, the
location of which shall be selected by the Landlord (the "Second
Option Space") for occupancy commencing on the "Completion Date" of
the Second Option Space on the terms and
-34-
conditions and only on the terms and conditions set forth in this
subsection 32 B. If the Tenant desires to exercise the Second Option,
it shall do so in the following and only in the following manner:
(a) Tenant shall notify the Landlord of its desire
to exercise the Second Option, in writing, given no later than
six (6) months prior to the expiration of the thirty-sixth
(36th) month of the Term of this Lease and indicate in said
notice the number of rentable square feet (up to 1,000)
desired. Such notice shall only be effective if delivered at
a time when the Tenant is not in default of its obligations
pursuant to the terms of the Lease, as amended.
(b) As soon as practical after the receipt of the
notice by the Tenant electing to exercise the Second Option,
the Landlord shall forthwith prepare and transmit to the
Tenant an appropriate lease amendment, specifying the location
of the Second Option Space, increasing the number of rentable
square feet contained in Section 1 of the Lease by the number
of rentable square feet designated in Tenant's notice and
modifying Exhibit A to the Lease to indicate the inclusion of
the Second Option Space in the Premises. Such amendment shall
also increase the Base Rent by the product of the then
escalated per square foot rental rate (including Rent
Adjustments), multiplied by the number of rentable square feet
contained in the Second Option Space and modifying the monthly
installments of Base Rent to equal one-twelfth (1/12th) of the
new Base Rent, as determined aforesaid. Such amendment shall
also increase the numerator set forth in subsection 4A(iii) of
the Lease by the number of rentable square feet contained in
the Second Option Space and modify the percentage contained in
such subsection accordingly. Such amendment shall also
increase the security deposit described in Section 5 by an
amount equal to the monthly increase in Base Rent caused by
the addition of the Second Option Space.
If the Second Option Space has been previously improved for
another tenant, the Tenant shall take possession thereof in its then
"as is" condition. If the Second Option Space has not been previously
improved for another tenant, there will be attached as an exhibit to
the amendment an Exhibit B, identical in form to the Exhibit B to the
Lease, with the following modifications:
(a) Any reference to the Premises in such Exhibit B
will be construed as meaning only the Second Option Space.
(b) The date contained in subsection 3(d) of Exhibit
B to the Lease will be deleted and in substitution thereof a
date which is thirty days
-35-
from the date of notice of exercise of the Second Option by the Tenant
will be inserted in lieu thereof.
(c) All references in said Exhibit B to
"Completion", "Completion Date" shall refer solely and only to
the improvements required to be made in and to the Second
Option Space as a result of Tenant's exercise of its Option.
(d) The provisions of subsection 6(b) of the current
Exhibit B to the Lease shall have no application to the
Exhibit B attached to said amendment and such provision shall
be deleted.
(e) Paragraph 29 of the Lease, modified by deleting
therefrom the phrase "contained in the Premises" and
substituting therefor the phrase "contained in the 'Second
Option Space'", will be applicable to the Second Option Space.
The effective date of the amendment shall be as of the
Completion Date pursuant to the new Exhibit B attached to the
amendment.
(iii) Promptly upon receipt of said amendment, the
Tenant shall execute the same, and transmit it, together with
the amount of the additional security deposit, to the Landlord
within ten (10) days of the date of such receipt. The failure
of the Landlord to receive the amendment so executed within
ten days of the date of Landlord's transmission of the same to
the Tenant will result, at Landlord's option, in the Tenant's
exercise of the Second Option automatically being null and
void and of no further force or effect. Any attempt by the
Tenant to exercise the Option granted hereby at a time or in a
manner other than as specifically set forth herein shall be at
the Landlord's sole option of no force or effect.
-36-
IN WITNESS WHEREOF, this instrument has been duly executed by the
parties hereto, as of the date. first above written.
LANDLORD TENANT
THE FIRST NATIONAL BANK OF CONFERENCE PLUS, a Delaware
BOSTON, as Trustee aforesaid: corporation
BY: CIGNA INVESTMENTS, INC., acting
pursuant to Power of Attorney
BY: /s/ Mark DePucchio BY: /s/ Richard P. Riviere
TITLE: Vice President Its: President & CEO
Attest: /s/ Melvin J. Simon
Its: Secretary
-37-
LANDLORD'S ACKNOWLEDGEMENT
STATE OF CONNECTICUT )
) ss
COUNTY OF HARTFORD )
I, Mary Caron, in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that Mark V. DePucchio, Vice President of CIGNA Investments,
Inc., and ______________________, personally known to me to be the Vice
President and Secretary, of said corporation, and personally known to me to be
the same persons whose names are subscribed to the foregoing instrument,
appeared before me this day in person and severally acknowledged that as such
Vice President and ________________ Secretary, they signed and delivered the
said instrument as ___________ President and _______________ Secretary of said
corporation, and caused the corporate seal of said corporation to be affixed
thereto, pursuant to authority given by the Board of __________________ of said
corporation as their free and voluntary act and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and ___________ seal this 6th day of February,
1992.
/s/ Mary Caron
Notary Public
My Commission Expires: 3/31/95
-38-
TENANT'S ACKNOWLEDGMENT
STATE OF ILLINOIS )
) SS
COUNTY OF DUPAGE )
I, Kendra K Szymanski, in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Richard P. Riviere, President of CONFERENCE
PLUS, a Delaware corporation and Melvin J. Simon, personally known to me to be
the Secretary of said corporation, and personally known to me to be the same
persons whose names are subscribed to the foregoing instrument, appeared before
me this day in person and severally acknowledged that as such President and
Secretary, they signed and delivered the said instrument as President and
Secretary of said corporation, and caused the corporate seal of said
corporation to be affixed thereto, pursuant to authority given by the Board of
Directors of said corporation as their free and voluntary act and as the free
and voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and ___________ seal this 8th day of January,
1992.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/93
STATE OF ILLINOIS )
) SS
COUNTY OF DUPAGE )
I, the undersigned, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that Richard P. Riviere and Melvin J.
Simon, personally known to me to be the same persons whose names are subscribed
to the foregoing instrument appeared before me this day in person and
acknowledged that _________________________ signed, sealed and delivered the
said instrument as __________ free and voluntary act, for the uses and purposes
therein set forth, including the release and waiver of the right of homestead.
GIVEN under my hand and official seal this 8th day of January,
1992.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/93
-39-
CORPORATE GUARANTEE
The undersigned, in consideration of the leasing of the Premises
described in the attached Lease to the Tenant therein mentioned, does hereby
absolutely, unconditionally and irrevocably guarantee to Landlord the full and
complete performance of all of Tenant's covenants and obligations under such
lease and the fall payment by Tenant of all Rent and other charges and amounts
required to be paid thereunder.
The undersigned does hereby waive any and all requirements of notice
of the acceptance of this Guarantee and all requirements of notice of breach or
non-performance by Tenant. The undersigned further waives any demand by
Landlord and/or prior action by Landlord of any nature whatsoever against
Tenant. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant or granted
indulgences to the Tenant, or extended the time of performance by Tenant,
modified or amended the Lease, released, returned or misapplied other
collateral given later as additional security (including other guarantees),
released Tenant from the performance of its obligations under such Lease, or
failed or neglected to exercise any of Landlord's rights against the Tenant.
This Guarantee shall be binding upon the undersigned and its
respective successors, successors in interest, representatives and assigns and
shall continue in effect subsequent to any assignment of the Lease by Tenant or
by operation of law.
This Guarantee shall be governed and construed under the laws of the
State of Illinois. This Guarantee shall be construed as an absolute,
continuing and unlimited Guarantee of all of the Tenant's obligations under
said Lease, without regard to regularity, validity or enforceability of any
liability or obligation of the Tenant hereby guaranteed; the Landlord shall not
be obligated to proceed first against the Tenant or any other person, firm or
corporation or against any collateral, if any, held by or on behalf of the
Landlord and the undersigned shall be bound on this Guarantee to the Landlord
as if the Tenant's obligations under the Lease were the primary obligations of
the undersigned.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed on its behalf by its duly authorized officers and its corporate seal
affixed hereto all on this 10th day of January, 1992.
R-COM, INC.,
a Delaware corporation
BY: /s/ Gary F. Seamans
ITS: Chairman
-40-
STATE OF )
) SS
COUNTY OF )
On this 10th day of January, 1992, before me, a Notary Public in and
for said County, appeared Gary F. Seamans, to me personally known, who being by
me sworn, did say that he is the Chairman of R-COM, Inc., the corporation named
in and which executed the within instrument, and that the seal affixed to said
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed on behalf of said corporation by authority of its Board
of Directors, and said G.F. Seamans acknowledged said instrument to be the free
act and deed of said corporation.
/s/ Mary Lou Meyers
Notary Public
My Commission Expires: October 5, 1992
-41-
NON-CORPORATE GUARANTEE
The undersigned, in consideration of the leasing of the Premises
described in the attached Lease to the Tenant therein mentioned, do hereby
absolutely, unconditionally and irrevocably guarantee to Landlord the full and
complete performance of all of Tenant's covenants and obligations under the
Lease and the full payment by Tenant of all Rent and other charges and amounts
required to be paid thereunder.
The undersigned do each hereby waive any and all requirements of
notice of the acceptance of this Guarantee and all requirements of notice of
breach or nonperformance by Tenant. The undersigned further waive any demand
by Landlord and/or prior action by Landlord of any nature whatsoever against
Tenant. The undersigned's obligations hereunder shall remain fully binding
although landlord may have waived one or more defaults by Tenant, or granted
indulgences to the Tenant, or extended the time of performances by Tenant,
modified or amended the Lease, released, returned or misapplied other
collateral given later as additional security (including other guarantees),
released Tenant from the performances of its obligations under such Lease, or
failed or neglected to exercise any of Landlord's rights against the Tenant.
If this Guarantee is signed by more than one person, their obligations
shall be joint and several and the release of one of such guarantors shall not
release any other of such guarantors. This Guarantee shall be binding upon the
undersigned and their respective heirs, successors, successors of interest,
executors, administrators, representatives and assigns and shall continue in
effect subsequent to any assignment of the Lease by Tenant or by operation of
law.
This Guarantee shall be governed and construed under the laws of the
State of Illinois. This Guarantee shall be construed as an absolute,
continuing and unlimited Guarantee of all of the Tenant's obligations under
said Lease, without regard to regularity, validity or enforceability of any
liability or obligation of the Tenant hereby guaranteed; the Landlord shall not
be obligated to proceed first against the Tenant or any other person, firm or
corporation or against any collateral, if any, held by or on behalf of the
Landlord and the undersigned shall be bound on this Guarantee to the Landlord
as if the Tenant's obligations under the Lease were the primary obligations of
the undersigned.
IN WITNESS WHEREOF, the undersigned have set their bands and seals
this ____ day of __________, 19__.
__________________________________________
__________________________________________
-42-
STATE OF )
) SS
COUNTY OF )
On this ____ day of __________, 19__, before me, a Notary Public in
and for said County, personally appeared __________________,
_________________________, and _________________________, to be known to be the
person(s) described in and who executed the foregoing instrument and
acknowledged that (he) (they) executed the same as (his) (their) free act and
deed.
__________________________________________
Notary Public
-43-
EXHIBIT A
(Plan of Premises)
The Premises consist of that area outlined in red or a heavy line on
the plan affixed (excluding from the foregoing any, if any: elevator shafts;
flues; stacks; pipes; shafts; vertical and horizontal ducts; pillars; demising
walls; electrical boxes; firehose cabinets; telephone closets; janitorial
closets; mechanical closets; and stairways) together with the right to use in
common with all other occupants of the Building, their invitees and the
Landlord, the common areas of the Building consisting of corridors, elevators
and lobby for ingress and egress to the Premises, washrooms and similar common
facilities for their intended purposes, all subject to the terms and provisions
of the Lease.
LANDLORD TENANT
THE FIRST NATIONAL BANK OF CONFERENCE PLUS, a Delaware
BOSTON, corporation
as Trustee
BY: CIGNA INVESTMENTS, INC.,
acting pursuant to Power of BY: /s/ Richard P. Riviere
Attorney Its President & CEO
ATTEST: /s/ Melvin J. Simon
BY: /s/ Mark DePucchio Its Secretary
Title: Vice President
A-1
[drawing of floor plan]
A-2
EXHIBIT B
Construction Rider
THE FIRST NATIONAL BANK OF BOSTON, as Trustee (the "REMIC Trustee")
pursuant to that certain Pooling and Servicing Agreement dated as of April 1,
1988 by among CIGNA Mortgage Securities, Inc. and CIGNA INVESTMENTS, INC., as
Servicer ("Servicer) (the REMIC Trustee and Servicer are collectively referred
to herein as the "Landlord") and CONFERENCE PLUS, a(n) _______________
corporation, as tenant (the "Tenant") are executing simultaneously herewith a
written lease (the 'Lease') leasing certain space (the "Premises") in a
building (the "Building") situated on real estate (the "Real Estate") commonly
known as the THREE NATIONAL PLAZA AT WOODFIELD, 999 Plaza Drive, Schaumburg,
Illinois and more particularly described in the Lease. In consideration of the
respective covenants of the parties described in the Lease, Landlord and Tenant
further mutually agree as follows:
CONSTRUCTION OF THE PREMISES: The Landlord and the Tenant agree that
their respective rights and obligations in reference to the construction of the
Premises shall be as follows:
1. LANDLORD'S PLANS AND SPECIFICATIONS
a. Landlord shall cause to be prepared complete mechanical
plans and specifications where necessary for the installation of the building
standard air conditioning systems and ductwork, heating, electrical and
plumbing and other mechanical plans for Landlord's Work.
b. Landlord may make such changes in the mechanical plans and
specifications described in subparagraph la hereof as Landlord may desire,
excepting that any such changes shall not materially or adversely affect
Tenant's occupancy.
c. Landlord, at its sole option, may substitute for building
standard materials described in paragraph 2 hereof other materials of
comparable kind and quality.
2. LANDLORD'S WORK - STANDARD OF THE BUILDING
Landlord shall furnish and install the following labor and
materials ("Landlord's Work") ("Building Standard"):
1. One lineal foot of partition for each 15 usable square feet of floor area
within the Premises to enclose interior offices. There shall be no jogs,
curves, angles or irregular offsets in any partition. Partitions terminating
at the Building exterior walls shall either be aligned with a window mullion or
meet column enclosure.
B-1
2. One pre-finished solid core wood veneer interior door, with frame, hinges
and latchset hardware, for each 25 lineal feet of partition, and one
pre-finished solid core wood veneer entrance door.
3. 2' x 4' suspended tile ceiling throughout the Premises.
4. One 24" x 48" recessed fluorescent light fixture with prismatic cell
lenses for each 80 usable square feet of ceiling area within the Premises and
one wall switch for each 350 usable square feet of floor area within the
Premises.
5. Carpet allowance of $1.00 per square foot of usable area within the
Premises. Floor slab finished to standard industry tolerances and suitable for
padded carpeting installation.
6. 2 1/2" vinyl base in building standard color.
7. Thin slat horizontal blinds in building standard color on all peripheral
windows.
8. Painting of building standard partitions and columns in Landlord's
__________________________________ selected by Tenant from Landlord's building
standard colors.
9. One duplex electrical wall receptacle for each 150 usable square feet of
floor area within the Premises.
10. One wall telephone outlet for each 200 usable square feet of floor area
within the Premises.
11. A heat pump system and central circulating unit providing heating,
ventilation and air conditioning service to the Premises during the hours set
forth in the Lease such that the temperature conditions described in the Lease
are maintained during such hours, with tolerances normal in first-class office
buildings.
12. Landlord's Work does not include hardware, 2-1/2" vinyl base or painting
for any door or partition supplied as Extra Work.
No credit shall be granted by Landlord for any of the Building Standard Work
which is not used by Tenant.
3. TENANT'S PLANS AND SPECIFICATIONS
a. Tenant, at Tenant's sole cost and expense, shall cause to
be prepared complete, finished, detailed architectural, telephone and
electrical plans including all
B-2
dimensions and specifications for all Extra Work to be performed by Landlord
pursuant to Section 4 hereof ("Tenant's Plans").
b. Tenant's Plans shall also include all information as shall
be required by Landlord's engineers to prepare mechanical plans pursuant to
Section 1 hereof, which information shall include, but not be limited to, the
following:
(1) Any special floor loading conditions which may
exceed the structural weight limits of the floor.
(2) Specifications of any heat emanating equipment
to be installed by Tenant which may require special air conditioning.
(3) Electrical specifications of any equipment that
requires non-standard electrical power outlets.
(4) Complete specifications of any data-line wiring
required, including cable routing, conduit size, cable type, etc.
c. Tenant's Plans are expressly subject to Landlord's prior
written approval, which shall not be unreasonably withheld. Upon such
approval, landlord shall cause Tenant's Plans, together with the mechanical
plans and specifications provided for in paragraph 1 hereof, to be filed with
the governmental agencies having jurisdiction thereof, in order to obtain all
governmental permits and authorizations which may be required in connection
with the work to be done.
d. **INTENTIONALLY OMITTED**
4. EXTRA WORK
a. Tenant, on Tenant's Plans, may designate substitutions
(except for Building Standard Blinds), additional or extra work and/or
materials over and above Landlord's Work ("Extra Work") to be performed by
Landlord, provided that the Extra Work, at Landlord's option, (i) shall not
delay completion of Landlord's Work or the Commencement Date of the Lease; (ii)
shall be practicable and consistent with the existing physical conditions in
the Building and with the plans, for the Building which have been filed with
the governmental authorities having jurisdiction thereover; (iii) shall not
impair Landlord's ability to perform any of Landlord's obligations hereunder or
under the Lease or any other lease of space in the Building; and (iv) shall not
affect any portion of the Building other than the Premises. Without the prior
written consent of Landlord, Tenant shall make no changes in Tenant's Plans
after approval thereof by Landlord.
B-3
(1) In the event Tenant requests Landlord to perform
Extra Work and if Landlord accedes to such request, then and in that event,
prior to commencing such Extra Work, Landlord shall submit to Tenant a written
estimate ("Estimate") for said Extra Work to be performed. Within five (5)
days after Landlord's submission of the Estimate, Tenant shall, in writing,
either accept or reject the Estimate. Tenant's failure either to accept or
reject the Estimate within said five (5) day period shall be deemed rejection
thereof.
(2) In the event that Tenant rejects the Estimate or
the Estimate is deemed rejected, Tenant shall within five (5) days after such
rejection furnish Landlord with necessary revisions of Tenant's Plans, so as to
enable Landlord to proceed as though no such Extra Work had been requested.
Should Tenant fail to submit such necessary revisions of Tenant's Plan within
said five day period, Landlord, in its sole discretion, may proceed to complete
Landlord's Work (building standard work) in accordance with Tenant's Plan
already submitted, with such variations as in Landlord's sole discretion may be
necessary so as to eliminate the Extra Work set forth on Tenant's Plans.
b. Tenant may request the omission of an item of Landlord's
Work provided that such omission shall not delay the completion of Landlord's
Work, and Landlord thereafter shall not be obligated to install the same. No
credit shall be granted to Tenant for items omitted or not installed. Credits
for substitution shall be granted in amounts determined by Landlord's unit
prices for substitutions and shall be applied against the final payments by
Tenant for all Extra Work to be performed by Landlord. In no event shall there
be any cash credits.
c. In the event Landlord performs Extra Work hereunder,
Tenant shall pay to Landlord, upon acceptance of the Estimate, or submission of
Landlord's bid therefor, as the case may be, a sum equal to twenty percent
(20%) of the Estimate or bid price. Thereafter, Tenant shall pay to Landlord
the balance of the cost of the Extra Work at such time or times as agreed to,
but in no event shall the balance be paid later than the completion of the
Extra Work.
5. COMPLETION - PUNCH LIST
When the Landlord is of the opinion that the Landlord's Work
is Complete, then the Landlord shall so notify the Tenant. The Tenant agrees
that upon such notification, the Tenant promptly (and not later than two
business days after the date of Landlord's said notice) will inspect the
Premises and furnish to the Landlord a written statement that the Building and
Premises have been completed and are complete as required by the provisions of
this Exhibit B and the Lease with the exception of certain specified and
enumerated items (hereinafter referred to as the "Punch List"). The Tenant
agrees that at the request of the Landlord from time to time hereafter, the
Tenant will promptly furnish to the Landlord revised Punch Lists
B-4
reflecting any completion of any prior Punch List items. It is mutually agreed
that if the Punch List or any revised Punch List consists only of items that
can be completed within a relatively short period of time, and if the
non-completion of such Punch List items would not materially impair the
Tenant's use or occupancy of the Premises, then, in such event, the Tenant will
acknowledge in writing that the Premises are Complete and accept possession of
the Premises; provided, however, that such acknowledgment or acceptance shall
not relieve the Landlord of its obligations to promptly complete all such Punch
List items. The date which is the earlier of either (i) the date on which the
Tenant acknowledges that the Premises are Complete, or (ii) the date on which
the Premises were Complete, pursuant to the provisions of this subparagraph 6
is sometimes referred to as the 'Completion Date'.
6. POSSESSION - EXTENSION OF TERMS AND ACKNOWLEDGMENTS
a. Possession. The Tenant will take possession of the
Premises as of and on the Completion Date. Landlord has not agreed or
represented that the Premises will be substantially ready for occupancy on the
date specified in Section 2 of the Lease for the commencement of the Term. If
for any reason whatsoever the Premises are not Complete on said date, this
Lease shall nevertheless continue in full force and effect, and no liability
shall arise against Landlord because of any such delay; provided, however, that
all Rent due hereunder shall abate on a per diem basis until the Completion
Date. Notwithstanding the foregoing, there shall be no abatement of Rent if
the Premises are not substantially Complete due to any special equipment,
fixtures, changes, alterations, or additions requested by Tenant, any delay of
Tenant in submitting plans, supplying information or approving or authorizing
plans, specifications, estimates or other matters, or any other act or omission
of Tenant. If Tenant shall occupy all or any part of the premises prior to the
Completion Date, all of the covenants and conditions of this Lease, including
the obligation to pay Rent, shall be binding upon the parties hereto in respect
to such occupancy as if the first day of the Term had been the date when Tenant
began such occupancy.
b. **INTENTIONALLY OMITTED**
7. TENANT'S ENTRY PRIOR TO COMPLETION DATE
Landlord may permit Tenant and/or its agents or laborers to
enter the Premises at Tenant's sole risk prior to the Completion Date in order
to perform through Tenant's own contractors such work as Tenant may desire, at
the same time that Landlord's contractors are working in the Premises. The
foregoing license to enter prior to the Completion Date, however, is
conditioned upon Tenant's labor not interfering with Landlord's contractors or
with any other tenant or its labor. If at any time such entry shall cause
disharmony, interference or union disputes of any nature whatsoever, or if
Landlord shall, in Landlord's sole judgment, determine that such entry, such
work or the continuance thereof shall interfere with, hamper or prevent
Landlord from
B-5
proceeding with the completion of the Building or the Premises at the earliest
possible date, this license may be withdrawn by Landlord immediately upon
written notice to Tenant. Such entry shall be deemed to be under and subject
to all of the terms, covenants and conditions of the Lease and Tenant shall
comply with all of the provisions of the Lease which are the obligation or
covenants of the Tenant, except that the obligation to pay Rent shall not
commence until the Completion Date or as otherwise provided for in the Lease.
In the event that Tenant's agents or labor incurs any charges from Landlord,
including but not limited to charges for the use of construction or hoisting
equipment on the building site, then and in that event, such charges shall be
deemed an obligation of Tenant and shall be collectible as Rent pursuant to the
Lease and upon default in payment thereof, Landlord shall have the same
remedies as for a default in payment of Rent pursuant to the Lease.
8. LANDLORD'S ENTRY AFTER SUBSTANTIAL COMPLETION
Landlord's Work shall be substantially complete prior to the
Completion Date. At any time after the Completion Date, Landlord may enter the
Premises to complete unfinished details of Landlord's Work and such entry by
Landlord, its agents, servants, employees or contractors for such purpose shall
not 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 this Lease, or impose any liability upon Landlord
or its agents.
9. DELAYS
Landlord and Tenant mutually acknowledge that the Landlord's
construction process in order to Complete the Building and the Premises
requires a coordination of activities and a compliance by the Tenant without
delay with all matters imposed upon the Tenant pursuant to this Exhibit B and
that time is of the essence of the Tenant's obligation and compliance with the
terms and provisions of this Exhibit B. The parties further mutually
acknowledge that delays in such compliance by the Tenant would cause injury to
the Landlord, delays in the completion of the Building and the Premises and
damages to the Landlord, the nature and extent of which are difficult to
ascertain and accordingly, the Tenant agrees to pay to the Landlord as
liquidated damages and not as a penalty, a sum equal to 1/365 of the annual
rent described in paragraph 3 of the Lease for each day of delay in:
a. The failure of the Tenant to deliver Tenant's Plans
strictly in accordance with the Plans Submission Date set forth in subparagraph
3d of this Exhibit B; or
b. The failure of the Tenant to submit revisions of the
Tenant's Plans strictly in accordance with the provisions of subparagraph 4a(2)
of this Exhibit B, including, but not limited to, the five (5) day period
described in said subparagraph.
B-6
10. PROVISIONS SUBJECT TO LEASE
The provisions of this Exhibit B are specifically subject to
the provisions of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Exhibit B as
of the date of the said Lease.
LANDLORD TENANT
THE FIRST NATIONAL BANK OF CONFERENCE PLUS, a Delaware
BOSTON, corporation
as Trustee
BY: CIGNA INVESTMENTS, INC.,
acting pursuant to Power of BY: /s/ Richard P. Riviere
Attorney Its President & CEO
ATTEST: /s/ Melvin J. Simon
BY: /s/ Mark DePucchio Its Secretary
Title: Vice President
B-7
EXHIBIT C
THREE NATIONAL PLAZA AT WOODFIELD
RULES AND REGULATIONS
1. REMOVAL PERMIT. Tenant shall list all furniture, equipment and
similar articles Tenant desires to remove from the Premises or the Building and
deliver a copy to Landlord and procure a removal permit from the Office of the
Building authorizing Building employees to permit such articles to be removed.
2. DOORS TO BE LOCKED. Before leaving the Premises unattended,
Tenant shall close and securely lock all doors and transoms and shut off all
utilities in the Premises. Any damage resulting from failure to do so shall be
paid by Tenant.
3. SIGNS. Tenant shall not paint, display, inscribe or affix any
sign, trademark, picture, advertising, notice, lettering or direction on any
part of the outside or inside of the Building, or on the Premises, except on
the public hallway doors of the Premises, and then only such name or names or
matter and of such color, size, style, character and material as shall be first
approved by Landlord in writing. Landlord reserves the right to remove any
other matter, without notice to Tenant and at the cost and expense of Tenant.
4. SOUND DEVICES. Tenant shall not place any radio or television
antenna on the roof or on or in any part of the inside or outside of the
Building other than the inside of the Premises, or operate or permit to be
operated any musical or sound producing instrument or device inside or outside
the Premises which may be heard outside the Premises, or operate any electrical
device from which may emanate electrical waves which may interfere with or
impair radio or television broadcasting or reception from or in the Building or
elsewhere.
5. NUISANCES. Tenant shall not bring or permit to be in the Building
any bicycle or other vehicle, or dog (except in the company of a blind person)
or other animal or bird; make or permit any noise, vibration or odor to emanate
from the Premises; or do anything therein tending to create, or maintain, a
nuisance; or disturb, solicit or canvass any occupant of the Building, or do
any act tending to injure the reputation of the Building.
6. CLEANLINESS AND OBSTRUCTION OF PUBLIC AREAS. Tenant shall not
place anything or allow anything to be placed near the glass of any door,
partition, or window which may be unsightly from outside the Premises; or take
or permit to be taken in or out of other entrances of the Building, or take or
permit on other elevator, any item normally taken in or out through the
trucking concourse or service doors or in or on freight elevators; or, whether
temporarily, accidentally, or otherwise, allow anything to remain in, place or
store anything in, or obstruct in any way, any passageway, exit, stairway,
C-1
elevator, shipping platform, or truck concourse. Tenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and move all supplies, furniture and equipment as soon as
received directly to the Premises and move all such items and waste, other than
waste customarily removed by employees of the Building, being taken from the
Premises, directly to the shipping platform at or about the time arranged for
removal therefrom.
7. ADDITIONAL LOCKS. Tenant shall not attach or permit to be
attached additional locks or similar devices to any door, transom or window; or
change existing locks or the mechanism thereof; or make or permit to be made
any keys for any door other than those provided by Landlord. (If more than two
keys for one lock are desired, Landlord will provide them upon payment therefor
by Tenant.)
8. OVERLOAD ANY FLOOR. Tenant shall not overload any floors.
9. DEFACING PREMISES. Tenant shall not do any painting or decorating
in the Premises; or mark, paint, cut or drill into, drive nails or screws into,
or in any way deface any part of the Premises or the Building, outside or
inside, without the prior written consent of Landlord. (If Tenant desires
signal, communication, alarm or other utility or service connections installed
or changed, the same shall be made by and at the expense of Tenant, with the
approval and under direction of Landlord.)
10. SPECIAL FREIGHT ELEVATOR SERVICE FOR TENANT. Upon written
application by Tenant, and approval thereof by Landlord, Landlord shall furnish
freight elevator service for Tenant at times other than those times provided
for in the Lease at rates for such usage from time to time maintained in effect
by Landlord.
11. EMERGENCY PROCEDURES. Tenant shall appoint a floor warden from
Tenant's organization who shall be responsible for educating Tenant's employees
in the proper fire evacuation procedures and the scheduling and conducting of
at least one (1) fire drill per year for Tenant's employees who normally occupy
the Tenant's Premises in the Building. The Tenant shall notify the Office of
the Building of the date and time of Tenant's scheduled fire evacuation drill.
C-2
FIRST AMENDMENT TO LEASE
This First Amendment to Lease is made and entered into as of
the 27th day of April, 1992 at Chicago, Illinois by and between THE FIRST
NATIONAL BANK OF BOSTON, as Trustee (the "REMIC Trustee") pursuant to that
certain Pooling and Servicing Agreement dated as of April 1, 1988 by and among
CIGNA Mortgage Securities, Inc. and CIGNA INVESTMENTS, INC., as Servicer
("Servicer") (the REMIC Trustee and Servicer are collectively referred to
herein as the "Landlord") and CONFERENCE PLUS, a Delaware corporation (the
"Tenant").
RECITALS:
A. The Landlord and the Tenant have previously executed a
written lease dated as of December 24, 1991 (the "Lease"), leasing certain
premises (the "Premises") in a building (the "Building") located on the real
estate commonly known as Three National Plaza at Woodfield, located at 999
Plaza Drive, Schaumburg, Illinois, as more particularly set forth in the Lease.
B. The Tenant desires to expand the Premises by an additional
668 rentable square feet (the "Expansion Space"). The location of the
Expansion Space (and the original Premises) is indicated on Exhibit A-E
attached hereto.
C. The Landlord and Tenant desire to modify and amend some of
the provisions of the Lease by the terms and provisions of this First Amendment
to Lease (the "First Amendment").
NOW, THEREFORE, in consideration of the respective covenants of the
parties hereto contained in the Lease, Landlord and Tenant further mutually
agree as follows:
1. CONTROLLING LANGUAGE. Insofar as the specific terms and
provisions of this First Amendment purport to amend or modify or are in
conflict with the specific terms and provisions of the Lease (the specific, but
not implied), the terms and provisions of this First Amendment shall govern and
control; in all other respects, the terms and provisions (and definitions) of
the Lease shall remain in full force and effect and unmodified.
2. PREMISES. Effective immediately: (i) Section 1 of the Lease is
hereby amended by deleting the number of rentable square feet contained
therein, "969", and in lieu thereof, substitute the number "1, 637", and (ii)
Exhibit A attached to the Lease showing the, location of the original Premises
is hereby deleted and in lieu thereof, Exhibit A-E attached hereto is
substituted.
3. TERM. The Tenant and Landlord do hereby acknowledge that the Term,
as set forth in Section 2 of the Lease, shall, in relation to both the original
Premises and the Expansion Space added to the Premises hereby end on the last
day of February, 1997.
4. BASE RENT. Effective as of May 15, 1992, the Base Rental table
set forth in subsection 3 A of the Lease is hereby deleted and in lieu thereof
Tenant shall pay as and for Base Rent and monthly installments of Base Rent
during the remainder of the Term those amounts set forth in the following
rental table in relation to the applicable months of the remainder of the Term:
RATE MONTHLY
MONTH PER INSTALLMENT ANNUAL
OF TERM SQUARE FOOT OF BASE RENT BASE RENT
- ------- ----------- ------------ ---------
1 - 12 $5.25 $ 716.19 $ 8,594.25
13 - 24 5.36 731.19 8,774.32
25 - 36 5.47 746.20 8,954.39
37 - 48 5.58 761.21 9,134.46
49 - 6 5.69 776.21 9,314.53
For the purposes of determining the applicable Base Rent and
monthly installments of Base Rent, the beginning and ending
months are inclusive in the applicable rate periods above.
Notwithstanding the foregoing, Landlord and Tenant do hereby
acknowledge that due to the fact that the monthly installment of Base Rent for
May, 1992 is determined, in part, pursuant to the Base Rental table set forth
in the original Lease and in part by the table contained in this Section 4, the
monthly installment of Base Rent payable by Tenant to Landlord for and in
relation to the month of May, 1992 shall be the sum of $570.07.
5. SECURITY DEPOSIT. The Landlord and Tenant do hereby acknowledge
that the Tenant has delivered to the Landlord and the Landlord has received
from the Tenant pursuant to Section 5 of the Lease a security deposit in the
amount of $1,043.16. Effective immediately, the security deposit required by
Section 5 of the Lease shall be the sum of $1,359.90. The Tenant shall deliver
to the Landlord the additional $316.24 necessary to increase the amount of the
security deposit held by the Landlord pursuant to Section 5 of the Lease, as
modified by this Section 5 of the First Amendment
-2-
concurrently with the execution and delivery of this First Amendment by the
Tenant to the Landlord.
6. TENANT'S PROPORTIONATE SHARE. Effective as of and including May
15, 1992, the provisions of subsection 4A(iii) of the Lease are hereby amended
by deleting the numerator of the fraction contained therein, "969", and in lieu
thereof, inserting the figure of "1,637" and by deleting the percentage
contained in said subsection, "0.7218 percent", and in lieu thereof, inserting
the percentage figure of "l.2194 percent".
7. ELIMINATED PROVISIONS. Effective immediately, the provisions of
Exhibit B attached to the Lease and Section 31 of the Lease are hereby deleted
in their entirety.
8. BROKERS. The Tenant does hereby represent to the Landlord that
except for Miglin-Beitler Management Corporation, no broker has been involved
in this transaction concerning the Expansion Space. The Tenant does hereby
agree to indemnify, defend and hold the Landlord harmless from and against any
and all claims of any real estate broker except for Miglin-Beitler Management
Corporation who claims to be entitled to commissions in connection with this
Lease as a result of representing Tenant.
9. OPERATING EXPENSE MODIFICATION. Notwithstanding any provision of
Section 30 of the Lease to the contrary, the Landlord and Tenant do hereby
acknowledge that for the purposes of determining the percentage limitations on
the Tenant's duty to pay Tenant's Proportionate Share of all Operating Expenses
set forth in subparagraphs 30D(ii), (iii), (iv), (v) and (vi) of the Lease,
such percentage limitations shall be determined as if the Expansion Space added
by this First Amendment had been a part of the Premises from inception of the
Lease and the Tenant's Proportionate Share during the entire Base Year had been
1.2194 percent.
10. MUTUAL INCORPORATION. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement, in writing, between
Landlord and Tenant. No modifications, termination, or surrender of this First
Amendment or surrender of the Premises or any part thereof or of any interest
therein by Tenant shall be valid or effective unless agreed to and accepted, in
writing, by the Landlord and no act by any representative or agent of the
Landlord other than delivery of such a written agreement and acceptance by the
Landlord shall constitute acceptance thereof. Any prior negotiations or
intentions of the parties, whether oral or evidenced by written documentation
dated prior to the date of this First Amendment, are null and void.
11. EXPANSION OPTION. The Landlord and Tenant do hereby acknowledge
and agree that for the purposes of subsection 32 A of the Lease:
-3-
(i) The Tenant has exercised its First Option;
(ii) The Expansion Space added hereby constitutes the First
Option Space;
(iii) The First Option Space had been previously improved for
another tenant;
(iv) This First Amendment constitutes the amendment required
by subparagraph 32A(iii) of the Lease;
(v) Neither the addition of the Expansion Space to the
Premises nor the execution of this First Amendment by Tenant and Landlord shall
be deemed or construed as eliminating the Tenant's right to exercise the Second
Option, as set forth and in accordance with the provisions of subsection 32B of
the Lease.
12. REDECORATING. The Landlord and Tenant do hereby acknowledge that
the Expansion Space has been previously built out for a prior tenant.
Notwithstanding the provisions of subsection 32 A of the Lease which provides
that in such circumstances the Tenant is required to take the Expansion Spare
in its then "as is" condition, the Landlord does hereby agree at Landlord's
sole cost and expense, to cause the Expansion Space on or about May 15, 1992 to
be completely recarpeted with Building Standard carpet and to be repainted with
one coat of Building Standard paint. The Tenant shall select from the Building
Standard colors for carpet and paint those colors for said carpeting and
painting desired by the Tenant and notify the Landlord of such selection as
soon as feasible. Except as provided in this Section 12, the Tenant does
hereby acknowledge that the Landlord has made no promise to the Tenant to
construct, alter or otherwise decorate or redecorate the Expansion Space.
13. LANDLORD'S EXONERATION. Landlord's exoneration clause, as set forth
in Paragraph 28 of the Lease, is hereby incorporated herein by reference, as if
fully set forth.
LANDLORD TENANT
THE FIRST NATIONAL BANK OF CONFERENCE PLUS, a Delaware
BOSTON, corporation
as Trustee
BY: BY:
------------------------------- ---------------------------------
Its Its
ATTEST: ATTEST:
--------------------------- ------------------------------
Its Its
-4-
STATE OF CONNECTICUT )
) SS
COUNTY OF HARTFORD )
I, ________________________________________________, in and for said
County, in the State aforesaid, DO HEREBY CERTIFY that
_______________________________, President of _______________________________
and _____________________________, personally known to me to be the
__________________ Secretary of said corporation, and personally known to be to
be the same persons whose names are subscribed to the foregoing instrument,
appeared before me this day in person and severally acknowledged that as such
__________________ President and __________________ Secretary of said
corporation, and caused the corporate seal of said corporation to be affixed
thereto, pursuant to authority given by the Board of __________________ of said
corporation as their free and voluntary act and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and _____________ seal this ______ day of
__________________, 19__.
________________________________
Notary Public
-5-
STATE OF CONNECTICUT )
) SS
COUNTY OF HARTFORD )
I, ________________________________________________, a Notary Public
in and for said County, in the State aforesaid, DO HEREBY CERTIFY that
______________________________, personally known to me to be the ______________
President of CONFERENCE PLUS, a Delaware corporation authorized to conduct
business in the State of Illinois, and _______________________________________,
said corporation, personally known to me to be _______________ Secretary of
said corporation, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, appeared before me this day in
person and severally acknowledged that as such ________________ President and
_______________ Secretary, they signed and delivered the said
instrument as _____________ President and _______________ Secretary of said
corporation, and caused the corporate seal of said corporation to be affixed
thereto, pursuant to authority given by the Board of __________________ of said
corporation as their free and voluntary act for the uses and purposes therein
set forth.
GIVEN under my hand and __________ seal this ______ day of
____________________, 19__.
________________________________
Notary Public
-6-
______________________________________________________________________________
Third Floor Plan
Plan Grid is 2' x 4'
_______________________________________________________________________________
WOODFIELD PARK OFFICE PLAZA
999 PLAZA DRIVE
Schaumburg, Illinois
______________________________________________________________________________
EXHIBIT A-E
[MIGLIN-BEITLER LETTERHEAD]
March 10, 1993
Mr. Rick Riviere
Conference Plus, Inc.
999 Plaza Drive, Suite 370
Schaumburg, Illinois 60173
Dear Rick;
Enclosed please find an executed copy of your Second Amendment to Lease at
National Plaza at Woodfield for your files.
Congratulations on your new expansion, we hope to continue meeting your needs
here at Miglin-Beitler Management. Please feel free to call me if you have any
questions.
Sincerely,
MIGLIN-BEITLER ASSET MANAGEMENT
James G. Bushy
General Building Manager
JGB/dg
enc.
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease is made and entered into as of
the 13th day of January, 1993 at Chicago, Illinois by and between CONNECTICUT
GENERAL LIFE INSURANCE COMPANY, BY: CIGNA INVESTMENTS, INC., its agent, as
Landlord, and CONFERENCE PLUS, a Delaware corporation (the "Tenant").
R E C I T A L S:
A. The Tenant, as tenant, and The First National Bank of
Boston, as Trustee (the "REMIC Trustee") pursuant to that certain Pooling and
Servicing Agreement dated as of April 1, 1988 by and among CIGNA Mortgage
Securities, Inc. and CIGNA INVESTMENTS, INC., as Servicer ("Servicer") (the
REMIC Trustee and Servicer collectively referred to herein as the "Prior
Landlord"), as landlord, previously executed a written lease dated as of
December 24, 1991 (the "Lease") and a first amendment to lease dated the 27th
day of April, 1992 (the "First Amendment") (collectively, herein referred to as
the "Lease"), leasing certain premises (the "Premises") in a building (the
"Building") located on the real estate commonly known as Three National Plaza
at WoodfIeld, located at 999 Plaza Drive, Schaumburg, Illinois, as more
particularly set forth in the Lease.
B. The Landlord has succeeded to the interests of the Prior
Landlord as the result of mesne conveyances.
C. The Tenant desires to lease an additional 3,183 rentable
square feet, of which 2,689 rentable square feet are contiguous to the Premises
and the remaining 494 rentable square feet are not contiguous to the Premises
(the "Expansion Space"). The location of the Expansion Space is depicted on
Exhibit A-E2 attached hereto.
D. The Landlord and Tenant desire to modify and amend some of
the provisions of the Lease by the terms and provisions of this second
amendment (the "Second Amendment").
NOW, THEREFORE, in consideration of the respective covenants of the
parties hereto contained in the Lease and in this Second Amendment, Landlord
and Tenant further mutually agree as follows:
1. CONTROLLING LANGUAGE. Insofar as the specific terms and
provisions of this Second Amendment purport to amend or modify or are in
conflict with the specific terms and provisions of the Lease (the specific, but
not implied), the terms and provisions of this Second Amendment shall govern
and control; in all other respects, the terms and provisions (and definitions)
of the Lease shall remain in full force and effect and unmodified.
2. PREMISES. Effective as of March 1, 1993 and until the Temporary
Term Expiration Date and not thereafter, Section 1 of the Lease is hereby
amended by deleting the number of rentable square feet contained therein,
"1,637", and in lieu thereof, substitute the number "4,820", and (ii) Exhibit
A-E attached to the Lease showing the location of the original Premises and the
Temporary Expansion Space is hereby deleted and in lieu thereof, Exhibit A-E2
attached hereto is substituted. Effective as of the day immediately following
the Temporary Term Expiration Date, Section 1 of the Lease, as amended above in
this Section 2, shall be further amended by deleting the number of rentable
square feet contained therein, "4,820", and in lieu thereof, substituting the
number "4,152" and by deleting the Temporary Expansion Space from Exhibit A- E2
attached hereto.
3. TEMPORARY TERM. The Tenant and Landlord do hereby agree that
pursuant to the provisions contained in Section 3 of the First Amendment, the
Term, as set forth in Section 2 of the Lease, shall, in relation to the
Temporary Expansion Space added to the Premises by the First Amendment and only
the Temporary Expansion Space (and not the original Premises or the Expansion
Space added by this Second Amendment) end on the earlier of (i) the "Early
Termination Date" (as defined in Section 13 of the First Amendment); or (ii)
the last day of May, 1993 (the earlier of (i) and (ii) above being hereinafter
referred to as the "Temporary Term Expiration Date").
4. BASE RENT. Effective as of March 1, 1993 (and not before), the
Base Rental tables set forth in subsection 3 A of the Lease, as amended by
Section 4 of the First Amendment are hereby deleted and in lieu thereof, Tenant
shall pay as and for Base Rent and monthly installments of Base Rent during the
remainder of the Term those amounts set forth in the following rental table in
relation to the applicable months of the remainder of the Term:
RATE MONTHLY
MONTH PER INSTALLMENT ANNUAL
OF TERM SQUARE FOOT OF BASE RENT BASE RENT
- ------- ----------- ------------ ---------
1 - 12 $5.25 $2,108.75 $ 25,305.00
13 - 24 5.36 2,152.93 25,835.20
25 - 36 5.47 2,197.12 26,365.40
37 - 48 5.58 2,241.30 26,895.60
49 - 60 5.69 2,285.48 27,425.80
For the purposes of determining the applicable Base Rent
and monthly installments of Base Rent, the beginning and
-2-
ending months are inclusive in the applicable rate periods above.
Notwithstanding the foregoing, the Landlord and Tenant do hereby
acknowledge that effective as of the Temporary Term Expiration Date, the
amounts set forth in the annual Base Rent column in the table above for and in
relation to each of applicable rate periods specified above occurring after the
Temporary Term Expiration Date shall be reduced by that amount determined by
multiplying the rate per square foot figure contained in the table above for
such rate period by 668, and the monthly installments of Base Rent for each
such rate period shall be modified in relation to each such rate period
occurring after the Temporary Term Expiration Date to equal one-twelfth
(1/12th) of the new annual Base Rent, as determined aforesaid.
5. SECURITY DEPOSIT. The Landlord and Tenant do hereby acknowledge that
the Tenant has delivered to the Landlord and the Landlord has received from the
Tenant pursuant to Sections 5 of the Lease and First Amendment, a security
deposit in the amount of $1,359.90. Effective immediately, the security deposit
required by Sections 5 of the Lease and First Amendment shall be the sum of
$2,781.64. The Tenant shall deliver to the Landlord the additional $1,421.74
necessary to increase the amount of the security deposit held by the Landlord
pursuant to Section 5 of the Lease, as modified by this Section 5 of the Second
Amendment, concurrently with the execution and delivery of this Second
Amendment by the Tenant to the Landlord. Nothing herein contained shall be
deemed or construed as eliminating Landlord's duty to return to the Tenant
pursuant to Section 5 of the First Amendment the $316.24 delivered by the
Tenant concurrently with the execution of the First Amendment upon the
occurrence of the Temporary Term Expiration Date, as determined pursuant to
Section 3 of this Second Amendment.
6. TENANT'S PROPORTIONATE SHARE. Effective as of and including March
1, 1993 to and including the Temporary Term Expiration Date, the provisions of
subsection 4A(iii) of the Lease, as modified by Section 6 of the First
Amendment, is hereby amended by deleting the numerator of the fraction
contained therein, "1,637", and in lieu thereof, inserting the figure of
"4,820" and by deleting the percentage contained in said subsection, "l.2194
percent", and in lieu thereof, inserting the percentage figure of "3.59"
percent". Effective as of and including the first day following the Temporary
Term Expiration Date, the provisions of subsection 4A(iii) of the Lease, as
modified by both Section 6 of the First Amendment and the modifications
contained above in this Section 6 shall be further amended by deleting the
numerator of the fraction contained therein, "4,820", and in lieu thereof,
inserting the figure of, "4,152", and by deleting the percentage contained in
said subsection, "3.59 percent", and in lieu thereof, inserting the percentage
figure of "3.09 percent".
7. ELIMINATED PROVISIONS. Effective immediately, the provisions of
Section 11 of the First Amendment and Subsection 32A of the Lease are hereby
deleted
-3-
in their entirety. It is hereby acknowledged that for the purposes of
Subsection 32B of the Lease, Tenant has exercised its First Option and the
Tenant's right to exercise the Second Option remains unaffected by this Second
Amendment.
8. BROKERS. The Tenant does hereby represent to the Landlord that
except for Miglin-Beitler Management Corporation, no broker has been involved
in this transaction concerning the Expansion Space. The Tenant does hereby
agree to indemnify, defend and hold the Landlord harmless from and against any
and all claims of any real estate broker except for Miglin-Beitler Management
Corporation who claims to be entitled to commissions in connection with this
Lease as a result of representing Tenant.
9. OPERATING EXPENSE MODIFICATION. Notwithstanding any provision of
Section 30 of the Lease to the contrary, the Landlord and Tenant do hereby
acknowledge that for the purposes of determining the percentage limitations on
the Tenant's duty to pay Tenant's Proportionate Share of all Operating Expenses
set forth in subparagraphs 30D of the Lease, such percentage limitations shall
be determined:
(a) For that period of time commencing March 1, 1993 and
ending on the Temporary Term Expiration Date as if the Temporary Expansion
Space added by the First Amendment and the Expansion Space added by this Second
Amendment had been a part of the Premises from inception of the Lease and the
Tenant's Proportionate Share during the entire Base Year had been 3.59 percent.
(b) For that period of time commencing on the date
immediately following the Temporary Term Expansion Date and for the remainder
of the Term, as if the Expansion Space added hereby had been a part of the
Premises from the inception of the Lease and Tenant's Proportionate Share
during the entire base year had been 3.09 percent.
10. MUTUAL INCORPORATION. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement, in writing, between
Landlord and Tenant. No modifications, termination, or surrender of this
Second Amendment or surrender of the Premises or any part thereof or of any
interest therein by Tenant shall be valid or effective unless agreed to and
accepted, in writing, by the Landlord and no act by any representative or agent
of the Landlord other than delivery of such a written agreement and acceptance
by the Landlord shall constitute acceptance thereof. Any prior negotiations or
intentions of the parties, whether oral or evidenced by written documentation
dated prior to the date of this Second Amendment, are null and void.
11. REDECORATING. The Landlord and Tenant do hereby acknowledge that
the Expansion Space has been previously built out for a prior tenant. The
Tenant does hereby acknowledge that the Landlord has made no promise to the
Tenant to construct, alter or otherwise decorate or redecorate the Expansion
Space, except as indicated
-4-
below. Notwithstanding the foregoing, the Landlord and Tenant do hereby
acknowledge that the Tenant has submitted and the Landlord has approved that
certain plan, prepared by I.D.G., Ltd. and dated 1/8/93 consisting of one (1)
page, labelled Scope of Work (the "Tenant's Plans"). Except as hereinafter
provided, the Landlord does hereby agree to build out the Premises at
Landlord's sole cost and expense in accordance with the items indicated on the
Tenant's Plans. Notwithstanding the foregoing, Tenant shall:
(i) pay for the cost of the Landlord purchasing and
installing interior glass partitioning and building standard mini-blinds, the
cost of which shall be $2,595.00;
(ii) purchase and install, at its own cost with its own
contractors all above building standard electrical work;
(iii) pay to the Landlord the sum of $745.91 for carpeting
installed by Landlord in Suite 385; and
(iv) not require Landlord to construct nor shall Tenant cause
to be constructed the doorway opening in the wall between the Temporary
Expansion Space and the Expansion Space indicated on Tenant's Plans.
12. LANDLORD'S EXONERATION. Landlord's exoneration clause, as set
forth in Paragraph 28 of the Lease, is hereby incorporated herein by reference,
as if fully set forth.
LANDLORD TENANT
CONNECTICUT GENERAL LIFE CONFERENCE PLUS, a Delaware
INSURANCE COMPANY, corporation
BY: CIGNA INVESTMENTS, INC.,
its agent BY: /s/ Richard P. Riviere
Its President & CEO
BY: /s/ John R. Schumann
Title: Vice President ATTEST: /s/ Melvin J. Simon
Its Secretary
ATTEST: /s/ William S. Woodsome
Its Vice President
-5-
STATE OF CONNECTICUT )
COUNTY OF HARTFORD )
I HEREBY CERTIFY THAT on this day personally appeared before
me, an officer duly authorized to administer and take acknowledgements, John R.
Schumann, to me known to be Vice President of CIGNA Investments, Inc.; and
William S. Woodsome to me known to be Vice President of CIGNA Investments, Inc.
and they severally acknowledged to and before me that be executed the foregoing
instrument as such officer in the name and on behalf of said corporation and
that he affixed thereto the corporate seal of said corporation, for the uses
and purposes therein set forth and under due authority from said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal in said State and County this 2nd Day of March, 1993.
/s/ Jeannene M. Whitcomb
Notary: Jeannene M. Whitcomb
My Commission Expires: 9/30/97
-6-
STATE OF )
) SS
COUNTY OF )
I, ________________________________________________, in and for said
County, in the State aforesaid, DO HEREBY CERTIFY that
_______________________________, President of _______________________________
and _____________________________, personally known to me to be the
__________________ Secretary of said corporation, and personally known to be to
be the same persons whose names are subscribed to the foregoing instrument,
appeared before me this day in person and severally acknowledged that as such
__________________ President and __________________ Secretary of said
corporation, and caused the corporate seal of said corporation to be affixed
thereto, pursuant to authority given by the Board of __________________ of said
corporation as their free and voluntary act and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and _____________ seal this ______ day of
__________________, 19__.
________________________________
Notary Public
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STATE OF ILLINOIS )
) SS
COUNTY OF DUPAGE )
I, Kendra K Szymanski, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY that Richard P. Riviere, personally
known to me to be the President of CONFERENCE PLUS, a Delaware corporation
authorized to conduct business in the State of Illinois, and Melvin J. Simon,
personally known to me to be the Secretary of said corporation, and personally
known to me to be the same persons whose names are subscribed to the foregoing
instrument, appeared before me this day in person and severally acknowledged
that as such President and Secretary, they signed and delivered the said
instrument as President and Secretary of said corporation, and caused the
corporate seal of said corporation to be affixed thereto, pursuant to authority
given by the Board of Directors of said corporation as their free and voluntary
act for the uses and purposes therein set forth.
GIVEN under my hand and ___________ seal this 23rd day of February,
1993.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/97
-8-
CORPORATE GUARANTEE
The undersigned, in consideration of the leasing of the Expansion
Space described in the attached Second Amendment to Lease to the Tenant therein
mentioned (Conference Plus), does hereby absolutely, unconditionally and
irrevocably guarantee to Landlord the full and complete performance of all of
Tenant's covenants and obligations under that certain Lease dated as of the
24th day of December, 1991, as subsequently amended by a First Amendment to
Lease date as of April 27, 1992 and the attached Second Amendment to Lease
dated as of the 13th day of January, 1993 (in the aggregate, the "Lease") and
the full payment by Tenant of all Rent and other charges and amounts required
to be paid thereunder.
The undersigned does hereby waive any and all requirements of notice
of the acceptance of this Guarantee and all requirements of notice of breach or
non-performance by Tenant. The undersigned further waives any demand by
Landlord and/or prior action by Landlord of any nature whatsoever against
Tenant. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant or granted
indulgences to the Tenant, or extended the time of performance by Tenant,
modified or amended the Lease, released, returned or misapplied other
collateral given later as additional security (including other guarantees),
released Tenant from the performance of its obligations under such Lease, or
failed or neglected to exercise any of Landlord's rights against the Tenant.
This Guarantee shall be binding upon the undersigned and its
respective successors, successors in interest, representatives and assigns and
shall continue in effect subsequent to any assignment of the Lease by Tenant or
by operation of law.
This Guarantee shall be governed and construed under the laws of the
State of Illinois. This Guarantee shall be construed as an absolute,
continuing and unlimited Guarantee of all of the Tenant's obligations under
said Lease, without regard to regularity, validity or enforceability of any
liability or obligation of the Tenant hereby guaranteed; the Landlord shall not
be obligated to proceed first against the Tenant or any other person, firm or
corporation or against any collateral, if any, held by or on behalf of the
Landlord and the undersigned shall be bound on this Guarantee to the Landlord
as if the Tenant's obligations under the Lease were the primary obligations of
the undersigned.
-9-
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed on its behalf by its duly authorized officers and its corporate seal
affixed hereto all on this 23rd day of February, 1993.
ELECTRONIC INFORMATION TECHNOLOGIES, INC.,
a Delaware corporation
BY: /s/ Melvin J. Simon
ITS: Secretary
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STATE OF ILLINOIS )
) SS
COUNTY OF DUPAGE )
On this 23rd day of February, 1993, before me, a Notary Public in and
for said County, appeared Melvin J. Simon, to me personally known, who being by
me sworn, did say that he is the Secretary of ELECTRONIC TECHNOLOGIES, INC.,
the corporation named in and which executed the within instrument, and that the
seal affixed to said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors, _______________________ and said
_____________________________ acknowledged said instrument to be the free act
and deed of said corporation.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/97
-11-
________________________________________________________________________________
3rd floor plan
Plan Grid is 2' x 4'
________________________________________________________________________________
WOODFIELD PARK OFFICE PLAZA
999 PLAZA RIVE
Schaumburg, Illinois
________________________________________________________________________________
EXHIBIT A-E2
CONSENT BY LANDLORD TO SUBLEASE
The undersigned, CONNECTICUT GENERAL LIFE INSURANCE COMPANY, BY:
CIGNA INVESTMENTS, INC., its agent, as landlord (the "Landlord") under that
certain Lease (as amended, if amended, the "Lease"), dated as of the 24th day
of December, 1991, with CONFERENCE PLUS, INC., as tenant (the "Tenant"),
leasing certain premises (the "Premises") on the 3rd floor of the building
commonly known as Three National Plaza at Woodfield does hereby consent to a
certain sublease (the "Sublease") between the Tenant, as sublessor, and
Information Network Systems, Inc., as sublessee (the "Sublessee"), dated March
5, 1993 , having an effective date as of March 1, 1993 , or the date of
Landlord's consent (the "Effective Date") a copy of which is attached hereto,
upon the express understandings and conditions that:
1. Landlord neither approves nor disapproves of the terms,
conditions,- and agreements contained in the Sublease (all of
which shall be subordinate and subject to the terms,
conditions, and agreements of the Lease) and the Landlord
assumes no liability or obligation of any kind whatsoever to
the Sublessee, or for or on account of anything contained in
the Sublease;
2. Notwithstanding the sublease, or anything in the Sublease to
the contrary, and not withstanding the provisions of this
instrument to the contrary, the Tenant shall continue to
remain liable, primarily as a principal and not secondarily as
a surety or guarantor, for the payment of rent and the full,
faithful, and prompt performance of all of the covenants and
obligations of the Tenant under and as set forth in the Lease,
including, but not limited to, the payment of rent and the
responsibility of the Tenant for all actions and any neglect
of the Sublessee and its officers, partners, employees,
agents, guests, and invitees as if such Sublessee and such
persons were employees of the Tenant;
3. There shall be no further subletting of the Tenant's or
Sublessee's interest in the Lease, or of all or any portion of
the Premises demised under the Lease except strictly in
accordance with the terms, conditions, provisions, and
limitations of the Lease; and
4. It is expressly understood and agreed by and between the
parties hereto, anything herein to the contrary
notwithstanding, that each and all of the representations,
warranties, covenants, undertakings and agreements herein made
on the part of any Landlord while in form purporting to be the
representations, warranties, covenants, undertakings and
agreements of such Landlord are, nevertheless, each and every
one of them made and intended, not as personal
representations, warranties, covenants, undertakings and
agreements by such Landlord, or for the purpose or with
the intention of binding such Landlord personally, but are made and
intended for the purpose only of subjecting such Landlord's interest
in the Premises and the Property to the terms of this Lease and for no
other purpose whatsoever, and in case of default hereunder by such
Landlord (or default through, under or by any of its beneficiaries, or
any of the agents or representatives of the Landlord or said
beneficiaries), Tenant shall look solely to the interests of such
Landlord in the Premises and the Property; that no Landlord nor any of
the beneficiaries of any Landlord which is a land trust shall have any
personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained and
no liability or duty shall rest upon any Landlord which is a land
trust to sequester the trust estate or the rents, issues and profits
arising therefrom, or the proceeds arising from any sale or other
disposition thereof; that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any time be
asserted or enforceable against, Landlord, individually or personally,
or against any of its beneficiaries or any of the beneficiaries under
any land trust which may become the owner of any representation,
warranty, covenant, undertaking or agreement of Landlord in this Lease
contained, either express or implied, all such personal liability, if
any, being expressly waived and released by Tenant and by all persons
claiming by, through or under Tenant.
Dated: March 23, 1993.
LANDLORD
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
BY: CIGNA INVESTMENTS, INC., its agent
BY: /s/ John G. Eisele
TITLE: Vice President
-2-
[MIGLIN-BEITLER LETTERHEAD]
March 16, 1993
Mr. Richard Riviere
Conference Plus, Inc.
999 Plaza Drive, Suite 370
Schaumburg, Illinois 60173
Dear Rick:
This letter is to confirm that CONFERENCE PLUS, INC. has accepted Suite 370 and
Suite 385 on March 1, 1993. According to the provisions of your Lease,
(Section 2), the term of your expansion will be effective on March 1, 1993 and
end on February 28, 1997.
Please confirm and execute a copy of this letter which will become a permanent
part of your lease file.
Sincerely,
MIGLIN-BEITLER ASSET MANAGEMENT
James G. Bushy
General Building Manager
Agreed and Accepted:
/s/ Richard P. Riviere
Date: 3/18/93
JGB/dg
cc: Prashant Bodhanwala
THIRD AMENDMENT TO LEASE
This Third Amendment to Lease is made and entered into as of
the 20th day of January, 1994 at Chicago, Illinois by and between CONNECTICUT
GENERAL LIFE INSURANCE COMPANY, BY: CIGNA INVESTMENTS, INC., its agent, as
Landlord, and CONFERENCE PLUS, a Delaware corporation (the "Tenant").
R E C I T A L O F F A C T S:
A. The Tenant, as tenant, and The First National Bank of
Boston, as Trustee (the "REMIC Trustee") pursuant to that certain Pooling and
Servicing Agreement dated as of April 1, 1988 by and among CIGNA Mortgage
Securities, Inc. and CIGNA INVESTMENTS, INC., as Servicer ("Servicer") (the
REMIC Trustee and Servicer collectively referred to herein as the "Prior
Landlord"), as landlord, previously executed a written lease dated as of
December 24, 1991 (the "Original Lease"), a first amendment to lease dated the
27th day of April, 1992 (the "First Amendment") and a second amendment to lease
dated January 13, 1993 (the "Second Amendment") (collectively, herein referred
to as the "Lease"), leasing certain premises (the "Premises") in a building
(the "Building") located on the real estate commonly known as Three National
Plaza at Woodfield, located at 999 Plaza Drive, Schaumburg, Illinois, as more
particularly set forth in the lease.
B. The Landlord has succeeded to the interests of the Prior
Landlord as the result of mesne conveyances.
C. Tenant desires to utilize an additional 3,665 rentable
square feet (the "Second Temporary Expansion Space") on a temporary
month-to-month basis (not to exceed six months in total). The location of the
Second Temporary Expansion Space (and the Premises described in the Lease prior
to this Third Amendment) is indicated on Exhibit A-E3 attached hereto.
D. The Landlord and Tenant desire to modify and amend some of
the provisions of the Lease by the terms and provisions of this Third Amendment
to Lease (the "Third Amendment").
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the respective covenants of the
parties hereto contained in the Lease, Landlord and Tenant further mutually
agree as follows:
1. CONTROLLING LANGUAGE. Insofar as the specific terms and
provisions of this Third Amendment purport to amend or modify or are in
conflict with the specific terms and provisions of the Lease (the specific, but
not implied), the terms and
provisions of this Third Amendment shall govern and control; in all other
respects, the terms and provisions (and definitions) of the Lease shall remain
in full force and effect and unmodified. The above set forth "Recital of
Facts" is hereby incorporated herein by reference.
2. PREMISES. Effective as of February 1, 1994 and until the "Second
Temporary Term Expiration Date" (as hereinafter defined) and not thereafter,
Section 1 of the Lease is hereby amended by deleting the number of rentable
square feet contained therein, "4,152", and in lieu thereof, substitute the
number "7,817", and (ii) Exhibit A-E2 attached to the Lease showing the
location of the Premises described in the Lease prior to this Third Amendment
is hereby deleted and in lieu thereof, Exhibit A-E3 attached hereto is
substituted. Effective as of the day immediately following the "Second
Temporary Term Expiration Date" (as hereinafter defined), Section 1 of the
Lease, as amended above in this Section 2, shall be further amended by deleting
the number of rentable square feet contained therein, "7,817", and in lieu
thereof, substituting the number "4,152" and by deleting the Second Temporary
Expansion Space from Exhibit A-E3 attached hereto.
3. TERM. The Tenant and Landlord do hereby acknowledge that the
Term, as set forth in Section 2 of the Lease, shall, in relation to the Second
Temporary Expansion Space added to the Premises hereby and only the Second
Temporary Expansion Space (and not the Premises described in the Lease prior to
this Third Amendment) end on the earlier of (i) the "Early Termination Date"
(as hereinafter defined); or (ii) the last day of July, 1994 (the earlier of
(i) and (ii) above being hereinafter referred to as the "Second Temporary Term
Expiration Date").
4. BASE RENT. Effective as of February 1, 1994 and until the Second
Temporary Term Expiration Date, the Base Rental table set forth in Section 4 of
the Second Amendment forming a part of the Lease is hereby deleted and in lieu
thereof Tenant shall pay as and for Base Rent and monthly installments of Base
Rent during the remainder of the Term those amounts set forth in the following
rental table in relation to the applicable months of the remainder of the Term:
-2-
RATE MONTHLY
MONTH PER INSTALLMENT ANNUAL
OF TERM SQUARE FOOT OF BASE RENT BASE RENT
- ------- ----------- ------------ ---------
1 - 12 $5.25 $3,419.94 $ 41,039.25
13 - 24 5.36 3,491.59 41,899.12
25 - 36 5.47 3,563.25 42,758.99
37 - 48 5.58 3,634.91 43,618.86
49 - 60 5.69 3,706.56 44,478.73
For the purposes of determining the applicable Base Rent and
monthly installments of Base Rent, the beginning and ending
months are inclusive in the applicable rate periods above.
Notwithstanding the foregoing, Landlord and Tenant do hereby
acknowledge that effective as of the Second Temporary Term Expiration Date, the
Base Rental table set forth in Section 4 of the Second Amendment forming a part
of the Lease shall apply for the remainder of the Term in relation to the
original Premises described in the Lease prior to this Third Amendment.
5. SECURITY DEPOSIT. The Landlord and Tenant do hereby acknowledge
that the Tenant has delivered to the Landlord and the Landlord has received
from the Tenant pursuant to Section 5 of the Lease a security deposit in the
amount of $2,465.40. Effective immediately, the security deposit required by
Section 5 of the Lease shall be the sum of $3,886.48. The Tenant shall deliver
to the Landlord the additional $1,421.08 necessary to increase the amount of
the security deposit held by the Landlord pursuant to Section 5 of the Lease,
as modified by this Section 5 of the Third Amendment concurrently with the
execution and delivery of this Third Amendment by the Tenant to the Landlord.
Provided Tenant is not in default as of the Second Temporary Term Expiration
Date, the Landlord shall return the $1,421.08 delivered herewith to the Tenant.
6. TENANT'S PROPORTIONATE SHARE. Effective as of and including
February 1, 1994 to and including the Second Temporary Term Expiration Date,
the provisions of subsection 4A(iii) of the Original Lease, as modified by
Section 6 of the First Amendment and Section 6 of the Second Amendment, is
hereby amended by deleting the numerator of the fraction contained therein,
"4,152", and in lieu thereof, inserting the figure of "7,817" and by deleting
the percentage contained in said subsection, "3.09 percent", and in lieu
thereof, inserting the percentage figure of "5.82" percent". Effective as of
and including the first day following the Second Temporary
-3-
Term Expiration Date, the provisions of subsection 4A(iii) of the Original
Lease, as modified by Section 6 of the First Amendment, Section 6 of the Second
Amendment and the modifications contained above in this Section 6 shall be
further amended by deleting the numerator of the fraction contained therein,
"7,817", and in lieu thereof, inserting the figure of, 4,152", and by deleting
the percentage contained in said subsection, "5.82 percent, and in lieu
thereof, inserting the percentage figure of "3.09 percent".
7. BROKERS. The Tenant does hereby represent to the Landlord that
except for Miglin-Beitler Management Corporation, no broker has been involved
in this transaction concerning the Second Temporary Expansion Space. The
Tenant does hereby agree to indemnify, defend and hold the Landlord harmless
from and against any and all claims of any real estate broker except for
Miglin-Beitler Management Corporation who claims to be entitled to commissions
in connection with this Third Amendment as a result of representing Tenant.
8. OPERATING EXPENSE MODIFICATION. Notwithstanding any provision of
Section 30 of the Lease to the contrary, the Landlord and Tenant do hereby
acknowledge that for the purposes of determining the percentage limitations on
the Tenant's duty to pay Tenant's Proportionate Share of all Operating Expenses
set forth in subparagraphs 30D of the Lease, such percentage limitations shall
be determined, for and in relation to that period of time and only that period
of time, commencing February 1, 1994 and ending on the Second Temporary Term
Expiration Date as if the Second Temporary Expansion Space added by this Third
Amendment had been a part of the Premises from inception of the Lease and the
Tenant's Proportionate Share during the entire Base Year had been 5.82 percent.
The percentage limitations on Tenant's duty to pay Tenant's Proportionate Share
of Operating Expenses for the remainder of the Term after the Second Temporary
Term Expiration Date shall be governed by the provisions contained in
subsection 9(b) of the Second Amendment.
9. MUTUAL INCORPORATION. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement, in writing, between
Landlord and Tenant. No modifications, termination, or surrender of this Third
Amendment or surrender of the Premises or any part thereof or of any interest
therein by Tenant shall be valid or effective unless agreed to and accepted, in
writing, by the Landlord and no act by any representative or agent of the
Landlord other than delivery of such a written agreement and acceptance by the
Landlord shall constitute acceptance thereof. Any prior negotiations or
intentions of the parties with respect to this Third Amendment, whether oral or
evidenced by written documentation dated prior to the date of this Third
Amendment, are null and void.
10. REDECORATING. The Landlord and Tenant do hereby acknowledge that
the Second Temporary Expansion Space has been previously built out for a prior
tenant.
-4-
The Tenant does hereby acknowledge that the Landlord has made no promise to the
Tenant to construct, alter or otherwise decorate or redecorate the Second
Temporary Expansion Space, except as indicated below. Notwithstanding the
foregoing, the Landlord, at Landlord's sole cost and expense, agrees to install
standard electrical service to the Second Temporary Expansion Space and open
one passageway between the Second Temporary Expansion Space and the portion of
the Premises known as Suite 370.
11. EARLY TERMINATION RIGHT. Notwithstanding any other provision of
this Third Amendment to the contrary, either the Landlord or the Tenant shall
have the right upon not less than thirty days' advance written notice to the
other party to terminate the Tenant's right to use the Second Temporary
Expansion Space as of the last day of any calendar month which shall be stated
in such notice (the "Early Termination Date"). In the event either party
hereto shall exercise such early termination right, the Tenant shall vacate the
Second Temporary Expansion Space on or before said Early Termination Date and
return the same to the Landlord in the condition required by Section 15 of the
Lease, failing which, the Tenant shall be deemed to be holding over in the
Second Temporary Expansion Space and the Landlord shall have all rights and
remedies available under the Lease in relation to a hold over in the Premises
(however, damages shall be prorated on based on the size and Rent applicable to
the Second Temporary Expansion Space only, and not the original Premises
described in the Lease prior to this Third Amendment and further provided that
Landlord shall not have the right to renew the Second Temporary Expansion Space
for a term of one (1) year, as provided in Section 8D of the Lease).
12. LANDLORD'S EXONERATION. Landlord's exoneration clause, as set
forth in Paragraph 28 of the Lease, is hereby incorporated herein by reference,
as if fully set forth.
LANDLORD TENANT
CONNECTICUT GENERAL LIFE CONFERENCE PLUS, a Delaware
INSURANCE COMPANY, corporation
BY: CIGNA INVESTMENTS, INC.,
its agent BY: /s/ Richard P. Riviere
Its President & CEO
BY: /s/ James H. Rogers
Title: Vice President ATTEST: /s/ Judith H. Riley
Its Vice President-Sales
ATTEST: /s/ Thomas Johnson
Its Vice President
-5-
STATE OF CONNECTICUT )
) SS
COUNTY OF HARTFORD )
I, Jeannene M. Whitcomb, in and for said County in the State
aforesaid, DO HEREBY CERTIFY that James H. Rogers, Vice President of CIGNA
Investments, Inc. and Thomas Johnson, personally known to me to be the Vice
President of said corporation, and personally known to be the same persons
whose names are subscribed to the foregoing instrument, appeared before me this
day in person and severally acknowledged that as such Vice President and Vice
President, they signed and delivered the said instrument as Vice President and
Vice President of said corporation, and caused the corporate seal of said
corporation to be affixed thereto, pursuant to authority given by the Board of
Directors of said corporation as their free and voluntary act and as the free
and voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal this 24th day of February, 1994.
/s/ Jeannene M. Whitcomb
Notary Public
My Commission Expires: 9/30/97
-6-
STATE OF ILLINOIS )
) Ss
COUNTY OF DUPAGE )
I, Kendra K Szymanski, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY that Richard Riviere, personally
known to me to be the President of CONFERENCE PLUS, a Delaware corporation
authorized to conduct business in the State of Illinois, and Judith H. Riley,
personally known to me to be the Vice President-Sales of said corporation, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, appeared before me this day in person and severally
acknowledged that as such President and Vice President-Sales of said
corporation, and caused the corporate seal of said corporation to be affixed
thereto, pursuant to authority given by the Board of Directors of said
corporation as their free and voluntary act for the uses and purposes therein
set forth.
GIVEN under my hand and ___________ seal this 7th day of February,
1994.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/97
-7-
CORPORATE GUARANTEE
The undersigned, in consideration of the leasing of the Second
Temporary Expansion Space described in the attached Third Amendment to Lease to
the Tenant therein mentioned (Conference Plus), does hereby absolutely,
unconditionally and irrevocably guarantee to Landlord the full and complete
performance of all of Tenant's covenants and obligations under that certain
Lease dated as of the 24th day of December, 1991, as subsequently amended by a
First Amendment to Lease date as of April 27, 1992, the Second Amendment to
Lease dated as of the 13th day of January, 1993 and the Third Amendment to
Lease dated as of the 20th day of January, 1994 (in the aggregate, the "Lease")
and the full payment by Tenant of all Rent and other charges and amounts
required to be paid thereunder.
The undersigned does hereby waive any and all requirements of notice
of the acceptance of this Guarantee and all requirements of notice of breach or
nonperformance by Tenant. The undersigned further waives any demand by
Landlord and/or prior action by Landlord of any nature whatsoever against
Tenant. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant or granted
indulgences to the Tenant, or extended the time of performance by Tenant,
modified or amended the Lease, released, returned or misapplied other
collateral given later as additional security (including other guarantees),
released Tenant from the performance of its obligations under such Lease, or
failed or neglected to exercise any of Landlord's rights against the Tenant.
This Guarantee shall be binding upon the undersigned and its
respective successors, successors in interest, representatives and assigns and
shall continue in effect subsequent to any assignment of the Lease by Tenant or
by operation of law.
This Guarantee shall be governed and construed under the laws of the
State of Illinois. This Guarantee shall be construed as an absolute,
continuing and unlimited Guarantee of all of the Tenant's obligations under
said Lease, without regard to regularity, validity or enforceability of any
liability or obligation of the Tenant hereby guaranteed; the Landlord shall not
be obligated to proceed first against the Tenant or any other person, firm or
corporation or against any collateral, if any, held by or on behalf of the
Landlord and the undersigned shall be bound on this Guarantee to the Landlord
as if the Tenant's obligations under the Lease were the primary obligations of
the undersigned.
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IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed on its behalf by its duly authorized officers and its corporate seal
affixed hereto all on this 7th day of February, 1994.
ELECTRONIC INFORMATION TECHNOLOGIES, INC.,
a Delaware corporation
BY: /s/ Melvin J. Simon
ITS: Secretary
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STATE OF ILLINOIS )
) Ss
COUNTY OF DUPAGE )
On this 7th day of February, 1993, before me, a Notary Public in and
for said County, appeared Melvin J. Simon, to me personally known, who being by
me sworn, did say that he is the Secretary of ELECTRONIC TECHNOLOGIES, INC.,
the corporation named in and which executed the within instrument, and that the
seal affixed to said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors, _______________________ and said Secretary
acknowledged said instrument to be the free act and deed of said corporation.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/97
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________________________________________________________________________________
3rd floor plan
Plan Grid is 2' x 4'
________________________________________________________________________________
NATIONAL PLAZA AT WOODFIELD
999 PLAZA DRIVE
Schaumburg, Illinois
________________________________________________________________________________
"EXHIBIT A-E3"
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "FOURTH AMENDMENT") is
made and entered into as of the 22nd day of December, 1994 at Chicago, Illinois
by and between NATIONAL PLAZA III, an Illinois limited liability company, (the
"LANDLORD") and CONFERENCE PLUS, INC., a Delaware corporation (the "TENANT").
RECITAL OF FACTS:
A. The Tenant, as tenant and The First National Bank of
Boston, as Trustee (the "REMIC TRUSTEE") pursuant to that certain Pooling and
Servicing Agreement dated as April 1, 1988 by and among CIGNA Mortgage
Securities, Inc. and CIGNA INVESTMENTS, INC., as Servicer ("SERVICER") (the
REMIC Trustee and Servicer collectively referred to herein as the "ORIGINAL
LANDLORD"), as landlord, previously executed a written lease dated as of
December 24, 1991 (the "ORIGINAL LEASE"), and a First Amendment to Lease dated
the 27th day of April, 1992 (the "FIRST AMENDMENT") and Connecticut General
Life Insurance Company ("CONNECTICUT GENERAL"), as successor in interest to the
Original Landlord, and Tenant executed a Second Amendment to Lease dated
January 13, 1993 (the "SECOND AMENDMENT") and a Third Amendment to Lease dated
the 20th day of January, 1994 (the "THIRD AMENDMENT") (the Original Lease as
modified by the First Amendment, the Second Amendment and the Third Amendment
being collectively herein referred to as the "LEASE"), leasing certain premises
(the "PREMISES") in a building (the "BUILDING") located on the real estate
commonly known as THREE NATIONAL PLAZA AT WOODFIELD, located at 999 Plaza
Drive, Schaumburg, Illinois, as more particularly set forth in the Lease.
B. The Landlord has succeeded to all of the interest of
Connecticut General in and to the Lease.
C. The Tenant and Landlord desire to substitute space
located on the 4th floor of the Building (the "SUBSTITUTE SPACE") containing
17,343 rentable square feet for the original Premises described in the Lease
(the "ORIGINAL SPACE") located on the 3rd floor of the Building and containing
7,817 rentable square feet. The location of the Substitute Space is indicated
on Exhibit AS-1 attached hereto.
D. The Landlord and Tenant desire to modify and amend
some of the provisions of the Lease by the terms and provisions of this Fourth
Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the respective covenants of the
parties hereto contained in the Lease, Landlord and Tenant further mutually
agree as follows:
1. CONTROLLING LANGUAGE. Insofar as the specific terms and
provisions of this Fourth Amendment purport to amend or modify or are in
conflict with the specific terms and provisions of the Lease (the specific, but
not implied), the terms and provisions of this Fourth Amendment shall govern
and control; in all other respects, the term and provisions (and definitions)
of the Lease shall remain in full force and effect and unmodified. The above
set forth "Recital of Facts" is hereby incorporated herein by reference.
2. TERM/PREMISES.
A. Effective as of the date of this Fourth Amendment the Term
of the Lease is hereby extended until that date (the "TERM ENDING DATE") which
is 60 months subsequent to the "COMMENCEMENT DATE" (as hereinafter defined).
That period of time commencing and including the Commencement Date to and
including the Term Ending Date is hereinafter referred to as the "MODIFIED
TERM". For the purposes of this Fourth Amendment the term "COMMENCEMENT DATE"
shall mean the earlier of (i) the Completion Date for the Substitute Space (as
determined pursuant to Section 8 below) or (ii) the date upon which Tenant
utilizes the Substitute Space for Tenant's reasonable business purposes or
(iii) March 1, 1995. In the event the Commencement Date occurs on a date other
than the first day of a month the Term Ending Date shall be sixty (60) months
following the first day of the, next succeeding month.
B. Effective as of the Commencement Date, the description of
the Premises set forth in the Lease is hereby modified by eliminating any
reference to the Original Space and in lieu thereof, substituting the
description of the Substitute Space as and for the Premises.
3. REMOVAL FROM ORIGINAL SPACE.
A. The Tenant shall vacate all of the original Space and
return the same to the Landlord in the condition required by Section 15 of the
Lease by that date which is ten (10) business days subsequent to the
Commencement Date.
B. In the event the Tenant shall fail to deliver the Original
Space to the Landlord within the time and in the condition required above, such
failure shall constitute a default under the terms and provisions of the Lease
and the Landlord shall be entitled to any and all remedies provided for in the
Lease or at law as a result of such failure to the same extent as if such
failure constituted a hold over in a portion of the Premises after the
expiration of the Term of the Lease in relation and only in relation to the
Original Space. Nothing herein contained shall, be deemed as granting to the
Landlord the right to terminate the Lease, as amended, in relation to the
Substitute Space or shall otherwise affect any other rights or obligations of
Landlord and Tenant, respectively, with respect to the Substitute Space only as
a result of a holdover by the Tenant in the Original Space.
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4. BASE RENT.
A. Effective as of the Commencement Date, Section 4 of the
Third Amendment is hereby amended by deleting the provisions and Rental Table
contained therein, and in lieu thereof, inserting the following Rental Table
and provisions.
"Notwithstanding the provisions contained in Section 3A of the Lease,
as annual Base Rent and monthly installments of Base Rent, the
following sums are due and payable by the Tenant to the Landlord
during the Modified Term:
MONTHLY
MONTHS OF PER SQ. FT INSTALLMENT ANNUAL
MODIFIED TERM RENTAL OF BASE RENT BASE RENT
------------- ------ ------------ ---------
1-60 $15.07 $21,779.92 $261,359.04
Each installment of monthly Base Rent shall be due promptly on the
first day of each and every calendar month during the Modified Term.
In the event the Modified Term begins or ends on a date other than the
first or last day of a calendar month, the monthly installment of Base
Rent for such month(s) shall be printed accordingly."
B. Notwithstanding anything to the contrary contained in this
Fourth Amendment, Tenant shall be entitled to an abasement of Base Rent only in
the amount of $9,750.00, which abatement shall be applied at the rate of
$1,625.00 per month for the first six (6) months of the Modified Term and
accordingly the monthly installments of Base Rent payable during the first six
(6) months of the Modified Term shall be $20,154.92.
C. Effective as of the Commencement Date and throughout the
Modified Term, Tenant shall not be required to pay any "Rent Adjustments",
Tenant's Proportionate Share of Operating Expenses", Rent Adjustment Deposits"
and "Operating Expense Deposits" as required under the provisions of Section 3B
of the Lease.
5. TENANT'S PROPORTIONATE SHARE. Effective as of the Commencement
Date throughout the Modified Term, the provision contained in subparagraph
4A(iii) of the Original Lease as modified by the First through Third Amendment
are hereby replaced with the following provision:
"Tenant Proportionate Share" means 17,343/134,249 or 12.92 (12.92%) percent."
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6. BROKERS. Each of the parties hereto does hereby represent to the
other that except for Miglin-Beitler Management Corporation and CB Commercial,
no broker has been involved in this transaction. Each of the parties hereto
does hereby agree to indemnify, defend and bold the other party harmless from
and against any and all claims of any real estate brokers except for
Miglin-Beitler Management Corporation and CB Commercial who claim to be
entitled to commissions in (connection with this Fourth Amendment as a result
of representing such party.
7. MUTUAL INCORPORATION. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement, in writing, between
Landlord and Tenant. No modifications, termination, or surrender of this
Fourth Amendment or surrender of the Premises or any part thereof or of any
interest therein by Tenant shall be valid or effective unless agreed to and
accepted, in writing, by the Landlord and no act by any representative or agent
of the Landlord other than delivery of such a written agreement and acceptance
by the Landlord shall constitute acceptance thereof. Any prior negotiations or
intentions of the parties with respect to this Fourth Amendment, whether oral
or evidenced by written documentation dated prior to the date of this Fourth
Amendment, are null and void.
8. CONSTRUCTION OF NEW PREMISES.
A. The Landlord acknowledges that it has approved the
proposed layout of the Substitute Space as indicated in the Preliminary
Electric Voice Data Plan dated November 9, 1994 prepared by The Interior Design
Group, Ltd. under Project Code 1651-93 (the "SPACE PLAN"). Tenant shall also
deliver to Landlord for Landlord's approval, which approval shall not be
unreasonably withheld, detailed working drawings for the Substitute Space
substantially in accordance with the Space Plan. Within five (5) days after
receipt of such drawings Landlord will provide Tenant with any objections
Landlord may have to Tenant's drawings. If Landlord fails to object to such
drawings within said five (5) day period, Landlord shall be deemed to have
approved Tenant's drawings. Tenants drawings as approved pursuant to the
provisions of this Section 8A are hereinafter referred to as the "TENANT'S
PLANS". Except as provided below in this Section 8, the Landlord and Tenant do
hereby agree that the Substitute Space shall be built-out at Tenant's sole cost
and expense in accordance with the items indicated on the Tenant's Plans
attached hereto by Brodrick Construction Company ("TENANT'S CONTRACTOR").
Tenant shall have the right, subject to Landlord's reasonable approval, to
select a general contractor other than Tenant's Contractor (in which event such
general contractor shall be deemed the "Tenant's Contractor" under this Section
8) and/or subcontractors performing work in the Substitute Space pursuant to
Tenant's Plans. For the purposes of this Fourth Amendment, the date upon which
all the work shown on Tenant's Plans is, substantially complete (including the
completion and installation of all modular partitions, electrical wiring and
installation of all computer and telephone systems) such that the noncompletion
of any items of work Indicated on Tenant's Plans would not materially impair
the Tenant's utilization of the Substitute Space for Tenant's
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reasonable business, purposes is hereinafter referred to as the "COMPLETION
DATE FOR THE SUBSTITUTE SPACE". The Tenant's Contractor shall be Permitted to
utilize and occupy the Substitute Space prior to the Commencement Date for
construction purpose only, upon the last to occur of:
(i) The date this Fourth Amendment is signed by all
necessary parties; and
(ii) the date upon which the Tenant or Tenant's Contractor
has supplied all necessary pre-construction
information, documentation and proof required by
subsection 8Q of the Lease to the Landlord
(including, but not limited to proof of appropriate
insurance covering the construction by Tenant's
Contractor in the Substitute Space, copies of all
requisite permits and copies of all executed
contracts for the work to be done in ft Substitute
Space pursuant to Tenant's Plans); provided, however,
that Tenant shall not be required to submit to
Landlord, prior to commencement of construction of
the Substitute Space, copies of executed contracts
for minor items of work not necessary for
commencement of construction of the Substitute Space.
B. The Tenant and Landlord do hereby acknowledge that
Landlord's approval of Tenant's plans does not constitute an agreement or
warranty by the Landlord that the Substitute Space when constructed with the
items shown on Tenant's Plans will be in compliance with all laws, ordinances,
rules and regulations applicable to the Premises nor that the Substitute Space
will be suitable for Tenant's purposes or in compliance with the Americans with
Disabilities Act, as amended from time to time, as the same applies to Tenant's
business from and in the Substitute Space. All such determination as to
compliance and suitability of the Substitute Space when built-out in accordance
with Tenant's Plans shall be the responsibility and obligations of the Tenant.
For the purposes of the Lease, as amended, any and all actions or inactions on
the part of the Tenant's Contractor or any subcontractor in building out the
Substitute Space shall be deemed and construed as actions and inactions of the
Tenant. No delay in the occurrence of the Completion Date for the Substitute
Space shall delay the occurrence of the Commencement Date except to the extent,
on a day for day basis, the cause for such delay is a result of the Landlord's
negligent or willfully intentional acts. The Tenant shall advise the Landlord
of the occurrence of the Completion Date for the Substitute Space as soon as
feasible after occurrence of the same. The occurrence of the Completion Date
for the Substitute Space shall not eliminate or modify the Tenant's obligations
pursuant to subsection 8Q of the Lease to provide the Landlord with all
requisite documentation specified therein upon completion of the work to the
Substitute Space including, but not limited to providing the Landlord with
copies of final sworn general contractor's statement from Tenant's Contractor
and final lien waivers from the Tenant's Contractor and all subcontractors and
material suppliers utilized by Tenant's
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Contractor in performing the work to the Substitute Space pursuant to the
Tenant's Plans.
C. The Landlord does hereby grant the Tenant a credit
("CONSTRUCTION CREDIT") equal to $294,425.20. The Landlord agrees to Pay to
the Tenant the lessor of (i) the actual cost of the work necessary to build-out
the Substitute Space pursuant to Tenant's Plans (including the amount of the
supervisory fee set forth in Section 9 of this Fourth Amendment and the cost of
preparing the Space Plan and Tenant's working drawings) or (ii) the
Construction Credit within thirty (30) days following Landlord's receipt of the
documentation required by subsection 8Q of the Lease and this Section 8
relating to occupancy permits, final general contractor's statement, final lien
waivers and an estoppel certificate in accordance with Section 27 Of the Lease.
In the event the Construction Credit shall exceed the cost of the work
necessary to build-out the Premises pursuant to Tenant's Plans, the Landlord
does hereby agree to credit the lesser of (i) such excess amount or (ii)
$26,014.50 (the "ADDITIONAL CONSTRUCTION CREDIT") against the first monthly
installments of Base Rent to become due pursuant to the terms and provisions of
this Fourth Amendment during the Modified Term.
D. Landlord agrees to cause the Construction Credit to be
deposited with Chicago Title and Trust Company ("CHICAGO TITLE") within ten
(10) days after the execution of this Fourth Amendment. The sum of $184,418.84
has been deposited in a construction escrow between Chicago Title, Landlord and
Connecticut General (the "CONNECTICUT GENERAL ESCROW") and the balance in the
amount of $100,006.36 shall be deposited in a construction escrow between
Landlord, Tenant and Chicago Title (the "LANDLORD ESCROW"; and the Connecticut
General Escrow and the Landlord Escrow being hereinafter collectively refereed
to as the "CONSTRUCTION ESCROWS"). The cost of the Landlord Escrow shall be
divided equally between Landlord and Tenant. Upon completion of Tenant's work
to the Substitute Space pursuant to Tenant's Plans and delivery of the
documentation required in Paragraph C above and compliance with the provisions
of the Construction Escrows. including but not limited to the delivery of final
waivers of lien from Tenant's Contractor and any other contractors and or
subcontractors providing work or materials in connection with building out the
Substitute Space and delivery of an estoppel certificate in accordance with
Section 27 of the Lease, the Construction Credit shall be paid to Tenant within
the time period provided for in Subparagraph C above. All payments shall be
paid to Tenant by Chicago Title to the order of Tenant or at Tenant's
direction.
E. In addition to the Construction Credit Landlord agrees to
reimburse Tenant for one-half (1/2) of the out-of-pocket costs incurred by
Tenant in preparing the Space Plan and Tenant's working drawings for the
Substitute Space; provided, however, that in no event shall Landlord be
required to pay an amount In excess of $6,000.00 (the "PLAN REIMBURSEMENT").
Landlord shall pay Tenant the Plan Reimbursement at such time as Tenant
provides Landlord with copies of the paid bills and lien waivers from the
parties providing such services, provided, however, that Landlord shall not be
required
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to pay the Plan Reimbursement prior to the first disbursement under the
Construction Escrows.
9. ALTERATIONS. Effective as of the date hereof, Section 8Q of the
Lease is hereby amended by deleting the percentage "15%" and substituting in
lieu thereof a percentage of "5%".
10. LANDLORD'S EXONERATION. Landlord's exoneration clause, as set
forth in Section 28 of the Lease, is hereby incorporated herein by reference,
as if fully set forth.
11. EXPANSION OPTION. The Tenant is hereby granted an option (the
"OPTION") to lease all or, subject to the size and configuration limitations
hereinafter specified. any part of that portion of the second (2nd) floor of
the Building containing approximately 7,000 rentable square feet, the location
of which is indicated on Exhibit B attached hereto as the Option Space (the
"OPTION SPACE") for occupancy commencing at any time prior to September 1, 1996
on the terms and conditions and only on the terms and conditions set forth in
this Section 11. In the event the Tenant desires to exercise the Option on
less than all of the Option Space, the Tenant must initially exercise the
Option as to the portion of the Option Space located on the southeast corner of
the second (2nd) floor of the Building located within the Option Space and if
the Tenant thereafter exercises the Option for less than the remaining portion
of the Option Space, the Tenant must exercise the Option for space immediately
contiguous to the portion of the Option Space which has previously been
exercised by Tenant pursuant to this Section 11. In addition, if Tenant
exercises the Option on less than all of the Option Space, such exercise must
result in the, portion of the Option Space on which the Tenant is not
exercising the Option being (i) at least 1,000 rentable square feet in size,
(ii) contiguous within itself, (iii) having a roughly square or rectangular
shape, and (iv) containing a proportionate share of all exterior window
frontage on the second (2nd) floor of the Building, in the same proportion that
the space on the second (2nd) floor of the Building not leased by the Tenant
bears to all rentable square footage (whether leased or unleased) on the second
(2nd) floor of the Building. If the Tenant desires to exercise the Option, it
shall do so in the following and only in the following manner:
A. Tenant shall notify the Landlord of its desire to exercise
the Option, in writing no later than August 1, 1996 and indicate in said notice
the date of occupancy desired by the Tenant (which must be prior to September
1, 1996, the number of rentable square feet (up to 7,000), and the location and
configuration desired by the Tenant; provided, however, that in the event the
size desired is less than the entire Option Space, such size and configuration
shall not violate the limitations contained in the first paragraph of this
Section 11. In the event Tenant does not exercise its right to lease all of
the Option Space, Tenant shall have the further right, from time to time, to
exercise the Option with respect to the remaining portions of the unexercised
Option Space (subject to the requirements set forth in the first paragraph of
this Section 11) provided Tenant exercises such Option prior August 1, 1996 and
Tenant takes
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occupancy of such Option Space prior to September 1, 1996. Any notices
hereunder shall only be effective if delivered at a time when the Tenant is not
in default of its obligations pursuant to the terms of the Lease as amended.
B. As soon as practical after the receipt of the notice or
notices by the Tenant electing to exercise the Option, the Landlord shall
forthwith prepare and transmit to the Tenant an appropriate lease amendment
having as its effective date the date of occupancy specified in Tenant's
notice. Such amendment shall increase the number of rentable square feet
contained in the Premises by the number of rentable square feet designated in
Tenant's notice and modifying Exhibit AS-1 to the Lease to indicate the
inclusion of the portion of the Option Space designated in Tenant's notice in
the Premises. Such amendment shall also increase the Base Rent by the product
of the rental rate set forth in Section 4 hereof, multiplied by the number of
rentable square feet contained in the portion of the Option Space designated in
Tenant's notice and modifying the monthly installments of Base Rent to equal
one-twelfth (1/12th) of the new Base Rent, as determined aforesaid. Such
amendment shall also increase the numerator set forth in subsection 4A(iii) of
the Lease by the number of rentable square feet contained in the Option Space
designated in Tenant's notice and modify the percentage contained in such
subsection accordingly. The Tenant shall take possession of the portion of the
Option Space designated in Tenant's notice for business purposes in its then
"as is" condition on the occupancy date specified in Tenant's notice. Such
amendment shall also grant the Tenant the right to access and utilize the
portion of the Option Space designated in Tenant's notice prior to the
occupancy date specified in Tenant's notice solely and only for the purpose of
constructing such improvements in and to the portion of the Option Space
designated in Tenant's notice as Tenant may desire. The Tenant in making any
such improvements to the portion of the Option Space designated in Tenant's
notice shall comply with all the terms and provision of subsection 8Q of the
Lease. Such amendment shall grant to the Tenant a credit (the "ALTERATION
CREDIT") equal in dollar amount to the lesser of (i) the actual cost of the
alterations made by the Tenant to the portion of the Option Space to which such
amendment relates prior to the occupancy date specified in Tenant's notice or
(ii) did amount equal to the aggregate of both (a) the product of the number of
rentable square feet contend in the portion of the Option Space designated in
Tenant's notice multiplied by $16.40 and further multiplied by that fraction
the numerator of which is equal to the number of months remaining in the
Modified Term as of the date of occupancy specified in Tenant's notice and the
denominator of which is 60 and (b) the portion, if any, of the Construction
Credit specified in Section 8 of this Fourth Amendment, which was neither paid
to the Tenant or credited against the first monthly installments of Base Rent
to become due pursuant to the terms and provisions of this Fourth Amendment.
Said Alteration Credit shall be payable by the Landlord to the Tenant within
thirty (30) days of the Tenant providing the Landlord with all necessary
documentation and proof of payment of all costs relating to the alteration work
desired by the Tenant in and to the portion of the Option Space designated in
Tenant's notice and compliance by the Tenant with the provisions of Section 8Q
of the Lease. In the event the Landlord fails to provide Tenant with the
Alteration Credit when it is then due and payable, Tenant
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shall have the right, upon ten (10) days written notice to Landlord, to set off
as a credit against rent any amounts owing to Tenant for said Alteration
Credit.
C. Provided the amendment conforms to the provisions of
Subsection B above, the Tenant shall execute the same, and transmit it to the
Landlord within ten (10) days of the date of the receipt of the amendment from
Landlord. The failure of the Landlord to receive the amendment so executed
within ten (10) days of the date of Landlord"s transmission of the same to the
Tenant will result, at Landlord's option, in the Tenant's exercise of the
Option automatically being null and void and of no further force or effect.
Any attempt by the Tenant to exercise the Option granted hereby at a time or in
a manner other than as specifically set forth herein shall be at the Landlord's
sole option of no force or effect
D. The provisions of Exhibit B attached to the Lease and
Section 8 of this Fourth Amendment shall be of no force or effect in relation
to such amendment.
E. In the event Tenant exercises the Option for all or any
portion of the Option Space as provided for in this Section 11, the Tenant
Cancellation Option set forth in Section 13 of this Fourth Amendment shall
terminate and be null and void and Tenant shall have no right to terminate the
Lease as provided for in said Section 13.
12. RENEWAL OPTION. The Tenant is hereby granted one (1) five (5)
year option to renew the Lease (the "RENEWAL OPTION") at a Base Rental Rate
equal to the then current Building market rate as mutually determined by
Landlord and tenant (the "EXTENDED TERM RENT"). If the Tenant desires to
exercise its Renewal Option, it shall do so in the following, and only in the
following manner:
A. If the Tenant desires to exercise its Renewal Option, it
shall so notify the Landlord, in writing, no earlier than the first day of the
twelfth (12th) month prior to the expiration date of the Modified Term and no
later than the first day of the tenth (10th) month prior to the expiration date
of the Modified Term. Such notice shall be effective if delivered at a time
when the Tenant is not in default of its obligations under the terms and
provisions of the Lease as amended.
B. Within twenty-one (21) days Of Landlord's receipt of
Tenant's notice of its desire to exercise its Renewal Option, given at the time
and in the manner provided above, the Landlord shall notify the Tenant in
writing of the Landlord's estimate of the Extended Term Rent. The Landlord and
Tenant agree to negotiate in good faith for a period of thirty (30) days after
Tenant's receipt of Landlord's estimate of the Extended Term Rent in an attempt
to mutually agree on the Extended Term Rent. In the event for any reason the
Landlord and Tenant are unable to mutually agree on the Extended Term Rent
within said thirty (30) day period, then in such event the Tenant's purported
exercise of the Renewal option shall be null and void and of no further force
or effect. In the event the Landlord and Tenant are able to mutually agree
upon the Extended Term Rent within said thirty (30) day period, the Landlord
shall as
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soon after the parties have reached mutual agreement as to the Extended Term
prepare and transmit to the Tenant an appropriate lease amendment to the Lease
extending the Term for five years (the "EXTENDED TERM") and modifying the Base
Rent to equal the Extended Term Rent, and modifying the monthly installments of
the Base Rent to equal 1/12th of the new Base Rent, as determined aforesaid.
C. The Landlord shall transmit such lease amendment to the
Tenant for execution and provided the amendment conforms to the provisions of
Subsection B above Tenant shall execute and deliver the same to the Landlord
within ten (10) days of Tenant's receipt thereof. In the event the Tenant
falls for any reason to execute and deliver the lease amendment to the Landlord
within the time period provided herein, then in such event, at Landlord's
option, Tenant's purported exercise of its Renewal Option shall be of no force
or effect and the Renewal Option shall become null and void.
D. The provisions of Exhibit B to the Lease and the
provisions of Sections 4, 8 and 11 of this Fourth Amendment shall be of no
force or effect during such Extended Term brought about as a result of Tenant's
exercise of its Renewal Option.
13. TENANT CANCELLATION OPTION. Tenant shall have an option (herein
referred to as the "TENANT CANCELLATION OPTION") to terminate this Lease
effective as of January 31, 1998 (the forgoing being herein referred to as the
"Early Termination Date") by notifying Landlord of its election, in a written
notice, given not later than January 31, 1997. In the event that Tenant does
not give its notice excising such right by such date, all further rights of
Tenant with respect to the Tenant Cancellation Option shall terminate. In
addition, the Tenant Cancellation Option shall be void and of no force and
effect if Tenant exercises its option to lease all or any part of the Option
Space as provided for in Section 11 of this Fourth Amendment. The Tenant
Cancellation Option is further subject to the following terms, conditions and
limitations:
(i) No later than thirty (30) days prior to the Early
Termination Date, Tenant shall deliver to Landlord a Cancellation fee
in the aggregate mount of (x) six (6) months Base Rent and (y) the
unamortized balance of Landlord's Leasing Costs (as hereinafter
defined) based on a ten (10) year amortization schedule and a ten
(10%) percent interest rate. For purposes hereof, "LANDLORD'S LEASING
COSTS" shall be the aggregate of (A) the leasing commissions paid by
Landlord with respect to this Fourth Amendment plus (B) the amount of
the Construction Credit and the Additional Construction Credit, if any
(as provided for in Article 8 of this Fourth Amendment) plus (C) the
amount of the Base Rent abatement provided for in Section 4B of this
Fourth Amendment.
(ii) Tenant shall have the right to exercise the Tenant
Cancellation Option only if no default exists at the time of such
exercise. Additionally, if a default shall occur at any time after
the election by Tenant of the Tenant Cancellation Option and prior to
the Early Termination Date, and such default is
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not cured during the, applicable grace period, if any, the exercise by
Tenant of the Tenant Cancellation Option shall be deemed null and void
and of no further force and effect, Tenant shall have no further
rights and options under this Section 13 as to the Tenant Cancellation
Option and Landlord shall have an rights and remedies on account of
the occurrence of such default as provided for in the Lease; and
(iii) Notwithstanding anything herein to the contrary, in the
event of any assignment, sublet or transfer by Tenant of this Lease or
any interest under it, Tenant shall have no rights under this Section
13.
14. ELIMINATION PROVISIONS. Effective as of the Commencement Date of
the Modified Term the following provisions are hereby eliminated from the Lease
and shall not apply during the Modified Term:
1. Section 3B of the Original Lease;
2. Sections 4D, 4E, 4F, 4G and 4H of the Original Lease;
3. Section 29 of the Original Lease;
4. Section 31 of the Original Lease; and
5. Section 32 of the Original Lease
15. OPERATING EXPENSE MODIFICATIONS. Landlord and Tenant agree that
Section 30 of the Lease shall be modified as follows:
A. For the calendar year 1994 (being the second (2nd) Lease
Year following the Base Year under the Lease) Tenant shall pay the greater of
either (a) Tenant's Proportionate Share of the Operating Expenses paid or
accrued during said calendar year, but not to exceed one hundred sixteen (116%)
percent of the amount that Tenant would have been required to pay if the Term
of the Lease had commenced on January 1 of the Base Year, or (b) one cent
(.01). The calculation hereunder shall be made based on Tenant's Proportionate
Share of 5.82% as reflected in the Third Amendment.
B. For that portion of the calendar year 1995 commencing
January 1, 1995 and ending on the date immediately preceding the Commencement
Date of the Modified Term Tenant shall pay the greater of either (a) Tenant's
Proportionate Share of the Operating Expenses paid or accrued during such
calendar year, but not to exceed one hundred twenty four (124%) percent of the
amount that Tenant would have been required to pay if the Term of the Lease had
commenced on January 1 of the Base Year, or (b) one cent (.01), which amount
shall be prorated based on the ratio that the number of days between January 1,
1995 through the date preceding the
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Commencement Date bears to 365. The calculation hereunder shall be based on
Tenant's Proportionate Share of 5.82% as reflected in the Third Amendment.
C. For that portion of the calendar year 1995 commencing on
the Commencement Date and continuing through the expiration of the Modified
Term, Tenant shall not be required to pay Tenant Proportionate Share of
Operating Expenses.
16. UPS SYSTEM. Landlord grants to Tenant the right to Install and
maintain an uninterrupted power supply system (hereinafter the "UPS"), on the
roof of the Building, in accordance with all the terms and provisions of this
Section 16:
(a) Tenant shall here all costs of installation of
the UPS, related cables and all other related equipment, including
Landlord approved modifications required for the installation and
costs of fulfilling all the requirements set forth in this Section 16.
(b) Landlord shall designate the actual location of
the UPS so that no interference with the safety of the Building or use
of the Building by Landlord and other tenants will occur.
(c) Tenant shall provide plans and specifications
for the UPS and related equipment for Landlord's approval, which
approval shall not be unreasonably withheld.
(d) Access to the roof, cables, mechanical rooms or
other areas of the Building and all work undertaken by Tenant shall be
in accordance with Landlord's required Procedures and regulations.
(e) If required by local codes or ordinances, Tenant
shall supply stamped engineering drawings in which the installation is
to be accomplished certifying that the proposed location will safely
and legally support the UPS installation.
(f) Installation shall be performed so as to cause
no structural damage to the Building. Any damage to the Building
caused by such installation or by the operation, maintenance or
existence of the UPS shall be repaired by Tenant immediately. At the
termination of this Lease by expiration of time or otherwise, Tenant,
at its sole cost and expense, shall remove the UPS and all related
equipment and shall restore the roof of the Building to its condition
existing prior to the Installation of the UPS, ordinary wear and tear
excepted. Tenant shall further repair, at its sole cost and expense,
any damage or destruction caused by the removal of the UPS.
Restoration and repair hereby required to be performed by Tenant shall
be completed under the supervision of a representative of Landlord at
such time and in such manner as is satisfactory to Landlord.
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In the event Tenant fails to remove the UPS upon the expiration of the
term or fails to repair or restore the roof as required hereunder,
Landlord, at Landlord's option shall have the right to perform any
repairs and removal and restoration at Tenant's sole cost and expense
and such expense shall be reimbursed to Landlord promptly upon demand.
Notwithstanding anything contained herein, Tenant shall not remove,
and shall not be reimbursed for the cost of, any equipment which is
affixed to, embedded in or permanently attached in or to the Building
including, but not limited to, cables and other wiring, unless
Landlord so directs otherwise.
(g) Tenant shall insure that the installation is
accomplished so that the UPS is securely attached to the roof and
Tenant assumes full responsibility for any physical damage to the roof
which may be caused in whole or in part by the UPS or its support
equipment. Tenant shall be responsible for the maintenance and repair
of the UPS System and shall repair any damage to the roof or the
Building in the performance of any such maintenance and repair.
Tenant shall also provide insurance on the UPS System and shall be
solely responsible for any loss or damage to the UPS System.
(h) Tenant shall have the right to negotiate with
and purchase from Delta Air Lines the existing UPS System currently
owned and operated by Delta Air Lines and located on the roof of the
Building. Upon purchase of such UPS System from Delta Air Lines, the
obligations of Tenant set forth above shall apply to such UPS System.
LANDLORD: TENANT:
NATIONAL PLAZA, III, CONFERENCE PLUS, INC., a
an Illinois limited liability Delaware corporation
company
BY: /s/ BY: /s/ Richard P. Riviere
-------------------------
Its Manager Its President
ATTEST: /s/ Melvin J. Simon
Its Secretary
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STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
I, Barbara M. Bermea, in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that Lawrence Weiner, Manager of NATIONAL PLAZA III and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and severally
acknowledged that as such Manager he signed and delivered the said instrument
as Manager of said corporation as his free and voluntary act and as the free
and voluntary act and deed of said corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and __________ seal this 29th day of December,
1994.
/s/ Barbara M. Bermea
Notary Public
My Commission Expires: 12/21/97
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STATE OF ILLINOIS )
) SS
COUNTY OF DUPAGE )
I, Kendra K. Szymanski, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that Richard P. Riviere, personally known to
me to be the __________ President of CONFERENCE PLUS, INC., a Delaware
corporation authorized to conduct business in the State of Illinois, and Melvin
J. Simon, personally known to me to be the __________ Secretary of said
corporation, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, appeared before me this day in person
and severally acknowledged that as such __________ President and __________
Secretary, they signed and delivered the said instrument as __________
President and __________ Secretary of said corporation, and caused the
corporate seal of said corporation to be affixed thereto, pursuant to authority
given by the Board of Directors of said corporation as their free and voluntary
act for the uses and purposes therein set forth..
GIVEN under my hand and __________ seal this 29th day of December,
1994.
/s/ Kendra K. Szymanski
Notary Public
My Commission Expires: 1/16/97
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CORPORATE GUARANTEE
The undersigned, in consideration of the leasing of the Substitute
Space described in the attached Fourth Amendment to Lease to the Tenant therein
mentioned (Conference Plan, Inc.) does hereby absolutely, unconditionally and
irrevocably guarantee to Landlord the full and complete performance of all of
Tenant's covenants and obligations under that certain Lease dated as of the
24th day of December, 1991, as subsequently amended by a First Amendment to
Lease date as of April 27, 1992, the Second Amendment to Lease dated as of the
13th day of January, 1993, the Third Amendment to Lease dated as of the 20th
day of January, 1994 and the Fourth Amendment to Lease dated as of the 22nd
day of December, 1994 (in the aggregate, the "Lease") and the full payment by
Tenant of all Rent and other charges and amounts required to be paid
thereunder.
The undersigned does hereby waive any and all requirements of notice
of the acceptance of this Guarantee and all requirements of notice of breach or
non-performance by Tenant. The undersigned further waives any demand by
Landlord and/or prior action by Landlord of any nature whatsoever against
Tenant. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant or granted
indulgence to the Tenant, or extended the time of performance by Tenant,
modified or amended the Lease, released, returned or misapplied other
collateral given later as additional security (including other guarantees),
released Tenant from the performance of its obligations under such Lease, or
failed or neglected to exercise any of Landlord's rights against the Tenant.
This Guarantee shall be binding upon the undersigned and its
respective successors, successors in interest, representations and assigns and
shall continue in effect subsequent to any assignment of the Lease by Tenant or
by operation of law.
This Guarantee shall be governed and construed under the laws of the
State of Illinois. This Guarantee shall be construed as an absolute,
continuing and unlimited Guarantee of all of the Tenant's obligations under
said Lease, without regard to regularity, validity or enforceability of any
liability or obligation of the Tenant hereby guaranteed; the Landlord shall not
be obligated to proceed first against the Tenant or any other person, firm or
corporation or against any collateral, if any, held by or on behalf of the
Landlord and the undersigned shall be bound on this Guarantee to the Landlord
as if the Tenant's obligations under the Lease were the primary obligations of
the undersigned.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed on its behalf by its duly authorized officers and its corporate seal
affixed hereto all on this 29th day of December, 1994.
ELECTRONIC INFORMATION TECHNOLOGIES, INC.,
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a Delaware corporation
BY: /s/ Melvin J. Simon
ITS: Secretary
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