Exhibit 10.21 


LEASE


TS 125 SOUTH WACKER, L.P., 

a Delaware limited partnership,


Landlord,


and


WHITEHALL JEWELLERS, INC.

a Delaware corporation,


Tenant,


for


125 SOUTH WACKER DRIVE


Chicago,
Illinois


June 16, 2006 






	
 

	
 


	
TABLE OF CONTENTS

	
 


	
 

	
 


	
ARTICLE
  1 BASIC LEASE PROVISIONS

	
1
  


	
 

	
 


	
ARTICLE 2 PREMISES, TERM, RENT

	
4
  


	
 

	
 


	
ARTICLE
  3 USE AND OCCUPANCY

	
5
  


	
 

	
 


	
ARTICLE
  4 POSSESSION/CONDITION OF THE PREMISES/LANDLORD’S WORK

	
5
  


	
 

	
 


	
ARTICLE
  5 ALTERATIONS

	
9
  


	
 

	
 


	
ARTICLE
  6 REPAIRS

	
11 


	
 

	
 


	
ARTICLE 7 TAXES AND
  OPERATING EXPENSES

	
13 


	
 

	
 


	
ARTICLE 8 REQUIREMENTS OF
  LAW

	
17 


	
 

	
 


	
ARTICLE 9 SUBORDINATION

	
19
  


	
 

	
 


	
ARTICLE 10 SERVICES

	
22
  


	
 

	
 


	
ARTICLE
  11 INSURANCE; PROPERTY LOSS OR DAMAGE

	
26 


	
 

	
 


	
ARTICLE 12 EMINENT DOMAIN

	
31
  


	
 

	
 


	
ARTICLE
  13 ASSIGNMENT AND SUBLETTING

	
32 


	
 

	
 


	
ARTICLE
  14 ACCESS TO PREMISES

	
38
  


	
 

	
 


	
ARTICLE
  15 DEFAULT

	
39
  


	
 

	
 


	
ARTICLE
  16 LANDLORD’S RIGHT TO CURE; FEES AND EXPENSES

	
43
  


	
 

	
 


	
ARTICLE
  17 NO REPRESENTATIONS BY LANDLORD; LANDLORD’S APPROVAL

	
44 


	
 

	
 


	
ARTICLE
  18 END OF TERM

	
44
  


	
 

	
 


	
ARTICLE 19 QUIET ENJOYMENT

	
45 


	
 

	
 


	
ARTICLE 20 NO SURRENDER;
  NO WAIVER

	
45
  


	
 

	
 


	
ARTICLE 21 WAIVER OF TRIAL
  BY JURY; COUNTERCLAIM

	
46
  


	
 

	
 


	
ARTICLE 22 NOTICES

	
46 


	
 

	
 


	
ARTICLE 23 RULES AND
  REGULATIONS

	
47 


	
 

	
 


	
ARTICLE
  24 BROKER

	
47
  





i





	
 

	
 


	
ARTICLE 25 INDEMNITY

	
47 


	
 

	
 


	
ARTICLE 26 MISCELLANEOUS

	
49 


	
 

	
 


	
ARTICLE 27 LETTER OF CREDIT

	
53 


	
 

	
 


	
ARTICLE 28 TAX STATUS OF BENEFICIAL OWNER

	
56 


	
 

	
 


	
ARTICLE 29 RENEWAL TERMS

	
57 


	
 

	
 


	
ARTICLE 30 RIGHT OF FIRST REFUSAL

	
61 


	
 

	
 


	
ARTICLE 31 EXHAUST SYSTEM

	
62 


	
 

	
 


	
ARTICLE 32 TENANT’S SECURITY

	
62 


	
 

	
 


	
ARTICLE 33 TERMINATION RIGHT

	
62 


	
 

	
 


	
Exhibit A

	
 


	
Floor Plan of Office
  Premises

	
A-l 


	
 

	
 


	
Exhibit A-1

	
 


	
Floor Plan of Lower
  Level Premises

	
A-I-1 


	
 

	
 


	
Exhibit B

	
 


	
Fixed Rent

	
B-l 


	
 

	
 


	
Exhibit C

	
 


	
Definitions

	
C-l 


	
 

	
 


	
Exhibit
  D

	
 


	
Work Letter

	
D-1 


	
 

	
 


	
Exhibit E

	
 


	
Office Premises
  Design Standards

	
E-1 


	
 

	
 


	
Exhibit F

	
 


	
Lower Level Premises
  Design Standards

	
F-1 


	
 

	
 


	
Exhibit G

	
 


	
Office Cleaning
  Specifications

	
G-1 


	
 

	
 


	
Exhibit H

	
 


	
Rules and Regulations

	
H-1 


	
 

	
 


	
Exhibit I

	
 


	
Form of
  Non-disturbance

	
I-1 


	
 

	
 


	
Exhibit J

	
 


	
Form of Letter of
  Credit

	
J-1 


	
 

	
 


	
Exhibit
  K

	
 


	
Letter from Matthew
  Biss Regarding Specially Alterations dated May 23, 2006

	
K-1





ii






LEASE


          THIS
LEASE is made as of June 16, 2006
(“Effective Date”), between TS 125 SOUTH WACKER. L.P., a Delaware limited partnership (“Landlord”), and WHITEHALL
JEWELLERS, INC., a Delaware corporation
(“Tenant”).  


          Landlord
and Tenant hereby agree as follows:


ARTICLE 1


BASIC LEASE PROVISIONS



	
 

	
 

	
 


	
PREMISES

	
 

	
Two
separate spaces comprised of (a) the entire 26th and 27th floors of the
Building, as more particularly shown on Exhibit A (the “Office
Premises”) and (b) a portion of Lower Level C of the Building, as more
particularly shown on Exhibit A-1 (the “Lower Level Premises”). “Premises”
shall initially mean the Office Premises and, upon the date Landlord delivers possession of the
Lower Level Premises to Tenant, shall mean both the Office Premises and the Lower Level Premises.  


	
 

	
 

	
 


	
BUILDING

	
 

	
The
  building, fixtures, equipment and other improvements and appurtenances now
  located or hereafter erected, located or placed upon the land known as 125 South Wacker
  Drive, Chicago,
  Illinois. 


	
 

	
 

	
 


	
REAL PROPERTY

	
 

	
The
  Building, together with the plot of land upon which it stands. 


	
 

	
 

	
 


	
COMMENCEMENT DATE

	
 

	
The
  date upon which Landlord delivers possession of the Office Premises to Tenant
  in accordance with the terms of this Lease. 


	
 

	
 

	
 


	
RENT COMMENCEMENT DATE

	
 

	
January
  1, 2007. 


	
 

	
 

	
 


	
EXPIRATION DATE

	
 

	
December
31, 2016 (the “Initial Expiration Date”), or the last day of any renewal or
extended term, if the initial Term of this Lease is extended in accordance with any express
provision hereof.  


	
 

	
 

	
 


	
TERM

	
 

	
The
  period commencing on the Commencement Date and ending on the
  Expiration Date. 











	
 

	
 

	
 


	
PERMITTED USES

	
 

	
Tenant shall solely use and
occupy the (a) Office Premises for executive,
operational and general office use as well as the presence of a company store which may be used
for training purposes, displaying
jewelry or related merchandise or selling jewelry and related
merchandise to employees, invited guests, preferred
customers or tenants in the Building and (b) Lower Level Premises for general office operations,
the receipt, storage, distribution
and shipping of jewelry and related merchandise
as well as creating and developing jewelry and other related
merchandise; provided, however, that Tenant may use the rhodium plating and
jewelry repair rooms located in the Lower Level Premises (collectively, the
“Manufacture Rooms”) for repairing and servicing jewelry and other related merchandise. In no event shall the size of the
Manufacture Rooms exceed 1,500
square feet in the aggregate.  


	
 

	
 

	
 


	
TENANT’S
  PROPORTIONATE SHARE

	
 

	
7.1592% (being the Agreed Area of Office Premises
  divided by the Agreed Area of the
  Building). Landlord and Tenant agree that Fixed Rent for the Lower
  Level Premises shall be paid on a “gross”
  basis (i.e., Tenant shall have no obligation to pay Tenant’s Tax Payment or Tenant’s Operating
  Payment with respect to the Lower Level Premises). 


	
 

	
 

	
 


	
AGREED AREA OF BUILDING

	
 

	
517,293 rentable square feet, as mutually agreed by
  Landlord and Tenant. 


	
 

	
 

	
 


	
AGREED AREA OF
  PREMISES

	
 

	
37,034 rentable square feet
with respect to the Office Premises (the
“Agreed Area of Office Premises”) and 15,057 usable square feet with respect to the Lower Level
Premises (the “Agreed Area of Lower Level Premises”), as mutually
agreed by Landlord and Tenant.  


	
 

	
 

	
 


	
FIXED RENT

	
 

	
As set forth on Exhibit B attached hereto.  


	
 

	
 

	
 


	
ADDITIONAL
  RENT

	
 

	
All sums other than Fixed Rent
  payable by Tenant to Landlord under
  this Lease, including Tenant’s Tax Payment, Tenant’s Operating Payment, late charges, overtime or
  excess service charges, damages,
  and interest and other costs related to Tenant’s failure to perform any of its obligations under this Lease. 


	
 

	
 

	
 


	
RENT

	
 

	
Fixed Rent and Additional
  Rent, collectively. 


	
 

	
 

	
 


	
INTEREST RATE

	
 

	
The lesser of (i) 3% per annum
  above the then-current Base Rate, and (ii) the maximum rate permitted
  by applicable law. 


	
 

	
 

	
 


	
LETTER OF
  CREDIT

	
 

	
$1,500,000.00, subject to
  reduction as provided in Section 27.4. 





2







	
 

	
 

	
 

	
 

	
 


	
TENANT’S
  ADDRESS FOR NOTICES

	
 

	
Until Tenant commences business
  operations from the Premises:

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
Whitehall Jewellers, Inc.

155 North Wacker Drive, 5th Floor 

Chicago, IL 60606 

Attn: General Counsel
Thereafter: 

	
 

	
Copy to:

Whitehall Jewellers, Inc.

155 North Wacker Dr., 5th Flr

Chicago, IL 60606

Attn: Chief Financial Officer 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
Whitehall Jewellers, Inc.

  125 South Wacker, Suite 2600 

  Chicago, IL 60606 

  Attn: General Counsel

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
Copies to:

	
 

	
Whitehall Jewellers, Inc.

  125 South Wacker, Suite 2600

  Chicago, IL 60606 

  Attn: Chief Financial Officer

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
and:

	
 

	
Whitehall Jewellers, Inc.

  125 South Wacker, Suite 2600 

  Chicago, IL 60606 

  Attn: Property Manager

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
LANDLORD’S
  ADDRESS FOR NOTICES

	
 

	
TS 125 South Wacker, L.P.

  125 South Wacker 

  Chicago, IL 60606 

  Attn: Property Manager

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
Copies to:

	
 

	
TS 125 South Wacker, L.P.

  c/o Tishman Speyer Properties, L.P.

  525 West Monroe, Suite 650 

  Chicago, IL 60661 

  Attn: Leasing Director

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
and:

	
 

	
Tishman Speyer Properties, L.P.

  45 Rockefeller Plaza 

  New York, New York 10111 

  Attn: Chief Financial Officer

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
and:

	
 

	
Tishman Speyer Properties, L.P.

  45 Rockefeller Plaza 

  New York, New York 10111

  Attn: Chief Legal Officer

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
TENANT’S
  BROKER

	
 

	
Studley, Inc.

	
 

	
 





3







	
 

	
 

	
 


	
LANDLORD’S AGENT

	
 

	
Tishman
  Speyer Properties, L.P. or any other person designated at any time and from
  time to time by Landlord as Landlord’s Agent and their successors and assigns. 


	
 

	
 

	
 


	
LANDLORD’S CONTRIBUTION

	
 

	
$2,705,065.00
  (comprised of (a) $65.00 times the Agreed Area of Office Premises;
  (b) $15.00 times the Agreed Area of Lower Level Premises; (c) $35,000.00 for the
  installation of fire sprinklers in the vault area located in the Lower Level
  Premises and
  (d) $37,000.00). 





All capitalized terms used in this Lease
without definition are defined in Exhibit C.


ARTICLE 2


PREMISES, TERM, RENT


          2.1 Lease
of Premises. Subject to the terms of this Lease, Landlord leases to Tenant and Tenant leases from
Landlord the Premises for the Term. In addition, Landlord grants to Tenant the right to use, on a non-exclusive
basis and in common with other tenants, the Common Areas.


          2.2 Commencement
Date. Upon the Effective
Date, the terms and provisions hereof shall
be fully binding on Landlord and Tenant prior to the occurrence of the Commencement
Date. The Term of this Lease shall
commence on the Commencement Date and, unless sooner terminated or extended as hereinafter provided,
shall end on the Expiration Date. Except as otherwise expressly provided in ARTICLE 4, if Landlord does not tender
possession of the Premises to Tenant
on or before any specified date, for any reason whatsoever, Landlord shall not
be liable for any damage thereby, this Lease shall not be void or voidable
thereby, and the Term shall not
commence until Landlord tenders possession of the Premises to Tenant. No failure to tender possession of the Premises to
Tenant on or before any specified date shall affect any other obligations of Tenant hereunder. Once
the Commencement Date is determined, Landlord
and Tenant shall execute an agreement stating the Commencement Date. Rent Commencement Date and Expiration Date, but the
failure to do so will not affect the determination
of such dates. For purposes of determining whether Tenant has accepted possession of the Premises, Tenant shall be deemed
to have done so when Tenant first moves Tenant’s Property and/or any of its personnel into the Premises and/or
commences construction. Such actions
by Tenant shall be conclusive evidence, as against Tenant, that Landlord has completed the Abatement as described in Section 4.1
of this Lease, except for Landlord’s Work as described in Section 4.3 of this Lease and Latent Defects as defined
in Section 4.4 of this Lease. Tenant
has accepted possession of the Premises in its then current condition and at
the time such actions were taken, the
Premises and the Building were in a good and satisfactory condition as required by the Lease.


          2.3 Payment of Rent. Tenant shall pay to
Landlord, without notice or demand, and without any set-off, counterclaim,
abatement or deduction whatsoever, except as may be expressly set forth in this Lease, in lawful money of the United States
by wire transfer of funds, (a) Fixed Rent in equal monthly installments, in
advance, on the first day of each month during


4








the Term, commencing on the Rent Commencement Date,
and (b) Additional Rent, at the times and in the manner set forth in this
Lease.


          2.4 First Month’s Rent. [INTENTIONALLY
OMITTED].


          2.5 Rent Abatement. Notwithstanding
anything to the contrary contained herein and provided
no Event of Default exists under the Lease, then Fixed Rent, Tenant’s Tax
Payment and Tenant’s Operating Payment (but
not the Electrical Payment) otherwise due and payable hereunder shall
abate for the period commencing on July 1, 2007 ending on December 31, 2007 (the “Initial Abatement Period”). In addition,
notwithstanding anything to the contrary contained herein and provided no Event of Default exists under the
Lease, commencing on January 1, 2008
through December 31, 2008 (the “Additional Abatement Period”) the Agreed Area of Office Premises shall be deemed to be
30,411 rentable square feet and Tenant’s Proportionate Share shall be deemed to be 5.8717% (30,411/517,293) solely
for purposes of calculating Fixed Rent. Tenant’s Tax Payment and Tenant’s
Operating Payment (but not the Electrical Payment) for the Office
Premises due and payable hereunder during such Additional Abatement Period.
After the expiration of the Additional Abatement Period, the Agreed Area of Office Premises and Tenant’s Proportionate Share
shall be as set forth in ARTICLE 1. The “Abatement Period” shall mean, individually, either the Initial
Abatement Period or the Additional
Abatement Period and together shall mean the Initial Abatement Period and the Additional Abatement Period. In the event the
Lease terminates or expires at any time prior to the expiration of the Abatement Period. Tenant shall have no further
right to abatement as set forth in this Section and the Fixed Rent shall
be at then current rate set forth in ARTICLE 1. In the event that the Lease
terminates or expires at any time prior to the expiration of the Abatement
Period. Tenant shall have no claim to any payment of any unutilized abatement.


ARTICLE 3


USE AND OCCUPANCY


          Tenant
shall use and occupy the Premises for the Permitted Uses and for no other purpose. Tenant shall not use or occupy or permit
the use or occupancy of any part of the Premises in a manner constituting a Prohibited Use. If Tenant uses the
Premises for a purpose constituting a
Prohibited Use, violating any Requirement, or causing the Building to be in violation of any Requirement, then Tenant shall
promptly discontinue such use upon notice of such violation. Tenant, at its
expense, shall procure and at all times maintain and comply with the terms and conditions of all licenses and
permits required for the lawful conduct of the Permitted Uses in the
Premises.


ARTICLE 4


POSSESSION/CONDITION OF THE PREMISES/LANDLORD’S WORK


          4.1 Possession of the Premises.


	
 

	
 


	
 

	
          (a) Delivery of Possession.  Landlord shall
deliver possession of the
  Office Premises to Tenant on the
  Effective Date.  Except as otherwise
  expressly provided in





5






	
 

	
 


	
 

	
Section 4.l(c) below. Landlord,
  no later than July 22, 2006, shall deliver possession of the Lower
  Level Premises to Tenant with the abatement of accessible asbestos-containing
  tiles completed in accordance with Landlord’s asbestos abatement program (the
  “VAT Abatement”). After Landlord’s delivery
  of the Office Premises and/or Lower Level Premises, as applicable, Tenant shall thereafter perform its
  obligations therein relating to the construction of the Initial
  Installations described by the Workletter attached hereto as Exhibit D.


	
 

	
 


	
 

	
          (b) Delay of Delivery of Possession.
Notwithstanding anything contained in the Lease to the contrary, in the event the
  Substantial Completion of the VAT Abatement shall occur after July 22, 2006 (the “First
  Rent Abatement Trigger Date”), Tenant shall be entitled to
  an abatement of Rent otherwise payable hereunder for the Premises equal to one (1) day for each day of such delay through August
  22, 2006.  If the Substantial Completion of the VAT Abatement shall occur on
  or after August 23, 2006 (the “Second Rent Abatement Trigger Date”), Tenant shall be entitled to an
abatement of
  Rent otherwise payable hereunder for the Premises equal to two (2)
  days for each day beyond the Second Rent
  Abatement Trigger Date the VAT Abatement is not Substantially Completed. If the Substantial Completion of the
  VAT Abatement shall have not occurred on or before September 22, 2006 (the “Termination
  Trigger Date”), then Tenant shall have the right, by delivering prior written notice to Landlord, to
  terminate this Lease effective no later than October 7, 2006 (the “Termination Date”), unless, prior to the
  Termination Date, Landlord
  Substantially Completes the VAT Abatement.
  The First Rent Abatement
  Trigger Date, the Second Rent Abatement Trigger Date and the Termination Trigger Date, as applicable, shall
  be extended 1  day for each day of Unavoidable Delays and/or delays caused by the
  acts or omissions of Tenant.


	
 

	
 


	
 

	
          (c) Performance of VAT Abatement by Tenant.
Notwithstanding anything contained in Section 4.1 to the contrary,
  Tenant, by delivering written notice to Landlord on or before the 2nd day after the
  Effective Date (the “VAT Abatement Notice”),
  may elect to perform the VAT
  Abatement in the Lower Level Premises. If Tenant so timely elects, (i) Landlord shall deliver the Lower
  Level Premises to Tenant no later than 1 Business Day after Landlord’s receipt of the VAT Abatement Notice
  in  “as is” condition, (ii) Landlord shall be released and
  discharged from its obligation to perform the VAT Abatement, (iii) Section 4.1(b) shall thereafter be null and
  void and of no further force and
  effect, (iv) Tenant shall perform the VAT Abatement in accordance with (1)
  the Procedural Specifications Manual prepared by Carnow, Conibear & Associates, Ltd. dated June 1, 2006 (the “VAT
Abatement Specifications”) to be delivered to Tenant at the same time possession
  of the Lower Level Premises is delivered to Tenant and (II) Sections 2.4 and 5 of the Workletter (for
  purposes of this Section 4.l(c)(iv)(II) only, the term “Initial
  Installations” in Sections 2, 4 and 5 of the Workletter shall be deemed to mean the VAT Abatement and
  the term “Final Plans” shall be deemed to mean the VAT Abatement
  Specifications, provided, however, with respect to Section 2(b) of the
  Workletter, the VAT Abatement Specifications shall be deemed approved by
  Landlord as of the Effective Date) and (v) Landlord shall reimburse Tenant
  for the costs of the VAT Abatement in an amount not to exceed Fifty Thousand
  Dollars ($50,000.00) (the “VAT Abatement Cap”) in accordance with
  Section 4.1 (d) below.





6






	
 

	
 


	
 

	
          (d) Payment of Costs of the VAT Abatement.
  If Tenant timely efects to perform the VAT Abatement in the Lower Level Premises in accordance
  with Section 4.1(c) above, Landlord shall
  make progress payments to Tenant on a monthly basis, for the VAT Abatement performed during the previous
  month, less a retainage of 10% of each
  progress payment (“VAT Abatement Retainage”). Each of Landlord’s progress payments shall be limited to that fraction
of the
  total amount of such payment, the numerator of which is the amount of
  the VAT Abatement Cap, and the denominator of which is the total contract price (or, if there is no specified or
  fixed contract price for the VAT
  Abatement, then Landlord’s reasonable estimate thereof) for the performance
  of the VAT Abatement in accordance with the VAT Abatement
  Specifications. Provided that Tenant
  delivers requisitions to Landlord on or prior to the 10th day of
  any month, such progress payments
  shall be made within 30 days next following the delivery to Landlord of
  requisitions therefor, signed by the chief financial officer of Tenant, which
  requisitions shall set forth the
  names of each contractor and subcontractor to whom payment is due, and
  the amount thereof, and shall be accompanied by (i) with the exception of the
  first requisition, copies of conditional
  waivers and releases of lien upon progress payment in the form prescribed in the Requirements from all
  contractors, subcontractors, and material suppliers covering all work
  and materials which were the subject of previous progress payments by Landlord and Tenant, (ii) a written certification
  from Tenant’s architect that the
  work for which the requisition is being made has been completed substantially
  in accordance with the VAT Abatement Specifications and (iii) such other documents and information as Landlord may
  reasonably request, including in connection with title drawdowns and
  endorsements. Any requisition made following the 10th day of any month shall be paid no later than the last
  day of the month following the month in which  such  requisitions are made. Landlord shall
  disburse the VAT Abatement Retainage
  upon submission by Tenant to Landlord of Tenant’s requisition therefor accompanied
  by all documentation required under this Section 4.1 (d), together with (A) proof of the satisfactory completion of all
  required inspections and issuance of any required approvals, permits and sign-offs for the VAT Abatement by
  Governmental Authorities having
  jurisdiction thereover, and (B) issuance of final, unconditional lien waivers
  and releases in the form prescribed by the Requirements by all contractors, subcontractors
  and  material  suppliers
  covering  all  of
  the  VAT  Abatement. Notwithstanding anything to the contrary set forth in this Section
  3(c), if Tenant does not pay any
  contractor or supplier as required by this provision, Landlord shall have the
  right, but not the obligation, to
  promptly pay to such contractor or supplier all sums so due from Tenant, and Tenant agrees the same shall be
  deemed Additional Rent and shall be paid
  by Tenant within 10 days after Landlord delivers to Tenant an invoice
  therefor..


	
 

	
 


	
           4.2 Condition of the Premises. Tenant has
  inspected the Premises and agrees (a) to accept possession of the Premises in the
  condition existing on the Effective Date “as is”, and (b) except for Landlord’s (i) provision of the Landlord’s
Contribution
  described in Exhibit D and (ii)
  completion of the VAT Abatement (except as otherwise expressly provided in
  Section 4.1(c) above) and
  Landlord’s Work. Landlord has no obligation to perform any work, supply any
  materials, incur any expense or make any alterations or improvements to
  prepare the Premises for Tenant’s
  occupancy, (iii) correction of Latent Defects. Without affecting such
  acceptance of possession of the
  Premises by Tenant on the Effective Date. Landlord shall correct, or cause to
  be corrected, at no cost or expense
  to Tenant, any latent defects in Landlord’s Work and the





7








Premises identified in writing by Tenant and received
by Landlord within 12 months following the
Rent Commencement Date (other than those caused by or resulting from the acts
or omissions of any Tenant Party)
(“Latent Defects”). In addition, in accordance with the terms and provisions of
Section 6.1 below, Landlord shall be responsible for the correction of any latent defects in the Landlord Repair Areas (as
defined in Section 6.1) at any time during the Term. 


          4.3 Landlord’s Work.


	
 

	
 


	
 

	
          (a) Money Elevator. Landlord shall use best
efforts to activate
and provide Tenant with the exclusive use and operation of the special
service elevator serving the Alternate
Loading Dock and Lower Level C of the Building (“Money Elevator”) on or before September 8, 2006. Such Money Elevator
shall be in good working order as of the date same is activated.
During the Term, Tenant, at Tenant’s sole cost and expense, shall maintain the Money Elevator in good condition,
regularly servicing and promptly making all repairs and replacements thereto. Notwithstanding the foregoing,
Landlord shall bear the cost of any
necessary repairs or replacements to the Money Elevator for a period of one
(1) year from the Rent Commencement Date, excluding normal wear and tear and repairs or replacements made necessary be the
negligence, misuse, default, acts or omissions
of Tenant, it’s employees, contractors, agents, customers or invitees.
Subject to and in compliance with all provisions of ARTICLE 5 hereof,
Tenant may install in the Money Elevator,
at Tenant’s sole cost and expense, security cameras and such other security devices as Tenant deems reasonably
necessary and appropriate. 


	
 

	
 


	
 

	
          (b)  Restroom Renovation. Landlord, no later
than September 1, 2006, shall, at Landlord’s sole
  expense, renovate the restrooms located in the Office Premises only (the “Restroom Renovation”).


	
 

	
 


	
 

	
          (c) Landlord’s Right of Entry.
Landlord will undertake activation of the Money Elevator and completion of the Restroom
Renovation (collectively, “Landlord’s Work”) at the same time Tenant
is constructing the Initial Installations in the Premises. Landlord and its representatives shall have the
right to enter the Premises at any time in order to perform Landlord’s Work. Tenant agrees to cooperate and
coordinate with Landlord so as to
minimize Tenant’s and Tenant’s contractors interference with the performance and completion of Landlord’s
Work. 


	
 

	
 


	
 

	
          (d) Delay in Delivery of Landlord’s
Work. Notwithstanding anything contained in
the Lease to the contrary, in the event the delivery of the Money Elevator
and/or the Substantial Completion of the Restroom Renovation occurs after
January 1, 2007 (the “Rent Abatement
Trigger Date”), commencing on the Rent Commencement Date, Tenant shall be entitled, as the case may
be, to the following: (i) an abatement of the Fixed Rent for the Lower Level Premises equal to $1,000.00 per day
for each day after the Rent
Abatement Trigger Date that the delivery of the Money Elevator to Tenant is delayed and/or (ii) an abatement of the Fixed
Rent for the Premises equal to $1,000.00 per day for each day after the Rent Abatement Trigger Date that the
Substantial Completion of the
Restroom Renovation is delayed; provided, however, that the Rent 





8






	
 

	
 


	
 

	
Abatement Trigger Date shall be extended 1 day for each
  day of Unavoidable Delays and/or delays
  caused by the acts or omissions of Tenant.


	
 

	
 


	
 

	
          (e) Shuttle Elevator. Landlord will
renovate the mechanical components and interior
finishes of the elevator that shuttles between the lobby level of the
Building and the lower levels of
the Building (the “Shuttle Elevator”). 





ARTICLE 5


ALTERATIONS


          5.1
Tenant’s Alterations.


	
 

	
 


	
 

	
 


	
 

	
          (a) Except with respect to the Initial
Installations, which shall be governed by the Workletter, Tenant shall not
make any alterations, additions or other physical changes in
or about the Premises (collectively, “Alterations”) other than decorative
Alterations such as painting, wall
coverings and floor coverings (collectively. “Decorative Alterations”), without Landlord’s prior consent,
which consent shall not be unreasonably withheld or delayed if such Alterations (i) are non-structural and do
not affect any Building Systems,
(ii) affect only the Premises and are not visible from outside of the Premises, (iii) do not affect the
certificate of occupancy issued for the Building or the Premises, and
(iv) do not violate any Requirement.  


	
 

	
 


	
 

	
          (b) Plans and Specifications. Prior to
making any Alterations, Tenant, at its expense,
shall (i) submit to Landlord for its approval, detailed plans and
specifications (“Plans”) of each proposed
Alteration (other than Decorative Alterations), and with respect to any Alteration affecting any Building
System, evidence that the Alteration has been designed by, or reviewed and approved by, Landlord’s designated
engineer for the affected Building System, (ii) obtain all permits, approvals
and certificates required by any Governmental Authorities, (iii) furnish to Landlord duplicate original
policies or certificates of worker’s compensation (covering all persons to be
employed by Tenant, and Tenant’s
contractors and subcontractors in connection with such Alteration) and commercial general liability (including property
damage coverage) insurance and Builder’s
Risk coverage (as described in ARTICLE 11) all in such form, with such companies,
for such periods and in such amounts as Landlord may reasonably require, naming Landlord, Landlord’s Agent, any Lessor and
any Mortgagee as additional insureds.
and (iv) furnish to Landlord reasonably satisfactory evidence of Tenant’s
ability to complete and to fully
pay for such Alterations (other than Decorative Alterations). Tenant shall give Landlord not less than 5
Business Days’ notice prior to performing any Decorative Alteration, which notice shall contain a description of
such Decorative Alteration. 


	
 

	
 


	
 

	
          (c)  Governmental Approvals. Tenant, at its
expense, shall, as and when required, promptly obtain certificates of partial and
  final approval of such Alterations required by any Governmental
  Authority (including, without limitation, a certificate of occupancy from the City of Chicago, if required
  in connection with such Alterations and/or
  Tenant’s use and occupancy of the Premises) and shall furnish Landlord with





9






	
 

	
 


	
 

	
copies thereof, together with
  “as-built” Plans for such Alterations prepared on an AutoCAD Computer Assisted Drafting and Design
  System (or such other system or medium
  as Landlord may accept), using naming conventions issued by the American Institute of Architects in June, 1990 (or such
  other naming conventions as Landlord may accept) and magnetic computer media of such record drawings and
  specifications translated in DFX
  format or another format acceptable to Landlord.





          5.2 Manner and Quality of Alterations. All
Alterations shall be performed (a) in a good
and workmanlike manner and free from defects, (b) substantially in accordance
with the Plans, and by contractors reasonably
approved by Landlord, which approval shall not be unreasonably withheld
provided that Landlord shall have the right to designate those subcontractors responsible for electrical,
structural, mechanical, sprinkler, fire and life safety and asbestos related activities, and (c) in compliance
with all Requirements, the terms of this Lease and all construction procedures and regulations then prescribed by
Landlord. All materials and equipment
shall be of high quality and at least equal to the applicable standards for the
Building then established by
Landlord, and no such materials or equipment (other than Tenant’s Property) shall be subject to any lien or other
encumbrance.


          5.3
Removal of Tenant’s Property. Tenant’s Property shall remain the property of Tenant
and Tenant may remove the same at any time on or before the Expiration Date. On
or prior to the Expiration Date, Tenant
shall, unless otherwise directed by Landlord, at Tenant’s expense, remove any Specialty Alteration
designated in writing by Landlord to be removed at the time consent thereto was granted and close up any
slab penetrations in the Premises. Tenant shall repair and restore, in a good and workmanlike manner, any damage to the
Premises or the Building caused by
Tenant’s removal of any Alterations or Tenant’s Property or by the closing of any slab penetrations, and upon default
thereof,
Tenant shall reimburse Landlord for Landlord’s
cost of repairing and restoring such damage. Any Specialty Alterations or
Tenant’s Property not so removed shall
be deemed abandoned and Landlord may remove and dispose of same, and repair and restore any damage caused
thereby, at Tenant’s cost and without accountability
to Tenant. All other Alterations shall become Landlord’s property upon termination
of the Lease.


          5.4
Mechanic’s Liens. Tenant, at its expense, shall discharge any lien
or charge recorded or filed against
the Real Property in connection with any work done or claimed to have been done by or on behalf of, or materials
furnished or claimed to have been furnished to, Tenant, within 10 days after
Tenant’s receipt of notice thereof by payment, filing the bond required by law or otherwise in accordance with
law.


          5.5
Labor Relations. Tenant shall not employ, or permit the employment
of, any contractor, mechanic or laborer,
or permit any materials to be delivered to or used in the Building, if, in Landlord’s sole judgment, such
employment, delivery or use will interfere or cause any conflict with
other contractors, mechanics or laborers engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others. If such interference or conflict occurs, upon Landlord’s request. Tenant
shall cause all contractors, mechanics or laborers causing such interference or conflict to leave the Building
immediately.


10






          5.6  Tenant’s
Costs.
Tenant shall pay promptly to Landlord, upon demand, all out-of-pocket costs actually
incurred by Landlord in connection with Tenant’s Alterations, including costs incurred in
connection with (a) Landlord’s review of the Alterations (including review of requests for approval
thereof) and (b) the provision of Building personnel (in excess of that provided on a
day-to-day basis) during the performance of any Alteration, to operate
elevators or otherwise to
facilitate Tenant’s Alterations. In addition, if Tenant’s Alterations cost more
than $25,000, Tenant shall pay to Landlord,
upon demand, reasonable actual out-of-pocket expenses in an amount not to exceed 5% of the total cost of
such Alternations for costs between $25,000-$50,000, then 4% for costs between $50,000 and $75,000, 3% for costs
between $75,000-$100,000, and 2%
for costs above $ 100,000.


          5.7 Tenant’s
Equipment.
 Tenant shall provide notice to Landlord prior to moving any heavy machinery,
heavy equipment, freight, bulky matter or fixtures (collectively, “Equipment”) into or out
of the Building and shall pay to Landlord any reasonable costs actually incurred by
Landlord in connection therewith to the extent that such occurs after Ordinary Business Hours. If such Equipment
requires special handling, Tenant agrees (a) to employ only persons holding all necessary licenses to perform such
work, (b) all work performed in connection therewith shall comply with
all applicable Requirements and (c) such work shall be done only during hours designated by Landlord. 


          5.8  Legal
Compliance. The approval of Plans, or consent by Landlord to the making of any
Alterations, does not constitute Landlord’s representation that such Plans or
Alterations comply
with any Requirements. Landlord shall not be liable to Tenant or any other
party in connection
with Landlord’s approval of any Plans, or Landlord’s consent to Tenant’s
performing any Alterations. If any Alterations made by or on behalf of Tenant
require Landlord to make any alterations or improvements to any part of the Building in
order to comply with any Requirements, Tenant shall pay all costs and expenses
incurred by Landlord in connection with such alterations or improvements. If any
Alterations made by or on behalf of Landlord require Tenant to make any
alterations or improvements to any part of the Premises in order to comply with any Requirements, Landlord shall pay all
costs and expenses incurred by Tenant in connection
with such alterations or improvements.


          5.9 Floor
Load for the Office Premises. Tenant shall not place a
load upon any floor of the Office Premises that exceeds 100 pounds
per square foot “live load.” Landlord reserves the right to reasonably designate the
position of all Equipment which Tenant wishes to place within the Office
Premises, and to place limitations on the weight thereof.


ARTICLE 6


REPAIRS


          6.1 Landlord’s Repair and Maintenance.
Landlord shall operate, maintain and, except as provided in Section 6.2 hereof, make
all necessary repairs (both structural and nonstructural) to (i) the Building
Systems, (ii) the Common Areas, (iii) structural elements of Building floors,
exterior walls and interior load bearing walls, and (iv) exterior window glass,
all in conformance with
standards applicable to Comparable Buildings and in compliance with all


11






Requirements.
Those elements of the building as described in clauses (i) through (iv) above
are collectively
referred to as the “Landlord Repair Areas”.


          6.2 Tenant’s Repair and
Maintenance. Tenant shall
promptly, at its expense and in compliance
with ARTICLE 5, make all nonstructural repairs to the Premises and the
fixtures, equipment and
appurtenances therein (including (i) all electrical, plumbing, heating, ventilation
and air conditioning, sprinklers and
life safety systems in the Premises from the point of connection to the Building Systems and (ii) the
Money Elevator) (collectively “Tenant Fixtures”) as and when needed to preserve the Premises in
good working order and condition, except
for reasonable wear and tear and damage for which Tenant is not responsible.
All damage to the Building or to any
portion thereof, or to any Tenant Fixtures requiring structural or nonstructural repair caused by or resulting from
any act, omission, neglect or improper conduct of a Tenant Party or the moving of Tenant’s Property or Equipment into,
within or out of the Premises by a
Tenant Party, shall be repaired at Tenant’s expense by (i) Tenant, if the
required repairs are nonstructural in nature and do not affect any Building
System, or (ii) Landlord, if the required
repairs are structural in nature, involve replacement of exterior window glass
or affect any Building System. All Tenant repairs shall be of good
quality utilizing new construction materials.


          6.3 Restorative Work.


	
 

	
 


	
 

	
          (a) Landlord reserves the right to make all changes,
alterations, additions, improvements, repairs or replacements to the Building
and Building Systems, including changing the arrangement or location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, toilets or other Common
Areas (collectively, “Restorative Work”), as Landlord deems necessary or
desirable, and to take all material into the Premises required for the performance of such Restorative Work
provided that (a) the level of any
Building service shall not decrease in any material respect from the level required of Landlord in this Lease as a result
thereof (other than temporary changes in the level of such services during the performance of any such Restorative
Work) and (b) Tenant is not
deprived of access to the Premises. Landlord shall use reasonable efforts to minimize
interference with Tenant’s use and occupancy of the Premises during the performance of such Restorative Work. There
shall be no Rent abatement or allowance to Tenant for a diminution of
rental value, no actual or constructive eviction of Tenant, in whole or in part, no relief from any of
Tenant’s other obligations under this Lease, and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others performing, or failing to perform,
any Restorative Work. Landlord shall use
its commercially reasonable efforts to restore any interruption of access, use or services as soon
as reasonably possible. 


	
 

	
 


	
 

	
          (b) Tenant’s Abatement Right. 
  Notwithstanding any contrary provision of this
  Lease, if Tenant is prevented from using for the conduct of its business, and
  does not use for the conduct of its
  business (“Untenantability”),
  the Premises or any material portion thereof, for six  (6) consecutive Business Days (the “Eligibility Period”) as
a result of (i) any construction, repair,
  maintenance or alteration performed by Landlord after the Commencement Date and not necessitated
  by the negligence or willful misconduct
  of any Tenant Party or otherwise due to the occurrence of a casualty or





12










	
   

  	
   

  
	
   

  	
  condemnation or Unavoidable
Delays, or (ii) the failure in any material respect of Landlord or its
agents or contractors to provide to the Premises any of the utilities and
services required to be provided under this Lease (including ARTICLE 10
below) and not caused by the negligence or
willful misconduct of any Tenant Party or otherwise due to the occurrence of a casualty or condemnation or
Unavoidable Delays, (iii) any failure to provide access to the
Premises and not caused by the negligence or willful misconduct of any Tenant
Party or otherwise due to the occurrence of a casualty or condemnation or Unavoidable Delays, then, in any and all such
events, Tenant’s obligation to pay Fixed Rent. Tenant’s Operating
Payment and Tenant’s Tax Payment shall be abated or reduced, as the case may be, from the first day of the
Eligibility Period and continuing for such time that Tenant continues
to be so prevented from using for the conduct of its business, and does not so use for the conduct of its
business, the Premises or a material portion thereof (the “Untenantability Period”), in the proportion that the
rentable square feet of the portion
of the Premises that Tenant is prevented from using, and does not so use, bears
to the total rentable square feet of the Premises. 

  
	
   

  	
   

  
	
   

  	
            (c) Tenant’s
  Termination Right. If any period of Untenantability continues for more than 365 consecutive days and not caused
  by the negligence or willful misconduct of any Tenant Party or
  otherwise due to the occurrence of a casualty or condemnation, then Tenant shall have the right (during the period the
  Untenantability persists beyond the foregoing 365-day period), but
  exercisable only by written notice to Landlord
  within the fifteen (15) day period following said 365 consecutive day period,
  to terminate this Lease, which
  termination shall be effective sixty days after Landlord’s receipt of
  such written notice.

  



ARTICLE
7


TAXES AND OPERATING EXPENSES


          7.1 Definitions.
For the purposes of this ARTICLE 7, the following terms shall have the
meanings set forth below:


	
   

  	
   

  
	
   

  	
            (a) “Assessed
  Valuation” shall mean
  the amount for which the Real Property is assessed for the purpose of
  imposition of Taxes.

  
	
   

  	
   

  
	
   

  	
            (b) “Calendar Year” shall mean
each calendar year of the Term beginning with the
  calendar year in which the Rent Commencement Date occurs.

  
	
   

  	
   

  
	
   

  	
            (c) “Operating Expenses” shall
mean the aggregate of all costs and
  expenses paid or incurred by or on behalf of Landlord in connection
  with the ownership, operation, repair and
  maintenance of the Real Property, including (i) capital improvements only if such capital improvement either (A) is
  reasonably intended to result in a reduction in Operating Expenses (as for example, a
  labor-saving improvement) provided, the amount included in Operating Expenses in any Calendar Year shall not exceed
  an amount equal to the savings reasonably anticipated to result from
  the installation and operation of such improvement,
  and/or (B) is made during any Calendar Year in compliance with Requirements, and (ii) reasonable rent for the
  management office in the Building. Such

  



13







	
   

  	
   

  
	
   

  	
  capital
  improvements shall be amortized (with interest at the Base Rate) on a
  straight-line basis over such period as Landlord shall reasonably
  determine in accordance with generally accepted accounting principles, and the
  amount included in Operating Expenses in any Calendar Year shall, subject to
  the preceding clause (A), be equal to the annual amortized amount.
  Operating Expenses shall not include any Excluded Expenses. If during all or part of
  any Calendar Year. Landlord shall not furnish any particular item(s) of work or service (which would otherwise
  constitute an Operating Expense) to any leasable portions of the Building for
  any reason, then, for purposes of computing Operating
  Expenses for such period, the amount included in Operating Expenses for such
  period shall be increased by an amount equal to the costs and expenses that
  would have been reasonably
  incurred by Landlord during such period if Landlord had furnished such item(s)
  of work or service to such portion of the Building. In determining the amount
  of Operating Expenses for any Calendar
  Year, if less than 100% of the Building rentable area is occupied by tenants
  at any time during any such Calendar Year. Operating Expenses that vary with occupancy levels shall
  be determined for such Calendar Year to be an amount equal to the like
  expenses which would normally be expected to be incurred had such occupancy been 100% throughout such Calendar Year.
  In no event, however, shall
  Landlord collect from tenants of the Building more than 100% of the Operating Expenses actually incurred by Landlord
  in operating the Building during each respective Calendar Year by virtue of this foregoing gross-up or for
  any other reason.

  
	
   

  	
   

  
	
   

  	
            (d) “Statement” shall mean a
  statement containing (i) the Taxes for any Calendar Year, or (ii) the Operating Expenses
  for any Calendar Year.

  
	
   

  	
   

  
	
   

  	
            (e) “Taxes” shall mean (i) all
  real estate taxes, assessments, sewer and water rents, rates and
  charges and other governmental levies, impositions or charges, whether general, special,
  ordinary, extraordinary, foreseen or unforeseen, which may be assessed, levied or imposed upon
  all or any part of the Real Property, and (ii) all expenses (including reasonable
  attorneys’ fees and disbursements and experts’ and other witnesses’ fees) incurred in
  contesting any of the foregoing or the Assessed Valuation of the Real Property. Taxes shall
  not include (x) interest or penalties incurred by Landlord as a result of Landlord’s late
  payment of Taxes, or (y) franchise, transfer, gift, inheritance, estate or net income taxes
  imposed upon Landlord. For purposes hereof, “Taxes” for any Calendar Year shall be
  deemed to be the Taxes which are assessed, levied or imposed for such Calendar Year regardless of when due
  or paid. If Landlord elects to prepay any assessment
  or to pay any assessment in fewer annual installments than the maximum number permitted by law, then (i) such
  assessment shall be deemed to have been divided and to be payable in the maximum number of
  installments permitted by law, and (ii) there shall be deemed included in Taxes for each Calendar Year the
  installments of such assessment
  that would have become payable during such Calendar Year, together with interest that would have become payable during
  such Calendar Year on account of such assessment being paid in installments and on all such installments
  thereafter, as provided by law, all as if such assessment had been so
  divided. If at any time the methods of taxation
  prevailing on the Effective Date shall be altered so that in lieu of or as an
  addition to the whole or any part of Taxes, there shall be assessed,
  levied or imposed (1) a tax, assessment,
  levy, imposition or charge based on the income or rents received from the Real Property whether or not wholly or
  partially as a capital levy or otherwise.

  



14







	
   

  	
   

  
	
   

  	
  (2)
  a tax, assessment, levy, imposition or charge measured by or based in whole
  or in part upon all or any part of the Real Property and imposed upon Landlord,
  (3) a license fee measured by the rents, or (4) any other tax, assessment, levy,
  imposition, charge or license fee however described or imposed, including
  business improvement district impositions, then all such taxes, assessments, levies,
  impositions, charges or license fees or the part thereof so measured or based shall
  be deemed to be Taxes.

  



          7.2 Tenant’s Tax Payment.


	
   

  	
   

  
	
   

  	
            (a)
 Tenant shall pay to
Landlord Tenant’s Proportionate Share of Taxes for each Calendar Year (“Tenant’s Tax Payment”).
For each Calendar Year, Landlord shall furnish to Tenant a statement
setting forth Landlord’s reasonable estimate of Tenant’s Tax Payment for such Calendar Year (the “Tax
Estimate”). Tenant shall pay to Landlord on the 1st day of each month during such Calendar Year an amount
equal to 1/12 of the Tax Estimate
for such Calendar Year. If Landlord furnishes a Tax Estimate for a Calendar Year subsequent to the commencement
thereof, then (i) until the 1st day of the month following the month in which the Tax Estimate is furnished to
Tenant, Tenant shall pay to
Landlord on the 1st day of each month an amount equal to the monthly sum payable by Tenant to Landlord under this Section
7.2 during the last month of the preceding
Calendar Year, (ii) promptly after the Tax Estimate is furnished to Tenant or
together therewith, Landlord shall
give notice to Tenant stating whether the installments of Tenant’s Tax Estimate previously made for
such Calendar Year were greater or less than the installments of
Tenant’s Tax Estimate to be made for such Calendar Year in accordance with the Tax Estimate, and (x) if
there shall be a deficiency, Tenant shall pay the amount thereof
within 10 Business Days after demand therefor, or (y) if there shall have
been an overpayment, Landlord shall credit the amount thereof against the
next payments of Rent due hereunder, and
(iii) on the 1st day of the month following the month in which the Tax Estimate is furnished to
Tenant, and on the 1st day of each month
thereafter throughout the remainder of such Calendar Year, Tenant shall pay
to Landlord an amount equal to 1/12
of the Tax Estimate.  

  
	
   

  	
   

  
	
   

  	
            (b)
 As
soon as reasonably practicable after Landlord has determined the Taxes for a Calendar Year, Landlord shall furnish
to Tenant a Statement for such
Calendar Year. If the Statement shall show that the sums paid by Tenant under
Section 7.2(a) exceeded the actual amount
of Tenant’s Tax Payment for such Calendar Year, Landlord shall credit the amount of such excess against
the next payments of Rent due hereunder. If the Statement for such Calendar Year shall show that the sums so
paid by Tenant were less than
Tenant’s Tax Payment for such Calendar Year, Tenant shall pay the amount of
such deficiency within 10 Business Days after delivery of the Statement to
Tenant. 

  
	
   

  	
   

  
	
   

  	
            (c)
 Only
Landlord may institute proceedings to reduce the Assessed Valuation of the Real Property
and the filings of any such proceeding by Tenant without Landlord’s consent shall
constitute an Event of Default. Upon Tenant’s request and provided it is
commercially reasonable to do so, in Landlord’s sole discretion, Landlord
shall institute all
appropriate proceedings to seek a reduction of the Assessed Valuation of the
Real Property and to otherwise contest
the amount, validity or applicability of any Taxes. If Landlord receives a refund of Taxes for any
Calendar Year, Landlord shall, at its 

  



15







	
   

  	
   

  
	
   

  	
  election,
  either pay to Tenant, or credit against subsequent payments of Rent due hereunder, an amount
  equal to Tenant’s Proportionate Share of the refund, net of any expenses
  incurred by Landlord in achieving such refund, which amount shall not exceed Tenant’s Tax Payment
  paid for such Calendar Year. Except as otherwise expressly provided in this
  Lease, Landlord shall not be obligated to file any application or institute
  any proceeding seeking a reduction in Taxes or the Assessed Valuation. The
  benefit of any
  exemption or abatement relating to all or any part of the Real Property (other
  than a refund of Taxes paid on a reduction in the Assessed Valuation of the
  Real Property) that is obtained for the benefit of a specific tenant (other
  than Tenant) and not for the benefit of all tenants of the Building generally shall
  accrue solely to the benefit of Landlord and Taxes shall be computed without taking into
  account any such exemption or abatement.

  
	
   

  	
   

  
	
   

  	
            (d)
 Tenant shall be responsible for any applicable occupancy or rent tax now in effect or hereafter
enacted by any applicable Governmental Authority
and uniformly applied to Comparable Buildings and, if payable by
Landlord, Tenant shall promptly pay such amounts to Landlord, upon Landlord’s
demand. 

  
	
   

  	
   

  
	
   

  	
  7.3
  Tenant’s Operating Payment.

  
	
   

  	
   

  
	
   

  	
            (a)
Tenant
shall pay to Landlord Tenant’s Proportionate Share of Operating Expenses payable for each Calendar Year
(“Tenant’s Operating Payment”). For each Calendar
Year, Landlord shall furnish to Tenant a statement setting forth Landlord’s
reasonable estimate of Tenant’s Operating Payment for such Calendar Year (the
“Expense Estimate”). Tenant shall
pay to Landlord on the 1st day of each month during such Calendar Year an amount equal to 1/12 of the
Expense Estimate. If Landlord furnishes
an Expense Estimate for a Calendar Year subsequent to the commencement
thereof, then (i) until the 1st day of the month following the month in which
the Expense Estimate is furnished to Tenant, Tenant shall pay to
Landlord on the 1st day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Section
7.3 during the last month of the preceding Calendar Year, (ii) promptly after
the Expense Estimate is furnished
to Tenant or together therewith, Landlord shall give notice to Tenant
stating whether the installments of Tenant’s Operating Payment previously made for such Calendar Year were greater or less
than the installments of Tenant’s Expense
Payment to be made for such Calendar Year in accordance with the Expense Estimate, and (x) if there shall be a
deficiency, Tenant shall pay the amount thereof within 10 Business Days after demand therefor, or
(y) if there shall have been an overpayment,
Landlord shall credit the amount thereof against the next payments of Rent due
hereunder, and (iii) on the 1st day of the month following the month in which
the Expense Estimate is furnished to
Tenant, and on the 1st day of each month thereafter throughout the remainder of such Calendar Year,
Tenant shall pay to Landlord an amount equal to 1/12 of the Expense Estimate.  

  
	
   

  	
   

  
	
   

  	
            (b)
 On
or before May 1st of each Calendar Year, Landlord shall furnish to Tenant a Statement for
the immediately preceding Calendar Year reconciling Operating Expenses. If the
Statement shows that the sums paid by Tenant under Section 7.3(a) exceeded the actual amount of Tenant’s
Operating Payment for such Calendar Year, Landlord
shall credit the amount of such excess against subsequent payments of Rent
due 

  
	
   

  	
   

  



16







	
   

  	
   

  
	
   

  	
  hereunder. If the Statement
  shows that the sums so paid by Tenant were less than Tenant’s Operating Payment for such Calendar
  Year, Tenant shall pay the amount of such deficiency within 30 days
  after delivery of the Statement to Tenant.

  
	
   

  	
   

  
	
   

  	
  7.4 Non-Waiver;
  Disputes.

  
	
   

  	
   

  
	
   

  	
            (a)
 Landlord’s failure to render any Statement on a timely basis with respect to
any Calendar Year shall not prejudice Landlord’s right to thereafter render a
Statement with respect to such Calendar
Year or any subsequent Calendar Year, nor shall the rendering of a Statement prejudice Landlord’s
right to thereafter render a corrected Statement for that Calendar
Year. 

  
	
   

  	
   

  
	
   

  	
            (b)
 Each Statement sent to Tenant shall be conclusively binding upon Tenant
unless Tenant (i) pays to Landlord when due the amount set forth in such
Statement, without prejudice to
Tenant’s right to dispute such Statement, and (ii) within 90 days after
such Statement is sent, sends a notice to Landlord objecting to such
Statement and specifying the reasons therefor. Tenant agrees that Tenant will
not employ, in connection with any dispute
under this Lease, any person who is to be compensated in whole or in part,
on a contingency fee basis. If the parties are unable to resolve any dispute
as to the correctness of such Statement within 30 days following such notice
of objection, either party may refer the
issues raised to one of the nationally recognized public accounting firm mutually selected by Landlord and Tenant,
and the decision of such firm shall be conclusively binding upon Landlord and Tenant. In connection
therewith, Tenant and such accountants shall execute and deliver to Landlord
a confidentiality agreement, in form
and substance reasonably satisfactory to Landlord, whereby such parties agree
not to disclose to any third party any of the information obtained in
connection with such review. Tenant shall pay the fees and expenses
relating to such procedure, unless such accountants determine that Landlord
overstated Operating Expenses by more than 5% for such Calendar Year, in
which case Landlord shall pay such fees and expenses. 

  



          7.5
Proration. If the Rent Commencement Date is not January 1,
the Additional Rent for the applicable Calendar Year shall be
apportioned on the basis of the number of days in the year from the Rent Commencement Date to the following December 31. If
the Expiration Date occurs on a date
other than December 31, any Additional Rent under this ARTICLE 7 for the
Calendar Year in which such Expiration Date occurs shall be apportioned on the
basis of the number of days in the year from
January 1 to the Expiration Date. Upon the expiration or earlier termination of
this Lease, any Additional Rent under this ARTICLE 7 shall be adjusted or paid within
30 days after submission of the Statement for the last Calendar Year.


ARTICLE 8


REQUIREMENTS OF LAW


          8.1
Compliance with Requirements.


	
   

  	
   

  
	
   

  	
            (a) Tenant’s Compliance. Tenant, at its
  expense, shall comply with all Requirements
  applicable to the Premises; provided, however, that Tenant shall not be

  



17







	
   

  	
   

  
	
   

  	
  obligated
  to comply with any Requirements requiring any structural alterations to the Building unless the
  application of such Requirements arises from (i) the specific manner and nature of
  Tenant’s use or occupancy of the Premises, as distinct from general office use, (ii) Alterations
  made by Tenant, or (iii) a breach by Tenant of any provisions of this Lease. Any such
  repairs or alterations shall be made at Tenant’s expense (1) by Tenant in compliance with
  ARTICLE 5 if such repairs or alterations are nonstructural and do not affect
  any Building System, or (2) by Landlord if such repairs or alterations are
  structural or
  affect any Building System. If Tenant obtains knowledge of any failure to
  comply with
  any Requirements applicable to the Premises, Tenant shall give Landlord
  prompt notice
  thereof.

  
	
   

  	
   

  
	
   

  	
            (b)
  Hazardous Materials. Tenant shall not cause or permit (i) any
  Hazardous
  Materials to be brought into the Building, (ii) the storage or use of
  Hazardous Materials
  in any manner other than in full compliance with any Requirements, or (iii)
  the escape,
  disposal or release of any Hazardous Materials within or in the vicinity of
  the Building.
  Nothing herein shall be deemed to prevent Tenant’s use of any Hazardous Materials customarily
  used in the ordinary course of office work, provided such use is in accordance with all
  Requirements. Tenant shall not be liable or responsible for any investigation,
  clean-up or remediation or any other action with respect to any Hazardous Materials in, on or
  about the Building. Tenant shall only be responsible, at its expense, for all matters
  directly or indirectly based on, or arising or resulting from the presence of
  Hazardous
  Materials in the Building which is caused or permitted by a Tenant Party. Tenant shall provide
  to Landlord copies of all communications received by Tenant with respect to any
  Requirements relating to Hazardous Materials, and/or any claims made in connection therewith.
  Landlord or its agents may perform environmental inspections of the Premises at any
  time.

  
	
   

  	
   

  
	
   

  	
            (c)
  Landlord’s Compliance. Landlord shall comply with (or cause to
  be complied
  with) all Requirements applicable to the Building which are not the
  obligation of Tenant, to the extent that non-compliance would materially
  impair Tenant’s use and occupancy of the Premises for the Permitted Uses.
  Landlord hereby represents to Tenant that to Landlord’s current actual knowledge,
  without independent investigation or inquiry, the office premises located on floors 2
  through 31 of the Building do not contain any asbestos or asbestos-containing building
  materials. Landlord shall be responsible for complying with all Requirements affecting office buildings generally
  and not imposed solely because of Tenant’s
  operations at the Premises or Tenant’s Alterations thereto.

  
	
   

  	
   

  
	
   

  	
            (d)
  Landlord’s Insurance. Tenant shall not cause or permit any action or condition, including,
  without limitation, with respect to the presence of the Security Guards in the Building and the use of and
  operations in the Manufacture Rooms, that would (i) invalidate or conflict
  with Landlord’s insurance policies, (ii) violate applicable rules, regulations and guidelines of the Fire
  Department, Fire Insurance Rating Organization or any other authority
  having jurisdiction over the Building, (iii) cause an increase in the premiums of fire insurance for the Building over that
  payable with respect to Comparable Buildings, or (iv) result in
  Landlord’s insurance companies’ refusing to insure
  the Building or any property therein in amounts and against risks as
  reasonably determined by Landlord.
  If fire insurance premiums increase as a result of Tenant’s

  



18







	
   

  	
   

  
	
   

  	
  failure to comply with the provisions of this
  Section 8.1. Tenant shall promptly
  cure such failure and shall reimburse
  Landlord for the increased fire insurance premiums paid by Landlord as
  a result of such failure by Tenant.

  



          8.2 Fire and Life Safety. Landlord shall
cause the base Building fire and life safety system located on Lower Level C and the 26th and 27th floors
of the Building (the “Building Fire and Life Safety System”) to be operational
by July 15, 2006. The Building Fire and Life Safety System shall include a “Base Building Tie In Point” located on
each floor of the Premises. Tenant shall install and maintain a fire
alarm and life safety system in the Premises, including,
without limitation, all fire alarm equipment, wiring, conduit, audio and visual
devices, smoke detectors, etc., in
accordance with this Lease, the Rules and Regulations and all Requirements. Tenant shall utilize the Base
Building Tie In Point to connect its fire alarm and life safety system
to the Building Fire and Life Safety System. If the Fire Insurance Rating Organization or any Governmental Authority or any
of Landlord’s insurers requires or recommends
any modifications and/or alterations be made or any additional equipment be supplied
in connection with the sprinkler system or Building Fire and Life Safety System
serving the Building by reason of Tenant’s business, any Alterations performed
by Tenant or the location of the partitions,
Tenant’s Property, or other contents of the Premises, Landlord (to the extent outside of the Premises) or Tenant (to the extent
within the Premises) shall make such modifications and/or Alterations, and
supply such additional equipment, in either case at Tenant’s expense. Notwithstanding anything
contained in the Lease to the contrary, in the event the Building Fire and Life Safety System is not
operational by August 1, 2006 (the “Fire and Life Safety Rent Abatement Trigger Date”), commencing on the Rent
Commencement Date. Tenant shall be entitled to an abatement of Rent otherwise
payable hereunder for the Premises equal
to one (1) day for each day after the Fire and Life Safety
Rent Abatement Trigger Date the Building
Fire and Life Safety System is not operational; provided, however, that the
Fire and Life Safety Rent Abatement Trigger Date shall be extended 1 day
for each day of Unavoidable Delays and/or delays caused by the acts or
omissions of Tenant.  


ARTICLE 9


SUBORDINATION


          9.1
Subordination and Attornment.


	
   

  	
   

  
	
   

  	
            (a)
 This Lease is subject and
subordinate to all Mortgages and Superior Leases, and, at the request of any Mortgagee or Lessor. Tenant shall
attorn to such Mortgagee or Lessor, its successors in interest or any
purchaser in a foreclosure sale. 

  
	
   

  	
   

  
	
   

  	
            (b)
 If a Lessor or Mortgagee or any other person or entity shall succeed
to the rights of Landlord under this Lease,
whether through possession or foreclosure action or the delivery of a
new lease or deed, then at the request of the successor landlord and upon such successor landlord’s written agreement to
accept Tenant’s attornment and to recognize
Tenant’s interest under this Lease, Tenant shall be deemed to have attorned
to and recognized such successor
landlord as Landlord under this Lease. The provisions of this Section
9.1 are self-operative and require no further instruments to give effect
hereto; provided, however, that Tenant
shall promptly execute and deliver any instrument that 

  



19







	
   

  	
   

  
	
   

  	
  such successor landlord may
reasonably request (x) evidencing such attornment, (y) setting forth the terms and conditions of
Tenant’s tenancy, and (z) containing such other terms and conditions as may
be required by such Mortgagee or Lessor, provided such terms and conditions do not increase the
Rent, materially increase Tenant’s obligations
or materially and adversely affect Tenant’s rights under this Lease. Upon such
attornment this Lease shall continue in full force and effect as a direct
lease between such successor landlord and
Tenant upon all of the terms, conditions and covenants set forth in this Lease except that such successor
landlord (other than Goldman Sachs Mortgage Company, the existing
Mortgagee as of the Effective Date, whose liability to Tenant as successor
landlord hereunder shall be as set forth in the form attached hereto as Exhibit 1) shall not be: 

  
	
   

  	
   

  
	
   

  	
  
                    (i)
liable for any act or omission of Landlord (except to the extent such
act or omission continues beyond the date when such successor landlord
succeeds to Landlord’s interest and Tenant
had given prompt notice of such act or omission to the Lessor or
Mortgagee): 

  
	
   

  	
   

  
	
   

  	
  
                    (ii)
subject to any defense, claim, counterclaim, set-off or offsets which
Tenant may have against Landlord; 

  
	
   

  	
   

  
	
   

  	
  
                    (iii)
bound by any prepayment of more than one month’s Rent to any prior
landlord; 

  
	
   

  	
   

  
	
   

  	
                      (iv) bound by any obligation to
make any payment to Tenant which was
required to be made prior to the time such successor landlord succeeded to Landlord’s
interest; 

  
	
   

  	
   

  
	
   

  	
  
                    (v)
bound by any obligation to perform any work or to make improvements to
the Premises except for (x) repairs and maintenance required to be made by
Landlord under this Lease, and (y) repairs to the Premises as a result of
damage by fire or other casualty or a
partial condemnation pursuant to the provisions of this Lease, but only to the extent that such repairs can
reasonably be made from the net proceeds of any insurance or condemnation awards, respectively,
actually made available to such successor landlord; 

  
	
   

  	
   

  
	
   

  	
  
                    (vi)
bound by any modification, amendment or renewal of this Lease made without successor landlord’s consent; 

  
	
   

  	
   

  
	
   

  	
  
                    (vii)
liable for the repayment of any security deposit or surrender of any letter of credit, unless and until such security
deposit actually is paid or such letter of credit is actually
delivered to such successor landlord; or 

  
	
   

  	
   

  
	
   

  	
  
                    (viii)
liable for the payment of any unfunded tenant improvement allowance,
refurbishment allowance or similar obligation; or 

  
	
   

  	
   

  
	
   

  	
  
                    (ix)
personally liable under the Lease, Mortgagee’s liability thereunder being
limited to its interest in the Real Property. 

  



20







	
   

  	
   

  
	
   

  	
            (c)
 Tenant shall from time to time within 10 days of request from Landlord execute and deliver any documents or instruments
that may be reasonably required by any Mortgagee or Lessor to confirm
any subordination. 

  



          9.2
Mortgage or Superior Lease Defaults. Any Mortgagee may elect that this Lease
shall have priority over the Mortgage and, upon notification to Tenant by such
Mortgagee, this Lease shall be deemed to have
priority over such Mortgage, regardless of the date of this Lease. In connection with any financing of the Real
Property, Tenant shall consent to any reasonable
modifications of this Lease requested by any lending institution, provided
such modifications do not increase
the Rent, materially increase the obligations, or materially and adversely
affect the rights, of Tenant under this Lease.


          9.3 Tenant’s Termination Right. As
long as any Superior Lease or Mortgage exists,
Tenant shall not seek to terminate
this Lease by reason of any act or omission of Landlord until (a) Tenant shall have given notice of such
act or omission to all Lessors and/or Mortgagees, and (b) a reasonable period of
time shall have elapsed following the giving of notice of such default and the
expiration of any applicable notice or grace periods (unless such act or
omission is not capable of being remedied within a reasonable period of
time), during which period such Lessors and/or
Mortgagees shall have the right, but not the obligation, to remedy such act or
omission and thereafter diligently
proceed to so remedy such act or omission. If any Lessor or Mortgagee elects
to remedy such act or omission of Landlord, Tenant shall not seek to terminate
this Lease so long as such Lessor or
Mortgagee is proceeding with reasonable diligence to effect such remedy and such remedy is effected within the
later to occur of (x) 90 days or (y) 30 days after such Lessor or Mortgagee obtains possession of the
Real Property if such possession is reasonably required to effect such
cure.


          9.4
Provisions. The provisions
of this ARTICLE 9 shall (a) inure to the benefit of Landlord, any future owner of the Building or the
Real Property, Lessor or Mortgagee and any sublessor thereof and (b)
apply notwithstanding that, as a matter of law, this Lease may terminate upon
the termination of any such Superior Lease or Mortgage.


          9.5 Future Condominium Declaration. This
Lease and Tenant’s rights hereunder are and will be subject to any condominium
declaration, by-laws and other instruments (collectively, the “Declaration”) which may be recorded in order to
subject the Building to a condominium
form of ownership pursuant to the Illinois Condominium Property Act or any successor
Requirement, provided that the Declaration does not by its terms increase the
Rent or Tenant’s other monetary obligations
under this Lease, materially increase Tenant’s non-Rent obligations or material and adversely affect
Tenant’s rights under this Lease. At Landlord’s request, and subject to the foregoing proviso, Tenant will execute and
deliver to Landlord an amendment of
this Lease confirming such subordination and modifying this Lease to conform to
such condominium regime. 


          9.6 Non-Disturbance Agreements. Landlord
hereby agrees to obtain for Tenant a subordination, non-disturbance and attornment agreement
from the existing Mortgagee, in the form attached hereto as Exhibit 1, within
sixty (60) days following the Effective Date hereof. 


21






ARTICLE 10


SERVICES


	
   

  	
   

  
	
   

  	
  10.1 Electricity.

  
	
   

  	
   

  
	
   

  	
            (a) Incidental Outlets. Electricity shall
be distributed to the Premises
either by the electric utility
company serving the Building or, at Landlord’s option, by Landlord; and Landlord shall permit Landlord’s wire
and conduits, to the extent available,
suitable and safely capable, to be used for such distribution. If and so long
as Landlord is distributing electricity to the Premises, Tenant shall obtain
all of its electricity from Landlord
and shall pay all of Landlord’s charges for the electricity used in the Premises. The electricity (other than for Tenant’s
Standard Electrical Requirements) used in
the Premises shall be determined based on meter readings. If the electric
utility company is distributing
electricity to the Premises, Tenant at its cost shall make all necessary
arrangements with the electric utility company for metering and paying for electric current furnished to the Premises for all
uses other than Tenant’s Standard Electrical
Requirements. A separate electric meter for the Premises has been installed at Landlord’s expense. All electricity used during
the performance of janitor service, or the making of any Alterations or repairs in the Premises, or the operation
of any special air conditioning
systems serving the Premises shall be paid for by Tenant.

  
	
   

  	
   

  
	
   

  	
          (b)
Overhead Lighting.

  
	
   

  	
   

  
	
   

  	
  
                    (i)
 Until Landlord notifies Tenant to the contrary, Tenant shall pay to Landlord an annual amount (“Electrical Payment”)
equal to the product of (A) $0.37 (the “Electrical Allocation”) and (B)
the Agreed Area of the Premises. The Electrical Payment shall be paid in equal monthly installments, in advance, on the
1st day of each month commencing on the Commencement Date. If the Commencement
Date is not the 1st day of a month,
the Electrical Payment for such month shall be apportioned based on the number of days in such month from and after
the Commencement Date.  

  
	
   

  	
   

  
	
   

  	
  
                    (ii)
 The Electrical Allocation represents the amount per rentable square foot Landlord estimates Tenant would pay to
Commonwealth Edison Company for Tenant’s
Standard Electrical Requirements during Ordinary
Business Hours. As used herein,
“Standard Electrical Requirements” means the electricity required for the Building
standard lighting fixtures in the Premises. Notwithstanding anything to the contrary herein, (A) Tenant shall pay the
Electrical Payment in addition to Tenant’s Operating Payment and (B) Tenant shall bear the cost of providing all
light fixtures and replacement of all lamps, tubes, ballasts and starters for
lighting fixtures in the Premises.  

  
	
   

  	
   

  
	
   

  	
  
                    (iii)
 If at any time during the Term (A) Landlord reasonably determines that it has underestimated Tenant’s Standard
Electrical Requirements during Ordinary Business Hours, or that Tenant is using the Standard Electrical
Requirements after Ordinary Business
Hours; or (B) the rate classification pursuant to which Tenant would pay
directly to the electric utility provider is increased; or (C) the rate
classification pursuant to which Tenant
would pay directly to the electric utility provider is changed to 

  



22









	
 

	
 


	
 

	
another classification and
  such change results in an increase; then, in any of such events, Landlord
  may, upon written notice to Tenant, increase the Electrical Allocation to
  reflect the amount Tenant would pay directly to the electric utility provider
  upon the occurrence of any such events.


	
 

	
 


	
 

	

                    (iv)
 If, at any time during the Term, (A) Tenant determines that Landlord has overestimated Tenant’s
Standard Electrical Requirements during Ordinary Business Hours and Landlord
agrees with such determination; (B) the rate classification pursuant to which
Tenant would pay directly to the electric utility provider is decreased; or (C)
the rate classification pursuant to which Tenant would pay directly to the electric
utility provider is changed to another classification and such change results
in a decrease; then, to the extent
required by law, Landlord shall, upon written notice from Tenant, decrease
the Electrical Allocation to reflect the lesser amount Tenant would pay
directly to the electric utility provider
upon the occurrence of any such events. 


	
 

	
 


	
 

	

                    (v)
 If, at any time during the Term, the Lower Level Premises is separately
metered for overhead lighting, then Landlord shall equitably decrease the Electrical Allocation to reflect the amount of
Tenant’s Standard Electrical Requirements for the Office Premises only. 


	
 

	
 


	
 

	

                    (vi)
 All increases or decreases in the Electrical Allocation shall result in a corresponding increase or decrease, as the
case may be, in the Electrical Payment effective on the 1st day of the
month following the month in which the notice of increase or decrease is received by Tenant or Landlord,
as the case may be. 


	
 

	
 


	
 

	

                    (vii)
 If a dispute or disagreement shall arise between Tenant and Landlord
with respect to the propriety of an increase or decrease of Electrical
Payment under Section 10.1(b)(iii) or
Section 10.1(b)(iv), the dispute or disagreement shall be promptly referred to a mutually acceptable
independent electrical engineer whose decision, including any modification of an increase or decrease, will
be binding upon Tenant and Landlord, effective as provided above, and
whose fee shall be borne equally by Tenant
and Landlord. 





          10.2 Excess Electricity. Tenant shall at
all times comply with the rules and regulations
of the utility company supplying electricity to the Building. Tenant shall not
use any electrical equipment which,
in Landlord’s reasonable judgment, would exceed the capacity of the electrical equipment serving the Premises. If
Landlord determines that Tenant’s electrical requirements necessitate installation of any additional risers, feeders
or other electrical distribution equipment (collectively “Electrical Equipment”), or if Tenant provides Landlord with evidence reasonably
satisfactory to Landlord of Tenant’s need for excess electricity and requests that additional Electrical Equipment be
installed, Landlord shall, at Tenant’s expense, install such additional Electrical Equipment, provided that Landlord, in
its sole judgment, determines that (a) such installation is practicable
and necessary, (b) such additional Electrical Equipment
is permissible under applicable Requirements, and (c) the installation of such Electrical Equipment will not cause permanent
damage to the Building or the Premises, cause or create a hazardous condition,
entail excessive or unreasonable alterations, interfere with or limit electrical usage by other tenants or occupants of
the Building or exceed the limits of the


23






switchgear or other facilities serving the Building, or
require power in excess of that available from the
utility company serving the Building.


          10.3 Elevators. Landlord shall provide 24
hours per day, 7 days per week
(i) passenger
elevator service to the Office Premises and (ii) hydraulic elevator passenger
service to the Lower Level Premises; provided,
however, Landlord may limit either such passenger elevator service during times other than Ordinary
Business Hours. Landlord shall provide at least one freight
elevator serving the Premises available upon Tenant’s prior request, on a non-exclusive “first come, first
serve” basis with other
Building tenants, on all week days (other than Observed Holidays) from 7:00
a.m. to 3:30 p.m., which hours of operation shall be subject to change but at all times shall be consistent with
the service levels of Comparable Buildings. Landlord shall provide the Money Elevator subject to and in accordance
with Section 4.3(a) of the Lease.
Tenant may use the Shuttle Elevator and freight elevator for passenger service
to the Lower Level Premises. In no event shall Landlord decommission both the
Shuttle Elevator and the freight
elevator at the same time.


          10.4 Heating, Ventilation and
Air Conditioning. Landlord shall furnish to the Office
Premises heating, ventilation and air-conditioning (“HVAC”) in accordance with
the design standards set forth in Exhibit E
during Ordinary Business Hours. Landlord shall furnish to the Lower Level
Premises HVAC in accordance with the design standards set forth in Exhibit F during Ordinary Business Hours. Landlord shall
have access to all air-cooling, fan, ventilating and machine rooms and
electrical closets and all other mechanical installations of Landlord (collectively, “Mechanical Installations”), and
Tenant shall not construct partitions or other obstructions which may interfere with Landlord’s access thereto or the
moving of Landlord’s equipment to and
from the Mechanical Installations. No Tenant Party shall at any time enter the Mechanical Installations or tamper with, adjust,
or otherwise affect such Mechanical Installations.
Landlord shall not be responsible if the HVAC System fails to provide cooled or
heated air, as the case may be, to
the Office Premises and/or Lower Level Premises, as the case may be, in accordance with the applicable design
standards by reason of (a) any equipment installed by, for or on behalf of Tenant, which has an electrical load
in excess of the average electrical
load and human occupancy factors for the HVAC System as designed, or (b) any rearrangement
of partitioning or other Alterations made or performed by, for or on behalf of Tenant. Landlord shall install blinds or shades
on all windows in the Office Premises prior to the Commencement Date.
After the Commencement Date, Tenant shall replace, if missing, such blinds or shades on all windows, which blinds and
shades shall be subject to Landlord’s approval,
and shall lower the blinds where necessary because of the sun’s position,
whenever the HVAC System is in
operation or as when required by any Requirement. Tenant shall cooperate with Landlord and shall abide by the rules and
regulations which Landlord may reasonably prescribe for the proper functioning and protection of the HVAC System.


          10.5 Overtime Freight Elevators and HVAC.
The Fixed Rent does not include any charge to Tenant for the furnishing of any
freight elevator service or HVAC to the Premises during any periods other than as set forth in Section 10.3 and Section
10.4 (“Overtime Periods”). If Tenant desires any such services during
Overtime Periods, Tenant shall deliver notice
to the Building office requesting such services by 2:00 p.m. of the Business
Day on which or preceding the date such services are requested; provided,
however, that Landlord shall use reasonable
efforts to arrange such service on such shorter notice as Tenant shall provide.
If


24






Landlord furnishes freight
elevator or HVAC service during Overtime Periods, Tenant shall pay to
Landlord the cost thereof at the then established rates for such services in
the Building.


          10.6 Cleaning.
Landlord shall cause the Office Premises (excluding any portions thereof used for the storage, preparation, service
or consumption of food or beverages, as an exhibition area or classroom, for private bathrooms, showers or exercise
facilities, as a trading floor, or
primarily for operation of computer, data processing, reproduction, duplicating
or similar equipment) to be cleaned,
substantially in accordance with the standards set forth in Exhibit G. At Tenant’s election and at Tenant’s
sole cost and expense. Landlord shall cause all waste receptacles to be emptied and wastepaper to be removed nightly
from the Lower Level Premises and all
carpeting and rugs located in the Lower Level Premises to be vacuumed two (2) times per week. If Tenant elects to hire its own
janitorial contractor for the Lower Level Premises, any such janitorial contractor shall be subject to Landlord’s
approval and shall at all times
maintain labor harmony within the Building. Any areas of the Premises requiring
additional cleaning shall be cleaned,
at Tenant’s expense, by Landlord’s cleaning contractor, at rates which shall be competitive with rates of
other cleaning contractors providing comparable services to Comparable
Buildings. Landlord’s cleaning contractor and its employees shall have access
to the Premises at all times except between 8:00 a.m. and 5:30 p.m. on weekdays
which are not Observed Holidays. Landlord’s
cleaning contractor shall complete the cleaning of the Premises in accordance with this Section 10.6 prior
to 6:30 p.m. on the days the Premises is cleaned.


          10.7 Water.
Landlord shall provide water in the core lavatories on each floor of the
Building. If Tenant requires water for any additional purposes, Tenant shall
pay for the cost of bringing water to
the Premises and Landlord may install a meter to measure the water. Tenant shall pay the cost of such installation, and for
all maintenance, repairs and replacements thereto, and for the
reasonable charges of Landlord for the water consumed.


          10.8 Refuse Removal. Landlord shall provide
refuse removal services
at the Building. Tenant shall pay to
Landlord Landlord’s reasonable charge for such removal to the extent that
the refuse generated by Tenant exceeds the refuse customarily generated by general
office tenants. Tenant shall not dispose of any refuse in the Common Areas, and
if Tenant does so, Tenant shall be
liable for Landlord’s reasonable charge for such removal.


          10.9 Directory.
The lobby shall contain a directory wherein the Building’s tenants shall be listed. From time to time, but not more
frequently than monthly, Landlord shall update the directory to reflect
such changes in the listings therein as Tenant shall request; provided such listings and all changes thereto shall be made at
Tenant’s expense.


          10.10 Service Interruptions. Except as
otherwise provided in Section 6.3, Landlord reserves the right to suspend any service when
necessary, by reason of Unavoidable Delays, accidents or emergencies, or for
Restorative Work which, in Landlord’s reasonable judgment, are necessary
or appropriate until such Unavoidable Delay, accident or emergency shall cease
or such Restorative Work is completed and
Landlord shall not be liable for any interruption, curtailment or failure to supply services. Landlord
shall use reasonable efforts to minimize interference with Tenant’s use and occupancy of the Premises as a result
of any such failure, defect or interruption of any such service, or
change in the supply, character and/or quantity of,


25






electrical service, and to restore any such services,
remedy such situation and minimize any interference with Tenant’s business. The
exercise of any such right or the occurrence of any such failure by Landlord shall not constitute an actual
or constructive eviction, in whole or in part, entitle Tenant to any compensation, abatement or diminution of Rent,
except as otherwise provided in
Section 6.3, relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or any Indemnified Party by reason of
inconvenience to Tenant, or interruption of
Tenant’s business, or otherwise. Landlord shall not be liable in any way to
Tenant for any failure, defect or interruption of, or change in the supply,
character and/or quantity of electric
service furnished to the Premises for any reason except if attributable to the gross negligence or willful misconduct of
Landlord.


          10.11 Telecommunications. If Tenant
requests that Landlord grant access to the Building to a telecommunications service provider designated by Tenant
for purposes of providing
telecommunications services to Tenant, Landlord shall use its good faith
efforts to respond to such request
as soon as reasonably practicable, except in the case of emergency, whereupon Landlord shall use good faith effort to
immediately notify Tenant. Tenant acknowledges that nothing set forth in
this Section 10.11 shall impose any affirmative obligation on Landlord to grant such request and that
Landlord shall have the right to determine which telecommunications
service providers shall have access to Building facilities. Landlord shall not
unreasonably withhold or delay its consent to any such request.


          10.12 Building Access. Subject to such
changes as Landlord may reasonably make, which changes shall be consistent with the
operation of other Comparable Buildings, Landlord shall provide a
tenant/visitor check-in desk in the main Building lobby 24-hours per day,
7-days per week.


          10.13 Alternate Loading Dock. Landlord
shall provide Tenant with non-exclusive access to the southern area of Landlord’s main
dock area that has a separate entrance from lower Wacker Drive (the “Alternate Loading Dock”). Tenant may install
security
monitoring equipment within the boundaries of the Alternate Loading
Dock.


          10.14 Extra Utilities and Services.
Landlord shall provide such other extra utilities
or services as Tenant may from time to time request, provided (a) the same are
reasonable and feasible for Landlord
to provide and do not involve modifications or additions to the Real Property or existing Building Systems or equipment,
and (b) Landlord shall receive Tenant’s request (which may be given by telephone) reasonably in advance. Tenant
shall pay Landlord for such extra utilities and services at reasonable
rates from time to time established therefor by Landlord.


ARTICLE II


INSURANCE;
PROPERTY LOSS OR DAMAGE


	
 

	
 


	
 

	
11.1 Tenant’s Insurance.


	
 

	
 


	
 

	
          (a) Tenant, at its expense, shall obtain
  and keep in full force and effect during the Term:





26






	
 

	
 


	
 

	
                    (i)
a policy of commercial general liability insurance on an occurrence basis against claims for personal
  injury, bodily injury, death and/or property damage occurring in or about the Building, under which Tenant is named as the
  insured and Landlord, Landlord’s Agent and any Lessors and any Mortgagees
  whose names have been furnished to
  Tenant are named as additional insureds (the “Insured Parties”). Such insurance shall provide
  primary coverage without contribution from any other insurance carried by or
  for the benefit of the Insured Parties, and Tenant shall obtain blanket
  broad-form contractual liability coverage
  to insure its indemnity obligations set forth in ARTICLE 25. The minimum limits of liability shall
  be a combined single limit with respect
  to each occurrence in an amount of not less than $5,000,000; provided,
  however, that Landlord shall retain
  the right to require Tenant to increase such coverage from time to time to that amount of insurance which in
  Landlord’s reasonable judgment is then being customarily required by landlords for similar office space in
  Comparable Buildings. The
  deductible or self insured retention for such policy shall not exceed $10,000;


	
 

	
 


	
 

	
                    (ii)
insurance against loss or damage by
  fire, and such other risks and hazards as
  are insurable under then available standard forms of “Special Form Causes of Loss” or “All Risk” property
insurance policies
  with extended coverage, insuring Tenant’s Property and all Alterations
  and improvements to the Premises (including the Initial Installations) to the extent such Alterations and improvements
  exceed the cost of the improvements typically performed in connection
  with the initial occupancy of tenants in
  the Building (“Building Standard
  Installations”), for the full insurable value thereof or
  replacement cost thereof, having a deductible amount, if any, not in excess
  of $25,000;


	
 

	
 


	
 

	
                    (iii)
during the performance of any
  Alteration, until completion thereof, Builder’s Risk insurance on an “all risk” basis and on a completed
  value form including a Permission
  to Complete and Occupy endorsement, for full replacement value covering the interest of Landlord and Tenant (and their
  respective contractors and subcontractors) in all work incorporated in the
  Building and all materials and equipment in or about the Premises;


	
 

	
 


	
 

	
                    (iv)
Workers’ Compensation Insurance, as
  required by law;


	
 

	
 


	
 

	
                    (v)
Business Interruption Insurance in an
  amount equal to at least one year’s
  rent; and


	
 

	
 


	
 

	
                    (vi)
such other insurance in such amounts
  as the Insured Parties may reasonably require from time to time.


	
 

	
 


	
 

	
          (b) All insurance required to be carried
  by Tenant (i) shall contain a provision that (x) no act or omission of Tenant shall affect or limit the
  obligation of the insurance company to pay the amount of any loss
  sustained, and (y) shall be noncancellable and/or no material change in coverage shall be made thereto unless the
  Insured Parties receive 30 days’ prior notice of the same, by certified mail,
  return receipt requested, and (ii) shall be effected under valid and
  enforceable policies issued by reputable insurers permitted to do business in the State of Illinois and rated
  in Best’s Insurance Guide, or any successor





27






	
 

	
 


	
 

	
thereto as having a “Best’s
  Rating” of “A-” or better and a “Financial Size Category” of at least “X” or better or, if such
ratings are
  not then in effect, the equivalent thereof or such other financial rating as Landlord may at any time consider
  appropriate.


	
 

	
 


	
 

	
          (c) On or prior to the Commencement Date,
  Tenant shall deliver to Landlord appropriate
  policies of insurance, including evidence of waivers of subrogation required to be carried pursuant to this ARTICLE 11 and
  that the Insured Parties are named as additional insureds (the “Policies”).
  Evidence of each renewal or replacement of the Policies shall be
  delivered by Tenant to Landlord at least 10 days prior to the expiration of
  the Policies. In lieu of the Policies, Tenant may deliver to Landlord a
  certification from Tenant’s insurance company (on the form currently
  designated “Acord 27” (Evidence
  of Property Insurance) and “Acord 25-S”
  (Certificate of Liability Insurance), or the equivalent, provided that
  attached thereto is an endorsement to Tenant’s commercial general liability policy naming the Insured
  Parties as additional insureds) which shall be binding on Tenant’s insurance
  company, and which shall expressly provide that such certification (i)
  conveys to the Insured Parties all the rights and privileges afforded under
  the Policies as primary insurance, and (ii) contains an unconditional obligation
  of the insurance company to advise all
  Insured Parties in writing by certified mail, return receipt requested,
  at least 30 days in advance of any termination or change to the Policies that
  would affect the interest of any of the Insured Parties.





          11.2
Waiver of Subrogation. Landlord and Tenant shall each
procure an appropriate clause in or
endorsement to any property insurance covering the Real Property and personal property, fixtures and equipment located therein,
wherein the insurer waives subrogation or consents to a waiver of right of recovery, and Landlord and Tenant agree
not to make any claim against, or seek to recover from, the other for
any loss or damage to its property or the property of others resulting from fire or other hazards to the extent covered by
such property insurance; provided, however, that the release, discharge,
exoneration and covenant not to sue contained herein
shall be limited by and be coextensive with the terms and provisions of the
waiver of subrogation or waiver of
right of recovery. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible for, (a)
damage to any Above Building Standard Installations,
(b) Tenant’s Property, and (c) any loss suffered by Tenant due to interruption
of Tenant’s business.


          11.3
Restoration.


	
 

	
 


	
 

	
          (a) If the Premises are damaged by fire
  or other casualty, or if the Building is damaged
  such that Tenant is deprived of reasonable access to the Premises, the damage
  shall be repaired by Landlord, to
  substantially the condition of the Premises prior to the damage, subject to
  the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i)
  Tenant’s Property or (ii) except as provided in Section 11.3(b), any
  Alterations or improvements to the Premises, to the extent such Alterations or improvements exceed Building
  Standard Installations (“Above Building Standard Installations”). So long as Tenant is not in default beyond
  applicable grace or notice
  provisions in the payment or performance of its obligations under this Section 11.3, and provided Tenant timely
  delivers to Landlord either Tenant’s Restoration Payment (as
  hereinafter defined) or the Restoration Security (as hereinafter





28






	
 

	
 


	
 

	
defined) or Tenant expressly waives any obligation of
  Landlord to repair or restore any of Tenant’s
  Above Building Standard Installations, then until the restoration of the
  Premises is Substantially Completed or would
  have been Substantially Completed but for Tenant Delay,
  Fixed Rent, Tenant’s Tax Payment and Tenant’s Operating Payment shall be
  reduced in the proportion by which the area of the part of the Premises which
  is not usable (or accessible) and is not
  used by Tenant bears to the total area of the Premises.


	
 

	
 


	
 

	
          (b) As a condition precedent to
Landlord’s obligation to repair or restore any Above Building Standard Installations, Tenant shall (i) pay to
Landlord upon demand a sum
(“Tenant’s Restoration Payment”) equal to the amount, if any, by which (A)
the cost, as estimated by a reputable independent contractor
designated by Landlord, of repairing and
restoring all Alterations and Initial Installations in the Premises to their condition prior to the damage, exceeds (B) the
cost of restoring the Premises with Building
Standard Installations, or (ii) furnish to Landlord security (the
“Restoration Security”) in form and
amount reasonably acceptable to Landlord to secure Tenant’s obligation to pay all costs in excess of
restoring the Premises with Building Standard Installations. If Tenant shall fail to deliver to Landlord either (1)
Tenant’s Restoration Payment or
the Restoration Security, as applicable, or (2) a waiver by Tenant, in form satisfactory to Landlord, of all of Landlord’s
obligations to repair or restore any of the Above Building Standard
Installations, in either case within 15 days after Landlord’s demand
therefor, Landlord shall have no obligation to restore any Above Building Standard Installations and Tenant’s abatement
of Fixed Rent, Tenant’s Tax Payment and Tenant’s Operating Payment shall
cease when the restoration of the Premises (other than any Above Building Standard Installations) is
Substantially Complete. 





          11.4 Landlord’s Termination Right.
Notwithstanding anything to the contrary contained in Section 11.3, if the Premises are totally damaged or are rendered
wholly untenantable,
or if the Building shall be so damaged that, in Landlord’s reasonable opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Premises are so damaged or rendered
untenantable), then in either of such events, Landlord may, not later than 60 days following the date of the damage,
terminate this Lease by notice to
Tenant, provided that if the Premises are not damaged, Landlord may not
terminate this Lease unless Landlord similarly terminates the leases of
other tenants in the Building aggregating at
least 50% of the portion of the Building occupied for office purposes
immediately prior to such damage. If this Lease is so terminated, (a) the Term
shall expire upon the 30th day after
such notice is given, (b) Tenant shall vacate the Premises and surrender the
same to Landlord, (c) Tenant’s liability for Rent shall cease as of the
date of the damage, and (d) any prepaid Rent
for any period after the date of the damage shall be refunded by Landlord to Tenant.


          11.5 Tenant’s Termination Right. If
either the Lower Level or
Office Premises are totally damaged and are
thereby rendered wholly untenantable, or if the Building shall be so damaged
that Tenant is deprived of reasonable access to the Office Premises or Lower
Level Premises, and if Landlord
elects to restore the Premises, Landlord shall, within 60 days following
the date of the damage, cause a contractor or architect selected by Landlord to
give notice (the “Restoration Notice”) to Tenant of the date by which such
contractor or architect estimates the
restoration of the Premises (excluding any Above Building Standard
Installations)


29






shall be Substantially Completed. If such date, as set
forth in the Restoration Notice, is more than 12 months from the date of such damage (the “Restoration
Period”), then Tenant shall have the right to
terminate this Lease by giving notice (the “Termination Notice”) to Landlord
not later than the 30th day following delivery of the Restoration
Notice to Tenant. In the event that Landlord
does not deliver the Premises to Tenant with the restoration Substantially
Completed within the Restoration Period, then Tenant shall have the
right to terminate this Lease, by delivering
a Termination Notice to Landlord, not later than the 10th day after
the expiration of the Restoration Period, unless prior to such
termination effective date, Landlord delivers the Premises to Tenant with the restoration Substantially Completed. If
Tenant delivers a Termination
Notice, this Lease shall be deemed to have terminated as of the date of the
giving of the Termination Notice, in the manner set forth in the second
sentence of Section 11.4.


          11.6 Final 18 Months. Notwithstanding
anything to the contrary in this
ARTICLE 11, if any damage during the final 18
months of the Term renders the Premises wholly untenantable, either Landlord or Tenant may terminate this Lease by
notice to the other party within 30 days after the
occurrence of such damage and this Lease shall expire on the 30th day after the
date of such notice. For purposes of this
Section 11.6, the Premises shall be deemed wholly untenantable if Tenant shall be precluded from using more than 50% of
the Premises for the conduct of its business and Tenant’s inability
to so use the Premises is reasonably expected to continue for more than 90 days.


          11.7 Landlord’s Liability. Any
Building employee to whom
any property shall be entrusted by or on
behalf of Tenant shall be deemed to be acting as Tenant’s agent with respect to such property and neither Landlord nor its
agents shall be liable for any damage to such property, or for the loss of or damage to any property of Tenant by
theft or otherwise. None of the
Insured Parties shall be liable for any injury or damage to persons or property
or interruption of Tenant’s business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or by
construction of any private, public or quasi-public work, or any latent defect in the Premises or in the Building
(except that Landlord shall be required to repair the same to the extent provided in ARTICLE 5). No
penalty shall accrue for delays which may arise by reason of adjustment
of fire insurance on the part of Landlord or Tenant, or for any Unavoidable Delays arising from any repair or
restoration of any portion of the Building, provided that Landlord shall use reasonable efforts to minimize
interference with Tenant’s use and
occupancy of the Premises during the performance of any such repair or
restoration.


          11.8
Landlord’s Insurance. Landlord shall
maintain the following insurance (“Landlord’s Insurance”), the premiums of which will be included in Operating Expenses: (1) Commercial General
Liability insurance applicable to the Real Property, Building and Common Areas
providing, on an occurrence basis, a minimum combined single limit of at least $2,000,000.00; (2) All Risk Property Insurance on
the Building at replacement cost value; (3) Worker’s Compensation insurance as required by the state in which the
Building is located and in amounts as
may be required by applicable.


30






ARTICLE 12 


EMINENT DOMAIN 


          12.1 Taking.


	
 

	
 


	
 

	
          (a) Total
  Taking. If all or substantially all of the Real Property, the Building or the Premises shall be acquired or condemned for any
  public or quasi-public purpose (a “Taking”),
  this Lease shall terminate and the Term shall end as of the date of the
  vesting of title and Rent shall be prorated and adjusted as of such
  date.


	
 

	
 


	
 

	
          (b) Partial
  Taking. Upon a Taking of only a part of the Real Property, the Building or the Premises then, except as hereinafter
  provided in this ARTICLE 12, this Lease
  shall continue in full force and effect, provided that from and after the
  date of the vesting of title, Fixed Rent and Tenant’s Proportionate Share
  shall be modified to reflect the reduction
  of the Premises and/or the Building as a result of such Taking.


	
 

	
 


	
 

	
          (c) Landlord’s
  Termination Right. Whether or not the Premises are affected,
  Landlord may, by notice to Tenant, within 60 days following the date upon which Landlord receives notice of the Taking of
  all or a portion of the Real Property, the Building or the Premises, terminate this Lease, provided that Landlord
  elects to terminate leases
  (including this Lease) affecting at least 50% of the rentable area of the
  Building.


	
 

	
 


	
 

	
          (d) Tenant’s Termination Right. If
  the part of the Real Property so Taken contains more than 20% of the total
  area of either the Office Premises or Lower Level Premises the Premises
  occupied by Tenant immediately prior to such Taking, or if, by reason of such Taking, Tenant no longer has
  reasonable means of access to the Premises, Tenant may terminate this Lease by notice to Landlord given within 30
  days following the date upon which
  Tenant is given notice of such Taking. If Tenant so notifies Landlord, this Lease shall end and expire upon
  the 30th day following the giving of such notice. If a part of the
  Premises shall be so Taken and this Lease is not terminated in accordance with this Section 12.1 Landlord,
  without being required to spend more than it collects as an award, shall, subject to the provisions of any Mortgage
  or Superior Lease, restore that part of the Premises within 90 days
  not so Taken to a self-contained rental unit
  substantially equivalent (with respect to character, quality, appearance and
  services) to that which existed
  immediately prior to such Taking, excluding Tenant’s Property and Above Building Standard Installations.


	
 

	
 


	
 

	
          (e) Apportionment of Rent. Upon any termination of
this
  Lease pursuant to the provisions of this ARTICLE 12,
  Rent shall be apportioned as of, and shall be paid or refunded up to and including, the date of such
  termination.





          12.2 Awards. Upon any Taking, Landlord
shall receive the entire award for any such Taking, and Tenant shall have no
claim against Landlord or the condemning authority for the value of any unexpired portion of the Term or Tenant’s
Alterations; and Tenant hereby assigns to Landlord
all of its right in and to such award except as it relates to Tenant’s Property
and Above Building Standard Installations as
provided hereinbelow. Nothing contained in this


31






ARTICLE 12 shall be deemed
to prevent Tenant from making a separate claim in any condemnation proceedings for the then value of any Tenant’s Property or
Above Building Standard Installations
included in such Taking and for any moving expenses, provided any such award is in addition to, and does not result in a
reduction of the award made to Landlord.


          12.3
Temporary Taking. If all or any part of the Premises is Taken temporarily during the Term for any
public or quasi-public use or purpose, Tenant shall give prompt notice to
Landlord and the Term shall not be reduced or affected in any way and Tenant
shall continue to pay all Rent payable by Tenant without reduction or abatement and to
perform all of its other obligations under this Lease, except to the extent
prevented from doing so by the condemning authority, and Tenant shall be entitled to receive
any award or payment from the condemning authority for such use, which shall be received,
held and applied by Tenant as a trust fund for payment of the Rent falling due.


ARTICLE 13


ASSIGNMENT AND SUBLETTING 


	
 

	
 


	
 

	
13.1 Consent Requirements.


	
 

	
 


	
 

	
          (a) No
  Transfers. Except as expressly set forth herein, Tenant shall not assign, mortgage, pledge, encumber, or
  otherwise transfer this Lease, whether by operation of law or otherwise, and
  shall not sublet, or permit, or suffer the Premises or any part thereof to be used or occupied by others
  (whether for desk space, mailing privileges
  or otherwise), without Landlord’s prior consent in each instance, which
  consent shall not be unreasonably withheld or delayed. Any assignment,
  sublease, mortgage, pledge, encumbrance or transfer in contravention
  of the provisions of this ARTICLE 13 shall
  be void and shall constitute an Event of Default.


	
 


	
 

	
          (b) Collection of Rent. If, without
Landlord’s consent, this
  Lease is assigned, or any part of the
  Premises is sublet or occupied by anyone other than Tenant or this Lease is encumbered (by operation of law
  or otherwise), Landlord may collect rent from the assignee, subtenant or occupant, and apply the net amount
  collected to the Rent herein reserved. No such collection shall be
  deemed a waiver of the provisions of this ARTICLE
  13, an acceptance of the assignee, subtenant or occupant as tenant, or a
  release of Tenant from the
  performance of Tenant’s covenants hereunder, and in all cases Tenant shall remain fully liable for its obligations
  under this Lease.


	
 


	
 

	
          (c)
  Further Assignment/Subletting. Landlord’s consent
  to any assignment or subletting shall not relieve Tenant from the obligation to obtain
  Landlord’s consent to any further assignment or subletting. In no event
  shall any permitted subtenant assign or encumber its sublease or further sublet any
  portion of its sublet space, or otherwise suffer or permit any portion of the
  sublet space to be used or occupied by others.





          13.2 Tenant’s Notice. If Tenant desires to
assign this Lease or sublet all or any portion of the Premises, Tenant
shall give notice thereof to Landlord, which shall be accompanied by (a) with
respect to an assignment of this Lease, the date Tenant desires the


32








assignment to be effective, and (b) with respect to a sublet of all or a part of the
Premises, a description of the portion of
the Premises to be sublet, the commencement date of such sublease and
the rent per rentable square foot Tenant will ask for such portion of the
Premises (“Tenant’s Asking Rate”). Except
with respect to a sublet to a Related Entity, such notice shall be deemed an offer from Tenant to Landlord of the right, at
Landlord’s option, if the proposed transaction is an assignment of this Lease,
to terminate this Lease, or if the proposed transaction is a subletting of 50%
or more of the rentable square footage of the Premises and for the Term of the
Lease, to terminate this Lease with respect to the proposed sublet
portion of the Premises. Such option may be exercised by notice from Landlord
to Tenant within 30 days after delivery of Tenant’s notice. If Landlord exercises its option to terminate all or a portion
of this Lease, as the case may be,
(w) this Lease shall end and expire with respect to all or a portion of the
Premises, as the case may be, on the
date that such assignment or sublease was to commence, (x) Rent shall be apportioned, paid or refunded as of such date,
(y) Tenant, upon Landlord’s request, shall enter into an amendment of this Lease ratifying and confirming such total or
partial termination, and setting forth any appropriate modifications to the
terms and provisions hereof, and (z) Landlord shall be free to lease the
Premises (or any part thereof) to Tenant’s prospective assignee or subtenant. Tenant shall pay all costs to make the
Partial Space a self-contained rental unit and to install any required
Building corridors. Should Landlord notify Tenant of its intent to terminate as set forth hereinabove, then Tenant shall have
the right to rescind the proposed transaction. 


          13.3 Conditions to
Assignment/Subletting.


	
 

	
 


	
 

	
          (a)
If Landlord does not exercise its termination option provided under Section
13.2, and provided no Event of Default then exists. Landlord’s consent to the
proposed assignment or subletting shall
not be unreasonably withheld or delayed. Such consent shall be granted or denied within 30 days after delivery to
Landlord of (x) a true and
complete statement reasonably detailing the identity of the proposed assignee
or subtenant (“Transferee”), the nature of its business and its proposed use
of the Premises, (y) current financial
information with respect to the Transferee, including its most recent financial
statements, and (z) any other information Landlord may reasonably request, provided that:  


	
 

	
 


	
 

	

                    (i)
in Landlord’s reasonable judgment, the Transferee is engaged in a
business or activity, and the Premises will be used in a manner, which (A) is
in keeping with the then standards of the
Building, (B) is for the Permitted Uses, and (C) does not violate any
restrictions set forth in this Lease, any Mortgage or Superior Lease or any negative covenant as to use of the Premises
required by any other lease in the Building; 


	
 

	
 


	
 

	

                    (ii)
the Transferee is reputable with sufficient financial means to perform all of its obligations under this Lease
or the sublease, as the case may be; 


	
 

	
 


	
 

	

                    (iii)
[INTENTIONALLY OMITTED]; 


	
 

	
 


	
 

	

                    (iv)
[INTENTIONALLY OMITTED]; 


	
 

	
 


	
 

	

                    (v)
[INTENTIONALLY OMITTED]; 


	
 

	
 


	
 

	

                    (vi)
[INTENTIONALLY
OMITTED]; 





33






	
 

	
 


	
 

	

                    (vii)
Tenant shall, upon demand,
reimburse Landlord for all reasonable expenses incurred by Landlord in
connection with such assignment or sublease, including any investigations as to the acceptability of
the Transferee and all legal costs reasonably incurred in connection with the granting of any requested consent; 


	
 

	
 


	
 

	

                    (viii)
[INTENTIONALLY OMITTED]; and 


	
 

	
 


	
 

	

                    (ix)
the Transferee shall not be
entitled, directly or indirectly, to diplomatic
or sovereign immunity, regardless of whether the Transferee agrees to waive
such diplomatic or sovereign immunity, and shall be subject to the service of
process in, and the jurisdiction of the courts of, the County of Cook and
State of Illinois. 








	
 

	
 


	
 

	
          (b)
With respect to each and every subletting and/or assignment approved by Landlord under the provisions of this Lease: 


	
 

	
 


	
 

	

                    (i)
the form of the proposed assignment or sublease shall be reasonably satisfactory to Landlord; 


	
 

	
 


	
 

	

                    (ii)
no sublease shall be for a term ending later than one day prior to the Expiration Date; 


	
 

	
 


	
 

	

                    (iii)
no Transferee shall take possession of any part of the Premises, until an executed counterpart of such sublease
or assignment has been delivered to Landlord
and approved by Landlord as provided in Section 13.3(a); 


	
 

	
 


	
 

	

                    (iv)
if an Event of Default occurs prior to the effective date of such assignment or subletting, then Landlord’s
consent thereto, if previously granted, shall be immediately deemed revoked without further
notice to Tenant, and if such assignment or subletting would have been permitted without Landlord’s consent
pursuant to Section 13.7, such
permission shall be void and without force and effect, and in either such case, any such assignment or subletting
shall constitute a further Event of Default hereunder; and 


	
 

	
 


	
 

	

                    (v)
each sublease shall be subject and subordinate to this Lease and to the matters to which this Lease is or shall be
subordinate; and Tenant and each Transferee shall be deemed to have agreed that upon the occurrence and during
the continuation of an Event of Default hereunder, Tenant has hereby assigned
to Landlord, and Landlord may, at
its option, accept such assignment of, all right, title and interest of
Tenant as sublandlord under such
sublease, together with all modifications, extensions and renewals thereof then in effect and such Transferee
shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of
such sublease, except that Landlord shall not be (A) liable for any
previous act or omission of Tenant under such sublease, (B) subject to any counterclaim, offset or defense not
expressly provided in such sublease, which theretofore accrued to such Transferee against Tenant, (C) bound by
any previous modification of such sublease not consented to by
Landlord or by any prepayment of more than
one month’s rent, (D) bound to return such Transferee’s security deposit, if any,
except to the extent Landlord shall receive actual possession of such deposit
and such Transferee shall be entitled to the return of all or any portion of
such deposit under 





34






	
 

	
 


	
 

	
the terms of its sublease, or (E) obligated to make
  any payment to or on behalf of such Transferee,
  or to perform any work in the subleased space or the Building, or in any way
  to prepare the subleased space for occupancy, beyond Landlord’s
  obligations under this Lease. The
  provisions of this Section 13.3(b)(v) shall be self-operative, and no further
  instrument shall be required to
  give effect to this provision, provided that the Transferee shall execute and deliver to Landlord any
  instruments Landlord may reasonably request to evidence and confirm
  such subordination and attornment.





          13.4 Binding on Tenant; Indemnification of
Landlord.
Notwithstanding any assignment or
subletting or any acceptance of rent by Landlord from any Transferee. Tenant shall remain fully liable for the payment of all
Rent due and for the performance of all the covenants, terms and conditions contained in this Lease on Tenant’s part
to be observed and performed, and any
default under any term, covenant or condition of this Lease by any Transferee
or anyone claiming under or through any Transferee shall be deemed to be a
default under this Lease by Tenant. Tenant
shall indemnify, defend, protect and hold harmless Landlord from and against any and all Losses resulting from
any claims that may be made against Landlord by the Transferee or anyone
claiming under or through any Transferee or by any brokers or other persons claiming a commission or
similar compensation in connection with the proposed assignment or sublease,
irrespective of whether Landlord shall give or decline to give its consent to any proposed assignment or sublease,
or if Landlord shall exercise any of its options under this ARTICLE 13.


          13.5 Tenant’s Failure to Complete.   If
Landlord consents to a proposed assignment or sublease and Tenant fails to
execute and deliver to Landlord such assignment or sublease within 90 days after the giving of such consent or
the amount of space subject to such sublease varies by more than 10% from that
specified in the notice given by Tenant to Landlord pursuant to Section
13.2, or the net effective rent payable under such sublease is less than
95% of Tenant’s Asking Rate, then
Tenant shall again comply with all of the provisions and conditions of Sections
13.2,  13.3 and  13.4 before assigning this Lease or
subletting all or part of the Premises.


          13.6 Profits. If Tenant enters into any
assignment or sublease permitted hereunder or consented to by Landlord, Tenant shall, within 60 days of Landlord’s
consent to such assignment or
sublease, deliver to Landlord a list of Tenant’s reasonable third-party
brokerage fees, legal fees and
architectural fees paid or to be paid
in connection with such transaction and any actual costs incurred by Tenant in separately demising the
subleased space (collectively, “Transaction Costs”), together with a list of all of Tenant’s Property to be
transferred to such Transferee, Tenant
shall deliver to Landlord evidence of the payment of such Transaction Costs
promptly after the same are paid. In
consideration of such assignment or subletting, Tenant shall pay to Landlord: 


	
 

	
 


	
 

	
          (a)
In the case of an assignment, on the effective date of the assignment, 50% of all sums and other consideration paid to
Tenant by the Transferee for or by reason of such assignment
(including sums paid for the sale or rental of Tenant’s Property, less, the
then fair market or rental value thereof, as reasonably determined by
Landlord) after first deducting the Transaction Costs; or 





35






	
 

	
 


	
 

	
          (b)
In the case of a sublease, 50% of any consideration payable under the sublease
to Tenant by the Transferee which exceeds on a per square foot basis the
Fixed Rent and Additional Rent accruing
during the term of the sublease in respect of the subleased space
(together with any sums paid for the sale or rental of Tenant’s Property,
less, the then fair market or rental value thereof, as reasonably determined
by Landlord) after first deducting the Transaction Costs. The sums payable
under this clause shall be paid by Tenant to Landlord monthly as and when
paid by the subtenant to Tenant commencing at such time as Tenant has first
recovered all of Tenant’s Costs. 





          13.7 Transfers.


	
 

	
 


	
 

	
          (a)
Related Entities. If Tenant is a legal entity, the transfer (by one or more transfers)
of a majority of the stock or other beneficial ownership interest in Tenant (collectively “Ownership Interests”) shall be
deemed a voluntary assignment of this Lease; provided, however, that the provisions of this ARTICLE 13 shall
not apply to the transfer of Ownership Interests in Tenant if and so
long as Tenant, after such transfer, has a class of voting stock that is (i)
listed on a national securities exchange, (ii)
authorized for quotation on an interdealer quotation system of a registered
national securities association or (iii) held of record by 500 or more
stockholders. Notwithstanding the above,
if there is a transfer of Ownership Interests in Tenant and Tenant only
qualifies for the exemption from ARTICLE 13 under subpart (iii) above, then
in addition to being held of record
by 500 or more stockholders, Tenant must also have a net worth computed in accordance
with generally accepted accounting principles at least equal to the net worth
of Tenant immediately prior to such
transfer of Ownership Interests in order to be exempt from the provisions of ARTICLE 13 with respect
to such transfer. Tenant may also, upon
prior notice to Landlord, permit any business entity which controls, is
controlled by, or is under common control with the original Tenant (a
“Related Entity”) to sublet all or part of
the Premises for any Permitted Use, provided the Related Entity is in
Landlord’s reasonable judgment of
a character and engaged in a business which is in keeping with the standards
for the Building and for so long as such entity remains a Related Entity. Such
sublease shall not be deemed to vest in any such Related Entity any right or
interest in this Lease nor shall it relieve, release, impair or discharge any
of Tenant’s obligations hereunder. For the purposes hereof, “control” shall
be deemed to mean ownership of not less than 50% of all of the Ownership
Interests of such corporation or other business entity. Notwithstanding the foregoing, Tenant shall have no right to
assign this Lease or sublease all or any portion of the Premises
without Landlord’s consent pursuant to this Section
13.7 if Tenant is not the initial Tenant herein named or its Related Entity
or a person or entity who acquired
Tenant’s interest in this Lease in a transaction approved by Landlord.  


	
 

	
 


	
 

	
          (b)
Applicability. The limitations set
forth in this Section 13.7 shall apply to Transferee(s) and
guarantor(s) of this Lease, if any, and any transfer by any such entity in
violation of this Section 13.7 shall be a transfer in violation of Section
13.1. 


	
 

	
 


	
 

	
          (c)
Modifications, Takeover Agreements. Any modification, amendment or extension of a sublease and/or any other
agreement by which a landlord of a building 





36






	
 

	
 


	
 

	
other
  than the Building agrees to assume the obligations of Tenant under this Lease
  shall be deemed a
  sublease for the purposes of Section 13.1 hereof.





          13.8 Assumption
of Obligations. No assignment or transfer shall be effective unless and until the
Transferee executes, acknowledges and delivers to Landlord an agreement in form
and
substance reasonably satisfactory to Landlord whereby the assignee (a) assumes
Tenant’s obligations under this
Lease and (b) agrees that, notwithstanding such assignment or transfer, the provisions of Section 13.1 hereof shall be binding
upon it in respect of all future assignments and transfers.


          13.9 Tenant’s
Liability. The joint and several liability of Tenant and any successors-in-interest of Tenant
and the due performance of Tenant’s obligations under this Lease shall not be discharged, released
or impaired by any agreement or stipulation made by Landlord, or any grantee or assignee of
Landlord, extending the time, or modifying any of the terms and provisions of this
Lease, or by any waiver or failure of Landlord, or any grantee or assignee of Landlord, to enforce
any of the terms and provisions of this Lease.


          13.10 Listings
in Building Directory.   The listing of
any name other than that of Tenant on the doors of the Premises, the Building
directory or elsewhere shall not vest any right or interest in this Lease or in the Premises, nor be deemed to
constitute Landlord’s consent to any assignment
or transfer of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others. Any such
listing shall constitute a privilege revocable in Landlord’s discretion by
notice to Tenant.


          13.11 Lease Disaffirmance or Rejection. If
at any time after an
assignment by Tenant named herein, this Lease is not affirmed or is rejected in any
bankruptcy proceeding or any similar proceeding, or upon a termination of this Lease
due to any such proceeding, Tenant named herein, upon request of Landlord given after
such disaffirmance, rejection or termination (and actual notice thereof to
Landlord in the event of a disaffirmance or rejection or in the event of termination other
than by act of Landlord), shall (a) pay to Landlord all Rent and other charges due and owing
by the assignee to Landlord under this Lease to and including the date of such disaffirmance,
rejection or termination, and (b) as “tenant,” enter into a new lease of the Premises with Landlord
for a term commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date, at the same Rent and upon the then executory terms,
covenants and conditions contained in this Lease, except that (i) the rights of
Tenant named herein under the
new lease shall be subject to the possessory rights of the assignee under this Lease and the possessory rights of any
persons claiming through or under such assignee
or by virtue of any statute or of any order of any court, (ii) such new lease
shall require all defaults existing under this Lease to be cured by
Tenant named herein with due diligence, and (iii)
such new lease shall require Tenant named herein to pay all Rent which, had
this Lease not been so disaffirmed,
rejected or terminated, would have become due under the provisions of this Lease after the date of such disaffirmance,
rejection or termination with respect to any period prior thereto. If Tenant named herein defaults in
its obligations to enter into such new lease for a period of 10 days after Landlord’s request, then,
in addition to all other rights and remedies by reason of default, either at
law or in equity. Landlord shall have the same rights and remedies against Tenant named herein as if it had entered
into such new lease and such new lease had


37






thereafter been terminated as of
the commencement date thereof by reason of Tenant’s default thereunder.


ARTICLE 14


ACCESS
TO PREMISES


          14.1 Landlord’s Access.


	
 

	
 


	
 

	
          (a)
Landlord, Landlord’s agents and
utility service providers servicing the Building may erect, use and
maintain concealed ducts, pipes and conduits in and through the Premises provided such use does not cause
the usable area of the Premises to be reduced beyond a de minimis amount. Landlord shall
promptly repair any damage to the Premises caused by any work performed
pursuant to this ARTICLE 14. 


	
 

	
 


	
 

	
          (b)
Landlord, any Lessor or Mortgagee
and any other party designated by Landlord
and their respective agents shall have the right to enter the Premises at all
reasonable times, upon reasonable notice (which notice may be oral)
except in the case of emergency, to
examine the Premises, to show the Premises to prospective purchasers, Mortgagees, Lessors or tenants and their
respective agents and representatives or others and to perform
Restorative Work to the Premises or the Building. 


	
 

	
 


	
 

	
          (c)
All parts (except surfaces facing the interior of the Premises) of all
walls, windows and doors bounding the
Premises, all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, stairways, mail chutes, conduits and other mechanical
facilities, Building Systems; Building facilities and Common Areas are
not part of the Premises, and Landlord shall have the use thereof and access thereto through the Premises for the purposes
of Building operation, maintenance, alteration and repair. 





          14.2 Building Name.  Landlord has the right
at any
time to change the name, number or designation by which the Building is
commonly known.  Landlord will use good
faith efforts to provide Tenant with notice of any such change at least six (6)
months prior to the effective date. Provided that at the time of the proposed
name change (i) no Event of Default
has occurred and is then continuing, (ii)
Tenant originally named herein or its Related Entity occupies and has been continuously operating in the entire Premises
throughout the Term and (iii) Tenant originally named herein or its
Related Entity leases at least 38,000 rentable square feet of space in the
Building. Landlord shall not change the name of the Building to the name of any
of the following entities: Zale Corporation and all of its affiliated or
related entities (including, but not limited Bailey Banks and Biddle and Gordon
Jewelers), Signet PLC and all of its affiliated or related entities (including, but not limited to Sterling Jewelers and
Kay Jewelers), Rogers & Hollands
Jewelers. Helzberg Diamonds and Ultra Diamonds.


          14.3 Light and Air.   If at any time any
windows of
the Premises are temporarily darkened
or covered over by reason of any Restorative Work, any of such windows are permanently darkened or covered over due to any
Requirement or there is otherwise a diminution of light, air or view by another structure which may hereafter be erected
(whether or not by


38






Landlord),
Landlord shall not be liable for any damages and Tenant shall not be entitled
to any compensation or abatement of any Rent, nor shall the same release Tenant
from its obligations hereunder
or constitute an actual or constructive eviction.


          14.4 Tenant’s Security Requirements.
Landlord acknowledges that Tenant has advised Landlord that Tenant’s business at the
Premises involves sensitive information, inventory and operations and that Tenant has
security requirements to protect such information, inventory and operations.
Landlord and any person entering the Premises with, at the direction of or under the
authority of Landlord shall, subject to Tenant’s compliance with its
obligations pursuant
to this Section 14.4, follow Tenant’s commercially reasonable security
requirements, which include the requirement that all persons entering the Premises be
attended by a representative of Tenant. Tenant shall make a representative available
upon reasonable prior telephone notice by Landlord. Tenant acknowledges that to the extent
Tenant does not facilitate Landlord’s access to the Premises or certain portions
thereof, Landlord shall be absolved from the obligation to perform any services within such
portion of the Premises including cleaning services and upon such absolution,
Landlord shall modify Operating Expenses for the Office Premises to exclude any
fees for cleaning or other Building services that Landlord shall no longer provide to
Tenant. In the event of an emergency that could cause damage to health, safety or property Landlord shall use good faith
efforts to follow Tenant’s security requirements and in such event Landlord will be required to give only such notice that it in
good faith believes is feasible under
the circumstances and need not wait to be accompanied by Tenant or its employees
or representatives (although these parties may still accompany Landlord if they
are available and wish to do so).


ARTICLE 15


DEFAULT


          15.1 Tenant’s Defaults. Each of the
following events shall be an “Event of Default” hereunder: 


	
 

	
 


	
 

	
          (a)
Tenant
fails to pay when due any installment of Rent and such default shall continue
for five (5) days after notice of such default is given to Tenant (which notice may be in the
form of an Illinois Statutory 5-day notice utilized in Forcible Entry and
Detainer Proceedings), except that if Landlord shall have given two such
notices of default in the
payment of any Rent in any 12-month period, Tenant shall not be entitled to any further notice of its delinquency in the
payment of any Rent or an extended period in which to make payment until such time as 12 consecutive months shall
have elapsed without Tenant having
failed to make any such payment when due, and the occurrence of any default
in the payment of any Rent within such 12-month period after the giving of 2
such notices shall constitute an Event of Default; or 


	
 

	
 


	
 

	
          (b)
Tenant fails to observe or perform any
other term, covenant or condition of
this Lease and such failure continues for more than 30 days (10
days with respect to a default under
ARTICLE 3) after notice by Landlord to Tenant of such default, or if such default
(other than a default under ARTICLE 3) is of a nature that it cannot be
completely remedied within 30 days,
failure by Tenant to commence to remedy such failure within 





39






	
 

	
 


	
 

	
said 30 days, and thereafter diligently prosecute to
  completion all steps necessary to remedy such default, provided in all events
  the same is completed within 90 days or as soon
  thereafter as is commercially practicable unless Tenant’s failure to cure
  such default within such 90-day period would constitute a default
  under any Mortgage or Superior Lease; or


	
 

	
 


	
 

	
          (c)
if Landlord applies or retains any part of the security held by it
hereunder, and Tenant fails to deposit with Landlord the amount so
applied or retained by Landlord, or to provide Landlord with a replacement
Letter of Credit (as hereinafter defined), if applicable, within 5 days after notice by Landlord to Tenant stating
the amount applied or retained; 


	
 

	
 


	
 

	
          (d)
Tenant files a voluntary petition in bankruptcy or insolvency, or is adjudicated a bankrupt or insolvent, or files
any petition or answer seeking any reorganization, liquidation, dissolution
or similar relief under any present or future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or makes an assignment for the
benefit of creditors or seeks or consents to or acquiesces in the appointment
of any trustee, receiver, liquidator or other similar official for Tenant or
for all or any part of Tenant’s property; or 


	
 

	
 


	
 

	
          (e)
A court of competent jurisdiction shall enter an order, judgment or decree adjudicating
Tenant bankrupt, or appointing a trustee, receiver or liquidator of Tenant,
or of the whole or any substantial part of its property, without the consent
of Tenant, or approving a petition filed
against Tenant seeking reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof,
and such order, judgment or decree shall not be vacated or set aside or
stayed within 60 days from the date of entry thereof. 





          Upon
the occurrence of any one or more of such Events of Default, Landlord may, at
its sole option, give to Tenant notice of
cancellation of this Lease (or of Tenant’s possession of the Premises), in which event this Lease and the Term
(or Tenant’s possession of the Premises) shall terminate (whether or not
the Term shall have commenced) with the same force and effect as if the date
set forth in the notice was the Expiration Date stated herein; and Tenant shall
then quit and surrender the Premises to Landlord, but Tenant shall remain
liable for damages as provided in this
ARTICLE 15. Any
notice of cancellation of the Term (or Tenant’s possession of the Premises) may be given simultaneously with any
notice of default given to Tenant.


          15.2   Landlord’s
Remedies.


	
 

	
 


	
 

	
          (a) Possession/Reletting. If this Lease
  and the Term, or Tenant’s right to possession
  of the Premises, terminates as provided in Section 15.1:


	
 

	
 


	
 

	
                    (i)
Surrender of Possession. Tenant shall
  quit and surrender the Premises to
  Landlord, and Landlord and its agents may immediately, or at any time after such
  termination, re-enter the Premises or any part thereof, without notice,
  either by summary proceedings, or by any
  other applicable action or proceeding, or otherwise in accordance with applicable legal proceedings
  (without being liable to indictment,





40






	
 

	
 


	
 

	
prosecution or damages
  therefor), and may repossess the Premises and dispossess Tenant and any other persons from the Premises and
  remove any and all of their property and effects from the Premises.


	
 

	
 


	
 

	
                    (ii)
Landlord’s Reletting. Landlord, at
  Landlord’s option, may relet all or any part of the Premises from time to time,
  either in the name of Landlord or otherwise, to such tenant or tenants, for any term ending before, on
  or after the Expiration Date, at such rental and upon such other conditions
  (which may include concessions and free
  rent periods) as Landlord, in its sole discretion, may determine. Landlord
  shall have no obligation to accept
  any tenant offered by Tenant and shall not be liable for failure to relet or, in the event of any such reletting, for
  failure to collect any rent due upon any such reletting; and no such failure shall relieve Tenant of, or
  otherwise affect, any liability
  under this Lease. However, to the extent required by law, Landlord shall use reasonable efforts to mitigate its damages but
  shall not be required to divert prospective tenants from any other portions of the Building or to elect any
  available remedy. Landlord, at
  Landlord’s option, may make such alterations, decorations and other physical changes in and to the Premises as
  Landlord, in its sole discretion, considers advisable or necessary in connection with such reletting or proposed
  reletting, without relieving Tenant of any liability under this Lease or
  otherwise affecting any such liability.


	
 

	
 


	
 

	
          (b) Tenant’s
  Waiver. Tenant, on its own behalf and on behalf of all persons claiming through or
  under Tenant, including all creditors, hereby waives all rights which Tenant and all such
  persons might otherwise have under any Requirement (i) to the service of any notice
  of intention to re-enter or to institute legal proceedings, (ii) to redeem, or to re-enter or repossess, by
  applicable legal proceedings, the Premises, or (iii) to restore the operation of this Lease, after (A) Tenant shall have
  been dispossessed by judgment or by
  warrant of any court or judge, (B) any re-entry by Landlord, or (C) any expiration or early termination of the term of
  this Lease, whether such dispossession, re-entry, expiration or termination shall be by operation of law or
  pursuant to the provisions of this
  Lease. The words “re-enter,” “re-entry” and “re-entered” as used in this
  Lease shall not be deemed to be restricted to their technical legal
  meanings.


	
 

	
 


	
 

	
          (c) Tenant’s
  Breach. Upon the breach or threatened breach by Tenant, or any persons claiming
  through or under Tenant, of any term, covenant or condition of this Lease, Landlord shall
  have the right, by applicable legal proceedings, to enjoin such breach and to invoke
  any other remedy allowed by law or in equity as if re-entry, summary proceedings
  and other special remedies were not provided in this Lease for such breach. The
  rights to invoke the remedies set forth above are cumulative and shall not preclude Landlord
  from invoking any other remedy allowed at law or in equity.


	
 

	
 


	
 

	
          (d) Legal Proceedings. Notwithstanding
  anything contained herein to the contrary, Landlord may only dispossess Tenant of
  the Premises by applicable legal proceedings.





41






          15.3 Landlord’s Damages.


	
 

	
 


	
 

	
          (a) Amount of Damages. If this Lease and
  the Term, or Tenant’s right to possession of the Premises, terminates as
  provided in Section 15.1, then:


	
 

	
 


	
 

	

                    (i)
Tenant shall pay to Landlord all items of Rent payable under this Lease by Tenant to Landlord prior to the
date of termination; 


	
 

	
 


	
 

	

                    (ii)
Landlord may draw upon the Letter of Credit for any monies, subject to the provisions
of ARTICLE 27 of this Lease, and/or retain all monies, if any, paid by Tenant to
Landlord, whether as prepaid Rent, a security deposit, any unused cash proceeds of a Letter
of Credit or otherwise, which monies, to the extent not otherwise applied to amounts
due and owing to Landlord, shall be credited by Landlord against any damages payable by Tenant to Landlord; 


	
 

	
 


	
 

	

                    (iii)
Tenant shall pay to Landlord, in monthly installments, on the days specified in this
Lease for payment of installments of Fixed Rent, any Deficiency; it being understood that
Landlord shall be entitled to recover the Deficiency from Tenant each month as the same shall arise, and no
suit to collect the amount of the Deficiency for any month, shall prejudice Landlord’s right to collect the Deficiency
for any subsequent month by a similar proceeding; and 


	
 

	
 


	
 

	

                    (iv)
whether or not Landlord shall have collected any monthly Deficiency, Tenant
shall pay to Landlord, on demand, in lieu of any further Deficiency and as liquidated
and agreed final damages, a sum equal to the amount by which the Rent for the period which
otherwise would have constituted the unexpired portion of the Term (assuming the Additional Rent during such
period to be the same as was payable for the year immediately preceding such termination or re-entry, increased in
each succeeding year by 4% (on a
compounded basis)) exceeds the then fair and reasonable rental value of the
Premises, for the same period (with both amounts being discounted to present
value at a rate of interest equal to 2% below the then Base Rate) less the
aggregate amount of Deficiencies
theretofore collected by Landlord pursuant to the provisions of Section 15.3(a)(iii) for the same period. If,
before presentation of proof of such liquidated damages to any court, commission or tribunal,
the Premises, or any part thereof, shall have been relet by Landlord for the period which otherwise would have
constituted the unexpired portion of the Term, or any part thereof, the
amount of rent reserved upon such reletting
shall be deemed to be the fair
and reasonable rental value for the part or the whole of the Premises
so relet during the term of the reletting. 


	
 

	
 


	
 

	
          (b) Reletting. If the Premises, or any
  part thereof, shall be relet together with other space in the
  Building, the rents collected or reserved under any such reletting and the expenses of any such reletting shall be
  equitably apportioned for the purposes of this Section 15.3. Tenant shall not
  be entitled to any rents collected or payable under any reletting, whether or not such rents exceeds the
  Fixed Rent reserved in this Lease. Nothing
  contained in ARTICLE 15 shall be deemed to limit or preclude the recovery by Landlord from Tenant of the maximum amount allowed
  to be obtained as damages by





42










	
   

  	
   

  
	
   

  	
  any Requirement, or of any sums or damages to which
  Landlord may be entitled in addition to the damages set forth in this Section
  15.3.

  



          15.4 Interest. If any payment of Rent is
not paid when due, interest shall accrue on such payment, from the date such
payment became due until paid at the Interest Rate. Tenant acknowledges that
late payment by Tenant of Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without limitation,
processing and accounting charges, and late charges that may be imposed on
Landlord by the terms of any note secured by a Mortgage covering the Premises.
Therefore, in addition to interest, if any amount is not paid when due, a late
charge equal to 5% of such amount
shall be assessed; provided, however, that on 2 occasions during any calendar
year of the Term, Landlord shall give Tenant notice of such late payment and
Tenant shall have a period of 5 days thereafter in which to make such payment
before any late charge is assessed. Such interest and late charges are separate
and cumulative and are in addition to and shall not diminish or represent a
substitute for any of Landlord’s rights or remedies under any other provision
of this Lease.


          15.5 Other Rights of Landlord. If Tenant
fails to pay any Additional Rent when due, Landlord, in addition to any other
right or remedy, shall have the same rights and remedies as in the case of a
default by Tenant in the payment of Fixed Rent. If Tenant is in arrears in the
payment of Rent, Tenant waives Tenant’s right, if any, to designate the items
against which any payments made by Tenant are to be credited, and Landlord may
apply any payments made by Tenant to any items Landlord sees fit, regardless of
any request by Tenant. Landlord reserves the right, without liability to Tenant
and without constituting any claim of constructive eviction, to suspend
furnishing or rendering to Tenant supplemental or overtime property, material,
labor, utility or other nonessential service, whenever Landlord is obligated to
furnish or render the same at the expense of Tenant, in the event that (but
only for so long as) Tenant is in arrears in paying Landlord for such items for
more than 5 days after notice from Landlord to Tenant demanding the payment of
such arrears.


ARTICLE
16 


LANDLORD’S
RIGHT TO CURE; FEES AND EXPENSES


          If
Tenant defaults in the performance of its obligations under this Lease,
Landlord, without waiving such default, may perform such obligations at
Tenant’s expense: (a) immediately, and without notice, in the case of emergency
or if the default (i) materially interferes with the use by any other tenant of
the Building, (ii) materially interferes with the efficient operation of the
Building, (iii) results in a violation of any Requirement, or (iv) results or
will result in a cancellation of any insurance policy maintained by Landlord,
and (b) in any other case if such default continues after 10 days from the date
Landlord gives notice of Landlord’s intention to perform the defaulted
obligation. All costs and expenses incurred by Landlord in connection with any
such performance by it and all costs and expenses, including reasonable counsel
fees and disbursements, incurred by Landlord in any action or proceeding
(including any unlawful detainer proceeding) brought by Landlord or in which
Landlord is a party to enforce any obligation of Tenant under this Lease and/or
right of Landlord in or to the Premises, shall be paid by Tenant to Landlord on
demand, with interest thereon at the Interest


43






Rate from the date incurred
by Landlord. Except as expressly provided to the contrary in this Lease, all
costs and expenses which, pursuant to this Lease are incurred by Landlord and
payable to Landlord by Tenant, and all charges, amounts and sums payable to
Landlord by Tenant for any property, material, labor, utility or other services
which, pursuant to this Lease or at the request and for the account of Tenant,
are provided, furnished or rendered by Landlord, shall become due and payable
by Tenant to Landlord within 10 Business Days after receipt of Landlord’s
invoice for such amount.


ARTICLE 17 


NO REPRESENTATIONS BY LANDLORD; LANDLORD’S APPROVAL


          17.1 No Representations. Except as
expressly set forth herein, Landlord and Landlord’s agents have made no
warranties, representations, statements or promises with respect to the
Building, the Real Property or the Premises and no rights, easements or
licenses are acquired by Tenant by implication or otherwise. Tenant is entering
into this Lease after full investigation and is not relying upon any statement
or representation made by Landlord not embodied in this Lease.


          17.2 No Money Damages. Wherever in this
Lease Landlord’s consent or approval is required, Landlord hereby acknowledges
its duty to act in each such case consistent with a covenant of good faith and
fair dealing (but Landlord shall not otherwise be subject to a “reasonableness”
standard where Landlord has reserved its right to act in its sole discretion).
If Landlord refuses to grant such consent or approval, whether or not Landlord
expressly agreed that such consent or approval would not be unreasonably
withheld. Tenant shall not make, and Tenant hereby waives, any claim for money
damages (including any claim by way of set-off, counterclaim or defense) based
upon Tenant’s claim or assertion that Landlord unreasonably withheld or delayed
its consent or approval. Tenant’s sole remedy shall be an action or proceeding
to enforce such provision, by specific performance, injunction or declaratory
judgment. In no event shall Landlord be liable for, and Tenant, on behalf of
itself and all other Tenant Parties, hereby waives any claim for, any indirect,
consequential or punitive damages, including loss or profits or business
opportunity, arising under or in connection with this Lease. Notwithstanding
the foregoing. Tenant’s waiver set forth in the second sentence of this Section
17.2 shall not apply to any final non-appealable judgment that Tenant obtains
from a court of competent jurisdiction that Landlord acted in bad faith in
making its determination to withhold its consent or approval.


          17.3 Reasonable Efforts. For purposes of
this Lease, “reasonable efforts” by Landlord shall not include an obligation to
employ contractors or labor at overtime or other premium pay rates or to incur
any other overtime costs or additional expenses whatsoever.


ARTICLE I8


END OF TERM


          18.1 Expiration. Upon the expiration or
other termination of this Lease. Tenant shall quit and surrender the Premises
to Landlord vacant, broom clean and in good order and


44






condition, ordinary wear and
tear and damage for which Tenant is not responsible under the terms of this
Lease excepted, and Tenant shall remove all of Tenant’s Property and Tenant’s
Specialty Alterations.


          18.2 Holdover Rent. Landlord and Tenant
recognize that Landlord’s damages resulting from Tenant’s failure to timely
surrender possession of the Premises may be substantial, may exceed the amount
of the Rent payable hereunder, and will be impossible to accurately measure.
Accordingly, if possession of the Premises is not surrendered to Landlord on
the Expiration Date or sooner termination of this Lease, in addition to any
other rights or remedies Landlord may have hereunder or at law, Tenant shall
(a) pay to Landlord for each month (or any portion thereof) during which Tenant
holds over in the Premises after the Expiration Date or sooner termination of
this Lease, for the first two (2) months of any such holdover, a sum equal to
150% of the Rent payable under this Lease for the last full calendar month of
the Term, and, thereafter, at 200% of such Rent, (b) be liable to Landlord for
(i) any payment or rent concession which Landlord may be required to make to
any tenant obtained by Landlord for all or any part of the Premises (a “New
Tenant”) in order to induce such New Tenant not to terminate its lease by
reason of the holding-over by Tenant, and (ii) the loss of the benefit of the
bargain if any New Tenant shall terminate its lease by reason of the
holding-over by Tenant, and (c) indemnify Landlord against all claims for
damages by any New Tenant. Upon Tenant’s written request to Landlord. Landlord
shall promptly advise Tenant in writing if as of the date of Landlord’s
written response, there is a New Tenant for the Premises. No holding-over by
Tenant, nor the payment to Landlord of the amounts specified above, shall
operate to extend the Term hereof. Nothing herein contained shall be deemed to
permit Tenant to retain possession of the Premises after the Expiration Date or
sooner termination of this Lease, and no acceptance by Landlord of payments
from Tenant after the Expiration Date or sooner termination of this Lease shall
be deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Section 18.2.


ARTICLE 19 


QUIET ENJOYMENT


          Provided
this Lease is in full force and effect and no Event of Default then exists.
Tenant may peaceably and quietly enjoy the Premises without hindrance by
Landlord or any person lawfully claiming through or under Landlord, subject to
the terms and conditions of this Lease and to all Superior Leases and Mortgages.


ARTICLE 20


NO SURRENDER; NO WAIVER


          20.1 No Surrender or Release. No act or
thing done by Landlord or Landlord’s agents or employees during the Term shall
be deemed an acceptance of a surrender of the Premises, and no provision of
this Lease shall be deemed to have been waived by Landlord, unless such waiver
is in writing and is signed by Landlord.


45






          20.2 No Waiver. The failure of either party
to seek redress for violation of, or to insist upon the strict performance of,
any covenant or condition of this Lease, or any of the Rules and Regulations,
shall not be construed as a waiver or relinquishment for the future performance
of such obligations of this Lease or the Rules and Regulations, or of the right
to exercise such election but the same shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
by Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Rent herein stipulated shall be deemed to be other than
a payment on account of the earliest stipulated Rent, or as Landlord may elect
to apply such payment, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord’s right to recover the balance of such Rent or pursue any other
remedy provided in this Lease.


ARTICLE 21 


WAIVER OF TRIAL BY JURY; COUNTERCLAIM


          21.1 Jury Trial Waiver. LANDLORD AND TENANT HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
PARTY AGAINST THE OTHER ON ANY MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED
WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR
OCCUPANCY OF THE PREMISES, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE,
EMERGENCY OR OTHERWISE.


          21.2 Waiver of Counterclaim. If Landlord
commences any summary proceeding against Tenant. Tenant will not interpose any
counterclaim of any nature or description in any such proceeding (unless
failure to impose such counterclaim would preclude Tenant from asserting in a
separate action the claim which is the subject of such counterclaim), and will
not seek to consolidate such proceeding with any other action which may have
been or will be brought in any other court by Tenant.


ARTICLE 22 


NOTICES


          Except
as otherwise expressly provided in this Lease, all consents, notices, demands,
requests, approvals or other communications given under this Lease shall be in
writing and shall be deemed sufficiently given or rendered if delivered by hand
(provided a signed receipt is obtained) or if sent by registered or certified
mail (return receipt requested) or by a nationally recognized overnight
delivery service making receipted deliveries, addressed to Landlord and Tenant
as set forth in ARTICLE 1, and to any Mortgagee or Lessor who shall require
copies of notices and whose address is provided to Tenant, or to such other
address(es) as Landlord, Tenant or any Mortgagee or Lessor may designate as its
new address(es) for such purpose by notice given to the other in accordance
with the provisions of this ARTICLE 22. Any such


46






approval, consent, notice,
demand, request or other communication shall be deemed to have been given on
the date of receipted delivery, refusal to accept delivery or when delivery is
first attempted but cannot be made due to a change of address for which no
notice is given or 3 Business Days after it shall have been mailed as provided
in this ARTICLE 22, whichever is earlier.


ARTICLE 23 


RULES AND REGULATIONS


          All
Tenant Parties shall observe and comply with the Rules and Regulations, as
supplemented or amended from time to time. Landlord reserves the right, from
time to time, to adopt additional reasonable Rules and Regulations and to amend
the Rules and Regulations then in effect. Nothing contained in this Lease shall
impose upon Landlord any obligation to enforce the Rules and Regulations or
terms, covenants or conditions in any other lease against any other Building
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant, its employees, agents, visitors or licensees, provided that
Landlord shall enforce the Rules or Regulations against Tenant in a
non-discriminatory fashion.


ARTICLE 24 


BROKER


          Landlord
has retained Landlord’s Agent as leasing agent in connection with this Lease
and Landlord will be solely responsible for any fee that may be payable to
Landlord’s Agent. Landlord agrees to pay a commission to Tenant’s Broker
pursuant to a separate agreement. Each of Landlord and Tenant represents and
warrants to the other that neither it nor its agents have dealt with any broker
in connection with this Lease other than Landlord’s Agent and Tenant’s Broker.
Each of Landlord and Tenant shall indemnify, defend, protect and hold the other
party harmless from and against any and all Losses which the indemnified party
may incur by reason of any claim of or liability to any broker, finder or like
agent (other than Landlord’s Agent and Tenant’s Broker) arising out of any
dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, and/or the above representation being
false.


ARTICLE 25 


INDEMNITY


          25.1 Tenant’s Indemnity. Tenant shall not
do or permit to be done any act or thing upon the Premises or the Building
which may subject Landlord to any liability or responsibility for injury,
damages to persons or property or to any liability by reason of any violation
of any Requirement, and shall exercise such control over the Premises as to
fully protect Landlord against any such liability. Tenant shall indemnify,
defend, protect and hold harmless each of the Indemnitees from and against any
and all Losses, resulting from any claims (a) against the Indemnitees arising
from any act, omission or negligence of (i) any Tenant Party or (ii) both
Landlord and Tenant, provided, however, that Tenant’s liability hereunder with
respect to matters judicially determined to have arisen out of the negligence
of Landlord, which


47






determination shall not be subject to appeal, shall be
limited to the amount of insurance coverage carried by Tenant pursuant to
ARTICLE 11, (b) against the Indemnitees arising from any accident, injury or
damage whatsoever caused to any person or to the property of any person and
occurring in or about the Premises, except to the extent that any such
accident, injury or damage results from the gross negligence or willful
misconduct of Landlord or its contractors, agents or employees, and (c) against
the Indemnitees resulting from any breach, violation or nonperformance of any
covenant, condition or agreement of this Lease on the part of Tenant to be
fulfilled, kept, observed or performed.


          25.2 Landlord’s Indemnity. Landlord shall
indemnify, defend and hold harmless Tenant from and against all Losses incurred
by Tenant (a) arising from any accident, injury or damage whatsoever caused to
any person or the property of any person in the Common Areas and with respect
to claims for personal injury, the Premises, to the extent attributable to the
gross negligence or willful misconduct of Landlord or its employees, agents or
contractors and (b) from any uncured default by Landlord hereunder.


          25.3 Defense and Settlement.


	
   

  	
   

  
	
   

  	
            (a) If any claim, action or proceeding is made or brought against any Indemnitee,
  for which Tenant’s indemnity obligations in Section 25.1 apply, then upon demand by an
  Indemnitee, Tenant, at its sole cost and expense, shall resist or defend such
  claim, action or proceeding in the Indemnitee’s name (if necessary), by
  attorneys approved by the Indemnitee, which approval shall not be
  unreasonably withheld (attorneys for Tenant’s insurer shall be deemed
  approved for purposes of this Section 25.3(a)). Notwithstanding the
  foregoing, an Indemnitee may retain its own attorneys to participate or
  assist in defending any claim, action or proceeding involving potential
  liability in excess of the amount available under Tenant’s liability
  insurance carried under Section 11.1 for such claim and Tenant shall pay the
  reasonable fees and disbursements of such attorneys. If Tenant fails to
  diligently defend or if there is a legal conflict or other conflict of
  interest, then Landlord may retain separate counsel at Tenant’s expense.
  Notwithstanding anything herein contained to the contrary. Tenant may direct
  the Indemnitee to settle any claim, suit or other proceeding provided that
  (a) such settlement shall involve no obligation on the part of the Indemnitee
  other than the payment of money, (b) any payments to be made pursuant to such
  settlement shall be paid in full exclusively by Tenant at the time such
  settlement is reached, (c) such settlement shall not require the Indemnitee
  to admit any liability, and (d) the Indemnitee shall have received an
  unconditional release from the other parties to such claim, suit or other
  proceeding.

  
	
   

  	
   

  
	
   

  	
            (b) If any claim, action or proceeding is made or brought against Tenant, then
  upon demand by Tenant for which Landlord’s indemnity obligations in Section
  25.2 apply, Landlord, at its sole cost and expense, shall resist or defend
  such claim, action or proceeding in the Tenant’s name (if necessary), by
  attorneys approved by Tenant, which approval shall not be unreasonably
  withheld (attorneys for Landlord’s insurer shall be deemed approved for
  purposes of this Section 25.3(b)). Notwithstanding the foregoing, Tenant may
  retain its own attorneys to participate or assist in defending any claim,
  action or proceeding involving potential liability in excess of the amount
  available under Landlord’s liability insurance carried under Section 11.2 for
  such claim and Landlord

  



48






	
   

  	
   

  
	
   

  	
  shall pay the reasonable
  fees and disbursements of such attorneys. If Landlord fails to diligently
  defend or if there is a legal conflict or other conflict of interest, then
  Tenant may retain separate counsel at Landlord’s expense. Notwithstanding
  anything herein contained to the contrary, Landlord may direct Tenant to
  settle any claim, suit or other proceeding provided that (a) such settlement
  shall involve no obligation on the part of Tenant other than the payment of
  money, (b) any payments to be made pursuant to such settlement shall be paid
  in full exclusively by Landlord at the time such settlement is reached, (c)
  such settlement shall not require Tenant to admit any liability, and (d)
  Tenant shall have received an unconditional release from the other parties to
  such claim, suit or other proceeding.

  



ARTICLE 26 


MISCELLANEOUS


          26.1 Delivery. This Lease shall not be
binding upon Landlord or Tenant unless and until Landlord and Tenant shall have
mutually executed and delivered a fully executed copy of this Lease to each
other.


          26.2 Transfer of Real Property. Landlord’s
obligations under this Lease shall not be binding upon the Landlord named
herein after the sale, conveyance, assignment or transfer (collectively, a
“Transfer”) by such Landlord (or upon any subsequent landlord after the
Transfer by such subsequent landlord) of its interest in the Building or the
Real Property, as the case may be, and in the event of any such Transfer,
Landlord (and any such subsequent Landlord) shall be entirely freed and
relieved of all covenants and obligations of Landlord hereunder arising from
and after the date of Transfer and the transferee of Landlord’s interest (or
that of such subsequent Landlord) in the Building or the Real Property, as the
case may be, shall be deemed to have assumed all obligations under this Lease
arising from and after the date of Transfer.


          26.3 Limitation on Liability. The liability
of Landlord for Landlord’s obligations under this Lease shall be limited to
Landlord’s interest in the Real Property and Tenant shall not look to any other
property or assets of Landlord (or if Landlord is an Illinois Land Trust.
Landlord’s beneficiary), or the property or assets of any direct or indirect
partner, member, manager, shareholder, director, officer, principal, employee
or agent of Landlord (or if Landlord is an Illinois Land Trust, Landlord’s beneficiary)
(collectively, the “Landlord Parties”) in seeking either to enforce Landlord’s
obligations under this Lease or to satisfy a judgment for Landlord’s failure to
perform such obligations: and none of the Landlord Parties shall be personally
liable for the performance of Landlord’s obligations under this Lease. No 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. If Landlord is an Illinois
land trust this Lease is executed and delivered by the undersigned Landlord not
in its own right, but solely in the exercise of the powers conferred upon it as
such Trustee.


          26.4 Rent. All amounts payable by Tenant to
or on behalf of Landlord under this Lease, whether or not expressly denominated
Fixed Rent, Tenant’s Tax Payment. Tenant’s


49






Operating Payment.
Additional Rent or Rent, shall constitute rent for the purposes of Section
502(b)(6) of the United States Bankruptcy Code.


          26.5 Entire Document. This Lease (including
any Schedules and Exhibits referred to herein and all supplementary agreements
provided for herein) contains the entire agreement between the parties and all
prior negotiations and agreements are merged into this Lease. All of the
Schedules and Exhibits attached hereto are incorporated in and made a part of
this Lease, provided that in the event of any inconsistency between the terms
and provisions of this Lease and the terms and provisions of the Schedules and
Exhibits hereto, the terms and provisions of this Lease shall control.


          26.6 Governing Law. This Lease shall be
governed in all respects by the laws of the State of Illinois.


          26.7 Unenforceability. If any provision of
this Lease, or its application to any Person or circumstance, shall ever be
held to be invalid or unenforceable, then in each such event the remainder of
this Lease or the application of such provision to any other Person or any
other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each provision hereof shall
remain valid and enforceable to the fullest extent permitted by law.


          26.8 Lease Disputes.


	
   

  	
   

  
	
   

  	
            (a)
Tenant agrees that all disputes arising, directly or indirectly, out of or
relating to this Lease, and all actions to enforce this Lease, shall be dealt
with and adjudicated in the state courts of the State of Illinois, County of
Cook or the United States District Court for the Northern District of
Illinois (Eastern Division) and for that purpose hereby expressly and
irrevocably submits itself to the jurisdiction of such courts. Tenant agrees
that so far as is permitted under applicable law, this consent to personal
jurisdiction shall be self-operative and no further instrument or action,
other than service of process in one of the manners specified in this Lease,
or as otherwise permitted by law, shall be necessary in order to confer
jurisdiction upon it in any such court. 

  
	
   

  	
   

  
	
   

  	
            (b)
To the extent that Tenant has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, Tenant
irrevocably waives such immunity in respect of its obligations under this
Lease. 

  



          26.9 Landlord’s Agent. Unless Landlord
delivers written notice to Tenant to the contrary. Landlord’s Agent is
authorized to act as Landlord’s agent in connection with the performance of
this Lease, and Tenant shall be entitled to rely upon correspondence received
from Landlord’s Agent. Tenant acknowledges that Landlord’s Agent is acting solely
as agent for Landlord in connection with the foregoing; and neither Landlord’s
Agent nor any of its direct or indirect partners, members, managers, officers,
shareholders, directors, employees, principals, agents or representatives shall
have any liability to Tenant in connection with the performance of


50






this Lease, and Tenant
waives any and all claims against any and all of such parties arising out of
or in any way connected with, this Lease, the Building or the Real Property.


          26.10 Estoppel.


	
   

  	
   

  
	
   

  	
            (a) Within 7 days
following request from Landlord, any Mortgagee or any Lessor. Tenant shall
deliver to Landlord a statement executed and acknowledged by Tenant, in form
reasonably satisfactory to Landlord, (a) stating the Commencement Date, the Rent
Commencement Date and the Expiration Date, and that this Lease is then in
full force and effect and has not been modified (or if modified, setting
forth all modifications), (b) setting forth the date to which the Fixed Rent
and any Additional Rent have been paid, together with the amount of monthly
Fixed Rent and Additional, Rent then payable, (c) stating whether or not, to
the best of Tenant’s knowledge, Landlord is in default under this Lease, and,
if Landlord is in default, setting forth the specific nature of all such
defaults, (d) stating the amount of the security, if any, under this Lease,
(e) stating whether there are any subleases or assignments affecting the
Premises, (f) stating the address of Tenant to which all notices and
communications under the Lease shall be sent, and (g) responding to any other
matters reasonably requested by Landlord, such Mortgagee or such Lessor.
Tenant acknowledges that any statement delivered pursuant to this Section
26.10 may be relied upon by any purchaser or owner of the Real Property or
the Building, all or any portion of Landlord’s interest in the Real Property
or the Building or any Superior Lease, or by any Mortgagee, or assignee
thereof or by any Lessor, or assignee thereof. 

  
	
   

  	
   

  
	
   

  	
            (b) Within 7 days
following request from Tenant, Landlord shall execute and deliver to Tenant
an estoppel certificate in favor of Tenant and such other persons as Tenant
shall request, setting forth the following: (a) a ratification of this Lease
except as otherwise stated by Landlord to the contrary in the estoppel
certificate; (b) the Commencement Date and Expiration Date; (c) that this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writing as shall be stated); (d) that
all conditions under this Lease to be performed by Tenant have, to Landlord’s
knowledge, been satisfied, or, in the alternative, those claimed by Landlord
to be unsatisfied; (e) that, to Landlord’s knowledge, no defenses or offsets
exist against the enforcement of this Lease by Landlord, or in the
alternative, those claimed by Landlord; (f) that the amount of advance rent,
if any (or none if such is the case), has been paid by Tenant; (g) the date
to which Fixed Rent has been paid; (h) the amount of the Security Deposit
(if any); and (i) such other information as Tenant may reasonably request. 

  



          26.11 Certain Interpretational Rules. For
purposes of this Lease, whenever the words “include”, “includes”, or
“including” are used, they shall be deemed to be followed by the words “without
limitation” and, whenever the circumstances or the context requires, the
singular shall be construed as the plural, the masculine shall be construed as
the feminine and/or the neuter and vice versa. This Lease shall be interpreted
and enforced without the aid of any canon, custom or rule of law requiring or
suggesting construction against the party drafting or causing the drafting of
the provision in question.


51






          The
captions in this Lease are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease or
the intent of any provision hereof.


          26.12 Parties Bound. The terms, covenants,
conditions and agreements contained in this Lease shall bind and inure to the
benefit of Landlord and Tenant and, except as otherwise provided in this Lease,
to their respective legal representatives, successors, and assigns.


          26.13 Memorandum of Lease. This Lease shall
not be recorded; however, at Landlord’s request, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Lease sufficient for recording and Landlord may record the memorandum. Within
10 days following the end of the Term, Tenant shall enter into such
documentation as reasonably required by Landlord to remove the memorandum of
record.


          26.14 Counterparts. This Lease may be
executed in 2 or more counterparts, each of which shall constitute an original,
but all of which, when taken together, shall constitute but one instrument.


          26.15 Survival. All obligations and
liabilities of Landlord or Tenant to the other which accrued before the
expiration or other termination of this Lease, and all such obligations and
liabilities which by their nature or under the circumstances can only be, or by
the provisions of this Lease may be, performed after such expiration or other
termination, shall survive the expiration or other termination of this Lease.
Without limiting the generality of the foregoing, the rights and obligations of
the parties with respect to any indemnity under this Lease, and with respect to
any Rent and any other amounts payable under this Lease, shall survive the
expiration or other termination of this Lease.


          26.16 Inability to Perform. This Lease and
the obligation of Tenant to pay Rent and to perform all of the other covenants
and agreements of Tenant hereunder shall not be affected, impaired or excused
by any Unavoidable Delays. Landlord shall use reasonable efforts to promptly
notify Tenant of any Unavoidable Delay which prevents Landlord from fulfilling
any of its obligations under this Lease.


          26.17 Signage. Provided that no Event of
Default or default that, with the giving of notice and/or the passage of time,
shall constitute an Event of Default, exists, Tenant shall have the
non-exclusive right to place Tenant’s Name on the existing monument signage
located at the corner of Adams Street and Wacker Drive. Landlord shall install,
maintain and repair Tenant’s Name at Tenant’s sole cost and expense. Landlord
shall have the right to approve Tenant’s Name, including the size, color and
style, which approval shall not be unreasonably withheld. Upon the expiration
or early termination of this Lease, Landlord shall remove Tenant’s Name and
repair any damage caused by such removal at Tenant’s sole cost and expense. For
purposes of this Section 26.17. “Tenant Name” means Whitehall Jewellers, Inc.
and any other legal name or trade name by which Tenant or its products may be
known. As part of the Tenant Name. Tenant may include any logo commonly
associated with Tenant or its products. At any time during the Term. Landlord
reserves the right, at Landlord’s cost, in Landlord’s sole discretion, to
alter, modify or replace the existing monument signage. In such event, Tenant’s
Name may be temporarily removed from the existing monument signage and/or
permanently installed on new


52












monument signage through the remainder of the Term.
There shall be no relief from any of Tenant’s obligations under this Lease, and
no liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from the temporary removal of Tenant’s Name from the
monument signage. To the extent reasonably possible, all such alterations,
modifications or replacements undertaken by or on behalf of Landlord shall be
diligently prosecuted to completion.


ARTICLE 27


LETTER OF CREDIT


          27.1
Form of Letter of Credit; Letter of Credit Amount. Concurrently with Tenant’s
execution of this Lease, Tenant shall deliver to Landlord, as protection for
the full and faithful performance by Tenant of all of its obligations under
this Lease and for all losses and damages Landlord may suffer as a result of
any breach or default by Tenant under this Lease, an irrevocable and
unconditional negotiable standby letter of credit (the “Letter of Credit”), in
the form attached hereto as Exhibit J and containing the terms required herein,
payable in the City of Chicago, Illinois, running in favor of Landlord and
issued by a solvent, nationally recognized bank with a long term rating of BBB
or higher, or a national banking association, in the amount of One Million Five
Hundred Thousand Dollars ($1,500,000.00) (the “Letter of Credit Amount”). The
Letter of Credit shall (i) be “callable” at sight, irrevocable and
unconditional, (ii) be maintained in effect for the period from the
Commencement Date and continuing until the date (the “LC Expiration Date”) that
is sixty (60) days after the expiration of the Initial Expiration Date, and
Tenant shall deliver a new Letter of Credit or certificate of renewal or
extension to Landlord at least ninety (90) days prior to the expiration of the
Letter of Credit then held by Landlord, without any action whatsoever on the
part of Landlord, (iii) be fully assignable by Landlord, its successors and
assigns, (iv) permit partial draws and multiple presentations and drawings, and
(v) be otherwise subject to the Uniform Customs and Practices for Documentary
Credits (1993 Revision) International Chamber of Commerce Publication #500. The
form and terms of the Letter of Credit and the bank issuing the same (the
“Bank”) shall be acceptable to Landlord, in Landlord’s sole discretion.
Landlord, or its then managing agent, shall have the right to draw down an
amount up to the face amount of the Letter of Credit in accordance with Section
27.4 below. The Letter of Credit will be honored by the Bank regardless of
whether Tenant disputes Landlord’s right to draw upon the Letter of Credit.


          27.2
Transfer of Letter of Credit by Landlord. The Letter of Credit shall also
provide that Landlord, its successors and assigns, may, at any time and without
notice to Tenant and without first obtaining Tenant’s consent thereto, transfer
(one or more times) all or any portion of its interest in and to the Letter of
Credit to another party, person or entity, pursuant to a sale, syndication,
financing, mortgaging or hypothetication of Landlord’s interest in the
Building. In the event of a transfer of Landlord’s interest in the Building,
Landlord shall transfer the Letter of Credit, in whole or in part, to the
transferee and thereupon Landlord shall, without any further agreement between
the parties, be released by Tenant from all liability therefor, and it is
agreed that the provisions hereof shall apply to every transfer or assignment
of the whole or any portion of said Letter of Credit to a new owner of the
Building. In connection with any such transfer of the Letter of Credit by
Landlord. Tenant shall, at Tenant’s sole cost and expense, execute and submit
to the Bank such applications, documents and instruments as may be


53






necessary to effectuate such transfer, and Tenant
shall be responsible for paying the Bank’s transfer and processing fees in
connection therewith.


          27.3 Maintenance of Letter of Credit by Tenant.
If, as a result of any drawing by Landlord on the Letter of Credit, the amount
of the Letter of Credit shall be less than the Letter of Credit Amount, Tenant
shall, within five (5) days thereafter, provide Landlord with additional
letter(s) of credit in an amount equal to the deficiency, and any such
additional letter(s) of credit shall comply with all of the provisions of this
ARTICLE 27, and if Tenant fails to comply with the foregoing, notwithstanding
anything to the contrary contained in Section 15.1 of this Lease, the same
shall constitute an incurable Event of Default by Tenant. Tenant further
covenants and warrants that it will neither assign nor encumber the Letter of
Credit or any part thereof and that neither Landlord nor its successors or
assigns will be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance. Without limiting the generality of the foregoing, if
the Letter of Credit expires earlier than the LC Expiration Date, Landlord will
accept a renewal thereof (such renewal letter of credit to be in effect and
delivered to Landlord, as applicable, not later than ninety (90) days prior to
the expiration of the Letter of Credit), which shall be irrevocable and
automatically renewable as above provided through the LC Expiration Date upon
the same terms as the expiring Letter of Credit or such other terms as may be
acceptable to Landlord in its sole discretion. However, if the Letter of Credit
is not timely renewed, or if Tenant fails to maintain the Letter of Credit in
the amount and in accordance with the terms set forth in this ARTICLE 27, Landlord
shall have the right to present the Letter of Credit to the Bank in accordance
with the terms of this ARTICLE 27, and the proceeds of the Letter of Credit may
be applied by Landlord against any Rent payable by Tenant under this Lease that
is not paid when due and/or to pay for all losses and damages that Landlord has
suffered or that Landlord reasonably estimates that it will suffer as a result
of any breach or default by Tenant under this Lease. Any unused proceeds shall
constitute the property of Landlord and need not be segregated from Landlord’s
other assets. Landlord agrees to pay to Tenant within thirty (30) days after
the LC Expiration Date the amount of any proceeds of the Letter of Credit
received by Landlord and not applied against any Rent payable by Tenant under
this Lease that was not paid when due or used to pay for any losses and/or
damages suffered by Landlord (or reasonably estimated by Landlord that it will
suffer) as a result of any breach or default by Tenant under this Lease; provided,
however, that if prior to the LC Expiration Date a voluntary petition is filed
by Tenant, or an involuntary petition is filed against Tenant by any of
Tenant’s creditors, under the Bankruptcy Code, then Landlord shall not be
obligated to make such payment in the amount of the unused Letter of Credit
proceeds until either all preference issues relating to payments under this
Lease have been resolved in such bankruptcy or reorganization case or such
bankruptcy or reorganization case has been dismissed.


          27.4 Landlord’s Right to Draw Upon Letter of
Credit.
Tenant hereby acknowledges and agrees that Landlord is entering into this Lease
in material reliance upon the ability of Landlord to draw upon the Letter of
Credit upon the occurrence of any breach or default on the part of Tenant under
this Lease. If (1) a liquidated amount is due to Landlord under the terms and
conditions of this Lease, or (2) Tenant shall breach any monetary provision of
this Lease or any provision where Landlord is required to spend money to cure a
default, or (3) if Landlord otherwise incurs damage as a result of a default
(collectively, subclauses (1), (2) and (3) are hereinafter referred to as the
“Monetary Defaults”), or (4) Tenant
has filed a voluntary petition under the U. S. Bankruptcy Code or any state
bankruptcy code (collectively,


54






“Bankruptcy Code”), or (5) an involuntary petition has
been filed against Tenant under the Bankruptcy Code, or (6) the Bank has
notified Landlord that the Letter of Credit will not be renewed or extended
through the LC Expiration Date
(collectively, subclauses (4), (5) and (6) are hereinafter referred to as the
“Non-Monetary Default(s)”). Landlord may, but without obligation to do so, and
without notice to Tenant, draw upon the Letter of Credit, in full with respect
to any Non-Monetary Defaults, and with respect to the Monetary Defaults, in the
amount required to cure any such breach or default of Tenant and/or necessary
to compensate Landlord for any and all damages of any kind or nature sustained.
The use, application or retention of the Letter of Credit, or any portion
thereof, by Landlord shall not prevent Landlord from exercising any other
right or remedy provided by this Lease or by any applicable law, it being
intended that Landlord shall not first be required to proceed against the
Letter of Credit, and shall not operate as a limitation on any recovery to
which Landlord may otherwise be entitled. Tenant agrees not to interfere in any
way with payment to Landlord of the proceeds of the Letter of Credit, either
prior to or following a “draw” by Landlord of any portion of the Letter of
Credit, regardless of whether any dispute exists between Tenant and Landlord as
to Landlord’s right to draw upon the Letter of Credit. No condition or term of
this Lease shall be deemed to render the Letter of Credit conditional to
justify the issuer of the Letter of Credit in failing to honor a drawing upon
such Letter of Credit in a timely manner. Tenant agrees and acknowledges that
(a) the Letter of Credit constitutes a separate and independent contract
between Landlord and the Bank, (b) Tenant is not a third party beneficiary of
such contract, (c) Tenant has no property interest whatsoever in the Letter of
Credit or the proceeds thereof, and (d) in the event Tenant becomes a debtor
under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor
Tenant’s bankruptcy estate shall have any right to restrict or limit Landlord’s
claim and/or rights to the Letter of Credit and/or the proceeds thereof by
application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.


          27.5 Letter of Credit Not a Security Deposit.
Landlord and Tenant acknowledge and agree that in no event or circumstance
shall the Letter of Credit or any renewal thereof or any proceeds thereof be
deemed to be or treated as a “security deposit”. The parties hereto (A) recite
that the Letter of Credit is not intended to serve as a security deposit and
any and all laws, rules and regulations applicable to security deposits in the
commercial context (“Security Deposit Laws”) shall have no applicability or
relevancy thereto and (B) waive any and all rights, duties and obligations
either party may now or, in the future, will have relating to or arising from
the Security Deposit Laws.


          27.6 Potential Reduction of Letter of
Credit.


	
   

  	
   

  
	
   

  	
            (a)
  Provided that (A) no Event of Default or default that, with the giving of
  notice and/or the passage of time, shall constitute an Event of Default, then
  exists and (B) no Event of Default described in Section 15.1(a) hereof has
  occurred on 3 or more occasions during the portion of the Term preceding such
  reduction date, Tenant shall be entitled to reduce the Letter of Credit in
  accordance with the schedule set forth in Section 27.4(b) below.

  



55






	
   

  	
   

  	
   

  
	
(b) 

  	
   

  	
   

  
	
   

  	
  Time Period

  	
  Letter of Credit

  
	
   

  	
  

  	
 

  
	
   

  	
  Effective Date through December 31, 2007.

  	
  $1,500,000.00

  
	
   

  
	
   

  	
  January 1, 2008 through December 31, 2008.

  	
  $1,250,000.00

  
	
   

  
	
   

  	
  January 1, 2009 through the LC Expiration Date.

  	
  $1,000,000.00

  






	
   

  	
   

  
	
   

  	
            (c)
  Promptly following any potential reduction date. Tenant may provide written
  notice to Landlord of any such permitted reduction in the amount of the
  Letter of Credit, which notice shall additionally certify that Tenant is in
  compliance with all requirements of this Section 27.6, and from and after
  Landlord’s receipt of such notice and confirmation of Tenant’s compliance
  with such requirements, Tenant shall be authorized to deliver a substitute or
  amended Letter of Credit to Landlord satisfying the requirements set forth in
  Section 27.1 above and in the reduced amount as set forth in this Section,
  and Landlord shall exchange the prior Letter of Credit for the substitute
  Letter of Credit in cooperation with the Issuing Bank.

  



ARTICLE 28


TAX STATUS OF BENEFICIAL OWNER


          Tenant
recognizes and acknowledges that Landlord and/or certain beneficial owners of
Landlord may from time to time qualify as real estate investment trusts
pursuant to Sections 856 et seq. of the Code and that avoiding (a) the loss of
such status, (b) the receipt of any income derived under any provision of this
Lease that does not constitute “rents from real property” (in the case of real
estate investment trusts), and (c) the imposition of income, penalty or similar
taxes (each an “Adverse Event”) is of material concern to Landlord and such
beneficial owners. In the event that this Lease or any document contemplated
hereby could, in the opinion of counsel to Landlord, result in or cause an
Adverse Event, Tenant agrees to cooperate with Landlord in negotiating an
amendment or modification thereof and shall at the request of Landlord execute
and deliver such documents reasonably required to effect such amendment or
modification. Any amendment or modification pursuant to this ARTICLE shall be
structured so that the economic results to Landlord and Tenant shall be
substantially similar to those set forth in this Lease without regard to such
amendment or modification. Without limiting any of Landlord’s other rights under
this ARTICLE, Landlord may waive the receipt of any amount payable to Landlord
hereunder and such waiver shall constitute an amendment or modification of this
Lease with respect to such payment. Tenant expressly covenants and agrees not
to enter into any sublease or assignment which provides for rental or other
payment for such use, occupancy, or utilization based in whole or in part on
the net income or profits derived by any person from the property leased, used,
occupied, or utilized (other than an amount based on a fixed percentage or
percentages of receipts or sales), and that any such purported sublease or


56






assignment shall be
absolutely void and ineffective as a conveyance of any right or interest in the
possession, use, occupancy, or utilization of any part of the Premises.


ARTICLE 29 


RENEWAL TERMS 


	
   

  	
   

  
	
   

  	
  29.1
  Renewal Options.

  
	
   

  	
   

  
	
   

  	
            (a)
  Tenant shall have two (2) options (each a “Renewal Option”) to extend the
  Term with respect to the Office Premises only and/or the Premises for a
  period of five (5) years each, for a total of ten (10) years. Tenant shall not
  be entitled to extend the Term with respect to the Lower Level Premises only.
  The first Renewal Option shall be for a term (the “First Renewal Term”)
  commencing on the day immediately following the Initial Expiration Date and
  expiring on the fifth anniversary of the Initial Expiration Date (the “First
  Renewal Expiration Date”). The second Renewal Option shall be for a term (the
  “Second Renewal Term”) commencing on the day immediately following the First
  Renewal Expiration Date and expiring on the fifth (5th) anniversary of the
  First Renewal Expiration Date. Each such Renewal Option shall be exercised
  upon the terms and conditions contained herein. The term “Renewal Term” shall
  mean, individually, either the First Renewal Term or the Second Renewal Term
  and together shall mean the First Renewal Term and the Second Renewal Term.

  
	
   

  	
   

  
	
   

  	
            (b)
In the event that Tenant exercises any Renewal Option with respect to the
Office Premises only, Tenant shall surrender the Lower Level Premises
pursuant to the terms of this Lease on the Initial Expiration Date or the
First Renewal Expiration Date, as the case may be, and commencing on the
first day of the First Renewal Term or the first day of the Second Renewal
Term, as the case may be, (i) all rights and obligations of Tenant with
respect to the Lower Level Premises shall terminate and be of no further
force or effect (provided, however, that any of Tenant’s obligations under
the Lease that survive the termination of the Lease shall continue to apply
to the Lower Level Premises as provided therein), (ii) Tenant shall remain
responsible for any Fixed Rent and Additional Rent payable with respect to
the Lower Level Premises and attributable to any period up through and
including the effective date of such surrender and (iii) the Lease shall
continue unmodified and in full force and effect, except that thereafter (A)
all references to the “Premises” under the Lease shall refer to the Premises
less and except the Lower Level Premises and (B) the Agreed Area of the
Premises shall be reduced to the Agreed Area of Office Premises. 

  



          29.2
Exercise of the Renewal Options. Tenant shall exercise a Renewal Option by
delivering to Landlord a notice (a “Renewal Notice”) on or before the date that
is (i) fourteen (14) months prior to the Initial Expiration Date, in the case
of the First Renewal Term or (ii) fourteen (14) months prior to the First
Renewal Expiration Date, in the case of the Second Renewal Term. Time is of the
essence with respect to the giving of a Renewal Notice.


          29.3
Conditions to Tenant’s Exercise of Renewal Option. Any notice purporting to
exercise either Renewal Option shall be effective only if:


57






	
   

  	
   

  
	
   

  	
            (a)
the Tenant originally named herein shall not have assigned or sublet this
Lease except to a Related Entity; and 

  
	
   

  	
   

  
	
   

  	
            (b)
no Event of Default shall be continuing after expiration of all applicable
notice and grace or cure periods. 

  



          29.4 Application of Lease. If Tenant
exercises a Renewal Option, the applicable Renewal Term shall be on the same
terms and conditions as those contained in this Lease, except that (x) the
Fixed Rent shall be determined as provided in Section 29.5, (y) this provision
giving two (2) Renewal Options shall be amended to reflect the remaining
Renewal Option, if any, and (z) without limitation to the definition of
Landlord’s Concessions in Section 29.5 below, Landlord shall have no obligation
to provide any construction allowance or perform any tenant improvements or
other work with respect to the Premises.


          29.5 Renewal Term Rent. The annual Fixed
Rent payable during a Renewal Term shall be equal to the annual Fair Market
Value (as hereinafter defined) of the Premises as of the commencement date for
such Renewal Term. The term “Renewal Term Commencement Date” shall mean,
individually, either the commencement date for the First Renewal Term or the
commencement date for the Second Renewal Term, as applicable. “Fair Market
Value” shall mean the fair market annual Fixed Rent value of the Premises as of
the Renewal Term Commencement Date for a term equal to the Renewal Term, based
on comparable space in the Building, or on comparable space in Comparable
Buildings, including all of Landlord’s services provided for in this Lease and
with the Premises considered as vacant, and in “as is” condition existing on
the Renewal Term Commencement Date. The calculation of Fair Market Value shall
also be adjusted to take into account any Landlord Concessions (as defined
below), if any, and all other relevant factors. Landlord, within twenty (20)
days following its receipt from Tenant of the Renewal Notice, shall advise
Tenant in writing of (a) detailed concession terms, including any rental
abatement or improvement allowances, that Landlord is willing to offer in its
good faith determination (the “Landlord Concessions”) relating to the Renewal
Term and (b) Landlord’s determination of Fair Market Value (the “Rent Notice”).
Tenant, within thirty (30) days of its receipt of the Rent Notice, in writing
(the “Rent Dispute Notice”) shall notify Landlord if Tenant disputes Landlord’s
determination of Fair Market Value. Notwithstanding anything to the contrary
herein. Tenant shall have no right to object to or make counteroffers
concerning the Landlord Concessions, if any. If Tenant properly delivers a Rent
Dispute Notice to Landlord, during the thirty (30) day period following
Landlord’s receipt of such notice, Tenant and Landlord shall negotiate in good
faith to reach a mutually acceptable determination of the Fair Market Value. If
Landlord and Tenant have not reached a mutually acceptable determination of the
Fair Market Value within such thirty (30) day period evidenced by a written
instrument executed by both Landlord and Tenant, Tenant may terminate such
negotiations by giving written notice to Landlord on or before the 3rd Business
Day after the expiration of such thirty (30) day period in which event the
Renewal Option shall thereafter be null and void and of no further force and
effect. If Tenant does not timely and validly exercise its termination option
as stated in the preceding sentence, the Fair Market Value shall be determined
by arbitration as provided in Section 29.6. If Tenant fails to timely deliver a
proper Rent Dispute Notice. Landlord shall deliver a second Rent Notice to
Tenant. If Tenant delivers a Rent Dispute Notice to Landlord within three (3)
Business Days after Tenant’s receipt of the second Rent Notice from Landlord, then
during the ten (10) day period following Landlord’s receipt of such notice,
Tenant


58






and Landlord shall negotiate in good faith to reach a
mutually acceptable determination of the Fair Market Value. If Landlord and
Tenant have not reached a mutually acceptable determination of the Fair Market
Value within ten (10) days after Landlord’s receipt of the Rent Dispute Notice
as evidenced by a written instrument executed by Landlord and Tenant. Tenant
may terminate such negotiations by giving written notice to Landlord on or
before the 3rd Business Day after the expiration of such ten (10) day period in
which event the Renewal Option shall thereafter be null and void and of no
further force and effect. If Tenant does not timely and validly exercise its
termination option as stated in the preceding sentence, the Fair Market Value
shall be determined by arbitration as provided in Section 29.6. If Tenant fails
to timely deliver a proper Rent Dispute Notice within three (3) Business Days
after Tenant’s receipt of the second Rent Notice. Fixed Rent shall be as set
forth in the second Rent Notice and Tenant shall be deemed to have accepted
Landlord’s determination of Fair Market Value as set forth in the second Rent
Notice and waived the right to dispute and demand arbitration. If the Fixed
Rent payable during the Renewal Term is not determined prior to the Renewal
Term Commencement Date. Tenant shall pay Fixed Rent in an amount equal to the
Fair Market Value for the Premises as determined by Landlord (the “Interim Rent”). Upon final determination
of the Fixed Rent for the Renewal Term, Tenant shall commence paying such Fixed
Rent as so determined, and within thirty (30) days after such determination
Tenant shall pay any deficiency in prior payments of Fixed Rent or, if the
Fixed Rent as so determined shall be less than the Interim Rent, Tenant shall
be entitled to a credit against the next succeeding installments of Fixed Rent
in an amount equal to the difference between each installment of Interim Rent
and the Fixed Rent as so determined which should have been paid for such
installment until the total amount of the over payment has been recouped.


          29.6 Arbitration. If Tenant disputes
Landlord’s determination of Fair Market Value pursuant to Section 29.5, such dispute
shall be determined by arbitration in accordance with the then prevailing
Expedited Procedures of the American Arbitration Association or its successor
for arbitration of commercial disputes, except that the Expedited Procedures
shall be modified as follows:


	
   

  	
   

  
	
   

  	
            (a)
  Tenant shall specify the name and address of the person to act as the
  arbitrator on Tenant’s behalf. The arbitrator shall be a real estate broker
  with at least 10 years full-time commercial brokerage experience who is
  familiar with the Fair Market Value of first-class office space in the City
  of Chicago, Illinois. Within ten (10) Business Days after the service of the
  demand for arbitration. Landlord shall give notice to Tenant specifying the
  name and address of the person designated by Landlord to act as arbitrator on
  its behalf, which arbitrator shall be similarly qualified. If Landlord fails
  to notify Tenant of the appointment of its arbitrator within such 10 Business
  Day period, and such failure continues for three (3) Business Days after
  Tenant delivers a second notice to Landlord, then the arbitrator appointed by
  Tenant shall be the arbitrator to determine the Fair Market Value for the
  Premises.

  
	
   

  	
   

  
	
   

  	
            (b)
  If two arbitrators are chosen pursuant to Subsection 29.6(a), the arbitrators
  so chosen shall meet within ten (10) Business Days after the second
  arbitrator is appointed and shall seek to reach agreement on Fair Market
  Value, taking into account all Landlord Concessions, if any, and all other
  relevant factors. If within twenty (20) Business Days after the second
  arbitrator is appointed the two arbitrators are unable to

  



59






	
   

  	
   

  
	
   

  	
  reach agreement on Fair Market Value then the two
  arbitrators shall appoint a third arbitrator. who shall be a competent and
  impartial person with qualifications similar to those required of the first
  two arbitrators pursuant to Subsection 29.6(a). If they are unable to agree
  upon such appointment within five (5) Business Days after expiration of such
  twenty (20) Business Day period, the third arbitrator shall be selected by
  the parties themselves. If the parties do not agree on the third arbitrator
  within five (5) Business Days after expiration of the foregoing five (5)
  Business Day period, then either party, on behalf of both, may request appointment
  of such a qualified person by the then president of the commercial real
  estate board for the county in which the Building is located. The third
  arbitrator shall decide the dispute, if it has not been previously resolved,
  by following the procedures set forth in Subsection 29.6(c). Each party shall
  pay the fees and expenses of its respective arbitrator and both shall share
  the fees and expenses of the third arbitrator. Attorneys’ fees and expenses
  of counsel and of witnesses for the respective parties shall be paid by the
  respective party engaging such counsel or calling such witnesses.

  
	
   

  	
   

  
	
   

  	
            (c)
  Fair Market Value shall be fixed by the third arbitrator in accordance with
  the following procedures. Concurrently with the appointment of the third
  arbitrator, each of the arbitrators selected by the parties shall state, in
  writing, his or her determination of the Fair Market Value supported by the
  reasons therefor. The third arbitrator shall have the right to consult
  experts and competent authorities for factual information or evidence
  pertaining to a determination of Fair Market Value, but any such
  determination shall be made in the presence of both parties with full right
  on their part to cross-examine. The third arbitrator shall conduct such hearings
  and investigations as he or she deem appropriate and shall, within thirty
  (30) days after being appointed, select which of the two proposed
  determinations most closely approximates his or her determination of Fair
  Market Value. The third arbitrator shall have no right to propose a middle
  ground or any modification of either of the two proposed determinations. The
  determination he or she chooses as that most closely approximating his or her
  determination of the Fair Market Value shall constitute the decision of the
  third arbitrator and shall be final and binding upon the parties. The third
  arbitrator shall render the decision in writing with counterpart copies to
  each party. The third arbitrator shall have no power to add to or modify the
  provisions of this Lease.

  
	
   

  	
   

  
	
   

  	
            (d)
  In the event of a failure, refusal or inability of any arbitrator to act, his
  or her, successor shall be appointed by him or her, but in the case of the
  third arbitrator, his or her successor shall be appointed in the same manner
  as that set forth herein with respect to the appointment of the original
  third arbitrator.

  



          29.7
Lease Amendment. Within thirty (30) days following the exercise by Tenant of a
Renewal Option. Landlord and Tenant shall enter into an amendment to this Lease
confirming the terms, conditions and provisions applicable to such Renewal Term
as determined in accordance herewith; provided that the failure to do so
shall not impair the exercise of such Renewal Option or give rise to a default
or Event of Default hereunder.


60






ARTICLE 30 


RIGHT OF FIRST REFUSAL


          Throughout
the Term of this Lease. Tenant shall have the continuing right of first refusal
to lease contiguous space located on the 25th floor of the Building
as such space becomes available for lease (the “First Refusal Space”). None of
such First Refusal Space shall be deemed available for lease if the existing
tenant thereof elects to renew or extend the term of its lease through the
exercise of a renewal option set forth therein. If the existing tenant so
elects, Landlord and the existing tenant may negotiate the terms and conditions
of such renewal option but only with respect to the economics of the renewal
and not with respect to the term of such renewal. The precise size and configuration
of the First Refusal Space shall be as
reasonably determined by Landlord and shall be subject to the exiting
requirements then imposed by the applicable Governmental Authorities with
jurisdiction over the Premises. On each occasion during the Term of this Lease
that Landlord receives a Third Party Offer (as hereinafter defined) for the
First Refusal Space and prior to leasing the First Refusal Space to any third
party, Landlord shall first deliver to Tenant a redacted copy of such Third
Party Offer specifying the material business terms and conditions upon which
such third-party has proposed to lease the First Refusal Space and which
Landlord is willing to accept (the “Availability Notice”). Tenant shall then
have 5 Business Days after its receipt of the Availability Notice in which
Tenant may give Landlord notice of Tenant’s acceptance of the First Refusal
Space which, if there are less than five (5) years remaining in the then
applicable Term of this Lease, shall be on the same terms and conditions (including
the term of the lease for the First Refusal Space as set forth in the
Availability Notice, which may not be coterminous with the Term of this Lease)
specified in the Availability Notice (the “Acceptance Notice”). If there is
five (5) years or more remaining in the then applicable Term of this Lease.
Tenant’s acceptance of the First Refusal Space, if at all, shall be on the
terms and conditions specified in the Availability Notice except that Tenant
may specify in its Acceptance Notice that the term for the First Refusal Space
is acceptable to Tenant as expressly set forth in the Availability Notice or
that Tenant desires the term for the First Refusal Space to be coterminous with
the then applicable Term of this Lease. If Tenant so specifies and the then
remaining Term of this Lease is longer or shorter than the term stated in the
Availability Notice for the First Refusal Space. Landlord, within a reasonable
time after receipt of the Acceptance Notice, by written notice, will reasonably
adjust any concessions and/or rental rate(s) stated in the Availability Notice
to reflect the equivalent Landlord net effective return as set forth in the
original Availability Notice, using a 10% interest rate, and shall deliver same
to Tenant. Prior to giving the Availability Notice to Tenant and for 5 Business
Days thereafter, Landlord shall not enter into any lease of the First Refusal
Space with any other person. If during such 5 Business Day period Tenant gives
Landlord an Acceptance Notice, Landlord and Tenant shall then promptly and at
Landlord’s enter into an amendment of this Lease incorporating the terms of the
Acceptance Notice. After expiration of such 5 Business Day period, if Tenant
has not given Landlord a timely Acceptance Notice, then Landlord shall be free
to lease the First Refusal Space to any other person or entity on any terms and
conditions which are not materially less favorable (meaning 15% on a net
effective basis) to Landlord than those as set forth in the Third Party Offer.
For purposes of this ARTICLE 30, the term “Third Party Offer” shall mean a bona
fide offer to lease all or any part of the First Refusal Space received by
Landlord (including any term sheets or letters of intent) from an unaffiliated
third party on terms which are acceptable to Landlord.


61






ARTICLE 31 


EXHAUST SYSTEM


          Tenant
will, at its sole cost and expense, design, engineer, construct and operate the
Initial Installations and specifically a hood vent exhaust system to be
approved by Landlord as part of the Final Plans (the “Exhaust System”) within
the Premises so as to fully and adequately eliminate the escape of odors into
portions of the Building (other than the Premises) or any adjoining building or
outside of the Building. If, after initial construction and installation of the
Exhaust System, odors shall be released either into the Building (other than
within the Premises) or any adjoining building, or outside of the Building on a
regular and consistent basis to a noticeable degree, Tenant shall immediately
take all steps necessary or required in order to eliminate such odors, and,
upon notice from Landlord, immediately cease and refrain from any and all odor
producing operations from the Premises. In addition, Landlord may take such
actions as it deems necessary to eliminate the escape of such odors from the
Premises, and Tenant shall pay all of the costs associated with any such
corrective action undertaken by Landlord.


ARTICLE 32 


TENANT’S SECURITY


          Landlord
acknowledges that Tenant has advised Landlord of Tenant’s desire to protect
Tenant’s Property. Tenant, at its sole cost and expense (and in compliance with
all applicable Requirements imposed), may position unarmed security guards and,
on an occasional basis, armed security guards (collectively, “Security
Guard(s)”) within the Premises; provided same are unobtrusive to other tenants
of the Building. Tenant shall employ, as Tenant’s Security Guards, only those
properly licensed and insured, qualified persons or entities as are reasonably
approved by Landlord. If at any time the Security Guards shall cause, or in
Landlord’s reasonable judgment threaten to cause, the intimidation of other
tenants of the Building, or disharmony, disturbance or interference in the
Building of any nature whatsoever, Landlord may revoke Tenant’s rights granted
hereunder upon 24 hours’ notice to Tenant, and thereupon, the Security Guards
shall immediately withdraw from the Premises and the Building until Landlord
determines such disturbance no longer exists. Tenant shall indemnify and save
Landlord harmless from and against any and all Losses arising from or claimed
to arise as a result of (i) any act or omission of the Security Guards, (ii)
any other reason whatsoever arising out of the Security Guards’ entry upon the
Premises or Building or (iii) the violation of any applicable Requirements by
any Security Guard.


ARTICLE 33

TERMINATION RIGHT


          Provided
that no Event of Default then exists, and subject to the following terms and
provisions. Tenant shall have a one time option, exercisable if at all by
irrevocable written notice to Landlord delivered not later than December 31,
2012, to terminate this Lease effective as of December 31, 2013. If Tenant
elects to so terminate this Lease. Tenant shall pay to Landlord at the time of
Tenant’s delivery of the notice of termination a termination fee (the
“Termination


62






Fee”) in an amount equal to
$2,498,176.00. If Tenant fails to timely deliver to Landlord its notice of
termination, together with its payment of the Termination Fee, then Tenant’s
rights, pursuant to this Article 33 shall lapse and be of no further force or
effect.


[Remainder of page intentionally left blank;
 execution page follows]


63






          IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and
year first above written.


	
   

  	
   

  	
   

  
	
  LANDLORD:

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  TS 125 SOUTH WACKER, L.P., a Delaware limited
  partnership

  	
   

  	
  WHITEHALL JEWELLERS, INC. 
a Delaware corporation 

  






	
   

  	
   

  
	
  By:

  	
  TS 125 South Wacker GP,
  L.L.C., a

  
	
   

  	
  Delaware limited liability
  company, its 
general partner

  






	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul A. Galiano

  	
  By:

  	
  /s/ John Desjardins

  
	
   

  	
   

  	
 

  	
   

  	
   

  
	
   

  	
  Name:  

  	
  Paul A. Galiano

  	
  Name:

  	
  JOHN DESJARDINS

  
	
   

  	
   

  	
 

  	
   

  	
 

  
	
   

  	
  Its:

  	
  Vice President

  	
  Its:

  	
  EXECUTIVE VICE PRESIDENT