Exhibit 10.13


 


REAL ESTATE SALE CONTRACT


 


ARTICLE 1:
GENERAL PROVISIONS


 


1.1                                 Contract.  Subject to the terms and
conditions of this Real Estate Sale Contract (this “Contract”),
AMERITECH CENTER PHASE I, INC., a Delaware corporation and SBC TELEHOLDINGS, INC.
a Delaware corporation (collectively “Seller”) jointly and severally agree
to sell to INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation or
its nominee permitted under Section 11.1 below (“Purchaser”), and
Purchaser agrees to purchase from Seller, that certain office complex with
related parking structures located in Hoffman Estates, Illinois, consisting of
the following (collectively, the “Property”): (i) the real property
identified as Parcels 1 and 3 as depicted on Exhibit A-l attached
hereto and described on Exhibit A-2 attached hereto, together with
all improvements (the “Improvements”) located thereon (collectively, the
“Real Property”); (ii) all of Seller’s interest, as landlord, in
all leases of the Property and guaranties thereof, including any such leases
which may be made by Seller after the Effective Date and prior to Closing as
permitted by this Contract (the “Leases”); and (iii) all of Seller’s
right, title and interest in and to fixtures, which are used in the operation
of the Improvements (collectively, the “Fixtures”), including, without
limitation, all affixed heating, ventilation and air conditioning equipment,
and fire sprinklers, but excluding (x) any personal property used by Seller or
any other occupant of the Improvements or the Property in the operation of its
business, including without limitation, trade fixtures, and personal property
and fixtures used by the grantee of the Central Office Easement in connection
with operations thereunder and (y) any trademarks, trade names or other
intellectual property, including, without limitation, the SBC name and any
variant thereof.


 


1.2                                 Purchase Price:  The
total purchase price to be paid to Seller by Purchaser for the Property shall
be THREE HUNDRED THIRTY-EIGHT MILLION AND NO/100 DOLLARS ($338,000,000,00) (the
“Purchase Price”). The Purchase Price shall be paid to Seller at
Closing, plus or minus prorations and other adjustments hereunder, including
all Earnest Money (hereinafter defined) credited against the Purchase Price by
federal wire transfer of immediately available funds.


 


1.3                                 Title Company and Escrow Agent:  The
Title Company and Escrow Agent for this transaction shall be Chicago Title
Insurance Company, 171 North Clark Street, Chicago, Illinois 60601.


 


1.4                                 Effective Date:  This
Contract is executed as of November 1, 2005 (the “Effective Date”).


 


1.5                                 Inspection Period:  The “Inspection
Period” is the period beginning on the Effective Date and ending at 5:00 p.m.
Central Standard Time on November 15, 2005.


 





















 


1.6                                 Closing Date:  The “Closing
Date” is November 17, 2005 unless otherwise agreed by Seller and
Purchaser.


 


1.7                                 Deposit of Earnest Money.  Within
two business days after the Effective Date, Purchaser shall deposit $5,000,000
in immediately available funds (such amount, including any interest earned
thereon, the “Earnest Money”‘) with Escrow Agent, evidencing Purchaser’s
good faith to perform Purchaser’s obligations under this Contract. If Purchaser
fails to timely deposit the Earnest Money with the Escrow Agent, this Contract
shall terminate and be of no force and effect. The Escrow Agent shall hold and
disburse the Earnest Money in accordance with a joint order escrow, in
customary form, executed concurrently herewith, with the Escrow Agent. Provided
such supplemental escrow instructions are not in conflict with this Contract as
it may be amended in writing from time to time, Seller and Purchaser agree to
execute such supplemental escrow instructions as may be appropriate to enable
Escrow Agent to comply with the terms of this Contract.  If the Closing under this Contract occurs,
the Escrow Agent shall deliver the Earnest Money into the closing escrow, to be
applied against the Purchase Price.


 


1.8                                 SBC Lease.  At the Closing, Purchaser, as
landlord, shall enter into a lease agreement (the “SBC Lease”) with SBC
Services, Inc., which SBC Lease shall be in the form of Exhibit B
attached hereto.


 


1.9                                 Declaration of Restrictive Covenants and
Reciprocal Easement Agreement.
 Seller is retaining ownership of the
property identified as Parcels 2 and 4 as depicted on Exhibit A-l hereto
and described on Exhibit A-3 attached hereto (the “Retained
Property”) which is adjoins the Property. During the Inspection Period,
Purchaser and Seller shall in good faith negotiate a Declaration of Restrictive
Covenants and Reciprocal Easement Agreement (the “Declaration”) addressing,
among other things, the matters described on Exhibit C hereto.  If Purchaser and Seller are not able to agree
on the terms of the Declaration, either party may terminate the Contract by
written notice to the other given prior to the end of the Inspection Period.


 


1.10                           Central Office Easement.  During
the Inspection Period, Purchaser and Seller shall in good faith negotiate an
easement agreement (the “Central Office Easement”), addressing, among
other things, the matters described on Exhibit D hereto.  If Purchaser and Seller are not able to agree
on the terms of the Central Office Easement, either party may terminate the Contract
by written notice to the other given prior to the end of the Inspection Period.


 


1.11                           Annexation Agreement Amendment.  During
the Inspection Period, Purchaser and Seller shall in good faith negotiate an
amendment (the “Annexation Agreement Amendment”) to the Agreement
Respecting Annexation and Development of Ameritech Center between Seller’s
predecessors and the Village of Hoffman Estates dated August 15, 1988, addressing,
among other things, the matters described on Exhibit E hereto.  If Purchaser and Seller are not able to agree
on the terms of the Annexation Agreement Amendment, or if the Village of
Hoffman Estates has not approved and executed the same, either party may
terminate the Contract by written notice to the other given prior to the end of
the Inspection Period.


 


1.12                           Seller Approval.  Seller’s
obligations under this Agreement are conditioned on Seller obtaining such
approvals as Seller deems necessary from the Board of Directors (or a committee
of such Board ) of SBC Communications, Inc. with respect to this Agreement
and the


 


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transactions
contemplated herein. If Seller does not receive the necessary approvals, Seller
may terminate this Contract by written notice to Purchaser given prior to the
end of the Inspection Period.


 


ARTICLE 2: INSPECTION


 


2.1                                 Property Information.  Seller
shall deliver or make available to Purchaser the following, to the extent in
Seller’s possession or control (the “Property Information”), within five
days after the Effective Date:


 


2.1.1                        Rent Roll.  A current rent roll (“Rent
Roll”) for the Property;


 


2.1.2                        Environmental Reports.  The
following third party environmental reports or site assessments related to the
Property: Phase 1 Environmental Assessment dated September 20, 2005
prepared by Marlin Environmental Group as Marlin Project No. 669 and the
report dated August 15, 1988 by STS Consultants, Ltd.;


 


2.1.3                        Tax Statements.  Copies
of most recent ad valorem tax statements relating to the Property, together
with the latest assessment information;


 


2.1.4                        Contracts.  Copies of any and all
management, service, supply, equipment rental and other contracts related to
the operation of the Property which would survive the terms of the SBC Lease;


 


2.1.5                        Lease Files.  The lease files for all
Tenants (as defined in Section 4.3 below), including the Leases,
any letter contracts and assignments which are then in effect; and


 


Except as otherwise expressly provided herein, Seller makes no
representations or warranties as to the accuracy or completeness of the
Property Information. The Property Information and all other information, other
than matters of public record, furnished to, or obtained through inspection of
the Property by, Purchaser, its affiliates, lenders, employees or agents
relating to the Property, will be treated by Purchaser, its affiliates,
lenders, employees and agents as confidential, and will not be disclosed to
anyone other than on a need-to-know basis to Purchaser’s consultants who agree
to maintain the confidentiality of such information, and will be returned to
Seller by Purchaser if the Closing does not occur.


 


2.2                                 Inspections.  Commencing on the Effective
Date, at its sole cost and expense, upon reasonable prior notice to Seller,
Purchaser shall have reasonable access during normal business hours to the
Property and conducting inspections and tests, including surveys and architectural,
engineering, geotechnical and environmental inspections and tests, subject to
the rights of Tenants under their Leases. Before any such entry, Purchaser
shall provide Seller with a certificate of insurance naming Seller as an
additional insured and with an insurer and insurance limits (minimum $5
million) and coverage reasonably satisfactory to Seller. Purchaser shall not
disturb Seller’s business operations on the Property or any Tenants on the
Property. In connection with its due diligence investigations, Purchaser or
Purchaser’s representatives may meet with or contact building officials and
governmental authorities, parties to Service Contracts and other agreements, the
property management personnel, and may conduct interviews with Tenants and a
walk through of the Property; provided that Seller shall be given a reasonable


 


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opportunity
to participate in any of the foregoing. Tenant interviews, if any, shall be
scheduled during the Inspection Period on dates and times convenient to Seller
and the applicable tenants. Purchaser may only enter and inspect the interior
of the Improvements when accompanied by a representative of Seller. Purchaser
may not perform any invasive testing or drilling without the consent of Seller
which consent will not be unreasonably withheld. In conducting any inspections
or tests of the Property, Purchaser shall keep the Property free and clear of
any liens arising from work performed on behalf of Purchaser. Purchaser shall
restore the Property to substantially the same condition as existed prior to
the tests and inspections, and shall defend, indemnify and hold Seller harmless
from and against any claims and liabilities asserted against Seller arising out
of Purchaser’s inspections; provided, however, the indemnity shall not extend
to claims or liabilities arising out of the discovery of any existing
environmental condition except to the extent such condition is made worse by
Purchaser’s negligence or willful misconduct. This indemnity shall survive the
Closing and any termination of this Contract. Within five days after Seller’s
request, Purchaser shall provide Seller with a copy of the results of any tests
and inspections made by or for Purchaser, excluding only market and economic
feasibility studies (the “Purchaser’s Reports”).


 


2.3                                 Absolute Termination Right.  Purchaser
shall have through the last day of the Inspection Period in which to examine,
inspect, and investigate the Property and. in Purchaser’s sole and absolute
judgment and discretion, determine whether the Property is acceptable to Purchaser.
Notwithstanding anything to the contrary in this Contract, Purchaser may
terminate this Contract for any reason or no reason, by giving written notice
of termination to Seller and Escrow Agent (the “Inspection Termination
Notice”) on or before the last day of the Inspection Period. If Purchaser
does not give an Inspection Termination Notice, this Contract shall continue in
full force and effect, Purchaser shall be deemed to have waived its right to
terminate this Contract pursuant to this Section 2.3. and the
Earnest Money shall become non-refundable except as expressly provided in Section 10.2
below.


 


2.4                                 Purchaser’s Reliance on its Investigations. To the maximum extent permitted by applicable
law and except for Seller’s representations and warranties in Section 8.1
and the warranties of title in the deed delivered at the Closing (“Seller’s
Warranties”), this sale is made and will be made without representation,
covenant, or warranty of any kind (whether express, implied, or, to the maximum
extent permitted by applicable law, statutory) by Seller.  As a material part of the consideration for
this Contract, Purchaser agrees to accept the Property on an “As is” and “Where
is” basis, with all faults and any and all latent and patent defects, and without
any representation or warranty, all of which Seller hereby disclaims, except
for Seller’s Warranties. Except for Seller’s Warranties, no warranty or
representation is made by Seller as to (a) fitness for any particular
purpose, (b) merchantability, (c) design, (d) quality, (e) condition,
(f) operation or income, (g) compliance with drawings or specifications,
(h) absence of defects, (i) absence of hazardous or toxic substances,
(j) absence of faults, (k) flooding, or (1) compliance with laws and
regulations including, without limitation, those relating to health, safety,
and the environment.  Purchaser acknowledges
that Purchaser has entered into this Contract with the intention of making and
relying upon its own investigation of the physical, environmental, economic
use, compliance, and legal condition of the Property and that Purchaser is not
now relying, and will not later rely, upon any representations and warranties
made by Seller or anyone acting or claiming to act, by, through or under or on
Seller’s behalf concerning the Property, except for Seller’s Warranties.


 


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Consistent with the foregoing and subject solely to the Seller’s
Warranties, effective as of the Closing Date, Purchaser, for itself and its
agents, affiliates, successors and assigns, hereby releases and forever
discharges Seller, its agents, affiliates, subsidiaries, successors and assigns
(collectively the “releasees”) from any and all rights, claims and
demands at law or in equity, whether known or unknown at the time of this
Contract, which Purchaser has or may have in the future, arising out of the
physical, environmental, economic or legal condition of the Property,
including, without limitation, all claims in tort or contract and any claim for
indemnification or contribution arising under the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601, et
seq.) or any similar federal, state or local statute, rule or regulation.
Purchaser, upon Closing, shall be deemed to have waived, relinquished and
released Seller and all other releasees from and against any and all matters
affecting the Property.


 


The provisions of this Section 2.4 shall survive
indefinitely any closing or termination of this Contract and shall not be
merged into the closing documents.


 


ARTICLE 3:
TITLE REVIEW AND APPROVAL


 


3.1                                 Title Review. 
Within ten (10) days after the Effective Date, Seller shall cause
to be prepared and delivered to Purchaser a current preliminary title report or
commitment (such report or commitment, as it may be amended, supplemented and
updated, the “Preliminary Title Report”) issued by the Title Company, in
the amount of the Purchase Price, with Purchaser as the proposed insured,
together with legible copies of all documents of record referred to in the Preliminary
Title Report as exceptions to title to the Property. Seller shall also obtain a
currently dated ALTA survey (“Survey”) of the Property during the
Inspection Period.  During the Inspection
Period, Purchaser shall review title to the Property as disclosed by the
Preliminary Title Report and the Survey. 
Seller shall remove or cause the title company to insure over at Closing
any monetary lien for a determinable sum, provided that Seller shall not be
required to remove or cause the title company to insure over the leasehold
mortgage respecting the tenant’s interest in the Wide Open West lease, provided
that such leasehold mortgage shall be subject to Purchaser’s review during the
Inspection Period and Seller shall use reasonable efforts prior to the end of
the Inspection Period to cause such leasehold mortgage to be amended to
encumber only the current leasehold premises. 
Seller may cause the title company to insure over mechanics liens for
unpaid labor and materials relating to the Repair Contracts (defined below). With
respect to any other title exceptions, Seller shall have no obligation to
remove such exceptions. The term “Permitted Exceptions” means those
specific exceptions in the Preliminary Title Report as of the end of the
Inspection Period other than those that Seller is required to remove, any real
estate taxes not yet due and payable, zoning ordinances and regulations and other
laws or regulations governing use or enjoyment of the Property, and rights of
Tenants under the Leases, and the SBC Lease, Declaration, Central Office
Easement and Annexation Agreement Amendment.


 


3.2                                 Title Policy Condition. 
Purchaser shall not be obligated to close this transaction unless, upon
the sole condition of payment of the premium, at Closing, the Title Company is willing
to issue to Purchaser an owner’s policy of title insurance, dated as of the
date and time of the recording of the Deed, with extended coverage, in the
amount of the Purchase Price, insuring Purchaser that title to the Property is
vested of record in Purchaser on the Closing Date, subject only to the
Permitted Exceptions, the printed conditions and exceptions of such policy
other than


 


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the
standard exceptions deleted by extended coverage and any other title exceptions
accepted or deemed accepted by Purchaser but including the following
endorsements: 3.1 zoning; subdivision; utility facility; tax parcel number;
access; and contiguity (the “Title Policy”). The agreement of the Title
Company to issue such endorsements will be a condition to Purchaser’s obligation
to close, but the failure of the Title Company to issue such endorsement will
not be deemed a default by Seller hereunder.


 


3.3                                 Owner’s Affidavit. At the Closing, Seller shall execute and
deliver to the Escrow Agent an ALTA statement in customary form, a standard gap
indemnity, and any other document or undertaking required to cure or remove the
exceptions to title that Seller is obligated to remove pursuant to Section 3.1.


 


ARTICLE 4:
COVENANTS


 


4.1                                 Operation of Property; Ongoing Repairs and
Maintenance.  From the Effective Date through the Closing,
Seller shall operate and manage the Property in substantially the same manner
in which it is being operated as of the Effective Date.


 


4.2                                 New Contracts. From the Effective Date through the
Closing, except as provided below with respect to leasing activities, Seller
will not enter into or amend any contract that will be an obligation affecting
the Property subsequent to the Closing, except contracts entered into in the
ordinary course of business that do not have a term extending beyond the end of
the terms of the SBC Lease.  Contracts
that are consistent with Section 8.2 of the SBC Lease shall be considered
to be entered into in the ordinary course of business.


 


4.3                                 Estoppel Certificate.  Seller
shall make a reasonable and diligent effort to obtain and deliver to Purchaser
prior to the end of the Inspection Period, estoppel certificates (“Estoppel Certificates”),
from the Village of Hoffman Estates and from each tenant and/or licensee (collectively
the “Tenants”) occupying any part of the Property under a Lease, which has a
term extending beyond the end of the term of the SBC Lease, which tenant and/or
licensee certificates shall be substantially in the form attached to this
Contract as Exhibit G or such form as may be required by that
Tenant’s respective Lease.  Seller shall
not be liable for failure to obtain such Estoppel Certificates, but Purchaser
may consider what Estoppel Certificates were obtained in exercising its rights
under Section 2.3 above.  If
any of the estoppels certificates from tenants and/or licensees described above
are not available, Seller may provide its own estoppel certificate with respect
to the matter which would have been covered by such estoppel certificates.


 


4.4                                 Maintenance of Insurance.  From
the Effective Date through the Closing, Seller shall continue to carry its
existing insurance on the Improvements.


 


4.5                                 Permits and Encumbrances.  From
the Effective Date through the Closing, without the prior written consent of
Purchaser, which shall not be unreasonably withheld or delayed, Seller shall
not encumber the Property or create or modify any exceptions to title to the Property,
or initiate or consent to any action with respect to zoning or other Property
entitlements or permits.


 


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ARTICLE 5:
CONDITIONS AND
REMEDIES


 


5.1                                 Conditions. The obligation of Seller, on the one hand, and Purchaser, on the
other hand, to consummate the transactions contemplated hereunder shall be
subject to the following conditions:


 


5.1.1                        Representations and Warranties. The other party’s representations and warranties
contained herein shall be true and correct in all material respects as of the
respective dates made and re-made (subject to Section 10.3.2 below);


 


5.1.2                        Covenants. As of the Closing Date, the other party shall have performed its
material covenants and obligations hereunder;


 


5.1.3                        Proceedings.  There shall exist no pending
or threatened action, suit or proceeding with respect to the other party before
or by any court or administrative agency which seeks to restrain or prohibit,
or to obtain damages or a discovery order with respect to, this Contract or the
consummation of the transactions contemplated hereby; and


 


5.1.4                        Other.  Any other condition set forth
in this Contract to such party’s obligation to close is not satisfied by the
applicable date and time.


 


5.2                                 Effect of Failure of Condition.  So
long as a party is not in default hereunder, if any condition benefiting such
party has not been satisfied as of the Closing Date or other applicable date,
such party may, in its sole discretion:  (i) terminate
this Contract by delivering written notice to the other party on or before the
Closing Date or other applicable date, in which event the Earnest Money shall
be returned to Purchaser (unless Purchaser is in default hereunder), (ii) extend
the time available for the satisfaction of such condition by up to a total of 10
business days, or (iii) elect to close, notwithstanding the non
satisfaction of such condition, and therefore waive satisfaction of such
condition.  If such party elects to
proceed pursuant to clause (ii) above, and such condition remains
unsatisfied after the end of such extension period, then, at such time, such
party may proceed pursuant to either clause (i) or (iii) above.


 


ARTICLE 6:
CLOSING


 


6.1                                 Closing.  The consummation of the
transaction contemplated herein (“Closing”) shall occur on the Closing
Date through the usual form of deed and money escrow, which the parties shall
establish with Escrow Agent.  Counsel for
the respective parties may execute the escrow instructions, as well as any
amendments thereto. In the event of any conflict between the escrow
instructions and the provisions of this Contract, as between the parties, the
provisions of this Contract shall control. All conditions to Closing must be
met and the Purchase Price paid to Seller by wire transfer from the Escrow
Agent prior to 1:00 p.m. Central Standard Time on the Closing Date.


 


6.2                                 Seller’s Deliveries in Escrow. On the Closing Date, Seller shall deliver
in escrow to Escrow Agent the following:


 


6.2.1                        Deeds.  A Quitclaim deed or deeds from
Seller as needed to consolidate title to the Property to SBC Teleholdings, Inc.
or one of its affiliates (“Grantor”) and a special or


 


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limited
warranty deed from Grantor sufficient to vest title in Purchaser as required in
Section 32 (the “Deed”);


 


6.2.2                        Bill of Sale.  A
special or limited warranty assignment and Bill of Sale, executed by the Seller,
assigning and conveying to Purchaser’s interest in and to the Improvements and
Fixtures;


 


6.2.3                        SBC Lease. The SBC Lease executed by the tenant thereunder;


 


6.2.4                        Assignment of Leases.  As
assignment of the Leases by Grantor to Purchaser subject to the terms of the
SBC Lease;


 


6.2.5                        Central Office Easement.  The
Central Office Easement executed by the grantee thereunder;


 


6.2.6                        Conveyancing or Transfer Tax Forms or Returns.  Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Grantor by applicable state and local law in connection
with the conveyance of the Real Property;


 


6.2.7                        FIRPTA.  A Foreign Investment in Real
Property Tax Act affidavit executed by Grantor;


 


6.2.8                        Authority. Evidence of the existence, organization and authority of Seller and
of the authority of the persons executing documents on behalf of Seller
reasonably satisfactory to the underwriter for the Title Policy;


 


6.2.9                        Annexation Agreement Amendment.  The
Annexation Agreement Amendment executed by Seller and the Village of Hoffman
Estates; and


 


6.2.10                  Other Deliveries. Any other Closing deliveries required to be
made by or on behalf of Seller hereunder.


 


6.3                                 Purchaser’s Deliveries in Escrow. On the Closing Date, Purchaser shall
deliver in escrow to Escrow Agent the following:


 


6.3.1                            Purchase Price.  The Purchase Price, less the Earnest Money
that is applied to the Purchase Price, plus or minus applicable prorations, in
immediate, same-day U.S. federal funds wired for credit into Escrow Agent’s
escrow account;


 


6.3.2                            Assumption of Leases.
Execution by Purchaser of the assignment referred to in Section 6.2.4
above, pursuant to which it accepts such assignment subject to the terms of the
SBC Lease.


 


6.3.3                            Conveyancing or Transfer Tax Forms or Returns.  Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Purchaser by applicable state and local law in
connection with the conveyance of real property;


 


6.3.4                            SBC Lease. The SBC
Lease executed by Purchaser;


 


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6.3.5                           Central Office Easement.  The Central Office Easement executed by Purchaser;
and


 


6.3.6                           Other Deliveries.
Any other Closing deliveries required to be made by or on behalf of Purchaser
hereunder.


 


6.4                                 Closing Statements. As of or prior to the Closing Date, Seller
and Purchaser shall deposit with Escrow Agent executed closing statements
consistent with this Contract in the form required by Escrow Agent.


 


6.5                                 Possession.  Seller shall deliver
possession of the Property to Purchaser at the Closing.


 


6.6                                 Notice to Tenants.  At
Closing, Seller and Purchaser shall each execute, and Purchaser shall deliver
to each Tenant immediately after the Closing, a notice regarding the sale in
such form as they may reasonably agree, or and as may be required under the
applicable Lease or state law.


 


6.7                                 Closing Expenses. The cost of the Survey, the premium for the
basic Title Policy and one-half (1/2) of the escrow fee shall be borne and paid
by Seller.  All recording fees, conveyance
fees, fees for releasing liens and encumbrances, the cost of title insurance endorsements
and one-half (1/2) of the
escrow fee, shall be borne and paid by Purchaser.  Other costs, charges, and expenses shall be
borne and paid as provided in this Contract, or in the absence of such
provision, in accordance with custom.


 


6.8                                 Declaration.  During the Inspection Period
the parties will agree on the form of the Declaration and the location of the
easements and any other areas in the Declaration requiring description to be
created by the Declaration, The Seller will use reasonable efforts to cause its
surveyor to create legal descriptions of all the easement areas and such other
areas adequate for recording and for providing constructive notice of the
interest created by the Closing Date. The parties recognize that Seller may not
be able to obtain such legal descriptions by the Closing Date. If the legal
descriptions are not completed by the Closing Date, the parties will identify
all easement areas by diagram or other depiction and execute and deliver to one
another the Declaration at Closing with such depictions attached rather than
legal descriptions. During the period following closing not to exceed 60 days,
the parties will substitute mutually approved legal descriptions for the
depictions and record the Declaration.  Either
party at its discretion may record the Declaration prior to completion of the
legal descriptions, provided that such recorded version of the Declaration may
be amended and restated by the subsequent recording of the Declaration with the
final legal descriptions.  Prior to the
recording of the Declaration, neither Purchaser nor Seller shall cause or
permit any encumbrance on the Property or Retained Property (as applicable)
which would be superior to the Declaration unless the party responsible for
such encumbrance causes the holder of such encumbrance to subordinate or agree to
subordinate its interest to the Declaration in a manner reasonably satisfactory
to the other party.


 


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ARTICLE 7: PRORATIONS AND
ADJUSTMENTS


 


7.1                                 Prorations.  Real estate taxes and
assessments, charges under Service Contracts, and utility charges will not be
prorated at Closing.  Purchaser shall
give Seller a credit of $10,000 at Closing as partial reimbursement of
appraisal costs. At Closing Seller will cause the tenant under the SBC Lease to
pay, or Purchaser shall be credited, for “Base Rent” payable under the SBC
Lease from and including the date of Closing through and including the last day
of the calendar month in which the Closing occurs.  Seller shall continue to be responsible as
set forth in the SBC Lease after Closing for real estate taxes and assessments,
charges under Service Contracts, and utility charges which accrue before
Closing; provided that Seller’s obligation for real estate taxes accrued
through the date of Closing shall be adjusted between Seller and the tenant
under the SBC Lease as set forth therein and real estate taxes shall thereafter
be paid and settled as provided in the SBC Lease.  Purchaser and Seller will cooperate to effect
as soon as possible after Closing a division of the existing tax parcels so
that the Property and the Retained Property will each have distinct separate
tax parcels.


 


7.2                                 Transfer Taxes.  All
excise, sales, use, value added, registration stamp, recording, documentary,
conveyancing, franchise, property, transfer, gains and similar taxes, levies,
charges and fees (collectively, “Transfer Taxes”) incurred in connection
with the transactions contemplated by this Contract shall be borne by the
parties as follows: Seller will pay the state and county taxes and Purchaser
will pay any local or municipal transfer taxes. The party that is required by
applicable laws to make the filings, reports, or returns with respect to any
applicable Transfer Taxes shall do so, and the other party shall cooperate with
respect thereto as necessary.


 


7.3                                 Sales Commissions.  Seller
and Purchaser represent and warrant each to the other that they have not dealt
with any real estate broker, sales person or finder in connection with this transaction
other than Pendelmar, Ltd., on behalf of Purchaser, and Equis Corporation, on
behalf of Seller (collectively, the “Brokers” and individually, a “Broker”).  Brokers are each independent contractors and
are not authorized to make any agreement or representation on behalf of either
party. Each party shall pay its own Broker in accordance with their separate agreements.
Subject to the foregoing sentence, in the event of any claim for broker’s or
finder’s fees or commissions in connection with the negotiation, execution or
consummation of this Contract or the transactions contemplated hereby, each
party shall defend, indemnify and hold harmless the other party from and
against any such claim based upon any statement, representation or agreement of
such party.


 


ARTICLE 8:
REPRESENTATIONS AND WARRANTIES


 


8.1                                  Seller’s Representations and Warranties.  Seller
represents and warrants to Purchaser that:


 


8.1.1        Organization and
Authority.  Seller has been duly
organized, is validly existing, and is in good standing in the state in which
it was formed. Subject to Section 1.12 above, Seller has the full
right and authority and has obtained any and all consents required to enter
into this Contract and to consummate or cause to be consummated the
transactions contemplated hereby. Subject to Section 1.12 above,
this Contract has been, and all of the documents to be delivered by Seller at
the Closing will be. authorized and executed and constitute, or will
constitute, as appropriate, the valid and binding obligation of Seller,
enforceable in accordance with their terms.


 


10





















 


8.1.2                           Conflicts and Pending Actions.  There is no agreement to which
Seller is a party or, to Seller’s knowledge, that is binding on Seller which is
in conflict with this Contract. To Seller’s knowledge, there is no action or
proceeding pending or threatened against Seller or relating to the Property,
which challenges or impairs Seller’s ability to execute or perform its obligations
under this Contract.


 


8.1.3                           Legal Compliance.  Seller has not received any written notices
of any material violations of any building code or other law with respect to
the Property which have not been corrected to the satisfaction of the issuer of
the notice.


 


8.1.4                           Condemnation.  Seller has no knowledge of any contemplated
or pending condemnation or similar proceeding affecting the Property.


 


8.1.5                           ERISA.  Seller is not and is not acting on behalf of
an “employee benefit plan” within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, a “plan” within
the meaning of Section 4975 of the Internal Revenue Code of 1986, as
amended or an entity deemed to hold “plan assets” within the meaning of 29
C.F.R. § 2510.3101 of any such employee benefit plan or plans.


 


8.1.6                        Environmental.  Seller
has not received any written notice from any governmental authority that the
Property or the use of the Property violates any Environmental Laws.  The term “Environmental Laws” includes
without limitation the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act and other
federal laws governing the environment as in effect on the date of this
Agreement together with their implementing regulations and guidelines as of the
date of this Agreement, and all state, regional, county, municipal and other
local laws, regulations and ordinances that are equivalent or similar to the
federal laws recited above or that purport to regulate Hazardous Materials.  The term “Hazardous Materials”
includes petroleum, including crude oil or any fraction thereof, natural gas,
natural gas liquids, liquified natural gas, or synthetic gas usable for fuel
(or mixtures of natural gas or such synthetic gas), asbestos and
asbestos-containing materials and any substance, material waste, pollutant or
contaminant listed or defined as hazardous or toxic under any Environmental
Law.


 


As used in this Contract, the term “to Seller’s knowledge”, “actual
knowledge” or “best of Sellers knowledge” or words of similar import shall mean
the actual knowledge of Joseph D. Buckman, Director of Transactions, and not
that of any other persons, as presently recollected by such person without any
review of files or other investigation or inquiry of any kind, and (iii) shall
not mean that such person is charged with knowledge of the acts, omissions
and/or knowledge of Seller’s agents or employees.


 


8.2                                 Purchaser’s Representations and Warranties.  Purchaser
represents and warrants to Seller that:


 


8.2.1 Organization and Authority.  Purchaser has been duly organized and is
validly existing, and is in good standing in the state in which it was formed.
Purchaser has the full right and authority and has obtained any and all
consents required to enter into this Contract and at Closing will have the full
rights and authority and will have obtained any and all consents


 


11





















 


required
to consummate or cause to be consummated the transactions contemplated hereby.
This Contract has been, and all of the documents to be delivered by Purchaser
at the Closing will be, authorized and properly executed and constitute, or
will constitute, as appropriate, the valid and binding obligation of Purchaser,
enforceable in accordance with their terms.


 


8.2.2                        Conflicts and Pending Action. There is no contract to which Purchaser is a
party or, to Purchaser’s knowledge, binding on Purchaser which is in conflict
with this Contract.  To Purchaser’s
knowledge, there is no action or proceeding pending or threatened against
Purchaser which challenges or impairs Purchaser’s ability to execute or perform
its obligations under this Contract.


 


8.2.3                        ERISA.  Purchaser is not and is not
acting on behalf of an “employee benefit plan” within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended, a “plan”
within the meaning of Section 4975 of the Internal Revenue Code of 1986,
as amended or an entity deemed to hold “plan assets” within the meaning of 29 C.F.R.
§ 2510.3101 of any such employee benefit plan or plans.


 


8.3                                 Survival of Representations and Warranties.  The
representations and warranties set forth in this Article 8 are made as of
the Effective Date and are remade as of the Closing Date and shall survive the
Closing for the Limitation Period set forth in Section 10.3 below.
Each party shall have the right to bring an action against the other on the
breach of a representation or warranty hereunder, only if Seller or Purchaser
as the case may be, has given the other party written notice of the
circumstances giving rise to the alleged breach within such Limitation Period.


 


ARTICLE 9:
DAMAGES AND CONDEMNATION


 


9.1                                   Risk of Loss.  The
Closing shall be effective as of 12:01 A.M. on the Closing Date.
Notwithstanding the foregoing, the risk of loss of all or any portion of the
Property shall be borne by Seller up to and including the actual time of the
Closing and wire transfer of the Purchase Price to Seller, and thereafter by
Purchaser, subject, however, to the terms and conditions of Sections 9.2 and 9.3
below.


 


9.2                                   Damage.  Seller shall promptly give
Purchaser written notice of any damage to the Property, describing such damage,
and the Seller’s estimate of time to repair such damage. If such damage is not
material, as defined below, then this Agreement shall remain in full force and effect
and at Closing Purchaser shall receive an assignment of the insurance proceeds
relating to such damage and repair of such damage shall be subject to the terms
of the SBC Lease as if such damage had occurred during the Lease term. If such
damage is material. Purchaser may elect by notice to Seller given within 10
days after Purchaser is notified of such damage (and the Closing shall be
extended, if necessary, to give Purchaser such 10-day period to respond to such
notice) to proceed in the same manner as in the case of damage that is not
material or to terminate this Contract, in which event the Earnest Money shall
be immediately returned to Purchaser. Damage as to any one or multiple
occurrences is “material” if in the reasonably exercised judgment of Seller it
will take more than twelve (12) months after Closing to repair.


 


12





















 


9.3                                 Condemnation.  Seller
shall promptly give Purchaser notice (the “Notice of Taking”) of any eminent
domain proceedings that are threatened or instituted with respect to a material
portion of the Property. By notice to Seller given within 10 days after
Purchaser receives the Notice of Taking (and if necessary the Closing Date
shall be extended to give Purchaser the full 10-day period to make such
election), Purchaser may terminate this Contract or proceed under this
Contract, in which event at the Closing, Seller shall turn over to Purchaser
any award it has received with respect to such taking and shall assign to
Purchaser its right to any award. If no such election is made, or if the
portion of the Property subject to any such taking is not material, this
Contract shall remain in full force and effect and the purchase contemplated
herein, less any interest taken by eminent domain or condemnation, shall be
effected with no further adjustment, and upon the Closing of this purchase,
Seller shall assign to Purchaser its right to any award that has been or that
may thereafter be made for such taking. During the pendency of this Contract,
Seller and Purchaser shall jointly negotiate and deal with the condemning
authority in respect of such matter. For purposes hereof, a “material” taking
shall mean a taking either of the entire Property or a portion thereof if, in
Purchaser’s commercially reasonable opinion, the remaining Property cannot be
restored to an economically viable office complex without either substantial
alteration of the Property or relief from governmental regulations or the
requirements of any leases then in effect with respect to the Property. For
instance, Seller and Purchaser acknowledge that a taking of road right-of-way
which does affect parking at the Property or take any portion of the
Improvements is not material for purposes of this section.


 


ARTICLE 10:
DEFAULT AND DAMAGES


 


10.1                           Default by Purchaser.  If
Purchaser shall default in its obligation to purchase the Property pursuant to
this Contract, Purchaser agrees that Seller shall have the right to have the Escrow
Agent deliver the Earnest Money to Seller as liquidated damages to recompense
Seller for time spent, labor and services performed, and the loss of its
bargain.  Purchaser and Seller agree that
it would be impracticable or extremely difficult to affix damages if Purchaser
so defaults and that the Earnest Money, together with the interest thereon,
represents a reasonable estimate of Seller’s damages.  Seller agrees to accept the Earnest Money as
Seller’s total damages and relief hereunder if Purchaser defaults in its
obligation to close hereunder.  If Purchaser
does so default, this Contract shall be terminated and Purchaser shall have no
further right, title, or interest in or to the Property.


 


10.2                           Default by Seller.  If
Seller defaults in its obligation to sell and convey the Property to Purchaser
pursuant to this Contract, Purchaser’s sole remedy shall be to elect one of the
following:  (a) to terminate this
Contract, in which event Purchaser shall be entitled to the return by the
Escrow Agent to Purchaser of the Earnest Money, or (b) if Closing does not
occur solely on account of a Willful Seller Default, to bring a suit for
specific performance, provided that any suit for specific performance must be
brought within 90 days of Seller’s default. For the purposes hereof, a “Willful
Seller Default” shall mean a default by Seller on or after the date hereof whereby
Seller intentionally and in bad faith acts with the sole purpose of frustrating
the intent of this Agreement. Purchaser hereby waives any other rights or
remedies in respect of any such default. This Contract confers no present
right, title or interest in the Property to Purchaser and Purchaser agrees not
to file a lis pendens or other similar notice against the Property except in
connection with, and after, the filing of a suit for specific performance.


 


13





















 


10.3                           Limitations.


 


10.3.1                  Limitation Period. 
Seller’s covenants, indemnities, warranties and representations
contained in this Contract and in any document executed by Seller pursuant to this
Contract shall survive Purchaser’s purchase of the Property only for a period
commencing on the Closing Date and ending on one year after the Closing Date
(the “Limitation Period”). Seller’s liability for breach of any such
covenant, indemnity, representation or warranty with respect to the Property
shall be limited to claims in excess of an aggregate $50,000 and Seller shall
be liable only to the extent that such aggregate exceeds such figure.  Seller’s aggregate liability for claims
arising out of such covenants, indemnities, representations and warranties with
respect to the Property shall not exceed $5,000,000 (the “Damage Limit’”).
Purchaser shall provide written notice to Seller prior to the expiration of the
Limitation Period of any alleged breach of such covenants, indemnities,
warranties or representations and shall allow Seller 30 days within which to
cure such breach, or, if such breach cannot reasonably be cured within 30 days,
an additional reasonable time period, so long as such cure has been commenced
within such 30 days and is being diligently pursued.  If Seller fails to cure such breach after
written notice and within such cure period, Purchaser’s sole remedy shall be an
action at law for actual damages as a consequence thereof, which must be
commenced, if at all, within the Limitation Period; provided, however, that if
within the Limitation Period Purchaser gives Seller written notice of such a
breach and Seller notifies Purchaser of Seller’s commencement of a cure, commenced
to cure and thereafter terminates such cure effort, Purchaser shall have an
additional 30 days from the date of such termination within which to commence
an action at law for damages up to the Damage Limit as a consequence of Seller’s
failure to cure.  The Limitation Period
referred to herein shall apply to known as well as unknown breaches of such
covenants, indemnities, warranties or representations.  Purchaser specifically acknowledges that such
termination of liability represents a material element of the consideration to
Seller.  The limitation as to Seller’s
liability in this Section 10.3.1 does not apply to Seller’s
liability with respect to prorations and adjustments under Article 7.


 


10.3.2                  Disclosure.  Notwithstanding any contrary
provision of this Contract, if Seller becomes aware during the pendency of this
Contract prior to Closing of any matters which make any of their
representations or warranties untrue, Seller shall promptly disclose such matters
to Purchaser in writing. In the event that Seller so discloses any matters
which make any of Seller’s representations and warranties untrue in any
material respect or in the event that Purchaser otherwise becomes aware during
the pendency of this Contract prior to Closing of any matters which make any of
Seller’s representations or warranties untrue in any material respect, Seller
shall bear no liability for such matters (provided that such untruth is not the
result of Seller’s breach of any express covenant set forth in this Contract),
but Purchaser shall have the right to elect in writing on or before the Closing
Date, (i) to waive such matters and complete the purchase of the Property
without reduction of the Purchase Price in accordance with the terms of this
Contract, or (ii) as to any matters disclosed following the expiration of
the Inspection Period, to terminate this Contract.


 


10.3.3                  Purchaser’s Knowledge.  Notwithstanding
anything contained in this Contract to the contrary, Seller shall have no
liability for breaches of any representations, warranties and certifications
(individually, a “Representation” and collectively, the “Representations”)
which are made by Seller herein or in any of the documents or instruments


 


14





















 


required
to be delivered by Seller hereunder if Purchaser, its officers, employees,
shareholders, members, partners, or agents had knowledge of such breach by
Seller as to a fact or circumstance which, by its nature, indicates that a
Representation was or has become untrue or inaccurate and Purchaser either (a) during
the Inspection Period fails to terminate this Agreement as set forth in Section 2.3
or (b) at any other time at or prior to Closing, Purchaser elects to
proceed to close the transaction contemplated by this Contract, Purchaser shall
not otherwise have the right to bring any lawsuit or other legal action against
Seller, nor pursue any other remedies against Seller, as a result of the breach
of such Representation caused thereby.


 


ARTICLE 11: MISCELLANEOUS


 


11.1                           Parties Bound; Assignment.  Neither
party may assign this Contract without the prior written consent of the other,
and any such prohibited assignment shall be void; provided, however, that
Purchaser may assign this Contract without Seller’s consent to an Affiliate or
to effect an Exchange under Section 11.2. For the purposes of this
paragraph, the term “Affiliate” means (a) an entity that directly
or indirectly controls, is controlled by or is under common control with the
Purchaser or (b) an entity at least a majority of whose economic interest
is owned by Purchaser; and the term “control” means the power to direct the
management of such entity through voting rights, ownership or contractual
obligations. Subject to the foregoing, this Contract shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties.


 


11.2                           Section 1031 Exchange.  Purchaser
or Seller may consummate the purchase of the Property as part of a so-called
like kind exchange (the “Exchange”) pursuant to § 1031 of the Internal
Revenue Code of 1986, as amended (the “Code”), provided that:  (i) the Closing shall not be delayed or
affected by reason of the Exchange nor shall the consummation or accomplishment
of the Exchange be a condition precedent or condition subsequent to Purchaser’s
obligations under this Agreement;  (ii) the
Exchange is effected through an assignment of this Agreement, or its rights
under this Agreement, to a qualified intermediary; (iii) Seller shall not
be required to take an assignment of the purchase agreement for the relinquished
property or be required to acquire or hold title to any real property for
purposes of consummating the Exchange; and (iv) the party requesting he
Exchange shall pay any additional costs that would not otherwise have been
incurred by Purchaser or Seller had such party not consummated its purchase or
sale through the Exchange.  Neither
Seller nor Purchaser by this agreement or acquiescence to the Exchange shall (1) have
its rights under this Agreement affected or diminished in any manner or (2) be
responsible for compliance with or be deemed to have warranted to the other
party that the Exchange in fact complies with § 1031 of the Code.


 


11.3                           Headings.  The article, section,
subsection, Section and other headings of this Contract are for
convenience only and in no way limit or enlarge the scope or meaning of the language
hereof.


 


11.4                           Invalidity and Waiver.  If
any portion of this Contract is held invalid or inoperative, then so far as is
reasonable and possible the remainder of this Contract shall be deemed valid
and operative, and, to the greatest extent legally possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative.  The failure by either party to enforce
against the other any term or provision of this Contract shall not be deemed to
be a


 


15





















 


waiver
of such party’s right to enforce against the other party the same or any other
such term or provision in the future.


 


11.5                           Governing Law.  This Contract shall, in all respects, be
governed, construed, applied, and enforced in accordance with the law of the
State in which the Real Property is located.


 


11.6                           Survival. The
provisions of this Contract shall survive the Closing, subject to the express
limitations set forth herein.


 


11.7                           No Third Party Beneficiary.  The provisions of this
Contract and of the documents to be executed and delivered at Closing are and
will be for the benefit of Seller and Purchaser only and are not for the
benefit of any third party, and accordingly, no third party shall have the right
to enforce the provisions of this Contract or of the documents to be executed
and delivered at Closing.


 


11.8                           Time.  Time is of the essence in the
performance of this Contract.


 


11.9                           Confidentiality.  Purchaser shall make no public announcement
or disclosure of the sale or lease of the Property or of any other information
related to this Contract or the transactions contemplated hereby to outside
brokers or third parties, before or after the Closing, without the specific
prior written consent of Seller, except for such disclosures to Purchaser’s lenders,
creditors, officers, employees and agents as may be necessary to permit
Purchaser to perform Purchaser’s obligations hereunder.


 


11.10                     Notices.  All notices required or permitted hereunder
shall be in writing and shall be served on the parties at the addresses set
forth below. Any such notices shall be either (i) sent by overnight
delivery using a nationally recognized overnight courier, in which case notice
shall be deemed delivered one business day after deposit with such courier, (ii) sent
by facsimile, in which case notice shall be deemed delivered upon transmission
of such notice, or (iii) sent by personal delivery, in which case notice
shall be deemed delivered upon receipt or refusal of delivery.  A party’s address may be changed by written
notice to the other party; provided, however, that no notice of a change of
address shall be effective until actual receipt of such notice.  Copies of notices are for informational
purposes only, and a failure to give or receive copies of any notice shall not
be deemed a failure to give notice. The attorney for a party has the authority
to send notices on behalf of such party.


 


16





















 


 


	
  If
  to Purchaser:

  	
  If
  to Seller:

  
	
   

  	
   

  
	
  G.
  Joseph Cosenza

  	
  Joseph
  D. Buckman

  
	
  Vice
  Chairman

  	
  Director,
  Real Estate Transactions

  
	
  Member
  of the Board of Directors

  	
  SBC
  Services, Inc.

  
	
  The
  Inland Group, Inc.

  	
  225
  W, Randolph, 13th Floor

  
	
  2901
  Butterfield Road

  	
  Chicago,
  IL 60606

  
	
  Oak
  Brook, IL 60523-1159

  	
  Fax:
  (312) 814-7360

  
	
  Fax:
  (630)218-4935

  	
   

  
	
   

  	
   

  
	
  with
  a copy to:

  	
  with
  a copy to:

  
	
   

  	
   

  
	
  Charles
  J. Benvenuto

  	
  Kenneth
  H. Gitter

  
	
  Charles
  J. Benvenuto, P.C.

  	
  General
  Attorney: Real Estate Matters

  
	
  2901
  Butterfield Road, 3rd Floor

  	
  SBC
  Communications Inc.

  
	
  Oak
  Brook, IL 60523-1159

  	
  175
  E. Houston Street, Room 4-A-40

  
	
  Fax:
  (630)571-2360

  	
  San Antonio, TX 78205

  
	
   

  	
  Direct Fax: (214) 486-8165

  
	
   

  	
  Office
  Fax: (210) 351-2782

  



 


11.11                    Construction.  The parties acknowledge that the parties and
their counsel have reviewed and revised this Contract and agree that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Contract or any exhibits or amendments hereto.


 


11.12                    Calculation of Time Periods.  Unless otherwise specified, in
computing any period of time described herein, the day of the act or event
after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless such last
day is a Saturday, Sunday or legal holiday for national banks in the location
where the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday, or legal holiday.  The last day of any period of time described
herein shall be deemed to end at 5:00 p.m. in the jurisdiction in which
the Property is located.


 


11.13                    Execution in Counterparts.  This Contract may be executed
in any number of counterparts, each of which shall be deemed to be an original,
and all of such counterparts shall constitute one Contract.  To facilitate execution of this Contract, the
parties may execute and exchange by telephone facsimile counterparts of the
signature pages, provided that executed originals thereof are forwarded to the
other party on the same day by any of the delivery methods set forth in Section 10.10
other than facsimile.


 


11.14                    Further Assurances.  In addition to the acts and deeds recited
herein and contemplated to be performed, executed or delivered by either party
at Closing, each party agrees to perform, execute and deliver, but without any
obligation to incur any additional liability or expense, on or after the
Closing any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the conveyance,
transfer and assignment of the Property to Purchaser.


 


17





















 


11.15                     Information and Audit Cooperation.  At
any time before or after the Closing, Seller shall allow Purchaser’s auditors
access to the books and records of Seller and the working papers of Seller’s
independent auditors relating to the operation of the Property to enable Purchaser
to comply with any financial reporting requirements applicable to Purchaser.


 


11.16                     Attorneys’ Fees.  In
the event either party hereto employs an attorney in connection with claims by
one party against the other arising from the operation of this Contract, the
non-prevailing party shall pay the prevailing party all reasonable fees and
expenses, including attorneys’ fees, incurred in connection with such
transaction.


 


11.17                     Entirety and Amendments.  This
Contract embodies the entire contract between the parties and supersedes all
prior contracts and understandings relating to the Property.  This Contract may be amended or supplemented
only by an instrument in writing executed by both Seller and Purchaser.


 


[SIGNATURE
PAGES AND EXHIBITS TO FOLLOW]


 


18





















 


SIGNATURE PAGE TO 


REAL ESTATE SALE CONTRACT


BY AND BETWEEN 


AMERITECH CENTER PHASE I, INC.


AND 


SBC TELEHOLDINGS, INC


AND


INLAND REAL ESTATE ACQUISITIONS, INC.


 


IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Contract as of the Effective Date.


 


	
   

  	
  SELLERS:

  
	
   

  	
   

  
	
   

  	
  AMERITECH
  CENTER PHASE I, INC. a 

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph D. Buckman

  
	
   

  	
  Name:

  	
  Joseph
  D. Buckman

  
	
  Dated:

  	
  November 3, 2005

  	
   

  	
  Title:

  	
  Director - Transactions

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SBC
  TELEHOLDINGS, INC., a Delaware 

  Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph D. Buckman

  
	
   

  	
  Name:

  	
  Joseph
  D. Buckman

  
	
  Dated:

  	
  November 3, 2005

  	
   

  	
  Title:

  	
  Director - Transactions

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Title:

  	
   

  
						



 


S-1





















 


SIGNATURE PAGE TO 


REAL ESTATE SALE CONTRACT


BY AND BETWEEN 


AMERITECH CENTER PHASE I, INC.


AND 


SBC TELEHOLDINGS, INC


AND INLAND REAL ESTATE ACQUISITIONS, INC.


 


IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Contract as of the Effective Date.


 


	
   

  	
  SELLERS;

  
	
   

  	
   

  
	
   

  	
  AMERITECH
  CENTER PHASE I, INC. a 

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SBC
  TELEHOLDINGS, INC., a Delaware

  Corporation.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
  Dated:

  	
  November 3, 2005

  	
   

  	
  Title:

  	
  President

  
							



 


S-1





















 


LIST OF EXHIBITS


 


	
  A-1

  	
   

  	
  -

  	
   

  	
  Depiction
  of Real Property and Retained Property

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A-2

  	
   

  	
  -

  	
   

  	
  Legal
  Description of Real Property

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A-3

  	
   

  	
  -

  	
   

  	
  Legal
  Description of Retained Property

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B

  	
   

  	
  -

  	
   

  	
  SBC
  Lease

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  -

  	
   

  	
  Declaration

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D

  	
   

  	
  -

  	
   

  	
  Central
  Office Easement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E

  	
   

  	
  -

  	
   

  	
  Description
  of Annexation Agreement Amendment

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F

  	
   

  	
   

  	
   

  	
  Estoppel
  Certificate

  



 





















 


EXHIBIT A-1


DEPICTION OF REAL
PROPERTY AND RETAINED PROPERTY


 





 


A-1-1





















 


EXHIBIT A-2


 


LEGAL DESCRIPTION OF REAL PROPERTY


 


(Attached subject to Purchaser and Seller
review and approval)


 


PARCEL
1 - SBC Corporate Center


 


THAT
PART OF THE SOUTH HALF OF SECTION 36, TOWNSHIP 42 NORTH, RANGE 9 EAST
OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS:


 


COMMENCING
AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 36;
THENCE SOUTH 00 DEGREES, 15 MINUTES, 15 SECONDS WEST ALONG THE EAST LINE OF THE
SOUTHEAST QUARTER OF SAID SECTION, 1,248.01 FEET; THENCE SOUTH 90 DEGREES, 00
MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL WITH THE NORTH LINE OF THE
SOUTH HALF OF SAID SECTION, 67.00 FEET TO THE WEST LINE OF HUNTINGTON BOULEVARD
(ALSO KNOWN AS FREEMAN ROAD), AND THE POINT OF BEGINNING;


 


THENCE
CONTINUING SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL
WITH THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION, 1,258.57 FEET TO THE
INTERSECTION WITH A NON-TANGENT CURVE; THENCE SOUTHWESTERLY ALONG A CURVE
CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 250.00 FEET, FOR AN ARC LENGTH OF
29.49 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 31 DEGREES, 08
MINUTES, 10 SECONDS WEST, AND A CHORD LENGTH OF 29.47 FEET TO A POINT OF
TANGENCY; THENCE SOUTH 34 DEGREES, 30 MINUTES, 56 SECONDS WEST, 90.47 FEET TO A
POINT OF CURVE; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE EAST, HAVING
A RADIUS OF 39.50 FEET, FOR AN ARC LENGTH OF 59.72 FEET, SAID ARC BEING
SUBTENDED BY A CHORD BEARING OF SOUTH 08 DEGREES, 48 MINUTES, 10 SECONDS EAST,
AND A CHORD LENGTH OF 54.20 FEET TO A POINT OF REVERSE CURVE; THENCE NORTHWESTERLY
ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 872.50 FEET, FOR AN
ARC LENGTH OF 458.35 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF NORTH
67 DEGREES, 10 MINUTES, 15 SECONDS WEST, AND A CHORD LENGTH OF 453.10 FEET TO A
POINT OF REVERSE CURVE; THENCE NORTHWESTERLY ALONG A CURVE CONCAVE TO THE
NORTHEAST, HAVING A RADIUS OF 50.00 FEET, FOR AN ARC LENGTH OF 42.14 FEET, SAID
ARC BEING SUBTENDED BY A CHORD BEARING OF NORTH 58 DEGREES, 04 MINUTES, 34
SECONDS WEST, AND A CHORD LENGTH OF 40.90 FEET TO A POINT OF REVERSE CURVE;
THENCE WESTERLY ALONG A CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 100.50
FEET, FOR AN ARC LENGTH OF 196.69 FEET, SAID ARC BEING SUBTENDED BY A CHORD
BEARING OF SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, AND A CHORD LENGTH OF
166.77 FEET TO A POINT OF REVERSE CURVE: THENCE


 


A-2-1





















 


SOUTHWESTERLY
ALONG A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 50.00 FEET, FOR AN
ARC LENGTH OF 42.14 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH
58 DEGREES, 04 MINUTES, 34 SECONDS WEST, AND A CHORD LENGTH OF 40.90 FEET TO A
POINT OF REVERSE CURVE; THENCE SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE
SOUTHEAST, HAVING A RADIUS OF 872.50 FEET, FOR AN ARC LENGTH OF 458.35 FEET,
SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 67 DEGREES, 10 MINUTES, 15
SECONDS WEST, AND A CHORD LENGTH OF 453.10 FEET TO A POINT OF REVERSE CURVE;
THENCE NORTHERLY ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 39,50 FEET,
FOR AN ARC LENGTH OF 59.73 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF
NORTH 08 DEGREES, 48 MINUTES, 10 SECONDS EAST, AND A CHORD LENGTH OF 54.20 FEET
TO A POINT OF TANGENCY; THENCE NORTH 34 DEGREES, 30 MINUTES, 56 SECONDS WEST,
88.89 FEET TO A POINT OF CURVE; THENCE NORTHWESTERLY ALONG A CURVE CONCAVE TO
THE NORTHEAST HAVING A RADIUS OF 264.00 FEET, FOR AN ARC LENGTH OF 23.04 FEET,
SAID ARC BEING SUBTENDED BY A CHORD BEARING OF NORTH 32 DEGREES, 00 MINUTES, 55
SECONDS WEST, AND A CHORD LENGTH OF 23.03 FEET TO A POINT 1,255.00 FEET SOUTH
OF, AS MEASURED AT RIGHT ANGLES THERETO, THE NORTH LINE OF THE SOUTH HALF OF
SAID SECTION; THENCE SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, ALONG A
LINE PARALLEL WITH THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION, 1,401.14
FEET TO THE EAST LINE OF EAGLE WAY, SAID EAST LINE BEING 40.00 FEET EAST OF, AS
MEASURED AT RIGHT ANGLES THERETO, THE WEST LINE OF THE EAST HALF OF THE
SOUTHWEST QUARTER OF SAID SECTION 36; THENCE NORTH 00 DEGREES, 24 MINUTES,
17 SECONDS EAST ALONG THE EAST LINE OF SAID EAGLE WAY, 1,195.03 FEET TO THE
SOUTH LINE OF LAKEWOOD BOULEVARD, SAID SOUTH LINE BEING 60.00 FEET SOUTH OF, AS
MEASURED AT RIGHT ANGLES THERETO, THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION 36;
THENCE NORTH 90 DEGREES, 00 MINUTES, 00 SECONDS EAST ALONG THE SOUTH LINE OF
SAID LAKEWOOD BOULEVARD, 3,815.45 FEET TO AN ANGLE POINT IN SAID LAKEWOOD
BOULEVARD; THENCE SOUTH 44 DEGREES, 52 MINUTES, 20 SECONDS EAST ALONG THE
SOUTHWESTERLY LINE OF HUNTINGTON BOULEVARD, 35.28 FEET TO AN ANGLE POINT IN
SAID HUNTINGTON BOULEVARD; THENCE SOUTH 00 DEGREES, 15 MINUTES, 15 SECONDS WEST
ALONG THE WEST LINE OF SAID HUNTINGTON BOULEVARD, 1,163.01 FEET TO THE POINT OF
BEGINNING, ALL IN COOK COUNTY, ILLINOIS.


 


October 26,
2005 


 


PARCEL
3


 


THAT
PART OF THE SOUTH HALF OF SECTION 36, TOWNSHIP 42 NORTH, RANGE 9 EAST
OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS:


 


COMMENCING
AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 36;
THENCE SOUTH 00 DEGREES, 15 MINUTES, 15 SECONDS WEST


 


A-2-2





















 


ALONG
THE EAST LINE OF THE SOUTHEAST QUARTER OF SAID SECTION, 1,248.01 FEET; THENCE
SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL WITH THE
NORTH LINE OF THE SOUTH HALF OF SAID SECTION, 67.00 FEET TO THE WEST LINE OF
HUNTINGTON BOULEVARD (ALSO KNOWN AS FREEMAN ROAD); THENCE CONTINUING SOUTH 90
DEGREES, 00 MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL WITH THE NORTH LINE
OF THE SOUTH HALF OF SAID SECTION, 1,258.57 FEET TO THE INTERSECTION WITH
A NON-TANGENT CURVE; THENCE SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE
NORTHWEST, HAVING A RADIUS OF 250.00 FEET, FOR AN ARC LENGTH OF 29.49 FEET,
SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 31 DEGREES, 08 MINUTES, 10
SECONDS WEST, AND A CHORD LENGTH OF 29.47 FEET TO A POINT OF TANGENCY; THENCE
SOUTH 34 DEGREES, 30 MINUTES, 56 SECONDS WEST, 90.47 FEET TO A POINT OF CURVE;
THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF
39.50 FEET, FOR AN ARC LENGTH OF 59.72 FEET, SAID ARC BEING SUBTENDED BY A
CHORD BEARING OF SOUTH 08 DEGREES, 48 MINUTES, 10 SECONDS EAST, AND A CHORD
LENGTH OF 54.20 FEET TO A POINT OF REVERSE CURVE, AND THE POINT OF BEGINNING;


 


THENCE
NORTHWESTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 872.50
FEET, FOR AN ARC LENGTH OF 458.35 FEET, SAID ARC BEING SUBTENDED BY A CHORD
BEARING OF NORTH 67 DEGREES, 10 MINUTES, 15 SECONDS WEST, AND A CHORD LENGTH OF
453.10 FEET TO A POINT OF REVERSE CURVE; THENCE NORTHWESTERLY ALONG A CURVE
CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 50.00 FEET, FOR AN ARC LENGTH OF
42.14 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF NORTH 58 DEGREES, 04
MINUTES, 34 SECONDS WEST, AND A CHORD LENGTH OF 40.90 FEET TO A POINT OF REVERSE
CURVE; THENCE WESTERLY ALONG A CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF
100.50 FEET, FOR AN ARC LENGTH OF 196.69 FEET, SAID ARC BEING SUBTENDED BY A
CHORD BEARING OF SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, AND A CHORD
LENGTH OF 166.77 FEET TO A POINT OF REVERSE CURVE; THENCE SOUTHWESTERLY ALONG A
CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 50.00 FEET, FOR AN ARC
LENGTH OF 42.14 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 58
DEGREES, 04 MINUTES, 34 SECONDS WEST, AND A CHORD LENGTH OF 40.90 FEET TO A
POINT OF REVERSE CURVE; THENCE SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE
SOUTHEAST, HAVING A RADIUS OF 872.50 FEET, FOR AN ARC LENGTH OF 1,252.05 FEET,
SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 41 DEGREES 06 MINUTES, 37
SECONDS WEST, AND A CHORD LENGTH OF 1,147.36 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 00 DEGREES, 00 MINUTES, 00 SECONDS WEST, 475.08 FEET TO A POINT OF
CURVE; THENCE SOUTHERLY ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF
40.00 FEET, FOR AN ARC LENGTH OF 8.63 FEET, SAID ARC BEING SUBTENDED BY A CHORD
BEARING OF SOUTH 06 DEGREES, 10 MINUTES, 53 SECONDS WEST, AND A CHORD LENGTH OF
8.61 FEET TO THE NORTH LINE OF CENTRAL ROAD, SAID NORTH LINE BEING 65.00 FEET
NORTH OF, AS MEASURED AT RIGHT ANGLES THERETO, THE SOUTH LINE OF SAID SECTION 36;
THENCE


 


A-2-3





















 


SOUTH
89 DEGREES, 48 MINUTES, 12 SECONDS EAST ALONG THE NORTH LINE OF SAID CENTRAL
ROAD, 151.21 FEET TO AN ANGLE POINT IN THE NORTH LINE OF SAID CENTRAL ROAD,
SAID ANGLE POINT ALSO BEING ON THE WEST LINE OF THE SOUTHEAST QUARTER OF SAID
SECTION; THENCE SOUTH 89 DEGREES, 47 MINUTES, 37 SECONDS EAST ALONG THE NORTH
LINE OF SAID CENTRAL ROAD, 1,598.69 FEET TO A POINT 970.11 FEET WEST OF THE
WEST LINE OF SAID HUNTINGTON BOULEVARD, AS MEASURED ALONG THE NORTH LINE OF
SAID CENTRAL ROAD; THENCE NORTHERLY ALONG A NON-TANGENT CURVE CONCAVE TO THE
EAST, HAVING A RADIUS OF 30.00 FEET, FOR AN ARC LENGTH OF 15.59 FEET, SAID ARC
BEING SUBTENDED BY A CHORD BEARING OF NORTH 14 DEGREES, 53 MINUTES, 30 SECOND
WEST, AND A CHORD LENGTH OF 15.42 FEET TO A POINT OF TANGENCY; THENCE NORTH 00
DEGREES, 00 MINUTES, 00 SECONDS EAST, 475.02 FEET TO A POINT OF CURVE; THENCE
NORTHWESTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 872.50
FEET, FOR AN ARC LENGTH OF 793.70 FEET, SAID ARC BEING SUBTENDED BY A CHORD
BEARING OF NORTH 26 DEGREES, 03 MINUTES, 38 SECONDS WEST, AND A CHORD LENGTH OF
766.62 FEET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS.


 


October 26,
2005 


CENTER/SOUTH
PARCEL


 


A-2-4





















 


EXHIBIT A-3


 


LEGAL DESCRIPTION OF RETAINED PROPERTY
(Attached subject to Purchaser and Seller review and approval)


 


PARCEL
2


 


THAT
PART OF THE SOUTH HALF OF SECTION 36, TOWNSHIP 42 NORTH, RANGE 9 EAST
OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS: COMMENCING
AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 36;
THENCE SOUTH 00 DEGREES, 15 MINUTES, 15 SECONDS WEST ALONG THE EAST LINE OF THE
SOUTHEAST QUARTER OF SAID SECTION, 1,248.01 FEET; THENCE SOUTH 90 DEGREES, 00
MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL WITH THE NORTH LINE OF THE
SOUTH HALF OF SAID SECTION, 67.00 FEET TO THE WEST LINE OF HUNTINGTON BOULEVARD
(ALSO KNOWN AS FREEMAN ROAD); THENCE CONTINUING SOUTH 90 DEGREES, 00 MINUTES,
00 SECONDS WEST, ALONG A LINE PARALLEL WITH THE NORTH LINE OF THE SOUTH HALF OF
SAID SECTION, 1,258.57 FEET TO THE INTERSECTION WITH A NON-TANGENT CURVE;
THENCE SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF
250.00 FEET, FOR AN ARC LENGTH OF 29.49 FEET, SAID ARC BEING SUBTENDED BY A
CHORD BEARING OF SOUTH 31 DEGREES, 08 MINUTES, 10 SECONDS WEST, AND A CHORD
LENGTH OF 29.47 FEET TO A POINT OF TANGENCY; THENCE SOUTH 34 DEGREES, 30
MINUTES, 56 SECONDS WEST, 90.47 FEET TO A POINT OF CURVE; THENCE SOUTHEASTERLY
ALONG A CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF 39.50 FEET, FOR AN ARC
LENGTH OF 59.72 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 08
DEGREES, 48 MINUTES, 10 SECONDS EAST, AND A CHORD LENGTH OF 54.20 FEET TO A
POINT OF REVERSE CURVE; THENCE NORTHWESTERLY ALONG A CURVE CONCAVE TO THE
SOUTHWEST, HAVING A RADIUS OF 872.50 FEET, FOR AN ARC LENGTH OF 458.35 FEET,
SAID ARC BEING SUBTENDED BY A CHORD BEARING OF NORTH 67 DEGREES, 10 MINUTES, 15
SECONDS WEST, AND A CHORD LENGTH OF 453.10 FEET TO A POINT OF REVERSE CURVE;
THENCE NORTHWESTERLY ALONG A CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF
50.00 FEET, FOR AN ARC LENGTH OF 42.14 FEET, SAID ARC BEING SUBTENDED BY A
CHORD BEARING OF NORTH 58 DEGREES, 04 MINUTES, 34 SECONDS WEST, AND A CHORD
LENGTH OF 40.90 FEET TO A POINT OF REVERSE CURVE; THENCE WESTERLY A LONG A
CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 100.50 FEET, FOR AN ARC LENGTH
OF 196.69 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 90
DEGREES, 00 MINUTES, 00 SECONDS WEST, AND A CHORD LENGTH OF 166.77 FEET TO A
POINT OF REVERSE CURVE; THENCE SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE
NORTHWEST, HAVING A RADIUS OF 50.00 FEET, FOR AN ARC LENGTH OF 42.14 FEET, SAID
ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 58 DEGREES, 04 MINUTES, 34
SECONDS WEST, AND A CHORD LENGTH OF 40.90 FEET TO A POINT OF REVERSE CURVE;
THENCE SOUTHWESTERLY ALONG A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF
872.50 FEET, FOR AN ARC LENGTH OF 458.35 FEET, SAID ARC BEING


 


A-3-1





















 


SUBTENDED
BY A CHORD BEARING OF SOUTH 67 DEGREES, 10 MINUTES, 15 SECONDS WEST, AND A
CHORD LENGTH OF 453.10 FEET TO A POINT OF REVERSE CURVE, AND THE POINT OF
BEGINNING;


 


THENCE
NORTHERLY ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 39.50 FEET, FOR
AN ARC LENGTH OF 59.73 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF
NORTH 08 DEGREES, 48 MINUTES, 10 SECONDS EAST, AND A CHORD LENGTH OF 54.20 FEET
TO A POINT OF TANGENCY; THENCE NORTH 34 DEGREES, 30 MINUTES, 56 SECONDS WEST,
88.89 FEET TO A POINT OF CURVE; THENCE NORTHWESTERLY ALONG A CURVE CONCAVE TO
THE NORTHEAST HAVING A RADIUS OF 264.00 FEET, FOR AN ARC LENGTH OF 23.04 FEET,
SAID ARC BEING SUBTENDED BY A CHORD BEARING OF NORTH 32 DEGREES, 00 MINUTES, 55
SECONDS WEST, AND A CHORD LENGTH OF 23.03 FEET TO A POINT 1,255.00 FEET SOUTH
OF, AS MEASURED AT RIGHT ANGLES THERETO, THE NORTH LINE OF THE SOUTH HALF OF
SAID SECTION; THENCE SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, ALONG A
LINE PARALLEL WITH THE NORTH LINE OF SAID SOUTH HALF OF SAID SECTION, 1,401.14
FEET TO THE EAST LINE OF EAGLE WAY, SAID EAST LINE BEING 40.00 FEET EAST OF, AS
MEASURED AT RIGHT ANGLES THERETO, THE WEST LINE OF THE EAST HALF OF THE
SOUTHWEST QUARTER OF SAID SECTION 36; THENCE SOUTH 00 DEGREES, 24 MINUTES,
17 SECONDS WEST ALONG THE EAST LINE OF SAID EAGLE WAY, 422.47 FEET TO THE SOUTH
LINE OF SAID EAGLE WAY; THENCE NORTH 89 DEGREES, 31 MINUTES, 23 SECONDS WEST
ALONG THE SOUTH LINE OF SAID EAGLE WAY, 40.00 FEET TO THE WEST LINE OF THE EAST
HALF OF THE SOUTHWEST QUARTER OF SAID SECTION; THENCE SOUTH 00 DEGREES, 24
MINUTES, 17 SECONDS WEST ALONG THE WEST LINE OF THE EAST HALF OF THE SOUTHWEST
QUARTER OF SAID SECTION, 892.54 FEET TO THE NORTH LINE OF CENTRAL ROAD, SAID
NORTH LINE BEING 65.00 FEET NORTH OF, AS MEASURED AT RIGHT ANGLES THERETO, THE
SOUTH LINE OF SAID SECTION 36; THENCE SOUTH 89 DEGREES, 48 MINUTES, 12
SECONDS EAST ALONG THE NORTH LINE OF SAID CENTRAL ROAD, 1,167.00 FEET TO A
POINT 151.21 FEET WEST OF AN ANGLE POINT IN THE NORTH LINE OF SAID CENTRAL
ROAD, SAID ANGLE POINT ALSO BEING ON THE WEST LINE OF THE SOUTHEAST QUARTER OF
SAID SECTION; THENCE NORTHERLY ALONG A NON-TANGENT CURVE CONCAVE TO THE WEST,
HAVING A RADIUS OF 40.00 FEET, FOR AN ARC LENGTH OF 8.63 FEET, SAID ARC BEING
SUBTENDED BY A CHORD BEARING OF NORTH 06 DEGREES, 10 MINUTES, 53 SECONDS EAST,
AND A CHORD LENGTH OF 8.61 FEET TO A POINT OF TANGENCY; THENCE NORTH 00
DEGREES, 00 MINUTES, 00 SECONDS EAST, 475.08 FEET TO A POINT OF CURVE; THENCE
NORTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 872.50
FEET, FOR AN ARC LENGTH OF 793.70 FEET, SAID ARC BEING SUBTENDED BY A CHORD
BEARING OF NORTH 26 DEGREES, 03 MINUTES, 38 SECONDS EAST, AND A CHORD LENGTH OF
766.62 TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS.


 


October 26,
2005 


SOUTHWEST
PARCEL


 


A-3-2





















 


PARCEL
4


 


THAT
PART OF THE SOUTH HALF OF SECTION 36, TOWNSHIP 42 NORTH, RANGE 9 EAST
OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS:


 


COMMENCING
AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 36;
THENCE SOUTH 00 DEGREES, 15 MINUTES, 15 SECONDS WEST ALONG THE EAST LINE OF THE
SOUTHEAST QUARTER OF SAID SECTION, 1,248,01 FEET; THENCE SOUTH 90 DEGREES, 00
MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL WITH THE NORTH LINE OF THE
SOUTH HALF OF SAID SECTION, 67.00 FEET TO THE WEST LINE OF HUNTINGTON BOULEVARD
(ALSO KNOWN AS FREEMAN ROAD), AND THE POINT OF BEGINNING;


 


THENCE
CONTINUING SOUTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST, ALONG A LINE PARALLEL
WITH THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION, 1,258.57 FEET TO THE
INTERSECTION WITH A NON-TANGENT CURVE; THENCE SOUTHWESTERLY ALONG A CURVE
CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 250.00 FEET, FOR AN ARC LENGTH OF
29.49 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 31 DEGREES, 08
MINUTES, 10 SECONDS WEST, AND A CHORD LENGTH OF 29.47 FEET TO A POINT OF
TANGENCY; THENCE SOUTH 34 DEGREES, 30 MINUTES, 56 SECONDS WEST, 90.47 FEET TO A
POINT OF CURVE; THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE EAST, HAVING
A RADIUS OF 39.50 FEET, FOR AN ARC LENGTH OF 59.72 FEET, SAID ARC BEING
SUBTENDED BY A CHORD BEARING OF SOUTH 08 DEGREES, 48 MINUTES, 10 SECONDS EAST,
AND A CHORD LENGTH OF 54.20 FEET TO A POINT OF REVERSE CURVE; THENCE
SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 872.50
FEET, FOR AN ARC LENGTH OF 793.70 FEET, SAID ARC BEING SUBTENDED BY A CHORD
BEARING OF SOUTH 26 DEGREES, 03 MINUTES, 38 SECONDS EAST, AND A CHORD LENGTH OF
766.62 FEET TO A POINT OF TANGENCY; THENCE SOUTH 00 DEGREES, 00 MINUTES, 00
SECONDS WEST, 475.02 FEET TO A POINT OF CURVE; THENCE SOUTHERLY ALONG A CURVE
CONCAVE TO THE EAST, HAVING A RADIUS OF 30.00 FEET, FOR AN ARC LENGTH OF 15.59
FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING OF SOUTH 14 DEGREES, 53
MINUTES, 30 SECONDS EAST, AND A CHORD LENGTH OF 15.42 FEET TO THE NORTH LINE OF
CENTRAL ROAD, SAID NORTH LINE BEING 65.00 FEET NORTH OF, AS MEASURED AT RIGHT
ANGLES THERETO, THE SOUTH LINE OF SAID SECTION 36; THENCE SOUTH 89
DEGREES, 47 MINUTES, 37 SECONDS EAST ALONG THE NORTH LINE OF SAID CENTRAL ROAD,
970.11 FEET TO THE WEST LINE OF SAID HUNTINGTON BOULEVARD; THENCE NORTH 00
DEGREES, 15 MINUTES, 15 SECONDS EAST ALONG THE WEST LINE OF SAID HUNTINGTON
BOULEVARD, 1,335.43 FEET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY,
ILLINOIS.


 


October 26,
2005 


SOUTHEAST
PARCEL


 


A-3-3





















 


EXHIBIT B


 


SBC LEASE


 


 


LEASE AGREEMENT


 


Dated as of November    ,
2005


 


 


Between


 


 


MB Hoffman Estates, L.L.C., 


as Lessor


 


and


 


SBC Services, Inc., 


as Lessee


 










 


SBC Center


 


Hoffman Estates,
Illinois


 










 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  Section 1.1.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  	
  LEASE OF PROPERTY

  	
  1

  
	
   

  	
  Section 2.1.

  	
  Demise and Lease

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  	
  RENT

  	
  2

  
	
   

  	
  Section 3.1.

  	
  Base Rent

  	
  2

  
	
   

  	
  Section 3.2.

  	
  Supplemental Rent

  	
  2

  
	
   

  	
  Section 3.3.

  	
  Method of Payment

  	
  2

  
	
   

  	
  Section 3.4.

  	
  Late Payment

  	
  2

  
	
   

  	
  Section 3.5.

  	
  No Setoff

  	
  2

  
	
   

  	
  Section 3.6.

  	
  True Lease

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  	
  RIGHT OF FIRST REFUSAL

  	
  3

  
	
   

  	
  Section 4.1.

  	
  Right of Refusal

  	
  3

  
	
   

  	
  Section 4.2.

  	
  Non-Applicability of Section 4.1

  	
  4

  
	
   

  	
  Section 4.3.

  	
  Miscellaneous

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  	
  RENEWAL OPTIONS

  	
  4

  
	
   

  	
  Section 5.1.

  	
  Renewal Options

  	
  4

  
	
   

  	
  Section 5.2.

  	
  Lease Provisions
  Applicable During Renewal

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  	
  LESSEE’S ACCEPTANCE OF
  PROPERTY, ENFORCEMENT OF WARRANTIES

  	
  6

  
	
   

  	
  Section 6.1.

  	
  Waivers

  	
  6

  
	
   

  	
  Section 6.2.

  	
  Assignment of
  Warranties

  	
  7

  
	
   

  	
  Section 6.3.

  	
  Assignment of Existing
  Leases

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  	
  LIENS

  	
  7

  
	
   

  	
  Section 7.1.

  	
  Liens

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  	
  USE AND REPAIR

  	
  8

  
	
   

  	
  Section 8.1.

  	
  Use

  	
  8

  
	
   

  	
  Section 8.2.

  	
  Maintenance

  	
  8

  
	
   

  	
  Section 8.3.

  	
  Alterations

  	
  10

  
	
   

  	
  Section 8.4.

  	
  Title to Alterations

  	
  11

  
	
   

  	
  Section 8.5.

  	
  Compliance with Law;
  Environmental Compliance

  	
  12

  
	
   

  	
  Section 8.6.

  	
  Payment of Impositions

  	
  12

  
	
   

  	
  Section 8.7.

  	
  Adjustment of
  Impositions

  	
  13

  
					



 





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.8.

  	
  Utility Charges

  	
  13

  
	
   

  	
  Section 8.9.

  	
  Litigation; Zoning;
  Joint Assessment

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  	
  INSURANCE

  	
  14

  
	
   

  	
  Section 9.1.

  	
  Coverage

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  	
  RETURN OF PROPERTY TO
  LESSOR

  	
  15

  
	
   

  	
  Section 10.1.

  	
  Return of Property to
  Lessor

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  	
  ASSIGNMENT BY LESSEE

  	
  16

  
	
   

  	
  Section 11.1.

  	
  Assignment by Lessee

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  	
  LOSS; DESTRUCTION;
  CONDEMNATION OR DAMAGE

  	
  17

  
	
   

  	
  Section 12.1.

  	
  Destruction of The SBC
  Building, the Eagle Way Building and/or the Lakewood Building

  	
  17

  
	
   

  	
  Section 12.2.

  	
  Lessee’s Right to
  Terminate

  	
  18

  
	
   

  	
  Section 12.3.

  	
  Condemnation

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13.

  	
  REDUCTION OF RENT

  	
  20

  
	
   

  	
  Section 13.1.

  	
  Reduction of Rent

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14.

  	
  SUBLEASE

  	
  20

  
	
   

  	
  Section 14.1.

  	
  Subleasing Permitted;
  Lessee Remains Obligated

  	
  20

  
	
   

  	
  Section 14.2.

  	
  Provisions of Subleases

  	
  20

  
	
   

  	
  Section 14.3.

  	
  Assignment of Sublease
  Rents

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 15.

  	
  INSPECTION

  	
  22

  
	
   

  	
  Section 15.1.

  	
  Inspection

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 16.

  	
  LEASE EVENTS OF DEFAULT

  	
  22

  
	
   

  	
  Section 16.1.

  	
  Lease Events of Default

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 17.

  	
  ENFORCEMENT

  	
  23

  
	
   

  	
  Section 17.1.

  	
  Remedies

  	
  23

  
	
   

  	
  Section 17.2.

  	
  Survival of Lessee’s
  Obligations

  	
  25

  
	
   

  	
  Section 17.3.

  	
  Remedies Cumulative; No
  Waiver; Consents; Mitigation of Damages

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 18.

  	
  RIGHTS TO PERFORM FOR
  LESSEE AND LESSOR

  	
  25

  
	
   

  	
  Section 18.1.

  	
  Lessor’s Right to
  Perform for Lessee

  	
  25

  
	
   

  	
  Section 18.2.

  	
  Lessee’s Right to Perform
  for Lessor

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 19.

  	
  INDEMNITIES

  	
  26

  
	
   

  	
  Section 19.1.

  	
  General Indemnification

  	
  26

  
					



 





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 19.2.

  	
  No Third Party
  Environmental Indemnification

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 20.

  	
  LESSEE REPRESENTATIONS
  AND COVENANTS

  	
  27

  
	
   

  	
  Section 20.1.

  	
  Representations and
  Warranties

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 21.

  	
  GUARANTY OF LEASE

  	
  28

  
	
   

  	
  Section 21.1.

  	
  Guaranty of Lease

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 22.

  	
  [INTENTIONALLY OMITTED]

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 23.

  	
  TRANSFER OF LESSOR’S
  INTEREST

  	
  28

  
	
   

  	
  Section 23.1.

  	
  Permitted Transfer

  	
  28

  
	
   

  	
  Section 23.2.

  	
  Effects of Transfer

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 24.

  	
  PERMITTED FINANCING

  	
  29

  
	
   

  	
  Section 24.1.

  	
  Financing During Lease
  Term

  	
  29

  
	
   

  	
  Section 24.2.

  	
  Lessee’s Consent to
  Assignment for Indebtedness

  	
  30

  
	
   

  	
  Section 24.3.

  	
  Conflicting
  Instructions

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 25.

  	
  MISCELLANEOUS

  	
  31

  
	
   

  	
  Section 25.1.

  	
  Binding Effect;
  Successors and Assigns; Survival

  	
  31

  
	
   

  	
  Section 25.2.

  	
  Quiet Enjoyment

  	
  31

  
	
   

  	
  Section 25.3.

  	
  Notices

  	
  31

  
	
   

  	
  Section 25.4.

  	
  Severability

  	
  32

  
	
   

  	
  Section 25.5.

  	
  Amendments, Complete
  Agreements

  	
  32

  
	
   

  	
  Section 25.6.

  	
  Headings

  	
  32

  
	
   

  	
  Section 25.7.

  	
  Counterparts

  	
  32

  
	
   

  	
  Section 25.8.

  	
  Governing Law

  	
  32

  
	
   

  	
  Section 2 5.9.

  	
  Memorandum

  	
  33

  
	
   

  	
  Section 25.10.

  	
  Estoppel Certificates

  	
  33

  
	
   

  	
  Section 25.11.

  	
  Easements

  	
  33

  
	
   

  	
  Section 25.12.

  	
  No Joint Venture

  	
  34

  
	
   

  	
  Section 25.13.

  	
  No Accord and
  Satisfaction

  	
  34

  
	
   

  	
  Section 25.14.

  	
  No Merger

  	
  34

  
	
   

  	
  Section 25.15.

  	
  Lessor Bankruptcy

  	
  34

  
	
   

  	
  Section 25.16.

  	
  Naming and Signage of
  the Property

  	
  34

  
	
   

  	
  Section 25.17.

  	
  Expenses

  	
  35

  
	
   

  	
  Section 25.18.

  	
  Investments

  	
  35

  
					



 





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 25.19.

  	
  Further Assurances

  	
  35

  
	
   

  	
  Section 25.20.

  	
  Approval Standards;
  Evidence of Disapprovals

  	
  35

  
	
   

  	
  Section 25.21.

  	
  [Intentionally
  Omitted.]

  	
  36

  
	
   

  	
  Section 25.22.

  	
  Lessor Exculpation

  	
  36

  
	
   

  	
  Section 25.23.

  	
  Remedies Cumulative

  	
  36

  
	
   

  	
  Section 25.24.

  	
  Holding Over

  	
  36

  
	
   

  	
  Section 25.25.

  	
  Survival

  	
  37

  
	
   

  	
  Section 25.26.

  	
  [Intentionally Omitted.]

  	
  37

  
	
   

  	
  Section 25.27.

  	
  Relationship of Lease
  and Mortgage

  	
  37

  
	
   

  	
  Section 25.28.

  	
  Lessor Representations

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Appendix A

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Schedule 3.1

  	
  Base Rent

  	
   

  
	
   

  	
  Schedule 8.2

  	
  Lessee Capital Repair
  Items

  	
   

  
	
   

  	
  Schedule 9.1

  	
  Insurance Requirements

  	
   

  
					



 





















 


This LEASE AGREEMENT (this “Lease”) is made
and entered into as of November   , 2005, by and between MB
Hoffman Estates, L.L.C., a Delaware limited liability company, as Lessor (“Lessor”), having its principal place of business at 2901
Butterfield Road, Oak Brook, Illinois, 60523, and SBC Services, Inc., a
Delaware corporation as Lessee (“Lessee”),
having a place of business at 225 W. Randolph St. Z2, Rm 13A,
Chicago, IL 60606.


 


RECITALS


 


Pursuant to that certain Real Estate Sale Contract dated as of November 1,
2005 (the “Purchase Contract”), among
Ameritech Center Phase I, Inc., a Delaware corporation, and Ameritech
Properties Corporation, a Delaware corporation, as seller, and Lessor, as
purchaser, seller has agreed to sell and Lessor has agreed to purchase certain
real property, together with certain improvements thereon and fixtures attached
thereto, commonly referred to as SBC Center located in Hoffman Estates,
Illinois (as more specifically defined in the Definitions set forth in Appendix
A as the “Property”);


 


Lessor desires to lease to Lessee and Lessee desires to lease from
Lessor the Property, upon the terms and conditions set forth in; and


 


In connection therewith, Lessor desires to grant and delegate to
Lessee, and Lessee desires to accept and assume from Lessor, certain rights and
duties as described in this Lease.


 


NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows.


 


TERMS


 


ARTICLE 1. 


DEFINITIONS


 


Section 1.1.                                   Definitions.  All capitalized terms used but not otherwise defined herein shall have
the meanings set forth in Appendix A attached hereto and made a part hereof.


 


ARTICLE 2. 


LEASE OF PROPERTY


 


Section 2.1.                                   Demise and Lease.  (a) Lessor hereby demises and leases the Property to Lessee, and
Lessee does hereby rent and lease the Property from Lessor, for the Base Term
and, subject to the exercise by Lessee of its renewal options as provided in Article 5
hereof, for the Renewal Terms.


 


(b)                                 Lessee may from time to time own or hold
under lease or license from Persons other than Lessor furniture, equipment and
personal property, including Lessee’s Equipment and Personalty, located on or
about the Property, which shall not be subject to this Lease. Lessor shall from
time to time, upon the reasonable request of Lessee, promptly acknowledge in
writing to Lessee or other Persons that Lessor does not own or, except as
provided in Article 10, have any other right or interest in or to such
furniture, equipment and personal property, including


 





















 


Lessee’s
Equipment and Personalty, whether now owned or hereafter acquired, and Lessor
hereby waives any such right, title or interest.


 


ARTICLE 3.


RENT


 


Section 3.1.                                   Base Rent.  Lessee shall pay to Lessor Base Rent on each Rent Payment Date (a) during
the Base Term in the amount set forth on Schedule 3.1 attached hereto and
incorporated herein and (b) during any Renewal Term in the amounts
prescribed by Article 5. Each installment of Base Rent is payable monthly
in advance.


 


Section 3.2.                                   Supplemental Rent.  Lessee shall pay to Lessor, or to such other Person as shall be
entitled thereto in the manner contemplated herein or as otherwise required by
Lessor, any and all Supplemental Rent as the same shall become due and payable.
In the event of Lessee’s failure to pay when due and payable any Supplemental
Rent, Lessor shall have all rights, powers and remedies provided for herein.


 


Section 3.3.                                   Method of Payment.  All Base Rent shall be paid to Lessor, or if Lessor directs (on at
least twenty (20) Business Days’ prior notice) to Lender, in either case to the
Rent Collection Account, or such other account or accounts in the continental
United States as Lessor or Lender may from time to time designate (on at least
twenty (20) Business Days’ prior written notice) to Lessee. Upon Lessor’s
payment in full of all amounts due to Lender, as reasonably evidenced to
Lessee, which evidence must include a written statement to that effect from
Lender, evidence of release or assignment of the Lien of the Mortgage or other
similar evidence, Lessee shall accept instructions from Lessor (or its new
lender, if so instructed by Lessor) as to the payment of Base Rent. Lessee
shall make each payment of Base Rent by wire or other transfer of immediately
available funds consisting of lawful currency of the United States of America
no later than 3:00 PM (Chicago time) at the place of receipt on the applicable
Rent Payment Date.


 


Section 3.4.                                   Late Payment.  If, during any Lease Year, Lessee shall make one (1) payment of
Base Rent more than five (5) days after such payment is due under Section 3.3,
Lessor shall notify Lessee in writing that one (1) such payment has been
late and, if Lessee shall at any time thereafter during such Lease Year make
any other payment of Base Rent more than five (5) days after such payment
is due, then Lessee shall pay interest on such late payments from the due date
of such payments to the date of receipt of such payments by Lessor at a rate
per annum equal to the Default Rate, provided that if Lessor shall fail to
notify Lessee of any such late payment within three (3) months after the
due date thereof, Lessee shall not be obligated to pay interest on such late
payment.


 


Section 3.5.                                   No Setoff.  It is agreed and intended that, except as otherwise specifically
provided in this Lease, Base Rent, Supplemental Rent and any other amounts
payable hereunder by Lessee shall be paid without notice, demand, counterclaim,
setoff, deduction or defense and without abatement, diminution or reduction.


 


Section 3.6.                                   True Lease.  It is the intent of Lessor and Lessee and the parties agree that this
Lease is a true lease and that this Lease does not represent a financing
agreement. Each party shall reflect the transaction represented hereby in all
applicable books, records and reports


 


2





















 


(including
income tax filings) in a manner consistent with “true lease” treatment rather
than “financing” treatment.


 


ARTICLE 4. 


RIGHT OF FIRST REFUSAL


 


Section 4.1.                                   Right of Refusal.  (a) Subject to Sections 4.2(a) and 4.3(d), after the third
anniversary of the date of this Lease and provided that no Lease Event of
Default has occurred and is continuing, Lessee shall have a right of first
refusal as described in this Article 4 with respect to (i) any sale
of the Property or (ii) any sale or sales that would in the aggregate
result in the Equity Investor or its Affiliates ceasing to own, directly or
indirectly, at least a majority interest in Lessor and in the profits and
losses of Lessor. If Lessor or any party that owns an interest, directly or
indirectly, in Lessor (the “Offeror”),
receives an offer for the Property or any of the above described interests from
any party (other than an Affiliate of such Offeror), which offer the Offeror
wishes to accept or has accepted subject to Lessee’s rights in this Article 4,
the Offeror shall deliver to Lessee a notice (constituting an offer) stating
the sales price and all other material terms for the sale of the Property or
interest that Lessor would accept (which notice may be an executed purchase and
sale agreement with a prospective purchaser (which must be subject to the terms
of this Article 4)) (the “First Refusal Notice”).
Lessee shall have thirty (30) days from its receipt of the First Refusal Notice
to accept the offer set forth in the First Refusal Notice (the “Terms”). For purposes hereof, the thirty (30) day period is
referred to as the “Applicable Period”.
A First Refusal Notice may be accepted by Lessee or its designee. The Offeror
shall not be permitted to revoke the First Refusal Notice during the Applicable
Period, but the First Refusal Notice shall be deemed to be revoked during the
Applicable Period if Offeror and Lessee or its designee enter into a purchase
agreement on terms different than the Terms. The Terms may be rejected by
Lessee at any time.


 


(b)                                 If Lessee desires to accept the Terms for the
Property or the offered interests, Lessee must accept the Terms within the
Applicable Period and must enter into a purchase agreement with the Offeror for
the purchase and sale of the Property or offered interests in substantially the
same form as executed between the Offeror and the prospective purchaser, but without
any inspection period, by the later of (x) the expiration of the Applicable
Period or (y) thirty (30) days after Lessee has irrevocably accepted the Terms.
The purchase agreement for the sale of the Property or offered interests shall
provide for a closing on the terms set forth in the Terms.  Lessor (on behalf of the Offeror) and Lessee
agree to negotiate any purchase agreement in good faith, subject to Section 4.3.  Lessee shall not have the right to accept the
Terms during the continuance of any Lease Event of Default.


 


(c)                                  If Lessee (or its designee) rejects the
Terms, the Offeror shall either (i) execute a purchase agreement on the
Terms and close (absent a default by the buyer) or (ii) if the Terms were
contained in an executed agreement with a buyer, close on the Terms therein
(absent a default by the buyer), in each case within 120 days from (y) the
expiration of the Applicable Period or (z) the date Lessee rejects the Terms,
whichever is earlier.  This Lease and
Lessee’s rights hereunder shall survive any sale or transfer described herein.
If the closing does not occur within such period, the Offeror shall be required
to repeat the procedure set forth in Section 4.1(a) if it still
wishes to sell the Property or offered interests.


 


3





















 


Section 4.2.                                   Non-Applicability of Section 4.1.
 (a) Section 4.1 shall not apply to a conveyance or assignment
to an Affiliate of Lessor, to Lender or an Affiliate of or successor to Lender,
to the purchaser at a foreclosure sale in connection with the foreclosure, or
to Lender or any Affiliate or designee in connection with a deed in lieu of
foreclosure of the Mortgage. Lessee’s rights hereunder shall survive any sale
or transfer described above.


 


(b)                                 Any purchase of the Property under this Article 4
will be subject to this Lease and the Mortgage, unless the indebtedness secured
by the Mortgage is repaid in full. If Lessee or its Affiliate is the purchaser
of the Property there shall be no merger of the fee and the leasehold.


 


Section 4.3.                                   Miscellaneous.  (a) Lessee’s failure to elect to purchase the Property shall not
constitute a waiver on the part of Lessee of its rights under this Article 4
with respect to any other proposed sale, assignment, transfer, conveyance or
other disposition; provided, however, that a transfer of the Property pursuant
to a deed in lieu of foreclosure or by foreclosure shall result in all of
Lessee’s rights under this Article 4 being extinguished.


 


(b)                                 The First Refusal Notice and the Terms may
cover only the Property and not any other property owned by Lessor or an
affiliate of Lessor.


 


(c)                                  The First Refusal Notice and the Terms must
cover the entire Property.  Lessor may
not sell, or offer to sell, or transfer, or offer to transfer, any interest,
the result of which would be a sale or transfer of less than the entirety of
the Property.


 


(d)                                 The Equity Investor may not transfer or
assign its interest in Lessor (other than in connection with a corporate
transaction involving the transfer of all or substantially all of the assets of
the Equity Investor at a time when such assets include significant assets other
than the Equity Investor’s interest in Lessor) unless it first complies with
the provisions of Section 4.1 and (i) neither the transferee nor any
Affiliate thereof is a Significant Competitor, directly or indirectly, of
Lessee or any Affiliate thereof (provided that this clause (i) shall not
apply if Lessor shall have properly declared a monetary Lease Event of Default
or if a non-monetary Lease Event of Default shall have occurred and be
continuing, or during the period after an Intent to Renew Date if Lessee has
not elected to renew this Lease by such Intent to Renew Date pursuant to Section 5.1),
(ii) the transferee assumes, with proper documentation reasonably acceptable to
Lessee, the obligations of the Equity Investor under this Lease and (iii) such
transfer or assignment shall not result in a violation of Applicable Laws,
including the Securities Act of 1933, as amended, any other applicable
securities law or ERISA or accounting requirements for treatment of this Lease
by Lessee as an operating lease. Notwithstanding, the foregoing, but provided
that such transfer or assignment does not result in a violation of Applicable
Laws, including the Securities Act of 1933, as amended, any other applicable securities
law or ERISA or accounting requirements for treatment of this Lease by Lessee
as an operating lease, the Equity Investor may transfer its interest in whole
or part to any of its Affiliates or investors at any time.


 


4





















 


ARTICLE 5. 


RENEWAL OPTIONS


 


Section 5.1.                                   Renewal Options.  (a) Lessor hereby grants to Lessee the option to extend the term
of this Lease for the following periods (each, a “Renewal Term”):


 


(i)                                     for three (3) consecutive Renewal Terms
of five (5) years each, the initial Renewal Term commencing on the date
that is the day after the expiration of the Base Term and ending on the fifth
(5th) anniversary of the expiration of the Base Term (the “First
Renewal Term”); the
second Renewal Term (the “Second Renewal Term”) commencing on
the day that is the day after the expiration of the First Renewal Term and
ending on the fifth (5th) anniversary thereof; and the third Renewal Term (the “Third
Renewal Term”) commencing on the day that is the day after
the expiration of the Second Renewal Term and ending on the fifth (5th)
anniversary thereof (the First Renewal Term, the Second Renewal Term and the
Third Renewal Term, collectively, the “Initial Renewal Terms”); and


 


(ii)                                  for three (3) consecutive terms of five (5) years
each (each, an “Additional Renewal Term”), with each such Additional Renewal
Term commencing on the date that is the day after the expiration of the
preceding Renewal Term.


 


(b)                                  In order to exercise its option to extend
this Lease for any Renewal Term, the following procedure shall be followed:


 


(i)                                     Lessee shall give Lessor written notice (a “Notice to
Renew”) of its intent to exercise its option to extend the
term of this Lease not less than twelve (12) months prior to the expiration of
the Base Term or the First Renewal Term, the Second Renewal Term or the Third
Renewal Term, as applicable, with respect to the Initial Renewal Terms, and not
less than sixteen (16) months prior to the expiration of the then current
Renewal Term for any Additional Renewal Term (each, an “Intent to Renew Date”). If Lessee fails to provide a Notice
to Renew for any Renewal Term by the due date therefor, Lessor shall so notify
Lessee in writing that such Intent to Renew Date has passed, and Lessee shall
have an additional thirty (30) days after receipt of such notice to exercise
its option to extend the Lease Term for the applicable Renewal Term.


 


(ii)                                  Subject to paragraph (c) below, the
monthly Base Rent payable for each Initial Renewal Term shall be as set forth
on Schedule 3.1.


 


(iii)                               The monthly Base Rent payable for each Additional Renewal Term shall be
equal to 95% of the Fair Market Rent, anticipated to be in effect as of the
commencement date of the applicable Renewal Term. Upon receipt of Lessee’s
notice of its intent to renew this Lease for any Additional Renewal Term,
Lessor and Lessee shall promptly (but no earlier than 16 months prior to
commencement of the applicable Renewal Term) commence good faith negotiations
to agree upon the Fair Market Rent. If the parties cannot agree on the Fair
Market Rent within thirty (30) days after Lessor has received Lessee’s notice
to renew, the Fair Market Rent shall be determined by the Appraisal Procedure
not later than 13 months prior to the expiration of the then current


 


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Lease Term. Within thirty (30) Business Days after the determination of
the Fair Market Rent and the Base Rent for the applicable Renewal Term, Lessee
must irrevocably exercise its right to extend the Lease Term. If Lessee fails
to do so it will be deemed to have waived its right to renew, and the Lease
Term shall expire at the expiration of the then current Renewal Term.


 


(c)                                  In addition to the foregoing, Lessee shall
have the option to extend the term of this Lease on any Intent to Renew Date
for the SBC Building or the Lakewood Building, (in either case either with or
without the Eagle Way Building) together with the associated parking with
respect thereto (a “Partial Renewal”).
In the event Lessee desires to exercise its right to a Partial Renewal, Lessee
shall, in its Notice to Renew, identify the Buildings and associated parking
with respect to which it is exercising its right to renew. In the event of a
Partial Renewal as to the SBC Building (whether with or without the Eagle Way
Building), the monthly Base Rent payable for the applicable Renewal Term shall
equal the monthly Base Rent that would have been payable for the applicable
Renewal Term multiplied by a fraction, the numerator of which is the actual
square feet of floor area of the Building or Buildings as to which this Lease
is renewed and the denominator of which is the actual square feet of floor area
of all the Buildings; and, in the event of a Partial Renewal only as to the
Lakewood Building (whether with or without the Eagle Way Building), the monthly
Base Rent payable for the applicable Renewal Term shall equal the monthly Base
Rent that would have been payable for the applicable Renewal Term multiplied by
twenty percent (20%).


 


(d)                                 The right of Lessee to extend the term of
this Lease for any Renewal Term is contingent upon there not being any Lease
Event of Default in existence on the date of Lessee’s exercise of such right or
on the date that the Renewal Term commences.


 


Section 5.2.            Lease Provisions Applicable During Renewal.  All the provisions of this Lease
shall be applicable during each Renewal Term (provided that, in the case of a
Partial Renewal, the provisions of this Lease shall only apply to the extent
applicable to the Building or Buildings and related areas as to which this
Lease was renewed), and the number of Renewal Terms shall be correspondingly
reduced.


 


ARTICLE 6.


LESSEE’S ACCEPTANCE OF PROPERTY, ENFORCEMENT
OF WARRANTIES


 


Section 6.1.                                   Waivers.  The Property is demised and let by Lessor “AS IS” in its present
condition, subject to (a) the rights of any parties in possession thereof,
including existing tenants (other than rights, if any, granted by Lessor), (b) the
state of the title thereto existing at the time of the commencement of the
Lease Term (other than defects in, or exceptions to, title, if any, created by
Lessor, but including liens created by the Mortgage and related debt documents
and the Declaration), (c) any state of facts which an accurate survey or
physical inspection might show, (d) all Applicable Laws, (e) any
violations of Applicable Laws which may exist at the commencement of the Lease
Term and (f) the presence of any Hazardous Materials at or under the
Property or at or under any property in the vicinity of the Property. NONE OF
LESSOR, LENDER OR ANY AFFILIATE THEREOF HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO
HAVE ANY LIABILITY WHATSOEVER AS TO THE VALUE.


 


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HABITABILITY,
COMPLIANCE WITH ANY PLANS AND SPECIFICATIONS, CONDITION, DESIGN, OPERATION,
LOCATION, USE, DURABILITY, MERCHANTABILITY, CONDITION OF TITLE, OR FITNESS FOR
USE OF THE PROPERTY (OR ANY PART THEREOF) FOR ANY PARTICULAR PURPOSE, OR
ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY (OR ANY PART THEREOF) AND NONE OF LESSOR, ANY
AFFILIATE THEREOF OR LENDER OR ANY DESIGNEE THEREOF SHALL BE LIABLE FOR ANY
LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR FOR THE FAILURE OF THE PROPERTY TO
BE CONSTRUCTED IN ACCORDANCE WITH ANY PLANS AND SPECIFICATIONS THEREFOR, FOR THE
COMPLIANCE OF THE PLANS AND SPECIFICATIONS FOR THE PROPERTY WITH APPLICABLE
LAWS OR FOR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO OTHERWISE
COMPLY WITH ANY APPLICABLE LAWS. It is agreed that Lessee or an Affiliate of
Lessee has occupied the Property as tenant or owner immediately prior to
entering into this Lease, has inspected the Property, is satisfied with the
results of its inspections of the Property and is entering into this Lease
solely on the basis of the results of its own inspections and all risks
incident to the matters discussed in the preceding sentence. The provisions of
this Article 6 have been negotiated, and the foregoing provisions are
intended to be a complete exclusion and negation of any representations or
warranties by Lessor, any Affiliate thereof or Lender, express or implied, with
respect to the Property, that may arise pursuant to any law now or hereafter in
effect, or otherwise, and specifically negating any warranties under the
Uniform Commercial Code, as in effect in the State of Illinois.


 


Section 6.2.                                   Assignment of Warranties.  (a) Lessor hereby assigns and sets over to Lessee, and Lessee
hereby accepts the assignment of, all of Lessor’s right, title, interest and
estate in, to and under any and all warranties and other claims against
dealers, manufacturers, vendors, contractors and subcontractors relating to the
construction, use and maintenance of the Property or any portion thereof now
existing or hereafter acquired (excluding from such assignment any such warranties
and claims which by their terms are not assignable by Lessor without loss of
some or all of the benefits of such warranties or claims); provided, however,
that Lessor shall have no obligations under, or liabilities with respect to,
any such warranties and claims.


 


(b)                                 Lessor authorizes Lessee (directly or through
agents) at Lessee’s expense to assert during the Lease Term, all of Lessor’s
rights (if any) under any applicable warranty and any other claim that Lessee
or Lessor may have against any dealer, vendor, manufacturer, contractor or
subcontractor with respect to the Property or any portion thereof.


 


(c)                                  Lessor agrees, at Lessee’s expense, to
cooperate with Lessee and take all other action necessary as specifically
requested by Lessee to enable Lessee to enforce all of Lessee’s rights (if any)
under this Section 6.2, such rights of enforcement to be exclusive to
Lessee, and Lessor will not, during the Lease Term, amend, modify or waive, or
take any action under, any applicable warranty or other claim that Lessee may
have under this Section 6.2 without Lessee’s prior written consent.


 


Section 6.3.                                   Assignment of Existing
Leases.  Provided that no Lease Event of Default shall
have occurred and be continuing, Lessor hereby assigns and sets over to Lessee,
and Lessee


 


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hereby
accepts the assignment of, all of Lessor’s rights to collect rents and to
otherwise enforce and all of Lessor’s obligations under all existing leases for
space on the Property. Lessor authorizes Lessee to assign to one or more
Affiliates the rights and obligations hereby assigned to Lessee under this Section 6.3
and authorizes Lessee or such assignee(s) (directly or through agents), at
Lessee’s or such assignee’s expense, to assert during the Lease Term all of
Lessor’s rights (if any) under any of such leases, and Lessor shall, at Lessee’s
or such assignee’s expense, cooperate with Lessee or such assignee and take all
other action reasonably necessary as specifically requested by Lessee or such
assignee to enable Lessee or such assignee to enforce all of Lessor’s rights
under such leases.


 


ARTICLE 7.


LIENS


 


Section 7.1.                                   Liens.  Lessee shall not directly or indirectly create, incur, assume or suffer
to exist any Lien (other than Permitted Liens) on or with respect to (a) all
or any part of the Property, title thereto or any interest therein; (b) this
Lease or the leasehold interest created hereby; (c) the Rent, title
thereto or interest therein; or (d) the rentals payable with respect to
the subletting of the Property. Lessee shall promptly, but not later than sixty
(60) days after receipt of notice of the filing thereof, at its own expense,
take such action as may be necessary duly to discharge or eliminate or bond in
a manner reasonably satisfactory to Lessor any such Lien (other than Permitted
Liens); provided, however, that Lessee may contest any such Lien in good faith,
upon satisfaction of the conditions contained in Section 8.6(c) (excluding
clause (vii) thereof) with respect to Lessee’s right to contest
Impositions. During the course of any such contest, Lessee need not discharge
or bond such Lien provided that no action to foreclose the Lien has been
brought in any judicial or quasi-judicial action and no Lease Event of Default
is then continuing.


 


NOTHING CONTAINED IN THIS LEASE SHALL BE CONSTRUED AS CONSTITUTING THE
CONSENT OR REQUEST OF LESSOR, EXPRESS OR IMPLIED, TO OR FOR THE PERFORMANCE BY
ANY CONTRACTOR, LABORER, MATERIALMAN, OR VENDOR OF ANY LABOR OR SERVICES OR FOR
THE FURNISHING OF ANY MATERIALS FOR ANY CONSTRUCTION, ALTERATION, ADDITION,
REPAIR OR DEMOLITION OF OR TO THE PROPERTY OR ANY PART THEREOF, WHICH
WOULD RESULT IN ANY LIABILITY OF LESSOR FOR PAYMENT THEREFOR. NOTICE IS HEREBY
GIVEN THAT LESSOR WILL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING AN INTEREST IN THE
PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO
MECHANICS OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH
TO OR AFFECT THE INTEREST OF LESSOR IN AND TO THE PROPERTY.


 


Notwithstanding the foregoing paragraph, Lessor agrees to reasonably
cooperate with Lessee (without exposing its interest in the Property), at no
cost to Lessor, to allow Lessee to perform alterations on the Property in
accordance with Section 8.4.


 


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ARTICLE 8.


USE; MAINTENANCE AND CAPITAL REPAIR;
ALTERATIONS; COMPLIANCE WITH 

LAWS; IMPOSITIONS AND OTHER CHARGES; LITIGATION


 


Section 8.1.                                   Use.  The
Property may be used (“Permitted Use”)
for any lawful purpose, other than (a) any use that would constitute a
public nuisance or that would materially increase the risk of Lessor incurring
liability under any Environmental Law, (b) any use that would make it
impossible to obtain or would invalidate any insurance policy with respect to
the Property that is required to be maintained hereunder, (c) any use that
would involve the mining for or removal of any oil, gas or minerals on the
Property or (d) any use that involves the storage, handling or processing
of Hazardous Materials in violation of Applicable Law.


 


Section 8.2.                                   Maintenance.  (a) Except
for Lessor Capital Repair Items as defined in Section 8.2(c), Lessee shall
make and perform all day-to-day maintenance and repairs at the Property
(including the Improvements). Such day-to-day maintenance and repair shall
include by way of illustration and not limitation maintenance and repair of
maintenance of the HVAC and mechanical systems of the Improvements, the
retention pond, private roads, surface and deck parking lots, driveways and
walkways and landscaping, as well as performing necessary snow removal and
garbage collection. Lessee shall make all such repairs to the Property
(including the Improvements) and shall keep the Property clean, neat, safe,
sanitary, and in good order, repair and condition, including both the inside
and the outside, and any equipment, facilities and fixtures owned by Lessor or
Lessee therein, in all cases ordinary wear and tear excepted. Any service
contracts entered into by Lessee with respect to Lessee’s maintenance
obligations under this Section 8.2(a) shall be at Lessee’s sole cost.


 


Lessee shall also comply with an asbestos operations and maintenance
plan adopted by Lessor as required by Lender with respect to certain asbestos
issues on the Property identified in the Environmental Report prepared by
Marlin Environmental, Inc. dated September 20, 2005 and referred to
as Marlin Project #669, provided that such plan is provided to Lessee and
reasonably acceptable to Lessee.


 


(b)                                 Lessor and Lessee anticipate that the items
identified on Schedule 8.2 (the “Lessee Capital Repair
Items”) may need repair and/or replacement during the Base Term, and
Lessee shall repair and/or replace, as the case may be, such Lessee Capital
Repair Items during the Lease Term (with the expectation that Lessee shall use
commercially reasonable efforts to cause such items to be completed during the
Base Term), provided that Lessee shall not be obligated to expend more than
seven million dollars ($7,000.000) in the aggregate for the repair and/or
replacement of all Lessee Capital Repair Items (including without limitation
amounts heretofore incurred or expended for any Lessee Capital Repair Item)
(the “Cost Limit”). Lessee has commenced and
shall complete the repair or replacement of the Lessee Capital Repair Items
identified with an asterisk on such Schedule. Lessee shall accomplish such
other repairs and replacements of Lessee Capital Repair Items at such times and
in such manner as Lessee determines are reasonable and prudent under the
circumstances and taking into consideration the impact or potential
interference with Lessee’s business, provided that Lessee shall cause such
repairs and replacements to be done in a good and worker-like manner and in
compliance with all Applicable Laws (subject to Lessee’s right to contest the
applicability of any law or regulation).


 


9





















 


Lessee shall from time to time notify Lessor of the Lessee Capital
Repair Items that have been repaired or replaced and the cost thereof. In the
event that any repair or replacement required to be performed and paid for by
Lessee under this Section 8.2(b) shall not be completed prior to the
end of the Term, Lessee shall assign to Lessor all contracts with respect
thereto, and from time to time, Lessor shall submit accurate invoices
(including reasonable supporting documentation) to Lessee showing the amounts
expended by Lessor under such contracts, and Lessee shall reimburse or pay to
Lessor such amount within ten (10) Business Days thereof, provided that in
no event shall Lessee be obligated to pay more than the Cost Limit in the
aggregate. If Lessee does not reimburse or pay Lessor within such ten (10) Business
Day period, then such amount will bear interest from the end of such ten (10) Business
Day period to the date so reimbursed or paid to Lessor at the Prime Rate.


 


In the event the aggregate cost of all work heretofore or hereafter
performed or caused to be performed by Lessee with respect to the Lessee
Capital Repair Items exceeds the Cost Limit (the amount of such excess from
time to time, the “Excess”), from
time to time Lessee shall submit accurate invoices (including reasonable
supporting documentation) to Lessor showing the amounts expended or to be
expended by Lessee, and Lessor shall reimburse or pay to Lessee for the Excess
within ten (10) Business Days thereof. If Lessor does not reimburse or pay
to Lessee within such ten (10) Business Day period, then Lessee upon
notice to Lessor may from time to time set-off the amount owed by Lessor
(together with interest at the Prime Rate on the amount not reimbursed from
time to time, after giving effect to any set-off) against installments of Base Rent.


 


(c)                                  In addition to the Lessor’s obligation to
reimburse or pay Excess amounts pursuant to Section 8.2(b) above,
Lessor shall be responsible, at its cost, for any repair or replacement (of the
whole or any major part) of any item of a capital nature a (“Capital Repair”) not identified on Schedule 8.2 (the “Lessor Capital Repair Items”), including without limitation
the roofs (except to the extent included in the roof repairs currently being
undertaken and identified on Schedule 8.2), foundations and footings of
the Improvements. Lessee shall give Lessor written notice of any Lessor Capital
Repair Item that Lessee has identified as needing repair or replacement
(whether expected or unexpected), and Lessor shall promptly commence the repair
or replacement thereof. Lessee shall allow Lessor and its representatives and
agents reasonable access (subject to the limitations with respect to access by
an Inspecting Party set forth in Section 15.1) to the Property to enable
Lessor to evaluate the need for the repair or replacement identified by Lessee.
If Lessor does not agree that any such Lessor Capital Repair Item is in need of
repair or replacement or that such item is not a Capital Repair, then Lessor
shall so notify Lessee in writing within ten (10) days of Lessor’s receipt
of Lessee’s notice, including the reasons therefor. If Lessee and Lessor cannot
reach agreement as to the repair or replacement of the Lessor Capital Repair
Item in question or as to the nature of the repair (i.e. whether the repair of
replacement constitutes a Capital Repair or an ordinary repair or maintenance),
the parties shall submit the issue to Arbitration. The arbitrator shall
determine whether a reasonable and prudent owner of a building comparable to
the Improvements would make such repair or replacement and whether the repair
of replacement constitutes a Capital Repair or an ordinary repair or
maintenance. If it is determined that a reasonable and prudent owner of a
building comparable to the Improvements would make such repair or replacement
and the repair or replacement constitutes a Capital Repair, then Lessor shall,
at its expense, cause such Capital Repair to be done. In the event Lessor does
not make such Capital Repair, Lessee


 


10





















 


may
do so, in which event Lessor shall reimburse Lessee for the cost thereof within
ten (10) Business Days of Lessor’s receipt of an invoice therefor,
together with reasonable back-up documentation, from Lessee. In the event that
Lessor does not so reimburse Lessee, Lessee may from time to time set-off the
amount owed by Lessor (together with interest on the unpaid amount from time to
time outstanding at the Prime Rate, after giving effect to any set-off) against
installments of Base Rent.


 


(d)                                 The provisions of this Section 8.2 shall
not apply in the case of Casualty to or Condemnation of the Property, in which
case the obligations of the parties shall be as provided in Article 12.


 


Section 8.3.  Declaration and Other Real Estate Documents.(1)  (a) Under the
Purchase Contract, Lessor and Lessee contemplate entering into and recording
the Declaration, and Lessor and Lessee may jointly from time to time thereafter
determine that it is necessary or desirable to enter into and record other
agreements with respect to the operation and management of or otherwise
benefiting the Property (each of the Declaration and any such other agreement
approved by Lessor and Lessee, a “Real Estate Document”
and, collectively, the “Real Estate Documents”).


 


(b)                                 Lessee agrees that during the Lease Term,
Lessee shall perform any obligations of Lessor under any Real Estate Document
(including, without limitation, Lessor’s obligation to maintain the landscaping
on the median strip of Lakewood Boulevard and to indemnify the Village, all as
provided in that certain Landscape Easement and Maintenance Agreement dated December 6,
1989  between the Village of Hoffman
Estates and Ameritech Properties Corporation), provided that, except for the
maintenance of the landscaping on the median strip of Lakewood Boulevard, which
Lessee shall perform on behalf of Lessor, Lessee shall only be required to
perform any obligations under any Real Estate Document to the extent that
Lessee is required to perform such obligations under this Lease.


 


(c)                                  Lessor agrees that Lessee may exercise from
time to time the rights of Lessor as owner of the Property under any Real
Estate Document, including without limitation the right to collect and retain
for Lessee’s own account from any other party under any such Real Estate Document,
or its tenant or other occupant of any property subject to such Real Estate
Document, any amounts due for their share of any costs and expenses related to
any obligation of Lessor under any Real Estate Document which is undertaken by Lessee
under paragraph (b) above. The rights of Lessee under this paragraph (c) shall
survive expiration or termination of this Lease as to both payment obligations
and the rights of reimbursement for all or portions of amounts accrued or
incurred by Lessee prior thereto and (in the case of indemnities and other
rights) as to rights accrued as of the date of expiration or termination of
this Lease.


 


(d)                                 Notwithstanding the foregoing, in exercising
the rights of Lessor and performing the obligations of Lessor under any Real
Estate Document, (i) Lessee shall not take any action which could result
in either a violation of this Lease or have a material adverse effect on the Property,
except to the extent required by any Real Estate Document, (ii) Lessee
shall not encumber the Property by any lien for the payment of money which
could survive expiration of


 










(1)                                  Subject to review upon completion of Declaration.


 


11





















 


this
Lease, subject to Lessee’s right to contest any such purported lien in
accordance with the provisions of Section 7.1, (iii) Lessee shall not
execute documents on behalf of Lessor (provided, however, that if Lessee
tenders to Lessor any document required by any Real Estate Document or
necessary or appropriate for Lessee to perform any obligation under any Real
Estate Document, Lessor shall promptly execute and deliver such document in
form and substance reasonably acceptable to Lessor and Lessee, and in the event
of Lessor’s failure to do so, Lessee shall not be responsible for such failure
and shall have no obligation to indemnify Lessor in respect thereof), and (iv) Lessee
shall not consent to any action by any Affiliate of Lessee otherwise restricted
by any Real Estate Document or waive any restriction applicable to any
Affiliate of Lessee in any Real Estate Document on behalf of Lessor.


 


Section 8.4.                                   Alterations.  (a) At
any time and from time to time, Lessee, at its sole cost and expense, may make (1) non-structural
Alterations to the Properly; (2) structural Alterations to the Property
costing, for each scope of work, as reasonably determined by Lessee, less than
the Threshold Amount with prior notice to Lessor and Lender; and (3) structural
Alterations costing, for each scope of work, as reasonably determined by
Lessee, at or above the Threshold Amount after giving prior written notice to
Lessor and Lender and obtaining Lessor’s and Lender’s prior written consent,
which shall not be unreasonably withheld, conditioned or delayed; provided that
no Alteration (whether consent is necessary or not) shall (i) impair in
any material respect the utility, remaining useful life or fair market value of
the Property, in each case assuming that the Improvements are then being
operated and maintained in accordance with this Article 8; (ii) create
a violation of this Lease: (iii) increase in any material respect the risk
of liability to Lessor, including any material risk of liability under any
Environmental Laws; (iv) materially and permanently reduce the rentable square
footage (as calculated in accordance with the methods of measuring rentable
area as described in the Standard Method for Measuring Floor Area in Office
Buildings, ANSI 765.1-1996, as promulgated by the Building Owners and Managers
Association International) of the Improvements; (v) materially weaken,
temporarily (other than during construction or repair of the structure) or
permanently, the structure of the Improvements or any part thereof; or (vi) reduce
the permitted uses of the Improvements under applicable zoning or land use laws
so as to reduce the fair market value of the Property. Notwithstanding the
requirements for notice and consent set forth above, Lessee may, in good faith,
make any repairs (structural or non-structural) required by virtue of an
emergency without satisfying any otherwise applicable notice and/or consent
requirement, provided Lessee notifies Lessor of such repair (to the extent
otherwise required) as promptly as is reasonably practical after the emergency.


 


(b)                                 Every Alteration shall comply with the
following terms (which compliance shall be at Lessee’s sole cost and expense): (i) except
(unless required by Applicable Law) for Alterations costing less than the
Threshold Amount for each scope of work, as reasonably determined by Lessee,
the Alteration shall be made (x) in accordance with plans and specifications
(copies of which shall be delivered to Lessor and Lender prior to construction)
prepared by a certified architect or civil engineer who shall be licensed in
the appropriate jurisdiction to the extent required for the filing of any plans
in connection with such Alteration (which architect may be an employee of
Lessee or its Affiliates) and (y) under the supervision of such architect or
engineer or other reasonably capable person; (ii) the structural integrity
of the existing Improvements shall not be impaired upon completion of such
work; (iii) Lessee shall obtain any licenses, approvals or permits
required (including final approvals), copies of which


 


12





















 


shall
be delivered to Lessor and the Lender upon written request by such party; and (iv) such
Alterations shall not encroach upon any adjacent premises. Lessor agrees to
cooperate with Lessee (at no cost to Lessor) in signing permit applications and
similar documents to the extent required for any Alteration. Lessee shall
submit such applications or similar documents to Lessor and Lender to the
extent Lessor’s and Lender’s approval is required for the subject Alteration.
Lessee may execute such applications or similar documents on behalf and (if
necessary) in the name of Lessor for all Alterations for which Lessor’s consent
is not required and for Alterations for which Lessor’s and Lender’s consent is
required and has been granted if Lessor has not executed such documents within
ten (10) days of Lessee’s request therefor. Lessee shall promptly furnish
Lessor with copies of all documents Lessee has signed on behalf of Lessor.
Nothing herein shall be deemed to impose any liability or responsibility on
Lessor for performance or payment of any Alteration. Lessee shall indemnify,
defend and hold harmless Lessor from and against any Claim asserted against or
costs incurred by Lessor arising out of the foregoing pursuant to the terms of Section 19.1.
In connection with any Alteration, Lessee shall perform and complete all work
promptly and in a good, worker-like manner in compliance with Applicable Laws
(subject to Lessee’s right to contest the applicability thereof) and the plans
and specifications submitted to Lessor and Lender, if applicable. Lessee shall
maintain or cause to be maintained at all times during construction builder’s
all risks insurance and comprehensive general liability insurance required
under this Lease naming Lessor and Lender as loss payees as their interests may
appear under such property insurance and as additional insureds under such
liability insurance. Lessee shall provide “as-built” plans to Lessor and Lender
for any structural Alteration for which Lessee has “as-built” plans prepared.
If Lessee does not have “as-built” plans prepared for any Alteration, Lessee
shall provide to Lessor and Lender copies of such plans, if any, submitted to
the Village in connection with Lessee’s application for any necessary permits.


 


(c)                                  With respect to such structural Alterations
for which Lessee must obtain the consent of Lessor and Lender pursuant to the
terms of this Lease, Lessor and Lender shall each have fifteen (15) Business
Days after Lessee’s delivery of its request for consent (WHICH CLEARLY SHALL
STATE IN BOLD-FACE TYPE THAT THE FAILURE TO RESPOND WITHIN FIFTEEN (15)
BUSINESS DAYS WILL RESULT IN DEEMED CONSENT UPON FAILURE TO RESPOND WITHIN FIVE
(5) BUSINESS DAYS AFTER A “FAILURE TO RESPOND” SECOND NOTICE), together with
preliminary drawings and specifications for such Alterations, within which
Lessor and Lender, as the case may be, may grant or not grant Lessee’s request
for consent. If Lessor or Lender, as the case may be, shall not have responded
to Lessee within such 15-Business Day period, Lessee may give a second notice
WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE FAILURE TO RESPOND WITHIN
FIVE (5) BUSINESS DAYS SHALL BE DEEMED CONSENT. If Lessor or Lender, as
the case may be, shall not, within five (5) Business Days after such
second notice, notify Lessee that such consent will not be granted, such
consent shall be deemed to have been granted. Whether or not the Alteration is
approved, all reasonable out-of-pocket costs of review incurred by Lessor
(including any such costs attributable to Lender) shall be paid by Lessee
within thirty (30) days of receipt of an invoice therefor. In the event Lessor
and Lessee cannot agree as to whether Lessor unreasonably withheld its consent
to a proposed Alteration, the parties shall submit such dispute to Arbitration.


 


13





















 


(d)                                 Lessor covenants and agrees that its debt
documents will contain provisions that require Lender to acknowledge and agree
to be bound by the provisions set forth in subsections (a), (b) and (c) of
this Section 8.4.


 


(e)                                  Title to Alterations shall without further
act vest in Lessor and shall be deemed to constitute a part of the Property and
be subject to this Lease if (i) such Alteration is in replacement of or in
substitution for a portion of the Improvements as of the date hereof, (ii) such
Alteration is required to be made pursuant to the terms of Section 8.2 or (iii) such
Alteration is Nonseverable. Lessor and Lender shall notify Lessee in their
consent to any Alteration as to whether such Alteration must be removed upon
termination of this Lease.  In the event
Lessor and Lender are deemed to have consented to any Alteration, Lessee shall
not be required to remove such Alteration.


 


(f)                                    If an Alteration is not within any of the
categories set forth in Section 8.4(e), then title to such Alteration
shall vest in Lessee and such Alteration shall be removed by Lessee to the extent
required under Article 10 hereof. 
All Alterations to which title shall vest in Lessee as aforesaid, and
all Lessee’s Equipment and Personalty, so long as removal thereof shall not
result in the violation of any Applicable Law or this Lease, may be removed at
any time by Lessee, provided that Lessee shall, at its expense, repair any damage
to the Property caused by the removal of any such Alteration.


 


Section 8.5.                                   Compliance with Law;
Environmental Compliance.  (a) Lessee, at Lessee’s expense, shall
comply, and shall use it best efforts to cause its subtenants and other users
of the Property to comply, in all Material respects at all times with all
Applicable Laws, including Environmental Laws.


 


(b)                                 Lessee shall notify Lessor and Lender
promptly if Lessee (i) becomes aware of the presence or Release of any
Hazardous Materials at, on, under, emanating from or migrating to the Property
which could reasonable be expected to violate in any material respect any
Environmental Law or give rise to any Material liability under any
Environmental Law, provided that Lessee shall not have any obligation to
investigate the Property for any such presence or Release of Hazardous
Materials and none of Lessee’s employees shall be deemed to have knowledge of
the Environmental Laws applicable to the Property or what would constitute a
violation thereof, or (ii) receives any written notice, claim, demand,
material request for information or other material communication from a
Governmental Authority regarding the presence or Release of any Hazardous
Material at, on, under, within, emanating from or migrating to the Property or
related to the Property which could reasonably be expected to violate in any
material respect any Environmental Law or give rise to any Material liability.


 


Section 8.6.                                   Payment of Impositions.  (a) Lessee
shall pay or cause to be paid all Impositions due and payable during the Lease
Term or payable as provided in Section 8.7, before any fine, penalty,
premium, further interest (except as provided in Section 8.6(b)) or cost
may be assessed or added for nonpayment, such payments to be made directly to
the taxing authorities where feasible. If requested, Lessee shall deliver to
Lessor and the Lender copies of receipts, canceled checks or other
documentation reasonably satisfactory to Lessor and Lender evidencing payment
of Impositions to the extent Lessee maintains such documentation as part of its


 


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customary
retention policy; provided, however, that Lessee shall maintain in its records
evidence of payment of real estate taxes for a period of no less than four (4) years.


 


(b)                                 If any such Imposition may, at the option of
the taxpayer, lawfully be paid in installments (regardless whether interest
shall accrue on the unpaid balance of such Imposition), Lessee may exercise the
option to pay the same in installments, and in such event Lessee shall pay only
those installments that become due and payable during the Lease Term or, as
provided in Section 8.7, relate to the Lease Term, as the same become due
and before any fine, penalty, premium, further interest or cost may be assessed
or added thereto. The foregoing provisions shall not be applicable to general
real estate taxes which are payable in two installments each year.


 


(c)                                  Notwithstanding the foregoing, Lessee shall
have the right to contest any Imposition, subject to the following: (i) such
contest shall be at Lessee’s sole cost and expense; (ii) such contest
shall be by appropriate legal proceedings conducted in good faith and with due diligence;
(iii) such contest will operate to suspend the collection of, or other
realization upon, such Imposition, from any Property or other interest of
Lessor or Lender, or from any Rent (and will not otherwise adversely affect
Lessee’s obligation to pay, and Lessor’s right to receive, Rent); (iv) such
contest will not otherwise adversely affect Lender’s lien on any Property or Lessor’s
right to any Property (for purposes hereof, “adversely affect” being deemed to
mean that such lien or Lessor’s right would be subject to reasonable likelihood
of extinguishment); (v) such contest will not materially and adversely
interfere with the possession, use or occupancy or sale of the Property; (vi) such
contest will not subject Lessor or Lender to any civil (other than for the
amounts being contested and related interest, penalties, costs and expenses) or
criminal liability; (vii) Lessee shall not postpone the payment of any
Imposition for such length of time as shall permit the Property to become
subject to a lien created by such item being contested that is prior
to the lien of the Mortgage (other than a lien for real property taxes which
are already a first lien); and (viii) no Lease Event of Default shall then
be existing.  Lessee shall pay any Imposition
(and related costs) promptly after forgoing any contest or after receipt of a
final non-appealable adverse judgment.


 


Section 8.7.                                   Adjustment of Impositions.  Impositions
with respect to the Property for a billing period during which Lessee’s
obligation to indemnify Lessor pursuant to this Lease expires or terminates as
to the Property shall be adjusted and prorated on a daily basis between Lessor
and Lessee, whether or not such Imposition is imposed before or after such
expiration or termination of this Lease, and Lessee’s and Lessor’s obligation
to pay its pro rata share thereof shall survive such expiration or termination
(to the extent, with respect to Lessor, it is obligated to reimburse Lessee for
Impositions paid by Lessee for periods after expiration of the Lease Term).
Lessee acknowledges that at closing under the Purchase Contract, no credit was
given to Lessor for accrued real estate taxes, in consideration for Lessee’s
agreement to pay accrued real estate taxes through the termination of the
Lease. Thus, in the year in which the Lease Term terminates, and promptly after
the final real estate tax bill for that tax year is received by Lessor. Lessor
will calculate Lessee’s obligation for real estate taxes through the
termination date and submit an invoice and a copy of the tax bill to Lessee.
Lessee will be obligated to pay to Lessor the amount so determined. Lessor
acknowledges that Lessee may bring any tax certiorari or other actions for
refunds of Impositions or adjustments of Impositions for which Lessee is liable
under this Lease or relating to periods prior to the commencement date of the
Lease Term and Lessee


 


15





















 


shall
be entitled to all such refunds, provided that Lessee shall take no such action
which could increase any Imposition for a period after the expiration of this
Lease. During the Lease Term, Lessor agrees to cooperate with Lessee in such
proceedings, at no cost to Lessor.


 


Section 8.8.                                   Utility Charges.  Lessee
shall pay or cause to be paid, directly to the party entitled thereto, all
charges for electricity, power, gas, oil, water, telephone, sanitary sewer
services and all other utilities used in or on the Property prior to and during
the Lease Term, and such obligation on the part of Lessee shall survive the
expiration or earlier termination of this Lease until all such outstanding
balances for services rendered prior to or during the Lease Term have been
paid. Any refunds of such charges attributable to the Lease Term or the period
prior to the commencement of the Lease Term shall be the property of Lessee,
and Lessor shall pay the same to Lessee promptly upon its receipt thereof.
Lessee shall have the right to select all service providers for the Property.
Lessor shall not be entitled to charge any fees associated with Lessee’s
acquisition and/or use of utilities.


 


Section 8.9.                                   Litigation; Zoning; Joint
Assessment.  Lessee shall give prompt written notice to Lessor and Lender of any
litigation or governmental proceedings pending or threatened against Lessee or
the Property of which Lessee has Actual Knowledge, which could reasonably be
expected to materially adversely affect the condition of the Property. Lessee
shall not initiate any zoning reclassification for the Property, or any portion
thereof, or seek any variance under any existing zoning ordinances or use or
permit the use of any portion of the Property in any manner that could result
in such use becoming a non-conforming use under any zoning ordinance or any
other Applicable Law. Lessee shall not initiate any proceeding to cause the
Property to be jointly assessed with any other property or with any personal
property of Lessee, or take any other action or initiate any proceeding which
might cause the personal property of the Lessee to be taxed in a manner whereby
such taxes or levies could be assessed against the Property.


 


ARTICLE 9. 


INSURANCE


 


Section 9.1.                                   Coverage.  (a) Lessee shall maintain insurance of the types and in the
amounts set forth on Schedule 9.1 attached hereto and made a part hereof,
including without limitation a policy or policies of (i) commercial
general liability insurance with respect to the Property, with Lessor and
Lender named as additional insured parties on such policy or policies, and (ii) property
insurance with respect to the Property, with Lessor and Lender named as loss
payees as their interests may appear, all in forms and amounts as set forth in Schedule 9.1.


 


(b)                                 Nothing in this Article 9 shall prohibit
Lessee from maintaining, at its expense, commercial general liability and or
property insurance on or with respect to the Property naming Lessee as insured
and/or loss payee in amounts greater than the insurance required to be
maintained under this Section 9.1 or any other insurance with respect to
the Property (including rent interruption insurance) naming Lessee as insured
and/or loss payee thereunder, unless such insurance would conflict with or
otherwise limit the availability of or coverage afforded by insurance required
to be maintained under this Section 9.1. Nothing in this Section 9.1
shall prohibit Lessor from maintaining, at its expense, other insurance on or
with respect to the Property or the operation, use and occupancy of the
Property, unless such insurance would conflict with, cause Lessor to be a
coinsurer or otherwise limit or adversely affect Lessee’s


 


16





















 


ability
to obtain, or the cost of, the insurance required to be maintained by Lessee
under Section 9.1(a).


 


(c)                                  Copies of any certificates of insurance
required to be delivered under Schedule 9.1 shall be delivered to Lessor
and Lender at the same time.


 


(d)                                 In the event of Lessee’s failure to obtain or
maintain the insurance called for under this Lease after notice and applicable
grace, Lessor shall have the right, together with Lessor’s other remedies set
forth herein, to obtain the policies of insurance required under this Lease and
to bill Lessee for the premium payments therefor, together with interest at the
Default Rate. Lessor shall have no obligation to maintain insurance of any
nature or type whatsoever.


 


(e)                                  Each insurance policy required to be carried
by Lessee under this Lease shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding any act or omission of Lessor or
Lessee which might, absent such provision, result in a forfeiture of all or a part
of such insurance payment.


 


(f)                                    Lessee shall comply with all insurance
requirements applicable under any insurance policies required to be maintained
under this Lease.


 


(g)                                 To the extent that (i) any insurance
policy maintained by Lessee pursuant to this Lease has a deductible as between
Lessee and the insurance company and Lessor is entitled to insurance proceeds
with respect to a claim thereunder or (ii) Lessee maintains any of its insurance
through a captive insurance company and such company fails for any reason to
pay a claim thereunder with respect to which Lessor is entitled to insurance
proceeds, then in either such case, as between Lessor and Lessee, Lessee shall
be responsible to cover such deductible or pay such claim.


 


ARTICLE 10. 


RETURN OF PROPERTY TO LESSOR


 


Section 10.1.                             Return of Property to
Lessor.  (a) Lessee shall, upon the expiration or termination of this
Lease, at its own expense, return the Property to Lessor by surrendering the
same into the possession of Lessor (i) free and clear of all Liens
(whether by payment or bonding), other than (A) Lessor Liens, (B) any
Lien created by the Mortgage and related debt documents, (C) Liens for
taxes not yet due and payable subject to Lessee’s obligations under Sections
8.6(b) and 8.7, (D) Liens and Impositions being contested in
accordance with the provisions of Section 7.1 or 8.6(c), as the case may
be, and (E) other Permitted Liens (other than this Lease and any
assignment of this Lease), and (ii) in compliance with the maintenance
conditions required by this Lease.


 


(b)                                 All Alterations and Lessee’s Equipment and
Personalty not removed by Lessee by the last day of the Lease Term (but in the
event of a termination other than upon the expiration of the Base Term or any
Renewal Term, within thirty (30) days after said termination of this Lease),
other than those Alterations as to which title shall vest in Lessor pursuant to
Section 8.4. shall be deemed abandoned in place by Lessee and shall become
the property of Lessor. Lessee shall pay or reimburse Lessor for any
reasonable, actual, out-of-pocket costs incurred by Lessor in connection with
the removal or disposal of such of Lessee’s Equipment and Personalty so


 


17





















 


relinquished,
which obligation shall survive the expiration or termination of this Lease. In
no event shall Lessee be required to remove or pay for the removal of any built
in, permanent fixtures or improvements existing on, or within, the Property as
of the date of this Lease, any raised computer floors built during the Lease
Term, any other Alterations made in compliance with the terms of this Lease or
any cabling or wiring (or similar property) now or hereafter located on or in
the Property.


 


(c)                                  Upon the return of the Property to Lessor,
Lessee shall also deliver (i) all transferable licenses and permits
pertaining to the Property by general assignment, without warranty or recourse;
(ii) as built-drawings, including plans for HVAC, mechanical and
electrical systems, to the extent in Lessee’s possession and not previously
delivered to Lessor; (iii) available keys to the Property; (iv) a
general assignment of all subleases existing on the date hereof or entered into
in accordance with the terms of this Lease; and (v) to the extent
assignable, a general assignment, without warranty or recourse, of all
maintenance contracts (to the extent required by Lessor) and existing
warranties applicable to the Property, specifically including without
limitation all roof warranties acknowledged by the provider thereof.


 


(d)                                 Lessee agrees to reasonably cooperate with
Lessor and its representatives to effectuate a smooth transition of the
operation and maintenance of the Property. Notwithstanding anything in this Lease
to the contrary and provided that Lessee surrenders the Property upon the expiration
or termination of this Lease in compliance with all Applicable Laws and the
terms of this Lease, the failure to remove any of Lessee’s Alterations or
Lessee’s Equipment and Personalty in accordance with the provisions hereof
shall not result in Lessee being deemed a holdover tenant hereunder.


 


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ARTICLE 11.


ASSIGNMENT BY LESSEE


 


Section 11.1.                             Assignment by Lessee.  (a) So
long as no Lease Event of Default has occurred and is continuing, Lessee may,
at Lessee’s sole expense and without the consent of Lessor, assign this Lease
(in whole but not in part) for a period that does not extend beyond the then
applicable Lease Term (including any Renewal Term as to which Lessee has
exercised its right to renew under Section 5.1), to any Person, provided,
however, that any such Person or other Person is not (i) a tax-exempt
entity (within the meaning of Section 168(h) of the Code) or (ii) a
debtor or debtor-in-possession in a voluntary or involuntary bankruptcy
proceeding at the commencement of the assignment. For purposes hereof, an
assignment shall include a merger or consolidation of Lessee. Any assignee
shall assume in writing any obligations of Lessee arising from and after the
effective date of the assignment, provided, however, that no such assignment
shall become effective until (i) a fully executed copy of an assignment
and assumption agreement shall have been delivered to Lessor and Lender and (ii) such
assignee shall have executed such instruments and other documents and provided
such further assurances as Lessor and Lender shall reasonably request to ensure
that such assignment is subject to the Mortgage and any related debt documents.
Furthermore, no such assignment and assumption agreement shall permit the
assignee to exercise any right to renew this Lease without the prior written
consent of Lessee. Lessee shall provide written notice to Lessor and Lender of
any assignment of this Lease, together with an executed copy of the agreement
of assignment and assumption, within thirty (30) days after the execution
thereof.


 


(b)                                   Notwithstanding any assignment provided for
in Section 1l.l(a), Lessee shall not be released from its primary
liability hereunder and shall continue to be obligated for all obligations of “Lessee”
in this Lease, which obligations shall continue in full force and effect as obligations
of a principal and not of a guarantor as though no assignment had been made. Furthermore,
in the event of any such assignment, the Parent Guarantor shall not be released
from it obligations under the Parent Guaranty.


 


(c)                                    Lessee shall not mortgage, pledge,
hypothecate or otherwise collaterally assign in any manner or nature whatsoever
Lessee’s interest under this Lease in whole or in part without Lessor’s prior
written consent.


 


ARTICLE 12.


LOSS; DESTRUCTION; CONDEMNATION OR DAMAGE


 


Section 12.1.                              Destruction of the SBC
Building, the Eagle Way Building and/or the Lakewood Building.  (a) Subject
to the immediately succeeding sentence and payment to Lessor of the full
replacement cost insurance proceeds, if any of the SBC Building, the Eagle Way
Building or the Lakewood Building (or any parking structure) is totally or
partially damaged or destroyed by Casualty, Lessor shall restore such Building
or parking structure to the same condition as existed immediately prior to such
Casualty. If (i) the Casualty results in damage to a Building or parking
structure which will take in excess of (A) twelve (12) months from the
beginning of restoration to restore (as reasonably determined by an independent
registered architect engaged by Lessor who will certify to Lessor and Lessee as
soon as practicable, but in any event within forty-five (45) days after the
Casualty the amount of time needed to restore) the


 


19





















 


Building
or parking structure to the same condition as existed immediately prior to such
Casualty, using standard working methods, and such Casualty occurs at any time
during the then current Lease Term, or (B) three (3) months from the
beginning of restoration to restore (as reasonably determined by such architect
in the same manner as in clause (A) above) the Building or parking
structure to the same condition as existed immediately prior to such Casualty
and such Casualty occurs during the last eighteen (18) months of the then
current Lease Term; or (ii) the repair, restoration or reconstruction is
prohibited by any zoning ordinance, building code or other Applicable Law,
which in Lessor’s commercially reasonable determination, makes the rebuilding
of the Building or parking structure not economically viable, then Lessor may
elect to terminate this Lease upon giving notice of such election in writing to
Lessee within sixty (60) days after the occurrence of the Casualty, which
notice shall specify a proposed termination date not earlier than the later of
(x) one hundred and twenty (120) days after the Casualty and (y) sixty (60)
days after the date of the notice. In the event that the Casualty only affects
the rebuilding or restoration of the Eagle Way Building and/or the Lakewood
Building, but not the SBC Building, and Lessor determines that it is not
economically viable to restore or rebuild the Eagle Way Building and/or the
Lakewood Building, as the case may be, then Lessor may elect to terminate this
Lease in part solely as the Eagle Way Building and/or the Lakewood Building, as
the case may be, by giving written notice of such election to Lessee within
sixty (60) days after the occurrence of the Casualty, which notice shall
specify a proposed partial termination date not earlier than the later of (x)
one hundred and twenty (120) days after the Casualty and (y) sixty (60) days
after the date of the notice.


 


(b)                                 If Lessor is required or elects to repair,
restore or rebuild as herein provided (but subject to Lessee’s right to
terminate in certain circumstances as set forth in Section 12.2 below), Lessor
shall commence the repair, restoration or rebuilding thereof within ninety (90)
days after such Casualty (subject to delays in the adjustment of insurance and
receipt of necessary permits from the Village) and shall substantially complete
such restoration, repair or rebuilding of the Property or the applicable
Building, as the case may be, to the same condition as existed immediately
prior to the Casualty as promptly as practicable after the commencement
thereof. In such event, this Lease will remain in full force and effect, and
Lessee shall be bound by the terms hereof, including the obligation to pay
Rent, subject to the provisions of Article 13.


 


(c)                                  If Lessor elects to terminate this Lease
(whether in part or in whole) by notice as provided above, such termination
shall be effective on the proposed termination date specified in the notice
provided to Lessee, provided that Lessee shall have the right, upon written
notice to Lessor to elect an earlier termination date, not earlier than thirty
(30) days after receipt of such notice. In such event, Lessee shall be
obligated to pay to Lessor the Rent accrued to the effective date of such
termination, which obligation shall survive such termination, for the portion
of the Property as to which this Lease was terminated.


 


Section 12.2.                             Lessee’s Right to Terminate.  (a) If
(i) the architect determines in accordance with Section 12.1 above
that the Casualty resulted in damage to all or a substantial part of the SBC
Building or the Lakewood Building which will take in excess of (x) twelve (12)
months from the beginning of restoration to restore such Building to the same
condition as existed immediately prior to the Casualty and the Casualty occurs
at any time during the Lease Term or (y) three (3) months from the
beginning of restoration to restore such Building to the same condition as
existed immediately prior to the Casualty and the Casualty occurs during the


 


20





















 


last
eighteen (18) months of the then current Lease Term, but Lessor does not elect
to terminate this Lease, or (ii) as a result of a Casualty to the SBC
Building or the Lakewood Building, Lessee must either (A) cease its
operations at such Building for a period of nine (9) months or more, (B) move
a Substantial Portion of its operations from such Building or relocate a
Substantial Percentage of its employees from such Building to another location
not on the Property for a period of nine (9) months or more or (C) lay
off a Substantial Percentage of its employees for a period of nine (9) months
or more (any of the foregoing Casualties described in clause (i) or (ii),
a “Substantial Casualty”), then Lessee may
elect to terminate this Lease in whole or, if applicable, as to the Lakewood
Building, upon giving notice of such election in writing to Lessor within
seventy-five (75) days after Lessee is notified in writing of the architect’s
determination as to the time required to restore such Building or Lessee
determines that a Substantial Casualty under clause (ii) above has
occurred, which notice shall specify a termination date not earlier than sixty
(60) days after the date of the notice. Notwithstanding the foregoing, if a
Substantial Casualty affects only the Lakewood Building or is a Substantial
Casualty as to the Lakewood Building but is not a Substantial Casualty as to
the SBC Building, then Lessee may only terminate this Lease in part as to the
Lakewood Building and not as to the SBC Building (which Lessor shall be
obligated to restore pursuant to Section 12.1). If Lessee fails to timely
provide such notice, Lessee shall be deemed to have waived its right to
terminate this Lease, in which event this Lease shall remain in full force and
effect and Lessee shall be obligated to pay the Rent during the period of
repair, restoration or rebuilding, provided that any rent interruption
insurance proceeds shall be payable solely to Lessee.


 


(b)                                 If Lessor elects to rebuild the Property but
Lessee elects to terminate this Lease in whole or in part pursuant to Section 12.2(a),
then Lessee shall pay to Lessor the excess, if any, of the discounted Present
Value of the Rent that would otherwise become due for the Property (or the
portion thereof as to which this Lease was terminated) for the period of time
commencing on the date of termination or partial termination of this Lease and
ending on the last day of the then current Lease Term over the discounted
Present Value of the Fair Market Rent that Lessor can reasonably be expected to
collect after restoration of the Property (or portion thereof) through the end
of the then current Lease Term (assuming reasonable periods of time to prepare
plans, secure permits and rebuild the Property (or such portion thereof)
substantially to its condition prior to the Casualty and to market and re-lease
the Property (or such portion thereof) to another tenant or tenants, all as
determined pursuant to Section 12.2(c)). If Lessee terminates this Lease
only as to a portion of the Property, then, in addition to the payment provided
for above but subject to Section 13.1, Lessee’s obligation to pay Rent as
to the portion of the Property as to which this Lease shall remain in effect
shall continue unabated, provided that any rent interruption insurance proceeds
shall be payable solely to Lessee.


 


(c)                                  If Lessor and Lessee cannot agree on the discounted
Present Value of the Fair Market Rent that Lessor could reasonably be expected
to collect after restoration of the Property (or portion thereof), such
discounted Present Value of the Fair Market Rent will be determined by
appraisal in accordance with the Appraisal Procedure. The period of time
required to rebuild the SBC Building, the Eagle Way Building and/or the
Lakewood Building, as the case may be, will be determined by two independent
registered architects, one selected by Lessor and one selected by Lessee,
assuming the reasonably prompt and efficient engagement of and work by architects,
contractors and others necessary to rebuild such Building or Buildings. The
period of time that it would take to re-lease such Building or Buildings after
the reconstruction and/or


 


21





















 


repair
thereof will be determined by two independent commercial real estate brokers,
one selected by Lessor and one selected by Lessee, and each familiar with
properties similar to the Property and with the commercial lease market in the
area. The determinations of such architects and brokers shall be binding on the
parties. If such architects or brokers cannot agree on the period of time to
rebuild or re-lease such Building or Buildings, as the case may be, within
twenty (20) Business Days after the their appointment, then a third architect
or broker, as the case may be, shall be selected by the two other architects or
brokers, as applicable or, failing agreement as to such third architect or
broker within thirty (30) Business Days after the appointment of the others, by
the American Arbitration Association office in Chicago, Illinois. The
determinations of the relevant periods of time of the three architects or
brokers, as the case may be, shall be made within twenty (20) Business Days of
the appointment of the third such Person; such three time periods shall be
averaged and such average time period shall be the time period required to
rebuild or re-lease the applicable Building or Buildings, as the case may be,
provided that if any one of the three determinations diverges from such average
by ten percent (10%) or more, that determinations shall be discarded and the
average of the remaining two determinations shall be the applicable time period
binding on the parties. The fees and expenses of the architect and broker
appointed by a party shall be paid by such party; the fees and expenses of a
third architect or broker shall be divided equally between the two parties.
Lessee shall be released from any and all obligations hereunder arising from
and after such termination, other than the obligation to pay such discounted
present value of the Rent.


 


Section 12.3.                             Condemnation.  (a) In the event of a Total Taking of the Property, the Lease Term
shall terminate upon the earlier of delivery of possession of the Property to
the condemning authority or the effective date of the taking and Lessee shall
be obligated to pay to Lessor the sum of (i) the Base Rent accruing to the
date of termination, plus (ii) after determination of the amount of the
Award attributable to the discounted Present Value of the Fair Market Rent as
provided in paragraph (d) below, the amount, if any, required to be paid
by Lessee under paragraph (e) below.


 


(b)                                 If a Minor Condemnation occurs, Lessor shall
repair and restore the Property (including any parking structures), to the
extent practicable and as provided in this Section 12.3, to the condition
as existed immediately prior to the Minor Condemnation and shall use the Award
to pay the costs thereof. Notwithstanding the occurrence of a Minor
Condemnation, the obligation of Lessee to pay scheduled Rent to Lessor shall
continue subject to Section 13.1, and Lessee shall be entitled to any rent
interruption insurance proceeds payable in connection therewith and the amount
of the Award payable to Lessee pursuant to paragraph (c) below.


 


(c)                                  Any award, compensation or damages (the “Award”) for a Minor Condemnation or a Total Taking shall be
paid to and be the sole property of Lessor whether the Award shall be made as
compensation for diminution of the value of the leasehold estate or the fee of
the Property or otherwise, and Lessee hereby assigns to Lessor all of Lessee’s
right, title and interest in and to any and all of the Award; provided that, to
the extent the Award would not diminished, Lessee shall have the right to make
a separate claim against the condemning authority (but not Lessor) for such
compensation as may be separately awarded or recoverable by Lessee for moving,
if a separate award for such items is made to Lessee; and provided further that
Lessee shall have an independent right to make a claim for any Condemnation of
Lessee’s Equipment


 


22





















 


and
Personalty. Any portion of the Award that is not required to be expended by
Lessor for repairing or restoration shall be retained by Lessor as Lessor’s
sole property.


 


(d)                                 The amount of any Award payable to Lessor on
account of a Total Taking (not including any separate award payable to Lessee
for moving or for condemnation of Lessee’s Equipment and Personalty) that is
attributable to the Fair Market Rent that would be payable for the remainder of
the then current Lease Term shall be ascertained through the Appraisal Procedure
and such amount shall be discounted to the Present Value thereof.


 


(e)                                  If the discounted Present Value of the Rent
that would have become due from the date of termination of this Lease to the
end of the then current Lease Term exceeds the amount of the award attributable
to the discounted Present Value of the Fair Market Rent as determined under
paragraph (d) above, Lessee shall pay to Lessor, within ten (10) Business
Days after the determination thereof, the amount of such excess. If the amount
of the Award attributable to the discounted Present Value of the Fair Market
Rent as determined under paragraph (d) above exceeds the discounted
Present Value of the Rent that would have become due hereunder, Lessee shall
not make any additional payment to Lessor and Lessor shall not have any
obligation to remit any portion of the Award to Lessee.


 


ARTICLE 13.


REDUCTION OF RENT


 


Section 13.1.                             Reduction of Rent.  If
(a) after any repair, restoration or rebuilding required to be undertaken
by Lessor as a result of a Casualty or Minor Condemnation or (b) as a
result of Lessor’s or Lessee’s termination of this Lease only as to one or two
Buildings (and the related parking) as a result of a Casualty, there is a
permanent reduction in the rentable square feet of the Property available to or
occupied by Lessee, then the Base Rent shall be proportionately reduced from
the date of determination of such permanent reduction through the end of the
Lease Term. The proportionate reduction shall be computed on the basis that the
rentable square feet of the Property from time to time available to Lessee
after the Casualty or Minor Condemnation or partial termination of this Lease
bears to the aggregate rentable square feet of the Property prior to the
Casualty or Minor Condemnation or partial termination of this Lease. Any
reduction in Rent shall become effective as of the determination of such
permanent reduction. To the extent Lessee shall have paid any Base Rent for any
period after such determination of permanent reduction in an amount which did
not take into account the applicable reduction in Base Rent pursuant to this Section 13.1,
Lessor shall remit the excess payment to Lessee and if Lessor does not pay
Lessee the amount thereof, Lessee may offset such amount, together with interest
thereon at the Prime Rate, against future Rent payments due hereunder.


 


ARTICLE 14.


SUBLEASE


 


Section 14.1.                             Subleasing Permitted;
Lessee Remains Obligated.  Provided that no Lease Event of Default shall
have occurred and be continuing at the time the sublease is entered into, upon
fifteen (15) days’ prior written notice to Lessor and Lender (including
subleases to Affiliates or other Persons in which Lessee has an ownership
interest (“Related Persons”)),


 


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Lessee
may at any time and from time to time, directly or indirectly through one or
more Affiliates or Related Persons, sublease the Property or any portion or
portions thereof to any Person or permit the occupancy of the Property or any
portion or portions thereof by any Person who is not a debtor or
debtor-in-possession in a voluntary or involuntary bankruptcy proceeding at the
commencement of the sublease term. No such sublease, sub-sublease, license,
occupancy agreement or similar agreement (each, a “Sublease”) shall release Lessee from its
primary liability for the performance of its duties and obligations hereunder,
and Lessee shall continue to be obligated for all obligations of “Lessee” in
this Lease, which obligations shall continue in full effect as obligations of a
principal and not of a guarantor, as though no Sublease had been made. From
time to time, but in no event more than once per quarter, upon Lessor’s
request, Lessee shall forward to Lessor the names, businesses and square
footage leased (or location) of all subtenants (other than Affiliates or other
Related Persons).


 


Section 14.2.                             Provisions of Subleases.  Each
Sublease will (a) be expressly subject and subordinate to this Lease and
any mortgage (including the Mortgage) encumbering the Property; (b) not
extend beyond the Lease Term minus one day; and (c) terminate upon any
termination of this Lease, unless with respect to clauses (b) and (c) above,
Lessor elects in writing (which election must be consented to by Lender), to
cause the sublessee to attorn to and recognize Lessor as the lessor under such
Sublease, whereupon such Sublease shall continue as a direct lease between the
sublessee and Lessor upon all the terms and conditions of such Sublease (it
being agreed that all Subleases with Affiliates or other Related Persons of
Lessee shall automatically terminate upon termination of this Lease). With
respect to any consent to be provided by Lender pursuant to this Section 14.2,
Lender shall have fifteen (15) Business Days after Lessee’s delivery of its
request for consent (WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE
FAILURE TO RESPOND WITHIN FIFTEEN (15) BUSINESS DAYS WILL RESULT IN DEEMED
CONSENT UPON FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER A “FAILURE
TO RESPOND” SECOND NOTICE), within which Lender may grant or not grant Lessee’s
request for consent. If Lender shall not have responded to Lessee within such
15-Business Day period, Lessee may give a second notice WHICH CLEARLY SHALL
STATE IN BOLD-FACE TYPE THAT THE FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS
DAYS SHALL BE DEEMED CONSENT. If Lender shall not, within five (5) Business
Days after such second notice, notify Lessee that such consent will not be
granted, such consent shall be deemed to have been granted.


 


Section 14.3.                             Assignment of Sublease
Rents.  To secure the prompt and full payment by Lessee of the Rent and the
faithful performance by Lessee of all the other terms and conditions herein
contained on its part to be kept and performed, Lessee hereby assigns,
transfers and sets over unto Lessor, subject to the conditions hereinafter set
forth in this Section 14.3, all of Lessee’s right, title and interest in
and to all Subleases, and hereby confers upon Lessor, its agents and
representatives, a right of entry in, and sufficient possession of, the
Property to permit and ensure the collection by Lessor of the rentals and other
sums payable under the Subleases, and further agrees that the exercise of the
right of entry and qualified possession by Lessor shall not constitute an
eviction of Lessee from the Property or any portion thereof; provided, however,
that Lessee shall continue to have the right to collect, use, enjoy and
distribute all Sublease revenue (a) except during the continuance of a
Lease Event of Default, (b) until this Lease and the Lease Term shall be
terminated pursuant to the terms hereof or (c) until there occurs
repossession under a dispossess warrant or other judgment, order or decree of a
court of


 


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competent
jurisdiction and then only as to such of the Subleases that Lessor may elect to
take over and assume. Notwithstanding the foregoing, if the events described in
clause (b) and (c) above have not occurred and if the Lease Event of
Default which caused such collection of revenue by Lessor shall have been cured
by Lessee or otherwise not continue to exist, upon the written demand of
Lessee, Lessor shall cease to exercise the rights granted hereunder to Lessor
with respect to the Subleases, and any amounts collected under the Subleases
and not applied to Lessee’s obligations under this Lease shall promptly be paid
over to Lessee.


 


ARTICLE 15.


INSPECTION


 


Section 15.1.                              Inspection.  Upon
at least five (5) Business Days’ prior written notice to Lessee, Lessor or
Lender and their respective representatives and agents (each, an “Inspecting
Party”), may
from time to time (but not more frequently than one time per calendar quarter),
during normal business hours and in a commercially reasonable manner and at
their own risk, inspect the Property, during normal business hours, to verify
compliance with the provisions of this Lease. No Sublease shall contain any
restrictions on inspection other than as set forth herein. The Inspecting Party
shall repair any damage caused by any inspection performed pursuant to this Section 15.1.
Lessee shall have the right to have its representatives, including security
guards, present at any such inspection. In addition, Lessee may designate one
or more reasonably sized “secure areas” to which no Inspecting Party shall have
access and the Inspecting Party shall comply with Lessee’s other reasonable
security requirements. Each Inspecting Party agrees to hold in confidence all
proprietary information and trade secrets of which it becomes aware during such
inspection. All such inspections shall be at Lessor’s expense.


 


ARTICLE 16.


LEASE EVENTS OF DEFAULT


 


Section 16.1.                             Lease Events of Default.  Each
of the following events shall constitute a “Lease Events of Default”:


 


(a)                                  Lessee shall fail to make any payment of Base
Rent and such failure shall continue for a period of five (5) days after
written notice from Lessor or Lender to Lessee that such amount is due and
unpaid;


 


(b)                                 Lessee shall fail to make any other payment
of Supplemental Rent, and such failure shall continue for a period of five (5) days
after written notice of such failure to Lessee from Lessor or Lender;


 


(c)                                  Lessee shall fail to timely perform or
observe any covenant or agreement (not otherwise specified in this Article 16)
to be performed or observed by it hereunder and such failure shall continue for
a period of thirty (30) days after written notice thereof from Lessor or Lender;
provided that the continuation of such a failure for thirty (30) days or longer
after such notice shall not constitute a Lease Event of Default if such failure
can be cured, but cannot reasonably be cured within such thirty (30) day
period, and Lessee shall commence to cure such


 


25










 













failure
within such thirty (30) day period and shall be diligently and continuously
prosecuting the cure of such failure;


 


(d)           except to the extent the Lessee is
permitted to self-insure pursuant to Section 9.1(b) and Schedule 9.1, Lessee
shall fail to carry or maintain in full force any insurance required hereunder,
and such failure shall continue for thirty (30) days after such obligations
arise, but not beyond the expiration date of any required policy of insurance;


 


(e)           any representation or warranty made
by Lessee herein shall prove to have been incorrect in any material respect
when such representation or warranty was made, shall remain materially
incorrect at the time in question and shall not cured in all material respects
within thirty (30) days after written notice to Lessee thereof, provided that
the continuation of such a failure for thirty (30) days or longer after such
notice shall not constitute a Lease Event of Default if such failure can be
cured, but cannot reasonably be cured within such thirty (30) day period, and
Lessee shall commence to cure such failure within such thirty (30) day period
and shall be diligently and continuously prosecuting the cure of such failure;


 


(f)            (i) Lessee makes any general
arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a “debtor”
as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed within ninety (90)
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of the assets of Lessee where possession is not restored to
Lessee within ninety (90) days; (iv) the attachment, execution or other
judicial seizure of substantially all of the assets of Lessee where such seizure
is not discharged within ninety (90) days; (v) Lessee admits in writing its
inability to pay its debts generally as they become due; (vi) Lessee files a
petition or answer seeking reorganization, arrangement or other protection
under the Federal bankruptcy laws or any other applicable law or statute of the
United States of America or any State thereof; (vii) Lessee is liquidated or
dissolved, or placed under conservatorship or other protection under any
applicable Federal or state law; (viii) any petition is filed by or against
Lessee under Federal bankruptcy laws, or any other proceeding is instituted by
or against Lessee seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
Lessee, or for any substantial part of the property of Lessee, and such
proceeding is not dismissed within ninety (90) days after institution thereof;
or (ix) Lessee shall take any action to authorize or effect any of the actions
set forth above in this clause (f).


 


It
is expressly understood and agreed that the Parent Guarantor shall have the
right to cure any Lease Event of Default on behalf of Lessee within the periods
provided for in this Lease, and Lessor shall send copies of all notices under
this Article 16 to the Parent Guarantor at the same time as such notices are
sent to Lessee.


 


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ARTICLE 17.

ENFORCEMENT


 


Section
17.1. Remedies.  Upon the occurrence of any Lease
Event of Default and at any time thereafter so long as the same shall be
continuing, Lessor may, at its option, by notice to Lessee do one or more of
the following as Lessor in its sole discretion shall determine:


 


(a)           At any time after the occurrence and
continuance of a Lease Event of Default in lieu of exercising its rights under
paragraph (b) below, Lessor may terminate this Lease by giving Lessee written
notice of Lessor’s election to do so and the effective date thereof, in which event
Lessor may forthwith repossess the Property and recover, in addition to any
other sums or damages for which Lessee may be liable to Lessor, as liquidated
damages a sum of money equal to the excess of the discounted Present Value of
the Rent to be paid by Lessee for the balance of the Lease Term (after Lessor
elects to exercise the remedy provided for in this paragraph (a)) over the
discounted Present Value of the Fair Market Rent for the Property, after
deduction from such Fair Market Rent of all anticipated reasonable expenses of
reletting, for such period. Should the discounted Present Value of the Fair
Market Rent for the Property, after deduction of all anticipated expenses of
reletting, including without limitation reasonable legal fees, reasonable brokerage
commissions and reasonable tenant improvement allowances or other concessions,
for the balance of the Lease Term exceed the discounted Present Value of the
Rent to be paid by Lessee for the balance of the Lease Term, Lessee shall have
no obligation to pay Lessor such liquidated damages and Lessor shall have no
obligation to pay to Lessee the excess of such discounted Present Value of the
Fair Market Rent over the discounted Present Value of the Rent.


 


(b)           Assuming that Lessor has not
exercised its right to terminate this Lease under paragraph (a) above, Lessor
may terminate Lessee’s right of possession of the Property without terminating
this Lease by giving written notice to Lessee that Lessee’s right to possession
shall end on the date stated in such notice, whereupon the right of Lessee to
possession of the Property or any part thereof shall cease on the date stated
in such notice. If Lessor terminates Lessee’s right of possession of the
Property without terminating this Lease, such termination of possession shall
not release Lessee, in whole or in part, from Lessee’s obligation to pay the
Rent hereunder for the then current Lease Term. In such event, Lessor shall
have the right from time to time to recover from Lessee, and Lessee shall
remain liable for, all accrued Rent not theretofore paid which is due under
this Lease during the period from the date of such notice of termination of possession
to the date of such demand by Lessor, but not for any period after the last day
of the then current Lease Term. In any such case, Lessor shall use all
reasonable efforts to relet the Property (which may be for a term extending
beyond the then current Lease Term of this Lease). In connection with such
reletting, Lessor shall consider any commercially reasonable substitute tenant
offered by Lessee. Also, in any such case, Lessor may change the locks or other
entry devices of the Property and make repairs, alterations and additions in or
to the Property and redecorate the same to the extent deemed by Lessor, in its
reasonable judgment, necessary or desirable, and Lessee shall upon written
demand pay the cost thereof, together with Lessor’s expenses of reletting,
including without limitation reasonable legal fees, reasonable brokerage commissions
and reasonable tenant improvement allowances or other concessions (such decorating
and reletting expenses collectively, the “Additional
Expenses”). Lessor
may collect the rents from any such reletting and apply the same first to the
payment of late charges and default interest, second to the payment of
maintenance, repair and insurance costs, third to the


 


27





















 


payment
of the Additional Expenses and finally to the payment of Rent herein provided
to be paid by Lessee, and any excess or residue shall operate as an offsetting
credit against the amount of Rent payable hereunder as the same thereafter
becomes due and payable; provided that the use of such offsetting credit to
reduce the amount of Rent due Lessor, if any, shall not be deemed to give
Lessee any right, title or interest in or to such excess or residue and any
such excess or residue shall belong to Lessor solely; provided further that in
no event shall Lessee be entitled to a credit against such Rent in excess of
the aggregate amount (including the Rent and any Additional Expenses payable by
Lessee) due hereunder or which would have been paid by Lessee for the period
for which the credit to Lessee is being determined had no default occurred. No
such reentry, repossession, repairs, alterations, additions or reletting shall
(i) be construed as an eviction or ouster of Lessee or as an election on Lessor’s
part to terminate this Lease, unless a written notice of such intention is
given to Lessee, or (ii) operate to release Lessee in whole or in part from any
of Lessee’s obligations hereunder, and Lessor may, at any time and from time to
time, sue and recover judgment for any deficiencies from time to time remaining
after the application from time to time of the proceeds of any such reletting.


 


(c)
Lessor may exercise any other right or remedy that may be available to it under
Applicable Laws or in equity, or proceed by appropriate court action (legal or
equitable) to enforce the terms hereof or to recover damages for the breach
hereof. A single suit or separate suits may be brought to collect any such damages
for any period or periods with respect to which Rent shall have accrued, and
such suits shall not in any manner prejudice Lessor’s right to collect any such
damages for any subsequent period. Lessor may defer any such suit until after
the expiration of the Base Term or the then current Renewal Term, in which
event such suit shall be deemed not to have accrued until the expiration of the
Base Term or the then current Renewal Term, as the case may be.


 


Section
17.2. Survival of Lessee’s Obligations.  No repossession of any or all of
the Property or exercise of any remedy under this Lease, including termination
of this Lease, shall, except as specifically provided herein, relieve Lessee of
any of its liabilities and obligations hereunder, including the obligation to
pay Rent. In addition, except as specifically provided herein, Lessee shall be
liable for any and all unpaid Rent due hereunder before, after or during the
exercise of any of the foregoing remedies, including the Additional Expenses
and reasonable legal fees and other costs and expenses (plus interest on such
amounts from the date payable until the date paid at the Default Rate) incurred
by Lessor and Lender by reason of the occurrence of any Lease Event of Default
or the exercise of Lessor’s remedies with respect thereto and including all
costs and expenses incurred in connection with the return of the Property in
the manner and condition required by, and otherwise in accordance with the
provisions of, Article 10 as if the Property were being returned at the end of
the Lease Term. At any sale of any or all of the Property or any other rights
pursuant to Section 17.1, Lessor or Lender may bid for and purchase the
Property.


 


Section
17.3. Remedies Cumulative; No Waiver;
Consents; Mitigation of Damages.  To
the extent permitted by, and subject to the mandatory requirements of,
Applicable Laws, each and every right, power and remedy specifically given to
Lessor in this Lease or otherwise available under Applicable Law shall be
cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law or in equity, and
each and every right, power and remedy whether specifically herein given or
otherwise existing


 


28





















 


may be exercised from time
to time and as often and in such order as may be deemed expedient by Lessor,
and the exercise of any power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any right, power or
remedy. No delay or omission by Lessor in the exercise of any right, power or
remedy or in the pursuit of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of Lessee or
to be an acquiescence therein. Lessor’s consent to any request made by Lessee
shall not be deemed to constitute or preclude the necessity for obtaining
Lessor’s consent in the future to all similar requests. No express or implied
waiver by Lessor of any Lease Event of Default shall in any way be, or be
construed to be, a waiver of any future or subsequent Lease Event of Default.
Lessor shall use reasonable efforts to mitigate any damages suffered by Lessor
that result from a Lease Event of Default.


 


ARTICLE 18.

RIGHTS TO PERFORM FOR LESSEE AND LESSOR


 


Section
18.1. Lessor’s Right to Perform for Lessee.  If Lessee shall fail to perform or
comply with any of its agreements contained herein, following applicable notice
and cure periods, Lessor may perform or comply with such agreement, and Lessor
shall not thereby be deemed to have waived any default caused by such failure,
and the amount of payment required to be made by Lessee hereunder and made by
Lessor on behalf of Lessee, and the reasonable out-of-pocket third-party costs
and expenses of Lessor (including reasonable attorneys’ fees and expenses)
incurred in connection with the performance of or compliance with such
agreement, as the case may be, together with interest thereon at the Default
Rate, shall be deemed Supplemental Rent, payable by Lessee to Lessor upon
demand. In addition, during the continuance of a Lease Event of Default in
respect of Lessee’s obligations under Section 8.2 and/or Section 8.5, then, in
addition to the rights above and at the cost of Lessee, (a) Lessor shall have
the right to hire Persons (as selected by Lessor in its reasonable discretion)
to cure such Lease Event of Default and to take any and all other actions
necessary to cure such Lease Event of Default and (b) Lessee shall cooperate
with Lessor, and the Persons hired by Lessor, in the performance of such cure,
including without limitation (i) providing access (subject to the limitations
with respect to access by an Inspecting Parry provided in Section 15.1) to the
subject Property at reasonable times every day of the week, (ii) making
available water, electricity and other utilities existing at or on the subject
Property and (iii) restricting or closing the Property, but only if such
restriction or closure is reasonably necessary for the performance of such cure
and provided that such closure shall be done for and during a time period and
in such manner that balances the need for the maintenance or repair of the
Property (and doing so in a safe manner) and the continuing operations of the
Property.


 


Section
18.2. Lessee’s Right to Perform for Lessor.  If Lessor shall fail to perform or
comply with any of its agreements contained herein (including without
limitation its obligations under Section 8.2), following applicable notice by
Lessee as provided in other provisions of this Lease, Lessee shall then provide
written notice to Lessor that Lessor has failed to perform or comply with an
agreement or obligation hereunder and specifying the nature of the failure to
perform or comply and advising Lessor that if such failure continues for (a) a
period of thirty (30) days, in the case of a failure which does not impact
Lessee’s business and operations at the Property, (b) a period of ten (10)
days, in the case of a failure that impacts Lessee’s business and operations at
the Property and (c) a period of five (5) days in the case of a failure
that impacts


 


29





















 


Lessee’s business and
operations at the Property in a material way or causes an interruption of
Lessee’s business and operations after this notice, then Lessee shall exercise
its right to perform for Lessor under this Section 8.2. Thereafter, if Lessor
does not perform or comply with its agreement as specified in such notice,
Lessee may perform or comply with such agreement, and the amount of payment
required to be made by Lessor hereunder and made by Lessee on behalf of Lessor,
and the reasonable out-of-pocket third-party costs and expenses of Lessee
(including reasonable attorneys’ fees and expenses) incurred in connection with
the performance of or compliance with such agreement, as the case may be,
together with interest thereon at the Default Rate, shall be immediately
payable by Lessor to Lessee upon demand and may be offset against any Rent
payment otherwise due hereunder. In addition, in the event Lessor fails to
perform its obligations under Section 8.2, then, in addition to the rights
above and at the cost of Lessor, (a) Lessee shall have the right to hire
Persons (as selected by Lessee in its reasonable discretion) to perform such
obligations of Lessor and (b) Lessor shall cooperate with Lessee, and the
Persons hired by Lessee, in the performance thereof. Notwithstanding the
foregoing, Lessee shall not be obligated to provide the notice required under
this Section 18.2 in the event of an emergency.


 


ARTICLE 19.

INDEMNITIES


 


Section
19.1. General Indemnification.  (a) Lessee shall indemnify, defend
and save harmless Lessor, Lessor’s mortgagee, deed of trust trustee and
beneficiary, Lessor’s ground lessor, if any, and Lessor’s agents, contractors,
subcontractors, employees, successors and assigns (collectively, the “Lessor Indemnified Parties”) from and against all Claims brought
by third parties and that arise from Lessee’s or its subtenant’s, assignee’s,
agent’s, licensee’s, contractor’s, subcontractor’s, concessionaire’s or
employee’s or existing tenant’s (Lessee and such other parties collectively,
the “Lessee Parties”) use and occupancy of the Property or
from Claims brought by any existing tenants arising from Lessee’s actions under
Section 6.3 or from any other activity, work or thing done, permitted or
suffered by any Lessee Party on or about the Property, but not including any
activity, work or thing done on or about the Property by any Lessor Party (as
defined below). If any proceeding is filed by a third party against any Lessor
Indemnified Party, at Lessor’s request, Lessee shall defend such Lessor
Indemnified Party in such proceeding at Lessee’s sole cost with legal counsel
selected by Lessee and reasonably satisfactory to Lessor. In no event shall
Lessee be obligated to indemnify any Lessor Indemnified Party for any negligent
act or omission or any willful misconduct of Lessor or any other Lessor
Indemnified Party.


 


(b)           Lessor shall indemnify, defend and
save harmless Lessee, Lessee’s mortgagee, deed of trust trustee and beneficiary
and Lessee’s agents, contractors, subcontractors, employees, successors and
assigns (collectively, the “Lessee
Indemnified Parties”) harmless
from and against all Claims brought by third parties and that arise from Lessor’s
or its agent’s, licensee’s. contractor’s, subcontractor’s, concessionaire’s or
employee’s (Lessor and such other parties collectively, the “Lessor Parties”) use and occupancy of the Property or from any other activity,
work or thing done, permitted or suffered by Lessor or Lessor Parties on or
about the Property, but not including any activity, work or thing done on or
about the Property by any Lessee Party. If any proceeding is filed by a third
party against any Lessee Indemnified Party, at the request of Lessee, Lessor
shall defend such Lessee Indemnified Party in such proceeding at Lessor’s sole


 


30





















 


cost with legal counsel selected
by Lessor and reasonably satisfactory to Lessee. In no event shall Lessor be
obligated to indemnify Lessee or any of the other parties identified above for
any negligent act or omission or any willful misconduct of Lessee or any other
Lessee Indemnified Party.


 


Section
19.2. No Third Party Environmental
Indemnification.  The parties
agree that neither of them shall be liable to or obligated to indemnify, defend
or hold harmless the other for any Claim or liability arising under any
Environmental Law as a result of the action, failure to act or negligence of
any other Person (except in the case of Lessee, itself or the Lessee Parties,
and in the case of Lessor, itself or the Lessor Parties) on or about the
Property or on any surrounding property and each of Lessee and Lessor hereby
waives any right it may have to contribution from the other party under any
Applicable Law or otherwise with respect to any such Claim or liability.


 


ARTICLE 20.

LESSEE REPRESENTATIONS AND COVENANTS


 


Section
20.1. Representations and Warranties.  Lessee represents and warrants to
Lessor that the following are true and correct as of the Closing Date:


 


(a)           Due
Organization. Lessee is a corporation duly organized, validly
existing and in good standing in the State of Delaware and qualified to do
business and in good standing in the State of Illinois. Lessee has the
corporate power and authority to conduct its business as now conducted, to
lease the Property and to enter into and perform its obligations under this
Lease. Lessee is duly qualified to do business and is in good standing as a
foreign corporation in any jurisdiction where the failure to so qualify would
have a material adverse effect on its ability to perform its obligations under
this Lease.


 


(b)           Due
Authorization; No Conflict.  This
Lease has been duly authorized by all necessary corporate action on the part of
Lessee and has been duly executed and delivered by Lessee, and the execution,
delivery and performance hereof by Lessee will not (i) require any approval of
the stockholders of Lessee or any approval or consent of any trustee or holder
of any indebtedness or obligation of Lessee, other than such consents and
approvals as have been obtained, (ii) contravene any Applicable Law binding on
Lessee, (iii) contravene or result in any breach of or constitute any default
under Lessee’s charter or by-laws or other organizational documents or any
indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint
venture agreement, lease or other agreement or instrument to which Lessee is a
party or by which Lessee is bound or (iv) result in the creation of any Lien
upon any of the property of Lessee.


 


(c)           Governmental
Action.  All Governmental
Action required in connection with the execution, delivery and performance by
Lessee of this Lease has been or will have been obtained, given or made.


 


(d)           Enforceability.  This Lease constitutes the legal,
valid and binding obligation of Lessee, enforceable against Lessee in
accordance with its terms, except as enforceability may be


 


31





















 


limited by bankruptcy,
moratorium, fraudulent conveyance, insolvency, equitable principles or other
similar laws affecting the enforcement of creditors’ rights in general.


 


(e)           Bankruptcy.  No bankruptcy, reorganization,
arrangement or insolvency proceedings are pending, threatened or contemplated
by Lessee, and Lessee has not made a general assignment for the benefit of
creditors.


 


(f)            Condition
of Property; Condemnation.  To
Lessee’s knowledge, the Property is free and clear of any damage that would
materially and adversely affect its value. Lessee has not received notice of
any proceeding pending for the Condemnation of or otherwise affecting the Property
that would have a material adverse effect on the Property.


 


(g)           Legal
Proceedings.  There are no
pending or, to Lessee’s knowledge, threatened actions, suits or proceedings by
or before any court or Governmental Authority against or affecting Lessee with
respect to the Property that, if determined adversely to Lessee or the Property,
would materially adversely affect the value of the Property.


 


(h)           Licenses
and Permits. To Lessee’s knowledge, Lessee possesses all material
licenses, permits and authorizations required by Applicable Law for the
operation of the Property and all such licenses, permits and authorizations are
valid and in full force and effect.


 


(i)            Environmental.  Lessee has not received any
written notice from any Governmental Authority that the Property or the use
thereof violates any Environmental Law.


 


ARTICLE 21.

GUARANTY OF LEASE


 


Section
21.1. Guaranty of Lease.  Upon the execution and delivery of
this Lease, Lessee shall cause SBC Communications, Inc., a Delaware corporation
(the “Parent Guarantor”) to execute and deliver to Lessor a
guaranty of this Lease in substantially the form attached hereto as Exhibit B
(the “Parent Guaranty”).


 


ARTICLE 22.


[INTENTIONALLY OMITTED]


 


ARTICLE 23.

TRANSFER OF LESSOR’S INTEREST


 


Section 23.1. Permitted
Transfer.  Subject to Article
4, Lessor or the Equity Investor may transfer all, or any part of, its right,
title and interest in and to the Property and its rights under this Lease,
other than to any Significant Competitor, on the following terms and
conditions, each of which shall be satisfied prior to the effective date of the
transfer (other than a transfer by a deed-in-lieu of foreclosure or similar
transfer made in connection with an exercise of remedies under the Mortgage):


 


(a)           such transfer shall be in compliance
with the Mortgage and related documents (if still in place) and with all
Applicable Laws and shall not create a relationship which would violate any
Applicable Law;


 


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(b)           the transferor shall have given or at
closing shall give to Lessee notice of such transfer, which notice shall
contain such information and evidence as shall be reasonably necessary to
establish compliance with this Article 23 and the name and address of the
transferee for notices;


 


(c)           no transfer may be made of less than
all of the legal parcels comprising the Property;


 


(d)           Lessor may not sell the Property or
any interest therein, or permit the sale or other transfer of any direct or
indirect interest of Lessor, to any Significant Competitor, provided that Lessor’s
indirect or direct member, beneficiary or Affiliate (to the extent any such
entity is a REIT) shall not be prohibited from selling shares of stock in such
REIT; and


 


(e)           in the event that, after giving
effect to Lessor’s transfer of its interest in the Property and it rights under
this Lease, there is more than one holder of an interest in the Property,
Lessor and such transferees shall designate in the notice to Lessee one point
of contact for all notices, correspondence and Rent payments from Lessee from
and after the effective date of such transfer.


 


Section
23.2. Effects of Transfer.  (a) From and after any transfer
effected in accordance with this Article 23, the transferor shall be released,
to the extent of the interest transferred and the obligations assumed by the
transferee, from its liability hereunder. Such release shall be in respect of
obligations that are assumed by the transferee arising on or after the date of
such transfer. Upon any transfer by Lessor of the Property as above provided,
any such transferee shall be deemed the “Lessor” for all purposes of this Lease
and each reference herein to Lessor shall thereafter be deemed a reference to
such transferee for all purposes, except to the extent that Lessor retains any
obligations hereunder.


 


(b)           Lessee agrees to execute any and all
documents reasonably appropriate to effectuate the contemplated transfer by
Lessor, including, without limitation, an amendment to this Lease providing
that the new transferee shall be Lessor and the existing Lessor shall be
released from its liabilities and obligations (other than accrued liabilities
and obligations) hereunder.


 


ARTICLE 24.

PERMITTED FINANCING


 


Section
24.1. Financing During Lease Term.  Lessee hereby expressly consents to
any first mortgage indebtedness incurred by Lessor, including without
limitation that certain loan made on or about the date hereof by Bear Stearns
Commercial Mortgage, Inc., together with any modification or replacement
thereof, including without limitation any subordinated financing and/or
mezzanine financing. With respect to any financing or refinancing (including
without limitation any mezzanine and subordinated financing or refinancing)
during the Base Term and during any Renewal Term, Lessor shall be free to
encumber the Property, provided that under no circumstances shall any such
financing adversely affect the rights and privileges of Lessee under this Lease
in any material respect or increase in any material respect the nature, scope
or amount of any obligations or liabilities (including any contingent
liabilities) of Lessee in excess of those


 


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existing prior to any such
further encumbrances by Lessor, and provided further that Lessee and Lender
shall each execute and deliver a subordination, non disturbance and attornment
agreement as provided in Section 25.27. Lessee agrees to cooperate with Lessor
(at Lessor’s cost) in connection with any financing or refinancing by Lessor
permitted hereunder, provided that Lessee and its Affiliates will have no
obligation to amend this Lease to facilitate such financing. Such cooperation
shall include without limitation naming such Lender or new Lender as an
additional insured and/or loss payee, as applicable, and making payments of
Base Rent to or at the direction of such Lender or new Lender.


 


Section
24.2. Lessee’s Consent to Assignment for
Indebtedness.  Lessee
acknowledges that in order to secure Lessor’s obligations to Lender, Lessor may
agree, among other things, to the assignment (to the extent provided therein)
to Lender of Lessor’s right, title and interest to this Lease. While the
Mortgage or any replacements thereof are in effect and provided that Lessor has
notified Lessee in writing of the existence and name and address of Lender,
Lessee hereby:


 


(a)           consents to such assignment in this
Lease;


 


(b)           covenants to, if so directed by
Lessor, make payment directly to Lender or its designee in accordance with the
terms of this Lease of Base Rent and any amounts payable under Article 17; and


 


(c)           agrees that:


 


(i)            all consents,
approvals, waivers and the like to be delivered by Lessor pursuant to this
Lease shall be given by Lessor and by Lender, provided that if Lessor has not
advised Lessee of the existence and name and address of Lender as required
above, then Lessee shall be entitled to rely on any such consent, approval,
waiver and the like delivered solely by Lessor as being valid and in full force
and effect;


 


(ii)           it shall not,
except as provided under Applicable Law, seek to recover from Lender any moneys
paid to Lender by virtue of the foregoing provisions; provided, however, that
the foregoing provisions shall not limit Lessee’s right to recover (A) any
duplicate payment made to Lender whether due to computational or administrative
error or otherwise, if Lender has received such payment. (B) all or any portion
of a payment in excess of the amount then due under this Lease or otherwise
owed by Lessor to Lessee under this Lease and (C) any amounts that have been
paid to or are actually held by Lender that are required to be refunded, repaid
or otherwise released to or for the benefit of Lessee under this Lease;


 


(iii)          no payment of Base
Rent by Lessee shall be of any force or effect unless paid to Lender as
provided above;


 


(iv)          Lessee shall not pay
any Base Rent more than thirty (30) days prior to such payment’s scheduled due
date except as otherwise provided in this Lease;


 


(v)           Lessee shall not
enter into any agreement subordinating or (except as expressly permitted by the
terms of this Lease as in effect on the date hereof)


 


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surrendering,
canceling, or terminating this Lease without the prior written consent of
Lender, and any such attempted subordination or termination without such
consent shall be void;


 


(vi)          Lessee shall not
enter into any amendment or modification of this Lease without the prior
written consent of Lender, and any such attempted amendment or modification
without such consent shall be void; and


 


(vii)         if this Lease is
amended, it shall continue to constitute collateral under the Mortgage without
the necessity of any further act by Lessor, Lessee or Lender.


 


With
respect to any consent to be provided by Lender pursuant to clause (vi) of this
Section 24,2(c) relating to any Lease amendment or modification which reduces
any Rent payable under this Lease or materially affects any material obligation
of the Lessee under this Lease, Lender shall have fifteen (15) Business Days
after Lessee’s delivery of its request for consent (WHICH CLEARLY SHALL STATE
IN BOLD-FACE TYPE THAT THE FAILURE TO RESPOND WITHIN FIFTEEN (15) BUSINESS DAYS
WILL RESULT IN DEEMED CONSENT UPON FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS
DAYS AFTER A “FAILURE TO RESPOND” SECOND NOTICE), within which Lender may grant
or not grant Lessee’s request for consent. If Lender shall not have responded
to Lessee within such 15-Business Day period, Lessee may give a second notice
WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE FAILURE TO RESPOND WITHIN
FIVE (5) BUSINESS DAYS SHALL BE DEEMED CONSENT. If Lender shall not, within
five (5) Business Days after such second notice, notify Lessee that such
consent will not be granted, such consent shall be deemed to have been granted.


 


With
respect to any consent to be provided by Lender pursuant to clause (vi) of this
Section 24.2(c) relating to any Lease amendment or modification other than a
Lease amendment or modificatioin which reduces any Rent payable under this
Lease or materially affects any material obligation of the Lessee under this
Lease, the time period provided in Section 25.20(a) shall be applicable.


 


Section
24.3. Conflicting Instructions.  Nothing herein shall be construed
as Lessee’s agreement to be bound and perform the obligations of Lessor under
any Mortgage or other debt documents. If Lessee receives conflicting directions
from Lessor and Lender or is in good faith uncertain as to whether it should
comply with a direction from either Lessor or Lender, then Lessee shall be
permitted to seek written confirmation from Lessor and Lender or, if the matter
in dispute regards the payment of money by Lessee, pay the same into a court
and provide Lessor and Lender with reasonably prompt notice of such payment,
the cost of all of such actions (including without limitation reasonable
attorneys’ fees and expenses) to be reimbursed to Lessee by Lessor promptly
upon written notice thereof, including sufficient back-up documentation, and if
such costs are not so reimbursed, Lessee shall be entitled to offset the amount
thereof (together with interest thereon at the Default Rate) from payments of
Rent.


 


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ARTICLE 25.

MISCELLANEOUS


 


Section
25.1. Binding Effect; Successors and
Assigns; Survival.  The terms
and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and Lessee, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of
Lessor, any Person to whom Lessor may transfer the Property in accordance with
Article 23) and inure to the benefit of their respective permitted successors
and assigns, and the rights hereunder of Lender shall inure (subject to such
conditions as are contained herein) to the benefit of its permitted successors
and assigns.


 


Section
25.2. Quiet Enjoyment.  Lessor covenants and agrees that
Lessee shall have the right to peaceably and quietly hold, possess and use any
and all of the Property hereunder during the Lease Term so long as no Lease
Event of Default has occurred and is continuing.


 


Section
25.3. Notices.  Unless otherwise specifically
provided herein, all notices, consents, directions, approvals, instructions,
requests and other communications required or permitted by the terms hereof to
be given to any Person shall be in writing sent to either that Person’s
Address, with a copy thereof to be sent to each Person to receive a copy
pursuant to the definition of “Address”, by (a) a prepaid nationally recognized
overnight courier service, in which event such notice shall be deemed received
one (1) Business Day after delivery to such courier service specifying
overnight delivery, or (b) U.S. certified or registered mail, return receipt
requested, postage prepaid, in which event such notice shall be deemed received
when actually received, as evidenced by the return receipt, or when delivery is
first refused. From time to time, either party may designate a new Address for
purposes of notice hereunder by giving fifteen (15) days’ written notice
thereof to each of the other parties hereto, subject in the case of Lessor to
Section 23.1(c); provided, however, that no new notice address for Parent
Guarantor (as set forth in the notice addresses for Lessee in the definition of
“Address”) shall be effective without the consent of the Parent Guarantor. All
notices given hereunder shall be irrevocable unless expressly specified
otherwise. Lessor shall endeavor to label any envelope which contains a notice
of default with the legend “Default Notice,” but its failure to do so shall not
invalidate or affect in any way such notice.


 


Section
25.4. Severability.  Any provision of this Lease that
shall be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction, and each
party hereto shall remain liable to perform its obligations hereunder except to
the extent of such unenforceability. To the extent permitted by applicable law,
Lessee hereby waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.


 


Section
25.5. Amendments, Complete Agreements.  Neither this Lease nor any of the
terms hereof may be terminated, amended, supplemented, waived or modified
orally, but may be terminated, amended, supplemented, waived or modified only
by an instrument in writing signed by the party against which the enforcement
of the termination, amendment, supplement, waiver or modification shall be
sought and, as required by the Mortgage or related documents, by


 


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Lender. This Lease is
intended by the parties as a final expression of their lease agreement and as a
complete and exclusive statement of the terms thereof, all negotiations,
considerations and representations between the parties having been incorporated
herein. No representations, undertakings, or agreements have been made or
relied upon in the making of this Lease other than those specifically set forth
herein.


 


Section
25.6. Headings.  The Table of Contents and headings
of the various Articles and Sections of this Lease are for convenience of
reference only and shall not modify, define or limit any of the terms or
provisions hereof.


 


Section
25.7. Counterparts.  This Lease may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.


 


Section
25.8. Governing Law.  This Lease shall be governed by,
and construed in accordance with, the laws of the State of Illinois.


 


EACH
OF LESSOR AND LESSEE HEREBY SUBMITS TO JURISDICTION IN THE STATE OF ILLINOIS
AND COOK COUNTY AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED
IN THE STATE OF ILLINOIS AND COOK COUNTY (AND ANY APPELLATE COURTS TAKING APPEALS
THEREFROM) FOR THE ENFORCEMENT OF SUCH PERSON’S OBLIGATIONS HEREUNDER. EACH OF
LESSOR AND LESSEE HEREBY WAIVES AND AGREES NOT TO ASSERT AS A DEFENSE IN ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE AND BROUGHT
IN ANY SUCH COURT IN THE STATE OF ILLINOIS AND COOK COUNTY (A) THAT IT IS NOT
SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE
BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE
FROM EXECUTION, (B) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR (C) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS
IMPROPER. LESSEE AND LESSOR EACH HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATED TO THE ENFORCEMENT OF THIS
LEASE.


 


Section
25.9. Memorandum.  Lessee and Lessor agree that a
memorandum of this Lease (and any amendment hereof) in the form mutually agreed
to by Lessor and Lessee shall be executed and recorded, at Lessee’s expense, in
the land records of the jurisdiction in which the Property is situate.


 


Section
25.10. Estoppel Certificates.  Each party hereto agrees that at
any time and from time to time during the Lease Term (but on no more than two
occasions during each Lease Year), it will promptly, but in no event later than
ten (10) days after request by the other party hereto, execute, acknowledge and
deliver to such other party a certificate in the form of Exhibit C attached
hereto. In addition, each party agrees to include in such certificate such
other items as may be reasonably requested under the circumstances giving rise
to the delivery of such certificate. Such certificate may be relied upon by any
bona fide, permitted purchaser of, or


 


37





















 


mortgagee
with respect to, Lessor’s or Lessee’s interest in the Property (direct or
indirect), or any prospective sublessee of Lessee in respect of all or a
portion of the Property.


 


Section
25.11. Easements.  (a) So long as no Lease Event of
Default has occurred and is then continuing, and provided that no such action
could in either Lender’s or Lessor’s reasonable judgment be expected to have a
material adverse effect upon Lessee’s ability to perform its obligations under
this Lease, or on the Fair Market Rent or Fair Market Sales Value of the
Property, Lessor hereby agrees to cooperate with Lessee, at Lessee’s sole cost
and expense, in doing any of the following: (i) the granting of, or entry into
agreements in connection with, easements, licenses, rights-of-way, building and
use restrictions and covenants and other rights and privileges in the nature of
easements or similar interests and burdens reasonably necessary or desirable
for the use, repair, maintenance or protection of the Property as herein provided;
(ii) the release of existing easements or other rights in the nature of
easements which are for the benefit of, or burden to, the Property; (iii) the
seeking of any zoning variances or modifications to existing zoning; and (iv)
the execution of amendments to, or waivers or releases of, any easements,
licenses or covenants and restrictions affecting the Property; provided,
however, that in each case (A) such grant, release, dedication, transfer,
amendment, agreement or other action does not materially impair the value,
utility, residual value or remaining useful life of the Property; (B) such
grant, release, dedication, transfer, amendment, agreement or other action in
the Lessee’s judgment is reasonably necessary in connection with the use,
maintenance, alteration or improvement of the Property; (C) such grant,
release, dedication, transfer, amendment, agreement or other action will not
cause the Property or any portion thereof to fail to comply with the provisions
of this Lease or any Applicable Law (including all applicable zoning, planning,
building and subdivision ordinances, all applicable restrictive covenants and
all applicable architectural approval requirements); (D) all governmental
consents or approvals required prior to such grant, release, dedication,
transfer, amendment, agreement or other action have been obtained, and all
filings required prior to such action have been made; (E) Lessee shall remain
obligated under this Lease in accordance with its terms, as though such grant,
release, dedication, transfer, amendment, agreement or other action had not
been effected; and (F) Lessee shall pay and perform any obligations of Lessor
under such grant, release, dedication, transfer, amendment, agreement or other
action; and provided further that in the event any of the foregoing actions is
material to the operation of the Property, Lessor may require Lender’s
approval. Lessor acknowledges that Lessee’s and any existing lessee’s or
existing or future sublessee’s right to finance and to secure under the Uniform
Commercial Code, inventory, furnishings, furniture, equipment, machinery,
leasehold improvements and other personal property located at the Property
other than Fixtures, and Lessor agrees to execute Lessor waiver forms and
releases of Lessor’s Liens in favor of any purchase money seller, lessor or
lender which has financed or may finance in the future such items. Without
limiting the effectiveness of the foregoing, provided that no Lease Event of
Default shall have occurred and be continuing, Lessor and Lender shall, upon
the request and at the sole cost and expense of Lessee, execute and deliver any
instruments necessary or appropriate to confirm (or in the case of Lender, to
consent to or to subordinate its interest in the Property to) any such grant,
release, dedication, transfer, amendment, agreement or other action to any
Person permitted under this Section 25.11 (a), including without limitation
landlord waivers with respect to any of the foregoing.


 


With respect to action or
consent to be provided by Lessor or Lender pursuant to this Section 25.11,
Lessor and Lender shall each have fifteen (15) Business Days after Lessee’s


 


38





















 


delivery of its request for
consent (WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE FAILURE TO
RESPOND WITHIN FIFTEEN (15) BUSINESS DAYS WILL RESULT IN DEEMED CONSENT UPON
FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER A “FAILURE TO RESPOND”
SECOND NOTICE), together with the proposed easement or other document (and any
items, such as a survey, which may be reasonably necessary in respect thereof),
within which Lessor and Lender, as the case may be, may grant or not grant
Lessee’s request for consent. If Lessor or Lender, as the case may be, shall
not have responded to Lessee within such 15-Business Day period, Lessee may
give a second notice WHICH CLEARLY SHALL STATE IN BOLD-FACE TYPE THAT THE
FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS SHALL BE DEEMED CONSENT. If
Lessor or Lender, as the case may be, shall not, within five (5) Business Days
after such second notice, notify Lessee that such consent will not be granted,
such consent shall be deemed to have been granted, and Lessor or Lender, as the
case may be, shall execute and deliver the requested easement or other
document.


 


(b)           Lessor agrees that it shall not grant
any easements, licenses or other possessory interests in the Property to any
party without Lessee’s prior written consent, which shall not be unreasonably
withheld or delayed, provided that Lessee’s consent shall not be required (i)
during the continuation of a Lease Event of Default or (ii) to the extent such
easement, license or other possessory interest is required by Applicable Law.


 


Section
25.12. No Joint
Venture.  Any intention to create
a joint venture or partnership relation between Lessor and Lessee is hereby
expressly disclaimed.


 


Section
25.13. No Accord and Satisfaction.  The acceptance by Lessor of any
sums from Lessee (whether as Rent or otherwise) in amounts which are less than
the amounts due and payable by Lessee hereunder is not intended, nor shall be
construed, to constitute an accord and satisfaction or compromise of any
dispute between such parties regarding sums due and payable by Lessee
hereunder, unless Lessor specifically deems it as such in writing.


 


Section
25.14. No Merger.  In no event shall the leasehold
interests, estates or rights of Lessee hereunder, or of Lender, merge with any
interests, estates or rights of Lessor in or to any and all of the Property, it
being understood that such leasehold interests, estates and rights of Lessee
hereunder, and of Lender, shall be deemed to be separate and distinct from
Lessor’s interests, estates and rights in or to the Property, notwithstanding
that any such interests, estates or rights shall at any time or times be held
by or vested in the same person, corporation or other entity.


 


Section
25.15. Lessor Bankruptcy.  During the Lease Term, the parties
hereto agree that if Lessee elects to remain in possession of any and all of
the Property after the rejection of this Lease by Lessor under Section 365(h)
of the Bankruptcy Code, all of the terms and provisions of this Lease shall be
effective during such period of possession by Lessee, including the Renewal
Terms and Lessee’s purchase rights hereunder. even if Lessor becomes subject to
a case or proceeding under the Bankruptcy Code prior to the commencement of any
such Renewal Term or the exercise by Lessee of such purchase rights.


 


39





















 


Section
25.16. Naming and Signage of the Property.  (a) Lessee shall have the sole and
exclusive right, at any time and from time to time, to select and/or change the
name or names of the Property, the internal roadways on the Property, and the
Improvements, and the sole and exclusive right to determine not to use any name
in connection with the Property, as well as all rights in respect of signage
for or in connection with the Property. Lessee shall also have the right to
petition or apply to the appropriate Governmental Authority to have the names
of the public roadways surrounding the Property changed, and Lessor shall, at
Lessee’s expense, cooperate with Lessee to effectuate any such name change.
Lessor shall not have or acquire any right or interest with respect to any such
name or names used at any time by Lessee, or any trade name, trademark service
mark or other intellectual property of any type of Lessee. Lessor shall
cooperate with Lessee to effectuate Lessee’s sign rights hereunder, at no cost
to Lessor. Lessee may install any sign or signs on the Property as it elects,
at its sole cost and in compliance with Applicable Laws. Any signs installed by
Lessee (other than those existing as of the commencement of the Lease Term)
shall be removed by Lessee at the expiration or earlier termination of the
Lease Term, and Lessee shall repair any damage caused by such removal.


 


(b)           Lessee’s name and the name of the
Property as selected by Lessee pursuant to Section 25.16 (the “Property Name”)
shall remain the exclusive property of Lessee and Lessor’s rights with respect
thereto shall be limited to those expressly permitted pursuant to this Section
25.16(b). For so long as Lessee uses the Property Name, Lessor and any other
tenants, subtenants and other occupants of and licensees with respect to the
Property may use the Property Name as part of their address and/or to identify
a service location (including but not limited to in notices, announcements and
advertising), but nothing contained herein shall grant any Person the right to
use Lessee’s name, logo, trademarks or service marks without Lessee’s prior
written consent, which consent may be withheld in Lessee’s sole discretion,
provided that Lessor may use the Property Name or Lessee’s name in any filings made
by it with the Securities and Exchange Commission or any Government Authority
to the extent such information is required to be included in such filings.
Lessor shall reasonably cooperate with Lessee, at Lessee’s sole cost and
expense, in such actions as Lessee deems reasonably necessary or appropriate to
protect Lessee’s rights with respect to Lessee’s name, logo, trademarks or
service marks and the Property Name selected by Lessee. Upon termination of
this Lease, Lessor shall rename the Property and neither Lessor nor any other
Person shall thereafter be permitted to use the Property Name under any
circumstances.


 


Section
25.17. Expenses.  Whenever this Lease provides for
the reimbursement by Lessee of costs and expenses of Lessor or any other party,
then such reimbursement obligation shall be limited to actual, out-of pocket
third-party costs and expenses, including without limitation reasonable
attorneys’ fees.


 


Section
25.18. Investments.  Any moneys held by Lessor (or by
Lender or the Proceeds Trustee) pursuant to this Lease, including Section 12.4,
shall, until paid to Lessee, be invested by Lessor, Lender or the Proceeds
Trustee, as the case may be, in Permitted Investments on behalf of Lessee. Any
gain (including interest received) realized as a result of any such investment
shall be retained, distributed and re-invested in the same manner as the
original principal amount. Lessor (and Lender) shall have no liability for any
losses arising from any such investments or reinvestments. At such time as there
no longer exists a requirement under this Lease for Lessor,


 


40





















 


Lender or the Proceeds
Trustee to hold such amounts, such amounts, together with any income thereon,
shall be disbursed to Lessee.


 


Section
25.19. Further Assurances.  Lessor and Lessee, at the cost and
expense of the requesting party (except as otherwise set forth in this Lease to
the contrary), will cause to be promptly and duly taken, executed, acknowledged
and delivered all such further acts, documents and assurances as the other
party reasonably may request from time to time in order to carry out more
effectively the intent and purposes of this Lease. Nothing herein shall
obligate Lessee to provide to Lessor or Lender any proprietary or confidential
information relating to the manner, method and procedures of Lessee’s business
operations. Lessee also agrees to cooperate with Lessor in determining how to
allocate the purchase price paid for the property for purposes of depreciation.


 


Section
25.20. Approval Standards; Evidence of
Disapprovals.  (a) Each of
Lessor and Lender shall be deemed to have approved any item for which Lessee
requests approval under this Lease at any time or from time to time, unless
such Person shall have provided express written notice to Lessee within ten
(10) Business Days after Lessee’s request for such approval (or for any
particular provision of this Lease which expressly provides for a different
period of time for approval, such period of time) of any such disapproval,
which notice shall be in writing and shall specifically indicate: (i) that it
is a disapproval notice under this Section 25.20, (ii) the item so disapproved
and (iii) the specific reason for such disapproval (which disapproval and the
reason therefor must be reasonable).


 


(b)           To the extent, if any, that Lessee’s
approval is required hereunder, Lessee shall be deemed to have approved any
item for which Lessor requests approval under this Lease at any time or from
time to time, unless Lessee shall have provided express written notice to
Lessor within ten (10) Business Days after Lessor’s request for such approval
(or for any particular provision of this Lease which expressly provides for a
different period of time for approval, such period of time) of any such
disapproval, which notice shall be in writing and shall specifically indicate:
(a) that it is a disapproval notice under this Section 25.20, (b) the item so
disapproved and (c) the specific reason for such disapproval (which disapproval
and the reason therefor must be reasonable).


 


Section
25.21. Confidentiality of Parties Names.  Either party may disclose the
contents of this Lease to any other Person, provided that such party redacts
all references to the other party and/or its Affiliates and the identification
of the Property.


 


Section 25.22.
Lessor Exculpation.  Anything to the contrary in this Lease
notwithstanding, the covenants contained in this Lease to be performed by
Lessor shall not be binding on any member of Lessor in its or his or her
individual capacity, but instead said covenants are made for the purpose of
binding only Lessor’s right, title and interest in and to the Property, and
none of Lessor or any of its Affiliates or successors and assigns shall have
any liability under this Lease in excess of, and Lessee shall have no recourse
under this Lease against Lessor or any Affiliate of it except for Lessor’s
interest (to the extent not pledged or assigned) in the Property, Rent and
proceeds of the Property.


 


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Section
25.23. Remedies Cumulative.  To the extent permitted by, and
subject to the mandatory requirements of, Applicable Laws, each and every
right, power and remedy herein specifically given to Lessor in this Lease or
otherwise existing at law or in equity shall be cumulative and shall be in
addition to every other right, power and remedy herein specifically given or
now or hereafter existing at law, in equity or by statute, and each and every
right, power and remedy whether specifically herein given or otherwise existing
may be exercised from time to time and as often and in such order as may be
deemed expedient by Lessor. No delay or omission by Lessor in the exercise of
any right, power or remedy or in the pursuit of any remedy shall impair any
such right, power or remedy or be construed to be a waiver of any default on
the part of Lessee or to be an acquiescence therein. Lessor’s consent to any
request made by Lessee shall not be deemed to constitute or preclude the
necessity for obtaining Lessor’s consent, in the future, to all similar
requests. No waiver by Lessor of any default shall in any way be, or be
construed to be. a waiver of any future or subsequent default.


 


Section
25.24. Holding Over.  Subject to Section 12.1 and the
last sentence of Section 10.1(b), Lessee covenants that if for any reason
Lessee or any subtenant of Lessee shall fail to vacate and surrender possession
of the Property or any part thereof, in the condition required herein, on or
before the expiration or earlier termination of this Lease, then Lessee’s
continued possession of the Property shall be as a tenant at sufferance, during
which time Lessee shall pay to Lessor an amount equal to (a) one hundred fifty
percent (150%) of the total monthly amount of Rent payable hereunder
immediately prior to such termination (the “Existing
Rent”) for the first forty-five (45) days during which Lessee holds
over and (b) one hundred seventy-five percent (175%) of the Existing Rent
thereafter. Lessor shall not be entitled to any other damages as a result of
Lessee’s continued possession of the Property. The provisions of this Section
25.24 shall not in any way be deemed to (i) permit Lessee to remain in
possession of the Property after the expiration date or sooner termination of
this Lease or (ii) imply any right of Lessee to use or occupy the Property upon
expiration or termination of this Lease and the Lease Term and no acceptance by
Lessor of payments from Lessee after the expiration date or sooner termination
of the Lease Term shall be deemed to be other than on account of the amount to
be paid by Lessee in accordance with the provisions of this Section 25.24.
Lessee’s obligations under this Section 25.24 shall survive the expiration or
earlier termination of this Lease.


 


Section
25.25. Survival. The following
provisions shall survive the termination of this Lease: (a) Sections 3.5, 6.1,
8.4(e) and (f), 8.5, 8.6, 8.7, 8.8, 17.2, Articles 7, 10, 19 and 25 to the
extent relating to unfulfilled obligations of Lessee or Lessor arising or
occurring prior to the date of termination of this Lease, and (b) any provision
of this Lease pursuant to which Lessor or Lessee had an existing obligation
which was unsatisfied at the time of termination of this Lease and remains
unsatisfied, including, without limitation, to the extent there was any
unsatisfied obligation under Section 12.1 and Article 3; provided, however,
that nothing in this Section 25.25 shall be deemed to extend any applicable
statute of limitations.


 


Section
25.26. [Intentionally Omitted.]


 


Section
25.27. Relationship of Lease and Mortgage.  This Lease, the leasehold estate of
Lessee created hereby and all rights of Lessee hereunder are and shall be
senior or subordinate to the Mortgage and to all renewals, modifications,
consolidations, replacements and extensions of the Mortgage as requested by
Lender. Lender and Lessee shall each execute and deliver to the


 


42





















 


other party a subordination,
non disturbance and attornment agreement substantially in the form of Exhibit
D.


 


Section
25.28. Lessor Representations.  This Lease has been duly authorized
by all necessary action on the part of Lessor and has been duly executed and
delivered by Lessor, and the execution, delivery and performance hereof by
Lessor will not (i) require any consent or approval of any Person, other than
such consents and approvals as have been obtained, (ii) contravene any
Applicable Law binding on Lessor or (iii) contravene or result in any breach of
or constitute any default under Lessor’s organizational documents, or any
indenture, mortgage, loan agreement, contract, partnership or joint venture
agreement, lease or other agreement or instrument to which Lessor is a party or
by which Lessor is bound.


 


43





















 


IN
WITNESS WHEREOF, Lessor and Lessee have duly authorized, executed and delivered
this Lease as of the date first hereinabove set forth.


 


	
   

  	
  LESSOR:

  
	
   

  	
   

  
	
   

  	
  MB HOFFMAN ESTATES,
  L.L.C., a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LESSEE:

  
	
   

  	
   

  
	
   

  	
  SBC SERVICES, INC., a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
						



 


The undersigned, on behalf
of Inland American Real Estate Trust. Inc., a Maryland corporation, hereby
acknowledges its consent and agreement to be bound by the provisions of
Articles 4 and 23 of this Lease.


 


	
  INLAND AMERICAN REAL
  ESTATE INVESTMENT TRUST, INC.,

  a Maryland corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


44





















 


APPENDIX A


 


Definitions


 


For
purposes of this Lease, unless otherwise specified or the context otherwise
requires, the following rules of construction and usage shall apply:


 


(i) any term defined above by reference to another instrument or
document shall continue to have the meaning ascribed thereto whether or not
such other instrument or document remains in effect;


 


(ii) words which include a number of constituent parts, things or
elements, shall be construed as referring separately to each constituent part,
thing or element thereof, as well as to all of such constituent parts, things
or elements as a whole;


 


(iii) references to any Person include such Person’s successors and assigns
and in the case of an individual, the word “successors” includes such Person’s
heirs, devisees, legatees, executors, administrators and personal
representatives;


 


(iv) words importing the singular include the plural and vice versa; 


 


(v) words importing a gender include any gender;


 


(vi) the words “consent”, “approve”, “agree” and “request”, and
derivations thereof or words of similar import, mean the prior written consent,
approval, agreement or request of the Person in question;


 


(vii) a reference to any statute, regulation, proclamation, ordinance
or law includes all statutes, regulations, proclamations, ordinances or laws
varying, consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise applicable
under that statute;


 


(viii) the words “including” and “includes,” and words of similar
import, shall be deemed to be followed by the phrase “without limitation”;


 


(ix) the words “hereof and “hereunder,” and words of similar import,
shall be deemed to refer to this Lease as a whole and not to the specific
section or provision where such word appears;


 


(x) unless the context shall otherwise require, a reference to the “Property”
or “Improvements” shall be deemed to be followed by the phrase “or a portion
thereof”;


 


(xi) the Schedules and Exhibits of this Lease are incorporated herein
by reference; and


 


(xii) the titles and headings of Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses are inserted as a matter of
convenience and shall not affect the construction of this Lease.


 


45





















 


“Actual Knowledge” with respect to any Person, shall mean the present, conscious, actual
knowledge of, or receipt of notice by, (i) with respect to Lessor, senior
officers of Lessor or the officers or employees of Lessor charged with the
oversight on its behalf of the transactions contemplated by this Lease, and
(ii) with respect to Lessee, Joseph D. Buckman, Director of Transactions, of
Lessee, and no other Person, in each case as presently recollected by such
Person without any review of files or other investigation or inquiry of any
kind and without such Person being responsible for knowledge of the acts,
omissions and/or knowledge of the other party’s agents or employees.


 


“Additional Expenses” shall have the meaning specified in
Section 17.1(b). 


 


“Additional Renewal Term” shall have the meaning specified in Section 5.1 (ii).


 


“Address”
shall mean, subject to the rights of the party in question to change its
Address in accordance with the terms of this Lease:


 


	
  (i) with respect to
  Lessee: 

  	
  SBC Services, Inc.

  
	
   

  	
  225 W. Randolph St.

  
	
   

  	
  Z2, Rm l3A

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attention:

  	
  Joseph D. Buckman

  
	
   

  	
   

  	
  Director, Corporate Real
  Estate Transactions

  
	
   

  	
   

  
	
  with copies to Parent
  Guarantor as follows:

  
	
   

  	
  SBC Communications Inc.

  
	
   

  	
  175 East Houston Street

  
	
   

  	
  Room 4-A-40

  
	
   

  	
  San Antonio, Texas 78205

  
	
   

  	
  Attention:

  	
  Kenneth H. Gitter

  
	
   

  	
   

  	
  General Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
  SBC Communications Inc.

  
	
   

  	
  175 East Houston Street

  
	
   

  	
  San Antonio, TX 78205

  
	
   

  	
  Room 7-E-10

  
	
   

  	
  San Antonio, Texas 78205

  
	
   

  	
  Attention: 

  	
  Director-Corporate Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
  Equis Corporation

  
	
   

  	
  P.O. Box 641338

  
	
   

  	
  Suite 2400

  
	
   

  	
  Chicago, Illinois
  60664-1338

  
	
   

  	
  Attention: Stephen J.
  Tinsley

  



 


2





















 


	
  (ii) with respect to
  Lessor:

  	
  MB Hoffman Estates, L.L.C.

  
	
   

  	
  c/o The Inland Real Estate Group, Inc.

  
	
   

  	
  2901 Butterfield Road

  
	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
  Attention: Chief Financial
  Officer

  
	
   

  	
   

  
	
  with a copy to:

  	
  The Inland Real Estate
  Group, Inc.

  
	
   

  	
  2901 Butterfield Road

  
	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
  Attention: General Counsel

  



 


“Affiliate” of any Person shall mean any Person directly or indirectly controlling,
controlled by or under common control with, such Person and shall include, if
such Person is an individual, members of the Family of such Person and trusts
for the benefit of such individual or Family members. For purposes of this
definition, the term, “control” (including
the correlative meanings of the terms “controlling”
“controlled by” and “under common
control with”), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.


 


“Alterations” shall mean alterations, improvements, installations, demolitions,
modifications, changes and additions to the Property.


 


“Applicable Laws” shall mean (i) all existing and future applicable laws (including
common laws), rules, regulations, statutes, treaties, codes, ordinances,
permits, certificates, orders and licenses of and interpretations by any
Governmental Authority (including without limitation Environmental Laws), and
applicable judgments, decrees, injunctions, writs, orders or like action of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal
or agency of competent jurisdiction (including those pertaining to the
environment and those pertaining to the construction, use or occupancy of the
Property), and (ii) any reciprocal easement agreement, covenant, other
agreement or deed restriction or easement of record affecting the Property as
of the date hereof or subsequent hereto pursuant to the terms of this Lease
(but excluding for purposes of this definition the Mortgage and related debt
documents).


 


“Appraisal Procedure” shall mean the following procedure for
determining the Fair Market Sales Value, the Fair Market Rent or any other
amount which may, pursuant to any provision of this Lease, be determined by the
Appraisal Procedure: one Qualified Appraiser shall be chosen by Lessor and one
Qualified Appraiser shall be chosen by Lessee. If Lessee or Lessor fails to
choose a Qualified Appraiser within twenty (20) Business Days after written
notice from the other party of the selection of its Qualified Appraiser, then
the appraisal by such appointed Qualified Appraiser shall be binding on the
parties. If both parties select a Qualified Appraiser, but the two Qualified
Appraisers cannot agree on a value within twenty (20) Business Days after the
appointment of the second Qualified Appraiser, then a third Qualified Appraiser
shall be selected by the two Qualified Appraisers or, failing agreement as to
such third Qualified Appraiser within thirty (30) Business Days after the
appointment of the second Qualified Appraiser, by the American Arbitration
Association office in Chicago, Illinois. The appraisals of


 


3





















 


the
three Qualified Appraisers shall be given within twenty (20) Business Days of
the appointment of the third Qualified Appraiser; such three appraisals shall
be averaged and such average appraised value shall be the appraised value,
provided that if any one of the three appraisals diverges from such average by
ten percent (10%) or more, that appraisal shall be discarded and the average of
the remaining two appraisals shall be the appraised value binding on the
parties. The fees and expenses of the Qualified Appraiser appointed by a party
shall be paid by such party; the fees and expenses of the third Qualified
Appraiser shall be divided equally between the two parties, except that all
fees and expenses of all the Qualified Appraisers shall be paid by Lessee in the
case of an appraisal or determination under Article 17.


 


“Arbitration” shall mean submission of the dispute in question to the American
Arbitration Association in Chicago, Illinois for binding resolution in
accordance with its expedited arbitration procedures. Any issue submitted to
Arbitration pursuant to this Lease shall be reviewed and settled by a single
arbitrator pursuant to the American Arbitration Association’s Commercial
Arbitration Rules, including the Optional Rules for Emergency Measures of Protection,
then in effect. The arbitrator shall be chosen from a panel of experts,
licensed, if applicable, having at least fifteen (15) years’ of professional
experience in the appropriate field related to the issue in question. The
arbitrator shall be appointed within thirty (30) days after either party
determines that there is a need for Arbitration. Discovery shall be permitted
in accordance with the Federal Rules of Civil Procedure. If an arbitration
proceeding is brought pursuant to this Lease, the unsuccessful party shall pay
the costs, including reasonable attorneys’ fees and disbursements, incurred by
the successful party and the costs of the arbitration. The arbitrator shall
have the authority to grant injunctive relief in a form similar to that which a
court of law would otherwise grant, and judgment upon the award rendered by the
arbitrator shall be entered in any court having jurisdiction thereof. All
aspects of the Arbitration shall be treated as confidential. Neither the
parties nor the arbitrator may disclose the existence, content or results of
the Arbitration, except as necessary to enforce award or to comply with legal
or regulatory requirements. Before making any such disclosure, the party
intending to make the disclosure shall give the other party written notice of
that intention and shall afford the other party a reasonable opportunity (not
less than twenty (20) days) to protect its interests.


 


“Authorized Officer” shall mean, with respect to a Person that is
not an individual, any officer or principal of the Person, any trustee of the
Person (if the Person is a trust), any general partner or joint venturer of the
Person (if the Person is a partnership or joint venture) or any manager or
member that is a manager of the Person (if the Person is a limited liability
company) who shall be duly authorized to execute this Lease.


 


“Award” shall have the meaning given to such term in Section 12.5 of this
Lease.


 


“Bankruptcy Code” shall mean the Bankruptcy Reform Act of 1978, as amended and as may be
further amended.


 


“Base Rent” shall mean, for the Base Term, the rent payable pursuant to Section 3.1
of this Lease and, for any Renewal Term, the rent payable pursuant to Article 5
of this Lease, as such amounts may be adjusted from time to time.


 


4





















 


“Base Term” shall mean the period commencing on the Closing Date and ending on                        ,(2) or such shorter period as may result from
earlier termination of this Lease as provided therein,


 


“Building” shall mean any of the SBC Building, the Eagle Way Building or the
Lakewood Building, as applicable.


 


“Business Day” shall mean any day other than a Saturday, Sunday or other day on which
banks are authorized to be closed in the State of New York or the State of
Illinois.


 


“Capital Repairs” shall have the meaning specified in Section 8.2(b).


 


“Casualty” shall mean any fire, explosion or other casualty causing damage or
destruction to the Property and/or the Improvements.


 


“Claims” shall mean Liens (including, without limitation, lien removal and
bonding costs but excluding Permitted Liens), liabilities, obligations,
damages, losses, demands, penalties, assessments, payments, fines, claims,
actions, suits, judgments, settlements, costs, expenses and disbursements
(including, without limitation, reasonable, actually-incurred legal fees and
expenses) of any kind and nature whatsoever.


 


“Closing Date” shall mean
                              .


 


“Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time.


 


“Condemnation” shall mean any condemnation, requisition or other taking or sale of the
use, occupancy or title to any or all of the Property (including the parking
structures) by or on account of any eminent domain proceeding or other action
by any Governmental Authority or other Person under the power of eminent domain
or otherwise or any transfer in lieu or in anticipation thereof.


 


“Cost Limit” shall have the meaning specified in Section 8.2(b).


 


“CPI” shall
mean the national Consumer Price Index, for all urban consumers (1982-84=100),
all items, all cities, as published by the Bureau of Labor Statistics.


 


“Declaration” shall mean the declaration to be entered into in connection with the
transactions contemplated by the Purchase Contract and this Lease, as more
specifically described in the Purchase Contract.


 


“Default Rate” shall mean three percent (3%) above Prime Rate.


 


“Eagle Way Building” shall mean the building commonly referred to
as the Eagle Way building located at on the Property.


 


“Environmental Laws” shall mean all federal, state or local laws,
ordinances, rules, orders, statutes, decrees, judgments, injunctions, codes,
regulations and common law (a) relating


 










(2)                                  The
date preceding the 10th year, 9th month anniversary of the
Closing Date.


 


5





















 


to the environment, human
health or natural resources; (b) regulating, controlling or imposing liability
or standards of conduct concerning Hazardous Materials; (c) relating to the
remediation of the Property, including investigation, response, clean-up,
remediation, prevention, mitigation or removal of Hazardous Materials; or (d)
requiring notification or disclosure of releases of Hazardous Materials or any
other environmental conditions on the mortgaged property, as any of the
foregoing may have been or may be amended, supplemented or supplanted from time
to time, including the Resource Conservation and Recovery Act of 1976 (“RCRA”),
42 U.S.C. §§ 6901 et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act
of 1986, 42 U.S.C, §§ 9601 et seq. (“CERCLA”), the Hazardous Materials
Transportation Act of 1975, 49 U.S.C. §§ 1801-1812, the Toxic Substances
Control Act, 15 U.S.C. §§ 2601-2671, the Clean Air Act, 42 U.S.C. §§ 7041 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136
et seq., as any of the foregoing may have been or may be amended, supplemented
or supplanted from time to time.


 


“Equity Investor” shall mean Inland American Real Estate Investment Trust, Inc., a
Maryland corporation.


 


“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.


 


“Excepted Payments” shall mean and include (i) the amount by which Base Rent exceeds all
amounts then due and payable under any debt documents, any amount payable to
Lessor as a reimbursement for losses suffered by Lessor pursuant to Section
12.1 and any other amounts payable directly to Lessor under Article 18 or 19,
(ii) proceeds of general liability or property damage insurance maintained
under this Lease solely for the benefit of any Person other than Lender, and
(iii) any payment required under this Lease to be made directly by Lessee to a
third party, such as taxes, utility charges, ground rent, if any, and similar
payments.


 


“Excess”
shall have the meaning set forth in Section 8.2(b).


 


“Existing Rent” shall have the meaning specified in Section 25.24 of this Lease.


 


“Fair Market Rent” with respect to the Property (or the applicable portion thereof) shall
mean the fair market monthly rent that would be obtained in an arm’s-length
transaction between an informed and willing lessee and an informed and willing
lessor, in either case under no compulsion to lease, and neither of which is
related to Lessor or Lessee, for the lease of the Property (or the portion
thereof) on the terms set forth in this Lease, and taking into consideration
the fact that no brokerage commission will be payable and that Lessee will not
be receiving any tenant improvement allowance, period of free rent or other
economic concession. Such Fair Market Rent shall be calculated as the value for
the use of the Property as it is then actually used and assuming that Lessor
has complied with its maintenance and repair obligations under this Lease, that
the Property is in compliance with all Applicable Laws and that no Hazardous
Materials are present in, on, under or about the Property.


 


“Fair Market Sales Value” with respect to the Property shall mean the
fair market sales value that would be obtained in an arm’s-length transaction
between an informed and willing


 


6





















 


buyer and an
informed and willing seller, under no compulsion, respectively, to buy or sell,
and neither of which is related to Lessor or Lessee, for the purchase of the
Property. Such Fair Market Sales Value shall be calculated as the value of the
Property assuming that Lessor has complied with its maintenance and repair
obligations under this Lease, that the Property is in compliance with all
Applicable Laws and that no Hazardous Materials are present in, on, under or
about the Property.


 


“Family”
shall mean, as to any Person, such Person’s
grandparents, all lineal descendants of such Person’s grandparents, Persons
adopted by, or stepchildren of, any such grandparent or descendant and Persons
currently married to, or who are widows or widowers of, any such grandparent,
descendant, adoptee or stepchild.


 


“First
Refusal Notice” shall have the meaning specified in Section 4.1
(a).


 


“First
Renewal Term” shall have the meaning specified in Section 5.1(a)(i).


 


“Fixtures”
shall have the meaning specified in the definition of
the term Property.


 


“Governmental
Action” shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, decrees, licenses, exemptions, publications, filings, notices to and
declarations of any Governmental Authority, or required by any Applicable Laws,
including without limitation all citings, environmental and operating permits
and licenses that are required for the use, occupancy, zoning and operation of
the Property.


 


“Governmental
Authority” shall mean any federal, state, county,
municipal or other governmental or regulatory authority, agency, board, body,
commission, instrumentality, court or quasi governmental authority (or private
entity in lieu thereof).


 


“Hazardous
Material” shall mean any substance (whether solid,
liquid or gas), pollutant, contaminant, waste or material (including those that
are toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous or considered pollutants,
including petroleum, its derivatives, by-products and other hydrocarbons and
asbestos), in each case that is or becomes regulated by any Governmental
Authority or that may form the basis of liability under any Environmental Law.


 


“Impositions”
shall mean, collectively, (a) real estate taxes
on the Property; (b) ad valorem, sales and use, gross receipts,
transaction privilege, rent or similar taxes levied or incurred with respect to
the Property, or the use, lease, ownership or operation thereof; (c) personal
property tax on any property covered by this Lease that is classified by any
Governmental Authority as personal property; (d) assessments (including
all assessments for public improvements or benefits, whether or not commenced
or completed within the Lease Term), water, sewer, utilities or other rents and
charges; and (e) excises, levies, fees and all other governmental charges
of any kind or nature whatsoever, general or special, foreseen or unforeseen,
ordinary or extraordinary, with respect to the Property or any part thereof
and/or the Rent, including in all cases all interest and penalties thereon and
which at any time prior to, during or with respect to the Lease Term may be
assessed or imposed on or with respect to or be a Lien upon Lessor or the
Property or any part thereof or any rent therefrom or any estate, title or


 


7





















 


interest therein. Impositions shall exclude,
however, and nothing contained in the Lease or any debt documents or related
Mortgage shall be construed to require Lessee to pay, (i) any tax imposed
on Lessor or Lender based on the net income of Lessor or Lender or any transfer
tax imposed on Lessor, Lender or any other Person, except to the extent that
any tax described in this clause (i) is levied, assessed or imposed as a
total or partial substitute for a tax, assessment, levy or charge upon the
Property, the Rent or any part thereof or interest therein which Lessee would
otherwise be required to pay thereunder; (ii) any tax imposed with respect
to the sale, exchange or other disposition by (A) Lessor of the Property
or (B) Lender of its debt; (iii) franchise taxes, excess profits
taxes, capital gains taxes, taxes on doing business, capital taxes or taxes
imposed on net or gross income or receipts, mortgage recording taxes, value
added taxes or similar taxes, assessments or governmental charges; or (iv) any
gross receipts, transaction privilege, rent or similar tax, assessment, levy or
charge upon Lessor, the Property, the Rent or any part of any thereof or
interest therein, but solely to the extent that the same is levied, assessed or
imposed as a total or partial substitute for a tax, assessment, levy or charge
described in clause (i) or clause (ii) which Lessee would otherwise
not be required to pay hereunder.


 


“Improvements”
shall have the meaning specified in the definition of
the term Property.


 


“Initial
Renewal Terms” shall have the meaning specified in Section 5.1(a)(i).


 


“Inspecting
Party” shall have the meaning specified in Section 15.1.


 


“Intent
to Renew Date” shall have the meaning specified in Section 5.1(b)(i).


 


“Lakewood
Building” shall mean the building commonly referred to
as the Lakewood building located at                           on
the Property.


 


“Land”
shall have the meaning specified in the definition of
the term Property.


 


“Lease”
shall have the meaning set forth in the first
paragraph hereof.


 


“Lease
Event of Default” shall have the meaning specified in Article 16.


 


“Lease
Term” shall mean the full term of this Lease,
including the Base Term and any Renewal Terms as to which Lessee exercises a
renewal option pursuant to Article 5 of this Lease, or such shorter period
as may result from earlier termination of this Lease as provided herein.


 


“Lease
Year” shall mean each consecutive period of twelve
(12) full calendar months occurring after the Closing Date; provided, however,
that, if the Closing Date shall not be the first day of a month, then the first
Lease Year shall also include the partial month in which the Closing Date
occurs.


 


“Lender”
shall mean, from time to time, the holder of the first
lien Mortgage on the Property, provided that Lessor shall notify Lessee of the
existence and identity of any Lender. During periods when there is no Lender,
references herein to Lender shall have no force or effect.


 


8





















 


“Lessee”
shall mean the Lessee named in the first paragraph of
this Lease.


 


“Lessee
Capital Repair Items” shall have the meaning specified
in Section 8.2(b).


 


“Lessee
Indemnified Parties” shall have the meaning specified
in Section 19.l(b).


 


“Lessee
Parties” shall have the meaning specified in Section 19.1(a).


 


“Lessee’s
Equipment and Personalty” shall mean all furniture,
equipment and personal property of Lessee, including without limitation
inventory, racking, shelving, conveyer equipment, lifts, cabling, antennae,
machinery, air compressors, battery chargers, communication equipment, data
cabinets, automated teller machines, hoist equipment, lockers, plug-in light
fixtures, propane tanks, storage racks, trash compactors, signs, desks, movable
partitions, vending machines, computer software and hardware, movable storage
and utility rooms and removable trade fixtures and equipment, even if bolted or
otherwise affixed to the floors (including, without limitation,
telecommunication switches), in each case, as now or may hereafter exist in or
on the Improvements and any other personal property owned by Lessee or a
sublessee of Lessee or other occupant of the Property. In no case shall Lessee’s
Equipment and Personalty include fixtures or built-in heating, ventilating,
air-conditioning or electrical equipment (including power panels) utilized in
connection with the operation of the Property.


 


“Lessor”
shall mean the Lessor named in the first paragraph of
this Lease.


 


“Lessor
Capital Repair Items” shall have the meaning specified
in Section 8.2(c).


 


“Lessor
Indemnified Parties” shall have the meaning specified
in Section 19.1 (a).


 


“Lessor
Liens” shall mean Liens on or against the Property or
this Lease or any payment of Rent which result from (a) any act of or
Claim against Lessor or any violation by Lessor of any of the terms of the
Mortgage or any related debt documents, other than a violation due to a default
by Lessee under this Lease, (b) Liens in favor of any taxing authority by
reason of any Tax owed and payable by Lessor, except that Lessor Liens shall
not include any Lien resulting from any Tax for which Lessee is obligated to
indemnify Lessor until such time as Lessee shall have paid to or on behalf of
Lessor the Tax or the required indemnity with respect to the same, or (c) any
expenses owed, caused or occasioned by Lessor or any of its employees or agents
which are not indemnified by Lessee pursuant to Section 19.1; provided
that Lessor Liens shall not include Permitted Liens or any Liens created by the
Mortgage and any other debt documents, except to the extent any such Lien
arises by Lender’s payment of any of the foregoing.


 


“Lessor
Parties” shall have the meaning specified in Section 19.1(b).


 


“Lien”
shall mean any lien, mortgage, pledge, charge,
security interest or encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a security interest, including
without limitation any thereof arising under any conditional sale agreement,
capital lease or other title retention agreement.


 


“Material”
as used to describe Lessee’s compliance requirement in
Section 8.5 of this Lease shall mean that the failure to so comply may
reasonably be expected to result in material


 


9





















 


risk of (i) physical
injury to or death of any individual, (ii) criminal liability or (iii) fines
and/or compliance costs in excess of the Threshold Amount.


 


“Minor
Condemnation” shall mean any Condemnation of the
Property (including the parking structures) that is not a Substantial Taking of
the Property.


 


“Moody’s” shall mean Moody’s Investors Service, Inc. and its
successors.


 


“Mortgage”
shall mean a first lien deed of trust or mortgage
(together with any related assignment of rents) between the Lessor, as
mortgagor or trustor, and Lender, as mortgagee or beneficiary, and as the same
may be renewed, amended, modified, consolidated, replaced or extended from time
to time, provided that Lessor shall notify Lessee of the existence of any such
Mortgage. During periods when there is no Mortgage, references in this Lease to
the Mortgage shall have no force or effect.


 


“Nonseverable”
shall describe an Alteration or part of an Alteration
which cannot be removed from the Property or the existing Improvements without
causing material damage to the Property or Improvements; provided that Lessee’s
Equipment and Personalty shall not be deemed to be Nonseverable regardless of
any damage that may be caused by the removal thereof.


 


“Notice
to Renew shall have the meaning specified in Section 5.1(b).


 


“Offeror”
shall have the meaning specified in Section 4.1
(a).


 


“Parent
Guarantor” shall have the meaning specified in Section 21.1.


 


“Parent
Guaranty” shall have the meaning specified in Section 21.1.


 


“Partial
Renewal” shall have the meaning specified in Section 5.1(c).


 


“Permitted
Encumbrances” shall mean the easements, rights of way,
reservations, servitudes and rights of others with respect to the Property
which are listed in the Title Policy issued to Lessor or Lender (as
applicable), including without limitation the Declaration and any easements,
rights of way, reservations, servitudes and rights of others with respect to
the Property granted after the date hereof pursuant to Section 25.11.


 


“Permitted
Investments” shall mean any one or more of the
following obligations or securities having (a) a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change, (b) bearing
interest that may either be fixed or variable but which is tied to a single
interest rate index plus a single fixed rate spread (if any) and move
proportionately with that index and (c) having the required ratings, if any,
provided for in this definition:


 


(i)                                     direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America, the obligations of which are
backed by the full faith and credit of the United States of America that mature
in thirty (30) days or less after the date of issuance;


 


10





















 


(ii)                                  time deposits, unsecured certificates of deposit
or bankers’ acceptances that mature in thirty (30) days or less after the date
of issuance and are issued or held by any depository institution or trust
company (including Lender) incorporated or organized under the laws of the
United States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated at least “A-1” and “P-l” by either Standard &
Poor’s and Moody’s or such other rating as would not result in the downgrading,
withdrawal or qualification of the then current rating assigned by such Rating
Agency to the Pass-Through Certificates, as evidenced in writing and that does
not have a “r” highlighter affixed to its rating;


 


(iii)                               repurchase agreements or obligations with
respect to any security described in clause (i) above where such security
has a remaining maturity of thirty (30) days or less and where such repurchase
obligation has been entered into with a depository institution or trust company
(acting as principal) described in clause (ii) above;


 


(iv)                              debt obligations bearing interest or sold at
a discount issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in thirty (30) days or less
from the date of issuance, which debt obligations have ratings from either
Moody’s or Standard & Poor’s in the highest category possible, or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by the Rating Agency to any
Pass-Through Certificate as specified in writing by the Rating Agency and that
does not have a “r” highlighter affixed to its rating; provided, however, that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the accounts established hereunder to exceed 10% of the sum of the
aggregate principal balance and the aggregate principal amount of all Permitted
Investments in such accounts; and


 


(v)                                 commercial paper (including both
non-interest-bearing discount obligations and interest-bearing obligations)
payable on demand or on a specified date maturing in thirty (30) days or less
after the date of issuance thereof and which is rated in the highest category
possible by Moody’s and Standard & Poor’s and that does not have a “r”
highlighter affixed to such rating.


 


“Permitted Liens” shall mean:


 


(a)                                  the respective rights and interests of
Lessee, Lessor and Lender under this Lease and any Mortgage,


 


(b)                                 Liens for Taxes either not yet due or being
contested in good faith and by appropriate proceedings, so long as such
proceedings shall not involve any danger of the sale, forfeiture or loss of any
part of the Property, title thereto or any interest therein (other than to a de
minimis extent) and are undertaken in accordance with the terms of any
documents securing Lender’s loan to Lessor, (including, without limitation,
posting of any bonds or other collateral to the extent required by such
documents);


 


11





















 


(c)                                  materialmen’s,
mechanics’, workers’, repairmen’s, employees or other like Liens for amounts
either not yet due or being contested in good faith and by appropriate
proceedings so long as such proceedings shall not involve any danger of the
sale, forfeiture or loss of any part of the Property, title thereto or any
interest therein (other than to a de minimis extent); provided that, if a Lease
Event of Default under Section 16.1 (a) or (b) shall have
occurred and be continuing, Lessee shall pay, discharge or record or bond any
such lien within sixty (60) days after Lessee receives notice thereof;


 


(d)                                 Liens
arising out of judgments or awards with respect to which at the time an appeal
or proceeding for review is being prosecuted in good faith and either which
have been bonded or for the payment of which adequate reserves shall have been
provided to Lessor’s reasonable satisfaction;


 


(e)                                  Permitted
Encumbrances;


 


(f)                                    Liens
existing on the date hereof; and


 


(g)                                 assignments
and subleases expressly permitted by this Lease.


 


No Lien shall
be deemed to be Permitted Lien if such Lien, individually or in the aggregate
with other Liens, materially and adversely affects (i) the value of the
Property, (ii) Lessee’s ability to pay all Rent as and when due hereunder
or (iii) Lessee’s right to use and operate the Property.


 


“Permitted
Use” shall have
the meaning given to such term in Section 8.1.


 


“Person”
shall mean individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
non-incorporated organization or government or any agency or political
subdivision thereof.


 


“Present
Value”, for any amount, shall be computed on a monthly
basis at a discount rate equal to the Treasury Yield. The “Treasury Yield”
shall be determined by reference to the most recent Federal Reserve Statistical
Release H.15 (519) or any comparable successor publication which has become
available not more than two days prior to the date of prepayment or payment or
the date as of which such amount becomes or is declared due and payable, as the
case may be (or, if such Statistical Release is no longer published, any
publicly available source of similar market data acceptable to Lessee and
Lessor), and shall be the most recent yield on actively traded United States
Treasury securities adjusted to a constant maturity equal to the then remaining
weighted average life to maturity, rounded to the nearest month, of the
remaining rental obligations under this Lease. If no maturity exactly
corresponding to such rounded weighted average life to maturity for such
obligation shall appear therein, yields for the two most closely corresponding
published maturities shall be calculated pursuant to the foregoing sentence and
the Treasury Yield shall be interpolated from such yields on a straight line
basis (rounding, in the case of relevant periods, to the nearest month). If
such rates shall not have been so published, the Treasury Yield shall be
calculated on the basis of the arithmetic mean of the arithmetic means of the
secondary market ask rates, as of approximately 3:30 P.M., New York City
time, on such calculation days, for the actively traded U.S. Treasury security
or securities with a maturity or maturities most closely corresponding to such
rounded weighted average life


 


12





















 


to maturity as
reported by three primary United States Government securities dealers in New
York City of national standing selected in good faith by Agent.


 


“Prime
Rate” shall mean the “prime rate” from time to time in
effect, as published in The Wall Street
Journal  on such day (or if not published on such day, for the
immediately preceding day on which it was published) in its “Money Rates”
column as the Prime Rate; provided that if The
Wall Street Journal  ceases to publish such a rate or
substantially changes the methodology used to determine such rate, then the
rate shall be otherwise independently determined from an alternate source
selected by Lessor in good faith or determined by Lessor in good faith on a
basis substantially similar to the methodology used by The Wall Street Journal on the date of
this Lease. As of the date hereof, The
Wall Street Journal  defines “Prime Rate” as the base rate on
corporate loans posted by at least 75% of the nation’s 30 largest banks.


 


“Proceeds
Trustee” shall mean Lender or, if the Property shall
not at the time in question be encumbered by a Mortgage, a federally insured
bank or other financial institution, selected by Lessor and reasonably
satisfactory to Lessee.


 


“Property”
shall mean the real property whose parcel or parcels
of land are described on Exhibit A to this Lease (the “Land”), together with (a) all
buildings, structures and other improvements of every kind situated on the Land
(collectively, the “Improvements”), all
easements, rights and appurtenances relating to the Land or the Improvements
and (b) all fixtures, including all components thereof, on or appurtenant
to the Improvements and used in the operation of the Property and all
replacements, modifications, alterations and additions thereto (collectively,
the “Fixtures”), provided
that in no event shall “Property” include Lessee’s Equipment and Personalty.


 


“Property
Name” shall have the meaning specified in Section 25.16.


 


“Purchase
Contract” shall have the meaning specified in the
Recitals to this Lease.


 


“Qualified
Appraiser” shall mean an independent nationally
recognized real estate appraiser who shall be a member of The Appraisal
Institute (or its successor organization) with not less than five (5) years
experience appraising properties similar to the Property in the market in which
the Property is located.


 


“Qualified
Officer” shall have the meaning specified in Section 26.1(b).


 


“Rating
Agency” shall mean either Moody’s or Standard &
Poor’s, as the case may be.


 


“Real
Estate Document” shall have the meaning specified in Section 8.3(a).


 


“Related
Person” shall have the meaning specified in Section 14.1.


 


“Release”
shall mean the release or threatened release of any
Hazardous Material into or upon or under any land or water or air, or otherwise
into the environment, including, without limitation, by means of burial,
disposal, discharge, emission, injection, spillage, leakage, seepage, leaching,
dumping, pumping, pouring, escaping, emptying, placement and the like.


 


13





















 


“Renewal
Term” shall have the meaning specified in Section 5.1
(a).


 


“Rent”
shall mean Base Rent and Supplemental Rent,
collectively.


 


“Rent
Collection Account” shall mean the account established
by Lender from time to time and to which Lessee is directed to make all
payments of Base Rent due hereunder.


 


“Rent
Payment Dates” shall mean the first (1st)
day of each month during the Lease Term, commencing                           ;(3)
provided that if such date is not a Business Day, the Rent Payment Date shall
be the immediately following Business Day; provided further that Base Rent for
the period commencing on the Closing Date and terminating on the last day of
the month in which the Closing Date occurs shall be payable in advance on the
Closing Date; and provided further that, as provided in Section 16.1 (a),
no Lease Event of Default shall have occurred unless any such Rent payment is
not received by Lessor on or before the tenth (10th) Business Day
after notice that such amount is due and unpaid.


 


“SBC
Building” shall mean the building on the Property
commonly referred to as the SBC Building or Ameritech Center located at 200
West SBC Center Drive, Hoffman Estates, Illinois and containing approximately
1,267,997 square feet of floor area.


 


“Second
Renewal Term” shall have the meaning specified in Section 5.1(i) of
this Lease.


 


“Significant
Competitor” shall mean any Person whose business
includes, in substantial part (at the same time as Lessee’s business or an
Affiliate’s business includes in substantial part), one or more of the
following business activities: (a) local voice or data calling services; (b) long
distance voice or data calling services; (c) voice over internet protocol,
including voice and data technologies; (d) dial up or dedicated internet
access, including broadband (DSL/cable); (e) wireless fidelity (Wi-Fi)
technology; (f) wireless voice/data/internet services; (g) phone
cards including prepaid cards; (h) white or yellow page directories
(including on-line/internet based); (i) public Communications (pay
phones); (j) voice mail/call notes; (k) video or audio conferencing; (1) network
integration and managed services; or (m) satellite television delivery or cable
television delivery. Notwithstanding the foregoing, the term Significant
Competitor shall not include any Person engaged in the occasional or incidental
sale of goods or services falling within one or more of the foregoing business
activity categories, so long as goods are services falling within any of the
categories are not a primary, featured line of goods or services sold by the
tenant. By way of example but not limitation, the sale of pre-paid phone cards
at a drugstore would be considered occasional and incidental, and such a store
would not be deemed a Significant Competitor. Further by way of example but not
limitation, within the context of a store offering mobile phone equipment and
service, the service offering would be considered a primary, featured line, and
such a store would be deemed to be Significant Competitor. Lessee, acting
reasonably, shall, within ten (10) Business Days of Lessor’s request,
advise Lessor if a prospective purchaser whose name (and direct and indirect
owners and Affiliates) has been furnished to Lessee is a Significant
Competitor.


 










(3)                               The
first day of the first month after the Closing Date.


 


14





















 


“Standard &
Poor’s” shall mean
Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors.


 


“Sublease” shall have the meaning given such term in Section 14.1.


 


“Subsidiary”, as to any Person, shall mean any corporation whose assets and
liabilities are consolidated with those of such Person for financial reporting
purposes.


 


“Substantial
Casualty” shall have
the meaning specified in Section 12.2(a).


 


“Substantial
Percentage”, when used with respect to Lessee’s employees,
shall mean fifty percent (50%) or more of Lessee’s employees then working at
the Property or applicable Building, as the case may be.


 


“Substantial
Portion”, when used with respect to Lessee’s business
operations shall mean fifty percent (50%) or more of Lessee’s business
operations.


 


“Supplemental
Rent” shall mean any
and all amounts, fees, expenses, liabilities, obligations, late charges, Taxes
and Impositions other than Base Rent which Lessee assumes or agrees or is
otherwise obligated to pay under this Lease to Lessor, Lender or any other
party.


 


“Terms” shall have the meaning specified in Section 4.1.


 


“Third
Renewal Term” shall
have the meaning specified in Section 5.1(i) of this Lease.


 


“Threshold
Amount” shall mean
Two Million Dollars ($2,000,000.00), provided that such amount shall be
increased on every January 1 after the Closing Date in the same proportion
(if any) as the CPI increases over such annual period.


 


“Total
Taking of the Property” shall
mean a Condemnation either (i) of (a) the entire Property or (b) a
portion thereof if, in Lessee’s commercially reasonable opinion, as a result
thereof Ameritech Center or the Lakewood Building (or the related parking
structures) cannot be restored to an economically viable office complex with a
similar (within ten percent (10%)) of usable square feet of floor area; (ii) as
a result of which it will take in excess of (A) twelve (12) months from
the beginning of restoration to restore such Building to the same condition as
existed immediately prior to the Condemnation and the Condemnation occurs at
any time during the Lease Term or (B) three (3) months from the beginning
of restoration to restore such Building to the same condition as existed
immediately prior to the Condemnation and the Condemnation occurs during the
last eighteen (18) months of the then current Lease Term, such time periods to
be determined as provided in Section 12.1 with respect to a Casualty; or (iii) as
a result of which Lessee must either (A) cease its operations at such
Building for a period of six (6) months or more, (B) move a
Substantial Portion of its operations from such Building or relocate a
Substantial Percentage of its employees from such Building, in either case to
another location not on the Property or (C) lay off a Substantial
Percentage of its employees from such Building for a period of six (6) months
or more.


 


“Village” shall mean the Village of Hoffman Estates,
Illinois.


 


15





















 


SCHEDULE 3.1


 


Rental
Payments


 


	
  Lease Years

  	
   

  	
  Rent Per Annum

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Base Term (10 Years, 9 Months)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Year 1

  	
   

  	
  $

  	
  22,687,573.00

  	
   

  
	
  Year 2

  	
   

  	
  22,914,448.73

  	
   

  
	
  Year 3

  	
   

  	
  23,143,593.22

  	
   

  
	
  Year 4

  	
   

  	
  23,375,029.15

  	
   

  
	
  Year 5

  	
   

  	
  23,608,779.44

  	
   

  
	
  Year 6

  	
   

  	
  23,844,867.24

  	
   

  
	
  Year 7

  	
   

  	
  24,083,315.91

  	
   

  
	
  Year 8

  	
   

  	
  24,324,149.07

  	
   

  
	
  Year 9

  	
   

  	
  24,567,390.56

  	
   

  
	
  Year 10

  	
   

  	
  24,813,064.46

  	
   

  
	
  Year 11 – first 9 months

  	
   

  	
  18,795,896.33

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  First Renewal Term*

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Year 11-12

  	
   

  	
  $

  	
  27,567,314.62

  	
   

  
	
  Year 12-13

  	
   

  	
  27,842,987.77

  	
   

  
	
  Year 13-14

  	
   

  	
  28,121,417.64

  	
   

  
	
  Year 14-15

  	
   

  	
  28,402,631.82

  	
   

  
	
  Year 15-16

  	
   

  	
  28,686,658.14

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Second Renewal Term*

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Years 16-21

  	
   

  	
  $

  	
  30,120,991.04

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Third Renewal Term*

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Years 21-26

  	
   

  	
  $

  	
  31,627,040.60

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Additional Renewal Terms

  	
   

  	
  95% of Fair
  Market Rent

  	
   

  



 










*                                         Last three months of the first lease year
referenced and first nine months of the second lease year referenced.


 


1





















 


SCHEDULE 8.2


 


Lessee Capital
Repair Items


 


[To be
attached to Lease upon execution thereof based on the schedule provided by
Inland and reasonably approved by SBC.]


 


1





















 


SCHEDULE 9.1


 


Insurance
Requirements


 


(a)                                  Lessee
covenants and agrees that it will at all times keep in full force and effect
the following insurance coverage:


 


(i)                                     A
broad form commercial general liability insurance policy (unamended), including
but not limited to premises, operations, automobile liability (which may be
carried by separate policy) and products liability, personal injury liability,
contractual liability, and property damage liability coverage at the Property
and the business conducted by Lessee thereon. The policy shall provide coverage
limits of not less than Two Million Dollars ($2,000,000) per occurrence. The
commercial general liability policy shall also include a commercial excess or
umbrella liability of Ten Million Dollars ($10,000,000) and shall name Lessor
and Lender as additional insureds, as their interest may appear. Lessor may
reasonably require other types of general liability insurance based upon (a) the
loss history at the Property and (b) industry standards and taking into
account Lessee’s (or its parent’s, if applicable) insurance program (including
other types of coverage being obtained in similar transactions).


 


(ii)                                  A
policy of standard full-replacement insurance against physical loss or damage
by fire, lightning and other risks and supplementary perils from time to time
included under all risk policies, with standard and extended coverage or all
risk endorsement, including without limitation, vandalism and malicious
mischief (with agreed amount endorsements) and also including against terrorist
acts (to the extent commercially available at commercially reasonable rates) of
all building and other facilities and improvements constructed on the Property
and all tenant finish and leasehold improvements and fixtures. This policy shall
name Lessor and Lender as loss payees as their interest may appear. To the
extent commercially available, such policy shall contain a deductible of not
more than five percent (5%) of the replacement cost of the Improvements,
excluding footings and foundation, as reasonably evidenced to Lessor and Lender
upon request of Lessor. Lessee shall be responsible for all deductibles.


 


(iii)                               Workers’
compensation or other such insurance in accordance with applicable state law
requirements covering all of Lessee’s employees.


 


If Lessee is
self-insuring, its obligations shall be those of an insurer under the form of
policy delivered to Lessor as of the Closing.


 


(c)                                  All policies of
insurance described in this Schedule which Lessee is required to procure
and maintain shall be issued by one or more primary insurers having a Standard &
Poor’s rating equal to A- or better.


 


(d)                                 Certificates of all
insurance required to be maintained by Lessee hereunder will be delivered to
Lessor and Lender upon execution of this Lease, and, upon any renewals or extensions
of said policies, certificates of insurance shall be delivered to Lessor and
Lender at least ten (10) days prior to the expiration or termination of
such policies. Within thirty (30) days after request of Lessor or Lender,
Lessee shall provide certified copies of those portions of any


 


1





















 


policy requested covering all aspects of how a claim
can or may be made under such policy. In the alternative, Lessee may provide a
certificate from its insurance broker setting forth all of the foregoing, in
form and substance reasonably satisfactory to Lessor and Lender. All liability
and property damage policies will contain the following provisions:


 


(i)                                     The company writing such policy will agree to
give the insured and additionally named insured parties or loss payees not less
than thirty (30) days notice in writing prior to any cancellation, reduction or
material modification of such insurance;


 


(ii)                                  Lessor and Lender shall be named as
additional insured or loss payees, as their interests may appear, for each
insurance policy (other than workers’ compensation) required to be maintained
by Lessee, with all proceeds under any policy in paragraphs (a)(i) and (ii) to
be paid in accordance with the provisions of the Lease.


 


(e)                                  Any insurance required by the Lease (other
than the coverage identified in paragraph (a)(iii) above) may be brought
within the coverage of a so-called blanket policy or policies of insurance
carried and maintained by the insuring party insuring the combined operations
at the Property with other premises leased or owned by Lessee, so long as the
insured party and the additional insureds required hereunder are named under
such policies as their interest may appear with coverage at least as good as
required herein.


 


(f)                                    Except to the extent otherwise provided in
the Lease, the parties hereto release each other, and their respective
representatives, agents, contractors and employees from any claims for damage
to the Property, the Improvements and/or Lessee’s Equipment and Personalty that
are caused by or result from risks insured against under any property insurance
policies carried by the parties (or which should have been carried by the
parties pursuant to the terms hereof); provided, however, that the foregoing
shall not impair any claim against Lessee in its capacity as self-insurer.  Each party shall cause each property
insurance policy obtained by it (recognizing that Lessor may not in fact obtain
any insurance) to provide that the insurance company waives in writing all
right of recovery by way of subrogation against the other party in connection
with any damage covered by such policy. 
Neither party shall be liable to the other for any damage caused by fire
or any of the risks insured against (or to be insured against) under any
property insurance policy required by the Lease.


 


2