Exhibit 10.31




 





 


 


OFFICE
LEASE


 


100 South Wacker Drive

Chicago, Illinois  60606


 


 


between


 


 


MJH
WACKER LLC,


 


as Landlord


 


 


and


 


 


ARCHIPELAGO
HOLDINGS, L.L.C.

as Tenant


 


 


Dated: 
October   , 2003


 




 





 

















 


TABLE
OF CONTENTS


 


	
  1.

  	
  BASIC PROVISIONS AND
  DEFINITIONS.

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  GRANT AND ACCEPTANCE OF
  LEASE.

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  RENT.

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  BASE RENT.

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  ADDITIONAL
  RENT.

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  USE OF PREMISES.

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  LEASEHOLD
  IMPROVEMENTS.

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  SERVICES.

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  CONDITION AND CARE OF PREMISES.

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  SURRENDER OF
  PREMISES.

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  HOLDING OVER.

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  RULES
  AND REGULATIONS.

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  RIGHTS
  RESERVED TO LANDLORD.

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  ALTERATIONS.

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  ASSIGNMENT AND
  SUBLETTING.

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  WAIVER
  OF CERTAIN CLAIMS, INDEMNITY BY TENANT.

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  DAMAGE
  OR DESTRUCTION BY CASUALTY.

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  EMINENT
  DOMAIN.

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  DEFAULT;
  LANDLORD’S RIGHTS AND REMEDIES.

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  RIGHTS
  OF MORTGAGEES AND GROUND LESSORS.

  	
   

  
	
   

  	
   

  	
   

  
	
  21.

  	
  DEFAULT UNDER
  OTHER LEASES.

  	
   

  
	
   

  	
   

  	
   

  
	
  22.

  	
  INSURANCE
  AND SUBROGATION.

  	
   

  
	
   

  	
   

  	
   

  
	
  23.

  	
  NONWAIVER.

  	
   

  
	
   

  	
   

  	
   

  
	
  24.

  	
  ESTOPPEL
  CERTIFICATE.

  	
   

  
	
   

  	
   

  	
   

  
	
  25.

  	
  TENANT
  CORPORATION, LIMITED LIABILITY COMPANY OR PARTNERSHIP.

  	
   

  
	
   

  	
   

  	
   

  
	
  26.

  	
  REAL
  ESTATE BROKERS.

  	
   

  
	
   

  	
   

  	
   

  
	
  27.

  	
  NOTICES.

  	
   

  
	
   

  	
   

  	
   

  
	
  28.

  	
  MISCELLANEOUS.

  	
   

  
	
   

  	
   

  	
   

  
	
  29.

  	
  SECURITY DEPOSIT

  	
   

  
	
   

  	
   

  	
   

  
	
  30.

  	
  INTENTIONALLY
  DELETED.

  	
   

  
	
   

  	
   

  	
   

  
	
  31.

  	
  LANDLORD.

  	
   

  



 


i

















 


	
  32.

  	
  TITLE
  AND COVENANT AGAINST LIENS.

  	
   

  
	
   

  	
   

  	
   

  
	
  33.

  	
  COVENANT OF QUIET ENJOYMENT.

  	
   

  
	
   

  	
   

  	
   

  
	
  34.

  	
  EXCULPATORY
  PROVISIONS.

  	
   

  
	
   

  	
   

  	
   

  
	
  35.

  	
  REDUCTION OF SUITES 1700 AND
  1710; TEMPORARY EXPANSION SPACE

  	
   

  
	
   

  	
   

  	
   

  
	
  36.

  	
  EXPANSIONS
  OF THE PREMISES

  	
   

  
	
   

  	
   

  	
   

  
	
  37.

  	
  STORAGE LICENSE.

  	
   

  
	
   

  	
   

  	
   

  
	
  38.

  	
  SIGNAGE

  	
   

  
	
   

  	
   

  	
   

  
	
  39.

  	
  INTERNAL
  STAIRWELL

  	
   

  
	
   

  	
   

  	
   

  
	
  40.

  	
  ADDITIONAL
  SERVICES REQUIREMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  41.

  	
  OPTION TO
  EXTEND.

  	
   

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Floor
  Plan of the Original Premises, Reduction Space and Suite 1733

  	
   

  
	
  A-1

  	
   

  	
  Floor
  Plans of the Expansion Space

  	
   

  
	
  B

  	
   

  	
  Workletter

  	
   

  
	
  B-1

  	
   

  	
  Approved
  Space Plans for Landlord’s Work

  	
   

  
	
  B-2

  	
   

  	
  Landlord’s
  Additional Work

  	
   

  
	
  C

  	
   

  	
  Other
  Definitions

  	
   

  
	
  D

  	
   

  	
  Rules
  and Regulations

  	
   

  
	
  E

  	
   

  	
  Suite
  Acceptance Agreement

  	
   

  
	
  F

  	
   

  	
  Storage
  License Agreement

  	
   

  
	
  G

  	
   

  	
  Location
  of Tenant’s Main Lobby Signage

  	
   

  
	
  H

  	
   

  	
  Form
  of SNDA

  	
   

  
	
  I

  	
   

  	
  Form
  of Letter of Credit

  	
   

  



 


ii

















 


OFFICE
LEASE


 


This Lease is made this
           day of October,
2003 between MJH WACKER LLC, a Delaware limited liability company,
hereinafter referred to as “Landlord,” and ARCHIPELAGO HOLDINGS, L.L.C.,
an Illinois limited liability company, hereinafter referred to as “Tenant.”  Set forth in Section 1 below are
certain basic terms, provisions and definitions of this Lease (hereinafter
referred to as the “Basic Provisions”) which Basic Provisions
form part of and are an integral part of this Lease.  Any conflict or inconsistency between the Basic Provisions and
the other provisions of this Lease shall be resolved in favor of such other
provisions.


 


1.                                       BASIC PROVISIONS AND DEFINITIONS.


 


The following provisions
and definitions are an integral part of this Lease:


 


(a)                                  “Base Rent”:


 


(i)                                     Reduction
Space (Suites 1700 and 1710). 
Commencing on the Commencement Date and continuing to the day
immediately preceding the Reduction Effective Date, Base Rent for the Reduction
Space shall be as set forth below.


 


	
  Period

  	
   

  	
  Base Rent
  per

  square foot of

  Rentable Area

  (6,591 s.f.)

  	
   

  	
  Base Rent

  	
   

  	
  Monthly

  Base Rent

  	
   

  
	
  Commencement Date – day immediately preceding the Reduction Effective
  Date

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  



 


Commencing on the
Reduction Effective Date and continuing to and including the day immediately
preceding the Expansion Effective Date, Base Rent for the Reduction Space shall
be abated.  Commencing on the Expansion
Effective Date, Base Rent for the Reduction Space shall be included as part of
Base Rent for the Expansion Space.


 


(ii)                                  Original
Premises (excluding the Reduction Space).  Commencing on the Commencement Date and continuing to and
including August 31, 2006, Base Rent for the Original Premises (excluding
the Reduction Space) shall be as set forth below.


 


	
  Period

  	
   

  	
  Base Rent
  per

  square foot of

  Rentable Area

  (14,417 s.f., rounded

  to nearest penny)

  	
   

  	
  Base Rent

  	
   

  	
  Monthly

  Base Rent

  	
   

  
	
  Commencement Date – 04/30/04

  	
   

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  05/01/04 – 05/31/04

  	
   

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  06/01/04 – 06/30/04

  	
   

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  07/01/04 – 08/31/04

  	
   

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  09/01/04 – 08/31/05

  	
   

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  09/01/05 – 08/31/06

  	
   

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  



 












*** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.


 


1

















 


(iii)                               Expansion
Space.  Commencing on the
Expansion Effective Date and continuing to and including August 31, 2006,
Base Rent for the Expansion Space shall be as set forth below:


 


	
  Period

  	
   

  	
  Base Rent
  per

  square foot of

  Rentable Area

  (36,878 s.f.)

  	
   

  	
  Base Rent

  	
   

  	
  Monthly

  Base Rent

  	
   

  
	
  04/01/04 – 03/31/05

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/05 – 03/31/06

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/06 – 08/31/06

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  



 


If the Expansion Effective Date is other than the Projected Expansion
Effective Date, the foregoing schedule shall be adjusted so as to commence
on the Expansion Effective Date and such that each annual increase in Base Rent
will occur on each anniversary of the Expansion Effective Date, provided that
if the Expansion Effective Date is not the first day of a calendar month, such
increase shall occur or on the first day of the month following each
anniversary of the Expansion Effective Date.


 


(iv)                              Premises
(including the Expansion Space and Suite 1733).  Commencing on September 1, 2006 and
continuing to and including the Expiration Date, Base Rent for the entire
Premises (including the Expansion Space and Suite 1733) shall be as set forth
below:


 


	
  Period

  	
   

  	
  Base Rent
  per

  square foot of

  Rentable Area

  (51,488 s.f.)

  	
   

  	
  Base Rent

  	
   

  	
  Monthly

  Base Rent

  	
   

  
	
  09/01/06 – 03/31/07

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/07 – 02/29/08

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/08 – 03/31/09

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/09 – 03/31/10

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/10 – 03/31/11

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/11 – 02/29/12

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/12 – 03/31/13

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  
	
  04/01/13 – 03/31/14

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  



 


If the Expansion
Effective Date is other than the Projected Expansion Effective Date, the
foregoing schedule shall be adjusted such that each annual increase in
Base Rent following September 1, 2006 will thereafter occur on each
anniversary of the Expansion Effective Date, provided that if the Expansion
Effective Date is not the first day of a month, such increase shall occur on
the first day of the month following each anniversary of the Expansion
Effective Date, and so as to end on the Expiration Date.


 


(b)                                 “Broker(s)”:  Lincoln Property Company Commercial, Inc.


 


(c)                                  “Building”:  Those certain improvements from time to time
located on the Land and known as 100 South Wacker Drive, Chicago, Illinois
60606 and any area (other than the 150 Building) servicing those improvements
for which Landlord may from time to time have 


 












*** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.


 


2

















 


obligations, such as adjoining access areas, public
sidewalks and other common areas and special service areas.


 


(d)                                 “150 Building”:  Those certain improvements from time to time
located on the 150 Land and known as 150 South Wacker Drive, Chicago, Illinois
60606 and any area (other than the Building) servicing those improvements for
which Landlord may from time to time have obligations, such as adjoining access
areas, public sidewalks and other common areas and special service areas.


 


(e)                                  “Commencement
Date”:  The date of this
Lease.


 


(f)                                    “Development”:  The Building, the 150 Building and the
Development Land, together with all equipment fixtures, machinery, systems,
apparatus and personal property of Landlord located at or used in connection
therewith from time to time, and commonly known as “Hartford Plaza.”


 


(g)                                 “Development
Land”:  The parcels of real
estate upon which the Development is located.


 


(h)                                 “Expansion
Effective Date”:  The later
to occur of (i) April 1, 2004 (the “Projected Expansion Effective Date”) or
(ii) the Turnover Date as defined in the Workletter attached hereto as
Exhibit B.


 


(i)                                     “Expansion
Space”:  The area indicated
on Exhibit A-1 hereto on the seventeenth (17th) and eighteenth
(18th) floors of the Building, deemed to consist of 36,878 square
feet of Rentable Area, which includes the space originally designated as the
Reduction Space.


 


(j)                                     “Expiration
Date”:  The last full day of
the Term.


 


(k)                                  “Land”:
The portion of the Development Land underlying and otherwise allocable to the
Building, as reasonably and consistently determined by Landlord.


 


(l)                                     “150 Land”:
The portion of the Development Land underlying and otherwise allocable to the
150 Building, as determined by Landlord.


 


(m)                               “Landlord’s
Work” and “Landlord’s Additional Work”:  The work to be performed by or on behalf of
Landlord to ready the Expansion Space for initial occupancy by Tenant, as more
particularly described in the Workletter.


 


(n)                                 “Original
Premises”:  The area
indicated on Exhibit A hereto on the seventeenth (17th) floor
(Suites 1700, 1710, 1720, 1722 and 1725) of the Building, deemed to consist of
21,008 square feet of Rentable Area, provided that for purposes of calculating
Tenant’s Proportionate Share, the Rentable Area of the Original Premises shall
be deemed to be 14,417 square feet (i.e., the actual Rentable Area of the
Original Premises less the Rentable Area of the Reduction Space).


 


(o)                                 “Premises”:  The Original Premises as expanded and/or
reduced from time to time.


 


(p)                                 “Project”:  The Land and the Building, together with any
other improvements located on the Land, all equipment, fixtures, machinery,
systems, apparatus and personal property of Landlord located at or used in
connection with the Land or the Building from time to time.


 


(q)                                 “Reduction
Effective Date”:  The date
upon which the Reduction Space shall be excluded from the Premises and the
Premises shall be expanded to include the Temporary Expansion Space (as defined
in Section 35(a)(ii)), which date shall be thirty (30) days following the
date of this Lease.


 


(r)                                    “Reduction
Space”:  The portions of the
Original Premises consisting of Suite 1700 and Suite 1710 thereof, as indicated
on Exhibit A hereto and deemed to consist of 6,591 square feet of Rentable
Area which shall be included as part of the Expansion Space.


 


3

















 


(s)                                  “Security
Deposit”:  $350,000.00, which
may be in the form of a letter of credit as provided in Section 29.


 


(t)                                    “Suite 1733”:  Suite 1733 on the seventeenth (17th)
floor of the Building, presently leased by Tenant pursuant to that certain
Storage Space Lease Agreement dated April 13, 2001 between Landlord’s and
Tenant’s predecessors-in-interest, deemed to consist of 194 square feet of
Rentable Area.


 


(u)                                 “Tenant
Alterations”:  Any
alteration, improvements or additions (including decorations) to the Premises
performed or to be performed by or on behalf of Tenant, including, without
limitation, the Tenant’s Work, but excluding any of Landlord’s Work and
Landlord’s Additional Work to be performed by or on behalf of Landlord
hereunder.


 


(v)                                 “Tenant’s
Proportionate Share”:  The
percentage determined as described in Exhibit C, which percentage, as of
the date of this Lease, is two and seven thousand seven hundred eighty-eight
ten-thousandths percent (2.7788%), based upon the Rentable Area of the Original
Premises excluding the Reduction Space.


 


(w)                               “Tenant’s
Work”:  The work to be
performed by or on behalf of Tenant to ready the Expansion Space for initial
occupancy by Tenant (other than Landlord’s Work and Landlord’s Additional
Work), as more particularly described in the Workletter.


 


(x)                                   “Term”:  The period of approximately ten (10) years
and three (3) months beginning on the Commencement Date and ending on the
Expiration Date which shall be the day immediately preceding the tenth (10th)
anniversary of the Expansion Effective Date, provided that if the Expansion
Effective Date is not the first day of a month, such date shall be extended to
the last day of the month in which the tenth (10th) anniversary of
the Expansion Effective Date occurs.


 


(y)                                 “Use”:  (1) General office use; and (2) securities
trading and related activities, provided such related activities are consistent
with the character of the Building as a first-class office building.


 


(z)                                   “Workletter”:  The Workletter, attached hereto as
Exhibit B, if any.


 


(aa)                            “Address for
Notices”: 


 


	
  If to Landlord:

  	
   

  	
  MJH Wacker LLC

  c/o Lincoln Property Company

  120 North LaSalle Street

  Chicago, Illinois 60602

  Attention:  Vice President-Asset Management

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  MJH Wacker LLC

  c/o Fulcrum Operating Company, LLC, Asset 

  Manager

  1250 South Grove Avenue, Suite 200

  Barrington, Illinois 60010

  Attn:  Scott M. Stahr

  
	
   

  	
   

  	
   

  
	
  If to Tenant (prior to the
  Expansion Effective Date):

  	
   

  	
  Archipelago Holdings,
  L.L.C.

  100 South Wacker Drive, Suite 2000

  Chicago, Illinois 60606

  Attention:  Kevin J. P. O’Hara, Chief
  Admin. Officer & General Counsel

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Archipelago Holdings,
  L.L.C.

  100 South Wacker Drive, Suite 2000

  Chicago, Illinois 60606

  Attention:  Nelson Chai, Chief
  Financial Officer

  



 


4

















 


	
  If to Tenant (from and after the Expansion Effective
  Date):

  	
   

  	
  Archipelago Holdings, L.L.C.

  100 South Wacker Drive, Suite 1700

  Chicago, Illinois 60606

  Attention:  Kevin J. P. O’Hara, Chief
  Admin. Officer & General Counsel

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Archipelago Holdings, L.L.C.  

  100 South Wacker Drive, Suite 1700  

  Chicago, Illinois 60606  

  Attention:  Nelson Chai, Chief
  Financial Officer

  



 


See Exhibit C and the Workletter, if any, for other definitions of
terms used herein.


 


2.                                       GRANT AND ACCEPTANCE OF LEASE.


 


Landlord hereby leases the Premises to Tenant and Tenant hereby accepts
and leases the Premises from Landlord to have and to hold during the Term,
subject to the terms and conditions of this Lease.


 


3.                                       RENT.


 


Base Rent, Additional
Rent, Additional Rent Estimate and all other amounts becoming due from Tenant
to Landlord hereunder (collectively “Rent”) shall be paid in lawful money of the
United States to Landlord at the following address: 135 South LaSalle Street,
Dept. 5956, Chicago, Illinois 60674-5956, or such other address as Landlord
shall designate in writing to Tenant from time to time, without any demand and
without any reduction, abatement, counterclaim, deduction or set-off
whatsoever, except as expressly provided herein, at the times and in the manner
hereinafter provided.  Unpaid Rent shall
bear interest at the Default Rate from the date due until paid.  The payment of Rent hereunder is independent
of each and every other covenant and agreement contained in this Lease.  The first monthly installment of Base Rent
payable under Section 4 hereof and of Additional Rent payable under
Section 5 hereof shall be paid in advance on the date of Tenant’s
execution of this Lease and applied to the first installments of Base Rent and
Additional Rent coming due under this Lease.


 


4.                                       BASE RENT.


 


Tenant shall pay Base
Rent (as set forth in the Basic Provisions) to Landlord in equal monthly
installments (herein called “Monthly Base Rent”), in advance on the
Commencement Date and on or before the first day of each and every calendar
month during the Term.  If the Term
shall begin on any day other than the first day of a calendar month or end on
any day other than the last day of a calendar month, then the Monthly Base Rent
for any partial calendar month within the Term shall be prorated on a per diem
basis.  Notwithstanding the foregoing,
commencing on the Commencement Date, Monthly Base Rent shall be abated in the
aggregate amount of Two Hundred Fifty Thousand Dollars ($250,000); provided
that upon the occurrence of a Default by Tenant, which results in the
termination of this Lease or Tenant’s right to possession of the Premises
hereunder, Tenant’s right to any to-be-credited abatement shall cease.


 


5.                                       ADDITIONAL RENT.


 


In addition to paying the
Base Rent, Tenant shall also pay as additional rent the amounts (collectively “Additional
Rent”) determined to be Tax Adjustment and Expense Adjustment in
accordance with this Section 5:


 


(a)                                  Computation
of Additional Rent. 
Tenant shall pay as Additional Rent for each Calculation Year the
following amounts:


 


(i)                                     Tenant’s
Proportionate Share of Taxes for such Calculation Year (the “Tax
Adjustment”); plus


 


(ii)                                  Tenant’s
Proportionate Share of Expenses for such Calculation Year (the “Expense
Adjustment”).


 


5

















 


(b)                                 Payments
of Additional Rent; Additional Rent Estimate; Projections.  Tenant shall pay Additional Rent to Landlord
in the manner hereinafter provided.  The
aggregate of payments required to be made by Tenant on account of Additional
Rent for any Calculation Year until actual Additional Rent is determined is
herein called “Additional Rent Estimate.”


 


(i)                                     Landlord
may, at any time and from time to time prior to the first Calculation Date and
during the Term (but not more than twice during any Calculation Year), deliver
to Tenant a written notice or notices (“Projection Notice”) setting forth:


 


(A)                              Landlord’s
reasonable and good faith estimates, forecasts or projections (collectively,
the “Projections”)
of any or all of Taxes and Expenses for such Calculation Year, and


 


(B)                                Tenant’s
Additional Rent Estimate (setting forth the Expense Adjustment component and
Tax Adjustment component separately) based upon the Projections, being the
Tenant’s Proportionate Share of the Projections.


 


(ii)                                  On
or before the first (1st) day of the next calendar month following Landlord’s
service of a Projection Notice, and on or before the first day of each month
thereafter, Tenant shall pay to Landlord one-twelfth (1/12) of the Additional
Rent Estimate shown in the Projection Notice. 
Within thirty (30) days following Landlord’s service of a Projection
Notice, to bring Tenant’s payments of Additional Rent Estimate current, Tenant
shall also pay Landlord the amount set forth in the Projection Notice, which
shall equal the Additional Rent Estimate shown in the Projection Notice less
(A) any previous payments on account of Additional Rent Estimate made for
such Calculation Year, and (B) total monthly installments on account of
Additional Rent Estimate not yet due and payable for the remainder of such
Calculation Year.  Until such time as
Landlord furnishes a Projection Notice for a Calculation Year, Tenant shall pay
to Landlord a monthly installment of Additional Rent Estimate on the first day
of each month equal to the greater of the latest monthly installment of
Additional Rent Estimate or one-twelfth (1/12) of Tenant’s latest determined
Additional Rent.


 


(c)                                  Readjustments.


 


(i)                                     Within
ninety (90) days following the end of each Calculation Year and after Landlord
shall have determined the amount of Expenses to be used in calculating the
Expense Adjustment for such Calculation Year, Landlord shall notify Tenant in
writing (any such notice of Expenses and Expense Adjustment herein called “Landlord’s
Expense Statement”) of such Expenses and Tenant’s Expense Adjustment
for such Calculation Year.  If the
Expense Adjustment owed for such Calculation Year exceeds the Expense
Adjustment component of the Additional Rent Estimate paid by Tenant during such
Calculation Year, then Tenant shall, within thirty (30) days after the date of
Landlord’s Expense Statement, pay to Landlord an amount equal to the excess of
the Expense Adjustment over the Expense Adjustment component of the Additional
Rent Estimate paid by Tenant during such Calculation Year.  If the Expense Adjustment component of the
Additional Rent Estimate paid by Tenant during such Calculation Year exceeds
the Expense Adjustment owed for such Calculation Year, then Landlord shall
credit such excess to Additional Rent payable after the date of Landlord’s
Expense Statement, or may, at its option, credit such excess to any Rent
theretofore due and owing, until such excess has been exhausted.  If this Lease shall expire or be terminated
prior to full application of such excess, Landlord shall pay to Tenant, within
thirty (30) days after the date of such expiration or termination, the balance
thereof not theretofore applied against Rent and not reasonably required for
payment of Rent for the Calculation Year in which this Lease expires, subject
to Tenant’s obligations under Section 5(e) hereof, provided Tenant shall
have vacated the Premises and otherwise surrendered the Premises to Landlord in
accordance with this Lease and Tenant is not then in uncured default under this
Lease following written notice thereof.


 


(ii)                                  Within
ninety (90) days following the end of each Calculation Year and after Landlord
shall have determined the actual amount of Taxes to be used in calculating the
Tax Adjustment for such Calculation Year, Landlord shall notify Tenant in
writing (any such notice of Taxes and Tax Adjustment herein called “Landlord’s
Tax


 


6

















 


Statement”)
of such Taxes for such Calculation Year. 
If the Tax Adjustment owed for such Calculation Year exceeds the Tax
Adjustment component of the Additional Rent Estimate paid by Tenant during such
Calculation Year, then Tenant shall, within thirty (30) days after the date of
Landlord’s Tax Statement, pay to Landlord an amount equal to the excess of the
Tax Adjustment over the Tax Adjustment component of the Additional Rent
Estimate paid by Tenant during such Calculation Year.  If the Tax Adjustment component of the Additional Rent Estimate
paid by Tenant during such Calculation Year exceeds the Tax Adjustment owed for
such Calculation Year, then Landlord shall credit such excess to Additional
Rent payable after the date of Landlord’s Tax Statement, or may, at its option,
credit such excess to any Rent theretofore due and owing, until such excess has
been exhausted. If this Lease shall expire or be terminated prior to full
application of such excess, Landlord shall pay to Tenant, within thirty (30)
days after the date of such expiration or termination, the balance thereof not
theretofore applied against Rent and not reasonably required for payment of
Rent for the Calculation Year in which this Lease expires, subject to Tenant’s
obligations under Section 5(e) hereof, provided Tenant shall have vacated
the Premises and otherwise surrendered the Premises to Landlord in accordance
with this Lease and Tenant is not then in uncured default under this Lease
following written notice thereof.


 


(d)                                 Books and
Records.  Landlord shall
maintain books and records showing Taxes and Expenses in accordance with sound
accounting and management practices. 
Tenant and/or its representative (which representative shall be a
nationally recognized independent certified public accountant licensed to do
business in the State of Illinois) shall have the right to examine such books
and records showing Taxes and Expenses upon reasonable prior notice and during
normal business hours at any time within one hundred eighty (180) days following
Tenant’s receipt of Landlord’s Expense Statement (as it relates to an
examination of Expenses) or Landlord’s Tax Statement (as it relates to an
examination of Taxes) provided for in Section 5(c); provided however that
(a) if any auditor or other representative retained by Tenant is or will
be compensated, in whole or in part, on a “contingent fee” basis, or
(b) in the event Landlord has caused Landlord’s Expense Statement and/or
Landlord’s Tax Statement, as the case may be, to be audited by an independent
public accounting firm with a national reputation, then Tenant shall not have
the right to cause an audit of Landlord’s books and records regarding Taxes and
Expenses, as applicable.  Unless Tenant
shall take written exception to any item of Taxes or Expenses, specifying in
detail the reasons for such exception as to a particular item within one
hundred eighty (180) days after Tenant’s receipt of Landlord’s Expense
Statement or Landlord’s Tax Statement (as the case may be), or in the event
Landlord causes Landlord’s Expense Statement and/or Landlord’s Tax Statement to
be audited as provided above, Landlord’s Expense Statement and Landlord’s Tax
Statement, as applicable, shall be considered as final and accepted by Tenant.  Notwithstanding any exception made by
Tenant, Tenant shall pay Landlord the full amount of its Additional Rent
Estimate and its Additional Rent as determined by Landlord, subject to
readjustment at such time as any such exception may be resolved in favor of
Tenant.


 


(e)                                  Proration
and Survival.  With
respect to any Calculation Year which does not fall entirely within the Term,
Tenant shall be obligated to pay as Additional Rent for such Calculation Year
only a pro rata share of Additional Rent as hereinabove determined, based upon
the number of days of the Term falling within the Calculation Year.  Following expiration or termination of this
Lease, Tenant shall pay any Additional Rent due to Landlord within fifteen (15)
days after the date of Landlord’s Expense Statement or Landlord’s Tax Statement
(as the case may be) sent to Tenant. 
Without limiting other obligations of Tenant which survive the
expiration or termination of this Lease, the obligations of Tenant to pay
Additional Rent provided for in this Section 5 shall survive the expiration
or earlier termination of this Lease. 
No interest or penalties shall accrue on any amounts which Landlord is
obligated to credit or pay to Tenant by reason of this Section 5.


 


(f)                                    No
Decrease in Base Rent. 
In no event shall any Additional Rent result in a decrease of the Base
Rent payable hereunder.


 


(g)                                 No
Representation or Warranty. Tenant acknowledges that neither
Landlord, nor any of its respective members, agents or employees, has made or
does hereby make any representation or warranty whatsoever to Tenant as to the
amount of Taxes, Expenses, Tax Adjustment or Expense Adjustment or any
component thereof which may become payable during the Term.


 


7

















 


6.                                       USE OF PREMISES.


 


(a)                                  Use.  Tenant shall use and occupy the Premises as
set forth in Section 1(y) hereof only and for no other use or
purpose.  Tenant shall comply with all
rules and regulations made and adopted in accordance herewith by Landlord from time
to time for the Building relating to Tenant’s use of the Premises and the
Building.


 


(b)                                 Compliance
with Requirements. 
Tenant shall comply with all applicable Laws (hereinafter defined) now
or hereafter in force, and with all applicable insurance underwriters
regulations and other requirements, respecting all matters of occupancy,
condition or maintenance of the Premises, whether any of the foregoing shall be
directed to Tenant or Landlord and whether imposed on the owner or occupant of
the Premises (except to the extent such compliance falls within Landlord’s
obligations under Sections 9(c), 17 and 18 to maintain, repair and/or restore
the Premises in which event Landlord shall so comply).  “Laws” means all statutes, laws, ordinances,
codes, rules and regulations, orders and directions of public officials or
other acts having the force or effect of law, of all federal, state, county,
municipal and other agencies, authorities or bodies having jurisdiction over
the Premises.  Tenant shall not make or
permit any use of the Premises or the Building, or do or permit to be done
anything in or upon the Premises or the Building, or bring or keep anything in
the Premises or the Building, which directly or indirectly is forbidden by any
of the foregoing or which may be dangerous to persons or property, or which may
invalidate or increase the rate of insurance on the Building, its
appurtenances, contents or operations, or which would tend to create or
continue a nuisance or which is contrary to or prohibited by the terms and
conditions of this Lease.


 


7.                                       LEASEHOLD IMPROVEMENTS.


 


It is acknowledged that Landlord shall be performing, or causing to be
performed, certain work in the Expansion Space as more particularly described
in Exhibit B attached hereto. 
Promptly after the Expansion Effective Date, Landlord and Tenant shall
execute and deliver a Suite Acceptance Agreement, in the form attached hereto
as Exhibit E, confirming the Commencement Date, the Expansion Effective
Date and the Expiration Date.


 


8.                                       SERVICES.


 


(a)                                  General
Description of Services. 
So long as this Lease is in full force and effect and Tenant has paid
all Rent then due, Landlord shall furnish the following services (the cost of
which may be included in Expenses):


 


(i)                                     Air
conditioning and heat when necessary to provide a temperature condition
required, in Landlord’s reasonable judgment, for comfortable occupancy of the
Premises under normal business operations for general office use, Monday
through Friday from 8:00 A.M to 6:00 P.M. and Saturdays from
8:00 A.M to 1:00 P.M, Sundays and Holidays excepted.  Levels of heating and air conditioning are
subject to adjustments pursuant to mandatory and voluntary compliance by
Landlord with Laws and guidelines relating to energy use.


 


(ii)                                  Domestic
water in common with other tenants for drinking, lavatory and toilet purposes
drawn through fixtures installed by Landlord within the core of the Building,
and warm water in common with other tenants for lavatory purposes from the same
regular Building supply and fixtures.


 


(iii)                               Customary
janitor and cleaning service in and about the Premises and common areas of the
Building.  Tenant shall not provide or
use any other janitor or cleaning service.


 


(iv)                              Passenger
elevator service in common with Landlord and other persons, Monday through
Friday from 8:00 A.M. to 6:00 P.M. (Saturdays from 8:00 A.M. to
1:00 P.M.), Sundays and Holidays excepted; and freight elevator service in
common with Landlord and other persons, and subject to prior scheduling with
Landlord (and payment of Landlord’s standard charges), Monday through Friday
from 8:00 A.M. to 4:00 P.M., Saturdays, Sundays and Holidays
excepted.  Limited passenger elevator
service shall be provided daily at all times when the aforesaid passenger
elevator service is not furnished.


 


8

















 


(b)                                 Electricity.  Except as hereinafter provided, electricity
shall not be furnished by Landlord, but shall be furnished by Commonwealth
Edison Company or another electric utility company serving the area selected by
Landlord.  Landlord shall permit Tenant
to receive such service direct from such utility company at Tenant’s cost, and
shall permit Landlord’s wire and conduits, to the extent available, suitable
and safely capable, to be used for such purposes.  Tenant shall make all necessary arrangements with the utility
company for metering and paying for electric current furnished by it to Tenant,
and Tenant shall pay for all charges for electric current consumed on the
Premises during Tenant’s occupancy thereof. 
Tenant shall make no alterations or additions to the electric equipment
or systems in the Premises or the Building without the prior written consent of
Landlord in each instance which consent may be withheld or conditioned in
Landlord’s sole and absolute discretion. 
Tenant also agrees to purchase from Landlord or its agents, as Landlord
shall direct, all lamps, bulbs, ballasts and starters used in the Premises
during the Term.  Tenant covenants and
agrees that at all times its use of electric current shall never exceed the
capacity of the feeders to the Building or the risers or wiring installed
thereon.  Notwithstanding the foregoing,
Landlord reserves the right to provide electricity to the Premises in whole or
in part, and in such event Tenant agrees to purchase such electricity from
Landlord, at Landlord’s then current charges. 
If the Premises are not separately metered for any reason, or are
separately metered only in part, then Tenant shall pay Landlord, as additional
Rent, in monthly installments at the time prescribed for monthly installments
of Monthly Base Rent, amounts determined by Landlord based upon Landlord’s then
established rates therefor.


 


(c)                                  Telephone
and Other Communication Wiring, Equipment and Systems. Tenant
shall make no alterations or additions to the telephone or other communication
wiring, equipment or systems in the Premises or the Building without the prior
written consent of Landlord in each instance which consent may be withheld or
conditioned in Landlord’s sole and absolute discretion as to any such alterations
or additions to be located outside the Premises and which approval shall not be
unreasonably withheld, conditioned or delayed as to any such alterations or
additions within the Premises.  All
telephone or other communication wiring, equipment or systems which Tenant may
desire shall be first approved by Landlord in writing before the same are
installed, which approval may be withheld or conditioned in Landlord’s sole and
absolute discretion as to any such alterations or additions to be located outside
the Premises and which approval shall not be unreasonably withheld, conditioned
or delayed as to any such alterations or additions within the Premises, and the
location of all wiring, equipment or systems so approved and the work in
connection therewith shall be performed by contractors approved by Landlord,
which approval may be withheld or conditioned in Landlord’s sole and absolute
discretion as to any such alterations or additions to be located outside the
Premises and which approval shall not be unreasonably withheld, conditioned or
delayed as to any such alterations or additions within the Premises, and shall
be subject to the direction of Landlord. 
Landlord reserves the right to designate and control the entity or
entities providing telephone or other communication wiring, equipment or
systems installation, repair and maintenance in the Building and to restrict
and control access to telephone cabinets. 
In the event Landlord designates a particular vendor or vendors to
provide such installation, repair and maintenance for the Building, Tenant
agrees to abide by and participate in such program.  Tenant shall be responsible for and shall pay all costs incurred
in connection with the installation of telephone or other communication wiring,
equipment and systems in or exclusively serving the Premises, including,
without limitation, any hook-up, access and maintenance fees related to the
installation of such wiring, equipment and systems in or exclusively serving
the Premises and the commencement of service therein, and the maintenance
thereafter of such wiring, equipment and systems; and there shall be included
in Expenses for the Building all installation, hook-up or maintenance costs
incurred by Landlord in connection with telephone or other communication
wiring, equipment and systems in the Building which are not allocable to any
individual users of such service but are allocable to the Building
generally.  If Tenant fails to maintain
all telephone or other communication wiring, equipment or systems in or
exclusively serving the Premises and such failure affects or interferes with
the operation or maintenance of any other telephone or other communication
wiring, equipment or systems in the Building, Landlord or any vendor hired by
Landlord may enter into and upon the Premises forthwith and perform such
repairs, restorations or alterations as Landlord deems necessary in order to
eliminate any such interference (and Landlord may recover from Tenant all of
Landlord’s costs in connection therewith and Landlord shall have no liability
to Tenant by reason thereof).  Upon the
Expiration Date or the earlier termination of this Lease or of Tenant’s right
to possession of the Premises, 


 


9

















 


Tenant agrees to remove all telephone or other communication wiring,
equipment and systems installed by Tenant for and during Tenant’s occupancy,
which Landlord has requested Tenant to remove in writing at the time Landlord
approves the installation thereof (provided that with respect to any portion
thereof installed without Landlord’s approval, such request may be made at any
time on or before the Expiration Date or the earlier termination of this Lease
or of Tenant’s right to possession of the Premises), and to repair any and all
damage to the Development caused by such removal, all at Tenant’s sole cost and
expense.  Tenant agrees that, subject to
the provisions of Section 16(d), neither Landlord nor any of its agents or
employees shall be liable to Tenant, or any of Tenant’s employees, agents
customers or invitees or anyone claiming through, by or under Tenant, for any
damages, injuries, losses, expenses, claims or causes of action because of any
interruption, diminution, delay or discontinuance at any time for any reason in
the furnishing of any telephone or other communication service to the Premises
and the Building.


 


(d)                                 Extra or
Additional Services. 
Tenant may request Landlord to provide services which are extra or
additional services to those described in Section 8(a), by delivery to
Landlord of an advance written request therefor.  Landlord shall use all commercially reasonable efforts to furnish
the Premises with after-hours air-conditioning and heat as so requested by
Tenant from time to time provided that Landlord’s obligation to furnish same on
Saturdays (other than 8:00 A.M. to 1:00 P.M.), Sundays or Holidays
shall be conditioned on Landlord having received written request therefor from
Tenant at least two (2) business days prior to the date for which such service
is requested.  If Landlord shall agree
to so provide any such services which are extra or in addition to those
services described in Section 8(a), Tenant shall pay for any such extra or
additional services so provided by Landlord at Landlord’s established rates
therefor from time to time, or if there are no established rates, then at the
rate of 115% of the cost of providing such service, or as otherwise agreed by
Landlord and Tenant.  As of the date of
this Lease, the established rate for after-hours air-conditioning and heat is
$120.00 per hour with a four (4) hour minimum. 
All charges for any such extra or additional services so provided by
Landlord shall be deemed to be additional Rent hereunder and shall be due and payable
within ten (10) days after Tenant receives Landlord’s bill therefor, or in
installments as may be designated by Landlord to Tenant in writing.  If Tenant fails to pay when due Landlord’s
proper charges for any such extra or additional services, Landlord shall have
the right, in addition to all other rights and remedies available to Landlord,
to discontinue furnishing any such extra or additional services for which
Tenant has failed to pay.  If Landlord
discontinues any such extra or additional services as provided in this
Section 8(d), no such discontinuance shall be deemed an eviction or
disturbance of Tenant’s use of the Premises or render Landlord liable for
damages or relieve Tenant from performance of Tenant’s obligations under this
Lease.


 


(e)                                  Holidays.  For purposes of this Section 8, “Holidays”
means New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day, Christmas Day and any other day recognized as a holiday by the service
unions representing workers providing services to the Building or customarily
designated as a holiday by landlords operating first-class office buildings in
downtown Chicago, Illinois.


 


(f)                                    Interruption
of Services.  Tenant
agrees that neither Landlord, nor any of Landlord’s constituent members, nor
any of their respective agents, partners or employees, shall be liable for
damage or injury to person, property or business or for loss or interruption of
business, or for any other matter, in the event there is any failure, delay,
interruption or diminution in furnishing any service.  No such failure, delay, interruption or diminution shall be
deemed to constitute an eviction or disturbance of Tenant’s use or possession
of the Premises, in whole or in part, actual or constructive, nor entitle
Tenant to any claim for set-off, abatement or reduction of Rent, nor render
Landlord liable for damages, nor relieve Tenant from the performance of or
affect any of Tenant’s obligations under this Lease.  However, Landlord shall use commercially reasonable efforts to
minimize any such failure, delay, interruption or diminution. Notwithstanding
the foregoing, in the event any such failure, delay, interruption or diminution
of services or utilities furnished by Landlord is due to a cause within
Landlord’s reasonable control and causes the Premises to be untenantable, and
as a result thereof, Tenant in fact ceases to use the Premises for a period in
excess of five (5) consecutive days, then commencing on the sixth (6th)
consecutive day of such untenantability and non-use, Rent payable by Tenant
shall be abated until the earliest to occur of (a) the date such failure,
delay, 


 


10

















 


interruption or diminution is remedied, (b) the date the Premises are
again tenantable or (c) the date Tenant resumes use of the Premises.


 


(g)                                 Tenant’s
Cooperation.  Tenant
agrees to cooperate fully with Landlord, at all times, in abiding by all
reasonable non-discriminatory regulations and requirements which Landlord may
prescribe for the proper functioning and protection of all utilities and services
reasonably necessary for the operation of the Premises or the Development.  Landlord and its contractors shall have
access to any and all mechanical installations in the Premises upon reasonable
prior oral or written notice to Tenant (except in case of emergency) and,
except in case of emergency, subject to Tenant’s reasonable requirements
regarding security and protection of Tenant’s confidential information, and
Tenant agrees that there shall be no construction of partitions or other
obstructions which might interfere with the moving of the servicing equipment
of Landlord to or from the enclosures containing said installations.  Tenant further agrees that neither Tenant
nor its employees, agents, licensees, invitees or contractors shall at any time
tamper with, adjust or otherwise in any manner adversely affect Landlord’s
mechanical installations in the Premises or the Project.


 


(h)                                 Supplemental
Heating or Cooling. 
Whenever, in Landlord’s reasonable judgment, Tenant’s use or occupation
of the Premises, including lighting, personnel, heat generating machines or
equipment, or airborne emissions of smoke or other particulates, individually
or cumulatively, causes the design loads for the system providing heat and
air-cooling to be exceeded, or otherwise affects adversely the temperature,
humidity or air quality otherwise maintained by the heating, ventilating and
air handling or conditioning system in the Premises or the Building, Landlord
may, but shall not be obligated to, temper such excess loads by installing
supplementary heating or air handling or conditioning units in the Premises or
elsewhere where necessary.  In such
event, the cost of such units and the expense of installation, including,
without limitation, the cost of preparing working drawings and specifications,
plus fifteen percent (15%) of such cost as an overhead and supervision fee,
shall be paid by Tenant as additional Rent within ten (10) days after
Landlord’s demand therefor. 
Alternatively, Landlord may require Tenant to install such supplementary
heating or air handling or conditioning units at Tenant’s sole expense.  Landlord may operate and maintain any such
supplementary units, but shall have no continuing obligation to do so or
liability in connection therewith.  The
expense resulting from the operation and maintenance of any such supplementary
heating or air handling or conditioning units, including utility charges,
charges for condenser water, repair costs, labor costs and rent for space
occupied by any supplementary heating or air handling or conditioning units
installed in Rentable Area outside the Premises, shall be paid by Tenant to
Landlord as additional rent at rates fixed by Landlord.  Alternatively, Landlord may require Tenant
to operate and maintain any such supplementary units, also at Tenant’s sole
expense.


 


9.                                       CONDITION AND CARE OF
PREMISES.


 


(a)                                  Condition
of Premises.  Tenant’s
taking possession of the Premises or any portion thereof shall be conclusive
evidence against Tenant that such portion of the Premises was then in good
order and satisfactory condition, subject to Landlord’s obligations under this
Lease and the Workletter.  Tenant
acknowledges that, except as otherwise expressly set forth in this Lease or the
Workletter, the Premises shall be accepted by Tenant in their “as-is”
condition, and that no promise by or on behalf of Landlord, any of Landlord’s
Constituent Members, the leasing agent of the Project or any of their
respective agents, partners or employees, to alter, remodel, improve, repair,
decorate or clean the Premises has been made to or relied upon by Tenant, and
that no representation respecting the condition of the Premises or the Project
by or on behalf of Landlord, its constituent members, or any of their
respective agents, partners or employees has been made to or relied upon by
Tenant, except as provided below and in the Workletter, and further provided
that during the three (3) year period commencing on the Commencement Date,
Landlord shall reimburse Tenant for alterations, improvements and/or refurbishment
(collectively, the “Refurbishment”) of the Original Premises,
in an aggregate amount not to exceed $116,888.00 (the “Refurbishment Allowance”).  The Refurbishment Allowance shall be payable
to Tenant within thirty (30) days after presentation to Landlord of paid
invoices, contractor’s sworn statements, final waivers of lien and such other
documentation as may reasonably required by Landlord showing that the
Refurbishment has been completed and fully paid for in accordance with the
requirements of Section 14 hereof, provided that any undisbursed portion
of the Refurbishment Allowance for which Tenant has not requested reimbursement
and submitted the aforesaid documentation within the aforesaid 3-year period,
time being of essence, 


 


11

















 


shall be deemed forfeited by Tenant and retained by Landlord without
any claim thereon by Tenant.


 


(b)                                 Tenant’s
Repairs.  Subject to the
provisions regarding fire and other casualty losses set forth in
Section 17 hereof, Tenant, at its expense, shall (i) keep the
Premises (including all Landlord’s Work and Landlord’s Additional Work (except
for defects in materials and/or workmanship therein for a period of one (1)
year following the Turnover Date as defined in Exhibit B) and all Tenant
Alterations) in good order, repair and condition at all times during the Term,
and (ii) promptly and adequately repair all damage to the Premises,
including damage to interior windows and to any portion of the Building air
conditioning, heating, electrical and plumbing systems which run through the
Premises and which serve the Premises, caused by Tenant or its contractors,
agents, employees or invitees.  Tenant
shall give prompt notice to Landlord of any material repair, maintenance or replacement
items required under this Section 9(b). 
All work with respect to any such maintenance, repair or replacement
shall be performed within a reasonable period after the need for such action
arises and shall be subject to the provisions of Section 14 hereof. In the
event Tenant fails to make any required repairs and such failure continues for
thirty (30) days after written notice to Tenant (or in case of emergency, such
failure is not remedied immediately after oral or written notice to Tenant), Landlord
may, in its sole discretion, elect to effect such repairs whether or not Tenant
would otherwise be prepared to do so, and, in such case, Tenant shall pay
Landlord the cost thereof plus a coordination and management fee equal to
fifteen percent (15%) of such cost, upon Landlord’s written demand.


 


(c)                                  Landlord’s
Repairs.  Subject to the
provisions regarding fire and other casualty losses set forth in
Section 17 hereof, Landlord shall (i) keep the foundations, roofs,
exterior walls, and the structural elements of the Building, and the common
areas in the Building, exclusive of the Premises and other tenant spaces
occupied by or under the control of tenants, in good order, repair and
condition at all times during the Term, (ii) keep in good order, condition
and repair all outside windows of the Premises and the electrical, plumbing,
heating, ventilating and air conditioning systems servicing the Premises (other
than as set forth in Section 9(b) above), and (iii) repair any defects in
materials and/or workmanship in Landlord’s Work and/or Landlord’s Additional
Work for a period of one (1) year following the Turnover Date (as defined in
Exhibit B).  Notwithstanding the
foregoing, (A) Landlord shall not be responsible for the maintenance or
repair of any floor or wall coverings in the Premises or any of such systems
which are located within the Premises and are supplemental or special to the
Building’s standard systems; and (B) the cost of performing any of said
maintenance or repairs, whether to the Premises or to the Building, caused by
the negligence of Tenant, its employees, agents, servants, licensees,
subtenants, contractors or invitees, shall be paid by Tenant immediately upon
Landlord’s demand therefor.  Upon reasonable
prior oral or written notice (except in the case of an emergency, where no such
notice shall be required), and except in emergency, subject to Tenant’s
reasonable requirements regarding security and protection of Tenant’s
confidential information and so long as Landlord uses good faith efforts to
maintain reasonable access to the Premises and to minimize unreasonable
interference with the conduct of Tenant’s business, Landlord may, but shall not
be required to, enter the Premises at all reasonable times to make repairs,
alterations, improvements and additions to the Premises or to the Building or
to any equipment located in the Building as Landlord shall desire or deem
necessary or as Landlord may be required to make by governmental authority or
court order or decree.


 


(d)                                 No Rights
to Light, Air or View. 
This Lease does not grant any rights to light, air or view over or about
the real property of Landlord or any other real property.  Landlord specifically excepts and reserves
to itself all rights to and the use of any roofs, the exterior portions of the
Premises, the land, improvements and air and other rights below the improved
floor level of the Premises, the improvements and air and other rights above
the improved ceiling of Premises, the improvements and air and other rights
located outside the demising walls of the Premises and such areas within the
Premises as are required for installation of utility lines and other
installations required to serve the Building or any occupants of the Building,
and Landlord specifically reserves to itself the right to use, maintain and
repair same, and no rights with respect thereto are conferred upon Tenant,
unless otherwise specifically provided herein.


 


(e)                                  Hazardous
Substances.  Tenant shall
comply, at its sole expense, with all Laws relating to the protection of public
health, safety and welfare and with all environmental Laws in the use,
occupancy and operation of the Premises, provided that Tenant shall not be
liable under this provision for pre-existing conditions in the Building or the
Premises.  Tenant agrees that no 


 


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Hazardous Substances (as hereinafter defined) shall be
used, located, stored or processed on the Premises or be brought into the
Building by Tenant, and no Hazardous Substances will be released or discharged
from the Premises (including, but not limited to, ground water
contamination).  The term “Hazardous
Substances” shall mean and include all hazardous and toxic
substances, waste or materials, any pollutant or contaminant, including,
without limitation, PCB’s, asbestos and raw materials that include hazardous
constituents or any other similar substances or materials that are now or
hereafter included under or regulated by any environmental Laws or that would
pose a health, safety or environmental hazard. 
In the event that Tenant is notified of any investigation or violation
of any environmental Law arising from Tenant’s activities at the Premises,
Tenant shall immediately deliver to Landlord a copy of such notice. In such
event or in the event Landlord reasonably believes that a violation of
environmental Law exists, Landlord may conduct such tests and studies relating
to compliance by Tenant with environmental Laws or the alleged presence of
Hazardous Substances upon the Premises as Landlord deems desirable, all of
which shall be completed at Tenant’s expense. Landlord’s inspection and testing
rights are for Landlord’s own protection only, and Landlord has not, and shall
not be deemed to have assumed any responsibility to Tenant or any other party
for compliance with environmental Laws, as a result of the exercise, or
non-exercise of such rights. Tenant shall indemnify, defend, protect and hold
harmless Landlord, its constituent members, Lincoln Property Company
Commercial, Inc., Fulcrum Operating Company LLC, Landlord’s managing agent, and
their respective officers, directors, members, partners, agents, employees,
successors and assigns (collectively, the “Landlord Parties”), from and against any
and all loss, claim, expense, liability and cost (including attorneys’ fees)
arising out of or in any way related to the presence of any Hazardous Substance
introduced to the Premises during the Term by Tenant, its agents, employees,
contractors, affiliates, subtenants, assignees, customers and/or invitees.


 


(f)                                    Americans
with Disabilities Act. 
Landlord and Tenant acknowledge that the Americans With Disabilities Act
of 1990 (42 U.S.C §12101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to
time (collectively referred to herein as the “ADA”) establish requirements
for business operations, accessibility and barrier removal, and that such
requirements may or may not apply to the Premises and the Building depending
on, among other things: (1) whether Tenant’s business is deemed a “public
accommodation” or “commercial facility,” (2) whether such
requirements are “readily achievable,” and (3) whether a
given alteration affects a primary function area or triggers “path of travel”
requirements. The parties hereby agree that: (a) Landlord shall be
responsible for ADA Title III compliance in the common areas of the Building,
except as provided below, and with respect to Landlord’s Work and Landlord’s
Additional Work (b) Tenant shall be responsible for ADA Title III
compliance in the Premises, including any leasehold improvements or other work
to be performed in the Premises under or in connection with this Lease (other
than Landlord’s Work and Landlord’s Additional Work), (c) Landlord may
perform, or require that Tenant perform, and Tenant shall be responsible for
the cost of, ADA Title III “path of travel” requirements triggered by
alterations in the Premises, and (d) Landlord may perform, or require
Tenant to perform, and Tenant shall be responsible for the cost of, ADA Title
III compliance in the common areas of the Building necessitated by the Building
being deemed to be a “public accommodation” instead of a “commercial
facility” as a result of Tenant’s use of the Premises. Tenant shall
be solely responsible for requirements under Title I of the ADA relating to
Tenant’s employees.


 


10.                                 SURRENDER OF PREMISES.


 


(a)                                  Surrender.  Upon the termination of this Lease by lapse
of time or otherwise or upon the earlier termination of Tenant’s right of
possession, Tenant shall surrender possession of the Premises to Landlord and
deliver all keys, computer cards or codes and other entry devices to the
Premises to Landlord and make known to Landlord the combinations of all locks
of vaults then remaining in the Premises, and shall, subject to the following
subparagraphs, return the Premises and all equipment and fixtures of Landlord
therein to Landlord in as good condition as when Tenant originally took
possession, except for ordinary wear and tear, and except for loss or damage by
fire or other insured casualty or condemnation (which Tenant is not required to
restore pursuant to Section 17 of this Lease), failing which Landlord may,
following written notice thereof to Tenant and Tenant’s failure to and cure
within five (5) days thereafter, restore 


 


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the Premises and such equipment and fixtures to such condition, and
Tenant shall pay the cost thereof to Landlord on demand.


 


(b)                                 Ownership
of Improvements.  All
installations, additions, partitions, hardware, fixtures and improvements,
temporary or permanent (including Landlord’s Work, Landlord’s Additional Work
and Tenant Alterations), except movable furniture and equipment and other
personal property or trade fixtures belonging to Tenant, in or upon the
Premises, whether placed there by Tenant or Landlord, shall, upon the
termination of this Lease by lapse of time or otherwise or upon the earlier
termination of Tenant’s right of possession, become Landlord’s property and
shall remain upon the Premises, all without compensation, allowance or credit
to Tenant; provided, however, that if at the time Landlord consents to Tenant’s
installation of Tenant Alterations, or prior to the commencement of Landlord’s
Work, Landlord’s Additional Work or other installations, additions, partitions,
hardware, fixtures and improvements or at any other time prior to termination
of this Lease or Tenant’s right to possession, Landlord notifies Tenant in
writing that Landlord requires removal of the same upon termination, then
Tenant, at Tenant’s sole cost and expense, upon termination of this Lease by
lapse of time or otherwise or upon the earlier termination of Tenant’s right of
possession, shall promptly remove such designated items, and Tenant shall
thereafter repair any damage to the Premises or the Project caused by such
removal, failing which Landlord may remove the same and repair the Premises or
the Project, as the case may be, and Tenant shall pay the cost thereof to
Landlord on written demand.  Without
limitation of the foregoing, if any of the Tenant Alterations, Landlord’s
Additional Work or Landlord’s Work involved the lowering of ceilings, raising
of floors then Tenant, at Landlord’s request, shall also be obligated to return
such surfaces to their condition prior to the commencement of this Lease.  Tenant’s failure to perform the work
described in the preceding sentence on or before the expiration or earlier
termination of this Lease or Tenant’s right of possession hereunder, shall,
without limitation on other rights or remedies available to Landlord, give rise
to the right of Landlord to perform such work, and Tenant shall pay the costs
thereof to Landlord on written demand.


 


(c)                                  Removal
of Personal Property.  Upon
the termination of this Lease by lapse of time or otherwise or upon the earlier
termination of Tenant’s right of possession, Tenant shall remove from the
Premises Tenant’s furniture, machinery, safes and other items of movable
personal property of every kind and description and Tenant’s trade fixtures,
and Tenant shall restore any damage to the Premises or the Project caused
thereby (such removal and restoration to be performed prior to the expiration
of the Term or earlier termination of this Lease or Tenant’s right of
possession), failing which Landlord may do so and thereupon the provisions of
Section 19(f) shall apply.


 


(d)                                 Survival.  Without limitation of any other obligations
of Tenant which shall survive the expiration or termination of this Lease, all
obligations of Tenant under this Section 10 shall survive the expiration
or earlier termination of this Lease.


 


11.                                 HOLDING OVER.


 


If Tenant retains
possession of the Premises or any part thereof after the termination of this
Lease by lapse of time or otherwise or after the earlier termination of
Tenant’s right of possession, Tenant shall pay to Landlord as Rent during such
holdover period an amount equal to 150% of the Rent (based on the Base Rent
plus the most current Additional Rent Estimate owed by Tenant during the most
recent year for the entire Premises), on a per diem basis.  In addition to and without limiting any
other rights and remedies which Landlord may have on account of such holding
over by Tenant, Tenant shall indemnify Landlord from and against any and all
direct and consequential damages suffered by Landlord on account of such
holding over by Tenant, including any damages and claims by tenants entitled to
future possession.  No occupancy by Tenant
after the expiration or other termination of this Lease shall be construed to
extend the Term.  The provisions of this
Section 11 shall not be deemed to limit or constitute a waiver of any
rights or remedies of Landlord as provided herein or at law or equity.


 


12.                                 RULES AND REGULATIONS.


 


Tenant agrees to observe
and not to interfere with the rights reserved to Landlord contained in
Section 13 hereof and elsewhere in this Lease and agrees, for itself, its
employees, agents, invitees, licensees and contractors, to accept and comply
with the rules and regulations 


 


14

















 


set forth in Exhibit D attached to this Lease,
and elsewhere in this Lease, and such other rules and regulations as may be
adopted from time to time by Landlord pursuant to Section 13(o) or any
other Section of this Lease.  The
rules and regulations in Exhibit D and all other reasonable and
non-discriminatory rules and regulations made in accordance with this Lease are
intended and shall be construed to supplement and not limit or restrict in any
way any of Landlord’s rights or Tenant’s obligations contained in
Section 13 or any other Section of this Lease.  Nothing contained in this Lease shall be
construed to impose upon Landlord any duty or obligation to enforce any of said
rules and regulations or the terms, covenants or conditions of any other lease
against any other tenant or any other person.


 


13.                                 RIGHTS RESERVED TO LANDLORD.


 


Landlord reserves and
shall have the following rights, each of which shall, unless expressly provided
otherwise, be exercisable without notice and without liability of Landlord, its
constituent members, or any of their respective agents, partners or employees,
to Tenant for damage or injury to property, person or business or for loss or
interruption of business, or for any other matter, and without effecting an
eviction or disturbance of Tenant’s use or possession, in whole or in part,
actual or constructive, or giving rise or entitling Tenant to any claim for
set-off, abatement or reduction of Rent or relieving Tenant from the
performance of or affecting any of Tenant’s obligations under this Lease:


 


(a)                                  To
change the name or, upon not less than sixty (60) days’ notice, the street
address of the Building.


 


(b)                                 Subject
to Section 30, to install and maintain or remove signs on the exterior and
interior of the Building and the Development.


 


(c)                                  To
prescribe the location and style of the suite number and identification sign or
lettering for the Premises.


 


(d)                                 To
retain at all times, and to use in appropriate instances, pass keys and other
entry devices for all doors into and within the Premises.


 


(e)                                  To
grant to anyone the right to conduct any business or render any service in any
part of the Development.


 


(f)                                    To
enter the Premises for supplying janitor service or other services to be
provided to Tenant hereunder, or for or in the exercise of Landlord’s rights
hereunder, and upon reasonable prior notice (except for routine services to be
performed by Landlord hereunder, or where this Lease otherwise permits entry without
notice or in the event of an emergency, in which case immediate entry shall be
permitted) for other reasonable purposes.


 


(g)                                 To
require all persons entering or leaving the Development or any part thereof
during such hours as Landlord may from time to time reasonably determine to
identify themselves to security personnel by registration or otherwise and to
establish their right to enter or leave in accordance with Landlord’s security
controls.  Landlord shall not be liable
in damages or otherwise for any error with respect to admission to or eviction
or exclusion from the Development or any part thereof of any person.  Notwithstanding anything contained herein to
the contrary, in case of fire, casualty, invasion, insurrection, mob, riot, act
of terrorism, civil disorder, public excitement or other commotion, or threat
thereof, Landlord reserves the right to limit or prevent access to the
Development or any part thereof during the continuance of the same, halt
elevator service, activate elevator emergency controls, or otherwise take such
action or preventive measures reasonably deemed necessary by Landlord for the
safety or security of the tenants or other occupants of the Development or the
protection of the Development and the property in or about the Development.  Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord from time to time.


 


(h)                                 To
control, restrict and prevent access to any areas of the Project, provided that
reasonable access to the Premises shall be maintained.


 


(i)                                     Subject
to Landlord’s obligations under Section 9(a), to rearrange, relocate,
enlarge, reduce or change corridors, exits, elevators, stairs, lavatories,
doors, entrances in or to the Building and to decorate and to make repairs,
alterations, additions and improvements, 


 


15

















 


structural or otherwise, in or to the Land or the
Development or any part thereof, including the Premises, and any adjacent
building, land, street or alley, including for the purpose of connection with
or entrance into or use of the Land or the Development in conjunction with any
adjoining or adjacent building or buildings or pedestrian ways, now existing or
hereafter constructed, provided that Landlord uses good faith efforts to
maintain reasonable access to the Premises and to minimize unreasonable
interference with the conduct of Tenant’s business.  In that regard, Landlord may erect scaffolding and other
structures reasonably required by the character of the work to be performed,
and during such operations to enter upon the Premises upon reasonable prior
notice and take into and upon or through any part of the Development, including
the Premises, all materials that may be required to do such work or make such
decorations, repairs, alterations, improvements or additions, and in connection
with any of the foregoing, to close public entryways, other public spaces,
stairways or corridors and interrupt or temporarily suspend any services or
facilities agreed to be furnished by Landlord. 
Landlord may at its option upon reasonable prior oral or written notice
to Tenant (except in case of emergency) and, except in case of emergency,
subject to Tenant’s reasonable requirements regarding security and protection
of Tenant’s confidential information, do any such work and make any such
decorations, repairs, alterations, improvements and additions in and about the
Development and the Premises during ordinary business hours, provided that if
same shall materially interfere with the conduct of Tenant’s business in the
Premises, and, if Tenant requests in writing that Landlord cause the same done
during other than ordinary business hours, Landlord shall pay all overtime and
additional expenses resulting therefrom.


 


(j)                                     To
establish controls for the purpose of regulating all property and packages to
be taken into or removed from the Building and Premises.


 


(k)                                  To
regulate delivery of supplies and services in order to ensure the cleanliness
and security of the Development and to avoid congestion of the loading docks,
receiving areas and freight elevators.


 


(l)                                     To
approve the weight, size and location of safes, vaults, books, files and other
heavy equipment and articles in and about the Premises and the Building so as
not to exceed the design live load per square foot designated by the structural
engineers for the Building, and to require all such items and furniture and
similar items to be moved into or out of the Building and Premises only at such
times and in such manner as Landlord shall direct in writing.  Tenant shall not install or operate
machinery or any mechanical devises of a nature not directly related to
Tenant’s ordinary use of the Premises without the prior written consent of
Landlord.


 


(m)                               To
show the Premises to prospective tenants at reasonable hours during the last
twelve (12) months of the Term or to prospective mortgagees, ground lessors or
purchasers of the Land or Building or both at any time upon reasonable prior
oral or written notice to Tenant (except in case of emergency) and, except in
case of emergency, subject to Tenant’s reasonable requirements regarding
security and protection of Tenant’s confidential information, and, if vacated
or abandoned, to show the Premises to prospective tenants at any time without
notice and to demolish, alter, remodel or otherwise prepare the Premises for
re-occupancy.


 


(n)                                 To
erect, use and maintain concealed pipes, ducts, wiring and conduits, and
appurtenances thereto, in and through the Premises in walls, below the floor
and above the suspended ceiling, provided that if same materially interferes
with the conduct of Tenant’s business, Landlord shall exercise such rights
other than during ordinary business hours if Tenant so requests in writing and
Landlord agrees to pay all overtime and additional expenses resulting
therefrom.  Prior to exercising its
right of entry upon the Premises pursuant to this subsection, Landlord shall
provide Tenant with reasonable advance oral or written notice thereof (except
in case of actual or threatened emergency) and Landlord, shall, at its sole
cost and expense, repair any damage caused to Premises (including the
improvements therein) by reason of such entry.


 


(o)                                 From
time to time to make and adopt such rules and reasonable and non-discriminatory
regulations, in addition to or as an amendment to rules and regulations
contained in Exhibit D attached to this Lease or other Sections of this
Lease, or adopted pursuant to this or other Sections of this Lease, for the
use, entry, operation or management of the Development (including the Premises)
or for the protection or welfare of the Development or its tenants or
occupants, or any property therein, as Landlord may reasonably determine, and
Tenant agrees to accept, abide by and comply with all such rules and regulations.


 


16

















 


(p)                                 To
designate and/or approve, prior to installation, all types of window shades,
blinds, drapes, awnings or other similar items, and all internal lighting that
may be visible from the exterior of the Premises.


 


(q)                                 To
have access for Landlord and other tenants of the Building to any mail chute
and boxes located in or on the Premises as required by any applicable rules of
the Building or of the United States Post Office.


 


14.                                 ALTERATIONS.


 


(a)                                  Consent;
Conditions.  Tenant shall
not perform any Tenant Alterations without first obtaining the prior written
consent of Landlord.  Without limitation
on the foregoing, Landlord may impose such conditions with respect to Tenant
Alterations as Landlord reasonably deems appropriate, including, without
limitation, requiring Tenant to furnish to Landlord for its approval prior to
commencement of any work or entry by Tenant’s contractors into the Premises or
the Building, security for the payment of all costs to be in connection with
any such Tenant Alterations, insurance against liabilities which may arise out
of the Tenant Alterations and plans and specifications and permits necessary
for the Tenant Alterations.


 


(b)                                 Contractors.  Tenant Alterations shall be done at Tenant’s
expense by agents or contractors hired by Tenant who are reasonably acceptable
to Landlord and whose work will not cause or threaten to cause disharmony or
interference with Landlord or other tenants, contractors or service providers
at the Building, or at Landlord’s election, by Landlord’s employees or
contractors hired by Landlord.  Before
employing any such contractors, Tenant shall submit to Landlord the names and
addresses of such contractors.


 


(c)                                  Costs;
Mechanic Liens.  Tenant
shall promptly pay the cost, when due, of all Tenant Alterations.  In addition to the cost of such Tenant
Alterations, Tenant shall also pay to Landlord or to its designated agent, as
Landlord shall direct, an amount equal to five percent (5%) of all of the costs
of all Tenant Alterations, as a coordination and management fee allocable to
the Tenant Alterations.  Upon completion
of any Tenant Alterations, Tenant shall deliver to Landlord, if payment is made
directly to contractors, evidence of payment, contractors’ affidavits and full
and final waivers of all liens for labor, services and materials sufficient to
waive all rights to liens under the Illinois Mechanic’s Lien law arising or
from the work done.  Tenant shall not permit
any lien or claim for lien of any mechanic, labor or supplier or any other lien
to be filed against the Building, the Land or the Premises or any part thereof,
arising out of any Tenant Alterations or other work performed or alleged to be
performed, by or at the direction of Tenant. 
If any such lien or claim for lien is filed, Tenant shall, within thirty
(30) days of receiving notice of such lien or claim, (i) have such lien or
claim for lien released of record, or (ii) deliver to Landlord a bond or
other security in form, content, and amount satisfactory to Landlord relative
to such lien or claim for lien.  Without
limitation of the foregoing, Tenant shall indemnify, defend and hold harmless,
Landlord and the other Landlord Parties, from and against any such lien or
claim for lien, and the foreclosure or attempted foreclosure thereof.  If Tenant fails to take the actions
described in subclause (i) or subclause (ii) above, then Landlord, without
investigating the validity of such lien or claim for lien, may pay or discharge
the same, and Tenant shall, as payment of additional Rent hereunder, reimburse
Landlord upon demand for the payment so paid by Landlord, including Landlord’s
expenses and attorneys’ fees related thereto.


 


(d)                                 General.  Tenant agrees to indemnify, defend by
counsel reasonably acceptable to Landlord and hold Landlord and the other
Landlord Parties, and the Project, harmless of, from and against any and all
losses, damages, liabilities, claims, liens, costs and expenses, including
without limitation court costs and reasonable attorneys’ fees and expenses,
arising in connection with any Tenant Alterations.  All Tenant Alterations done by Tenant or its contractors,
including work done pursuant to Section 9, shall be performed in a first
class workerlike manner using only good grades of materials which conform to
Building standard materials and shall comply with all insurance requirements of
Landlord and all Laws.  Within thirty
(30) days after substantial completion of any Tenant Alterations by or on
behalf of Tenant for which a building permit has been or is required to be
issued, Tenant shall furnish to Landlord “as built” drawings of such Tenant
Alterations.  All Tenant Alterations
shall be performed in accordance with Landlord’s standard construction rules
and regulations for the Building.  In no
event shall any supervision or right to supervise by Landlord, nor shall any
approvals given by Landlord hereunder, constitute any warranty by Landlord to
Tenant of the adequacy of the design, 


 


17

















 


workmanship or quality of the Tenant Alterations, or impose any
liability upon Landlord in connection with the performance of such work.


 


15.                                 ASSIGNMENT AND SUBLETTING.


 


(a)                                  Prohibitions.  Except as otherwise expressly provided in
this Section 15, Tenant shall not, either prior or subsequent to the
commencement of the Term, (i) assign, transfer, mortgage, pledge,
hypothecate or encumber or subject to or permit to exist upon or be subjected
to any lien or charge, this Lease or any interest under it, (ii) allow to
exist or occur any transfer of or lien upon this Lease or Tenant’s interest
herein by operation of law, (iii) sublet the Premises or any part thereof,
or (iv) permit the use or occupancy of the Premises or any part thereof
for any purpose not provided for under Section 6 of this Lease or by
anyone other than Tenant and Tenant’s employees.  Landlord has the absolute right to withhold its consent to any of
such acts without giving any reason whatsoever, except as herein expressly
provided to the contrary in Sections 15(d) and 15(h).  In no event shall this Lease be assigned or
assignable by voluntary or involuntary bankruptcy proceedings or otherwise,
except as provided by law, and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings, except as provided by law.  Any of the foregoing performed or attempted
in violation of the provisions of this Section shall be null and void.


 


(b)                                 Continuing
Liability.  No
assignment, subletting, use, occupancy, transfer or encumbrance by Tenant shall
operate to relieve Tenant from any covenant, liability or obligation hereunder
except to the extent, if any, expressly provided for in any such written
consent of Landlord to the foregoing, and none of the foregoing, and no consent
to any of the foregoing, shall be deemed to be a consent to or relieve Tenant
from obtaining Landlord’s consent to any subsequent assignment, subletting,
use, occupancy, transfer or encumbrance. 
Tenant shall pay all of Landlord’s reasonable third-party out-of-pocket
costs, charges and expenses, including, without limitation, reasonable
attorneys’ fees and expenses, incurred in connection with any assignment,
subletting, use, occupancy, transfer or encumbrance made or requested by
Tenant.


 


(c)                                  Notice of
Proposed Assignment or Sublease; Recapture.  Tenant shall, by notice in writing, advise
Landlord of its intention from, on and after a stated date (which shall not be
less than thirty (30) nor more than one hundred eighty (180) days after the
date of the giving of Tenant’s notice to Landlord) to assign this Lease or
sublet all or any part of the Premises for the balance or any part of the Term,
and, in such event, Landlord shall have the right, to be exercised by giving
written notice to Tenant within twenty (20) days after its receipt of Tenant’s
notice, (1) to terminate this Lease with respect to the space described in
Tenant’s notice as of the date stated in Tenant’s notice for the commencement
of the proposed assignment or sublease, or (2) to consent or refuse to
consent to the proposed assignment or sublease, as described in
Section 15(d) below.  Tenant’s
notice shall include the name and address of the proposed assignee or
subtenant, a true and complete copy of the proposed assignment or sublease and
sufficient information, as Landlord deems reasonably necessary, to permit
Landlord to determine (i) the financial responsibility and character and
the nature of the business of the proposed assignee or subtenant, and
(ii) whether Landlord has the right under this Lease to withhold consent
to the proposed assignment or sublease. 
If Tenant’s notice covers all of the Premises and if Landlord exercises
its right to terminate this Lease as to such space, then the Term of this Lease
shall expire and end on the date stated in Tenant’s notice for the commencement
of the proposed assignment or sublease as fully and completely as if that date
had otherwise been the Expiration Date. 
If, however, Tenant’s notice covers less than all of the Premises, and
if Landlord exercises its right to terminate this Lease with respect to such
space described in Tenant’s notice, then as of the date stated in Tenant’s
notice for the commencement of the proposed sublease, the Base Rent and
Tenant’s Proportionate Share shall be adjusted on the basis of the number of
square feet Rentable Area retained by Tenant, and this Lease as so amended,
shall continue thereafter in full force and effect.


 


(d)                                 Grounds
for Withholding Consent. 
If Landlord, upon receiving Tenant’s notice with respect to any such
space, does not exercise its right to terminate as aforesaid, Landlord will not
unreasonably withhold or delay its consent to Tenant’s assignment of this Lease
or subletting the space covered by Tenant’s notice.  Landlord shall not be deemed to have unreasonably withheld its
consent to a proposed assignment of this Lease or to a proposed sublease of
part or all of the Premises if its consent is withheld because:  (i) Tenant is then in uncured default
hereunder of which Tenant has been notified in writing; (ii) termination of
this Lease or 


 


18

















 


termination of Tenant’s right of possession shall have
occurred under Section 19 or any notice of termination of this Lease shall
have been given under any other provision of this Lease; (iii) either the
portion of the Premises which Tenant proposes to sublease, or the remaining
portion of the Premises, or the means of ingress or egress to either the
portion of the Premises which Tenant proposes to sublease or the remaining
portion of the Premises is of such nature that it will violate any applicable
Law, is of such accessibility, size or irregular shape so as not to be suitable
for normal renting purposes as space on a multi-tenant floor within the
Building; (iv) the proposed use of the Premises by the proposed assignee
or subtenant does not conform with the use set forth in Section 6 hereof,
or will violate any applicable Law, will impose any obligation upon Landlord or
increase Landlord’s obligations under or cost of compliance with any Laws, or
will violate any exclusive right Landlord has granted or contemplates granting
in the future to any tenant of any part of the Project; (v) in the reasonable
judgment of Landlord the proposed assignee or subtenant is of a character or is
engaged in a business which would be deleterious to the reputation of the
Project, Landlord or any of the constituent members of Landlord; (vi) in
the reasonable judgment of Landlord, the proposed assignee or subtenant is not
sufficiently financially responsible to perform its obligations under the
proposed assignment or sublease; (vii) the proposed assignee or subtenant
is a government (or subdivision or agency thereof); or (viii) the proposed
assignee or subtenant is an occupant of the Development or is a person or
entity Landlord is then dealing with or has dealt with during the prior twelve
(12) months with regard to leasing of space in the Development; provided, however,
that the foregoing are merely examples of reasons for which Landlord may
withhold its consent and shall not be deemed exclusive of any permitted reasons
for reasonably withholding consent, whether similar or dissimilar to the
foregoing examples, and Landlord may consider all relevant factors in
determining whether to give or withhold its consent.  Tenant agrees that all advertising by Tenant or on Tenant’s
behalf with respect to the assignment of this Lease or subletting of any part
of the Premises must be approved in writing by Landlord prior to publication.


 


(e)                                  Excess
Rent Payment.  If Tenant
(as Tenant or debtor-in-possession) shall assign this Lease or sublet the
Premises, or any part thereof, at a rental or for other consideration in excess
of the Rent or pro rata portion thereof due and payable by Tenant under this
Lease, then Tenant shall pay to Landlord as additional Rent one-half (1⁄2) of any
such excess rent or other consideration immediately upon receipt under any such
assignment or, in the case of a sublease, (i) on the later of the first
day of each month during the term of any sublease, or the day of receipt from
such subtenant, one-half (1⁄2) of the excess of all rent and other consideration
paid by the subtenant for such month over the Rent then payable to Landlord
pursuant to the provisions of this Lease for said month (or if only a portion
of the Premises is being sublet, one-half (1⁄2) of the excess of all rent and
other consideration due from the subtenant for such month over the portion of
the Rent then payable to Landlord pursuant to the provisions of this Lease for
said month which is allocable on a Rentable Area basis to the space sublet),
and (ii) immediately upon the receipt thereof, one-half (1⁄2) of any other
consideration realized by Tenant from such subletting.  Landlord shall not be responsible for any
deficiency if Tenant shall assign this Lease or sublet the Premises or any part
thereof at a rental less than that provided for herein.  Whenever reference is made to the “excess”
of rent or other consideration, such excess shall be reduced by charging (i.e.,
on an amortized basis over the term of the sublease or assignment) against the
rent or other consideration paid by such assignee or subtenant, reasonable
brokerage commissions and actual costs of leasehold improvements and other
leasing concessions which Tenant has paid in connection with assigning this
Lease or subleasing the applicable portion of the Premises.


 


(f)                                    Lease
Assumption; Subtenant Attornment.  If Tenant shall assign this Lease, the assignee shall expressly
assume all of the obligations of Tenant hereunder in a written instrument
provided by Landlord and delivered to Landlord not later than ten (10) days
prior to the effective date of the assignment. 
If Tenant shall sublease any part of the Premises, Tenant shall obtain
and furnish to Landlord, not later than ten (10) days prior to the effective
date of such sublease and in form reasonably satisfactory to Landlord, the
written agreement of such subtenant to the effect that the subtenant will
attorn to Landlord, at Landlord’s option and written request (at Lender’s sole
election), if this Lease terminates before the expiration of the sublease.  Tenant shall, not later than fifteen (15)
days after the effective date of any such assignment or sublease, deliver to
Landlord a certified copy of the instrument of assignment or sublease.


 


(g)                                 Corporation,
Partnership and Limited Liability Company Transfers.  If Tenant is a corporation, any transaction
or series of transactions (including without limitation 


 


19

















 


any dissolution, merger, consolidation or other
reorganization of Tenant, or any issuance, sale, gift, transfer or redemption
of any capital stock of Tenant, whether voluntary, involuntary or by operation
of law, or any combination of any of the foregoing transactions) resulting in
the transfer of control of Tenant, other than by reason of death, shall be
deemed to be a voluntary assignment of this Lease by Tenant subject to the provisions
of this Section 15.  If Tenant is a
partnership or limited liability company, any transaction or series of
transactions (including without limitation any withdrawal or admittance of a
partner or member or any change in any partner’s or member’s interest in
Tenant, whether voluntary, involuntary or by operation of law, or any
combination of any of the foregoing transactions) resulting in the transfer of
control of Tenant, other than by reason of death, shall be deemed to be a
voluntary assignment of this Lease by Tenant subject to the provisions of this
Section 15.  The term “control”
as used in this Lease means the power to directly or indirectly direct or cause
the direction of the management or policies of Tenant.


 


(h)                                 Assignment
or Sublet to Affiliate. 
Notwithstanding anything to the contrary contained in this
Section 15, Tenant may, without the obtaining or seeking the consent of
Landlord, assign this Lease or sublet all or any portion of the Premises to an
entity which controls, is controlled by or is under common control with Tenant
or which results from a merger or consolidation with Tenant or the sale of all
or substantially all of Tenant’s assets or capital stock, provided the
following conditions are satisfied:


 


(1)                                  On
the effective date of any such assignment or sublease, this Lease shall be in
full force and effect, Tenant shall not then be in uncured default under any
provision of this Lease as to which Tenant has been given written notice, and
no termination of this Lease or termination of Tenant’s right of possession
shall have occurred under Section 19 nor shall have any notice of
termination of this Lease been given under any other provision of this Lease;


 


(2)                                  On
the effective date of any such assignment, the assignee shall have a net worth
not less than the net worth of Tenant as of the date of this Lease or as of the
effective date of the proposed assignment, whichever is greater;


 


(3)                                  A
copy of the executed assignment or sublease shall be delivered to
Landlord.  Such assignment shall be
accepted by the assignee and shall provide that the assignee shall assume and
be bound by all the covenants, agreements, obligations and liabilities of
Tenant under this Lease.  Such sublease
shall provide that it is subject to the terms, provisions and conditions of
this Lease and that the sublessee shall assume and be bound by all of Tenant’s
obligations, covenants, agreements and liabilities under this Lease with
respect to the subleased portion of the Premises with the exception of Tenant’s
obligation to pay Rent to Landlord as provided in this Lease; and


 


(4)                                  No
such assignment or sublease shall release or be construed as releasing any
obligation of Tenant under this Lease, and if Landlord so requires, as a
condition precedent to the effectiveness of such assignment or sublease, Tenant
shall execute an instrument ratifying and confirming such obligations.


 


(i)                                     Consent
to Assignment and/or Sublease to Certain Affiliates of Tenant.  Landlord acknowledges that Tenant may elect,
from time to time, to sublease, and/or assign this Lease, as to all or portions
of the Premises to Terra Nova Trading, L.L.C. and/or Townsend Analytics, Ltd.,
each of which is an affiliate of the principals of Tenant, or their respective
subsidiaries or affiliates (collectively, a “Permitted Transfer”),
provided that at least fifteen (15) days prior to the effective date of any
such proposed assignment, Tenant shall permit Landlord or its designated agents
to examine the current financial statements of Tenant and the proposed assignee
for Landlord’s approval (which shall not be withheld provided such financial
statements show that the proposed assignee is of at least equivalent financial
condition (i.e., tangible net worth and current net income) as Tenant as
determined by Landlord in its reasonable business judgment) and that the
proposed assignment or sublease otherwise complies with the provisions of this
Section 15 which are not inconsistent with the foregoing provisions of
this subsection.  Except for a Permitted
Transfer, all other assignments, sublettings, transfers, etc. with respect to
this Lease and the Premises which are or would be covered by the provisions of
this Section 15, shall remain subject to the provisions thereof.


 


20

















 


16.                                 WAIVER OF CERTAIN CLAIMS,
INDEMNITY BY TENANT.


 


(a)                                  General
Waiver.  In addition to
and without limiting or being limited by any other releases or waivers of
claims in this Lease, but rather in confirmation and furtherance thereof, to
the extent not prohibited by law, Landlord and Tenant each releases and waives
any and all claims for, and rights to recover, damages against and from the
other, and the other’s respective agents, members, partners, shareholders,
officers, directors and employees (collectively, the “Released Parties”), for loss,
damage or destruction to any of its property (including the Premises, the
Building and their contents), the elements of which are insured against or
which would have been insured against had such party suffering such loss,
damage or destruction maintained the property or physical damage insurance
policies required under Section 22 hereof.  In no event shall this clause be deemed, construed or asserted
(i) to affect or limit any claims or rights against any Released Parties
other than the right to recover damages for loss, damage or destruction to
property, or (ii) to benefit any third party other than the Released
Parties.


 


(b)                                 Indemnity.  In addition to and without limiting or being
limited by any other indemnity in this Lease, but rather in confirmation and
furtherance thereof, to the extent not prohibited by law, Tenant agrees to
indemnify, defend by counsel reasonably acceptable to Landlord and hold the
Landlord Parties, and the Project, harmless of, from and against any and all
losses, damages, liabilities, claims, liens, costs and expenses including court
costs and reasonable attorneys’ fees and expenses, in connection with injury to
or death of any person or with respect to damage to or theft, loss or loss of the
use of any property, occurring in or about the Premises or the Project arising
from Tenant’s occupancy of the Premises, or the conduct of its business or from
any activity, work, or thing done, permitted or suffered by Tenant in or about
the Premises or the Project, or from any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to the terms of this Lease, or due to any other negligent
act or omission or wilful misconduct of Tenant, or any of its employees,
agents, licensees, invitees or contractors.


 


(c)                                  Waiver.  To the extent permitted by law, Tenant
releases the Landlord Parties from, and waives all claims for, damage or injury
to person or property sustained by the Tenant or any occupant of the Building
or Premises resulting directly or indirectly from any existing or future
condition, defect, matter or thing in and about the Project or the Premises or
any part of either or any equipment or appurtenance therein, or resulting from
any accident in or about the Project or resulting directly or indirectly from
any act or neglect of any tenant or occupant of the Building or of any other
person, including Landlord’s agents and servants, except where resulting from
the neglect or willful act of Landlord or any of the Landlord Parties.  Tenant hereby waives any consequential
damages, compensation or claims for inconvenience or loss of business, rents,
or profits as a result of any injury or damage occurring at or about the
Building.


 


(d)                                 Landlord’s
Negligence.  Subject to
the provisions of Section 16(a) and Section 16(c) to the extent
permitted by law, no agreement of Tenant in this Lease shall be deemed to
exempt Landlord from liability or damages for injury to persons or damage to
property caused by or resulting from the negligence of Landlord, its agents,
servants or employees, in the operation or maintenance of the Premises or the
Development.


 


17.                                 DAMAGE OR DESTRUCTION BY
CASUALTY.


 


(a)                                  Termination
of Lease; Repair by Landlord. 
If the Premises or the Building shall be damaged by fire or other
casualty and if such damage does not render all or a substantial portion of the
Premises or the Building untenantable, then Landlord shall proceed with
reasonable promptness to repair and restore the core and shell of the Building
and the Premises so as to render the Premises tenantable, subject to reasonable
delays for insurance adjustments and delays caused by matters beyond Landlord’s
reasonable control, and also subject to zoning laws and building codes then in
effect.  If any such damage renders all
or a substantial portion of the Premises or the Building untenantable, Landlord
shall, with reasonable promptness after the occurrence of such damage, estimate
the length of time that will be required to substantially complete the repair
and restoration of the Premises and the core and shell of the Building, as the
case may be, necessitated by such damage and shall by notice advise Tenant of
such estimate.  If it is so estimated
that the amount of time required to substantially complete such repair and
restoration will exceed two hundred seventy (270) days from the date such
damage occurred, 


 


21

















 


then either Landlord or Tenant (but Tenant shall have
such right only if the damage was not caused by the willful act of Tenant, its
agents, employees, contractors, or invitees, and only if all or a substantial
portion of the Premises is rendered untenantable and the estimated time for
Landlord required to substantially complete such repair or restoration to
render the Premises tenantable will exceed such two hundred seventy (270) day
period) shall have the right to terminate this Lease as of the date of notice
of such election by giving notice to the other at anytime within twenty (20)
days after Landlord gives Tenant the notice containing said estimate (it being
understood that Landlord may, if it elects to do so, also give such notice of
termination together with the notice containing said estimate).  Unless this Lease is terminated as provided
in the preceding sentence, Landlord shall proceed with reasonable promptness to
repair and restore the core and shell of the Building and the Premises so as to
render the Premises tenantable, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord’s reasonable control,
and also subject to zoning laws and building codes then in effect.  Landlord shall have no liability to Tenant,
and Tenant shall not be entitled to terminate this Lease (except as hereinafter
provided) if such repairs and restoration are not in fact completed within the
time period estimated by Landlord, as aforesaid, or within said two hundred
seventy (270) days.  However, if such
repairs and restoration are not completed by a date (“Outside Date”) which is
fifteen (15) months after the date of such fire or other casualty (or
ninety-five (95) days after the expiration of the time period estimated by
Landlord as aforesaid, if longer than two hundred seventy (270) days and
neither party terminated this Lease as permitted), which Outside Date shall be
extended (as to Tenant’s ability to terminate only) by all periods of delay
attributable to the acts or omissions of Tenant or Tenant’s agents, employees
or contractors, for any reason whatsoever, then either party may terminate this
Lease, effective as of the date of notice of such election, by giving written
notice to the other party within thirty (30) day period after said Outside Date
as extended as aforesaid, but prior to substantial completion of repair or
restoration.  Notwithstanding anything
to the contrary herein set forth: 
(i) Landlord shall have no duty pursuant to this Section 17 to
repair or restore any portion of Tenant Alterations or by other improvements,
additions or alterations made by or on behalf of Tenant in the Premises,
including improvements performed by Landlord pursuant to this Lease and/or the
Workletter, if any, except to the extent Tenant provides insurance proceeds or
other funds to Landlord to pay for such repair or restoration;
(ii) Landlord shall not be obligated (but may, at its option, so elect) to
repair or restore the Premises or Building if the damage is due to an
uninsurable casualty or if insurance proceeds are insufficient to pay for such
repair or restoration, or if any Mortgagee applies proceeds of insurance to
reduce its loan balance, and the remaining proceeds, if any, available to
Landlord are not sufficient to pay for such repair or restoration; or
(iii) if any such damage rendering all or substantial portion of the
Premises or Building untenantable shall occur during the last year of the Term,
either party (but as to Tenant’s right, only if all or a substantial portion of
the Premises is rendered untenantable) shall have the option to terminate this
Lease by giving written notice to the other within thirty (30) days after the
date such damage occurred, and if such option is so exercised, this Lease shall
terminate as of the date of such notice.


 


(b)                                 Repair by
Tenant.  If this Lease is
not terminated pursuant to this Section 17, Tenant shall, in accordance
with Section 14, proceed with reasonable promptness to repair and restore
all Tenant Alterations and all other alterations, additions and improvements in
the Premises, other than any repairs or restoration required to be made by
Landlord pursuant to Section 17(a) above, to as near the condition which
existed prior to the fire or other casualty as is reasonably possible.  Tenant agrees and acknowledges that Landlord
shall be entitled to the proceeds of any insurance coverage carried by Tenant
relating to improvements and betterments to the Premises, to the extent
Landlord is obligated under this Section 17 to repair or restore damage to
those items covered by such insurance or if this Lease terminates.


 


(c)                                  Abatement
of Rent.  Except to the
extent arising from the willful acts of Tenant or its agents, employees,
contractors or invitees, in the event any such fire or casualty damage renders
the Premises untenantable and if this Lease shall not be terminated pursuant to
the foregoing provisions of this Section 17 by reason of such damage, then
Rent shall abate during the period beginning with the date of such damage and
ending with the date when Landlord substantially completes its repair or
restoration required hereunder.  Such
abatement shall be in an amount bearing the same ratio to the total amount of
Rent for such period as the portion of the Rentable Area of the Premises which
is untenantable and not used by Tenant from time to time bears to the Rentable
Area of the entire Premises.  In the
event of termination of this Lease 


 


22

















 


pursuant to this Section 17, Rent shall be apportioned on a per
diem basis and be paid to the date of the termination.


 


(d)                                 Untenantability.  As used in this Lease, the term “untenantable”
means reasonably incapable of being accessed or occupied for its intended use
due to damage to the Premises or Building. 
Notwithstanding anything contained to the contrary in this
Section 17, neither the Premises nor any portion of the Premises shall be
deemed untenantable if Landlord is not required to repair or restore same (or
if Landlord is required to repair or restore same, then following such time as
Landlord has substantially completed the repair and restoration work required
to be performed by Landlord under this Section 17), or if Tenant continues
to actually occupy the subject portion of the Premises for the conduct of its
business.


 


(e)                                  Core and
Shell.  The term “core and
shell” shall include all base Building improvements at the Building
or within the Premises (as the case may be), but specifically excludes any work
related to tenant improvements constructed or to be constructed by or for
Tenant or other tenants or installed within the Premises or within any other
tenant’s premises.


 


18.                                 EMINENT DOMAIN.


 


(a)                                  Substantial
Taking.  If the entire
Project or the entire Building, or a substantial part of either of them, or any
part of the Project which includes all or a substantial part of the Premises,
shall be taken or condemned by any competent authority for any public or
quasi-public use or purpose, either party to this Lease shall have the right,
at its option, of giving the other, at any time within thirty (30) days after
such taking, notice terminating this Lease, except that Tenant may only
terminate this Lease by reason of taking or appropriation as above provided, if
such taking shall be so substantial as to materially interfere with Tenant’s
use and occupancy of the Premises, whereupon the Term of this Lease shall end
upon and not before the earlier of the date when the possession of the part so
taken shall be required for such use or purpose or the effective date of the
taking.  If any condemnation proceeding
shall be instituted in which it is sought to take or damage any part of the
Project, the taking or damaging of which would, in Landlord’s opinion, prevent
the economical operation of the Project, or if the grade of any street or alley
adjacent to the Land or the Building is changed or any such street or alley is
closed by any competent authority, and such taking, damage, change of grade or
closing makes it necessary or desirable to remodel the Building to conform to
the taking, damage, change of grade or closing, Landlord shall have the right
to terminate this Lease upon written notice to Tenant given not less than
ninety (90) days prior to the date of termination designated in the
notice.  In either of the events above
referred to, Rent shall be apportioned on a per diem basis and be payable to
the date of the termination.


 


(b)                                 Taking of
Part.  In the event a
part of the Building or the Premises is taken or condemned by any competent
authority and this Lease is not terminated as provided in Section 18(a)
above, this Lease shall be amended to reduce or increase, as the case may be,
the Monthly Base Rent and Tenant’s Proportionate Share to reflect the Rentable
Area of the Premises or Building, as the case may be, remaining after any such
taking or condemnation. Landlord, upon receipt and to the extent of the award
in condemnation (or proceeds of sale) shall make necessary repairs and
restorations to the Premises (exclusive of any Tenant Alterations, or any other
improvements made by or on behalf of Landlord or Tenant) and to the Building to
the extent necessary to constitute the portion of the Building not so taken or
condemned as a complete architectural and economically efficient unit.


 


(c)                                  Compensation.  Landlord shall be entitled to receive the
entire award (or sale proceeds) from any such taking, condemnation or sale
without any payment to Tenant, and Tenant hereby assigns to Landlord all of
Tenant’s interest, if any, in such award; provided, however, Tenant shall have
the right separately to pursue against the condemning authority a separate
award in respect of the loss, if any, to Tenant Alterations paid for by Tenant
without any credit or allowance from Landlord, so long as there is no
diminution of Landlord’s award as a result, and subject to the rights of any
ground lessor or mortgagee of Landlord with respect thereto.


 


23

















 


19.                                 DEFAULT; LANDLORD’S RIGHTS
AND REMEDIES.


 


(a)                                  Default.  The occurrence of any one or more of the
following matters constitutes a “Default” by Tenant under this Lease:


 


(i)                                     Failure
by Tenant to pay any Rent when due, if such failure continues for five (5) days
after written notice to Tenant of such failure;


 


(ii)                                  Failure
by Tenant to pay any other money required to be paid by Tenant under this Lease
when due, if such failure continues for five (5) days after written notice to
Tenant of such failure;


 


(iii)                               Failure
by Tenant to observe or perform any of the covenants in respect of assignment
and subletting set forth in Section 15;


 


(iv)                              Failure
by Tenant to cure forthwith, immediately after receipt of notice from Landlord,
any hazardous condition which Tenant has created or permitted in violation of
law or of this Lease;


 


(v)                                 Failure
by Tenant to complete, execute and deliver any instrument or document required
to be completed, executed and delivered by Tenant pursuant to Section 20
or Section 24 of this Lease, within ten (10) days after the initial
written demand therefor to Tenant if such failure continues for five (5) days
after written notice to Tenant of such failure;


 


(vi)                              Failure
by Tenant to observe or perform any other covenant, agreement, condition or
provision of this Lease, if such failure shall continue for twenty (20) days
after written notice thereof from Landlord to Tenant; provided that such 20-day
period shall be extended for the time reasonably required to complete such cure
(not to exceed, in any event, an additional 60-day period), if such failure
cannot reasonably be cured within said 20-day period and Tenant commences to
cure such failure within said 20-day period and thereafter diligently and
continuously proceeds to cure such failure;


 


(vii)                           The
levy upon execution or the attachment by legal process of the leasehold
interest of Tenant, or the filing or creation of a lien in respect of such
leasehold interest, which lien shall not be released or discharged within
thirty (30) days from the date of such filing;


 


(viii)                        Tenant
becomes insolvent or bankrupt or admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of creditors, or
applies for or consents to the appointment of a trustee or receiver for Tenant
or for the major part of its property;


 


(ix)                                A
trustee or receiver is appointed for Tenant or for a major part of its
property, without Tenant’s application therefor or consent thereto, and is not
discharged within sixty (60) days after such appointment;


 


(x)                                   Any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding for relief under any bankruptcy law or similar law for the
relief of debtors, is instituted (A) by Tenant, or (B) against Tenant
and is allowed against it or is consented to by it or is not dismissed within
sixty (60) days after such institution; or


 


(xi)                                Upon
the third occurrence within any twelve-month period that Tenant fails to pay
Rent when due or has breached a particular covenant of this Lease (whether or
not such failure or breach is thereafter cured within any stated cure or grace
period or statutory period).


 


(b)                                 Landlord’s
Rights and Remedies.  If
a Default occurs, Landlord shall have the rights and remedies hereinafter set
forth, which shall be distinct, separate and cumulative and shall not operate
to exclude or deprive Landlord of any other right or remedy allowed it at law
or in equity:


 


24

















 


(i)                                     Landlord
may terminate this Lease, in which event the Term of this Lease shall end, and
all right, title and interest of Tenant hereunder shall expire;


 


(ii)                                  Landlord
may terminate the right of Tenant to possession of the Premises without
terminating this Lease, whereupon the right of Tenant to possession of the
Premises or any part thereof shall cease; and


 


(iii)                               Landlord
may enforce the provisions of this Lease and may enforce and protect the rights
of Landlord hereunder by a suit or suits in equity or at law for the specific
performance of any covenant or agreement contained herein, and for the
enforcement of any other appropriate legal or equitable remedy, including
without limitation distraint for rent, injunctive relief, recovery of all money
due or to become due from Tenant under any of the provisions of this Lease and
recovery of damages incurred by Landlord by reason of the Default.


 


(iv)                              Landlord
may cure or correct such Default or take steps to perform any covenant,
agreement, condition or provisions of this Lease, and all costs and expenses
incurred by Landlord in so doing (including reasonable attorneys’ fees) shall
be paid by Tenant to Landlord as additional rent upon demand plus interest at
the Default Rate (defined in Section 28(i)) from the date of
expenditure.  Landlord’s proceeding
under the rights reserved to Landlord under this Section 19(b)(iv) shall
not in any way prejudice or waive any rights as Landlord might otherwise have
against Tenant by reason of that or any other Default.


 


Notwithstanding anything to the contrary herein contained, Landlord
shall not be required to serve Tenant with any notices or demands as a
prerequisite to its exercise of any of its rights or remedies under this Lease,
other than those notices and demands specifically required under this
Lease.  Tenant expressly waives the
service of any statutory demand or notice which is a prerequisite to Landlord’s
commencement of eviction proceedings against Tenant, including the demands and
notices specified in 735 ILCS §§5/9-209 and 5/9-210.


 


(c)                                  Surrender.  If Landlord exercises any of the remedies
provided for in subparagraphs (i) and (ii) of Section 19(b), Tenant
shall surrender possession of and vacate the Premises and immediately deliver
possession thereof to Landlord, and Landlord may re-enter and take complete and
peaceful possession of the Premises, with or without process of law, full and
complete license so to do being hereby granted to Landlord, and Landlord may
remove all occupants and property therefrom, using such force as may be
necessary, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer, and without relinquishing Landlord’s right to Rent
or any other right given to Landlord hereunder or by law or in equity.


 


(d)                                 Termination
of Right of Possession. 
If Landlord terminates the right of Tenant to possession of the Premises
without terminating this Lease, as provided for by subparagraph (ii) of
Section 19(b), then Landlord shall be entitled to recover from Tenant all
the fixed dollar amounts of Rent accrued and unpaid for the period up to and
including such termination date, as well as all other additional sums payable
by Tenant, or for which Tenant is liable or in respect of which Tenant has
agreed to indemnify Landlord under any of the provisions of this Lease, which
may be then owing and unpaid, and all costs and expenses, including without
limitation court costs and reasonable attorneys’ fees and expenses incurred by
Landlord in the enforcement of its rights and remedies hereunder, and in
addition, Landlord shall be entitled to recover from Tenant from time to time,
and Tenant shall remain liable for, all Rent and all other additional sums
thereafter accruing as they become due under this Lease during the period from
the date of such notice of termination of possession to the stated end of the
Term.  In any such case, Landlord shall
use reasonable efforts as required by applicable law to relet the Premises for
the account of Tenant for such rent, for such time (which may be for a term
extending beyond the Term of this Lease), in such portions and upon such terms
as Landlord in Landlord’s sole discretion shall determine, and Landlord shall
not be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant relative to such reletting.  Landlord may give priority over leasing the
Premises to any other space Landlord desires to lease in the Building and shall
not be required in any case to offer rent, length of terms or other terms for
the Premises which are or would be less favorable to Landlord than being
offered for comparable space of Landlord in the Building.  Also, in any such case, Landlord may make 


 


25

















 


repairs, alterations and additions in or to the
Premises and redecorate the same to the extent deemed by Landlord necessary or
desirable, and in connection therewith Landlord may change the locks to the
Premises, and Tenant shall upon written demand pay the cost thereof together
with Landlord’s expenses of reletting. 
Landlord may collect the rents from any such reletting and shall apply
the same first to the payment of the expenses of reentry, redecoration, repair,
alterations and reletting and second to the payment of Rent herein provided to
be paid by Tenant, and any excess or residue shall operate only as an
offsetting credit against the amount of Rent, if any, due and owing or as the
same thereafter becomes due and payable hereunder, but the use of such
offsetting credit to reduce the amount of Rent due Landlord, if any, shall not
be deemed to give Tenant any right, title or interest in or to such excess or
residue, and any such excess or residue shall belong to Landlord solely;
provided that in no event shall Tenant be entitled to such a credit against
Rent in excess of the aggregate sum (including Base Rent and Additional Rent)
which would have been paid by Tenant for the period for which the credit to
Tenant is being determined had no Default occurred.  No such re-entry, repossession, repairs, alterations, additions
or reletting shall be construed as an eviction or ouster of Tenant or as an
election on Landlord’s part to terminate this Lease, unless a written notice of
such intention is given to Tenant, or shall operate to release Tenant in whole
or in part from any of Tenant’s obligations hereunder, and Landlord 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.


 


(e)                                  Termination
of Lease.  In the event
of the termination of this Lease by Landlord as provided for by
subparagraph (i) of Section 19(b), Landlord shall be entitled to
recover from Tenant all the fixed dollar amounts of Rent accrued and unpaid for
the period up to and including such termination date, as well as all other
additional sums payable by Tenant, or for which Tenant is liable or in respect
of which Tenant has agreed to indemnify Landlord under any of the provisions of
this Lease, which may be then owing and unpaid, and all costs and expenses,
including without limitation court costs and reasonable attorneys’ fees and
expenses incurred by Landlord in the enforcement of its rights and remedies
hereunder, and in addition, Landlord shall be entitled to recover an amount
equal to the present value (calculated using a discount rate equal to six
percent (6%) per annum) of the aggregate Base Rent payable for the period from
the termination date stated in Landlord’s notice terminating this Lease until
the date which would have been the Expiration Date but for such termination,
less the present value (calculated using a discount rate equal to six percent
(6%) per annum) of the fair rental value of the Premises for the same period
(which fair rental value shall be calculated so as to include a reasonable
vacancy period for reletting the Premises and deductions for reasonable
expenses and inducements incurred by Landlord to achieve such reletting,
including without limitation attorneys’ fees and expenses, brokerage fees,
advertising costs, rent abatements, tenant improvement allowances and the
like).


 


(f)                                    Tenant’s
Property.  All property
of Tenant removed from the Premises by Landlord or which becomes Landlord’s
property pursuant to any provisions of this Lease or by law may be handled,
removed or stored by Landlord at the cost and expense of Tenant, and Landlord
shall in no event be responsible for the value, preservation or safekeeping
thereof.  Tenant shall pay Landlord for
all expenses incurred by Landlord in such removal and for storage charges for
such property so long as the same shall be in Landlord’s possession or under
Landlord’s control.  All property not
removed from the Premises or retaken from storage by Tenant on or before the
end of the Term, however terminated, or the termination of Tenant’s right of
possession, shall, at Landlord’s option, be conclusively deemed to have been
conveyed by Tenant to Landlord as by bill of sale, without further payment or
credit by Landlord to Tenant.


 


(g)                                 Bankruptcy
Acceptance or Rejection. 
If Landlord shall not be permitted to terminate this Lease or Tenant’s
right of possession of the Premises under the Bankruptcy Code, Tenant on behalf
of itself as a tenant-in-possession or on behalf of any bankruptcy trustee for
Tenant (alternatively referred to as “Tenant” in this Section 19(e))
agrees, within sixty (60) days after request by Landlord to the bankruptcy court
having jurisdiction over Tenant’s bankrupt estate (the “Bankruptcy Court”), to assume
or reject this Lease, and Tenant agrees not to seek or request any extension or
continuation of such time in any bankruptcy proceeding to assume or reject this
Lease.


 


26

















 


Tenant’s right to assume
this Lease as aforesaid shall be expressly conditioned upon Tenant fully
satisfying the requirements under Section 365(b)(1) of the Bankruptcy
Code, as such Section may be amended from time to time.  In no event after such assumption of this
Lease shall any then existing Default remain uncured for a period in excess of
the earlier of ten (10) days or the time period for curing such default as set
forth herein.  Failure to cure such
default within such time shall constitute a Default hereunder.


 


Landlord and Tenant agree
that adequate assurance of performance of this Lease, as set forth in
Section 365(b)(1) of the Bankruptcy Code, as such Section may be
amended from time to time, with respect to any monetary Default under this
Lease, shall be in the form of cash or immediately available funds in an amount
equal to at least the amount of such monetary Default so as to assure the
Landlord that it will realize the amount of such Default.


 


If Tenant assumes this
Lease and proposes to assign this Lease pursuant to the provisions of the
Bankruptcy Code to any person or entity who shall have made a bona fide offer
to accept an assignment of this Lease, then notice of such proposed assignment,
setting forth (i) the name and address of such person or entity,
(ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person’s or entity’s
future performance under this Lease, shall be given to Landlord by Tenant
within twenty (20) days after receipt of such offer by Tenant and in no event
later than ten (10) days prior to the date that Tenant shall make application
to the Bankruptcy Court for authority and approval to enter into such
assumption and assignment.  In addition,
Landlord shall thereupon have the right of first refusal, to be exercised by
notice to Tenant given within ten (10) days prior to the effective date of such
proposed assignment, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person or entity, less any brokerage commissions which may be
payable out of any consideration to be paid by such person or entity for the assignment
of this Lease.


 


Any person or entity to
which this Lease is assigned pursuant to the provisions of the Bankruptcy Code
shall be deemed, without further act or deed, to have assumed all of the
obligations arising under this Lease on and after the date of such assignment;
provided, however, that any options to renew or extend the Term of this Lease,
and any right of offer or refusal or other options or rights to lease
additional space in the Building shall be terminated effective as of the date
on which such petition was filed with the Bankruptcy Court.  Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption of this Lease
on such terms.  Nothing contained in
this Section shall, in any way, constitute a waiver of any provisions of
this Lease relating to assignment or subletting.


 


All monies or other
considerations payable by Tenant or otherwise to be delivered to or on behalf
of Landlord under this Lease, whether or not expressly denominated as Rent hereunder,
shall constitute rent for the purposes of Section 502(b)(6) of the
Bankruptcy Code, as such Section may be amended from time to time, and be
the sole property of Landlord.


 


From and after the date
of the filing of any petition with the Bankruptcy Court, to the extent
permitted by applicable law, Landlord shall have no obligation to provide any
services or utilities to the Premises as herein required, unless and until
Tenant shall have paid and be current in all payments or other charges therefor.
 Such payments and charges shall
constitute administrative charges or expenses under Section 507(a)(1) of
the Bankruptcy Code, as such Section may be amended from time to time.


 


(h)                                 Waiver of
Notices Not Provided for in this Lease.  Tenant expressly waives the service of any
notice of intention to terminate this Lease or to reenter the Premises and
waives the service of any demand for payment of rent or for possession and
waives the service of any and every other notice or demand prescribed by any
ordinance, statute or other law (except as expressly otherwise provided in this
Lease) and agrees that the breach of any covenants or agreements provided in
this Lease shall, in and of itself, without the service of any notice or demand
whatever (except as expressly otherwise provided in this Lease), constitute a
forcible detainer by Tenant of the Premises.


 


(i)                                     No
Counterclaim.  If
Landlord commences any summary proceeding for possession of the Premises (or
any portion thereof) due to non-payment of Rent, Tenant will not 


 


27

















 


interpose any non-compulsory counterclaim of whatever nature or
description in any such proceeding.


 


20.                                 RIGHTS OF MORTGAGEES AND
GROUND LESSORS.


 


(a)                                  Subordination
of Lease.  Landlord may
have heretofore or may hereafter encumber with a mortgage or trust deed the
Building, the Land, the Project, any part thereof or any interest therein, may
sell and lease back the Land, or any part of the Project, and may encumber the
leasehold estate under such a sale and leaseback arrangement with a mortgage or
trust deed.  (Any such mortgage or trust
deed is herein called a “Mortgage” and the holder of any such
mortgage or the beneficiary under any such trust deed is herein called a “Mortgagee.”  Any such lease of the Land or other part of
the Project is herein called a “Ground Lease” and the lessor under any such
lease is herein called a “Ground Lessor.”)  This lease and the rights of Tenant hereunder shall be and are
hereby expressly made subject to and subordinate at all times to any Mortgage
and to any Ground Lease now or hereafter existing, and to all amendments,
modifications, renewals, extensions, consolidations and replacements thereof,
and to all advances made or hereafter to be made upon the security thereof.  So long as Tenant is not in Default
hereunder, Landlord and Tenant agree that Tenant’s covenant to subordinate this
Lease to any future Mortgage or Ground Lease shall be conditioned upon the
Mortgagee’s or Ground Lessor’s agreement to recognize Tenant’s rights and
obligations under this Lease upon an attornment to such Mortgagee or Ground
Lessor by Tenant which agreement shall be upon such Mortgagee’s or Ground
Lessor’s then current and commercially reasonable form thereof.  Landlord shall obtain a Subordination,
Nondisturbance and Attornment Agreement from the current First Mortgagee in the
form attached hereto as Exhibit H (the “SNDA”).  Tenant agrees to execute and deliver the
SNDA to such current First Mortgagee and to pay any and all reasonable fees and
charges imposed by such current First Mortgagee to prepare, negotiate and
execute same.  Tenant agrees to execute
and deliver to Landlord such further instruments consenting to or confirming
the subordination of this Lease to any Mortgage and to any Ground Lease and
containing such other provisions which may be requested in writing by Landlord
within ten (10) days after Tenant’s receipt of such written request.  In the event of any conflict between the
terms and provisions of the SNDA and the terms and provisions of this
Article 20, as between Tenant and the current First Mortgagee, its
successors and assigns, the terms and provisions of the SNDA shall control.


 


(b)                                 Notice of
and Opportunity to Cure Defaults.  Tenant agrees that if Landlord defaults in the performance or
observance of any covenant or condition of this Lease required to be performed
or observed by Landlord hereunder, Tenant will give written notice specifying
such default by certified or registered mail, postage prepaid, to any Mortgagee
or Ground Lessor of which Tenant has been notified in writing, and before
Tenant exercises any right to terminate this Lease which Tenant may have on
account of any such default of Landlord, such Mortgagee or Ground Lessor shall
have an additional thirty (30) days after receipt of notice thereof within
which to cure such default (or if such default cannot be cured within that
time, then such additional time as may be necessary, if, within such thirty
(30) days, any Mortgagee or Ground Lessor has commenced and is diligently
pursuing the remedies necessary to cure such default, including but not limited
to commencement of foreclosure proceedings or other proceedings to acquire
possession of the mortgaged or leased estate, if necessary to effect such cure).  Such period of time shall be extended by any
period within which such Mortgagee or Ground Lessor is prevented from
commencing or pursuing such foreclosure proceedings or other proceedings to
acquire possession of the mortgaged or leased estate by reason of Landlord’s
bankruptcy.


 


(c)                                  Rights of
Successors.  Subject to
the applicable provisions of the SNDA with respect to the current First
Mortgage, if any Mortgage is foreclosed, or Landlord’s interest under this
Lease is conveyed or transferred in lieu of foreclosure, or if any Ground Lease
is terminated:


 


(i)                                     No
person or entity which as the result of any of the foregoing has succeeded to
the interest of Landlord in this Lease (any such person or entity being
hereafter called a “Successor”) shall be liable for any default
by Landlord or any other matter which occurred prior to the date such Successor
succeeded to Landlord’s interest in this Lease, nor shall such Successor be
bound by or subject to any offsets or defenses which Tenant may have against
Landlord or any other predecessor in interest to such Successor.


 


28

















 


(ii)                                  Upon
request of any Successor, Tenant will attorn to such Successor, as Landlord
under this Lease, subject to the provisions of this Section 20(c) and
Section 20(e), and will execute and deliver such instruments as may be
necessary or appropriate to evidence such attornment within ten (10) days after
receipt of a written request to do so.


 


(iii)                               No
Successor shall be bound to recognize any prepayment by more than thirty (30)
days of Base Rent, Additional Rent or Additional Rent Estimate.


 


(iv)                              No
Successor shall be bound to recognize any amendment or modification of this
Lease made without the written consent of the Mortgagee or Ground Lessor (as
the case may be).


 


(d)                                 Subordination
of Mortgage. 
Notwithstanding anything to the contrary contained herein, any Mortgagee
may subordinate, in whole or in part, its Mortgage to this Lease by sending
Tenant notice in writing subordinating all or any part of such Mortgage to this
Lease, and Tenant agrees to execute and deliver to such Mortgagee such further
instruments consenting to or confirming the subordination of all or any portion
of its Mortgage to this Lease and containing such other provisions which may be
requested in writing by such Mortgagee within ten (10) days after Tenant’s
receipt of such written request.


 


(e)                                  Liability
of Mortgagee and Ground Lessor. 
Whether or not any Mortgage is foreclosed or any Ground Lease is
terminated, or any Mortgagee or Ground Lessor succeeds to any interest of
Landlord under this Lease, no Mortgagee or Ground Lessor shall have any
liability to Tenant for any security deposit paid to Landlord by Tenant
hereunder, unless such security deposit has actually been received by such
Mortgagee or Ground Lessor.


 


(f)                                    Requests
by Mortgagee or Ground Lessor. 
Should any prospective Mortgagee or Ground Lessor require a modification
or modifications of this Lease, which modification or modifications will not
cause an increased cost or expense to Tenant or in any other way materially and
adversely change the rights and obligations of Tenant hereunder, in the
reasonable judgment of Tenant, then and in such event, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents are required
therefor and deliver the same to Landlord within ten (10) days following
written request therefor.  Should any
prospective Mortgagee or Ground Lessor require execution of a short form of
this Lease for recording (containing, among other customary provisions, the
names of the parties, a description of the Premises and the Term of this
Lease), Tenant agrees to execute such short form of lease and deliver the same
to Landlord within ten (10) days following the request therefor.


 


21.                                 DEFAULT UNDER OTHER LEASES.


 


If the term of any lease,
other than this Lease, heretofore or hereafter made by Tenant for any space in
the Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant or any such other party under such other
lease, such fact shall empower Landlord, at Landlord’s sole option, to
terminate this Lease by written notice to Tenant or to exercise any of the
rights or remedies set forth in Section 19.


 


22.                                 INSURANCE AND SUBROGATION.


 


(a)                                  Tenant’s
Insurance.  Tenant shall
carry insurance during the entire Term hereof insuring Tenant, and insuring
Landlord, Landlord’s constituent members and agents, all Mortgagees and Ground
Lessors and their respective agents, partners and employees, with terms,
coverages and in companies satisfactory to Landlord, and with such changes in
insured parties and increase in limits as Landlord may from time to time
request, but initially Tenant shall maintain the following coverages in the
following amounts:


 


(i)                                     Commercial
general liability insurance with the broad form commercial liability
endorsement, including contractual liability insurance covering Tenant’s
indemnity obligations hereunder, insuring against claims for death, bodily
injury, personal injury and property damage occurring upon, in or about the
Premises in an amount not less than $5,000,000.00 per occurrence and having a
general aggregate 


 


29

















 


amount on a per location basis of not less than $5,000,000.00.  Landlord shall be named as an additional
insured on such policy.


 


(ii)                                  “All
risk” physical damage insurance including fire, sprinkler leakage, vandalism
and extended coverage for the full replacement cost of all Landlord’s Work,
Landlord’s Additional Work, Tenant’s Alterations, and all other additions,
improvements and alterations to the Premises (providing that Landlord is an
additional named insured as its interest may appear) and of all office
furniture, trade fixtures, office equipment, merchandise and all other items of
Tenant’s property on the Premises.


 


(iii)                               Workers’
Compensation and Employers’ Liability insurance in an amount of not less than
$1,000,000.00, both in accordance with the laws of the State of Illinois.


 


(iv)                              Such
other insurance or coverage as Landlord reasonably requests.


 


Tenant shall, prior to
the commencement of the Term and from time to time during the Term (and, in any
event, not less than ten days prior to the expiration of any such policy),
furnish to Landlord certificates of insurance (with proof of payment) and, if
requested by Landlord, copies of all policies, evidencing the foregoing
insurance coverage.  Tenant’s policies
shall state that such insurance coverage may not be amended, cancelled or not
renewed without at least thirty (30) days’ prior written notice to Landlord and
Tenant, and shall further provide that the policy shall not be invalidated
should the insured party have waived in writing prior to a loss, any and all
rights of the insured party against any other party for losses covered by such
policy.


 


(b)                                 Waiver of
Subrogation.  Landlord
and Tenant each agree to have all property or physical damage insurance which
it may carry endorsed with a clause providing that any release from liability
of or waiver of claim for recovery from the other party or any of the parties
named in Section 22(a) above or any of the Released Parties described in
Section 16(a) entered into in writing by the insured thereunder prior to
any loss or damage shall not affect the validity of said policy or the right of
the insured to recover thereunder. 
Tenant’s policy shall provide further that the insurer waives all rights
of subrogation which such insurer might have against any of the parties named
in Section 22(a) above or any of the Released Parties described in
Section 16(a).  Tenant further
agrees to first seek recovery under any applicable insurance policy before
proceeding against Landlord. 
Notwithstanding the foregoing or anything contained in this Lease to the
contrary, any release or waiver of claims shall not be operative, nor shall the
foregoing endorsements be required, in any case where the effect of such
release or waiver is to invalidate insurance coverage or invalidate the right
of the insured to recover thereunder or increase the cost thereof (provided
that in the case of increased cost the other party shall have the right, within
ten (10) days following written notice, to pay such increased cost, thereby
keeping such release or waiver in full force and effect).


 


(c)                                  Landlord’s
Insurance.  Landlord
shall carry during the Term hereof replacement cost property insurance on the
Building core and shell (including all base Building improvements at the
Building but excluding Landlord’s Work, Tenant’s Alterations and all other
alterations, additions or improvements to the Premises) against fire and other
extended coverage perils in an amount sufficient to prevent Landlord from being
deemed a co-insurer of the risks insured under the policy.


 


23.                                 NONWAIVER.


 


No waiver of any
condition expressed in this Lease shall be implied by any neglect of Landlord
to enforce any remedy on account of the violation of such condition, whether or
not such violation be continued or repeated subsequently, and no express waiver
shall affect any condition other than the one specified in such waiver and that
one only for the time and in the manner specifically stated.  Without limiting Landlord’s rights under the
provisions of Section 11, it is agreed that no receipt of money by
Landlord from Tenant after the termination in any way of the Term or of
Tenant’s right of possession hereunder or after the giving any notice shall
reinstate, continue or extend the Term or affect any notice given to Tenant
prior to the receipt of such money.  It
is also agreed that after the service of notice or the commencement of a suit
or after final judgment for possession of the Premises, Landlord may receive
and collect any money due, and Landlord’s receipt and collection of said money
shall not waive or affect any said notice, suit or judgment.


 


30

















 


24.                                 ESTOPPEL CERTIFICATE.


 


Tenant agrees that from
time to time upon not less than ten (10) days’ prior request by Landlord, or
any existing or prospective Mortgagee or Ground Lessor, Tenant will, and Tenant
will cause any subtenant, licensee, concessionaire or other occupant of the
Premises claiming by, through or under Tenant, to complete, execute and deliver
to Landlord or Landlord’s designee or to any existing or prospective Mortgagee
or Ground Lessor, a written estoppel certificate certifying (a) that this
Lease is unmodified and is in full force and effect (or if there have been
modifications, that this Lease, as modified, is in full force and effect and
setting forth the modifications); (b) the amounts of the monthly
installments of Base Rent and Additional Rent Estimate then required to be paid
under this Lease; (c) the date to which Rent has been paid; (d) that
to the best of Tenant’s knowledge, Landlord is not in default under any of the
provisions of this Lease, or if in default, the nature thereof in detail and
what is required to cure same; and (e) such other information concerning
the status of this Lease or the parties’ performance hereunder reasonably requested
by Landlord or the party to whom such estoppel certificate is to be
addressed.  Tenant’s failure to
complete, execute and deliver such estoppel certificate within the aforesaid
10-day period, if such failure continues for five (5) days after written notice
to Tenant of such failure, shall be deemed to be a Default under
Section 19 of this Lease.


 


25.                                 TENANT CORPORATION,
LIMITED LIABILITY COMPANY OR PARTNERSHIP.


 


In case Tenant is a
corporation or a limited liability company, (a) Tenant represents and
warrants that this Lease has been duly authorized, executed and delivered by
and on behalf of Tenant and constitutes the valid and binding agreement of
Tenant in accordance with the terms hereof, and (b) if Landlord so
requests, Tenant shall deliver to Landlord, concurrently with the delivery of
this Lease executed by Tenant, resolutions of the board of directors or board
of managers (and shareholders and/or members, if required) of Tenant
authorizing Tenant’s execution and delivery of this Lease and the performance
of Tenant’s obligations hereunder, certified as true and correct by any
authorized representative of Tenant.  In
case Tenant is a partnership, (a) Tenant represents and warrants that all
of the persons who are general or managing partners in said partnership have
executed this Lease on behalf of Tenant, or that this Lease has been executed
and delivered pursuant to and in conformity with a valid and effective
authorization therefor by all of the general or managing partners of such
partnership, and is and constitutes the valid and binding agreement of the
partnership and each and every partner therein in accordance with its terms, to
the extent permitted by law, and (b) if Landlord so requests, Tenant shall
deliver to Landlord, concurrently with the delivery of this Lease executed by
Tenant, authorization of the general partners (and limited partners, if
required) of Tenant authorizing Tenant’s execution and delivery of this Lease
and the performance of Tenant’s obligations hereunder, certified as true and
correct by a general partner of Tenant. 
Also, it is agreed that each and every present and future individual
general partner, if Tenant is a partnership, in Tenant shall be and remain at
all times jointly and severally liable hereunder, to the extent permitted by
law, and that the death, resignation or withdrawal of any such partner shall
not release the liability of such partner under the terms of this Lease unless
and until Landlord shall have consented in writing to such release.  If Tenant is a partnership, limited
liability company or corporation whose stock is not publicly traded, Tenant
represents and warrants to Landlord that it has disclosed in writing to
Landlord the persons or entities who individually or collectively own a
controlling interest in Tenant as of the date of the execution of this Lease
provided that Landlord shall not disclose such information to any third party
other than its lenders, partners, members, agents, consultants, advisors,
attorneys and accountants or as may be otherwise required by a government or
governmental agency or pursuant to court order.


 


26.                                 REAL ESTATE BROKERS.


 


Landlord and Tenant each
represents and warrants to the other party that it did not deal with any broker
in connection with this lease other than the Brokers identified in
Section 1(b).  Landlord hereby
agrees to pay the brokerage commissions payable to said Brokers in accordance
with a written agreement between Landlord and such Broker.  Tenant shall indemnify, defend and hold the
Landlord Parties and the Project, harmless of, from and against any and all
losses, damages, liabilities, claims, liens, costs and expenses, including
without limitation court costs and reasonable attorneys’ fees and expenses,
arising from any claims or demands of any other broker or brokers or finders
for any commission alleged to be due such other broker or brokers or 


 


31

















 


finders claiming to have dealt with Tenant in
connection with this lease or with whom Tenant hereafter deals or whom Tenant
employs.  Landlord shall indemnify,
defend and hold Tenant harmless of, from and against any and all losses,
damages, liabilities, claims, liens, costs and expenses, including without
limitation court costs and reasonable attorneys’ fees and expenses, arising
from any claims or demands of any broker or brokers or finders for any
commission alleged to be due such broker or brokers or finders claiming to have
dealt with Landlord in connection with this lease or with whom Landlord
hereafter deals or whom Landlord employs.


 


27.                                 NOTICES.


 


All notices, waivers,
demands, requests or other communications required or permitted hereunder
shall, unless otherwise expressly provided, be in writing and be deemed to have
been properly given, served and received (a) if delivered personally or by
same-day courier messenger, when delivered, (b) if sent by nationally
recognized overnight courier, on the first (1st) business day after deposit
with said courier, and (c) if mailed, on the third (3rd) business day
after deposit in the United States Mail, certified or registered, postage
prepaid, return receipt requested to the appropriate Address for Notices set
forth in Section 1(aa) of the Basic Provisions.


 


28.                                 MISCELLANEOUS.


 


(a)                                  Successors
and Assigns.  Each provision
of this Lease shall extend to and shall bind and inure to the benefit not only
of Landlord and Tenant, but also their respective heirs, legal representatives,
successors and assigns, but this provision shall not operate to permit any
assignment, subletting, mortgage, lien, charge, or other transfer or
encumbrance contrary to the provisions of this Lease.


 


(b)                                 Amendment.  No modification, waiver or amendment of this
Lease or of any of its conditions or provisions shall be binding upon Landlord
unless the same shall be in writing and signed by Landlord.


 


(c)                                  Offer.  Submission of this instrument for
examination shall not constitute a reservation of or option for the Premises or
in any manner bind Landlord, and no lease or obligation on Landlord shall arise
until this instrument is signed and delivered by Landlord and Tenant; provided,
however, the execution and delivery by Tenant of this Lease to Landlord, or its
agents, shall constitute an irrevocable offer by Tenant to lease the Premises
on the terms and conditions herein contained, which offer may not be revoked
for thirty (30) days after such delivery.


 


(d)                                 Tenant.  The word “Tenant” whenever used herein shall
be construed to mean Tenants or any one or more of them in all cases where
there is more than one Tenant; and the necessary grammatical changes required
to make the provisions hereof apply either to corporations or other
organizations, partnerships or other entities, or individuals, shall in all
cases be assumed as though in each case fully expressed.  In all cases where there is more than one
Tenant, (a) the liability of each shall be joint and several and
(b) any one person or entity comprising Tenant may give any notice or
approval required or permitted to be given by Tenant under this Lease and such
notice or approval shall be deemed binding upon all persons or entities
comprising Tenant and may be relied upon by Landlord as if such notice or
approval had been given by all persons or entities comprising Tenant.


 


(e)                                  Expenses
of Enforcement.  The
non-prevailing party shall pay upon demand all of the reasonable costs, charges
and expenses (including the court costs and fees and out-of-pocket expenses of
counsel, agents and others retained by the prevailing party) incurred by the
prevailing party in enforcing the terms of this Lease, and a party shall also
pay such costs and expenses incurred by the other party in any litigation,
negotiation or transaction in which said party causes the other party without
the other party’s fault to become involved or concerned.  Any amount due from Tenant to Landlord
pursuant to this Section shall be deemed to be additional Rent due under
this Lease.


 


(f)                                    Exhibits
and Riders.  Exhibits and
riders, if any, referred to in or affixed to this Lease are made an integral
part hereof.


 


32

















 


(g)                                 Approval
of Plans and Specifications. 
Neither review nor approval by or on behalf of Landlord of any plans and
specifications for any Tenant Alterations or any other work shall constitute a
representation or warranty by Landlord, any of Landlord’s constituent members,
or any of their respective agents, partners or employees, that such plans and
specifications either (i) are complete or suitable for their intended
purpose, or (ii) except as otherwise provided in the Workletter with
respect to Landlord’s Work and Landlord’s Additional Work, comply with
applicable Laws, it being expressly agreed by Tenant that neither Landlord, nor
any of Landlord’s constituent members, nor any of their respective agents,
partners or employees, assume any responsibility or liability whatsoever to
Tenant or to any other person or entity for such completeness, suitability or
compliance.


 


(h)                                 Time of
Essence.  Time is of the
essence of this Lease and of each and all provisions hereof.


 


(i)                                     Due Date;
Interest; Late Charge. 
Except as otherwise specifically provided in this Lease, all amounts
owed by Tenant to Landlord pursuant to any provision of this Lease shall be
paid by Tenant within five (5) days after Landlord’s written demand, and all
such amounts (including, without limitation, Base Rent and Additional Rent)
shall bear interest from the date Default occurs with respect thereto until
paid at the annual rate equal to the Default Rate (hereinafter defined), unless
a lesser rate shall then be the maximum rate permissible by law with respect
thereto, in which event such lesser rate shall be charged.  If the Tenant fails to pay any amount of
Rent when due, and such failure shall continue for a period of five (5) days
after written notice to Tenant of such failure, Tenant shall pay to the
Landlord, in addition to the aforesaid interest, a late charge of five percent
(5%) of such overdue amount; provided, however, that if Tenant is late in the
payment of Rent more than two (2) times in any twelve (12) month period,
thereafter such late charge shall be payable immediately upon the occurrence of
any subsequent late payment within such 12-month period without any notice or
grace period, and provided further that nothing contained herein shall be
construed as permitting the Landlord to charge or receive interest in excess of
the maximum rate then allowed by law. 
The term “Default Rate” means five (5) percentage points in excess of
the rate of interest announced from time to time by BankOne, Chicago, Illinois
(or its successor), as its “prime rate” or “corporate base rate,” changing as
and when such rate changes, or if such rate is no longer in existence, then
such other “prime rate” as may be designated by Landlord.  The provisions of this subparagraph shall in
no way relieve Tenant of the obligation to pay Rent or any other sums due
hereunder on or before the date on which payment is due, nor shall the
collection by Landlord of any amount under this subparagraph impair the ability
of Landlord to collect any amount under Section 19 of this Lease.


 


(j)                                     Interpretation.  The invalidity of any provision of this
Lease shall not, to the extent commercially reasonable, impair or affect in any
manner the validity, enforceability or effect of the rest of this Lease.


 


(k)                                  Force
Majeure. Without limiting or being limited by the provisions of
Section 8 or Section 13, or any of the other provisions of this Lease
(except for Tenant’s obligation to timely pay Rent), if Landlord or Tenant
fails to perform timely any of the terms, covenants or conditions of this Lease
on such party’s part to be performed, and such failure is due in whole or in
part to any strike, lockout, labor trouble, civil disorder, riot, insurrection,
act of terrorism, war, accident, fire or other casualty, adverse weather
condition, act of God, governmental inaction, restrictive governmental law or
regulation, inability to procure materials, electricity, gas, other fuel or
water or other utilities at the Building after reasonable effort to do so, act
or event caused directly or indirectly by or by default of the other party or
any of the other party’s employees, agents, licensees, invitees or contractors,
concealed subsurface condition not reasonably anticipated from test results
obtained prior to commencement of work or any cause beyond the reasonable
control of the non-performing party, then the non-performing party shall not be
deemed in default under this Lease as a result of such failure.


 


(l)                                     Application
of Payments.  Landlord
shall have the right to apply payments received from Tenant pursuant to this
Lease (regardless of Tenant’s designation of such payments) to satisfy any
obligations of Tenant hereunder, in such order and amounts as Landlord, in its
sole discretion, may elect.


 


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(m)                               Cumulative
Remedies; Illinois Law. 
The rights and remedies of Landlord under this Lease are cumulative and
none shall exclude any other rights or remedies allowed by law or equity.  This Lease is for the lease of space in a
building located in the State of Illinois and is declared to be an Illinois
contract, and all of its terms shall be construed according to the laws of the
State of Illinois.


 


(n)                                 Counterparts.
This lease may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument, except that in the event of variation or discrepancy between
counterparts, the counterpart held by Landlord shall control.


 


(o)                                 Relationship.  Landlord and Tenant disclaim any intention
to create a joint venture, partnership or agency relationship.


 


(p)                                 Action on
Behalf of Landlord.  Any
service which may be provided by Landlord under this Lease may be provided by
Landlord, any of its constituent members, or any agent or contractor of any of
them, and the cost to Landlord of any such agent or contractor shall be
included in any charge to Tenant for such service.  Except as provided in the following sentence, any right reserved
to Landlord under this Lease may be exercised by Landlord, any of its
constituent members, or any agent, contractor or designee of any of them.  Any notice, demand, consent or approval
which may be given by Landlord under this Lease may be given only by Landlord,
any constituent member of Landlord, or any agent or attorney of any of them.


 


(q)                                 Entire
Agreement.  This Lease
(including all exhibits hereto) contains the entire agreement between Landlord,
and Tenant with respect to its subject matter, and all negotiations,
considerations, representations, understandings and agreements, oral or
written, which may have been previously made between any of the foregoing
parties are incorporated and merged into this Lease.  In executing and delivering this Lease, Tenant has not relied on
any representation, warranty or statement by Landlord, any of Landlord’s
constituent members, or any of their respective agents, partners or employees,
which is not set forth in this Lease, including without limitation any
representation as to the amount of any Additional Rent, or any component
thereof, or any representation that Landlord is furnishing the same services to
other tenants, at all, on the same level or on the same basis.


 


(r)                                    Financial
Statements.  At Landlord’s
request, Tenant shall deliver to Landlord, within thirty days after the end of
each fiscal quarter, and within ninety (90) days after the end of each fiscal
year, of Tenant, Tenant’s quarterly or annual financial statements, as the case
may be, including balance sheets, income statements and cash flow statements,
prepared in accordance with generally accepted accounting principles
consistently applied.  Such financial
statements shall be certified by the chief financial officer of Tenant as being
true, accurate and complete in all material respects.  Tenant shall also, upon Landlord’s reasonable requests from time
to time, deliver to Landlord such other financial information regarding Tenant
as may be reasonably available. 
Landlord shall not disclose such financial information to any third
party other than its lenders, partners, members, agents, consultants, advisors,
attorneys and accountants or as may be otherwise required by a government or
governmental agency or pursuant to court order.


 


(s)                                  Waiver of
Jury Trial.  Landlord and
Tenant hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the relationship
of Landlord and Tenant, Tenant’s use of or occupancy of the Premises or any
claim of injury or damage and any emergency statutory or any other statutory
remedy.


 


(t)                                    Captions,
Numbers, Underlining and Deletions.  The captions, Section numbers and Table of Contents
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of such Sections of
this Lease nor in any way affect this Lease. 
The underlining of certain portions of this Lease is for convenience of
reference only and shall not be construed to mean that such underlined portions
are to be given any greater or lesser force than non-underlined portions.  The appearance of the symbol “^”
herein is for convenience of reference only and indicates that certain language
in a prior draft hereof was deleted by agreement of the parties hereto and
shall not be construed to mean that such deleted language is to be given any
force and effect whatsoever or is to be considered in construing the meaning of
any language contained herein.


 


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29.                                 SECURITY DEPOSIT.


 


(a)                                  Tenant
has deposited with Landlord the Security Deposit set forth in Section 1(s)
hereof as security for the full and faithful performance of every provision of
this lease to be performed by Tenant. 
If Tenant defaults with respect to any provision of this lease,
including but not limited to the provisions relating to the payment of Rent,
Landlord may use, apply or retain all or any part of the Security Deposit for
the payment of any Rent and any other sum in default, or for the payment of any
other amount which Landlord may spend or become obligated to spend by reason of
Tenant’s default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant’s default.  If any portion of the Security Deposit is so used or applied,
Tenant shall within five (5) days after written demand therefor deposit cash
with Landlord or Landlord’s beneficiaries in an amount sufficient to restore
the Security Deposit to its original amount, and Tenant’s failure to do so
shall be a material breach of this lease. 
Except to the extent required by law, Landlord shall not be required to
keep the Security Deposit separate from its or their general funds and Tenant
shall not be entitled to interest on the Security Deposit.  If Tenant shall fully and faithfully perform
each and every provision of this lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant (or at Landlord’s
option to the last permitted assignee of Tenant’s interest hereunder, if any)
within thirty (30) days after the expiration of the lease Term and Tenant’s
vacation of the Premises.  Landlord may
deliver the Security Deposit funds deposited hereunder by Tenant to the
purchaser of Landlord’s interest in the Project, in the event that such
interest is sold, transferred or conveyed, and thereupon Landlord shall be
discharged from any further liability with respect to the Security Deposit.


 


(b)                                 In
lieu of a cash Security Deposit, Tenant may deliver to Landlord a clean,
irrevocable, non-documentary and unconditional Letter of Credit issued by and
drawn upon any commercial bank, trust company, national banking association or
savings and loan association having offices for banking purposes in the City of
Chicago and which is a member of the Chicago Clearinghouse association (the “Issuing Bank”)
and which (or the parent company of which) shall have outstanding unsecured,
uninsured and unguaranteed indebtedness, or shall have issued a letter of
credit or other credit facility that constitutes the primary security for any
outstanding indebtedness (which is otherwise uninsured and unguaranteed), that
is then rated, without regard to qualification of such rating by symbols such
as “+” or “-” or numerical notation, “Aa” or better by Moody’s Investors
Service and “AA” or better by Standard & Poor’s Corporation, and has
combined capital, surplus and undivided profits of not less than
$500,000,000.00, which Letter of Credit shall have a term of not less than one
year, be in form and content satisfactory to Landlord (and substantially as
shown on Exhibit I to this Lease), be for the account of Landlord,
be in the amount of the Security Deposit then required to be deposited
hereunder, and be fully transferable by Landlord to successor owners of the
Building without the payment of any fees or charges, it being agreed that if
any such fees or charges shall be so imposed, then such fees or charges, shall
be paid by Tenant.  The Letter of Credit
shall provide that it shall be deemed automatically renewed, without amendment,
for consecutive periods of one (1) year each thereafter during the term of this
Lease, unless the Issuing Bank sends notice (the “Non-Renewal Notice”) to
Landlord by certified mail, return receipt requested, not less than thirty (30)
days next preceding the then expiration date of the Letter of Credit that it
elects not to have such Letter of Credit renewed.  Additionally, the Letter of Credit shall provide that Landlord
shall have the right, exercisable upon its receipt of the Non-Renewal Notice,
by sight draft on the Issuing Bank, to receive the monies represented by the
existing Letter of Credit and in such event, Landlord shall hold such proceeds
pursuant to the terms of this Section as a cash security pending the
replacement of such Letter of Credit. 
If a Default shall have occurred and be continuing with respect to any
provision of this Lease, including but not limited to the provisions relating
to the payment of Rent, Landlord may apply or retain the whole or any part of
the cash security so deposited or may notify the Issuing Bank and thereupon
receive all the monies represented by the Letter of Credit and use, apply, or
retain the whole or any part of such proceeds, as provided in this
Section.  Any portion of the cash
proceeds of the Letter of Credit not so used or applied by Landlord in
satisfaction of the obligations of Tenant as to which such Default shall have
occurred shall be retained by Landlord as a cash Security Deposit as provided
herein.  If Landlord applies or retains
any part of the cash security or proceeds of the Letter of Credit, as the case
may be, Tenant shall, within five (5) days after written demand therefor,
deposit with Landlord the amount so applied or retained so that Landlord shall
have the full Security Deposit required pursuant to this Section on hand
at all times during the Term.  If 


 


35

















 


Tenant shall fully and faithfully comply with all of
the term, provisions, covenants and conditions of this Lease, the Letter of
Credit shall be returned to Tenant after the Expiration Date and after delivery
of possession of the Premises to Landlord. 
In the event of a sale of Landlord’s interest in the Premises, within
thirty (30) days of notice of such sale or leasing, Tenant, at Tenant’s sole
cost and expense, shall arrange for the transfer of the Letter of Credit to the
new landlord, as designated by Landlord, or have the Letter of Credit reissued
in the name of the new landlord and Landlord shall thereupon be released by
Tenant from all liability for the return of the Letter of Credit; provided,
however, that if the Letter of Credit is reissued, Landlord shall return
the original Letter of Credit issued in Landlord’s name to Tenant.  In the event Tenant brings any action or
proceeding to enforce Landlord’s obligations or determine Landlord’s rights to
draw upon an Letter of Credit issued to Landlord hereunder, and as a result of
such action or proceeding, a court of competent jurisdiction issues a final,
unappealable order or judgment finding that Landlord has drawn upon such Letter
of Credit in violation of the provisions hereof, then Tenant shall, subject to
the provisions of local law, be entitled to recover from Landlord all
reasonable expenses of attorney’s fees, paralegal fees and costs, expenses and
disbursements incurred by Tenant in such action or proceeding, without the
necessity for a cross-action by Tenant. 
Such reimbursement shall include all such expenses incurred in
connection with any such action or proceeding and at all levels of appeal and
post judgment proceedings.


 


30.                                 INTENTIONALLY DELETED.


 


31.                                 LANDLORD.


 


The term “Landlord”
as used in this Lease means only the owner of Landlord’s interest in the
Premises from time to time.  In the
event of any assignment, conveyance or sale, once or successively, of
Landlord’s interest in the Premises or any assignment of this Lease by
Landlord, said Landlord making such assignment, conveyance or sale shall be
entirely freed and relieved of all covenants and obligations of Landlord
hereunder accruing after such assignment, conveyance or sale to the extent such
covenants and obligations are assumed in writing by such assignee, grantee or
purchaser or are deemed assumed by such assignee, grantee or purchaser by
operation of law, and Tenant agrees to look solely to such assignee, grantee or
purchaser with respect thereto.  The
holder of a Mortgage (or assignment in connection with a Mortgage) shall not be
deemed such an assignee, grantee or purchaser under this Section 31 unless
and until the foreclosure of the Mortgage or the conveyance or transfer of
Landlord’s interest under this Lease in lieu of foreclosure, and then subject
to the provisions of Section 20. 
This Lease shall not be affected by any such assignment, conveyance or
sale, and Tenant agrees to attorn to the assignee, grantee or purchaser.


 


32.                                 TITLE AND COVENANT AGAINST LIENS.


 


Landlord’s title is and
always shall be paramount to the title of Tenant, and nothing in this Lease
contained shall empower Tenant to do any act which can, shall or may encumber
the title of Landlord.  Tenant has no
authority or power to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Tenant, operation of law or otherwise, to
attach to or be placed upon Landlord’s title or interest in the Premises or any
part of the Project, and any and all liens and encumbrances created by Tenant
shall attach to Tenant’s interest only.


 


33.                                 COVENANT OF QUIET ENJOYMENT.


 


Landlord agrees that
Tenant, on paying the Rent and other payments herein reserved and on keeping,
observing and performing all the other terms, covenants, conditions, provisions
and agreements herein contained on the part of Tenant to be kept, observed and
performed, shall, during the Term, peaceably and quietly have, hold and enjoy
the Premises, subject to the terms, covenants, conditions, provisions and
agreements of this Lease, free from hindrance by Landlord or any person
claiming by, through or under Landlord.


 


34.                                 EXCULPATORY PROVISIONS.


 


The liability of any
Landlord under this Lease or any amendment to this Lease, or any instrument or
document executed in connection with this Lease, shall be limited to and
enforceable solely against the assets of such Landlord constituting an interest
in the Land or Building and not other assets of such Landlord.  Assets of a Landlord which is a partnership
or 


 


36

















 


limited liability company do not include the assets of
the partners or members of such Landlord, and any negative capital account of a
partner or member in a partnership or limited liability company which is a
Landlord, and any obligation of a partner or member to contribute capital to
the partnership or limited liability company which is Landlord, shall not be
deemed to be assets of the partnership or limited liability company which is
the Landlord.  No directors, officers,
employees, managers, members, or shareholders of any corporation or limited
liability company which is Landlord shall have any personal liability arising
from or in connection with this Lease. 
At any time during which Landlord is trustee of a land trust, all of the
representations, warranties, covenants and conditions to be performed by it
under this Lease or any documents or instruments executed in connection with
this Lease are undertaken solely as trustee, as aforesaid, and not
individually, and no personal liability shall be asserted or be enforceable
against it or any of the beneficiaries under said trust agreement by reason of
any of the representations, warranties, covenants or conditions contained in
this Lease or any documents or instruments executed in connection with this
Lease.


 


35.                                 REDUCTION OF SUITES 1700 AND 1710;
TEMPORARY EXPANSION SPACE.


 


(a)                                  Effective
on the Reduction  Effective  Date:


 


(i)                                     The
Premises shall be reduced by excluding the Reduction  Space therefrom, such that
the total Rentable Area of the Premises shall be 14,417 square feet.


 


(ii)                                  The
Premises shall be temporarily expanded to include approximately 9,400 rentable
square feet of office space on the fifteenth (15th) floor of the
Building (the “Temporary Expansion Space”). 
Tenant shall accept possession of the Temporary Expansion Space in its
then “as is” condition.  No agreement of
Landlord to alter, remodel, decorate, clean or improve the Temporary Expansion
Space and no representation or warranty regarding the condition of the Temporary
Expansion Space of any kind or nature has been made by or on behalf of Landlord
to Tenant under or by reason of this Lease. 
The Temporary Expansion Space shall be subject to all the terms and
provisions of this Lease except that Tenant shall not be obligated to pay Base
Rent or Tenant’s Proportionate Share of Expenses and Taxes with respect
thereto.  Tenant shall be entitled to
use and occupy the Temporary Expansion Space until thirty (30) days after the
Expansion Effective Date (the “Temporary Expansion Termination Date”).  On or before the Temporary Expansion
Termination Date, Tenant shall comply with the provisions of Section 35(b)
below as if the Temporary Expansion Termination Date were the Reduction
Effective Date thereunder and the Temporary Expansion Space were the Reduction
Space thereunder.


 


(b)                                 Prior
to the Reduction Effective Date, Tenant shall (i) remove all Tenant’s
trade fixtures and property from the Reduction Space; (ii) surrender the
Reduction Space and all keys thereto to Landlord; and (iii) perform as to
the Reduction Space all other activities specified in this Lease upon surrender
of the Premises.  Any retention of
possession by Tenant of all or part of the Reduction Space after the Reduction
Effective Date shall be deemed a holding over under Section 11 of this
Lease without consent of Landlord, and shall be subject to the terms and
conditions of said Section with respect to such holdover.  Notwithstanding anything contained herein to
the contrary, in no event shall Tenant be released from or relieved of any
liability with respect to the Reduction Space accruing under this Lease prior
to the Reduction Effective Date (including, without limitation, the obligation
to perform any other conditions and covenants that by the terms of this Lease
as it pertains to the Reduction Space survive the termination of this Lease) or
of any Default under this Lease that occurred prior to the Reduction Effective
Date or which would have constituted a Default as of the Reduction Effective
Date except for the passage of time. 
Tenant hereby represents and covenants that it has not at any time done
or suffered any act or omission and will not do or suffer any act or omission
whereby the Reduction Space or any part thereof are or may be in any way
charged, assessed or encumbered.  If
this covenant is breached, Tenant covenants and agrees to pay Landlord upon
demand any and all damages, costs and expenses including, without limitation,
attorneys’ fees resulting therefrom.


 


37

















 


36.                                 EXPANSIONS OF THE PREMISES.


 


(a)                                  Expansion
Space.  Commencing on the
Expansion Effective Date, the Premises shall consist of the space then occupied
by Tenant on the 17th floor of the Building plus the Expansion Space
such that the total Rentable Area of the Premises shall be 51,294 square feet.


 


(b)                                 Suite
1733.  Commencing on
September 1, 2006, the Premises shall consist of the space then occupied
by Tenant on the 17th and 18th floors of the Building
under this Lease plus Suite 1733, such that the total Rentable Area of the
Premises shall be 51,488 square feet.


 


37.                                 STORAGE LICENSE.


 


Landlord and Tenant agree to execute and deliver a Storage License
Agreement in the form attached hereto as Exhibit F, concurrently with the
execution and delivery of this Lease.


 


38.                                 SIGNAGE.


 


(a)                                  Effective
on the Commencement Date and throughout the remainder of the term of this Lease
(as the same may be extended or renewed), Tenant shall be entitled to install
signage displaying Tenant’s corporate name in the main lobby of the Building in
the location depicted on Exhibit G attached hereto, which signage shall be
substantially identical in size, materials and design as the signage currently
installed for GMAC in the north lobby of the Building.


 


(b)                                 Effective
on the last to occur of (i) the Expansion Effective Date, (ii) the date which
is seven (7) months following the date of this Lease or (iii) the date Landlord
substantially completes installation of the ground-level outdoor sign for the
Building to be located between the two revolving Building entrance doors on the
Monroe Street side of the Building (the “Outdoor Sign”), and thereafter during any
portion of the remainder of the Term of this Lease (as the same may be extended
or renewed) that Tenant or an assignee or subtenant permitted under Sections
15(h) or 15(i) of this Lease is occupying the entire Premises, Tenant shall be
entitled to a Building-standard sign panel displaying Tenant’s corporate name
on the Outdoor Sign.  Notwithstanding
anything to the contrary contained in this Lease (including, without
limitation, Section 15 hereof), Tenant’s signage rights under this
Section 38(b) shall not be assignable or subleasable by Tenant to any
other party.


 


39.                                 INTERNAL STAIRWELL.


 


Notwithstanding anything to the contrary contained in this Lease, upon
expiration or earlier termination of this Lease or Tenant’s right to possession
of the Premises, Tenant shall have no obligation to remove the internal
stairwell between the 17th and 18th floors of the Premises
installed as part of Landlord’s Work under this Lease nor to restore the
ceiling and/or structural floor in the opening therefor.


 


40.                                 ADDITIONAL SERVICES
REQUIREMENTS.


 


Landlord shall use
commercially reasonable efforts to provide riser space, electrical power and
HVAC service to meet Tenant’s on-going requirements for the operation of its
business in the Premises, provided that all costs, fees and expenses of design,
engineering, permits and approvals, alterations to the Building, and purchase,
installation, operation, repair, maintenance replacement and removal of any and
all conduit, cabling, ductwork and equipment to provide same shall be at
Tenant’s sole cost and expense.  In
addition, Landlord may charge Tenant for any additional services or riser space
provided by Landlord in connection with the foregoing at the Building standard
rates in effect from time to time.  As
to Landlord’s obligations to furnish riser space hereunder, the term
“commercially reasonable efforts” shall include, without limitation, provision
of then-available space within existing risers and/or removal of then-unused
conduit, cabling, ductwork and equipment from the existing risers to make
additional space available for Tenant’s use (subject to Tenant’s obligation to
pay such removal and other related costs as provided herein) but shall not
include any obligation of Landlord to shut down, close off, make unavailable or
otherwise alter or impair any of the Building’s systems or common areas, except
on a limited and temporary basis, in order to furnish such riser space.


 


38

















 


41.                                 OPTION TO EXTEND.


 


(a)                                  Provided
this Lease is in full force and effect and that no Default by Tenant, as
defined in this Lease is in existence either on the date of Tenant’s Extension
Notice (as hereinafter defined) or, unless waived in writing by Landlord for
the purpose of this Extension Option (as hereinafter defined), on the Extension
Effective Date, and provided further that this Lease shall not have theretofore
been assigned (other than pursuant to an assignment not requiring Landlord’s
consent thereto), Tenant shall have the right, at Tenant’s option, to extend
the Term of this Lease for one (1) additional period of five (5) years (the “Optional
Extended Term”) commencing on the day following the Expiration Date
(the “Extension
Effective Date”) and ending on the fifth (5th)
anniversary of the Expiration Date. 
Such option to extend (the “Extension Option”) shall be exercised by
Tenant giving written notice (“Tenant’s Extension Notice”) of the exercise
thereof to Landlord at least eighteen (18) but not more than twenty-one (21)
months before the Expiration Date.  If
Tenant shall fail to timely give Tenant’s Extension Notice as provided herein,
the Extension Option shall be deemed automatically and irrevocably waived by
Tenant.  The Term as extended pursuant
to the Extension Option shall be upon the same terms, covenants, and conditions
as set forth in this Lease except that the Base Rent payable during the Optional
Extended Term, if exercised, shall equal the Market Rate (as defined
below).  In the event Tenant exercises
the Extension Option as provided herein, then Tenant shall, within fifteen (15)
days after Landlord’s request, execute and deliver an amendment to the Lease
memorializing such exercise and the Rent payable by Tenant during the Optional
Extended Term.


 


(b)                                 For
purposes of this Article, “Market Rate” shall mean the rate then being
accepted by landlords for comparable improved space in the Development and in
office buildings comparable thereto in the West Loop submarket of the downtown
Chicago office market on an “as is” renewal basis for a comparable term, taking
into account the use, location and floor level within the applicable building,
and any other relevant term or condition in making such evaluation, including
any tenant improvement allowances or other leasing concessions offered in
connection therewith, all as reasonably determined by Landlord and provided to
Tenant in writing within thirty (30) days after the date of delivery of
Tenant’s Extension Notice to Landlord (“Landlord’s Market Rate Notice”).


 


(c)                                  If
Tenant disputes Landlord’s determination of the Market Rate, then Tenant shall
notify Landlord in writing within fifteen (15) days after the date of delivery
of Landlord’s Market Rate Notice to Landlord that Tenant objects to Landlord’s
determination and in such notice Tenant shall state its determination of the
Market Rate.  Landlord and Tenant shall,
during the fifteen (15) day period after Tenant’s notice to Landlord of such
objection, attempt in good faith to agree on the Market Rate.  If Landlord and Tenant are unable to agree,
Tenant shall either (i) accept Landlord’s determination of Market Rate or
(ii) submit the determination to binding arbitration as provided
herein.  If Tenant  fails to so notify Landlord of Tenant’s
election under the preceding sentence within said fifteen (15) day period,
Tenant shall be deemed to have accepted Landlord’s determination.  If Tenant elects to submit the determination
of the Market Rate to arbitration, Landlord and Tenant shall each select an
arbitrator within fifteen (15) days after Tenant’s election to arbitrate.  If either Landlord or Tenant fail to timely
appoint an arbitrator, the arbitrator selected shall select the second (2nd)
arbitrator, who shall be impartial, within fifteen (15) days after such party’s
failure to appoint.  Each arbitrator
must be a licensed real estate broker and have at least ten (10) years
experience in the downtown Chicago, Illinois market in the leasing of
properties which are similar in character to the Building.  The two arbitrators shall, within twenty
(20) days of their appointment, select from the two determinations submitted by
Landlord and Tenant the one that is closer to the Market Rate as determined by
the arbitrators, and said selection shall thereafter be deemed the Market
Rate.  If the two arbitrators so
appointed fail to agree as to which of the determinations submitted by Landlord
and Tenant is the closest to the actual Market Rate, the two arbitrators shall
appoint a third arbitrator within twenty (20) days after the failure of the
initial arbitrators to agree on a Market Rate, to decide upon which of the two
determinations submitted is the closest to the actual Market Rate.  The arbitrators shall not be permitted to
choose as the Market Rate any determination other than the determination
presented by either Landlord or Tenant. 
The fees and expenses of any arbitration shall be borne by the losing
party.  The arbitrators’ determination
shall be final and binding on the parties. 
If the Market Rate has not been determined by the Extension Effective
Date, Tenant shall pay the Market Rate as determined by Landlord until 


 


39

















 


such time as the arbitrators are able to determine the
Market Rate.  Upon such determination,
Rent for the Premises shall be retroactively adjusted to the Extension
Effective Date.  If such adjustment
results in an underpayment of Rent by Tenant, Tenant shall pay Landlord the
amount of such underpayment within twenty (20) days after the determination
thereof.  If such adjustment results in
an overpayment of Rent by Tenant, Landlord shall credit such overpayment
against the next installment of Rent due under the Lease and, to the extent
necessary, any subsequent installments until the entire amount of such
overpayment has been credited against Rent.


 


[remainder of page intentionally left blank]


 


40

















 


IN
WITNESS WHEREOF, the parties have caused this Lease to
be executed as of the date first written above.


 


	
  LANDLORD:

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  MJH WACKER LLC,
  a Delaware limited

  liability company

  	
   

  	
  ARCHIPELAGO
  HOLDINGS,

  L.L.C., an Illinois limited liability

  company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JOHN B. GRISSIM

  	
   

  	
   

  	
   

  
	
  Name: 

  	
  John B. Grissim

  	
   

  	
  By:

  	
  /s/ NELSON CHAI

  
	
   

  	
  Vice President

  	
   

  	
  Name:

  	
  Nelson Chai

  
	
   

  	
   

  	
  Its:

  	
  CFO

  
								



 


41

















 


EXHIBIT A


 


FLOOR
PLAN OF THE ORIGINAL PREMISES,

REDUCTION SPACE AND SUITE 1733


 


[Graphics]


 


A-1

















 


EXHIBIT A-1


 


FLOOR
PLANS OF THE EXPANSION SPACE


 


[Graphics]


 


A-1-1

















 


[Graphics]


 


A-1-2

















 


EXHIBIT B


 


WORKLETTER


 


1.                                       Definitions.  Terms which are defined elsewhere in this
Lease shall have the same meanings in this Workletter.  Terms which are defined in this Workletter
shall have the same meanings elsewhere in this Lease.  In addition to the terms defined elsewhere in this Workletter,
the following terms shall have the following meanings:


 


A.                                   “Landlord’s
Additional Work” means the work required to be performed by Landlord
under this Workletter as described on Exhibit B-2 attached hereto and denoted
as Landlord’s Additional Work on the Mechanical System Plans.


 


B.                                     “Landlord’s
Additional Work Allowance” means the sum of $[***].


 


C.                                     “Landlord’s
Architect” means Hydzik Schade Associates, Ltd.


 


D.                                    “Landlord’s
Common Area Work” means that portion of Landlord’s Work consisting
of improvements to the common areas of the 17th and 18th
floors of the Building.


 


E.                                      “Landlord’s
Construction Manager” means Lincoln Property Company or such other
party as may be selected by Landlord in its sole discretion.


 


F.                                      “Landlord’s
Contractor” means the contractor hired by Landlord to do Landlord’s
Work and Landlord’s Additional Work pursuant to this Workletter.


 


G.                                     “Landlord’s
Engineer” means ESD.


 


H.                                    “Landlord’s
Work” means (i) the work required to be performed by Landlord under
this Workletter pursuant to the Tenant Plans (which shall not include
Landlord’s Additional Work or Tenant’s furnishings, fixtures, equipment or
communications and/or data cabling except to the extent expressly specified in
the Tenant Plans) and (ii) the following portions of Landlord’s Common Area
Work not shown on the Tenant Plans and consisting of improvements to the common
area bathrooms on the 17th and 18th floors of the
Building, using Building-standard design and materials:  repaint bathroom stalls, install hands-free
water and urinal fixtures, add lever door handles, and strip and polish tile
floors to a condition and appearance comparable to the common area bathrooms on
the 9th floor of the Building.


 


I.                                         “Mechanical
System Plans” means the final working drawings, plans and
specifications for the mechanical, sprinkler, heating, air conditioning,
electrical and plumbing systems in the Expansion Space (portions of which shall
be denoted as “Landlord’s Additional Work”), which shall be prepared by
Landlord’s Engineer based upon and in accordance with the Space Plans and fully
coordinated with the remainder of the Working Plans, and which shall contain
sufficient detail and shall be otherwise suitable in all respects for
submission to the building department of the City of Chicago to obtain a
building permit.


 


J.                                        “Space Plans”
means detailed scope drawings and notes prepared by Landlord’s Architect, a
copy of which is attached hereto as Exhibit B-1, showing the intended design,
character and finishes of the Expansion Space (excluding Landlord’s Additional
Work), including partition and door locations, all in sufficient detail to
enable the Working Plans (including the Mechanical System Plans) to be
prepared.


 


K.                                    “Stairwell
Work” means that portion of Landlord’s Additional Work consisting of
the internal stairwell to be constructed between the 17th and 18th
floor portions of the Original Premises and the Expansion Space.


 












*** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.


 


B-1

















 


L.                                      “Substantial
completion” or “substantially completed” or words of
similar import means that the work in question has been sufficiently completed
such that it is suitable for its intended purpose.


 


M.                                 “Tenant’s
Contractors” means Tenant’s agents, contractors, licensees and
invitees and their respective agents, subcontractors and employees.


 


N.                                    “Tenant Delay”
means a delay in the substantial completion of Landlord’s Work (other than
Landlord’s Common Area Work), Landlord’s Additional Work (other than the
Stairwell Work), Landlord’s Common Area Work or the Stairwell Work, as the case
may be, caused by any of the following events (except to the extent due to the
willful misconduct of Landlord, Landlord’s Architect, Landlord’s Contractor or
Landlord’s Engineer):


 


(i)                                     Tenant’s
failure to approve or disapprove the Working Plans or any revised Working Plans
required hereunder, within the applicable times specified in Paragraph 2
of this Workletter.


 


(ii)                                  Tenant’s
request for a Change, as defined in Paragraph 2 of this Workletter, or any
permitted modified Change, including without limitation, Landlord’s exercise of
its rights to approve or disapprove any Change or permitted modified Change, or
any revised Working Plans which reflect a Change or a permitted modified
Change; the preparation of revised Working Plans to reflect a Change or a
permitted modified Change; the ordering of any materials or the performance of
any work necessary to incorporate a Change into Landlord’s Work or Landlord’s
Additional Work; or any delay in the commencement of any work necessary to
incorporate a Change into Landlord’s Work or Landlord’s Additional Work which
is necessitated, required or permitted under the terms of this Workletter.


 


(iii)                               Any
delay resulting from Landlord’s suspension of the performance of Landlord’s
Work or Landlord’s Additional Work as a result of Tenant’s failure to timely
pay Landlord’s good faith estimate of the Excess defined in and pursuant to
Paragraph 4 of this Workletter.


 


(iv)                              The
performance of any work or activities on or about the Building or the Expansion
Space by Tenant or any of Tenant’s employees or Tenant’s Contractors.


 


(v)                                 Any
delay caused by Tenant or any of Tenant’s employees or Tenant’s Contractors.


 


(vi)                              Any
Default by Tenant under this Lease.


 


Any delay caused by any of the foregoing shall constitute a Tenant
Delay only to the extent that the substantial completion of Landlord’s Work
(other than Landlord’s Common Area Work), Landlord’s Additional Work (other
than the Stairwell Work), Landlord’s Common Area Work or the Stairwell Work, as
the case may be, is delayed beyond the date Landlord’s Work (other than
Landlord’s Common Area Work), Landlord’s Additional Work (other than the
Stairwell Work), Landlord’s Common Area Work or the Stairwell Work, as the case
may be, would have been substantially completed absent such delay.


 


O.                                    “Tenant Plans”
means the Space Plans, the Mechanical System Plans and the Working Plans.


 


P.                                      “Turnover
Date” means the earlier of (i) the date Landlord’s Work and
Landlord’s Additional Work (except for Landlord’s Common Area Work and the
Stairwell Work) are substantially completed or (ii) the date Landlord’s Work
and Landlord’s Additional Work (except for Landlord’s Common Area Work and the
Stairwell Work) would have been substantially completed but for one or more
Tenant Delays.


 


B-2

















 


Q.                                    “Working
Plans” means the final working drawings, plans and specifications
(including the Mechanical System Plans) for all work to be performed by
Landlord in the Expansion Space (excluding Landlord’s Additional Work), as
prepared by Landlord’s Architect and Landlord’s Engineer which shall be based
upon and in accordance with the Space Plans, which shall contain sufficient
detail and shall be otherwise suitable in all respects for submission to the
building department of the City of Chicago to obtain a building permit and
which shall designate (i) any and all portions of Landlord’s Work which exceed
the intended design, character and finishes of the Expansion Space as set forth
in the Space Plans and (ii) the corresponding design, character and finishes as
set forth in the Space Plans for such items, if applicable.


 


2.                                       Preparation
and Approval of Tenant Plans.


 


A.                                   Landlord
has previously entered into a separate agreement with Landlord’s Architect for
the preparation of the Space Plans and the Working Plans and a separate
agreement with Landlord’s Engineer for the preparation of the Mechanical System
Plans, all at Landlord’s  sole cost and
expense.  Landlord shall furnish copies
of said agreements to Tenant upon written request.


 


B.                                     The
Space Plans have been approved by Landlord and Tenant.  Tenant shall furnish Landlord’s Architect
with all information required by Landlord’s Architect and Landlord’s Engineer
to prepare the Working Plans.


 


C.                                     Within
twenty (20) business days after the date of full execution and delivery of this
Lease, Landlord shall cause the Working Plans to be prepared by Landlord’s
Architect and Landlord’s Engineer and submitted to Landlord and Tenant for
their respective review and approval.  Within
five (5) business days after receipt of the Working Plans or revised Working
Plans required hereunder, Landlord and Tenant shall either approve or
disapprove the Working Plans or any revised Working Plans required hereunder.  Tenant’s approval or disapproval shall be
delivered in writing to Landlord, and in the case of a disapproval, shall state
Tenant’s objections in reasonable detail. 
If Tenant fails to deliver its approval or disapproval of the Working
Plans or revised Working Plans within said five (5) business day period, Tenant
shall be deemed to have approved same. 
In the event of a timely disapproval by Landlord or Tenant of the
Working Plans or revised Working Plans, Landlord shall direct Landlord’s Architect
and Landlord’s Engineer to prepare revised Working Plans meeting Landlord’s or
Tenant’s objections, as the case may be, which revised Working Plans shall,
within five (5) business days thereafter, be prepared by Landlord’s Architect
and Landlord’s Engineer and resubmitted to Landlord and Tenant for review and
approval as required hereby.


 


D.                                    If
Tenant desires a change (i) in the Tenant Plans, or any revised Tenant
Plans required hereunder, after Tenant has approved same, or (ii) in
Landlord’s Work or Landlord’s Additional Work (any such change being a “Change”),
Tenant shall give Landlord written notice of the Change, specifying the Change
in reasonable detail.  Within five (5)
business days after Landlord has received Tenant’s written notice of a Change
or any modified Change permitted hereunder, Landlord shall give Tenant written
notice of its approval or disapproval thereof, and in the event of disapproval,
such notice shall specify the reasons for disapproval.  If Landlord disapproves of a Change or any
modified Change permitted hereunder, Tenant may modify the Change or such
permitted modified Change, as the case may be, and give Landlord written notice
thereof for Landlord’s review and approval as provided herein.  After Landlord has approved a Change or any
modified Change permitted hereunder, within five (5) business days thereafter,
Landlord shall cause the Working Plans to be revised by Landlord’s Architect
and Landlord’s Engineer to reflect the Change or such modified Change and
resubmitted to Landlord and Tenant for their review and approval in accordance
with the process set forth in Paragraph 2.C.  Notwithstanding the foregoing, Tenant and Landlord shall be
deemed to have approved any Change which may be required to cause Landlord’s Work
or Landlord’s Additional Work to comply with all applicable laws, regulations,
codes and ordinances and/or with the requirements of any building inspector
with jurisdiction thereover, provided that Tenant shall not be charged with any
Tenant Delay by reason of any such Change.


 


B-3

















 


E.                                      Tenant
agrees that it will not unreasonably withhold its approval of the Tenant Plans
or any revised Tenant Plans required hereunder.  Landlord  agrees that it
will not unreasonably withhold its approval of the Tenant Plans or any revised
Tenant Plans required hereunder, or any Change or modified Change permitted
hereunder provided, however, Landlord shall not be deemed to have acted
unreasonably if it withholds its consent because, in Landlord’s opinion, any
portion of Landlord’s Work or Landlord’s Additional Work covered by the Tenant
Plans or any revised Tenant Plans required hereunder, or any such Change (i) is
likely to adversely affect the structural, mechanical, electrical, plumbing,
HVAC, life safety, communications, security or other operating systems of the
Building or the safety of its occupants, (ii) would increase the costs or
expenses incurred by or on behalf of Landlord for owning, managing, operating,
maintaining or repairing the Building (in which event, Landlord shall furnish
Tenant with reasonable supporting documentation thereof), (iii) would impair
Landlord’s ability to furnish services to Tenant or any other tenant of the
Building, (iv) would violate any Laws or provisions of the Tenant Lease as amended
by this Lease, (v) would adversely affect the appearance of the Building, (vi)
would adversely affect the premises of any other tenant of the Building or such
tenant’s use or occupancy thereof, (vii) is prohibited by the provisions of any
mortgage or ground lease encumbering the Building, or (viii) materially
fails to conform to either Building standards or the current build-out of the
Original Premises and/or the 20th floor portion of the Building
presently leased by Townsend Analytics, Ltd., with respect to design,
character, materials or finishes except as otherwise expressly provided
herein.  The foregoing reasons shall not
be exclusive of the reasons for which Landlord may withhold consent, it being
understood and agreed that such other reasons may be similar or dissimilar to
the foregoing.


 


F.                                      The
cost of the Tenant Plans and any revisions thereof required hereunder shall be
deemed to be part of the cost of Landlord’s Work to be paid as provided in
Paragraph 4 below.


 


G.                                     Within
three (3) business days after (i) the Working Plans have been revised to
reflect a Change to Landlord’s Work which has been approved (or deemed
approved) by Landlord and Tenant or (ii) Landlord approves a Change to
Landlord’s Additional Work, as applicable, Landlord shall notify Tenant in
writing of Landlord’s good faith estimate of the cost of performing the work
necessary to incorporate such Change into Landlord’s Work or Landlord’s
Additional Work, as applicable, and of the number of days of Tenant Delay that
may result from performing such work. 
Landlord shall not cause Landlord’s Contractor to commence any work
necessary to incorporate a Change into Landlord’s Work or Landlord’s Additional
Work, as applicable, until Tenant has approved Landlord’s estimate of the cost
of such work and the number of days of Tenant Delay that may result from such
work, which approval may be withheld by Tenant in its sole and absolute
discretion.


 


3.                                       Performance
of Landlord’s Work and Landlord’s Additional Work.


 


A.                                   After
Landlord and Tenant have approved (or are deemed to have approved) the Working
Plans or any revised Working Plans, Landlord shall promptly submit the approved
Working Plans to the following general contractors for bid:  Interior Alterations, Paul Borg Construction
and J.C. Anderson.  All bids shall quote
separate bid prices for (i) Landlord’s Work including all portions thereof
which exceed the intended design, character and finishes of the Expansion Space
as set forth in the Space Plans and (ii) Landlord’s Work as modified to conform
to the intended design, character and finishes of the Expansion Space as set
forth in the Space Plans, all as specified by the Working Plans or any revised
Working Plans.  The difference between
the aforesaid bid prices quoted in the bid selected by Landlord is hereinafter
referred to as the “Initial Excess”.  Landlord shall select the lowest bidder with a responsive bid to
be Landlord’s Contractor and promptly furnish Tenant with a copy of such
selected bid, and shall cause Landlord’s Contractor to do Landlord’s Work and
Landlord’s Additional Work.  Landlord
shall cause Landlord’s Contractor to obtain bids from Continental Electric and
Frieze Walters for the electrical subcontracting portion of Landlord’s Work and
Landlord’s Additional Work and to obtain a bid from Thermaflow for the
mechanical subcontracting portion thereof, provided that Landlord’s Contractor
may also solicit such bids from other electrical and mechanical subcontractors
selected by Landlord’s 


 


B-4

















 


Contractor and acceptable to Landlord, and Landlord’s Contractor shall
have no obligation to award subcontracts to any subcontractor which is not the
lowest bidder.  After Landlord and
Tenant have approved (or are deemed to have approved) (i) any revised Working
Plans required hereunder which reflect a Change or a permitted modified Change
in Landlord’s Work or (ii) any Change to Landlord’s Additional Work, as
applicable, Landlord shall promptly, subject to the terms of Paragraph 2
above, cause Landlord’s Contractor to incorporate such Change into Landlord’s
Work or Landlord’s Additional Work, as applicable.


 


B.                                     Landlord
shall cause Landlord’s Work and Landlord’s Additional Work, to be done in a
first class workerlike manner in accordance with the Working Plans, using only
good grades of materials and shall comply with all Laws applicable at the time
of the performance of Landlord’s Work and Landlord’s Additional Work.  Landlord warrants that Landlord’s Work and
Landlord’s Additional Work shall be free from defects in materials and
workmanship for a period of one (1) year following the Turnover Date.


 


4.                                       Payment
for Landlord’s Work and Landlord’s Additional Work.


 


A.                                   Landlord’s
Work.  Except as
otherwise provided herein, Landlord shall pay the aggregate cost of Landlord’s
Work and Tenant shall pay the Initial Excess as increased or decreased, as the
case may be, by any aggregate net increase or decrease in the cost of
Landlord’s Work resulting from any and all Changes approved or deemed approved
by Tenant hereunder (collectively, the “Landlord’s Work Excess”), plus the cost of
all work other than Landlord’s Work and Landlord’s Additional Work, if any,
which Tenant may elect to do in order to make the Expansion Space ready for
Tenant’s occupancy and which has been approved by Landlord pursuant to
Paragraph 6E below.  Tenant shall pay
the Landlord’s Work Excess as provided in Paragraph 4C below, and Tenant
shall pay the cost of such other work, if any, directly to the persons or
entities performing such other work. 
The “cost of Landlord’s Work” as used in this Workletter shall
include all costs incurred by Landlord to plan, design and perform Landlord’s
Work as specified by the Tenant Plans and any approved (or deemed approved)
revisions thereof (including any Change), including without limitation, the
fees and charges of Landlord’s Architect, Landlord’s Engineer and Landlord’s
Contractor, all permit and inspection fees and charges, and any costs incurred
by or charged to Landlord for (i) unforeseen field conditions, (ii)
substitution of materials or finishes due to the unavailability of materials or
finishes specified in the Tenant Plans (as revised) that would materially delay
substantial completion of Landlord’s Work, (iii) necessary modification of any
portions of the Building or its systems to accommodate Landlord’s Work, and
(iv) any Change to comply with applicable laws, regulations, codes or
ordinances and/or the requirements of any building inspector with jurisdiction
over Landlord’s Work.


 


B.                                     Landlord’s
Additional Work. 
Landlord shall pay the aggregate cost of Landlord’s Additional Work up
to an amount not to exceed the Landlord’s Additional Work Allowance and Tenant
shall pay the excess of the aggregate cost of Landlord’s Additional Work over
the Landlord’s Additional Work Allowance (the “Landlord’s Additional Work Excess”
and collectively with the Landlord’s Work Excess, if any, the “Excess”).  Tenant shall pay the Landlord’s Additional
Work Excess as provided in Paragraph 4C below.  The “cost of Landlord’s Additional Work” as used
in this Workletter shall include all costs incurred by Landlord to plan, design
and perform Landlord’s Additional Work and any approved (or deemed approved)
revisions thereof (including any Change), including without limitation, the
fees and charges of Landlord’s Architect, Landlord’s Engineer and Landlord’s
Contractor, all permit and inspection fees and charges, and any costs incurred
by or charged to Landlord for (i) unforeseen field conditions, (ii) substitution
of materials or finishes due to the unavailability of materials or finishes
that would materially delay substantial completion of Landlord’s Work, (iii)
necessary modification of any portions of the Building or its systems to
accommodate Landlord’s Additional Work, and (iv) any Change to comply with
applicable laws, regulations, codes or ordinances and/or the requirements of
any building inspector with jurisdiction over Landlord’s Additional Work.  Landlord shall, upon presentation of paid
invoices therefor, reimburse Tenant for the out-of-pocket fees and charges of
Tenant’s 


 


B-5

















 


interior space planner incurred and paid by Tenant in connection with
Landlord’s Work and Landlord’s Additional Work, and the amount of such
reimbursement shall be included as part of the cost of Landlord’s Additional
Work in determining if there is an Excess. 
If the aggregate total cost of Landlord’s Additional Work is less than
the Landlord’s Additional Work Allowance, any remaining unused portion of the
Landlord’s Additional Work Allowance which is not applied against any
Landlord’s Work Excess as provided in Paragraph 4C below, shall be credited
against the next then due installments of Base Rent due from Tenant under this
Lease.


 


C.                                     Excess.  If Landlord estimates at any time or from
time to time that there will be an Excess, Landlord shall notify Tenant in
writing of Landlord’s good faith estimate of the amount thereof, which estimate
shall be itemized in reasonable detail. 
Landlord shall cooperate with Tenant to clarify the basis for any such
estimate, including providing reasonable supporting documentation therefor upon
Tenant’s written request.  Tenant shall,
within ten (10) business days after it receives Landlord’s bill therefor,
either (i) pay one-half (1/2) of Landlord’s good faith estimate of the Excess
billed by Landlord or (ii) notify Landlord in writing that Tenant elects to
have Landlord pay the Excess as provided below.  In the event Tenant fails to timely pay or notify Landlord of
Tenant’s election to have Landlord pay any such Excess, Landlord shall be
entitled to suspend the performance of Landlord’s Work and Landlord’s
Additional Work until such time as such payment or election is received by
Landlord.  At such time as the total
cost of the Tenant Plans, Landlord’s Work and Landlord’s Additional Work is
finally determined, Landlord shall notify Tenant of such amount in
writing.  If Tenant has not paid all of
the Excess, such notice shall include Landlord’s bill to Tenant for the balance
of the Excess not previously paid by Tenant, and if Tenant has paid more than
the Excess, such notice shall include Landlord’s statement to Tenant showing
the amount of the overpayment of the Excess. 
Tenant shall pay any such balance of the Excess to Landlord within ten
(10) business days after the date when Tenant receives such notice and bill
from Landlord, and Landlord shall pay any such overpayment of the Excess to
Tenant within ten (10) business days after the later of the date when Landlord
gives such notice and statement to Tenant or the Expansion Effective Date.  All Landlord’s bills to Tenant for portions
of the Excess and Landlord’s notice to Tenant of the finally determined cost of
the Tenant Plans and Landlord’s Work and Landlord’s Additional Work shall
itemize the costs in question in reasonable detail.  In the event of Tenant’s written notice requesting Landlord to
pay the Excess as provided above, Landlord shall pay the Excess (in an amount
not to exceed $100,000 in the aggregate (the “Excess Amortization Cap”))
and in such event, (i) the amount of Monthly Base Rent payable by Tenant under
this Lease shall be increased by the monthly amount as reasonably determined by
Landlord as being necessary to fully amortize such Excess paid by Landlord on
an equal payment basis over the period commencing on the Expansion Effective
Date and ending on the Expiration Date using an amortization interest rate
equal to ten percent (10%) per annum, (ii) thereafter upon Landlord’s request, Tenant
shall enter into an amendment to the Tenant Lease memorializing such increase
in the Monthly Base Rent and (iii) any portion of the Excess exceeding the
Excess Amortization Cap shall be paid by Tenant to Landlord as provided herein.  In addition, if upon final completion of
Landlord’s Additional Work there remains any unused portion of the Landlord’s
Additional Work Allowance and there is any Landlord’s Work Excess, then such
unused portion of the Landlord’s Additional Work Allowance shall be applied to
reduce (or eliminate) the Landlord’s Work Excess, and any remaining unused
portion of the Landlord’s Additional Work Allowance after such application
shall be credited against Base Rent as provided in Paragraph 4B above.


 


D.                                    Cost of
the Tenant Plans.  For
purposes of this Paragraph 4, the cost of the Tenant Plans shall be deemed
to include the cost of any revision in the Tenant Plans required hereunder,
including any such revision to reflect a Change or a permitted modified Change.


 


5.                                       Landlord
Delay.


 


A.                                   Except
as otherwise expressly provided in Paragraphs 5A and 5B below, if there is a
delay in the substantial completion of Landlord’s Work or Landlord’s Additional
Work for any reason, neither Landlord, nor the managing or leasing agent of 


 


B-6

















 


the Building, nor any of their respective agents, partners or
employees, shall have any liability to Tenant in connection with such delay,
nor shall this Lease be affected in any way.


 


B.                                     Landlord
shall use good faith and commercially reasonable efforts to substantially
complete the Stairwell Work on or before the Expansion Effective Date, subject
to Tenant Delay and other matters beyond Landlord’s reasonable control, but in
the event Landlord is unable to do so for any reason, this Lease shall remain
in effect, the Expansion Effective Date shall not be extended or delayed,
Tenant shall have no right to set-off, deduct or abate Base Rent or any other
charges payable by Tenant hereunder, and Landlord shall have no liability to
Tenant as a result of any delay in the completion of the Stairwell Work,
provided that if the Stairwell Work is not substantially completed on or before
the Expansion Effective Date (as such substantial completion date may be
extended by reason of Tenant Delay and other matters beyond Landlord’s
reasonable control) (the “Outside Stairwell Work Date”), then for the
period commencing on the Outside Stairwell Work  Date and ending on the date
of substantial completion of the Stairwell Work, Base Rent shall abate as to
that portion of the Premises rendered inaccessible to or untenantable by Tenant
by reason of the incomplete or continued construction of the Stairwell Work, as
reasonably determined by Landlord.


 


C.                                     Landlord
shall use good faith and commercially reasonable efforts to substantially
complete Landlord’s Common Area Work on or before the Expansion Effective Date,
subject to Tenant Delay and other matters beyond Landlord’s reasonable control,
but in the event Landlord is unable to do so for any reason, this Lease shall
remain in effect, the Expansion Effective Date shall not be extended or
delayed, Tenant shall have no right to set-off, deduct or abate Base Rent or
any other charges payable by Tenant hereunder, and Landlord shall have no
liability to Tenant as a result of any delay in the completion of Landlord’s
Common Area Work, provided that if Landlord’s Common Area Work is not
substantially completed on or before the date which is sixty (60) days after
the Expansion Effective Date (as such substantial completion date may be
extended by reason of Tenant Delay and other matters beyond Landlord’s
reasonable control) (the “Outside Common Area Work Date”), then
Tenant shall be entitled to an abatement of ten percent (10%) of the Base Rent
payable with respect to the portion of the Premises located on each floor as to
which Landlord’s Common Area Work is not substantially completed, for the
period commencing on the Outside Common Area Work Date and ending on the day
immediately preceding the date of substantial completion of Landlord’s Common
Area Work on such floor.


 


6.                                       Tenant’s
Access to the Expansion Space. 
Landlord shall permit Tenant, Tenant’s employees and Tenant’s
Contractors which have been reasonably approved by Landlord to enter the
Expansion Space prior to the Expansion Effective Date in order that Tenant may
do work in addition to Landlord’s Work and Landlord’s Additional Work, if any,
as may be desired by Tenant to make the Expansion Space ready for Tenant’s
occupancy, provided that Tenant shall fully perform and comply with each of the
following covenants, conditions and requirements:


 


A.                                   Such
permission is conditioned upon Tenant, Tenant’s employees and Tenant’s
Contractors working in harmony and not materially interfering with or delaying
Landlord or Landlord’s Contractor in doing Landlord’s Work or Landlord’s
Additional Work or with Landlord or any person or entity doing work in the
Building, whether for Landlord or another tenant or occupant of the Building;
and if at any time such entry shall in the reasonable judgment of Landlord
cause such disharmony, or material interference or delay, Landlord shall have
the right to withdraw such permission upon 24 hours’ written notice.


 


B.                                     Any
such entry prior to the Expansion Effective Date shall be under and subject to
all of the terms and provisions of this Lease, the same as if the Expansion
Effective Date had occurred, except that Tenant shall not be obligated to pay
any Rent as to the Expansion Space prior to the Expansion Effective Date.  To the extent not prohibited by law, all
entry to the Building or the Expansion Space by Tenant, Tenant’s employees or
Tenant’s Contractors prior to the Expansion Effective Date shall be solely at
the risk of Tenant, Tenant’s employees and Tenant’s Contractors, and Landlord,
the 


 


B-7

















 


managing agent of the
Building and their respective agents, partners, members, officers, directors
and employees shall not be liable in any way for, and Tenant hereby indemnifies,
waives and releases them and holds them harmless from any liability for and
claims arising from, any injury or death of any person or damage to or theft,
robbery, pilferage, loss or loss of the use of any property of Tenant, or any
other person or entity or any of Tenant’s work or installations in or about the
Expansion Space or the Building which occurs in connection with such entry;
provided however, Landlord, the managing agent of the Building and their
respective agents, partners, members, officers, directors and employees shall
be liable for, and Tenant does not indemnify, waive or release them or hold
them harmless from liability for and claims arising from, their respective
negligence or willful misconduct which occurs in connection with such entry and
causes any injury to or death of any person or such damage to, theft,
pilferage, loss or loss of the use of any such property.  The foregoing indemnification, release and
waiver of claims shall be in addition to and shall not limit or be limited by
any other indemnifications, releases or waivers of claims in this Lease.  In addition, and without limiting any other
provisions of this Lease, including this Workletter, Tenant shall require all
persons and entities performing work on behalf of Tenant to provide protection
for existing improvements reasonably satisfactory to Landlord, shall allow
Landlord and Landlord’s Contractor access to the Expansion Space at all times
during the period when Tenant or any person or entity is undertaking work
therein and in the event any person or entity performing work on behalf of
Tenant, other than Landlord’s Work and Landlord’s Additional Work, causes any
damage to the property of Landlord or others, or to Landlord’s Work or
Landlord’s Additional Work, Tenant shall cause such damage to be repaired at
Tenant’s expense, and if Tenant fails to cause such damage to be repaired
promptly upon Landlord’s demand therefor, Landlord may, in addition to any
other rights or remedies available to Landlord under this Lease or at law or
equity, cause such damage to be repaired, in which event Tenant shall promptly
upon Landlord’s demand pay to Landlord the cost of such repair.


 


C.                                     Persons
and entities performing work or supplying materials to Tenant shall use only
those service corridors and service entrances designated by Landlord for
ingress and egress of personnel, and the delivery and removal of equipment and
material through or across any common areas of the Building shall only be
permitted with the written approval of Landlord, not to be unreasonably
withheld, and during hours reasonably determined by Landlord.  Landlord shall have the right to order
Tenant or any person or entity who violates the above requirements to cease
work and to remove itself, its equipment and its employees from the Building.


 


D.                                    Tenant,
Tenant’s employees and Tenant’s Contractors shall abide by the rules of the
site applicable to all contractors and others in or upon the Building or the
Expansion Space (which have been either been posted at the Expansion Space or
delivered in writing to Tenant) and shall coordinate and schedule their
access to the Expansion Space for labor and materials delivery through the
general contractor for the Building and Landlord’s Contractor, or the managing
agent for the Building, if so directed by Landlord.


 


E.                                      All
work to be performed pursuant to this Paragraph 6 shall be subject to the terms
and provisions of Section 14 of this Lease, including without limitation
the requirement of first obtaining the prior written consent of Landlord
thereto.


 


7.                                       Acceptance
of Work.


 


A.                                   Landlord
shall give Tenant ten (10) business days’ prior written notice of the expected
Turnover Date.  On or before the
expected Turnover Date, Tenant shall conduct an inspection of the Expansion
Space, Landlord’s Work and Landlord’s Additional Work (except for Landlord’s
Common Area Work and the Stairwell Work) with Landlord’s representatives and
Landlord’s Contractor and develop with such representatives and deliver to
Landlord a punch list of all items of Landlord’s Work and Landlord’s Additional
Work (except for Landlord’s Common Area Work and the Stairwell Work) which are
not complete or which require correction or which do not conform to the
approved Tenant Plans (the “Punch List”).  Landlord shall cause Landlord’s Contractor to complete and/or
correct all items on the Punch List within thirty


 


B-8

















 


(30) days after Landlord
receives the Punch List (subject to material shortages, labor disputes and
other matters beyond the reasonable control of Landlord) and shall give Tenant
written notice when all of the items on the Punch List have been completed
and/or corrected.  Any items not on the
Punch List which could have, with reasonable diligence, been discovered by
Tenant and included on the Punch List shall be deemed accepted by Tenant.  If Tenant fails to appear for such
inspection or fails to arrange a different date for inspection with Landlord
within five (5) business days after receipt of Landlord’s notice of the
expected Turnover Date, Tenant shall be deemed to have agreed that no items
exist that are incomplete or require correction and therefore Landlord’s Work
and Landlord’s Additional Work (except for Landlord’s Common Area Work and the
Stairwell Work) have been completed and Landlord shall not be required to
complete or correct any such items which may in fact exist; or at Landlord’s
election, Landlord or Landlord’s Construction Manager may prepare and approve
the Punch List on Tenant’s behalf.


 


B.                                     Landlord
and Tenant agree to cooperate with each other in scheduling the inspections of
the Expansion Space, Landlord’s Work and Landlord’s Additional Work described
in this Paragraph 7, to make their respective personnel and
representatives available on reasonable notice to attend such inspections and
develop the Punch List within the inspection time described in this
Paragraph 7 and to act reasonably in determining whether or not an item of
Landlord’s Work or Landlord’s Additional Work should be included in the Punch
List.


 


C.                                     At
any time after the Turnover Date, upon reasonable prior oral or written notice
and subject to Tenant’s reasonable requirements with respect to security and
protection of Tenant’s confidential information, Landlord, Landlord’s
Contractor, their agents, employees or contractors may enter the Expansion
Space to complete and correct Punch List items and to install the Stairwell
Work, and such entry for such purpose shall not constitute an actual or
constructive eviction of Tenant, in whole or in part, or entitle Tenant to any
abatement or diminution of Rent or relieve Tenant from any of its obligations
under this Lease, or subject to the provisions of Article 11 of the Tenant
Lease, impose any other liability on Landlord, Landlord’s Contractor, their
agents, employees or contractors.


 


D.                                    Upon
substantial completion of each of Landlord’s Common Area Work and the Stairwell
Work, Landlord and Tenant will inspect same, develop a Punch List with respect
thereto and complete and correct said Punch List items in accordance with the
foregoing provisions of this Paragraph 7.


 


8.                                       Miscellaneous.


 


A.                                   Except
as expressly set forth herein, Landlord has no other agreement with Tenant and
has no other obligation to do any other work or pay any amounts with respect to
the Expansion Space.  Any other work in
the Expansion Space which may be permitted by Landlord pursuant to the terms
and conditions of this Lease shall be done at Tenant’s sole cost and expense
and in accordance with the terms and conditions of this Lease.


 


B.                                     This
Workletter shall not be deemed applicable to any additional space (other than
the Expansion Space) added to the Premises at any time or from time to time,
whether by any option under this Lease or otherwise, or to any portion of the
Premises or any additions thereto in the event of a renewal or extension of the
term of this Lease, whether by any option under this Lease or otherwise, unless
expressly so provided in this Lease or any amendment or supplement thereto.


 


C.                                     The
failure by Tenant to pay any monies due Landlord pursuant to this Workletter
within the time period herein stated shall be deemed a default in the payment
of Rent under the terms of this Lease for which Landlord shall be entitled to
exercise all remedies available to Landlord for nonpayment of Rent.  All late payments shall bear interest
pursuant to Section 28(i) of this Lease.


 


B-9

















 


D.                                    This
Workletter is expressly made a part of this Lease and is subject to each and
every term and condition thereof, including, without limitation, the
limitations of liability set forth therein.


 


E.                                      Tenant
shall be solely responsible to determine at the site all dimensions of the
Expansion Space and the Building which affect any work that may be performed by
Tenant or any of Tenant’s Contractors hereunder.


 


F.                                      All
of Landlord’s Work and Landlord’s Additional Work paid for by Landlord may be
depreciated by Landlord.


 


B-10

















 


EXHIBIT B-1


 


APPROVED
SPACE PLANS FOR LANDLORD’S WORK


 


[Graphics]


 


B-1-1

















 


[Graphics]


 


B-1-2

















 


Archipelago Scope
Detail


 


100 South Wacker / 17th & 18th Floors


 


 


Section I /
General Notes


 


The following general notes are applicable to the expansion premise on
the 17th floor and the entire 18th floor, excluding
elevator lobbies and multi-tenant corridor areas.


 


A.                                    Excluded
Areas – Areas marked as NIC are to remain “as is” with no demolition work or
new construction.  Any work to existing workstations not
directly affected by the expansion of the existing premise is excluded from
this scope of work.  The allowance for
existing premise can be used to offset costs associated with the reconfiguration
of the existing workstations.


 


B.                                     Demolition –
Demolish all existing conditions, including but limited to existing partitions,
ceilings and lighting, floor and wall coverings unless otherwise noted (UON).


 


C.                                     Partitions –


 


a.               Interior office partitions:  3.5/8” metal studs 24” OC to underside of
floor construction above, with (1) layer of 5/8” gypsum board each side
extending from floor to 6” above suspended ceiling.  3” sound attenuation batts and vinyl base.


 


b.              Interior office partitions at conference
rooms and executive offices: 3.5/8” metal studs 24” OC to underside of
floor construction above, with (1) layer of 5/8” gypsum board each side
extending from floor to underside of floor construction above (note: Openings
in drywall will be required for plenum return, exact size and location to be
determined by Mechanical engineer).  3”
sound attenuation batts and vinyl base.


 


c.               Corridor Partitions:  1 hour rated.


 


d.              Furr out interior columns as required to
provide vertical drops for electrical and low voltage work to
workstations.  Note, workstations that
are not adjacent to partitions or columns shall be fed through floor outlets.


 


D.                                    Ceilings – All
ceilings shall be Armstrong slot grid with 2x2 Dune acoustical tile, UON.


 


E.                                      Doors, Frames and
Hardware – Specification shall be 3’-0” x FH x 1.3/4” solid core flush plain
sliced Oshkosh or
Marshfield ‘Grade A’ Red Oak pre-finished door, stained and
finished to match suite 1725, hollow metal frames for paint, building standard
mortise locksets, 2 pair standard bearing hinges, wall mounted door stop.  Where pairs or sets of doors are indicated, sets shall be book matched.
Install tenant provided coat hook.  Hardware finish shall be US26D.


 


F.                                      Side Lites – Side
lites where indicated shall be full height hollow metal frames for paint
with 1⁄4” clear tempered glass UON.


 


G.                                     Lighting – All
lighting shall be HE Williams Series DI 2x4 or 2x2 direct/indirect fluorescent
T-5 3 lamp fixtures,
UON. 3,000K
color temp.


 


H.                                    HVAC – Modify
existing mechanical systems as required by attached plans, excluding
supplemental cooling systems.  Refer to
Exhibit B-2 for additional information.


 


I.                                         Electrical


 


a.               Provide metering and electrical panels
as required to provide a complete operable 


 


B-1-3

















 


system for general power requirements unless specifically excluded in
the lease, refer to Exhibit B-2.


 


b.               Provide
a complete and operable life safety voice system consistent with Building
Standards.  System shall include building speakers,
back boxes and conduit for future strobes. 
Smoke detection in Building Common areas only.


 


c.               Provide
a complete empty horizontal conduit systems and vertical drops for voice
and data systems capable of supporting (2) voice and (2) data cable per location.  Cable is assumed to be CAT 5e.  Refer to Exhibit B-2 for furnishing and
installing of voice and data cabling, and other related equipment. All conduit
required to other floors and locations outside the expansion premise in the
building is excluded from this scope of work.


 


d.              Provide a complete empty horizontal
conduit system and vertical drops for security system. All conduit required to other floors and
locations in the building outside of the expansion premise is excluded from
this scope of work. Refer to Exhibit B-2 for furnishing and
installing of security devices, wiring, and other related equipment.


 


e.               Provide the following per location:


 


i.                  Private Offices:  Typical electrical shall consist of (2) duplex
wall outlets, (1) IG duplex wall outlet and (1) single gang
back box for voice and data. Where more than one workstation is indicated,
provide typical electrical per workstation.


 


ii.               Workstation:  Typical electrical shall consist of (2) duplex outlets and (1) IG
duplex outlet installed in Tenant’s furniture system.  Tenant’s system shall have a Chicago
approved raceway system with junction boxes for outlets and power feeds.  All voice and data cable shall be run and
terminated in the raceway without additional conduit work.


 


iii.            Conference Rooms:  Typical electrical shall consist of (1) duplex wall outlet, (1)
single gang back box for voice and data, one combination flush floor electrical and
voice and data outlet located fed from the building’s Walker Duct system, or channeled
in floor, subject to approval by the Building’s structural engineer and without
compromising the integrity of the Walker Duct system, UNO.


 


iv.           Miscellaneous Electrical Outlets – Provide
electrical outlets for cleaning staff as required.


 


v.              Refer to Key Notes for electrical
requirements for specific rooms or areas.


 


vi.           All lamping shall be 3,000K color temperature.


 


vii.        Provide power, conduit (for cable) and install Tenant’s ceiling mount
bracket for TV in offices 18.062, 18.061, 18.069 & 18.040.


 


J.                                        Finishes


 


All
finishes shall be selected by Tenant’s designer within the allowances or
qualities outlined below:


 


a.               Flooring - All areas shall receive new
carpet to match the existing carpet in suite 1725, $45 per yard allowance
(including freight, tax, floor preparation and installation), UON.


 


b.              Wall Finish - All partitions shall be for
paint, (1)
prime coat, (2) finish coats eggshell finish  Benjamin Moore Moorcraft supercraft latex
paint, neutral light colors, UON.


 


B-1-4

















 


c.               Base – 4” vinyl base through out, UON.


 


d.              Window Treatments –


 


i.                  Exterior window treatments on the 17th
floor expansion premise shall be new building standard vertical blinds, color to
match suite 1725.


 


ii.               Exterior window treatments on the 18th
floor shall be new building standard vertical blinds color to match suite 1725.


 


iii.            Interior window treatments are excluded.


 


K.                                    Furniture – All
furniture indicated on plans shall be furnished and installed by Tenant.  Systems furniture, including Trading stations,
shall have Chicago Approved electrical raceways for electrical and voice/data
cabling.  Special junction boxes shall
be provided to electrician by Tenant’s furniture supplier, electrician shall hardwire electrical
outlets and power feeds.


 


L.                                      Internal Stair –
All work related to the new internal stair, including but not limited to
architectural and engineering fees, construction cost, permit fees, etc. are
excluded from the scope of work.  All designs,
lighting and material finishes shall be specified by Tenant.  Refer to Exhibit B-2 for
additional information.


 


M.                                 Building shall repair or replace missing
or damaged window mullion covers. Need to define what would be replaced. Meet on 18th
floor to mutually agree on what types of conditions need to replaced.


 


N.                                    Window film
shall be free of rips, tears, blemishes and bubbles.


 


O.                                    All
Thermostats in the expansion premise shall be new.  Tenant shall review mechanical drawings and locations prior to taping for
thermostat locations.


 


P.                                      Replace
non-standard induction unit grills with building standard aluminum linear style
grills.


 


Q.                                    All work
shall be executed on straight time during normal business hours, except for
work prohibited by the current Building Rules and Regulations.  Hard temporary barricades shall be provided
between occupied areas in Suite 1725 and the expansion premise.  Tenant shall be responsible for vacating
personnel, furniture, fixtures and equipment in these areas.


 


 


Section II / Key
Notes


 


Key Notes describe the scope of work for specific area, rooms or items
on the 17th and 18th floor. Refer to attached plans for
key notes:


 


A.                                   17th
Floor


 


1.               Existing work counter to remain.  Standard for work counter millwork, UON.


 


2.               Existing break room millwork to
remain.  Standard for break room
millwork, UON.


 


3.               New laminated plastic counter with
vertical supports.  No cabinetry above
and below.


 


4.               New Armstrong Stonex VCT flooring in entire room  to match
Suite 1725. Wax entire floor with non-slip finish.


 


5.               New work counters with cabinets above
and below, to match existing work counter millwork in suite 1725 (refer to note
A/1).  Provide (1) separate circuit for
copier, (3) double duplexes and (3) combination voice/data locations.


 


6.               New break counter with cabinets above
and below, Building Standard Elkay 


 


B-1-5

















 


LRAD-2522
sink, Elkay LK-4100 faucet , cold water tap for Tenant’s coffee maker
and water system, and related plumbing to match existing millwork in
suite 1725 (refer to note A/2).


 


a.               Under counter refrigerator with wood panel, appliance
allowance of $1,200.


 


b.              Provide (1) GFI double duplex separate
circuit for coffee maker and water machine, (1) duplex outlet for refrigerator.


 


7.               Provide electric strike, back box for
card reader & security camera and conduit to location of Tenant’s
security system on the floor.


 


8.               New typical closet set-up:  Low pressure laminate hat shelf and
stainless steel clad coat rod.  Full
height plain
sliced book matched Oshkosh or Marshfield ‘Grade A’ red
oak veneer flush doors, stained and finished to match existing in
Suite 1725, on pivot hinges and lever set  dummy trim and surface closer with hold open.


 


9.               Existing IDF to remain / No Change


 


10.         New IDF:


 


a.               Provide (4) 20 Amp 120V dedicated
circuits


 


b.              Provide (2) 3” empty conduits to Building
Telephone riser closet.


 


c.               Provide fan powered exhaust.


 


d.              16 lineal feet of 8’ high fire rated
plywood.


 


e.               Armstrong Stonex VCT flooring.


 


f.                 Connections to generator power, including but not
limited to automatic transfer switches (ATS), conduit, control and monitoring
wiring and devices shall be covered under Exhibit B-2.


 


11.         Millwork and Equipment excluded from scope.


 


B.                                     18th
Floor


 


1.               New pair of full height brushed
aluminum doors with 1⁄4” clear glass with full height brushed
aluminum framed 1⁄4” clear glass side panels.  Provide magnetic locks, back boxes for
ceiling mounted motion detector, card reader, emergency release, security
camera and conduit to Tenant’s security system on floor.  Card reader, motion detector, wiring,
connection to Building’s fire life safety system, and other related equipment
shall be furnished and installed by Tenant.  Provide night bell at entry
doors to trade room.


 


2.               Reception desk shall be furnished and
installed by Tenant.  Provide
standard workstation electrical setup (per Section I.I.e.ii) and conduit
home run to security equipment on floor for Tenant provided door release and
camera system, five locations total for door release and camera
system.


 


3.               Reception Area:


 


a.               New stone flooring cleaned and sealed to match
existing floor in Townsend reception area on 20th floor. Material 2’x2’ Bateig Azul honed.


 


b.              New wood paneling to match existing floor
in Townsend reception area on 20th floor.  Note, panels shall be segmented, no curved millwork is included. 4” Wood base to match wall panels.


 


c.               New
drywall ceiling with an allowance of $5,600 for furnishing and installation
of lighting in reception area.


 


B-1-6

















 


4.               Provide electric strike, back box for
card reader, security camera and conduit to location of Tenant’s security
system on the floor.


 


5.               New work counters with cabinets above
and below, to match existing work counter millwork in suite 1725 (refer to note
A/1). Provide (1) separate circuit for copier, (3) double duplexes and (3)
combination voice/data locations.


 


6.               New break counter with cabinets above
and below, Building Standard Elkay LRAD-2522 sink, Elkay LK-4100 faucet and
related plumbing to match existing millwork in suite 1725 (refer to note A/2).


 


a.               Provide an allowance of $3,500 for under
(1) counter
refrigerator, (1) ice maker, (1) microwave.


 


b.              Provide (2) separate circuits for
appliances, (1) GFI convenience outlet and (3) 4’ under cabinet fluorescent lights.


 


7.               New break counter with cabinets above
and below, Building Standard Elkay LRAD-2522 sink, Elkay LK-4100 faucet and
related plumbing to match existing millwork in suite 1725 (refer to note A/2).


 


a.               Provide an allowance of $ 8,200 for (1) full size refrigerator,
 (1) ice
maker, (1) microwave, (1) dishwasher and provide millwork front panels to match
millwork.


 


b.              Provide (3) separate circuits for
appliances, (4)
GFI convenience outlet and (5) 4’ under cabinet fluorescent lights.


 


8.               Provide (6) new low pressure laminate
shelves on heavy duty brackets and standards, provide an allowance of $3,000 for (1)
refrigerator, (1) separate circuit for refrigerator.


 


9.               New laminated plastic counter with
vertical supports.  Under counter cabinetry for garbage receptacle and
storage.  


 


10.         New Armstrong Stonex VCT flooring in
Meeting/Lunch and Kitchen.  Provide (10)
junction boxes in ceiling for Tenant supplied light fixtures in addition to standard general
lighting.


 


11.         New Armstrong Stonex VCT flooring.  Storage units by Tenant.


 


12.         New work counters with cabinets above and
below, to match existing work counter millwork in suite 1725 (refer to note
A/1). Provide (3) double duplexes and (3) combination voice/data
locations.  Mail equipment, included but
not limited to mail slots and postage equipment shall be by Tenant.


 


13.         Low pressure laminate hat shelf and stainless
steel clad coat rod.


 


14.         New typical closet set-up:  Low pressure laminate hat shelf and
stainless steel clad coat rod.  Full
height plain
sliced book matched Oshkosh or Marshfield ‘Grade A’ red
oak veneer flush doors, stained and finished to match existing in
Suite 1725, on pivot hinges and lever set  dummy trim and surface closer with hold open.


 


15.         New IDF:


 


a.               Provide (4) 20 Amp 120V dedicated
circuits


 


b.              Provide (2) 3” empty conduits to Building
Telephone riser closet.


 


c.               Provide fan powered exhaust.


 


d.              16 lineal feet of 8’ high fire rated
plywood.


 


e.               Armstrong Stonex VCT flooring.


 


B-1-7

















 


f.                 Connections to generator power, including but not
limited to automatic transfer switches (ATS), conduit, control and monitoring
wiring and devices shall be covered under Exhibit B-2.


 


16.         Provide an allowance of $30,000 for plumbing
fixtures, millwork, electrical, floor & wall finishes and related plumbing
for private washrooms.


 


17.         Trading Area:


 


a.               Provide (3) duplex outlets per
workstation indicated.


 


b.              Provide necessary conduit for voice/data
work to workstation groups to accommodate (6) voice/data cables per station.


 


c.               Workstations shall have Chicago Approved
electrical raceways for electrical and voice/data cabling.


 


d.              Provide necessary electrical for
supplemental cooling unit.  Supplemental
cooling unit, related ductwork, controls and piping costs shall be covered
under Exhibit B-2.


 


e.               IMTECH unit, provide necessary
electrical and conduit for IMTECH unit. 
IMTECH unit relocation costs shall be covered under Exhibit B-2.


 


f.                 Provide an allowance of $28,000 for motorized Mecco
shades in Trading area.  


 


18.         Millwork and Equipment excluded from
scope.  Provide power and conduit for cabling.


 


19.         Main Conference Room


 


a.               Provide an allowance of $5,600
for furnishing and installation of lighting in Main Conference Room.


 


b.              New pair of full height brushed aluminum doors with 1⁄4” clear glass with
full height brushed aluminum framed 1⁄4” clear glass panels.


 


c.               Provide (2) duplex wall outlets, (2)
single gang back box for voice and data, two combination surface mounted floor
electrical and voice and data feeds to conference table located fed from
the building’s Walker Duct system, or channeled in floor, subject to approval by the
Building’s structural engineer and without compromising the integrity of the
Walker Duct system, UNO.


 


d.              Furnish and install 4” wood base.


 


e.               Wall finishes and additional window treatment costs
shall be at Tenant’s cost.


 


20.         Mechanical Room for supplemental cooling
system, refer to Exhibit B-2.


 


Section III /
Elevator Lobbies and Multi-Tenant Corridors


 


The following notes apply to the 17th and 18th
floor elevator lobbies and multi-tenant corridors.


 


A.                                   17th
Floor Elevator Lobby:


 


a.               Demolition:  Existing wood trim on walls and ceiling shall be removed.  The existing wood cased openings on the
north and south elevations of the lobby shall remain.  Existing wood and stone base shall be removed.


 


B-1-8

















 


b.              Ceiling: 
Existing plaster ceiling to remain, (10) new recessed fluorescent
downlights shall be installed and wall sconces shall be replaced to match 19th
floor.


 


c.               Floor Covering*:  Existing floor coverings shall remain.


 


d.              Wall Covering*:  New wall covering to match 9th floor* to be installed.


 


e.               Base*: 
New stone base to match 9th floor to be installed. 17th
Floor Elevator Lobby:


 


f.                 Elevator Doors & Frames: 
Paint with Scuffmaster lacquer satin, over existing finish.  Stripping and repair of existing dents and
blemishes is excluded.  Call buttons
shall be changed to the new building standard stainless steel specification.


 


B.                                     18th
Floor Elevator Lobby: Provide the following scope of work in the 18th
floor elevator lobby or an allowance of $36,000.


 


a.               Ceiling:  Provide new vaulted ceiling, pendant lighting to match 9th
floor and wall
sconces to match 19th floor.


 


b.              Floor Covering*:  New floor covering to match 9th*
floor or $45 per yard allowance
(including freight, tax, floor preparation and installation).


 


c.               Wall Covering*:  New wall covering to match 9th*
to be installed or $17 per yard
material allowance for vinyl wallcovering 54” widths.


 


d.              Base*: 
New stone base to match 9th* floor to be installed or $5,300 allowance.


 


e.               Elevator Doors & Frames: 
Paint with Scuffmaster lacquer satin, over existing finish.  Stripping and repair of existing dents and
blemishes is excluded. Call buttons shall be changed to the new building
standard stainless steel specification.


 












* Or material of similar quality and cost.


 


B-1-9

















 


EXHIBIT B-2


 


LANDLORD’S
ADDITIONAL WORK


 


The following above-Building-standard items as required by Tenant and
denoted as Landlord’s Additional Work on the Mechanical System Plans:


 


•                  Additional HVAC,
UPS and connections


 


•                  Voice and data
cabling


 


•                  Imtech wall move


 


•                  Engineering and
construction of internal stairwell


 


•                  Security system


 


•                  Fire alarm/life
safety controls


 


•                  Architectural,
engineering and design charges for the foregoing and related to
programming/interior design


 


B-2-1

















 


EXHIBIT C


 


OTHER
DEFINITIONS


 


1.                                       “ADA”
shall have the meaning described in Section 9(f).


 


2.                                       “Additional
Rent” shall have the meaning described in Section 5.


 


3.                                       “Additional
Rent Estimate” shall have the meaning described in
Section 5(b).


 


4.                                       “Calculation
Date” means the first day of the Term and each January 1
thereafter falling within the Term.


 


5.                                       “Calculation
Year” means each calendar year during which a Calculation Date
falls.


 


6.                                       “Default”
shall have the meaning described in Section 19.


 


7.                                       “Default Rate”
shall have the meaning described in Section 28(i).


 


8.                                       “Expense
Adjustment” shall have the meaning described in Section 5(a).


 


9.                                       “Expenses”
shall mean all costs and expenses paid or incurred by or on behalf of Landlord
for owning, managing, operating, maintaining replacing and/or repairing the
Project and the personal property used in conjunction therewith, including
without limitation:  the cost of
maintaining adjoining pedestrian tunnels and walkways and related lighting, the
cost of security and security devices and systems, snow and ice and trash
removal, cleaning and sweeping, planting and replacing decorations, flowers and
landscaping, maintenance, repair and replacement of utility systems, telephone
building riser cable, elevators and escalators; electricity, gas, steam, water,
sewers, fuel, heating, lighting, air conditioning; window cleaning; janitorial
service; providing amenities to all tenants of the Building such as concierge
service, newsletters, building-wide activities, etc.; insurance (including but
not limited to, fire, extended coverage, all risk, liability, worker’s
compensation, elevator, terrorism, flood, or any other insurance carried by the
Landlord and applicable to the Project), painting; management fees; supplies;
sundries; sales or use taxes on supplies or services; rent, telephone service,
postage, office supplies, maintenance and repair of office equipment and
similar costs related to operation of the building manager’s office; licenses,
permits and similar fees and charges related to ownership, management,
operation, repair, replacement and/or maintenance of the Project; the share of
costs and expenses allocated to the Building and the Land relating to the
management, maintenance, operation and repair of any common lobby or other
facilities connecting the Building or any of its facilities to any other
adjoining building, facilities or land; cost of wages and salaries of all
persons engaged in the operation, management, maintenance and repair of the
Project, and so-called fringe benefits (including social security taxes,
unemployment insurance taxes, cost for providing coverage for disability
benefits, cost of any pensions, hospitalization, welfare or retirement plans,
or any other similar or like expenses incurred under the provisions of any
collective bargaining agreement, or any other cost or expense which Landlord
pays or incurs to provide benefits for employees so engaged in the operation,
management, maintenance and repair of the Project); the charges of any
independent contractor who, under contract with the Landlord or its
representatives, does any of the work of operating, managing, maintaining,
replacing and/or repairing of the Project; legal and accounting expenses
(including, but not limited to, such expenses as relate to preparation of
statements of Expenses and Taxes and seeking or obtaining reductions in and
refunds of real estate taxes); sales and excise taxes; or any other expense or
charge which would be considered as an expense of owning, managing, operating,
maintaining, replacing and/or repairing the Project.


 


Expenses shall not include:


 


(i)                                     Costs
or other items included within the meaning of the term “Taxes” (as hereinafter
defined);


 


C-1

















 


(ii)                                  Costs
of alterations, improvements, decoration, renovation and relocations of the
premises of tenants of the Building;


 


(iii)                               Costs of capital
improvements to the Building other than those specifically included in Expenses
as set forth below;


 


(iv)                              Amortization
and depreciation charges other than those specifically included in Expenses as
set forth below;


 


(v)                                 Interest
and principal payments on mortgages;


 


(vi)                              Ground
rental payments;


 


(vii)                           Legal fees in connection
with negotiating leases with other tenants in the Building or in connection
with enforcing lease obligations of other tenants in the Building;


 


(viii)                        Fines and penalties on late
payments;


 


(ix)                                Real
estate brokerage and leasing commissions;


 


(x)                                   Costs
and expenses attributable to leased retail areas (as reasonably determined by
Landlord) and which are reimbursed by retail tenants in the Building;


 


(xi)                                Any
expenditures for which Landlord has been reimbursed by tenants (other than
pursuant to rent escalation or tax and operating expense reimbursement
provisions in leases).


 


(xii)                             Rentals for items (except
when needed in connection with normal repairs and maintenance of Building
systems) which if purchased, rather than rented, would constitute a capital
improvement which is specifically excluded in subsection (iii) above
(excluding, however, equipment not affixed to the Building which is used in
providing janitorial or similar services);


 


(xiii)                          Costs incurred by Landlord
for the repair of damage to the Building, to the extent that Landlord is
reimbursed by insurance proceeds;


 


(xiv)                         Marketing costs incurred in
connection with lease, sublease and/or assignment negotiations and transactions
with present or prospective tenants or other occupants of the Building;


 


(xv)                            Expenses
in connection with services or other benefits which are not offered to Tenant
but which are provided to another tenant or occupant of the Building;


 


(xvi)                         Advertising and promotional
expenditures;


 


(xvii)                      Costs incurred in connection with
correcting non-compliance of the Building as of the Commencement Date with
disability, life, fire and safety codes, ordinances, statutes, or other laws
then in effect, including, without limitation, the ADA, including penalties or
damages incurred due to such non-compliance;


 


(xviii)                   Landlord’s charitable or political
contributions;


 


(xix)                           Acquisition costs for
sculpture, paintings or other objects of art (provided that costs to maintain,
repair and insure same shall be included in Expenses);


 


(xx)                              Costs
associated with the operation of the business of the entity which constitutes
Landlord as the same are distinguished from the costs of operation of the
Building, including general corporate overhead, entity accounting and legal
matters, costs of defending any lawsuits with any mortgagee (except as the
actions of Tenant may be in issue), costs of selling, syndicating, financing,
mortgaging or hypothecating any of Landlord’s interest in the Building, costs
of any disputes between Landlord and its employees (if any) not engaged in
Building 


 


C-2

















 


operation, disputes of Landlord with Building management, or outside
fees paid in connection with disputes with other tenants; and


 


(xxi)                    Costs of
electric power used by any tenant of the Building which such tenant pays
directly to the utility provider or to Landlord as a separate charge.


 


Notwithstanding anything contained in the above definition of Expenses
to the contrary:


 


(a)                                  The
cost of any capital improvements to the Building made after construction of the
Building which are intended to reduce Expenses or which are required under any
governmental laws, regulations, or ordinances which were not applicable to the
Building as of the date of this Lease, or which are intended to enhance the
safety of the Building or its occupants shall be included in Expenses in the
year of installation and subsequent Calculation Years as hereinafter provided
(except that any costs to abate asbestos in the leasable areas of the Building
shall not be so included).  In any
Calculation Year, the portion includible in Expenses shall be the annual
amortization of such cost using as the amortization period such reasonable
period as Landlord shall determine, together with interest on the unamortized
cost of any such improvements (at the prevailing construction loan rate
available to Landlord on the date the cost of such improvements was
incurred).  In the case of loss or
damage to the Project due to fire or other casualty, the costs of repairing,
restoring or replacing any portion of the Project which constitute capital
improvements shall be included in Expenses to the extent of deductible amounts
under insurance policies.


 


(b)                                 If
the office area of the Building is not fully occupied by tenants during all or
a portion of any Calculation Year, or if during all or a portion of any Calculation
Year, Landlord is not furnishing to any tenant or tenants any particular
service, the cost of which, if furnished by Landlord, would be included in
Expenses, then Landlord may elect to make an appropriate adjustment in Expenses
for the year, by adjusting those components of Expenses which vary with the
occupancy level of the Building, to reflect the Expenses that would have been
paid or incurred by Landlord for such year had the office area of the Building
been fully occupied by tenants and services been furnished to all such tenants
during such entire Calculation Year. 
Any such adjustments shall be deemed costs and expenses paid or incurred
by Landlord and included in Expenses for such year.


 


(c)                                  If
any item of Expenses, though paid or incurred in one calendar year, relates to
more than one calendar year, at the option of Landlord, such item may be
proportionately allocated among such related calendar years.


 


(d)                                 Any
item of Expenses which are incurred for the benefit of the Development as a
whole, including without limitation insurance, ground rental and easement
payments, costs related to the property manager’s office, and wages, salaries
and fringe benefits of employees, shall be reasonably allocated by Landlord
between the Project and the 150 Building.


 


10.                                 “Ground Lease”
and “Ground
Lessor” shall have the meanings described in Section 20.


 


11.                                 “Hazardous
Substances” shall have the meaning described in Section 9(e).


 


12.                                 “Holidays”
shall have the meaning described in Section 8(e).


 


13.                                 “Landlord Parties”
shall have the meaning described in Section 9(e).


 


14.                                 “Landlord’s
Expense Statement” shall have the meaning described in
Section 5(c)(i).


 


15.                                 “Landlord’s
Tax Statement” shall have the meaning described in
Section 5(c)(ii).


 


16.                                 “Laws”
shall have the meaning described in Section 6.


 


17.                                 “Monthly Base
Rent” shall have the meaning described in Section 4(a).


 


18.                                 “Mortgage”
and “Mortgagee”
shall have the meanings described in Section 20.


 


C-3

















 


19.                                 “Outside Date”
shall have the meaning described in Section 17(a).


 


20.                                 “Projected
Expansion Effective Date” shall have the meaning described in
Section 1(h).


 


21.                                 “Projection
Notice” shall have the meaning described in Section 5(b).


 


22.                                 “Projections”
shall have the meaning described in Section 5(b).


 


23.                                 “Released
Parties” shall have the meaning described in Section 16(a).


 


24.                                 “Rent”
shall have the meaning described in Section 3.


 


25.                                 “Rentable
Area” with respect to the Building means the rentable area of office
and retail space at the Building, on a square footage basis, as reasonably
determined by Landlord, from time to time in accordance with the BOMA office
building measurement standard then in effect when the Building was remeasured
in 1995.  The Rentable Area of the
Building as of the date hereof shall be deemed to be 518,825 square feet.


 


26.                                 “Rentable
Area” with respect to any tenant space at the Building means
rentable area of the applicable tenant space, on a square footage basis, as
reasonably determined by Landlord, from time to time in accordance with the
BOMA office building measurement standard then in effect when the Building was
remeasured in 1995.  The Rentable Area
of the Premises as of the date hereof shall be deemed to be the number of
square feet set forth in Section 1(n) of this Lease.


 


27.                                 “Substantially
Completed” shall have the meaning described in Exhibit B.


 


28.                                 “Successor”
shall have the meaning described in Section 20(c).


 


29.                                 “Tax
Adjustment” shall have the meaning described in Section 5(a).


 


30.                                 “Taxes”
shall mean real estate taxes, assessments (whether they be general or special),
sewer rents, rates and charges (to the extent not included as Expenses),
transit taxes, taxes based upon leases or the receipt of rent, and any other
federal, state or local governmental charge, general, special, ordinary or
extraordinary (but not including income or franchise taxes or any other taxes
imposed upon or measured by the Landlord’s income or profits, except as
provided herein), which may now or hereafter be levied, assessed or imposed
against the Land or the Building or Landlord as a result of its ownership of
the Project.


 


Notwithstanding anything contained in the above definition of Taxes to
the contrary:


 


(a)                                  If
at any time the method of taxation then prevailing shall be altered so that any
new or additional tax, assessment, levy, imposition or charge or any part
thereof shall be imposed upon Landlord in place or partly in place of any Taxes
or contemplated increase therein, or in addition to Taxes, and shall be
measured by or be based in whole or in part upon the Project, the rents or
other income therefrom or any leases of any part thereof, then all such new
taxes, assessments, levies, impositions or charges or part thereof, to the
extent that they are so measured or based, shall be included in Taxes levied,
assessed or imposed against the Project to the extent that such items would be
payable if the Project were the only property of Landlord subject thereto and
the income received by Landlord from the Project were the only income of
Landlord.


 


(b)                                 Notwithstanding
the year for which any such taxes or assessments are levied, (i) in the
case of special taxes or assessments which may be payable in installments, the
amount of each installment, plus any interest payable thereon, paid during an
Calculation Year shall be included in Taxes for that year and (ii) if any
taxes or assessments payable during any Calculation Year shall be computed with
respect to a period in excess of twelve (12) calendar months, then taxes or
assessments applicable to the excess period shall be included in Taxes for the
Calculation Year when payable.  Except
as provided in the preceding sentence, all references to Taxes “for” a particular
Calculation Year shall be deemed to refer to Taxes levied, assessed or
otherwise imposed during such Calculation Year without regard to when such
Taxes are payable.


 


C-4

















 


(c)                                  Taxes
shall also include any personal property taxes (attributable to the Calculation
Year in which paid) imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems or appurtenances used in connection with the Building or the
operation thereof.


 


(d)                                 Notwithstanding
anything to the contrary contained herein, (i) if there is not a separate tax
bill or bills covering the Building and the Land in their entirety or any such
bills also cover any portion of the 150 Building or the 150 Land, then Taxes
imposed by all tax bills covering the Development shall be allocated to the
Building and the Land and to the 150 Building and the 150 Land in the same
proportions, respectively, as the Rentable Areas of the Building and the 150
Building, respectively, bear to the Rentable Area of the Development and (ii)
if the foregoing clause (i) is not applicable, then the portion of Taxes
imposed by all tax bills covering the Development which are allocable to the
Land and the 150 Land shall be allocated to the Building and the Land and to
the 150 Building and the 150 Land in the same proportions, respectively, as the
Rentable Areas of the Building and the 150 Building, respectively, bear to the
Rentable Area of the Development.


 


31.                                 “Tenant Delay”
shall have the meaning described in Exhibit B.


 


32.                                 “Tenant’s
Proportionate Share” shall mean the percentage described in
Section 1(v) hereof; provided, however, that if changes are made to this
Lease, the Premises (pursuant to this Lease or otherwise), the Building, or
measurement standards utilized for the Building, changing the Rentable Area of
the Premises or the Building, Landlord shall make an appropriate adjustment to
Tenant’s Proportionate Share (i.e., based upon the ratio of Rentable Area of
the Premises to Rentable Area of the Building as used in calculating Tenant’s
Proportionate Share as of the date of this Lease), provided that in no event
shall Tenant’s Proportionate Share be increased by reason of any change in the
measurement standards used for the Building.


 


C-5

















 


EXHIBIT D


 


RULES
AND REGULATIONS


 


(1)                                  No
sign, lettering, picture, notice or advertisement shall be placed on any
outside window or in a position to be visible from outside the Premises and if
visible from the outside or public corridors within the Building shall be installed
in such manner and be of such character and style as Landlord shall approve in
writing.


 


(2)                                  Tenant
shall not use the name of the Building or the Development for any purpose other
than Tenant’s business address; Tenant shall not use the name of the Building
or the Development for Tenant’s business address after Tenant vacates the
Premises; nor shall Tenant use any picture or likeness of the Building or the
Development in any circulars, notices, advertisements or correspondence.


 


(3)                                  No
article which is explosive or inherently dangerous is allowed in the
Building.


 


(4)                                  Tenant
shall not represent itself as being associated with any company or corporation
by which the Building or the Development may be known or named.


 


(5)                                  Sidewalks,
entrances, passages, courts, corridors, halls, elevators and stairways in and
about the Premises shall not be obstructed.


 


(6)                                  No
animals (except for dogs in the company of a blind person), pets, bicycles or
other vehicles shall be brought or permitted to be in the Building or the
Premises.


 


(7)                                  Room-to-room
canvasses to solicit business from other tenants of the Building are not
permitted; Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates any code of
ethics by any recognized association or organization pertaining to such
business, profession or activities.


 


(8)                                  Tenant
shall not waste electricity, water or air-conditioning and shall cooperate
fully with Landlord to assure the most effective and efficient operation of the
Building’s heating and air-conditioning systems.


 


(9)                                  No
locks or similar devices shall be attached to any door except by Landlord and
Landlord shall have the right to retain a key to all such locks.  Tenant may not install any locks without
Landlord’s prior approval.


 


(10)                            Tenant
assumes full responsibility of protecting the Premises from theft, robbery and
pilferage; the Indemnitees shall not be liable for damage thereto or theft or
misappropriation thereof. Except during Tenant’s normal business hours, Tenant
shall keep all doors to the Premises locked and other means of entry to the
Premises closed and secured. All corridor doors shall remain closed at all
times. If Tenant desires telegraphic, telephones, burglar alarms or other
electronic mechanical devices, then Landlord will, upon request, direct where
and how connections and all wiring for such services shall be installed and no
boring, cutting or installing of wires or cables is permitted without
Landlord’s approval.


 


(11)                            Except
with the prior approval of Landlord, all cleaning, repairing, janitorial,
decorating, painting or other services and work in and about the Premises shall
be done only by authorized Building personnel.


 


(12)                            The
weight, size and location of safes, furniture, equipment, machines and other
large or bulky articles shall be subject to Landlord’s approval and shall be
brought to the Building and into and out of the Premises at such times and in
such manner as the Landlord shall direct and at Tenant’s sole risk and cost.
Prior to Tenant’s removal of any of such articles from the Building, Tenant
shall obtain written authorization of the Office of the Building and shall
present such authorization to a designated employee of Landlord.


 


(13)                            Tenant
shall not overload the safe capacity of the electrical wiring of the Building
and the Premises or exceed the capacity of the feeders to the Building or
risers.


 


D-1

















 


(14)                            To
the extent permitted by law, Tenant shall not cause or permit picketing or
other activity which would interfere with the business of Landlord or any other
tenant or occupant of the Building, or distribution of written materials
involving its employees in or about the Building, except in those locations and
subject to time and other limitations as to which Landlord may give prior
written consent.


 


(15)                            Tenant
shall not cook, otherwise prepare or sell any food or beverages in or from the
Premises or use the Premises for housing accommodations or lodging or sleeping
purposes except that Tenant may install and maintain vending machines,
coffee/beverage stations and food warming equipment and eating facilities for
the benefit of its employees or guests, provided the same are maintained in
compliance with applicable laws and regulations and do not disturb other
tenants in the Building with odor, refuse or pests.


 


(16)                            Tenant
shall not permit the use of any apparatus for sound production or transmission
in such manner that the sound so transmitted or produced shall be audible or
vibrations therefrom shall be detectable beyond the Premises; nor permit
objectionable odors or vapors to emanate from the Premises


 


(17)                            No
floor covering shall be affixed to any floor in the Premises by means of glue
or other adhesive without Landlord’s prior written consent.


 


(18)                            Tenant
shall at all time maintain the window blinds in the lowered position, though
Tenant may keep the louvers open.


 


(19)                            Tenant
shall only use the freight elevator (or a passenger elevator designated by
Landlord) for mail carts, dollies and other similar devices for delivering
material between floors that Tenant may occupy.


 


(20)                            No
smoking, eating, drinking, loitering or laying is permitted in the common areas
of the Building except in designated areas.


 


(21)                            Landlord
may require that all persons who enter or leave the Building or the Development
identify themselves to security guards, by registration or otherwise. Landlord,
however, shall have no responsibility or liability for any theft, robbery or
other crime in the Building or the Development. Tenant shall assume full
responsibility for protecting the Premises, including keeping all doors to the
Premises locked after the close of business.


 


(22)                            Tenant
shall comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency and shall
cooperate and participate in all reasonable security and safety programs
affecting the Building or the Development.


 


D-2

















 


EXHIBIT E


 


SUITE
ACCEPTANCE AGREEMENT


 


BUILDING:                                                                                100
South Wacker Drive, Chicago, Illinois 60606


 


PREMISES:                                                                              17th
and 18th Floors


 


LANDLORD:                                                                     MJH
Wacker LLC


 


LEASE
DATED:                                                        October       ,
2003


 


TENANT:                                                                                          Archipelago
Holdings, L.L.C.


 


The undersigned Tenant under the lease described above (the “Lease”)
hereby certifies to Landlord that:


 


1                                          Tenant
is the tenant under the Lease for space in the above-referenced Building
demising approximately
                      
square feet of space (the “Premises”).


 


2                                          Tenant
has accepted possession of the Premises pursuant to the Lease.  The Term of the Lease commenced on
                                        .  The Term of the Lease expires on
                                        ,
subject to any renewal and extension options expressly set forth in the
Lease.  The Expansion Effective Date
occurred on
                                    .


 


3                                          All
improvements required by the terms of the Lease to be made by Landlord have
been completed to the satisfaction of Tenant in all respects (other than
completion and/or correction of items on the attached punch list, if any).


 


4                                          The
Lease has not been assigned, sublet, modified, supplemented or amended in any
way.  The Lease constitutes the entire
agreement between the parties and there are no other agreements between
Landlord and Tenant concerning the Premises. 
Tenant is not entitled to receive any concession or benefit (rental or
otherwise) or other similar compensation in connection with renting the
Premises other than as expressly set forth in the Lease.


 


5                                          The
Lease is valid and in full force and effect and, to the best of Tenant’s
knowledge, neither Landlord nor Tenant is in default thereunder.  Tenant currently has no defense, setoff or
counterclaim against Landlord arising out of the Lease or in any way relating
thereto, or arising out any other transaction between Tenant and Landlord, and
no event has occurred and no condition exists, which with the giving of notice
or the passage of time, or both, will constitute a default under the Lease.


 


 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  ARCHIPELAGO
  HOLDINGS, L.L.C., an

  Illinois limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


E-1

















 


EXHIBIT F


 


STORAGE
LICENSE AGREEMENT


 


THIS STORAGE LICENSE AGREEMENT is made as
of the        day of October, 2003, by and
between
MJH WACKER LLC, a Delaware limited liability company (“Licensor”)
and ARCHIPELAGO
HOLDINGS, L.L.C., an Illinois limited liability company (“Licensee”).


 


WHEREAS, Licensor and Licensee have heretofore
entered into that certain Lease of even date herewith (the “Lease”),
whereby Licensor leased to Licensee and Licensee leased from Licensor certain
premises (the “Premises”) located on the 17th and 18th
floors of the office building located at 100 South Wacker Drive, Chicago,
Illinois (the “Building”); and


 


WHEREAS, Licensee desires to use certain
storage space located in the Building, which space is approximately one
thousand five hundred thirty-five (1,535) rentable square feet in size in the
aggregate (as remeasured), consisting of and known as Storage Suite #1717
(comprising approximately 133 rentable square feet as remeasured), Storage
Suite #1723 (comprising approximately 397 rentable square feet, as remeasured),
Storage Suite #1745 (comprising approximately 607 rentable square feet, as
remeasured ) and Storage Suite #1747 (comprising approximately 398 rentable
square feet, as remeasured), as depicted on Exhibit A attached hereto and
incorporated herein by this reference (the “Storage Space”).


 


NOW, THEREFORE, in consideration of the
covenants and conditions set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, agree as follows:


 


1.                                       Defined
Terms.  Capitalized terms
and other defined items used herein but not defined herein shall have the
meanings ascribed to them in the Lease.


 


2.                                       Grant.  Licensor hereby grants to Licensee a
revocable license to use the Storage Space (the “License”), subject to the
terms and conditions set forth below.


 


3.                                       Storage
Space Term.  The Storage
Space may be used by Licensee beginning on September 1, 2006 (the “Storage
Space Commencement Date”) and continuing to and including the
Extension Term Expiration Date of the Lease (or such earlier date that the Term
of the Lease or Licensee’s right to possession of the Premises thereunder may
be terminated), unless this License is sooner terminated (the “Storage
Space Termination Date”) pursuant to the terms hereof (the “Storage
Space Term”).  Upon
expiration or termination of this License for any reason, Licensee shall
(a) remove all of Licensee’s property from the Storage Space;
(b) repair any damage caused by Licensee to the Storage Space;
(c) surrender the Storage Space to Licensor, broom-clean in the same
condition as on the Storage Space Commencement Date, ordinary wear and tear
excepted; and (d) surrender to Licensor all keys for the Storage
Space.  Licensee shall be liable to
Licensor for all costs and expenses incurred by Licensor as a result of
Licensee’s failure to perform any of the foregoing.


 


4.                                       Storage
Space Fee.  Commencing on
the Storage Space Commencement Date and continuing to and including the Storage
Space Termination Date, Licensee shall pay to Licensor a fee for the Storage
Space (the “Storage Space Fee”) in the amount of One Thousand Eight
Hundred Fifty-Four and 81/100 Dollars ($1,854.81) per month (prorated for any
partial month), as hereinafter adjusted, which shall be due and payable at the
same time as Base Rent is due and payable under the terms of the Lease.  Commencing on the first anniversary of the
Storage Space Commencement Date and on each succeeding anniversary thereof
during the Storage Space Term, the Storage Space Fee shall increase by
Sixty-Three and 96/100 Dollars ($63.96) per month over the Storage Space Fee
payable during the preceding year.


 


5.                                       Condition
of Storage Space.  The
Storage Space shall be furnished to Licensee in an “as is” condition, and
Licensee waives any warranty of suitability in connection therewith.  Licensor shall not be required to provide
any services to the Storage Space except for electrical and HVAC service then
being customarily provided by Licensor to similar storage areas in the
Building.  Licensee agrees that neither
Licensor, nor any of Licensor’s constituent members, nor any of their
respective agents, partners or employees, shall be liable for damage or injury
to 


 


F-1

















 


person, property or business or for loss or
interruption of business, or for any other matter, in the event there is any
failure, delay, interruption or diminution in furnishing any service to the
Storage Space.  No such failure, delay,
interruption or diminution shall be deemed to constitute an eviction or
disturbance of Licensee’s use or possession of the Storage Space, in whole or
in part, actual or constructive, nor entitle Licensee to any claim for set-off,
abatement or reduction of the Storage Space Fee, nor render Licensor liable for
damages, nor relieve Licensee from the performance of or affect any of
Licensee’s obligations under this Agreement. 
However, Licensor shall use commercially reasonable efforts to minimize
any such failure, delay, interruption or diminution.  Throughout the Storage Space Term, Licensee shall keep the
Storage Space in good condition and repair, at Licensee’s sole cost and
expense, other than the structural elements thereof which Licensor shall
maintain at Licensor’s sole cost and expense. 
Licensee shall not make or permit any alterations or improvements to the
Storage Space without the prior written consent of Licensor, which consent may
be withheld in the sole discretion of Licensor.


 


6.                                       Use of
Storage Space.  Licensee
shall use the Storage Space solely for the lawful storage of office and related
materials, equipment, files, records and furniture ancillary to Licensee’s use
of the Premises as permitted under the Lease. 
In no event shall Licensee (a) conduct or permit the conduct of any
business from the Storage Space; (b) permit the use or occupancy of the
Storage Space as a dwelling, domicile or lodging (temporary or otherwise) for
any person; (c) keep in the Storage Space any unlawful, perishable or
hazardous substance, item or material including, by way of example and not
limitation, gasoline, explosives or foodstuffs which may decay or attract
vermin; (d) use the Storage Space in any manner which exceeds the
load-bearing or other capacity of the Storage Space or the Building’s systems and/or
facilities or which interferes with the rights of any other tenant, occupant or
licensee of the building in which the Storage Space is located; (e) permit
or suffer any waste to the Storage Space; or (f) permit or create an
assignment of the License or this Agreement or a sublicense of Licensee’s right
to use the Storage Space, except in connection with an assignment of the Lease
or a sublease of Licensee’s interest in the Premises as such may be permitted
under the Lease, it being the express intention of Licensor and Licensee that
the right to use the Storage Space not be permitted separate and apart from the
right to use and occupy the Premises pursuant to the terms of the Lease.  Licensee shall use the Storage Space in
accordance with and shall comply with all applicable laws, ordinances, orders
and regulations relating to the use, condition and occupancy of the Storage
Space and with Licensor’s rules, regulations and directions which may be
established from time to time (including, without limitation, any and all rules
and regulations established by or under the Lease as if the Storage Space were
the Premises thereunder).  Licensee
agrees that Licensor or its agents or representatives may enter into and upon
any part of the Storage Space to inspect the same, clean or make repairs,
alterations or additions to the Storage Space or the Building, without such
acts being deemed an eviction of Licensee or breach of quiet enjoyment, and
Licensee shall not be entitled to  any
abatement or reduction of the Storage Space Fee by reason thereof.  Licensee shall furnish Licensor with all
keys to the Storage Space.


 


7.                                       Indemnity;
Waiver.  Licensee shall
not permit any mechanic’s, materialman’s or other liens to be placed upon or
against the Storage Space or the real estate upon which the Storage Space is
located.  If any such lien is filed,
Licensor, at Licensor’s election, may pay and satisfy the lien, in which event
the sums so paid by Licensor shall be due and payable by Licensee immediately
upon written demand from Licensor. 
Licensee agrees to defend, indemnify and hold harmless Licensor from any
and all loss, cost, injury claims, actions, damages, expenses or liens
resulting, directly or indirectly, from (a) Licensee’s exercise of rights
granted under this License Agreement, (b) the breach of the aforesaid
representation, warranty and covenant or default on the part of Licensee in the
performance of its obligations hereunder, (c) any act, neglect, or
omission of Licensee, and Licensee’s agents, contractors, officers, employees.  Licensor shall not be liable to Licensee,
its agents, servants, employees, customers or invitees for any injury to
persons or damage to property in the Storage Space.  Licensor and Licensee waive any rights each may have against the
other from any risk generally covered by fire and extended coverage and, on
behalf of their insurance companies, waive any right of subrogation which such
insurer may have against the parties hereto. 
The foregoing provisions expressly exclude any agreement of Licensee to
indemnify or waive claims against Licensor or its employees or agents due to
negligence in the operation or maintenance of the Building.  Licensee’s agreements and obligations under
this Section shall survive the expiration or early termination of this
Storage License Agreement.


 


F-2

















 


8.                                       Insurance.  Licensee shall procure and maintain, at
Licensee’s sole cost and expense, and at all times during the term hereof
policies of commercial general liability insurance and “all risk” insurance
covering Licensee’s personal property stored in the Storage Space, and such
other policies with such limits of coverage as may be required of Licensee
under the Lease or as Licensor may reasonably request from time to time.  The insurance shall be issued by companies
and be in form and substance reasonably satisfactory to Licensor and shall name
as additional insureds Licensor and such other parties as Licensor shall
identify from time to time.  Licensee
shall provide evidence of such insurance to Licensor as reasonably requested by
Licensor from time to time.


 


9.                                       Brokers.  Licensor and Licensee hereby represent and
warrant to each other that no commission is due and payable to any broker or
other leasing agent in connection with this Storage License Agreement as a
result of its own dealings with any such broker or leasing agent, and Licensor
and Licensee hereby agree to indemnify and hold each other harmless from and
against all loss, damage, cost and expense (including reasonable attorneys’
fees) suffered by the other party as a result of a breach of the foregoing
representation and warranty.


 


10.                                 Default
and Remedies.  Upon
default by Licensee of any obligation under this Storage License Agreement, or
upon the occurrence of a Default by Licensee under the Lease, Licensor may
elect, in addition to all other remedies available at law or in equity, to
terminate all of Licensee’s rights with respect to the Storage Space and this
License, effective immediately on written notice from Licensor to Licensee of
such election, and to seek damages and costs incurred by Licensor related to
such default, without terminating or otherwise affecting the Lease as it
pertains to the Premises.  Any amounts
payable by Licensee hereunder which are not paid on or before the date due
shall bear interest from the date due until paid at an annual rate equal to the
Default Rate (as defined in the Lease) or such lesser rate which shall then be
the maximum rate permitted by law with respect thereto.


 


11.                                 Miscellaneous.  Licensee hereby acknowledges that in no
event shall Licensor be responsible or liable to Licensee for any damage to or
loss of property placed or otherwise stored in the Storage Space.  All notices given hereunder shall be deemed
to have been delivered if sent in accordance with the notice provisions of
Section 27 of the Lease.  Illinois
law shall govern this Storage License Agreement.


 


12.                                 Expenses
of Enforcement.  The
non-prevailing party shall pay upon demand all of the reasonable costs, charges
and expenses (including the court costs and fees and out-of-pocket expenses of
counsel, agents and others retained by the prevailing party) incurred by the
prevailing party in enforcing the terms of this Agreement, and a party shall
also pay such costs and expenses incurred by the other party in any litigation,
negotiation or transaction in which said party causes the other party without
the other party’s fault to become involved or concerned.


 


13.                                 Waiver of
Jury Trial.  In the event
any litigation is commenced arising out of or relating to this Agreement or the
License, whether instituted by Licensor, Licensee or a third party, Licensee
hereby waives the right to demand or request a trial by jury.


 


14.                                 Licensor.  The term “Licensor” as used in this Agreement
means only the owner of Licensor’s interest in the Premises from time to
time.  In the event of any assignment,
conveyance or sale, once or successively, of Licensor’s interest in the
Premises or any assignment of this Agreement 
by Licensor, Licensor shall be and hereby is entirely freed and relieved
of all covenants and obligations of Licensor hereunder accruing after such
assignment, conveyance or sale, and Licensee agrees to look solely to such
assignee, grantee or purchaser with respect thereto.


 


15.                                 Limitation
of Liability.  The
liability of any Licensor under this Agreement or any amendment to this
Agreement, or any instrument or document executed in connection with this
Agreement, shall be limited to and enforceable solely against the assets of
such Licensor constituting an interest in the Land or Building and not other
assets of such Licensor.  Assets of a
Licensor which is a partnership or limited liability company do not include the
assets of the partners or members of such Licensor, and any negative capital
account of a partner or member in a partnership or limited liability company
which is a Licensor, and any obligation of a partner or member to contribute
capital to the partnership or limited liability company which is Licensor,
shall not be deemed to be assets of the partnership or limited liability
company which is the 


 


F-3

















 


Licensor.  No
directors, officers, employees, managers, members, or shareholders of any
corporation or limited liability company which Licensor shall have any personal
liability arising from or in connection with this Agreement.  At any time during which Licensor is trustee
of a land trust, all of the representations, warranties, covenants and
conditions to be performed by it under this Agreement or any documents or
instruments executed in connection with this Agreement are undertaken solely as
trustee, as aforesaid, and not individually, and no personal liability shall be
asserted or be enforceable against it or any of the beneficiaries under said
trust agreement by reason of any of the representations, warranties, covenants
or conditions contained in this Agreement or any documents or instruments
executed in connection with this Agreement.


 


IN WITNESS WHEREOF, the parties have caused
this Storage License Agreement to be executed as of the date first written
above.


 


	
  LICENSOR:

  	
  LICENSEE:

  
	
   

  	
   

  
	
  MJH WACKER LLC,
  a Delaware limited

  liability company

  	
  ARCHIPELAGO
  HOLDINGS, L.L.C., an

  Illinois limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
  John B. Grissim

  	
   

  	
  Its:

  	
   

  
	
   

  	
  Vice President

  	
   

  
							



 


F-4

















 


EXHIBIT
A


 


Floor
Plans of the Storage Space


 


[Graphics]


 


F-A-1

















 


EXHIBIT G


 


LOCATION
OF TENANT’S MAIN LOBBY SIGNAGE


 


[Graphics]


 


G-1

















 


EXHIBIT H


 


FORM
OF SNDA


 


LEASE
SUBORDINATION, ATTORNMENT


 


AND


 


NON-DISTURBANCE
AGREEMENT


 


THIS AGREEMENT, made as
of  this           day
of                                  ,
2003, by and
betweenARCHIPELAGO
HOLDINGS, L.L.C. and Illinois limited liability company (hereinafter
“Lessee”), and MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY in its capacity as
Administrative Agent for the benefit of itself and each of the other holders of
a Note, a Massachusetts corporation (hereinafter “Lender”).


 


RECITALS


 


A. Lender is the holder
of four (4) certain promissory notes (herein the “Note”) issued by MJH Wacker,
LLC (Lessor) dated February 26, 2003 in the total principal sum of One
hundred and Ten Million Dollars (110,000,000.00) and of the Mortgage and
Security Agreement and Fixture Filing of even date therewith (herein the
“Mortgage”) securing the Note, recorded on February 28, 2003 with the Cook
County Recorder as Document No. 0030290567, which Mortgage encumbers the real
property (herein the “Subject Property”) described on Exhibit A, attached
hereto and made a part hereof.


 


B.  Lessee and        MJH Wacker
LLC, a Delaware limited liability company, as Lessor,
entered into a lease agreement (herein the “Lease”) dated                             ,
2003, by which Lessee leased from Lessor certain premises in the office building commonly
known   as Hartford
Plaza  and located at 100 and 150 South Wacker Drive Chicago,
Illinois                                                                     
(herein the “Leased Premises”), and constituting a portion
of the Subject Property..  Capitalized terms not defined
herein shall have the meaning ascribed to them in the Lease.


 


C.  Lessee desires to be able to obtain the
advantages of the Lease and occupancy thereunder in the event of foreclosure of
the Mortgage and Lender wishes to have Lessee confirm the priority of the
Mortgage over the Lease.


 


NOW, THEREFORE, in
consideration of the mutual covenants and conditions set forth hereinbelow, the
parties hereto agree as follows:


 


1.  Lessee hereby covenants and agrees that subject to the terms hereof, all
its rights and interests whatsoever under the Lease in the Leased Premises and
the Subject Property are and shall remain subject and subordinate to the lien
of the Mortgage and to all the terms, conditions and provisions thereof, to all
advances made or to be made thereunder or under the Note, and to any increases,
renewals, extensions, modifications, substitutions, consolidations or
replacements thereof or of the Note.


 


2.  So long as Lessee is not in default (beyond
any period given Lessee in the Lease to cure such default) in the payment of
rent or additional charges or in the performance of any of the other terms,
covenants or conditions of the Lease on Lessee’s part to be performed, Lessee
shall not be disturbed by Lender in its possession of the Leased Premises
during the term of the Lease, or any extension or renewal thereof, or in the enjoyment
of its rights under the Lease.


 


3.  If the interest of the Lessor under the
Lease shall be acquired by Lender or any purchaser (“Purchaser”) by reason of
exercise of the power of sale in the
Mortgage or the foreclosure of the Mortgage or other proceedings
brought to enforce the rights of the holder thereof, or by deed in
lieu of foreclosure or by any other similar method, and Lender or Purchaser succeeds to
the interest of Lessor under the Lease, Lessee shall attorn to Lender or
Purchaser as its lessor, said attornment to be effective and self-operative
without the execution of any other instruments on the part of either party
hereto immediately upon Lender’s or Purchaser’s succeeding to the interest of
the Lessor under the Lease, and the Lease shall continue in accordance with its
terms between Lessee as lessee and Lender or Purchaser as lessor; provided,
however, that:


 


(a)                                  Lender
shall not be personally liable under the Lease and Lender’s liability under the
Lease shall be limited to the ownership interest of Lender in the Subject
Property;


 


(b)                                 Lender
shall not be liable for any act or omission of any prior lessor (including
Lessor);


 


(c)                                  Except for (i) the abatement of Base
Rent in the amount of $250,000, (ii) the Refurbishment Allowance in the amount
of $116,888, (iii) Landlord’s Additional Work Allowance in the amount of
$425,000, Lender shall not be subject to any offsets or
defenses which                                                Lessee
might have against any prior lessor (including Lessor);


 


H-1

















 


(d)                                 Lender
shall not be bound by any prepayment of rent, or deposit, rental security or any other sums
deposited with any prior lessor (including Lessor) under the Lease unless
actually received by Lender;


 


(e)                                  Lender
shall not be bound by any agreement or modification of the Lease made without
Lender’s consent; and


 


(f)                                    Lender
shall not be bound by any restriction on competition beyond the Subject
Property.


 


4.  Lessee certifies to Lender
that as of the date hereof, the
Lease is presently in full force and effect to the best of Lessee’s knowledge with no defaults
thereunder by the Lessor or by Lessee and unmodified except as indicated
hereinabove; that the term thereof has commenced and the full rental is now
accruing thereunder; that Lessee has accepted possession of the Leased Premises
and that any improvements required by the terms of the Lease to be made by the
Lessor have been completed to the satisfaction of Lessee; that no rent under
the Lease has been paid more than thirty (30) days in advance of its due date;
that the address for notices to be sent to Lessee is as set forth in the Lease,
or at the Leased Premises; and that the Lessee, has no charge, lien, claim or
offset under the Lease or otherwise, against rents or other charges due or to
become due thereunder


 


5.  Lessee agrees with Lender
that from and after the date hereof, Lessee will not terminate or seek to
terminate the Lease by reason of any act or omission of the Lessor thereunder
until Lessee shall have given written notice, by registered or certified mail,
return receipt requested, of said act or omission to Lender, which notice shall
be addressed to Massachusetts Mutual Life Insurance Company, c/o David L.
Babson & Company Inc., 1500 Main Street, Suite 2100, Springfield, Massachusetts
01115, Attention: Managing Director, Real Estate Finance Group, and shall have thirty (30) days
following the giving of such notice, during which period Lender shall have the
right, but shall not be obligated, to remedy such act or omission.


 


6.


 


7.  This Agreement shall inure to the benefit of
and shall be binding upon Lessee and Lender, and their respective heirs,
personal representatives, successors and assigns.  This Agreement may not be altered, modified or amended except in
writing signed by all of the parties
hereto.  In the event any one or more of
the provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.  This Agreement shall be governed by and
construed according to the laws of the State of   Illinois


 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.


 


	
  [ATTEST OR WITNESSES (2)]

  	
  LESSEE:  ARCHIPELAGO HOLDINGS, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Its

  	
   

  
	
   

  	
   

  
	
  [SEAL]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [ATTEST OR WITNESSES (2)]

  	
  MASSACHUSETTS MUTUAL LIFE INSURANCE

  
	
   

  	
   

  
	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  In its capacity as Administrative Agent 

  By David L. Babson & Company Inc.

  
	
   

  	
   

  
	
   

  	
  Its Authorized Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Its

  	
   

  
	
   

  	
   

  
	
  [SEAL]

  	
   

  
						



 


ACKNOWLEDGEMENTS


 


	
  STATE OF

  	
  )

  



 


H-2

















 


	
   

  	
  ) ss.

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  



 


On this, the
                            
day of                             
                            
,200      , before me, the undersigned party,
personally appeared who acknowledged himself to be the
                                           
of ARCHIPELAGO HOLDINGS, L.L.C. an
Illinois limited liability company, and that he as such
                                                                                                                        
bring authorized to do so, executed the foregoing Lease Subordination,
Attornment and Non-Disturbance Agreement for the purposes therein contained by
signing the name of the                                                         
by himself as


 


IN WITNESS WHEREOF, I
hereunto set my hand and official seal.


 


 


Notary Public


 


My Commissions Expires:


 


 


	
  COMMONWEALTH OF MASSACHUSETTS

  	
  )

  
	
   

  	
   

  
	
   

  	
  ) ss.

  
	
   

  	
   

  
	
  COUNTY OF Hampden

  	
  )

  



 


On this, the
                               
day of                                      ,
200             ,
before me, the undersigned party, personally appeared


 


who acknowledged himself to be the Managing Director of David L. Babson
& Company Inc. the authorized agent for 
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation, and that he/she as such Managing Director being authorized to  do so, 
executed  the  foregoing  
Lease  Subordination,  Attornment 
and  Non-Disturbance  Agreement 
for


 


the purposes therein contained by signing the name of the corporation
by himself/herself as Managing Director.


 


IN WITNESS WHEREOF, I hereunto set my hand and official seal.


 


 


Notary Public


 


My Commission Expires:


 


H-3

















 


EXHIBIT
F


 


FORM OF LETTER OF
CREDIT


 


[LETTERHEAD OF ISSUING BANK]


 


LETTER OF CREDIT DEPARTMENT


 


Issue Date:
                          
      , 20    


Our Number:
                          


 


No.


Irrevocable Commercial Letter of Credit


 


	
   

  	
  Applicant:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Beneficiary:

  	
  MJH Wacker LLC, its 
  successors

  and/or assigns

  
	
   

  	
   

  	
  c/o Lincoln Property Company

  
	
   

  	
   

  	
  120 North LaSalle Street

  
	
   

  	
   

  	
  Chicago, Illinois  60602

  
	
   

  	
  Attention:

  	
  Vice President-Asset Management

  
	
   

  	
   

  	
   

  
	
   

  	
  Amount (U.S.):

  	
  $

  
	
   

  	
   

  	
   

  
	
   

  	
  Expiry: 
                                                      
        , 20

  



 


Gentlemen:


 


For the account of
Applicant we hereby establish this Irrevocable Letter of Credit No.
                                            
in your favor for an amount of up to
$                                
effective immediately, available by your drafts at sight when accompanied by
this Irrevocable Letter of Credit and the following document:


 


Beneficiary’s statement
purportedly signed by an officer of Beneficiary or Beneficiary’s authorized
managing agent, reading:


 


“The amount of this drawing under Irrevocable Letter of Credit No.
                            
is being drawn pursuant to Lease dated                         
      , 20      ,
by and between                                                             ,
as Landlord, and
                          ,
as Tenant, as such Lease has been amended or assigned, and Landlord is entitled
to draw such amount under such Lease.”


 


All drafts must be marked
“Drawn under
                                                
Bank, Irrevocable Letter of Credit No.
                        
dated
                                    ,
20        .”


 


Partial drawings are
permitted provided that the aggregate amount of all such drawings may not
exceed the stated amount of this Letter of Credit.  Except to the extent reduced thereby, this Letter of Credit shall
survive any partial drawings.


 


It is a condition
of this Irrevocable Letter of Credit that it shall be fully transferable by
Beneficiary without any fees or charges payable by Beneficiary in connection
therewith.


 


It is a condition of this
Irrevocable Letter of Credit that it shall be automatically extended for
additional periods of one (1) year from the present or future expiration date,
unless at least thirty (30) days prior to such expiration date we notify you in
writing by certified or registered mail, return receipt requested, at the above
address, that we elect not to renew this Irrevocable Letter of Credit for such
additional period.  Upon receipt by you
of such notice you may draw drafts on us at sight for an amount not to exceed
the balance remaining in this Irrevocable Letter of Credit within the then
applicable expiry date.


 


We hereby agree with you
that drafts drawn under and in accordance with the terms of 


 


I-1

















 


this Irrevocable Letter of Credit will be duly honored
by us on delivery of this Irrevocable Letter of Credit and the document so
specified, when presented at this office.


 


This credit is subject to
the Uniform Customs and Practice for Documentary Credits (1993 Revision), 444
International Chamber of Commerce Publication No. 500; provided, however, that
in the event the expiration date occurs during an interruption of our business
of the type described in Article 17 of such publication, then the expiration
date shall be deemed to be automatically extended until the date which shall be
five (5) days after the resumption of our business.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


I-2