Exhibit Number (10)(xvi)(2)
to 1995 Form 10-K
C:ACK:6710N:0021
11/6/87-1
SECOND AMENDMENT TO AGREEMENT OF LEASE
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THIS AMENDMENT, made and entered into as of August 6, 1987 by and between
American National Bank and Trust Company of Chicago, as Trustee under Trust
Agreement dated August 21, 1986 and known as Trust 65287 ("Landlord") and The
Northern Trust Company, an Illinois banking corporation ("Tenant").
WITNESSETH: THAT
WHEREAS, Landlord and Tenant are parties to a certain Agreement of Lease
dated as of August 27, 1985; and
WHEREAS, the Agreement of Lease was amended by that certain First Amendment
to Agreement of Lease dated as of August 15, 1986 (as so amended, the "Lease");
and
WHEREAS, Landlord and Tenant desire to further amend the Lease as
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Paragraph 1A of the Lease is hereby deleted, and the following inserted
in lieu thereof:
"A. The Premises shall be ten (10) contiguous floors in the Building
located in the Low-rise Section of the Building (as defined in Paragraph 1F
hereof) and shall in the aggregate contain approximately 200,000 RSF (as
defined in Paragraph 1D hereof). The lower five (5) floors of the Premises
(floors 3 through 7 of the Building), containing in the aggregate
approximately 100,000 RSF, are sometimes referred to herein as the
"Original Premises". The upper five (5) floors of the Premises (floors 8
through 12 of the Building), containing in the aggregate approximately
100,000 RSF, are sometimes referred to herein as the "Additional Premises".
The "Original Premises" and the "Additional Premises" shall, in the
aggregate, comprise the Premises."
2. Paragraph 1F of the Lease is hereby deleted, and the following inserted
in lieu thereof:
"F. "Low-Rise Section" shall mean the floors of the Building beginning
with the second floor through and including the fourteenth floor, all of
which shall be accessible by the same bank of elevators."
3. The following is hereby inserted into the Lease as Paragraph 1G:
"G. "Lower Mid-Rise Section" shall mean the floors of the Building
beginning with the fifteenth floor through and including the twenty-fifth
floor, all of which shall be accessible by the same bank of elevators."
4. Paragraph 2B of the Lease is hereby deleted, and the following inserted
in lieu thereof:
"B. Additional Work. Landlord will perform, at Tenant's request, and upon
submission by Tenant of the necessary plans and specifications in
accordance with ▇▇▇▇▇▇▇▇▇ ▇▇ hereof, any additional work in the Premises
over and above that specified in Paragraph 2A above, subject to the terms
and conditions of this Paragraph 2B. If included in Tenant's plans and
specifications, Landlord will supply and install the items described on
Exhibit C attached hereto and made a part hereof (the "Building Standard
Work") in the Premises in Landlord's standard manner. Landlord shall
deliver to Tenant on or before the earlier of (i) October 1, 1988, and (ii)
three (3) months before the anticipated Building Construction Commencement
Date a list of final unit prices, for all items of Building Standard Work
showing the cost per unit for such items. Landlord agrees that the unit
prices for the standard quantities of Building Standard Work shall not
exceed, in the aggregate, Fifteen ($15.00) Dollars per RSF. All work done
pursuant to Paragraph 2B shall be at Landlord's cost to the extent of the
sum of (i) $581,700 plus (ii) Twenty-five ($25.00) Dollars per RSF for the
Premises (the sum of (i) and (ii) is hereinafter referred to as
"Allowance"), and at Tenant's sole cost and expense to the extent of the
cost of such work exceeds the Allowance; the aggregate investment tax
credit, if any, attributable to all such work shall be divided between
Landlord and Tenant in the proportion in which each bears the cost of all
such work. All such cost calculations shall be based on the RSF actually
included in the Premises on the Commencement Date (as hereinafter defined).
Any portion of the Allowance not applied to defray the cost of such
additional work shall, at Tenant's option, either (i) be applied in payment
of the first Rent payable hereunder, or (ii) paid to Tenant in cash on the
Possession Date (as defined in Paragraph 3A hereof.)
5. Paragraph 4A of the Lease is hereby deleted, and the following inserted
in lieu thereof:
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"A. "Base Rent"
(i) "Original Base Rent". For the Original Premises, the sum equal
to the number of RSF within the Original Premises times $21.00 per RSF for
each twelve month period during the Term of this Lease ("Original Annual
Base Rent"). Such original Annual Base Rent shall be paid in monthly
installments of one-twelfth (1/12) of the then-current original Annual Base
Rent in advance on or before the first day of each and every month during
the Term ("Original Monthly Base Rent"), as the Original Annual Base Rent
or Original Monthly Base Rent may be adjusted pursuant to Paragraph 5 of
this Lease.
(ii) "Additional Base Rent". For the Additional Premises, the sum
equal to the number of RSF within the Additional Premises times (A) $18.50
per RSF for the first (1st) through the fifth (5th) Lease Years (as defined
in Section 5A) during the Term, (B) $22.50 per RSF for the sixth (6th)
through tenth (10th) Lease Years during the Term, and (C) $25.50 per RSF
for the eleventh (11th) through fifteenth (15th) Lease Years during the
Term ("Additional Annual Base Rent"). Such additional Annual Base Rent
shall be paid in monthly installments of one-twelfth (1/12) of the then
current Additional Annual Base Rent in advance on or before the first day
of each and every month during the Term ("Additional Monthly Base Rent"),
as the Additional Annual Base Rent or Additional Monthly Base Rent or may
be adjusted pursuant to Paragraph 5 of this Lease;
(iii) Original Annual Base Rent and Additional Annual Base Rent are
sometimes collectively referred to herein as "Annual Base Rent"; Original
Monthly Base Rent and Additional Monthly Base Rent are sometimes
collectively referred to herein as "Monthly Base Rent"."
6. Paragraph 5B of the Lease is hereby deleted and the following inserted
in lieu thereof:
"B. Rent Adjustments. The Annual Base Rent for each and every Lease Year
during the term of this Lease (the "Subject Lease Year") shall be adjusted
(subject to the limitations hereinafter set forth) by an amount equal to
the following (the "Rent Adjustment"):
(i) For the Base Year (and first full Lease Year if the Base Year
commences subsequent to July 1 of such year), an amount equal to the lesser
of (a) the product of thirty percent (30%) of the Base Rent paid during the
Base Year multiplied by the percentage change (positive or negative) of the
CPI for the month in which the Term of this lease
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commences over the CPI for the month in which this Lease was executed, and
(b) $1.00 per RSF; and
(ii) For each Lease Year thereafter, an amount equal to the product of
thirty percent (30%) of the Annual Base Rent plus the sum determined by
subparagraph B(i) above multiplied by the percentage change (positive or
negative) of the CPI for January of the Subject Lease Year over the CPI for
the first full month of the Base Year; provided, however, that for any
Lease Year the amount of the annual Rent Adjustment made by reason of
changes in the CPI shall not exceed three percent (3%) of the adjusted
Annual Base Rent for the immediately preceding Lease Year. The limitation
set forth in the immediately preceding sentence shall not affect
adjustments to Rent attributable to causes other than changes in the CPI."
7. Paragraph 16 of the Lease is hereby deleted, and the following inserted
in lieu thereof:
"16. ASSIGNMENT AND SUBLETTING. Tenant may assign or transfer this Lease or
any interest under it, and may sublet the Premises or any part thereof to
(i) an entity controlling, controlled by or under common control with
Tenant or to any successor to Tenant by merger or acquisition (any such
entity or successor being sometimes hereafter referred to as an "affiliate"
of Tenant); or (ii) any financially responsible party approved by Landlord,
(which approval shall not be unreasonably withheld, denied or delayed)
whose stated use of the Premises will not result in a breach of an
exclusive use provision for space in the Building theretofore granted by
Landlord (subject to Landlord's written right to recapture as hereafter set
forth). Not less than thirty (30) days prior to the proposed commencement
of such assignment or sublease to a party other than an affiliate of
Tenant, Tenant shall give Landlord written notice of the proposed
assignment or sublease which notice shall contain the name of the proposed
assignee or sublessee and proposed principal terms thereof and shall be
accompanied by the last available financial statement of such proposed
assignee of sublessee. Within ten (10) days of Landlord's receipt of such
written notice and financial statement Landlord shall approve or disapprove
of the proposed assignee or sublessee, or if such proposed transfer is (i)
a sublease to other than an affiliate (A) for more than three (3) floors of
the Premises, and (B) for longer than either five (5) years or seventy-five
(75%) percent of the remainder of the Term, whichever is less, or during
the first three (3) years of the Term, or (ii) an assignment to other than
an affiliate, Landlord may terminate this Lease as to such proposed
subleased space in the case of a proposed sublease, or all of the Premises
in
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the case of a proposed assignment. If Landlord does not terminate as
aforesaid, Landlord may withhold its consent to such proposed assignee or
sublessee only for reasonable reasons related to the financial
responsibility of the proposed party but such disapproval may not be given
because (a) vacant space exists in the Building, (b) such proposed assignee
or sublessee is a tenant in the Building or has discussed tenancy in the
Building or any other building with the Landlord, or (c) the price or
rental rate of the proposed assignment or sublease. Failure of Landlord to
respond within such ten (10) day period shall constitute Landlord's
approval of such proposed assignee or sublessee. Upon the assignment of all
of Tenant's interest in this Lease to an assignee wherein the Rent to be
paid by the assignee equals, or exceeds the Rent payable under this Lease,
which assignment is approved by Landlord as aforesaid (including an
assignment to an affiliate, if such an affiliate is approved by Landlord,
although Tenant is not required to obtain approval of an assignment to an
affiliate [but if Tenant elects not to, it shall not be relieved of its
obligations under this Lease]), and delivery of a written assumption of
this Lease and the obligations hereunder by such assignee, Tenant shall be
relieved of all further obligations under this Lease except the obligation
to pay to the Landlord excess rent as provided in the next paragraph.
If Tenant shall assign or transfer its interest in this Lease or sublet the
Premises pursuant to this Section 16, then Tenant shall pay to Landlord as
additional rent immediately upon receipt under any such assignment or in
the case of a sublease on the first day of each month during the term of
any such sublease, one-half (1/2) of the excess of all rent over the sum of
(x) Base Rent plus Rent Adjustment then payable to Landlord under this
Lease for said month (or if only a portion of the Premises is being sublet,
the portion of the Base Rent plus Rent Adjustment then payable to Landlord
under this Lease for said month which is allocable on a square foot basis
to the space sublet) plus (y) an amount equal to the quotient of "Tenant's
Costs" as hereinafter defined incurred by Tenant in connection with said
sublease divided by the number of months in the term of such sublease. As
used in the preceding sentence, Tenant's Costs for such assignment or
sublease shall include the unamortized amount of improvements made at
Tenant's expense, alterations to the Premises in connection with such
assignment or sublease made at Tenant's expense, and leasing commissions,
rent concessions, advertising cost, and legal expenses in connection with
such assignment or sublease."
8. Paragraph 27 is hereby deleted and the following inserted in lieu
thereof:
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"27. PARKING. Landlord represents to Tenant that the Building will include
approximately 56 parking spaces located in the Building's underground
garage. Tenant shall have the right to lease for the full term Tenant's
Proportionate Share of such parking spaces (which share shall be not less
than 12 spaces), at regular annual Building rates therefor, and in
locations designated by Landlord, such right to remain exercisable until
the Commencement Date, and to include the right to sublease to any
sublessee of space in the Premises or to employees or partners of such
sublessees or of Tenant. In addition, Tenant shall be entitled, at regular
annual Building rates therefor, to any parking spaces which were rented by
the immediately preceding tenants in space added to the Premises after the
Commencement Date. Tenant may give up such parking spaces, or any thereof,
so leased at any time(s) on not less than sixty (60) days' notice and shall
not have any rights for the number of spaces so given up at any time
thereafter. Notwithstanding the immediately preceding sentence, Tenant
shall have the right to sublease any parking spaces leased hereunder to
parties (including, but not limited to, car rental entities) selected by
Tenant, provided that (i) the rent charged for any parking spaces so
subleased is less than or equal to the rent charged Tenant by Landlord
therefor, and (ii) the use of the subleased parking spaces by the
sublessees thereof does not interfere with Landlord's operation of the
garage or use of the garage by other parking lessees."
9. Paragraphs 30A and 30B of the Lease are hereby deleted and the
following inserted in lieu thereof:
"A. Landlord hereby grants to Tenant the option to lease three additional
floors contiguous to the Premises designated by Landlord and located in the
Low-rise Section or Lower Mid-rise Section of the Building (as defined in
Sections 1F and 1G of this Lease) (the "6th Year Option Floors"). Tenant
may lease any or all of the 6th Year Option Floors commencing at some point
during the 6th Lease Year as determined by Landlord.
B. Landlord hereby grants to Tenant the further option to lease an
additional three floors contiguous to the Premises designated by Landlord
and located in the Low-rise Section or Lower Mid-rise Section of the
Building (as defined in Sections 1F and 1G of this Lease) ("11th Year
Option Floors"), which Option may be exercised whether or not Tenant has
taken any, all or none of the 6th Year Option Floors. Tenant may lease any
or all of the 11th Year Option Floors commencing at some point during the
11th Lease Year as determined by Landlord."
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10. The first sentence of Paragraph 30F of the Lease is hereby deleted
and the following inserted in lieu thereof:
"F. The Annual Base Rent for any Option Floor shall be ninety-five (95%)
of the "Market Rent" for such Option Floor as of the Option Commencement
Date for such Option Floor, determined by Landlord in accordance with
subparagraph G of this Paragraph 30."
11. Paragraph 31A of the Lease is hereby deleted and the following
inserted in lieu thereof:
"A. Landlord hereby grants to Tenant the first right of refusal during the
term of this Lease to lease any vacant or vacated rentable space in the
low-rise Section of the Building (as defined in Section 1F hereof), or the
Lower Mid-rise Section of the Building (as defined in Section 1G hereof).
Landlord shall include in any Lease of space in the Low-rise Section of the
Building or the Lower Mid-rise Section of the Building (other than a Lease
to American International Group or any affiliate thereof or entity related
thereto) a provision to the effect that in the event the tenant thereunder
attempts to assign such Lease, or attempts to sublease substantially all of
the space demised thereby for a term of either five (5) years or seventy-
five (75%) percent of the remaining term of such lease, whichever is less,
Landlord may terminate such lease and recapture the space demised thereby.
Any space so recaptured by Landlord shall be subject to the provisions of
this Paragraph 31, and prior to declining to recapture such space, Landlord
will offer such space to Tenant in accordance with the provisions of this
Paragraph 31."
12. The first sentence of Paragraph 33C of the Lease is hereby deleted
and the following inserted in lieu thereof:
"C. The Annual Base Rent during each such extended term shall be 95% of
the "Market Rent" for such Option Floor as of the commencement of such
extended Term, determined by Landlord in accordance with subparagraph D of
this Paragraph 33.
13. Paragraph 38 of the Lease is hereby deleted and the following inserted
in lieu thereof:
"38. TENANT'S RIGHT TO CONSTRUCT BRIDGES. Landlord in constructing the
Building and Premises pursuant to Paragraph 2A of this Lease shall insure
that at least one floor of the Premises will be capable of being connected
to roughly the equivalent floor of Tenant's own building commonly known at
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇ ▇. ▇▇▇▇▇▇▇") by an enclosed
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pedestrian bridge whose slant and floor pitch will meet commonly accepted
standards for pedestrian traffic. Provided that (i) Tenant complies with
the provisions of Paragraph 8B of the Lease (except for Landlord's consent
to construction of a bridge, which consent is hereby given provided Tenant
complies with the provisions of this ▇▇▇▇▇▇▇▇▇ ▇▇, (▇▇) the design of each
such bridge is formulated in consultation with the Building engineer and
the Building architect, (iii) the structural integrity of each such bridge
is approved by the Building engineer (which approval shall not be
reasonably withheld), and (iv) the aesthetics of each such bridge are
approved by the Building architect (which approval shall not be
unreasonably withheld), who may not specify glass as being aesthetically
required, Tenant shall have the right to construct at its cost one or more
fully enclosed pedestrian bridges between a floor in the Premises and an
equivalent floor at 50 ▇. ▇▇▇▇▇▇▇. Tenant shall be responsible for
installing all necessary Building systems in the bridges and for heating,
cooling, insuring and maintaining the bridges and providing all necessary
security. Landlord shall cooperate with Tenant in obtaining the necessary
municipal and governmental permits, licenses and consents that may be
required in connection with construction of said bridges. The bridge space
shall not be included in Rentable Area for any purpose under the Lease. At
the end of the Lease term by lapse of time or otherwise, Tenant shall at
its sole expense remove each bridge in its entirety and repair the floor in
the Premises to which it was connected so that it is fully enclosed in like
manner to the other floors. In addition to the construction allowance
granted to Tenant pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇ hereof, Landlord shall provide
Tenant an additional construction allowance of $125,000 to be applied in
reduction of the cost to Tenant of constructing one or more bridges
pursuant to this Section 38."
14. The following paragraph is hereby inserted in the Lease as Section 40:
"40. ADDITIONAL WORK TO BE PERFORMED BY LANDLORD.
A. Cafeteria. Landlord and Tenant acknowledge that Tenant may elect to
construct a cafeteria in the Premises for use by Tenant's employees and
invitees. Notwithstanding the provisions of Section 9M hereof, Landlord
shall not grant to any other lessee of space in the Building, or enter into
any other contract granting, an exclusive right to dispense food or
provide food service to the Building which limits or impairs in any way the
right of Tenant to operate a cafeteria or similar food service facilities
for its employees and invitees. Not less than four (4) months prior to the
Construction Commencement Date, Tenant shall
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designate one floor of the Premises which Tenant is considering using as a
cafeteria by written notice to Landlord, and shall specify in such notice
(i) the proposed size of the cafeteria, and (ii) the maximum number of
persons who will be permitted to occupy the cafeteria at any time. Landlord
and Tenant acknowledge that as a result of Tenant's election to construct a
cafeteria, Landlord may have to make certain modifications to its Base
Building plans and specifications to accommodate Tenant's cafeteria use of
a portion of the Premises, including provision for such items as one or
more additional exit stairways down from the floor on which the cafeteria
is located. The area of any floor space (whether within or outside of the
Premises) within the Building which is rendered unusable by reason of the
use of a portion of the Premises as a cafeteria, including the floor area
occupied by any additional exit stairways required to be constructed in
connection with such cafeteria, shall be included in the RSF of the
Premises. Landlord shall, at its expense, install a black iron duct with
dimensions of not less than two (2) feet by four (4) feet serving the floor
designated by Tenant, which Tenant shall be permitted to use in connection
with the operation of a cafeteria in the Premises. Except as expressly
provided in the immediately preceding sentence, any and all costs and
expenses associated with the installation of a cafeteria in the Premises,
including without limitation (i) changes or modifications to plans for the
Building previously prepared for Landlord, or (ii) increases in the cost of
constructing the Building occasioned by the use of a portion of the
Premises as a cafeteria (whether or not included in the direct cost of the
installation of the cafeteria), shall be deducted from the Allowance
granted Tenant pursuant to Section 2B hereof or paid by Tenant as provided
in Section 2E hereof."
B. Humidification. Landlord shall install a humidification system in the
Building serving the Premises (including, without limiting the generality
of the foregoing, the 6th year option floors, the 11th year option floors
and the right of first refusal floors described in Paragraph 31 hereof)
capable of maintaining a relative humidity level in the Premises of thirty
percent (30%). The cost of installing such a humidification system for the
Premises (or, if Landlord elects to install such a system serving the
entire Building, the pro rata share of the cost of such a system allocable
to the Premises) shall be deducted from the Allowance granted Tenant
pursuant to Section 2B hereof or paid by Tenant as provided in Section 2E
hereof.
C. Sprinkler Heads. Sprinkler heads, in the quantity provided for in the
description of Building Standard Work
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attached hereto as Exhibit C, shall be positioned within the Premises as
provided in the Plans as part of the Building Standard Work; provided,
however, that the cost of any additional sprinkler heads required by the
Plans or by applicable law in excess of the building standard quantity
shall be deducted from the Allowance granted Tenant pursuant to Section 2B
hereof or paid by Tenant as provided in Section 2E hereof.
D. Underfloor Duct System. Landlord shall install an underfloor duct
system (the "Duct System") throughout the Premises, including, without
limiting the generality of the foregoing, the 6th year option floors, the
11th year option floors and the right of first refusal floors described in
Paragraph 31 hereof. The design of the Duct System and the plans and
specifications therefor shall be submitted to Tenant for its approval in
accordance with the Schedule. Tenant shall have the right to approve the
subcontractors for, and to require competitive bids for, the installation
of the Duct System in accordance with the provisions of Section 2F hereof.
The first Two Hundred Fifty Thousand Dollars ($250,000) of costs and
expenses associated with the design and installation of the Duct System,
including without limitation (i) the cost of preparing additional plans or
making changes or modifications to plans for the Building previously
prepared for Landlord required for the Duct System, or (ii) increases in
the cost of constructing the Building occasioned by the installation of the
Duct System but not included in the bids for the installation of the Duct
System such as structural changes or additional fireproofing work, shall be
borne and paid by Landlord; the balance of such costs and expenses
associated with the design and installation of the Duct System shall be
deducted from the Allowance granted Tenant pursuant to Section 2B hereof or
paid by Tenant as provided in Section 2E hereof. In the event this Lease is
terminated pursuant to Section 17 hereof, that portion of the cost of the
Duct System so deducted from the Allowance or paid by Tenant shall be
included in the Tenant Casualty Amount. Alterations to that portion of the
interior electrical system for the Premises installed in the Duct System
which do not affect the ceilings, the HVAC system, or any other system
servicing the Premises or any other portion of the Building, shall not
require the consent of Landlord hereunder. The wiring installed in the Duct
System shall, for purposes of Section 15C of the Lease, be deemed to be
equipment of Tenant that Landlord and Tenant have agreed may be removed
from the Premises by Tenant upon the termination of this Lease.
E. Secured Vertical Shaft. Landlord will install, for the exclusive use
of Tenant, a secured vertical shaft with dimensions of not less than
eighteen (18) inches by twenty-
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four (24) inches accessible from each floor in the Low-Rise Section and the
Lower Mid-Rise Section of the Building. The location of such vertical shaft
shall be agreed upon by Landlord and Tenant as provided in the Schedule.
The area of any floor space (whether within or outside of the Premises)
within the Building which is rendered unusable by reason of the
installation of such vertical shaft shall be included in the RSF of the
Premises. All costs and expenses associated with the design and
installation of such vertical shaft, including without limitation (i)
changes or modifications to plans for the Building previously prepared for
Landlord, or (ii) increases in the cost of constructing the Building
occasioned by the installation of the vertical shaft but not included in
the direct cost of the installation of the vertical shaft, shall be
deducted from the Allowance granted Tenant pursuant to Section 2B hereof or
paid by Tenant as provided in Section 2E hereof."
15. The following paragraph is hereby inserted in the Lease as Section 41:
"41. TENANT CONCESSION ACCOUNT. Upon the opening of the construction loan
for the Building, Landlord shall establish a non-interest bearing account
with The Northern Trust Company, or such other bank as may be designated by
Tenant, and shall deposit the sum of Three Million Dollars ($3,000,000)
therein. The funds held in such account shall be used to pay any and all
expenses and obligations of Tenant (including without limitation rent
payments) under that certain Lease dated November 27, 1987 by and between
▇▇▇▇▇▇ Trust and Savings Bank Trust No. 40649, as Landlord, and Tenant, as
tenant. Landlord shall cause any such expenses to be promptly paid from
such account upon the submission to Landlord by Tenant of a statement,
invoice or other written request of Tenant that such payment be made;
provided, however, that nothing in this Paragraph 41 shall be deemed or
construed as the assumption by Landlord of the obligations of Tenant as
tenant under the Lease described in this Section 41."
16. The following paragraph is hereby inserted in the Lease as Section 42:
"42. CONSTRUCTION SUPERVISION SERVICES.
A. Landlord and Tenant acknowledge that prior to and during the
construction of the Premises, Landlord will provide Tenant with certain
construction supervision services including review and approval of the
Plans and supervision of the construction of the Premises and the
installation of the tenant improvements for the Premises; in the event
that, after completion of the Premises, Tenant
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determines to make alterations or additions to the Premises as provided in
Section 8B hereof, Landlord shall also provide construction supervision
services in connection with such alterations or additions.
B. Prior to the issuance of the building permit for the construction of the
Premises, such construction supervision services shall be performed by
Landlord and its employees and representatives at no cost to Tenant. After
the issuance of the building permit for the Premises, Landlord shall charge
Tenant a reasonable fee for such construction supervision services;
provided, however, that the total fees payable to Landlord by Tenant for
such construction supervision services shall not exceed one and one-half
percent (1 1/2%) of the cost of construction of the Premises and the
installation of the tenant improvements therein. In the event that an
affiliate of Landlord shall act as the general contractor for the
construction of the Premises, the fee for construction supervision services
payable pursuant to this Section 42B shall be in addition to, and not in
lieu of, the fee payable to such general contractor.
C. In the event that, after the completion of the Premises, Tenant
determines to make alterations or additions to the Premises as provided in
Section 8B, Landlord shall charge Tenant a reasonable fee for construction
supervision services associated with such alterations or additions;
provided, however, that the total fees payable to Landlord by Tenant for
such construction supervision services shall not exceed fifteen percent
(15%) of the cost of construction of such alterations or additions. In the
event that an affiliate of Landlord shall act as the general contractor for
such alterations or additions, the fee for construction supervision
services payable pursuant to this Section 42C shall be in addition to, and
not in lieu of, the fee payable to such general contractor. In addition, if
at any time Tenant requests additional or special services such as
cleaning, after hours air conditioning, or the like, Landlord's fee for
furnishing these services shall not exceed 15% of the cost of furnishing
such services."
17. The following paragraph is hereby inserted in the Lease as Paragraph
43:
"43. RIGHT OF FIRST OFFER UPON SALE OF THE BUILDING.
A. Unsolicited Offer from Third Party.
(i) In the event Landlord shall receive (other than pursuant to
Subparagraph 43C) an offer from a third party to purchase the Building and
Land (hereinafter in this Paragraph 43 jointly referred to as "Real
Estate") which
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Landlord desires to accept ("Third Party Offer"), Landlord shall by written
notice to Tenant (accompanied by a true, correct and complete copy of the
Third Party Offer) offer the same Real Estate for sale to Tenant ("Tenant
Offer") for the same price, on the same terms and subject to the same
conditions as is set forth in the third Party Offer.
(ii) Tenant shall have a period of fifteen (15) days after delivery of
the Tenant Offer in which to deliver to Landlord a written notice of
Tenant's election to purchase the Real Estate for the purchase price, on
the terms and subject to the conditions set forth in the Tenant Offer;
provided, however, if within said 15-day period, Tenant delivers to
Landlord written approval by Tenant's management committee, subject to
appraisal and board approval, that Tenant will elect to purchase the Real
Estate for the purchase price and on the terms and conditions set forth in
the Tenant Offer, such 15-day period shall be extended by an additional
period of fifteen (15) days. During said 15-day or 30-day period, as the
case may be, Landlord shall not accept the Third Party Offer unless its
acceptance shall be expressly subject to the rights of Tenant under this
Paragraph 43A. If Tenant elects to accept the Tenant Offer, it shall submit
to Landlord within said 15-day or 30-day period, as the case may be, a
purchase and sale agreement executed by Tenant pursuant to which Tenant
shall agree to purchase the Real Estate for the price, upon the terms and
subject to the conditions provided in the Tenant Offer, which purchase and
sale agreement shall be accompanied by an ▇▇▇▇▇▇▇ money deposit if and to
the extent so provided in the Third Party Offer, whereupon Landlord shall
promptly execute and return to Tenant a counterpart of said purchase and
sale agreement.
(iii) If Tenant fails to deliver such notice of acceptance, executed
purchase agreement and ▇▇▇▇▇▇▇ money within said 15-day or 30-day period,
as the case may be, then, in such event, Tenant's rights under
Subparagraphs 43A and 43B shall terminate and be of no further force and
effect, and Landlord may sell the Real Estate in accordance with the Third
Party Offer and consummate a sale in accordance with the Third Party Offer
free of any rights of Tenant under this Paragraph 43; provided, however, if
Landlord fails to consummate a sale of the Real Estate before the later of
(a) the date set for closing in the Tenant Offer, or (b) six months after
the expiration and termination of Tenant's rights under this Subparagraph
43A, then, unless Landlord shall have complied with the procedure set forth
in ▇▇▇▇▇▇▇▇▇ ▇▇▇, in which event each of Landlord and Tenant shall have
only the rights set forth in said Paragraph 43B, Tenant's rights under this
Subparagraph 43A shall be reinvested.
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B. Offering of the Real Estate for Sale.
(i) In the event that, at any time during the term of this Lease,
Landlord intends to sell the Real Estate, Landlord shall deliver written notice
of its intention ("Notice of Intent") to Tenant in advance of any such offering.
Tenant shall have a period of thirty (30) days following delivery of the Notice
of Intent to Tenant within which to advise Landlord by written notice ("Notice
of Interest") that Tenant is interesting in negotiating with Landlord for the
purchase the Real Estate, and up to 60 days following delivery of the Notice of
Intent within which to execute a real estate purchase contract for the Real
Estate with Purchaser, and during said 60-day period: (a) Landlord shall refrain
from actively marketing the Real Estate for sale to a third party; (b) Landlord
shall furnish to Tenant such information as Tenant may reasonably request
relative to the Real Estate, including the status of title and a then current
operating statement and rent roll, copies of all tenant leases and a preliminary
title report for the Real Estate; and (c) Landlord and Tenant shall attempt in
good faith to agree upon terms and conditions upon which Landlord shall sell and
Tenant shall purchase the Real Estate, and to memorialize such agreement in a
real estate sale contract for the Real Estate.
(ii) If (a) Tenant fails to deliver the Notice of Interest within
thirty (30) days following delivery of the Notice of Intent, or (b) Landlord and
Tenant are unable to agree for any reason upon the terms upon which Landlord
shall sell and Tenant shall purchase the Real Estate within sixty (60) days
following delivery of the Notice of Intent, or (c) Landlord and Tenant are
unable to agree for any reason upon the terms of a real estate sale contract for
the Real Estate within sixty (60) days following delivery of the Notice of
Intent, or (d) Tenant fails to execute and deliver the negotiated real estate
sale contract for the Real Estate, together with the ▇▇▇▇▇▇▇ money required
thereunder, within sixty (60) days following delivery of the Notice of Intent,
Landlord may within one hundred eighty (180) days thereafter offer the Real
Estate for sale in accordance with subparagraph (iii) below. If Landlord fails
to offer the Real Estate for sale in accordance with subparagraph 3 below within
such 180-day period then, subject to Paragraph 43A, Tenant's rights under this
Paragraph 43B shall be reinstated.
(iii) Prior to offering to sell the Real Estate to a third party, Landlord
shall advise Tenant of the price and the other terms and conditions upon which
Landlord intends to offer the Real Estate for sale ("Offered Terms") by
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delivery to Tenant of a real estate sale contract for the Real Estate
setting forth Offered Terms, whereupon Tenant may elect, within three (3)
days after receipt of such notice from Landlord, to purchase the Building
upon the Offered Terms by executing and delivering to Landlord such real
estate sale contract containing the Offered Terms, together with the
▇▇▇▇▇▇▇ money required thereunder. If Tenant shall fail to timely elect to
purchase the Building on the Offered Terms aforesaid, Tenant's rights under
Subparagraph 43A and Subparagraph 43B shall terminate and be of no further
force and effect and Landlord may offer the Real Estate for sale and
contract for and consummate a sale of the Real Estate (whether upon the
Offered Terms or otherwise) free of any rights of Tenant under this
Paragraph 43; provided, however, if Landlord fails to consummate a sale of
the Real Estate within twenty-four (24) months after the expiration and
termination of Tenant's rights under this Subparagraph 43B, then, subject
to Subparagraph 43A, Tenant's rights under this Subparagraph 43B shall be
reinstated.
C. The restrictions set forth in this Paragraph 43 shall not apply to a
proposed sale of the Real Estate to American International Group, or any
other joint venture partner in the ownership of the Building, or mortgage
of the Real Estate having a participating mortgage or similar right to
share in profits derived from the sale or refinancing of the Real Estate
(each such party being hereinafter referred to as a "Participant"), or any
entity controlled by, controlling or under common control with any
Participant, or to any sale or transfer between any of any Participant, ▇▇▇
▇▇▇▇▇▇ and J. ▇▇▇▇ ▇▇▇▇▇▇▇ or any affiliates thereof."
18. The following paragraph is hereby inserted in the Lease as Section 44:
"44. LEASING COMMISSIONS. Landlord and Tenant acknowledge that Scribcor,
Inc. ("Scribcor") has acted as an intermediary in connection with this
Lease and the lease of space in the Building from Landlord to Tenant
hereunder. Any and all leasing commissions payable to Scribcor on account
of the lease of the Original Premises from Landlord to Tenant shall be paid
by Landlord. The leasing commissions payable to Scribcor in connection with
the lease by Tenant of the Additional Premises total $581,700, as set forth
in a letter dated April 21, 1987, a copy of which is attached hereto as
Exhibit 1; Tenant hereby assumes any and all liability for the leasing
commissions payable to Scribcor on account of Tenant's lease of the
Additional Premises, and agrees to indemnify Landlord and hold Landlord
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harmless from and against any and all liability which may be asserted or
recovered against landlord by Scribcor for leasing commissions arising out
of Tenant's lease of the Additional Premises, including reasonable
attorneys fees."
19. Neither Tenant, nor Landlord and its beneficiaries shall issue any
press release or make any other public disclosure or announcement of the
transactions which are the subject of this Amendment without the prior
written consent of the other party hereto, which consent shall not be
unreasonably withheld or delayed; provided, however, that the foregoing
shall not be construed to limit or impair the rights of Landlord or its
beneficiary to disclose the transactions which are the subject of this
Amendment to prospective lenders, attorneys, accountants and other parties
consulted or retained by Landlord in connection with the development of the
Building.
20. As amended herein, the Lease shall remain in full force and effect
and, except as expressly amended herein, shall be unaffected hereby. In the
event of any conflict between the provisions of this Amendment and the
provisions of the Lease, the provisions of this Amendment shall control.
21. This Second Amendment to Agreement of Lease is executed by
American National Bank and Trust Company, not personally, but in the
exercise of the power and authority conferred upon and vested in it as
Trustee. It is expressly understood and agreed that nothing herein shall be
construed as creating any liability whatsoever against Trustee personally;
and in particular, without limiting the generality of the foregoing, there
shall be no personal liability to pay any indebtedness accruing hereunder
or to perform any covenant, either express or implied, herein contained, or
to keep, preserve, or sequester any property and all personal liability of
every sort, if any, is hereby expressly waived by said Tenant, and by every
person now or hereafter claiming any right or security hereunder; and that,
so far as the Trustee is concerned, the owner of any indebtedness or
liability accruing hereunder shall look solely to the assets of said
property and the proceeds thereof for the payment thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
LANDLORD: AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, not individ-
ually, but solely as Trustee under
Trust Agreement dated August 21,
1985 and known as Trust No. 65287
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President
Attest: /s/
--------------------------
Assistant Secretary
TENANT: THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President
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CONSENT TO AMENDMENT
The undersigned, Madison Plaza II Partnership, the sole beneficiary of
Landlord and a joint obligor with Landlord with respect to certain covenants
imposed upon Landlord pursuant to the Lease, and Mellon Bank, N.A., the
collateral assignee of the Lease, hereby consent to the foregoing Amendment.
MADISON PLAZA II PARTNERSHIP,
an Illinois general partnership
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, general partner
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
J. ▇▇▇▇ ▇▇▇▇▇▇▇, general partner
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
EXHIBIT ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
REGISTRATION AND COMMISSION AGREEMENT
April 21, 1987
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇, Jr.
Vice President
Scribcor, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Dick:
The following is our Registration and Commission Agreement with regard to the
Madison Plaza Three Building, Chicago, Illinois.
If your prospective tenant, The Northern Trust Co., registered by Scribcor, Inc.
consummates a lease for space in the Madison Plaza Three Building, through your
efforts, Madison Plaza Corporation will pay or cause the owner to pay a
brokerage commission at a rate of seven percent (7%) of the first year's rent
and two percent (2%) of the aggregate rent for the remainder of the lease term.
For purposes of this Agreement, the first year's rent shall be deemed to be the
average annual base rent payable over the entire term of the lease after
deductions of rent abatement if any, and any further concessions granted to the
tenant, and without regard to rental adjustment or rental escalation payments
for increases in operating expenses or real estate taxes.
One half of the commission shall be payable within 30 days from execution of the
lease document and start of building construction and the remainder payable 30
days after occupancy by the tenant.
This Agreement will be null and void and of no further force or effect in the
event any of the following does not occur:
1. The prospect is brought to the property or sales office for a personal
inspection by the registrant in the presence of the building leasing
agent.
2. That active and meaningful negotiations take place culminating in the
consummation of the lease.
April 21, 1987
Page Two
3. That the registrant is the procurring cause for said lease.
4. That the prospect agrees to recognize the registrant by indemnifying
Madison Plaza Corporation and the owner against any future commission,
claims or litigation as a result of the lease transaction.
5. Notwithstanding the above, if another licensed broker or duly
authorized individual is properly designated by the prospect to
represent them, and said party claims or is entitled to a commission,
Madison Plaza Corporation will recognize only that licensed broker or
duly authorized individual having a letter or authorization signed by
the prospect.
If for any reason that tenant fails to occupy the premises, you agree to return
all commission monies paid at the time of lease execution.
No commission will be paid on options for additional space, unless said space is
taken prior to initial occupancy by the tenant, nor will commissions be paid on
lease renewals.
No commission will be paid on charges factored into the rent, i.e. electricity,
periods of free rent, or any above building standard allowances or concessions
amortized over the term of the lease to accommodate the tenant.
Commissions will only be paid for the initial term of the lease, and in no event
for a period longer than fifteen (15) years. In the event the tenant has an
option to terminate the lease, commissions will only be paid to the termination
date.
The commission which will become due and payable under this agreement covers
space to be leased by Northern Trust in addition to the space provided for in
the lease agreement dated August 21, 1985.
Your further act in submitting your prospect will acknowledge your acceptance of
our commission policy.
Sincerely
▇▇▇▇▇▇-▇▇▇▇▇▇▇ DEVELOPMENTS
/s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
J. ▇▇▇▇ ▇▇▇▇▇▇▇
President
JPB:▇▇▇
cc: ▇▇▇ ▇▇▇▇▇▇