EXHIBIT 10.3(a)
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE (this "Amendment") entered into in Chicago,
Illinois, as of the 19th day of March, 1998, by and between AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, not personally, but solely as Trustee under a
Trust Agreement dated May 2, 1989, and known as Trust No. 108237-06 ("Lessor"),
and PLAYBOY ENTERPRISES, INC., a Delaware corporation ("Lessee").
WITNESSETH:
A. LaSalle National Bank, not personally, but solely as Trustee under a
Trust Agreement dated December 21, 1987, and known as Trust No. 112912
("LaSalle"), and Lessee have heretofore entered into that certain Office Lease
dated as of April 7, 1988 (the "Original Lease"), whereby LaSalle leased to
Lessee certain premises (the "Original Premises") known as Suites 1500 and 1600,
consisting of 95,523.05 rentable square feet and comprising the entire 15th and
16th floors of the "Office Area" (as defined in the Original Lease) of that
certain building (the "Building") located at 000 Xxxxx Xxxx Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx, for a lease term expiring on August 31, 2004.
X. XxXxxxx has heretofore assigned its interest under the Lease to
Lessor.
X. Xxxxxx and Lessee have heretofore entered into that certain Amendment
to Lease dated as of October 26, 1989 (the "First Amendment"), which amended
certain provisions of the Original Lease, including the leasing to Lessee of
certain additional space in the basement of the Building comprising 1,792 square
feet (the "Additional Premises"; the Original Premises and the Additional
Premises are collectively referred to herein as the "Existing Premises").
X. Xxxxxx and Lessee have heretofore entered into that certain Second
Amendment to Lease dated as of June 1, 1992 (the "Second Amendment"), which
clarified certain provisions of the Lease relating to Taxes (as defined in the
Lease) and Expenses (as defined in the Lease) payable by Lessee.
X. Xxxxxx and Lessee have heretofore entered into that certain Third
Amendment to Lease ("Third Amendment") dated as of August 30, 1993, which
granted to Lessee certain additional expansion rights in the Building and
amended certain other provisions contained in the Original Lease.
X. Xxxxxx and Lessee have heretofore entered into that certain Fourth
Amendment to Lease ("Fourth Amendment") dated as of August 6, 1996, which
extended the Term (as defined in the Lease), granted certain expansion rights in
the Building and amended certain other provisions contained in the Original
Lease and in the First and Third Amendments. The
Original Lease, the First Amendment, the Second Amendment, Third Amendment and
the Fourth Amendment are collectively referred to herein as the "Lease".
X. Xxxxxx and Lessee now desire to amend the Lease to expand the Premises
and amend certain other provisions contained in the Lease, all upon the terms
and provisions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as
follows:
1. Definitions. Each capitalized term used in this Amendment shall have
the same meaning as is ascribed to such capitalized term in the Lease, unless
otherwise provided for herein.
2. Expansion of Premises. Commencing on July 1, 1998 (the "Effective
Date") and expiring on the Expiration Date (as defined in Section 2 of the
Fourth Amendment) the Premises shall consist of the Existing Premises and an
additional Thirty-Two Thousand One Hundred Forty (32,140) rentable square feet
on the fourteenth (14th) floor (Suite 1400) of the Building as shown on Exhibit
A attached hereto and incorporated herein (such additional space being referred
to herein as the "Second Additional Premises").
3. Second Additional Premises Base Rent. Commencing on the Effective
Date, Lessee shall pay monthly Base Rent for the Second Additional Premises on
the first day of each calendar month during the Term hereof in accordance with
Section 1 of the Lease in accordance with the following schedule:
===============================================================================
PERIOD ANNUAL MONTHLY
------ ------ -------
BASE RENT BASE RENT
--------- ---------
-------------------------------------------------------------------------------
7/1/98 - 8/31/98 $357,718.20 $29,809.85
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9/1/98 - 8/31/99 $364,788.96 $30,399.08
-------------------------------------------------------------------------------
9/1/99 - 8/31/00 $409,785.00 $34,148.75
-------------------------------------------------------------------------------
9/1/00 - 8/31/01 $418,141.44 $34,845.12
-------------------------------------------------------------------------------
9/1/01 - 8/31/02 $426,497.76 $35,541.48
-------------------------------------------------------------------------------
9/1/02 - 8/31/03 $434,854.20 $36,237.85
-------------------------------------------------------------------------------
9/1/03 - 8/31/04 $443,532.00 $36,961.00
-------------------------------------------------------------------------------
9/1/04 - 8/31/05 $452,531.16 $37,710.93
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9/1/05 - 8/31/06 $461,530.44 $38,460.87
===============================================================================
2
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9/1/06 - 8/31/07 $470,529.60 $39,210.80
===============================================================================
The foregoing base rent for the Second Additional Premises shall be deemed "Base
Rent" payable by Lessee under the Lease for all purposes under the Lease.
4. Second Additional Premises Rent Adjustments. From and after the
Effective Date, Lessee shall pay to Lessor Rent Adjustment for the Second
Additional Premises in accordance with Section 2 of the Lease, subject to the
following modifications:
(a) Rent Adjustment for the Second Additional Premises shall be
calculated and determined separate from Rent Adjustment for the Existing
Premises. Lessee's Proportionate Share with respect to the Second
Additional Premises shall be 7.69%.
(b) Rent Adjustment for the Existing Premises shall continue to be
determined in accordance with the Lease without regard to the terms of this
Section 4. Solely for the purposes of determining Rent Adjustment for the
Second Additional Premises, the definition of Expenses and Taxes set forth
in Sections 2.A(iv) and 2.A(v), respectively, of the Lease are hereby
amended and restated in their entirety as follows:
"(iv) "Expenses" shall mean and include (a) those expenses paid
or incurred by or on behalf of the Lessor for operating, maintaining,
and repairing the Office Area and the personal property used in
conjunction therewith (said Office Area and personalty being herein
collectively called the "Office Facility" and (b) those expenses
incurred for the benefit of the Office Area and other portions of the
Building to the extent the burden of such Expenses is allocated to the
Office Area by Lessor, in its reasonable discretion, after excluding
all expenses allocable to the residential and private garage
condominium associations pursuant to the 000 Xxxxx Xxxx Xxxxx Xxxxx
Operating Agreement and Supplemental Declaration of Easement dated as
of January 1, 1993, as amended or replaced from time to time. Such
Expenses include, without limitation, the cost of operating,
maintaining and repairing systems providing heating and air
conditioning, electricity, steam, water, fuel, gas, lighting, window
cleaning, janitorial service and security, and operating, maintaining
and repairing the "common areas" of the first floor and basement of
the Building, as designated on Exhibit B attached to the Fifth
Amendment, elevators designated on Exhibit B attached to the Fifth
Amendment, exterior of the Building, sidewalks contiguous to the
Building and landscaping of the Building, fire protection life safety
system servicing the Building, insurance (including, but not limited
to, fire, extended coverage, liability, worker's compensation,
elevator, or any other insurance carried by the Lessor and applicable
to the Office Facility), painting, uniforms, customary management fees
applicable to the Office Area, supplies, sundries, sales or use taxes
on supplies or services, cost of wages and salaries of all
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persons engaged in the operation, maintenance and repair of the Office
Facility, 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 expenses which Lessor pays or incurs to provide benefits for
employees so engaged in the operation, maintenance, and repair of the
Office Facility), costs of capital improvements, amortized over the
useful life of such improvements, provided such capital improvements
are required by any government authority with jurisdiction over the
Premises, or which capital improvements are made for the purpose of
decreasing the Expenses of the Office Area, the charges of any
independent contractor who, under contract with the Lessor or its
representatives, does any of the work of operating, maintaining, or
repairing the Office Facility, reasonable legal and accounting
expenses limited to those incurred in connection with seeking or
obtaining reduction in or refunds of real estate taxes, maintenance
and operation of the Office Area, and preparation of annual audited
financial statements for the Building, or any other expense or charge,
whether or not hereinbefore mentioned, which in accordance with
generally accepted accounting and management principles would be
considered an expenses of operating, maintaining, or repairing the
Office Facility.
Any language in this Lease to the contrary notwithstanding,
Expenses shall not include costs or other items included within the
meaning of the term "Taxes" (as hereinafter defined); costs of
alterations of the premises of tenants of the Office Area; costs of
capital improvements to the Office Area not described in subparagraph
(A)(iv) of this Section 2; depreciation charges; interest and
principal payments on mortgages; ground rental payments; real estate
brokerage and leasing commissions; expenses incident to ownership of
the Building, such as land trustee fees, corporate franchise tax, or
legal and accounting fees related solely to the management of any
ownership entity, including key employee and disability insurance
premiums, any expense for which Lessor has been reimbursed from the
proceeds of insurance maintained in an amount and type which a
reasonably prudent owner of a comparable building located in Xxxx
County would maintain; any cost of repair or replacement necessitated
by the exercise of eminent domain for which Lessor has been reimbursed
from the award in such eminent domain proceeding; advertising and
promotional expenditures; legal and accounting fees; except as set
forth in subparagraph A(iv) herein of this Section 2; the cost of
special services rendered to any other tenant, if such services are
not generally available to tenants of the Building; fines and
penalties, unless caused by Lessee; cost of any repair necessitated by
the negligence of Lessor, its agents, servants or employees;
management fees in excess of a reasonable market management fee for
commercial space comparable to the Office Area; cost of payments
pursuant to any contract between Lessor and an entity which controls,
is controlled by or
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is under common control with Lessor in excess of payments under such a
contract in the absence of such relationship, provided that Lessee
agrees that the cost of electricity paid to Streeterville Utility
Company, its successor, or Lessor for the Office Area shall be
included in Expenses; any expenditures for which Lessor has been
reimbursed (other than pursuant to rent adjustment provisions in
leases); or any expenses not incurred in the ordinary course of
business by Lessor. If the Office Area is not a least 90% occupied for
all or any portion of an Adjustment Year, Lessor may elect to adjust
the Expenses for such Adjustment Year, using sound accounting
practices, to estimate the amount of Expenses which would have been
incurred had the Office Area been 90% occupied, provided that only
those Expenses which vary by occupancy shall be so adjusted. At the
date hereof, the Expenses which vary by occupancy of the Office Area
are contract cleaning expenses, heating and ventilation expenses,
chilled water and air conditioning expenses, elevator contract
expenses, scavenger trash removal expenses, water and gas expenses
(for hot water heaters in Office Area restrooms). The amount as so
adjusted shall be deemed the actual amount of Expenses for such
Adjustment Year. Regardless of the formulae, Lessor shall not collect
from Lessee the cost of any Expense which has been fully reimbursed to
Lessor by one or more other tenants of the Building. If any Office
Area expense, though paid in one year, relates to more than one
calendar year, at the reasonably exercised discretion of Lessor, such
expenses may be proportionately allocated among such related calendar
years, provided such allocations must be made if required by generally
accepted accounting principles and, if applicable, based on the
reasonably estimated useful life of each improvement.
(v) "Taxes" shall mean real estate taxes, assessments, sewer
rents, rates, and charges, transit taxes, taxes based upon the receipt
of rent, and any other federal, state or local government charge,
general, special, ordinary or extraordinary (but not including income
or franchise taxes or any other taxes imposed upon or measured by the
Lessor's income or profits, unless the same shall be imposed in lieu
of real estate taxes and other ad valorem taxes, provided that such
substituted taxes are based in whole or in part upon the Building or
the rents or other income therefrom, but only to the extent such taxes
would be payable if the Building were the only property of Lessor and
the income from the Building were the only income of Lessor) which may
now or thereafter be levied or assessed against: (a) the Office
Facility (to the extent of 100% of such taxes, charges, and expenses);
(b) Lot 1 ("Lot 1") of the aforementioned Paul's Subdivision (but only
to the extent of the percentage of such taxes, charges, and expenses
allocated to the Office Facility by Lessor in its reasonable
discretion); and (c) such other portions of the Building as serve or
benefit the Office Area which have been or will be assigned a tax
parcel number and upon which taxes could be levied and assessed (e.g.,
elevator shafts or air shafts) to such an extent as Lessor, in its
reasonably exercised discretion, deems to be equitable and fair
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in view of the relative levels of benefit to each of the portions of
the Building, provided that Lessor is obligated to pay such taxes. In
the event any Taxes shall not be separate assessed or charged against
the foregoing, such Taxes shall be allocated based upon the records of
the assessor or other governmental agency imposing such charges, or in
the event such records shall not exist, such allocation shall be made
on a pro rata square footage basis. In case of special taxes or
assessments which may be payable in installments, only the amount of
each installment paid during a calendar year shall be included in
Taxes for that year. Taxes shall be allocated for purposes of this
provision on a year-of-payment basis. Taxes shall also include any
personal property taxes (attributable to the calendar year in which
paid) imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems, and appurtenances used in connection with the
Office Facility or the operation thereof."
5. Conditions of Second Additional Premises. Simultaneously with the
execution and delivery of this Amendment by both Lessor and Lessee, Lessor shall
deliver possession of the Second Additional Premises to Lessee in broom clean
condition. Lessee shall accept the Second Additional Premises on such date in
their "as is", "where is" physical condition, and Lessee acknowledges that no
promise of Lessor to alter, remodel, improve, repair or decorate the Second
Additional Premises or any part thereof or any portion of the Building has been
made, except, however Lessor shall provide to Lessee Lessor's Contribution as
provided in Exhibit C attached hereto (the "Workletter") and Lessor acknowledges
that Lessee will be constructing certain improvements in the Second Additional
Premises in accordance with said Workletter.
6. Return of Premises. As more fully provided in the Workletter, Lessee
intends on installing a stairway between the 14th floor and the 15th floor of
the Premises. Notwithstanding anything contained in Section 9 or elsewhere in
the Lease to the contrary and without limiting the Lessee's other obligations
set forth in the Lease, prior to the expiration or earlier termination of the
Lease, Lessee shall be responsible for demolishing said stairway and restoring
the floor slab between the 14th and 15 floor of the Building in a manner
satisfactory to Lessor, all at Lessee's sole cost and expense.
7. 14th Floor Expansion Rights. Sections 4 and 7 of the Fourth Amendment
are hereby deleted in their entirety. Notwithstanding such deletion, Section 2
of the Third Amendment, which was deleted by Section 4 of the Fourth Amendment,
remains deleted in its entirety from the Lease. With respect to the right of
first refusal granted to Tenant under Section 5 of the Fourth Amendment, Lessee
acknowledges that the Second Additional Premises incorporates a portion of the
Primary ROFR Space (as defined and depicted in the Fourth Amendment).
Accordingly, that portion of the Primary ROFR Space which is included within the
Second Additional Premises is hereby deleted from the definition of Primarily
ROFR Space and no longer subject to the rights of Lessee under Section 5 of the
Fourth Amendment. With respect to the right of first refusal granted to Lessee
under Sections 5 and 6 of the Fourth
6
Amendment (which pertain to the Primary ROFR Space and Secondary ROFR Space,
respectively), Lessee acknowledges that such rights are subject and subordinate
to any renewals, extensions or expansions of or into such space by (a) the
existing tenant of a portion of such space identified on Exhibit A attached
hereto as Xxxxxxxx-Xxxxx-Cabrini Medical Center pursuant to written agreements
in affect as of the date hereof of (b) the existing tenants of portions of such
space identified on Exhibit A attached hereto as Xxxxx X. Xxxxxxxx, M.D. and
Souma Diagnostics, regardless of whether those two existing tenants have written
agreements or not for such renewals, extensions or expansions. Except as
modified above, Lessee retains its expansion rights with respect to the Primary
ROFR Space and Secondary ROFR Space as provided under Section 5 and 6 of the
Fourth Amendment.
8. After Hours Heating, Ventilating and Air Conditioning Services for the
Second Additional Premises. Lessee desires additional heating, ventilating and
air conditioning ("HVAC") services for the Second Additional Premises. Lessor
agrees to provide such services in accordance with Section 6.A. of the Lease
8:00 a.m. to 8:00 p.m. Monday through Fridays and 8:00 a.m. to 6:00 p.m.
Saturdays, in either case holidays excepted ("Normal Second Additional Premises
HVAC Hours"). In order to provide such additional HVAC services to the Second
Additional Premises, it will be necessary to operate the air handlers serving
the 14th floor of the Building. Such air handler serving the 14th floor of the
Building are separately metered. In consideration of such extended hours, Lessee
agrees to pay Lessor, within ten (10) days after receipt of invoice for same
from Lessor, an amount equal to 18.3% of the cost of the operating such air
handlers for the 14th Floor, as determined by such separate meters. In
addition to the foregoing, Lessee shall pay to Lessor on the first day of each
month a charge of $51.00 per month for the additional maintenance incurred by
Lessor in connection with such additional HVAC services plus, during the cooling
season (i.e., April 1 through October 31 of each calendar year), a charge of
$263.60 per month for the additional condenser water consumed in connection with
such additional HVAC services (the foregoing charges are hereinafter
collectively referred to as the "Second Additional Premises HVAC Charges"). The
Second Additional Premises HVAC Charges are subject to an adjustment as provided
in Section 9 below. Lessee may request additional HVAC services for the Second
Additional Premises (that is in addition to the Normal Second Additional
Premises HVAC Hours) upon at least 24 hours notice. Lessee shall pay for such
additional after hours HVAC services at Landlord's Building standard rates.
Currently, the Building standard rate is $35.00 per hour. Lessee understands
that such rate is subject to periodic change by Lessor.
Lessee may elect, by prior written notice given to Landlord, to discontinue
such additional HVAC services for the Second Additional Premises (i.e., services
during the Normal Second Additional Premises HVAC Hours), in which event, Lessor
shall only be required to provide HVAC services for the Second Additional
Premises during the normal business hours set forth in Section 6.A. of the
Original Lease. Lessee shall pay any accrued charges under this Section 8 for
the additional HVAC services to the Second Additional Premises up to the
effective date of any such termination, but thereafter shall not be required to
pay the charges described in this Section 8.
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9. Second Additional Premises HVAC Charges CPI Adjustment.
A. Definitions. As used herein:
(i) "Base Month" shall mean January, 1998.
(ii) "Base Second Additional Premises HVAC Charges" shall mean
$51.00 per month for the additional maintenance and $263.60 per month
for the additional condenser water.
(iii) "CPI" shall mean the Consumer Price Index for All Urban
Consumers (CPI-U) published by the Bureau of Labor Statistics of the
United States Department of Labor for Chicago-Xxxx-Lake County, IL-IN-
WI, All Items, (1982-84=100). If the manner in which the CPI is
determined by the Bureau of Labor Statistics shall be substantially
revised, including, without limitation, a change in the base index
year, an adjustment shall be made by Lessor in such revised index
which would produce results equivalent, as nearly as possible, to
those which would have been obtained if the CPI had not been so
revised. If the CPI shall become unavailable to the public because
publication is discontinued, or otherwise, or if equivalent data is
not readily available then Lessor will substitute a comparable index
based upon changes in the cost of living or purchasing power of the
consumer dollar published by any other governmental agency or, if no
such index shall be available, then a comparable index published by a
major bank, financial institution, university or a recognized
financial publication.
B. Adjustment. Effective as of each January 1 falling within
the term hereof, the Second Additional Premises HVAC Charges shall be
increased to an amount equal to the Base Second Additional Premises
HVAC Charges multiplied by a fraction, the numerator of which is the
CPI for the month of January of such calendar year and the denominator
of which is the CPI for the Base Month. In no event shall such CPI
adjustment result in a decrease in the Second Additional Premises HVAC
Charges. Lessor may furnish to Lessee a notice (the "CPI Notice")
showing the CPI and the amount of the CPI adjustment for any calendar
year after Lessor ascertains the CPI to be used in determining the CPI
adjustment for such calendar year. Until Lessor furnishes the CPI
Notice, Lessee shall continue to pay to Lessor monthly installments of
Second Additional Premises HVAC Charges in an amount equal to the
latest monthly installment of Second Additional Premises HVAC Charges.
On or before the first day of the month immediately following the
service of a CPI Notice and on or before the first day of each
following month until Lessee receives a further CPI Notice, Lessee
shall pay to Lessor the monthly installment of Second Additional
Premises HVAC Charges shown in such CPI Notice. Within fifteen (15)
days following service
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of each CPI Notice, Lessee shall also pay to Lessor a lump sum payment
equal to the Second Additional Premises HVAC Charges owing by Lessee
to Lessor (as shown in such CPI Notice) for the period commencing on
the first day of the calendar year during which such CPI Notice is
served and expiring on the last day of the month during which such CPI
Notice is served, less all monthly installments of Second Additional
Premises HVAC Charges previously paid by Lessee to Lessor for such
calendar year.
10. Broker. Lessee represents to Lessor that Lessee has not dealt with any
real estate broker, salesperson or finder in connection with this Amendment
other than Xxxxx & Company (the "Broker"), and no other such person initiated or
participated in the negotiation of this Amendment or is entitled to any
commission in connection herewith. Lessee hereby agrees to indemnify, defend and
hold Lessor, its property manager and their respective employees harmless from
and against any and all liabilities, claims, demands, actions, damages, costs
and expenses (including attorneys' fees) arising from a claim for a fee or
commission made by any broker (other than the Broker), claiming to have acted by
or on behalf of Lessee in connection with this Amendment.
11. Submission. Submission of this Amendment by Lessor or Lessor's agent,
or their respective agents or representatives, to Lessee for examination and/or
execution shall not in any manner bind Lessor and no obligations on Lessor shall
arise under this Amendment unless and until this Amendment is fully signed and
delivered by Lessor and Lessee; provided, however, the execution and delivery by
Lessee of this Amendment to Lessor or Lessor's agent, or their respective agents
or representatives, shall constitute an irrevocable offer by Lessee on the terms
and conditions herein contained, which offer may not be revoked for fifteen (15)
days after such delivery.
12. Effect of Amendment. As amended by this Amendment, the Lease shall
remain in full force and effect.
13. Exculpatory Provisions. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of Lessor while in form purporting to be
the representations, warranties, covenants, undertakings and agreements of
Lessor are nevertheless each and every one of them made and intended, not as
personal representations, warranties, covenants, undertakings and agreements by
Lessor or for the purpose of or with the intention of binding Lessor personally,
but are made and intended for the purpose only of subjecting Lessor's interest
in the Office Area and the Premises to the terms of this Amendment and for no
other purposes whatsoever, and in case of default hereunder by Lessor (or
default through, under or by any of its beneficiaries, or agents or
representatives of said beneficiaries), Lessee shall look solely to the interest
of Lessor in said Office Area, and this Amendment is executed and delivered by
Lessor not in its own right, but solely in the exercise of the powers conferred
upon it as such Trustee; that the Lessor shall have no personal
9
liability to pay any indebtedness accruing hereunder or to perform any covenant,
either express or implied, herein contained and no liability or duty shall rest
upon Lessor to sequester the trust estate or the rent, issues and profits
arising therefrom, or the proceeds arising from any sale or other responsibility
of any sort is assumed by, nor shall at any time be asserted or enforceable
against, said Lessor, American National Bank and Trust Company of Chicago, a
national banking association, individually or personally, but only as Trustee
under the provisions of a Trust Agreement dated May 2, 1989 and known as Trust
No. 108237-06, on account of this Amendment or on account of any representation,
warranty, covenant, undertaking or agreement of Lessor in this Amendment
contained, either express or implied, all such personal liability, if any, being
expressly waived and released by Lessee and by all persons claiming by, through
or under Lessee.
IN WITNESS WHEREOF, this Amendment is executed as of the day and year
aforesaid.
LESSEE: LESSOR:
------ ------
PLAYBOY ENTERPRISES, INC., AMERICAN NATIONAL BANK AND
a Delaware corporation TRUST COMPANY OF CHICAGO,
not personally, but solely as
Trustee under as aforesaid
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxx
-------------------------------- ---------------------------
Title: Ex. VP Title: VP
-------------------------- --------------------------
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EXHIBIT A
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FLOOR PLAN OF SECOND ADDITIONAL PREMISES
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[BLUE PRINT APPEARS HERE]
A-1
EXHIBIT B
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PLAN OF PORTIONS OF THE COMMON AREAS
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[BLUE PRINT APPEARS HERE]
Page 1 of 2
EXHIBIT B
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[BLUE PRINT APPEARS HERE]
Page 2 of 2
EXHIBIT C
WORKLETTER
The terms used herein shall have the meanings ascribed to them in that
certain Fifth Amendment to Lease dated March 19, 1998, by and between LaSalle
National Bank, as Trustee under that certain Trust Agreement dated May 2, 1989
and known as Trust No. 108237-06 ("Lessor") and Playboy Enterprises, Inc. a
Delaware corporation ("Lessee"), unless otherwise stated herein.
I. Construction of the Premises. Lessor and Lessee agree that their respective
rights and obligations in reference to the construction of the Second Amendment
Premises shall be as follows:
A. Lessee's Plans and Specifications.
(1) Lessee, at Lessee's sole cost and expense, except as
provided herein, shall cause a licensed architect satisfactory to Lessor to
prepare complete, finished, detailed architectural, mechanical, structural,
electrical and telephone plans and specifications including all dimensions
and specifications for all work to be performed in the Second Additional
Premises as tenant improvements ("Lessee's Plans").
(2) Lessee's Plans shall also include all information as shall
be required by Lessor's engineers in connection with mechanical plans,
which information shall include, but not be limited to, the following:
(i) Any special floor loading conditions which may exceed
the structural weight limits of any floor;
(ii) Specifications of any heat emanating equipment to be
installed by Lessee which may require special air conditioning;
(iii) Electrical specifications of any equipment that
requires additional electrical power or outlets;
(iv) Complete specifications of any dataline wiring
required, including cable routing, conduit size, cable type, and
similar items; and
(v) Complete plans and specifications for construction of
the contemplated stairway between the 14th and 15th floors of the
Premises.
C-1
(3) Lessee's Plans are expressly subject to Lessor's prior
written approval, which shall not be unreasonably withheld or delayed,
and in any event Lessor shall provide its approval or disapproval
within ten (10) business days after submission of proposed Lessee's
Plans by Lessee. Upon such approval, Lessee shall cause Lessee's
Plans, at Lessee's sole cost and expense, to be filed with the
governmental agencies having jurisdiction thereof, in order to obtain
all governmental permits and authorizations which may be required in
connection with the work to be done. Lessee may not commence any of
Lessee's Work until Lessee's Plans are approved by Lessor.
(4) Without the prior written consent of Lessor, which consent
shall not be unreasonably withheld or delayed, Lessee shall make no
changes in Lessee's Plans after approval thereof by Lessor.
II. Construction of Lessee's Work.
A. Lessee shall designate in Lessee's Plans all work and materials
necessary for construction of the Second Additional Premises, and Lessee
shall construct and install or cause to be constructed or installed in the
Second Additional Premises all of the work designated in Lessee's Plans
("Lessee's Work"). Prior to solicitation of any bids for the construction
of Lessee's Work, Lessor shall approve, in writing, each of the contractors
to be solicited by Lessee, which approval shall not be unreasonably
withheld or delayed.
B. Lessee shall contribute a maximum of $1,301,991.40 ("Lessor's
Contribution") toward the Cost of Lessee's Work. Lessee is solely
responsible for the Cost of Lessee's Work over $1,301,991.40. Lessee shall
not be entitled to any payment or credit for any unused portion of Lessor's
Contribution. Lessee agrees to cause a portion of the Lessee's Work which
costs no less than $964,200.00 to be completed by no later than December
31, 1998 and to complete the balance of Lessee's Work by no later than July
31, 1999.
C. For the purpose hereof, "Cost of Lessee's Work" shall mean costs
of all labor and materials for construction of the Second Additional
Premises in accordance with Lessee's Plans, general contractor's fees,
architectural fees and costs, fees and costs relating to engineering,
structural, lighting, communications, electrical and construction
consultants, costs of the purchase and installation of permanent lines or
cable for security purposes, computer operations, telephone service and
other forms of communication, costs of built-in furniture, costs of
separately metering electricity to the Second Additional Premises, costs
for the purchase, delivery and installation of any other item which, when
installed in the Second Additional Premises, shall be deemed a fixture or a
permanent improvement to the Second Amendment Premises and a supervisory
fee payable to Lessor in the amount of $25,000.00.
C-2
D. Lessee's right to receive payment of Lessor's Contribution shall
be contingent upon (a) Lessee not being in default or breach under the
Lease, as amended, at the time Lessee so requests payment and (b) Lessee,
at such time, having completed the work for which Lessor's Contribution is
being so requested in accordance with the terms of this Workletter and
having submitted to Lessor contractor's affidavits and full and final
waivers of lien and receipted bills for labor and materials expended and
used for such work. In the event that Lessee has satisfied all conditions
and requirements as set forth herein and in the Lease, as amended, for the
payment of Lessor's Contribution and Lessor fails to pay in full Lessor's
Contribution to Lessee within ninety (90) days after Lessee's request
therefor as aforesaid and provided that Lessee is not then in breach or
default under the Lease, as amended, Lessee shall, upon the expiration of
said ninety (90) day period, be entitled to offset the unpaid amount of
Lessor's Contribution from the then next due installments of Base Rent
thereafter payable by Lessee under the Lease, as amended, until the full
amount of Lessor's Contribution has been paid or offset as provided herein.
E. In reviewing Lessee's Plans, Lessor may take into consideration
whether, in Lessor's reasonable judgement, Lessee's Work will be
practicable and consistent with existing physical conditions in the
Building and the Office Area and with the Building Plans and any other
plans for the Building which have been filed with the appropriate
municipality or other governmental authorities having jurisdiction thereof,
or may impair Lessor's ability to perform any of Lessor's obligations under
the Lease or any other lease of space in the Building. Lessee's Work shall
not affect any portion of the Building other than the Second Additional
Premises.
F. Lessee's Work shall be performed in strict conformity with
Lessee's Plans and shall be performed at Lessee's sole cost and expense,
except for Lessor's Contribution.
G. Prior to soliciting bids for construction of Lessee's Work, Lessee
shall submit to Lessor for Lessor's approval, the names and addresses of
all contractors to be solicited. Lessee's Work shall be done only by
contractors or mechanics approved by Lessor. Lessee shall not permit
Lessee's contractors and labor to interfere with Lessor or with any other
tenant or its labor. Upon completion of Lessee's Work, Lessee shall furnish
or shall cause to be furnished to Lessor through the construction escrow,
contractor's affidavits, full and final waivers of lien, final architect's
certificates and receipted bills covering all labor and materials expended
and Lessee's Work shall comply with all insurance requirements, all laws,
ordinances, rules and regulations of all governmental authorities, and all
collective bargaining agreements applicable to the Building, and shall be
done in a good and workmanlike manner with the use of high grades of
materials.
C-3
III. Insurance and Indemnity.
A. Before commencing Lessee's Work, Lessee shall deliver to Lessor
certificates of insurance or copies of insurance policies from all
contractors performing labor or supplying materials for the construction of
Lessee's Work, insuring Lessor, its agents, representatives, successors and
assigns against any and all liability for bodily injury or property damage
arising out of or connected in any way with Lessee's Work.
B. Lessee hereby indemnifies and holds harmless Lessor, its agents,
representatives, successors and assigns, from and against any and all
losses, costs, claims and expenses of every kind and description arising
out or relating to Lessee's Work, except as such may be required under
insurance policies maintained pursuant to Paragraph III.A. above.
C-4
