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10.(ii)(a)(5)
SECOND AMENDMENT
This Second Amendment (the "Amendment") is made and entered into as of
the 10th day of August, 1998, by and between TWO NORTH RIVERSIDE PLAZA JOINT
VENTURE LIMITED PARTNERSHIP, AN ILLINOIS LIMITED PARTNERSHIP, SOLE BENEFICIARY
OF LASALLE NATIONAL TRUST, N.A., SUCCESSOR TRUSTEE UNDER TRUST AGREEMENT DATED
JUNE 26, 1969 AND KNOWN AS TRUST NO. 39712 ("Landlord") BY ITS AGENT, EQUITY
OFFICE PROPERTIES MANAGEMENT CORP., A DELAWARE CORPORATION and AMERICAN CLASSIC
VOYAGES CO., A DELAWARE CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord and GREAT HAWAIIAN PROPERTIES CORPORATION, a Delaware
corporation ("Original Tenant") are parties to that certain lease dated
the 30th day of May, 1995, for space currently containing approximately
37,367 rentable square feet of space (the "Original Premises") on the
second (2nd) floor of the building commonly known as Two North
Riverside Plaza and the address of which is Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "Building"), which lease has been
previously amended by instrument dated March 12, 1997 (collectively,
the "Lease"); and
B. WHEREAS, Effective as of January 1, 1998, Original Tenant assigned its
rights under the Lease to Tenant pursuant to the Assignment and
Assumption Agreement, a copy of which is attached hereto as Exhibit B,
which assignment did not require Landlord's consent pursuant to the
terms of the Lease; and
C. WHEREAS, Tenant desires to surrender a portion of the Premises to
Landlord containing approximately 16,732 rentable square feet on the
second (2nd) floor of the Building as shown on Exhibit A hereto (the
"Reduction Space") and that the Lease be appropriately amended, and
Landlord is willing to accept such surrender on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
I. REDUCTION. Effective as of May 31, 1998 (the "Reduction
Effective Date"), the Premises is decreased from 37,367
rentable square feet on the second (2nd) floor to 20,635
rentable square feet on the second (2nd) floor by the
elimination of the Reduction Space. As of the Reduction
Effective Date, the Reduction Space shall be deemed
surrendered by Tenant to Landlord, the Lease shall be deemed
terminated with respect to the Reduction Space, and the
"Premises", as defined in the Lease, shall be deemed to mean
the Original Premises, less the Reduction Space. Tenant shall
fully comply with all obligations under the Lease respecting
the Reduction Space through the Reduction Effective Date,
including those provisions relating to the condition of the
Reduction Space and removal of Tenant's Property therefrom
upon termination or expiration of the Lease.
II. MONTHLY BASE RENTAL. As of the Reduction Effective Date, the
schedule of monthly installments of Base Rental contained in
the Lease is deleted, and the following is substituted
therefor:
Tenant shall pay Landlord the sum of Seven Hundred Six
Thousand Seven Hundred Forty Eight and 75/100 Dollars
($706,748.75) as Base Rental for the balance of the Lease Term
in seventy nine (79) monthly installments as follows:
A. One (1) installment of Seven Thousand Seven Hundred
Thirty Eight and 13/100 Dollars ($7,738.13) ($4.50
per rentable square foot) payable on or before June
1, 1998 for the period beginning June 1, 1998, and
ending June 30, 1998.
B. Twelve (12) equal installments of Eight Thousand
Forty Seven and 65/100 Dollars ($8,047.65) ($4.68 per
rentable square foot) each payable on or before the
first day of each month during the period beginning
July 1, 1998, and ending June 30, 1999.
C. Twelve (12) equal installments of Eight Thousand
Three Hundred Seventy Four and 37/100 Dollars
($8,374.37) ($4.87 per rentable square foot) each
payable on or before the first day of each month
during the period beginning July 1, 1999, and ending
June 30, 2000.
D. Twelve (12) equal installments of Eight Thousand
Seven Hundred One and 09/100 Dollars ($8,701.09)
($5.06 per rentable square foot) each payable on or
before the first day of each month during the period
beginning July 1, 2000, and ending June 30, 2001.
E. Twelve (12) equal installments of Nine Thousand Forty
Five and 01/100 Dollars ($9,045.01) ($5.26 per
rentable square foot) each payable on or
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before the first day of each month during the period
beginning July 1, 2001, and ending June 30, 2002.
F. Twelve (12) equal installments of Nine Thousand Four
Hundred Six and 12/100 Dollars ($9,406.12) ($5.47 per
rentable square foot) each payable on or before the
first day of each month during the period beginning
July 1, 2002, and ending June 30, 2003.
G. Eighteen (18) equal installments of Nine Thousand
Seven Hundred Eighty Four and 43/100 Dollars
($9,784.43) ($5.69 per rentable square foot) each
payable on or before the first day of each month
during the period beginning July 1, 2003, and ending
December 31, 2004.
All such Base Rental shall be payable by Tenant in accordance
with the terms of Article V of the Lease.
III. ADDITIONAL CONSIDERATION. As additional consideration for this
Amendment, Landlord agrees to give Tenant an abatement in the
amount of Six Hundred Thousand and 00/100 Dollars
($600,000.00), which abatement shall be applied against Rent,
Base Rental and Tax Adjustments coming due under the Lease as
amended by this Agreement as follows: (a) against the full
amount of any Rent due Landlord as of the date hereof; then,
on a monthly basis, (b) against the full amount of monthly
Base Rental coming due under the Lease as amended by this
Agreement and (c) $4,692.98 first against Tenant's monthly
payment of the estimate of Tenant's Tax Adjustment and, with
respect to said $4,692.98 thereafter against any additional
rent due under the Lease. The abatement shall be applied
against the foregoing payments until it is exhausted. At no
time shall a cash payment be owed to Tenant with respect to
this abatement.
IV. TENANT'S PRO RATA SHARE. Notwithstanding the reduction of the
Premises, for the period commencing with the Reduction
Effective Date and ending on the Termination Date, Tenant's
Pro Rata Share for the purposes of calculating Tenant's Tax
Adjustment shall remain seven and two thousand eight hundred
forty nine ten thousandths percent (7.2849%). Such Tax
Adjustment shall be paid at the time, in the manner and
otherwise in accordance with the terms of the Lease, unless
otherwise specified herein.
V. REPRESENTATIONS. Each party represents to the other that it
has full power and authority to execute this Amendment. Tenant
represents that it has not made any assignment, sublease,
transfer, conveyance of the Lease or any interest therein or
in the Reduction Space other than subleases to EOP Operating
and Chicago Cares, which have been previously consented to by
Landlord and further represents that there is not and will not
hereafter be any claim, demand, obligation, liability, action
or cause of action by any other party respecting, relating to
or arising out of the Reduction Space. In addition, each party
represents to the other that it has no knowledge of any fact
or circumstance which would give rise to any claim, demand,
obligation, liability, action or cause of action arising out
of or in connection with the Lease.
VI. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that,
effective as of the date hereof (unless different effective
date(s) is/are specifically referenced in this Section), the
Lease shall be amended in the following additional respects:
A. Any Right of First Refusal in the Lease is hereby
deemed null and void.
B. Nothing herein shall be deemed to waive any rights
Landlord has to require Tenant to remove Required
Removables at the end of the Lease Term including,
without limitation, the "wave wall".
C. Tenant hereby grants a license to Landlord and any
occupant of the Reduction Space to access the
corridor leased by Tenant.
D. Any amount owed to Tenant pursuant to the provisions
of Article XX of the Lease (as the unamortized value
of the Initial Alterations) shall be reduced by an
amount equal to that part of the additional
consideration set forth in Article III of this
Amendment which has been credited against Rent
payments due (as set forth in said Article III)
through the date payment under Article XX is due.
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E. Tenant shall be entitled to a Base Rental abatement
(the "Chicago Cares Abatement") equal to Eleven
Thousand One Hundred Fifty Six and 25/100 Dollars
($11,156.25) (4,250 X $4.50 X 7/12). The Chicago
Cares Abatement shall be applied against the next
Base Rental due under the Lease.
VII. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement
between the parties with respect to the matters set
forth herein. There have been no additional oral or
written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent
abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any
similar economic incentives that may have been
provided Tenant in connection with entering into the
Lease, unless specifically set forth in this
Amendment. This Amendment shall not be relied upon by
any other party, individual, corporation, partnership
or entity as a basis for reducing its lease
obligations with Landlord. Tenant agrees that it
shall not disclose any matters set forth in this
Amendment or disseminate or distribute any
information concerning the terms, details or
conditions hereof to any person, firm or entity
without obtaining the express written consent of
Landlord.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain
unchanged and in full force and effect.
C. In the case of any inconsistency between the
provisions of the Lease and this Amendment, the
provisions of this Amendment shall govern and
control.
D. Submission of this Amendment by Landlord is not an
offer to enter into this Amendment but rather is a
solicitation for such an offer by Tenant. Landlord
shall not be bound by this Amendment until Landlord
has executed and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall
have the same definitions as set forth in the Lease
to the extent that such capitalized terms are defined
therein and not redefined in this Amendment.
F. Tenant agrees to indemnify and hold Landlord, its
members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and
agents, and the respective principals and members of
any such agents (collectively, the "Landlord Related
Parties") harmless from all claims of any brokers
claiming to have represented Tenant in connection
with this Amendment. Landlord hereby represents to
Tenant that Landlord has dealt with no broker in
connection with this Amendment. Landlord agrees to
indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors,
employees, and agents, and the respective principals
and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of
any brokers claiming to have represented Landlord in
connection with this Amendment.
G. This Amendment shall be of no force and effect unless
and until accepted by any guarantors of the Lease,
who by signing below shall agree that their guarantee
shall apply to the Lease as amended herein, unless
such requirement is waived by Landlord in writing.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
WITNESSES; ATTESTATION LANDLORD: TWO NORTH RIVERSIDE PLAZA JOINT VENTURE
LIMITED PARTNERSHIP, AN ILLINOIS LIMITED
/s/ Xxxxx Xxxxxxxx PARTNERSHIP, SOLE BENEFICIARY OF LASALLE
NATIONAL TRUST, N.A.,N.A., SUCCESSOR
Name (print): Xxxxx Xxxxxxxx TRUSTEE UNDER TRUST AGREEMENT DATED JUNE
------------------- 26, 1969 AND KNOW AS TRUST NO. 39712
--------------------------------- By:Equity Office Properties Management
Corp., a Delaware corporation, as agent
Name (print):
--------------------- By: /s/ Xxxxxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxx
------------------------------
Title: Vice President - Leasing
------------------------------
TENANT: AMERICAN CLASSIC VOYAGES CO.,
A DELAWARE CORPORATION
/s/ Xxxxx X. Xxxxxxx By: /s/ Jordan X. Xxxxx
------------------------- -------------------------------------
Name: Jordan X. Xxxxx
/s/ Xxxxxx Xxxxx ------------------------------------
------------------------- Title: Executive Vice President
-----------------------------------
GUARANTORS: GREAT HAWAIIAN CRUISE LINE, INC.
Xxxxx Xxxxxxx /s/ Jordan X. Xxxxx
------------------------- -----------------------------------------
Xxxxxx Xxxxx Executive Vice President
------------------------- -----------------------------------------
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EXHIBIT A
Floor Plan
Showing Reduction Space
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EXHIBIT B
Assignment and Assumption of Lease
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