-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Nvc0PfB/yykS24nKVPEKHWD/07vgf2uSpvEJesHlHLrtxxsCAFjBkmRqIwF8EKuw czOrmcMJb2FL1lVoT/Rn+A== 0000928385-98-000559.txt : 19980326 0000928385-98-000559.hdr.sgml : 19980326 ACCESSION NUMBER: 0000928385-98-000559 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19980325 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: 21ST CENTURY TELECOM GROUP INC CENTRAL INDEX KEY: 0001056751 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 364076758 STATE OF INCORPORATION: IL FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-47235 FILM NUMBER: 98572405 BUSINESS ADDRESS: STREET 1: WORLD TRADE CENTER CHICAGO STREET 2: 350 N ORLEANS, STE 600 CITY: CHICAGO STATE: IL ZIP: 60654 BUSINESS PHONE: 3124702100 MAIL ADDRESS: STREET 1: WORLD TRADE CENTER CHICAGO STREET 2: 350 N ORLEANS STE 600 CITY: CHICAGO STATE: IL ZIP: 60054 S-4/A 1 FORM S-4/A
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 1998 REGISTRATION NO. 333- ============================================================================================================
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________________________ AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________________ 21ST CENTURY TELECOM GROUP, INC. (EXACT NAME OF COMPANY AS SPECIFIED IN ITS CHARTER) ILLINOIS 36-4076758 (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.) WORLD TRADE CENTER, 350 NORTH ORLEANS, SUITE 600 CHICAGO, ILLINOIS 60654 (312) 470-2100 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF COMPANY'S PRINCIPAL EXECUTIVE OFFICES) GLENN W. MILLIGAN CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD OF DIRECTORS 21ST CENTURY TELECOM GROUP, INC. WORLD TRADE CENTER--CHICAGO, 350 NORTH ORLEANS, SUITE 600 CHICAGO, ILLINOIS 60654 (312) 470-2100 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR SERVICE, SHOULD BE SENT TO: EDWIN M. MARTIN, JR., ESQ. PIPER & MARBURY, L.L.P. 1200 NINETEENTH STREET, N.W. WASHINGTON, D.C. 20036 (202) 861-6315 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT. IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX: [ ] IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES OFFERED IN CONNECTION WITH DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [X] IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT, PLEASE CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING: IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(C) UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING: [ ] IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434, PLEASE CHECK THE FOLLOWING BOX: [ ] CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED AGGREGATE MAXIMUM TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF REGISTERED REGISTERED PER NOTE(1) OFFERING PRICE(2) REGISTRATION FEE(3) - ------------------------------------------------------------------------------------------------------------------------------ 12 1/4 SENIOR DISCOUNT NOTES DUE 2008........... $363,135,000 55% $200,000,000 $ 0 - ------------------------------------------------------------------------------------------------------------------------------ 13 3/4 SENIOR CUMULATIVE EXCHANGEABLE $ 50,000,000 100% $ 50,000,000 $ 0 PREFERRED STOCK DUE 2010 ==============================================================================================================================
(1) ESTIMATED SOLELY FOR PURPOSES OF CALCULATING THE REGISTRATION FEE. (2) CALCULATED PURSUANT TO RULE 457(O). (3) A REGISTRATION FEE OF $59,000 FOR THE 12 1/4 SENIOR DISCOUNT NOTES DUE 2008 AND $14,750 FOR THE 13 3/4 SENIOR CUMULATIVE EXCHANGEABLE PREFERRED STOCK DUE 2010 WAS PAID AT THE TIME OF THE INITIAL FILING OF THIS REGISTRATION STATEMENT. THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. PART II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 21. Exhibits and Financial Statement Schedules (a) Exhibits - ------------------------------------------------------------------- Exhibit No. Document - ------------------------------------------------------------------- 1.1 Purchase Agreement dated as of February 2, 1998 by and among the Company and Credit Suisse First Boston Corporation, BancAmerica Robertson Stephens and BancBoston Securities, Inc., as Initial Purchasers. - ------------------------------------------------------------------- 3.1 Amended Articles of Incorporation of the Company filed on February 9, 1998. - ------------------------------------------------------------------- 3.2 By-laws of the Company. - ------------------------------------------------------------------- 4.1 Indenture dated February 15, 1998 between the Company, as Issuer, and State Street Bank and Trust, as Trustee, with respect to the 12 1/4 Senior Discount Notes Due 2008. - ------------------------------------------------------------------- 4.2 Form of the 12 1/4 Senior Discount Notes Due 2008 (included in Exhibit 4.1). - ------------------------------------------------------------------- 4.3 Indenture dated as of February 15, 1998 between the Company and IBJ Schroder Bank & Trust Company, as Trustee, with respect to the Exchange Debenture. - ------------------------------------------------------------------- 4.4 Form of the 13 3/4 Senior Cumulative Exchangeable Preferred Stock Due 2010. - ------------------------------------------------------------------- 4.5 Registration Rights Agreement dated as of February 2, 1998 by and among the Company and Credit Suisse First Boston Corporation, BancAmerica Robertson Stephens and BancBoston Securities, Inc., as Initial Purchasers. - ------------------------------------------------------------------- 5.1 Opinion of Neal, Gerber and Eisenberg. - ------------------------------------------------------------------- 5.2 Opinion of Piper & Marbury LLP. - ------------------------------------------------------------------- 10.1 Franchise Agreement dated as of June 24, 1996 by and among the City of Chicago and the Company. - ------------------------------------------------------------------- 10.2 License Agreement dated as of October 27, 1994 by and among the Chicago Transit Authority and the Company. - ------------------------------------------------------------------- 10.3* + CSG Master Subscriber Management System Agreement dated as of May 28, 1997 by and among CSG Systems, Inc. and the Company. - ------------------------------------------------------------------- 10.4* + Telemarketing Consultation Agreement dated as of August 5, 1997 by and among the Company and ITI Marketing Services, Inc. - -------------------------------------------------------------------
- ------------------------------------------------------------------- 10.5* + Pole Attachment Agreement dated as of April 3, 1996 by and among the Company and Commonwealth Edison Company. - ------------------------------------------------------------------- 10.6* + Pole Attachment Agreement dated as of November 14, 1998 by and among the Company and Ameritech--Illinois. - ------------------------------------------------------------------- 10.7* + Office Lease dated January 31, 1997 by and among the Company and LaSalle National Bank. - ------------------------------------------------------------------- 12.1 Statement regarding Computation of Earnings Ratio to Fixed Charges. - ------------------------------------------------------------------- 21.1* Subsidiaries of the Company. - ------------------------------------------------------------------- 23.1 Consent of Arthur Andersen with Respect to the Company. - ------------------------------------------------------------------- 23.2 Consent of Piper & Marbury LLP (incorporated by reference to Exhibit 5.2). - ------------------------------------------------------------------- 24.1 Power of Attorney (included on the signature page of this Registration Statement). - ------------------------------------------------------------------- 25.1 Statement of Eligibility of State Street Bank and Trust, as Trustee. - ------------------------------------------------------------------- 99.1 Form of Letter of Transmittal to 12 1/4 Senior Discount Notes Due 2008 of the Company. - ------------------------------------------------------------------- 99.2 Form of Letter of Transmittal to 13 3/4 Senior Cumulative Exchangeable Preferred Stock Due 2010 of the Company. - ------------------------------------------------------------------- 99.3 Form of Notice of Guaranteed Delivery for 12-1/4% Senior Discount Notes Due 2008 - ------------------------------------------------------------------- 99.4 Form of Notice of Guaranteed Delivery for 13-3/4% Senior Cumulative Exchangeable Preferred Stock Due 2010 - ------------------------------------------------------------------- 99.5 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 12-1/4% Senior Discount Notes Due 2008 - ------------------------------------------------------------------- 99.6 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 13-3/4% Senior Cumulative Exchangeable Preferred Stock Due 2010 - ------------------------------------------------------------------- 99.7 Form of Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 12-1/4% Senior Discount Notes Due 2008 - ------------------------------------------------------------------- 99.8 Form of Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 13-3/4% Senior Cumulative Exchangeable Preferred Stock Due 2010 - ------------------------------------------------------------------- 99.9 Form of Instruction from Owner of 12 1/4 Senior Discount Notes Due 2008 of the Company. - ------------------------------------------------------------------- 99.10 Form of Instruction from Owner of 13 3/4 Senior Cumulative Exchangeable Preferred Stock of the Company. - -------------------------------------------------------------------
- ---------------- * Filed herewith. All other exhibits previously filed. + Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant's Application Requesting Confidential Treatment under Rule 406 of the Act, filed on March 24, 1998. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Chicago, state of Illinois, on March 24, 1998. 21st CENTURY TELECOM GROUP, INC. By: /s/ Ronald D. Webster -------------------------------------------- Ronald D. Webster, Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date - --------------------------- ----------------------------------- -------------- Chief Executive Officer and * Chairman of the Board of Directors March 24, 1998 - --------------------------- (Principal Executive Officer) Glenn W. Milligan * President, Chief Operating Officer March 24, 1998 - --------------------------- and Director Robert J. Currey /s/ Ronald D. Webster Chief Financial Officer March 24, 1998 - --------------------------- Ronald D. Webster * Chief Technical Officer March 24, 1998 - --------------------------- Jay E. Carlson * March 24, 1998 - --------------------------- Director Edward T. Joyce * March 24, 1998 - --------------------------- Director Dr. Charles E. Kaegi * - --------------------------- Director March 24, 1998 James H. Lowry * - --------------------------- Director March 24, 1998 David Kronfeld
* - ------------------------------ Director March 24, 1998 Thomas Neustaetter * By: /s/ Edwin M. Martin, Jr. - ------------------------------ Director March 24, 1998 Edwin M. Martin, Jr. Attorney-in-fact EXHIBIT INDEX -------------
Exhibit No. Document - ---------------------------------------------------------------- 1.1 Purchase Agreement dated as of February 2, 1998 by and among the Company and Credit Suisse First Boston Corporation, BancAmerica Robertson Stephens and BancBoston Securities, Inc., as Initial Purchasers. - ---------------------------------------------------------------- 3.1 Amended Articles of Incorporation of the Company filed on February 9, 1998. - ---------------------------------------------------------------- 3.2 By-laws of the Company. - ---------------------------------------------------------------- 4.1 Indenture dated February 15, 1998 between the Company, as Issuer, and State Street Bank and Trust, as Trustee, with respect to the 12 1/4 Senior Discount Notes Due 2008. - ---------------------------------------------------------------- 4.2 Form of the 12 1/4 Senior Discount Notes Due 2008 (included in Exhibit 4.1). - ---------------------------------------------------------------- 4.3 Indenture dated as of February 15, 1998 between the Company and IBJ Schroder Bank & Trust Company, as Trustee, with respect to the Exchange Debenture. - ---------------------------------------------------------------- 4.4 Form of the 13 3/4 Senior Cumulative Exchangeable Preferred Stock Due 2010. - ---------------------------------------------------------------- 4.5 Registration Rights Agreement dated as of February 2, 1998 by and among the Company and Credit Suisse First Boston Corporation, BancAmerica Robertson Stephens and BancBoston Securities, Inc., as Initial Purchasers. - ---------------------------------------------------------------- 5.1 Opinion of Neal, Gerber and Eisenberg. - ---------------------------------------------------------------- 5.2 Opinion of Piper & Marbury LLP. - ---------------------------------------------------------------- 10.1 Franchise Agreement dated as of June 24, 1996 by and among the City of Chicago and the Company. - ---------------------------------------------------------------- 10.2 License Agreement dated as of October 27, 1994 by and among the Chicago Transit Authority and the Company. - ---------------------------------------------------------------- 10.3* + CSG Master Subscriber Management System Agreement dated as of May 28, 1997 by and among CSG Systems, Inc. and the Company. - ---------------------------------------------------------------- 10.4* + Telemarketing Consultation Agreement dated as of August 5, 1997 by and among the Company and ITI Marketing Services, Inc. - ---------------------------------------------------------------- 10.5* + Pole Attachment Agreement dated as of April 3, 1996 by and among the Company and Commonwealth Edison Company. - ---------------------------------------------------------------- 10.6* + Pole Attachment Agreement dated as of November 14, 1998 by and among the Company and Ameritech--Illinois. - ----------------------------------------------------------------
- ---------------------------------------------------------------- 10.7* + Office Lease dated January 31, 1997 by and among the Company and LaSalle National Bank. - ---------------------------------------------------------------- 12.1 Statement regarding Computation of Earnings Ratio to Fixed Charges. - ---------------------------------------------------------------- 21.1* Subsidiaries of the Company. - ---------------------------------------------------------------- 23.1 Consent of Arthur Andersen with Respect to the Company. - ---------------------------------------------------------------- 23.2 Consent of Piper & Marbury LLP (incorporated by reference to Exhibit 5.2). - ---------------------------------------------------------------- 24.1 Power of Attorney (included on the signature page of this Registration Statement). - ---------------------------------------------------------------- 25.1 Statement of Eligibility of State Street Bank and Trust, as Trustee. - ---------------------------------------------------------------- 99.1 Form of Letter of Transmittal to 12 1/4 Senior Discount Notes Due 2008 of the Company. - ---------------------------------------------------------------- 99.2 Form of Letter of Transmittal to 13 3/4 Senior Cumulative Exchangeable Preferred Stock Due 2010 of the Company. - ---------------------------------------------------------------- 99.3 Form of Notice of Guaranteed Delivery for 12-1/4% Senior Discount Notes Due 2008 - ---------------------------------------------------------------- 99.4 Form of Notice of Guaranteed Delivery for 13-3/4% Senior Cumulative Exchangeable Preferred Stock Due 2010 - ---------------------------------------------------------------- 99.5 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 12-1/4% Senior Discount Notes Due 2008 - ---------------------------------------------------------------- 99.6 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 13-3/4% Senior Cumulative Exchangeable Preferred Stock Due 2010 - ---------------------------------------------------------------- 99.7 Form of Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 12-1/4% Senior Discount Notes Due 2008 - ---------------------------------------------------------------- 99.8 Form of Letter to Clients of Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees for 13-3/4% Senior Cumulative Exchangeable Preferred Stock Due 2010 - ---------------------------------------------------------------- 99.9 Form of Instruction from Owner of 12 1/4 Senior Discount Notes Due 2008 of the Company. - ---------------------------------------------------------------- 99.10 Form of Instruction from Owner of 13 3/4 Senior Cumulative Exchangeable Preferred Stock of the Company. - ----------------------------------------------------------------
* Filed herewith. All other exhibits previously filed. + Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant's filed on Application Requesting Confidential Treatment under Rule 406 of the Act, March 24, 1998. EX-10.3 2 EXHIBIT 10.3 EXHIBIT 10.3 CONFIDENTIAL AND PROPRIETARY INFORMATION - FOR USE BY AUTHORIZED EMPLOYEES FOR THE PARTIES HERETO ONLY AND IS NOT FOR GENERAL DISTRIBUTION WITHIN OR OUTSIDE THEIR RESPECTIVE COMPANIES CSG MASTER SUBSCRIBER MANAGEMENT SYSTEM AGREEMENT This CSG MASTER SUBSCRIBER MANAGEMENT SYSTEM AGREEMENT (the "Master Agreement") is entered into as of this 28th day of May, 1997, between CSG Systems, Inc., a Delaware corporation with offices at 2525 North 11 7th Avenue, Omaha, Nebraska 68164 ("CSG"), and 21st Century Cable TV, Inc., a Illinois corporation with offices at 350 North Orleans, Suite 600, Chicago, Illinois 60654, (the "Customer"). CSG and Customer agree as follows: Subject to the terms and conditions of this Master Agreement Customer hereby agrees to purchase and/or license from CSG its subscriber management system solution utilizing the CSG services and products which am identified, provided and/or licensed as set forth in the attached Schedules which are hereby incorporated into and made a part of this Master Agreement by this reference, including, but not necessarily limited to: Schedule A - CSG's ***. ---------- Schedule B - CSG ***. ---------- Schedule C - CSG 's ***. ---------- Schedule G - CSG's***. ---------- Schedule I - ***. ----------- Schedule K - ***. ----------- The *** subsequently provided in an executed Schedule attached to this Master Agreement am collectively referred to in this Master Agreement as the "Services". CSG's ***, and any other CSG product subsequently licensed to Customer in an executed Schedule attached to this Master Agreement are collectively referred to in this Master Agreement as the "Products". GENERAL TERMS AND CONDITIONS 1. FEES AND EXPENSES. The Products and Services will be provided for the fees set forth on Schedule F. Customer shall also reimburse CSG for ***, incurred by ---------- CSG in connection with CSG's performance of its obligations under this Master Agreement. 2. INVOICES. Unless otherwise provided herein, Customer shall pay amounts due hereunder within thirty (30) days after receipt of invoice therefor. Any amount not paid when due shall thereafter bear interest until paid at a rate equal to the lesser of one and one-half percent (1 1/2%) per month or the maximum rate allowed by applicable law. 3. TAXES. All amounts payable by Customer to CSG under this Master Agreement are exclusive of any applicable value added, use, sales, service, property or other taxes, tariffs or contributions that may be assessable in connection with this Agreement. Customer will pay any applicable value added, use, sales, service, property or other taxes, tariffs or contributions, in addition to the amount due and payable. Customer will promptly furnish CSG with the official receipt of payment of these taxes to the appropriate taxing authority. 4. ADJUSTMENT TO FEES. CSG shall not adjust any of the fees specified in Schedule F or otherwise specified in Schedules hereto prior to the *** of the - ---------- Effective Date (as defined below in Section 16). Thereafter, CSG may from time to time by giving Customer at least *** prior written notice thereof, adjust any or all such fees; provided, however, that the amount of all such increases during any *** shall not on the average exceed *** percent of the percentage increase in the Consumer Price Index, Urban Consumers, All Cities Averaged 1982- 84 Equals 100, during the prior calendar year as published by the U.S. Department of Labor or any successor index. 5. SHIPMENT. CSG will ship the Products, any Incorporated Third Party Software, and any other third party software from its distribution center, subject to delays beyond CSG's control. CSG will select the method of shipment via tape or by electronic file transfer for ___________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -1- Customer's account. The license granted to the Products as set forth in the Schedule(s) commences upon CSG's delivery of the Products to the carrier for shipment to Customer. Upon timely notice by Customer to CSG, CSG will promptly replace, at CSG's expense, any Products that are lost or damaged while in route to Customer. 6. EQUIPMENT PURCHASE. Customer is fully responsible for obtaining and installing all computer hardware, software, peripherals and necessary communications facilities, including, but not limited to printers, servers, power supply, workstations, printers, concentrators, communications equipment and routers (the "Required Equipment") that are necessary at Customer's place of business in order for Customer to utilize the Services and the Products as defined in this Master Agreement Customer shall bear responsibility for the Required Equipment, including, but not limited to, the costs of procuring, installing, operating and maintaining such Required Equipment At Customer's request and subject to the terms and conditions of Schedule B. CSG will consult ---------- with, assist and advise Customer regarding Customer's discharge of its responsibilities with respect to the Required Equipment and CSG will obtain for Customer any Required Equipment at CSG's then-current prices and on terms and conditions set forth in a separately executed purchase agreement 7. PRODUCTS WARRANTEES AND REMEDIES. (a) Limited Warranty. Except as provided in Section 9 and 10, CSG warrants that ---------------- (i) the Products will conform to CSG's published specifications in effect on the date of delivery and (ii) the Products will perform in a certified "Designated Environment' (as defined in the applicable Schedules attached hereto) --------- substantially as described in the accompanying Documentation for a period of ninety (90) days after the date of delivery (the "Warranty Period"). Notwithstanding the foregoing, if Customer modifies VantagePoint by altering any of the source code provided by CSG, this limited warranty will be void as it relates to VantagePoint. Except as set forth in Schedule H CSG provides all ---------- third party software, including the "Incorporated Third Party Software" (as defined below in Section 8), AS IS. Customer acknowledges that (i) the Products and the Incorporated Third Party Software may not satisfy all of Customer's requirements and (ii) the use of the Products and the Incorporated Third Party Software may not be uninterrupted or error-free. Customer further acknowledges that (i) the fees set forth in Schedule F and other charges contemplated under this Master Agreement are based on the limited warranty, disclaimers and limitation of liability specified in this Section and Sections 9, 10, 13, 14, and 15 and (ii) such charges would be substantially higher if any of these provisions were unenforceable. (b) Remedies. In case of breach of warranty or any other duty related to the quality of the Products, CSG or its representative will correct or replace any defective Product or, if not practicable, CSG will accept the return of the defective Product and refund to Customer (i) the amount actually paid to CSG allocable to the defective Product, and (ii) a pro rata share of the maintenance fees that Customer actually paid to CSG for the period that such Product was not -------- usable. Customer acknowledges that this Subsection 7(b) sets forth Customer's exclusive remedy, and CSG's exclusive liability, for any breach of warranty or other duty related to the quality of the Products. THE REMEDIES SET FORTH IN THIS PARAGRAPH ARE SUBJECT TO THE "LIMITATION OF REMEDIES" SET FORTH BELOW IN SECTION 14. 8. INCORPORATED THIRD PARTY SOFTWARE OR THIRD PARTY RIGHTS. Customer acknowledges that the Products incorporate certain third party computer programs and documentation (the "Incorporated Third Party Software") and/or the Products are licensed and the Services are offered under certain third party patent, copyright or other rights (the "Third Party Rights"), which are subject to the additional or alternative terms and conditions set forth in Schedule H. as ---------- applicable (the "Incorporated Licenses"). In case of any conflict between this Master Agreement and the Incorporated Licenses, the terms of the Incorporated Licenses will prevail with respect to the Incorporated Third Party Software or the Third Party Right Customer will be responsible for paying any fees for the Incorporated Third Party Software that may be due in connection with this Master Agreement CSG will be responsible for paying any fees for the Third Party Rights that may be due in connection with this Master Agreement. Customer will execute the additional documents that such vendors may require to enable CSG to deliver the Incorporated Third Party Software to Customer. Except as otherwise provided in Schedule H. CSG makes no warranty and provides no indemnity with respect to ---------- the Incorporated Third Party Software or the Third Party Rights. 9. OTHER THIRD PARTY SOFTWARE. Customer acknowledges that CSG will deliver the System together with certain third party software other than Incorporated Third Party Software, and that Customer's rights and obligations with respect to such other third party software are subject to the license terms accompanying the specific item of third party software. CSG is not a party to any license between Customer and any licensor of such third party software, and CSG makes no warranty and provides no indemnity with respect thereto. 10. TECHNICAL SERVICES WARRANTY. CSG represents and warrants that (i) CSG will perform the Technical Services in a good workmanlike manner and (ii) the Deliverables as defined in Schedule B will substantially conform to the applicable specifications set forth in any executed Statement of Work attached to Schedule B for a period of ninety days after the date of completion of the Deliverables as set forth on the applicable Statement of Work. In case of breach of this Technical Services' warranty or any other legal duty to Customer for the Technical Services, CSG's exclusive liability, and Customer's exclusive remedy, will be to obtain (i) the reperformance of the Technical Service or the correction or replacement of the Deliverable or (ii) if CSG determines that such remedies are not practicable, a refund of the Project Fees (as defined in Schedule B) allocable to such Technical Service or Deliverable. ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT), ARE HEREBY DISCLAIMED. -2- 11. *** CSG will offer Customer the option to migrate to the *** , if and when available, during the term of this Master Agreement. The cost of *** (exclusive of client hardware, software, communication lines, migration, and implementation costs) will be based on CSG's then current price or at a mutually agreeable price to be determined upon acceptance of this option. 12. INDEMNITY. (a) Indemnity. Except as provided in Exhibit C- I or in the case of any claim --------- arising from or in connection with the Third Party Rights specified in Exhibit K if an action is brought against Customer claiming that the Products infringe a patent or copyright within the jurisdiction where the "Designated Environment' (as defined in the applicable Schedules, attached hereto) is situated (the --------- "Territory'), CSG. will defend Customer at CSG's expense and, subject to this Section and Section 15, pay the damages and costs finally awarded against Customer in the infringement action, but only if (i) Customer notifies CSG promptly upon learning that the claim might be asserted (ii) CSG has sole control over the defense of the claim and any negotiation for its settlement or compromise and (iii) Customer takes no action that, in CSG's judgment, is contrary to CSG's interest (b) Alternative Remedy. If a claim described in Section 12(a.) may be or has ------------------ been asserted, Customer will permit CSG, at CSG's option and expense, to (i) procure the right to continue using the Product, (ii) replace or modify the Product to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Product and refund to Customer the amount of the fees actually paid to CSG and allocable for such Product, less amortization based on a 5-year straight-line authorization schedule and a pro rata share of any maintenance fees that Customer actually paid to CSG for the period that such Product was not usable. (c) Limitation. CSG shall have no indemnity obligation- to Customer under this Section if the patent or copyright infringement claim results from (i) a correction or modification of the Product not provided by CSG, (ii) the failure to promptly install an Update or Enhancement provided by CSG (as defined in the applicable Schedules, attached hereto) or (iii) the combination of the Product ------------------- with other items not provided by CSG. 13. PAY-PER-VIEW LIABILITY. Notwithstanding anything to the contrary herein, CSG's total liability with respect to each pay-per-view event for any and all claims, damages, losses or expenses incurred by Customer arising directly or indirectly out of CSG's processing of pay-per-view information shall be limited to the amount of fees actually received by CSG from Customer applicable to such pay-per-view processing services related to the specific event giving rise to such liability. 14. LIMITATION OF REMEDIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS MASTER AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS, THE INCORPORATED THIRD PARTY SOFTWARE, OTHER THIRD PARTY SOFTWARE, AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM PRIOR ORAL OR WRITTEN STATE S BY CSG, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS AND SERVICES BEING PROVIDED AS AGREED TO HEREIN ENTAIL THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT MUTILATION OF DOCUMENTS AND LOSS OF DATA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE. CUSTOMER AGREES THAT CSG SHALL NOT BE LIABLE DUE TO SUCH ERRORS, OMISSIONS, DELAYS AND LOSSES UNLESS CAUSED BY CSG'S GROSS NEGLIGENCE OR WILLFUL AND INTENTIONAL MISCONDUCT. 15. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES WILL CSG OR ITS RELATED PERSONS BE LIABLE TO CUSTOMER OR CSG'S LICENSORS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR THOSE OF ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, THE INCORPORATED PARTY SOFTWARE, OR OTHER THIRD PARTY SOFTWARE, RESULTING REPORTS, THEIR ACCURACY OR THEIR INTERPRETATION, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH CSG OR ITS LICENSORS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER ALLOCABLE TO THE SPECIFIC ITEM OR SERVICE THAT DIRECTLY CAUSED THE DAMAGE. DESPITE THE FOREGOING EXCLUSION AND LIMITATION, THIS SECTION WILL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY. __________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -3- 16. TERM. This Master Agreement shall be effective on the date of execution and acceptance by CSG (the "Effective Date"). Unless terminated pursuant to Section 17, this Master Agreement shall continue for a period of *** from the Effective Date (the 'Initial Term") and *** unless either party gives the other party at least *** prior written notice of such party's intent not to extend, but in any case the term of this Master Agreement shall extend for the term of any license granted under an executed Schedule hereto. The term of any specific license for the Products and the term for any specific Services to be provided shall be set forth in the Schedules attached hereto and shall be effective from the date set forth therein and continue as provided for therein, unless terminated pursuant to Sections 17 of this Master Agreement. 17. TERMINATION. This Master Agreement or any one or more of the Schedules attached hereto may be terminated for cause as follows: (a) If either party materially or repeatedly defaults in the performance of their respective obligations hem-under, except for Customer's obligation to pay fees, and fails either to substantially cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults which cannot reasonably be cured within thirty (30) days, promptly commence curing such default and thereafter proceed with all due diligence to substantially cure such default then the party not in default may, by giving written notice to the defaulting party, terminate this Master Agreement or any one or more of its Schedules as of a date specified in such notice of termination. (b) If Customer fails to pay when due any amounts owed hereunder, then CSG may, by giving written notice thereof to Customer, terminate this Master Agreement or at CSG's option, CSG may terminate any one or more of the Schedules attached hereto, as of a date specified in such notice of termination. (c) In the event that either party hereto becomes or is declared insolvent or bankrupt is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it makes an assignment for the benefit of all or substantially all of its. creditors, or esters into an agreement for the composition, on or readjustment of all or substantially all of its obligations, then the other party hereto may, by giving written notice thereof to such party, terminate this Master Agreement as of the date specified in such notice of termination. (d) If Customer or any of Customer's employees or consultants breach any term or condition of any Schedule attached hereto for the license of software or products distributed by or through CSG, including the Incorporated Third Party Software, CSG may, at CSG's option, the Master Agreement or any one or more of the Schedules attached hereto upon 30 days advance written notice and without judicial or administrative resolution. Upon the termination of the Master Agreement or any one or more of the Schedules attached hereto, for any reason, all rights granted to Customer under this Master Agreement or the terminated Schedule(s) will cease, and Customer will promptly (i) purge all the Products from the Designated Environment and all of Customer's other computer systems, storage media and other files; (ii) destroy the Products and all copies thereof, (iii) deliver to CSG an affidavit which certifies that Customer has complied with these termination obligations; and (iv) pay to CSG all fees that are due pursuant to this Master Agreement Notwithstanding the foregoing, if only one or more of the Schedules are terminated, Customer must comply with the requirements of this paragraph only with respect to the specific Products set forth in the terminated Schedule(s). 18. TERMINATION ASSISTANCE. Upon expiration or earlier termination of this Master Agreement or termination of Schedule A by either party for any reason, ----------- CSG will provide Customer, reasonable termination assistance for up to ninety (90) days relating to the transition to another vendor. This termination assistance will be provided to Customer at CSG's then standard rates unless CSG has materially defaulted under the terms of this Master Agreement. If this Master Agreement expires or is terminated earlier by CSG, then Customer will pay CSG, in advance, on the first day of each calendar month and as a condition to CSG's obligation to provide termination assistance to Customer during that month, an amount equal to CSG's reasonable estimate of the total amount payable to CSG for such termination assistance for that month. 19. CONFIDENTIALITY. (a) Definition. Customer and CSG will provide to each other or will come into possession information relating to each other's business, CSG's Products and Services and the Incorporated Third Party Software which is considered confidential (the "Confidential Information"). Customer acknowledges that confidentiality restrictions are imposed by CSG's licensors or vendors. Confidential Information shall include, without limitation, all of Customer's and CSG's trade secrets, and all know-how, design, invention, plan or process and Customer's data and information relating to Customers and CSG's respective business operations, services, products, research and development, CSG's vendors' _______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -4- or licensors' information and products, and all other information that is marked "confidential" or "proprietary" prior to or upon disclosure, or which, if disclosed orally, is identified by the disclosing party at the time as being confidential or proprietary and is confirmed by the disclosing party as being Confidential Information in writing within thirty (30) days after its initial disclosure. (b) Restrictions. Each party shall use its reasonable best efforts to maintain the confidentiality of such Confidential Information and not show or otherwise disclose such Confidential Information to any third parties, including, but not limited to, independent contractors and consultants, without the prior written consent of the disclosing party. Each party shall use the Confidential Information solely for purposes of performing its obligations under this Master Agreement ***. Customer will not allow the removal or defacement of any confidentiality or proprietary notice placed on any CSG documentation or products. The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature. (c) Disclosure. Neither party shall have any obligation to maintain the confidentiality of any Confidential Information which: (i) is or becomes publicly available by other than unauthorized disclosure by the receiving party; (ii) is independently developed by the receiving party; or (iii) is received from a third parry who has lawfully obtained such Confidential Information without a confidentiality restriction. If required by any court of competent jurisdiction or other governmental authority, the receiving party may disclose to such authority, data, information or materials involving or pertaining to Confidential Information to the extent required by such order or authority, provided that the receiving party shall first have used its best efforts to obtain a protective order or other protection reasonably satisfactory to the disclosing party sufficient to maintain the confidentiality of such data information or materials. If an unauthorized use or disclosure of Confidential Information occurs, the parties will take all steps which may be available to recover the documentation and/or products and to prevent their subsequent unauthorized use or dissemination. (d) Limited Access. Each party shall limit the use and access of Confidential -------------- Information to such party's bona fide employees or agents, including independent auditors and required governmental agencies, who have a need to know such information for purposes of conducting the receiving party's business and who agree to comply with the use and nondisclosure restrictions applicable to the products and documentation under this Master Agreement. If requested, receiving party shall cause such individuals to execute appropriate confidentiality agreements in favor of the disclosing party. Each party shall notify all employees and agents who have access to Confidential Information or to whom disclosure is made that the Confidential Information is the confidential, proprietary property of the disclosing party and shall instruct such employees and agents to maintain the Confidential Information in confidence. 20. SURVIVAL. Termination of this Master Agreement shall not impair either party's then accrued rights, obligations, liabilities or remedies. Notwithstanding any other provisions of this Master Agreement to the contrary, the terms and conditions of Sections 7, 8, 9, 10, 13, 14, 15, 17, 18, 19, 20, 23, and 30 shall survive the termination of this Master Agreement 21. *** 22. NATURE OF RELATIONSHIP. CSG, in furnishing Services and licensing Products to Customer hereunder, is acting only as an independent contractor. CSG does not undertake by this Master Agreement or otherwise to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer's business or operations. Customer understands and agrees that CSG may perform similar services for third parties and license same or similar products to third parties. Nothing in this Master Agreement shall be deemed to constitute a partnership or joint venture between CSG and Customer. Neither party shall hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of or binding upon the other party. 23. OWNERSHIP. All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Products, the "Deliverables" as defined under Schedule B, the Incorporated Third Party Software and other ---------- third party software (collectively the "Software Products") are and will remain the exclusive property of CSG or its licensors, whether or not specifically recognized or perfected under applicable law. Customer will not take any action that jeopardizes CSG's or its licensor's proprietary rights or acquire any right in the Software Products, except the limited use rights specified in the Schedules to this Master Agreement. CSG or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Software Products, including any improvement or development thereof Customer will obtain, at CSG's request, the execution of any instrument that may be appropriate to assign these rights to CSG or its designee or perfect these rights in CSG's or its licensor's name. 24. RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or any of its agencies is subject to restrictions set forth in the Commercial Computer Software and Commercial Computer Software Documentation clause at FAR 227.7202 and/or the Commercial Computer Software Restricted Rights clause at FAR 52.227.19(c) CSG Systems, Inc., 2525 North 117th Street, Omaha, Nebraska 68164. _________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -5- 25. INSPECTION. During the term of this Master Agreement and for *** CSG or its representative may, upon prior notice to Customer, inspect the files, computer processors, equipment and facilities of Customer during normal working hours to verify Customer's compliance with this Master Agreement While conducting such inspection, CSG or its representative will be entitled to copy any item that Customer may possess in violation of this Master Agreement. 26. FORCE MAJEURE. Neither party will be liable for any failure or delay in performing an obligation under this Master Agreement that is due to causes beyond its reasonable control, including, but not limited to, fire, explosion, epidemics, earthquake, lightening, failures or fluctuations in electrical power or telecommunications equipment, accidents, floods, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, fuel or energy shortages, acts or omissions of any common carrier, strikes, labor disputes, regulatory restrictions, restraining orders or decrees of any court, changes in law or regulation or other acts of governmental, transportation stoppages or slowdowns or the inability to procure parts or materials. These causes will not excuse Customer from paying accrued amounts due to CSG through any available lawful means acceptable to CSG. 27. ASSIGNMENT. Neither party may assign, delegate or otherwise transfer this Master Agreement or any of its rights or obligations hereunder without the other party's prior approval. Any attempt to do so without such approval will be void. Notwithstanding the foregoing, CSG may assign this Master Agreement, upon notice to Customer, to a related or unrelated person in connection with a sale, on of CSG's business, in whole or in part, and Customer hereby consents to such acquisition, consolidation or other assignment in advance. 28. NOTICES. Any notice or approval required or permitted under this Master Agreement will be given in writing and will be sent by telefax, courier or mail postage prepaid, to the address specified below or to any other address that may be designated by prior written notice. Any notice or approval delivered by telefax (with answer back) will be deemed to have been received the day it is sent. Any notice or approval sent by courier will be deemed received one day after its date of posting. Any notice or approval sent by mail will be deemed to have been received on the 5th business day after its date of posting. If to Customer: If to CSG: 21st Century Cable TV, Inc. CSG Systems Inc. 350 North Orleans, Suite 600 2525 N. 11 7th Ave. Chicago, Illinois 60654 Omaha, NE 68164 Tel: (312)470-2100 Fax: (312 470-2111 Tel: (402) 431-7000 Fax: (402) 431-7278 Attn: Richard Wiegand-Moss Attn: President and copy to Chief Operating Officer Corporate Counsel 29. ARBITRATION. (a) General. Any controversy or claim arising out of or relating to this ------- Master Agreement or the existence, validity, breach or termination thereof, whether during or after its term, will be finally settled by compulsory arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA'), as modified or supplemented under this Section. (b) Proceeding. To initiate arbitration, either party will file the ---------- appropriate notice at the Regional Office of the AAA in Omaha, Nebraska. The arbitration proceeding will take place in Omaha, Nebraska. The parties will in good faith agree on a sole arbitrator. If the parties are unable to agree on an arbitrator, the arbitration panel will consist of three (3) arbitrators, one arbitrator appointed by each party and a third neutral arbitrator appointed by the two arbitrators designated by the parties. Any communication between a party and any arbitrator will be directed to the AAA for transmittal to the arbitrator. The parties expressly agree that the arbitrators will be empowered to, at either party's request, grant injunctive relief. (c) Award. The arbitral award will be the exclusive remedy of the parties for ----- all claims, counterclaims, issues or accountings presented or plead to the arbitrators. The award will (i) be granted and paid in U.S. dollars exclusive of any tax, deduction or offset and (ii) include interest from the date of that the award is rendered until it is fully paid, computed at the maximum rate allowed by applicable law. Judgment upon the arbitral award may be entered in any court that has jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the arbitral award will be charged against the party that resists its enforcement. (d) Legal Actions. Nothing in this Section will prevent either party from ------------- seeking interim injunctive relief against the other party in the courts having jurisdiction over the other party. Nothing in this Section will prevent CSG from filing any debt collection action against Customer in the local courts. ____________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -6- 30. MISCELLANEOUS. All notices or approvals required or permitted under this Master Agreement must be given in writing. Any waiver or modification of this Master Agreement will not be effective unless executed in writing and signed by CSG. This Master Agreement will bind Customer's successors-in-interest. This Master Agreement will be governed by and interpreted in accordance with the laws of Nebraska, U.S.A., to the exclusion of its conflict of laws provisions. If any provision of this Master Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Master Agreement unless CSG in good faith deems the unenforceable provision to be essential in which case CSG may terminate this Master Agreement effective immediately upon notice to Customer. This Master Agreement together with the Schedules, Exhibits and attachments hereto which are hereby incorporated into this Master Agreement constitutes the complete and entire statement of all conditions and representations of the agreement between CSG and Customer with respect to its subject matter and supersedes all prior writings or understandings. THIS AGREEMENT IS NOT EFFECTIVE UNTIL SIGNED ON BEHALF OF BOTH PARTIES. IN WITNESS WHEREOF, the parties have executed this Master Agreement the day and year first above written. CSG Systems, Inc. ("CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ----------------------------- ------------------------------ Name: George F. Haddix Name: Richard Wiegand-Moss --------------------------- ---------------------------- Title: President Title: Chief Operating Officer -------------------------- --------------------------- -7- SCHEDULE A CCS SUBSCRIBER BILLING SERVICES 1. CCS SERVICES. Subject to the terms and conditions of the Master Agreement and for the fees described in Schedule F, ***. The CCS Services will provide ---------- Customer *** as more specifically described in the user documents: the User Guide, User Data File Manual, User Training Manual, Conversion Manual, Operations Guide, and Customer Bulletins issued by CSG (the "Documentation"). Customer's personnel shall ***. CSG and Customer acknowledge and agree that the Documentation describing the CCS Services is subject to ongoing review and modification from time to time. 2. COMMUNICATIONS SERVICES AND FEES. CSG shall provide, at Customer's expense, ***. Customer shall pay all fees and charges in connection with the installation and use of and peripheral equipment related to the *** in accordance with the fees described in Schedule F attached hereto. ---------- 3. IMPLEMENTATION/CONVERSION SERVICES AND FEES. CSG shall provide services as described on Exhibit A-2 attached hereto in connection with Customer's conversion of each System Site and for those added by mutual agreement of the parties to CSG's data processing system subsequent to the execution of this Master Agreement (the "Implementation/Conversion Services'). For System Sites added to Exhibit A- I subsequent to the Effective Date of the Master Agreement, Customer shall pay CSG the fees set forth in Schedule F for the performance of ----------- the Implementation/Conversion Services. 4. DECONVERSION SERVICES AND FEES. If Customer sells, transfers, assigns or disposes of any of the assets of or any ownership or management interest in any System Site (the "Disposed Site(s)"), Customer agrees to pay CSG *** which amounts shall be due and ***. CSG shall be under no obligation or liability to provide any deconversion tapes or records until all amounts due hereunder, and as otherwise provided in the Master Agreement shall have been paid in full. 5. OPTIONAL AND ANCILLARY SERVICES. At Customer's request, CSG shall provide optional and ancillary services, including but not limited to any described on Schedule F at CSG's then-current prices, or as may otherwise be set forth in Schedule F. and where applicable on the terms and conditions set forth in - ---------- separately executed Schedules to the Master Agreement. 6. CUSTOMER INFORMATION. Any original documents, data and files provided to CSG hereunder by Customer ('Customer Data") are and shall remain Customer's property, and upon termination of this Master Agreement for any reason or deconversion of any System Site, such Customer Data shall be returned to Customer by CSG, subject to the payment of CSG's then-current rates for processing and delivering the Customer Data, any applicable deconversion fees required under Section 4 hereof and all unpaid charges for services and equipment if any, including late charges incurred by Customer. Customer Data will not be utilized by CSG for any purpose other than those purposes related to rendering the services to Customer under the Master Agreement. Data to be returned to Customer includes: Subscriber Master File (including Work Orders, Converters and General Ledger), Computer-Produced Reports (reflecting activity during period of 90 days immediately prior to Schedule A termination), House Master File, Any other related data or files held by CSG on behalf of Customer. 7. PROCESSING MINIMUM. If at any time the fees and charges for the CCS Services incurred as computed pursuant to Schedule F are less than a minimum of *** in processing fees *** (the "Minimum"), Customer agrees to pay the Minimum for each System Site. 8. DISCONTINUANCE FEE. CSG has determined the fees for the CCS Services hereunder based upon certain assumed volumes of processing activity for the System Sites and the length of the term of this Schedule A- Customer acknowledges that, without the certainty of revenue promised by the commitments set forth in this Master Agreement, CSG would have been unwilling to provide the CCS Services at the fees set forth in Schedule F. Because of the difficulty in ascertaining CSG's actual damages for a termination or other breach of this Master Agreement or Schedule A by Customer resulting in a termination of this -------- Master Agreement or Schedule A before the expiration of the then-current term with respect to one or more System Sites, Customer agrees that prior to such termination and in addition to all other amounts then due and owing to CSG, Customer will pay to CSG (as a contract discontinuance fee and not as a penalty) an amount equal to ***. If this Schedule A is terminated with respect to less -------------- than all of the System Sites, the ***. Customer acknowledges and agrees that the Discontinuance Fee is a reasonable estimation of the actual damages which CSG would suffer if CSG were to fail to receive the amount of processing business contemplated by this Schedule A. ---------- 9. Term. The first day of the calendar month in which the CCS Services commence shall be referred to as the "Commencement Date." The CCS Services shall continue from the Commencement Date for a period of ***. ___________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -8- Agreed and accepted this ____ day of _________, 1997, by: CSG SYSTEMS, INC. ("CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ------------------------------ ------------------------------------- -9- EXHIBIT A-1 SYSTEMS SITES ESTIMATED IMPLEMENTATION CONVERSION DATE Chicago, Illinois -10- EXHIBIT A-2 CCS Implementation and Conversion *** _________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -11- SCHEDULE B CSG TECHNICAL AND CONSULTING SERVICES ------------------------------------- 1. GENERAL. Subject to the terms and conditions of the Master Agreement and for the fees and expenses described below, Customer hereby hires CSG, and CSG hereby agrees, to provide the design, development and/or other consulting services described in the statement of Works contemplated under Section 2, which may include services by *** to Customer as its independent contractor. 2. TECHNICAL SERVICES. (a) Reasonable Efforts. CSG will use its reasonable commercial efforts to ---------- perform all Technical Services in a timely and professional manner satisfactory to Customer and in accordance with the applicable Statement of Work. (b) Projects Schedules. CSG and Customer will execute a schedule substantially - ------------------ similar to Exhibit B-1 (the "Statement of Work") for each design, development and/or other consulting service that Customer wants CSG to undertake. CSG and Customer acknowledge that all Statement of Works will form an integral part of this Schedule B. ---------- (c) Location and Access. CSG may perform the Technical Services at Customer's ------------ premises, CSG's premises or such other premises that Customer and CSG may deem appropriate. Customer will permit CSG to have reasonable access to Customer's premises, personnel and computer equipment for the purposes of performing the Technical Services at, Customer's premises. (d)Insurance. CSG will be solely responsible for obtaining and maintaining appropriate insurance coverage for its activities under this Schedule B, ---------- including, but not limited to, comprehensive general liability (bodily injury and property damage) insurance and professional liability insurance. 3. CONSIDERATION. (a) Project Fees. In consideration for performing the Technical Services, ------------ Customer will pay CSG the fee that may be contemplated under the Statement of Works (the "Project Fees"). (b) Reimbursable Expenses Unless otherwise contemplated under the Statement of --------------------- Work, Customer will ***. (c) Payment. Customer will pay the Project Fees to CSG according to the ------- applicable terms set forth in the Statement of Work. Unless otherwise contemplated in the Statement of Work, Customer will pay CSG the Reimbursable Expenses within *** after the receipt of CSGs invoice and supporting receipts. ***. 4. CSG RIGHTS. Customer acknowledges that all patents, copyrights, trade secrets or other proprietary rights in or to the work product that CSG may create for Customer under this Schedule B (the 'Deliverables"), including, but not limited to, any ideas, concepts, inventions or techniques that CSG may use, conceive or first reduce to practice in connection with the Technical Services, are and will be the exclusive property of CSG, except as and to the extent otherwise specified in the applicable Statement of Work. During and after the term of this Schedule B. CSG and Customer will execute the instruments that may ---------- be appropriate or n to give full legal effect to this Section 4. 5. DELIVERY OF ITEMS. Upon the expiration or termination of this Schedule B for any reason, Customer will promptly pay CSG the Project Fees and Reimbursable Expenses that may be due and outstanding for the Technical Services and Deliverables that CSG has performed, and CSG will deliver to Customer all notebooks, documentation and other items that contain, in whole or in part any Confidential Information that Customer disclosed to CSG in performance of the Technical Services under this Schedule B. ---------- 6. TERM. The term of this Schedule B shall be for a period of ***, but in any case will extend for the term of any executed Statement of Work. Agreed and accepted this 28th day of May, 1997, by: CSG SYSTEMS, INC. ("CSG") 21ST CENTURY CABLE TV, INC. (Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ---------------------------- ------------------------------------ EXHIBIT B-1.........SAMPLE STATEMENT OF WORK _______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -12- EXHIBIT B-1 STATEMENT OF WORK (sample form) THIS STATEMENT OF WORK is made as of 1997, between CSG Systems, Inc. ('CSG"), and 21st Century Cable TV, Inc. ("Customer"), pursuant to Schedule B of the Master Agreement that CSG and Customer executed as of _________________, 1997, and of which this Statement of Work forms an integral part. OBJECTIVE: - ---------- PROCEDURES: - ----------- TIMETABLE: Commencement Date: ____________________ - ---------- Completion Date: ______________________ DELIVERABLES: - ------------- PROJECT FEES AND PAYMENT TERMS: - ------------------------------- IN WITNESS WHEREOF, CSG and Customer cause this Statement of Work to be duly executed below. CSG SYSTEMS, INC. ("CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: _____________________________ By: ____________________________________ Name: ___________________________ Name: __________________________________ Tide: ___________________________ Title: _________________________________ Date: ___________________________ Date: __________________________________ -13- SCHEDULE C CCS PRODUCTS SOFTWARE LICENSE ----------------------------- *** CSG SYSTEMS, INC. ("CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ---------------------------- ------------------------------------- EXHIBIT C-I PRODUCT SCHEDULE EXHIBIT C-2 DESIGNATED ENVIRONMENT EXHIBIT C-3 INSTALLATION, MAINTENANCE AND SUPPORT ____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -14- EXHIBIT C-1 *** ___________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -15- EXHIBIT C-2 *** ______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -16- EXHIBIT C-3 (page 1 of 3) *** ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -17- SCHEDULE F FEE SCHEDULE ------------ *** __________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -18- SCHEDULE G *** 1. SERVICES. Subject to the terms and conditions of the Master Agreement CSG will provide to Customer, and Customer will purchase from CSG, *** set forth in this Schedule G for ***. ---------- 2. POSTAGE. CSG agrees to *** ("Subscriber Statements"), ***. Customer shall *** incurred in the performance of the *** by CSG on behalf of Customer. 3. COMMUNICATIONS SERVICES. CSG shall provide, at Customer's expense, ***. 4. ANCILLARY SERVICES. At Customer's request, CSG shall provide the ancillary services described in Schedule F attached hereto (the "Ancillary Services") at ---------- the rates described in Schedule F. ------------- 5. ***. Presentation Services. If during the original term of the Master Agreement, Customer provides written notice to CSG of its intent to utilize *** "Customer's Intellectual Property" means the trademarks, service marks, other indicia of origin, copyrighted material and art work owned or licensed by Customer that CSG may use in connection with designing, producing and mailing *** and performing its other obligations pursuant to this Agreement. "CSG Intellectual Property" means trademarks, service marks, other indicia of origin, copyrighted material and art work owned or licensed by CSG and maintained in CSG's public library that may be used in connection with designing, producing and mailing ***. (a) Development and Production of ***. CSG will perform the design, --------------------------------- development and programming services related to design and use of the ***(the "Work") and create the work product deliverables (the "Work Product") set forth in a separately executed and mutually agreed upon *** Work Order (the "Work Order") after the effective date set forth on the Work Order. The ***. Except with respect to Customer's Intellectual Property, Customer agrees that the Work and Work Product shall be the sole and exclusive property of CSG. Customer shall have no proprietary interest in the Work Product or in CSGs billing and management information software and technology and agrees that the Work Product is not a work specially ordered and commissioned for use as a contribution to a collective work and is not a work made for hire pursuant to United States copyright law. After CSG has completed the Work and the Work Product, CSG will produce *** for Customer. (b) Supplies. CSG will suggest and Customer will select the type and quality -------- of the paper stock, carrier envelopes and remittance envelopes for the *** (the "Supplies"). CSG shall purchase Customer's requirements of Supplies necessary for production and mailing of the***. CSG shall charge Customer the rates set forth in Schedule F for purchase of Supplies. ---------- (c) License of Customer's Intellectual Property. Customer licenses to CSG to ------------------------------------------- use all of Customer's Intellectual Property necessary to design, produce and mail the *** and perform CSG's other rights and obligations pursuant to Section 5(a) of this Schedule G, including, but not limited to, the Intellectual Property listed in the Work Order. CSG shall have the right by notice to Customer to cease use of any of Customer's Intellectual Property on *** at any time. Customer represents and warrants that it owns or has licensed all Customer's Intellectual Property and has full power and authority to grant CSG the license set forth herein and that CSG's use of Customer's Intellectual Property on the *** will not constitute a misuse or infringement of the Customer's Intellectual Property or an infringement of the rights of any third party. Customer will use best efforts to maintain its rights to use and license Customer's Intellectual Property and will immediately advise CSG of the loss of Customer's right to use any Customer's Intellectual Property and will advise CSG of all copyright and other notices that must be used in connection with Customer's Intellectual Property and of any restrictions on use of Customer's Intellectual Property relevant to CSG. (d) Indemnification Relating to ***. Customer shall indemnify, defend and hold ------------------------------- CSG harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto (including attorneys' fees), directly or indirectly resulting from Customer's breach of any representation or warranty under this Section 5, Customer's Intellectual Property, the Work Product, and the printing and mailing of ***, except for those arising out of CSG Intellectual Property. 6. PER CYCLE MINIMUM. As of the Commencement Date as defined in Section 9 below, for each month that this Agreement is in effect, Customer will maintain per each billing cycle a minimum of *** on the CSG System. Per System Site, Customer will have a minimum of ***. _______________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -19- 7. Discontinuance Fee. CSG has determined the fees for the CCS Services hereunder based upon certain assumed volumes of processing activity for the System Sites and the length of the term of this Schedule A. Customer ---------- acknowledges that, without the certainty of revenue promised by the commitments set forth in this Master Agreement CSG would have been unwilling to provide the CCS Services at the fees set forth in Schedule F. Because of the difficulty in ascertaining CSG's actual damages for a termination or other breach of this Master Agreement or Schedule A by Customer resulting in a termination of this -------- Master Agreement or Schedule A before the expiration of the then-current term with respect to one or more System Sites, Customer agrees that prior to such termination and in addition to all other amounts then due and owing to CSG, Customer will pay to CSG (as a contract discontinuance fee and not as a penalty) an amount equal to ***. If this Schedule A is terminated with respect to less ---------- than all of the System Sites, ***. Customer acknowledges and agrees that the Discontinuance Fee is a reasonable estimation of the actual damages which CSG would suffer if CSG were to fail to receive the amount of processing business contemplated by this Schedule A. ---------- 8. DEPOSIT. At least seven (7) days prior to the Commencement Date of the *** set forth in Section 9 below, Customer shall pay CSG a security deposit (the "Deposit") for the payment of the expenses described in Sections 2 and 3 of this ---- Schedule G (the "Disbursements"). The Deposit will equal the estimated amount - ---------- of Disbursements for *** as determined by CSG based upon the project volume of applicable services to be performed monthly by CSG. If Customer incurs Disbursements greater than the Deposit for any month, Customer shall, within thirty (30) days of receipt of a request from CSG to increase the Deposit, pay CSG the additional amount to be added to the Deposit. If Customer fails to pay the additional amount requested within such 30-day period, CSG may terminate this Master Agreement as provided for in Section 17. Upon written request from Customer, CSG will return to Customer a portion of the Deposit if the Disbursements incurred by Customer on a monthly basis are less than the Deposit for three (3) consecutive months. In addition to the foregoing, CSG shall have the right to apply the Deposit to the payment of any invoice from CSG which remains unpaid during the term of this Agreement, and Customer agrees to replenish any such Deposit amount as set forth above. Any portion of the Deposit that remains after the payment of all amounts due to CSG following the termination or expiration of this Master Agreement will be returned to Customer. Customer shall not be entitled to receive interest on the Deposit while it is maintained by CSG. 9. TERM. The first day of the calendar month in which the *** commence shall be referred to as the Commencement Date." The *** shall continue for a period of *** from the Commencement Date. Agreed and accepted this ____ day of ______, 1997, by: CSG SYSTEMS, INC. ("CSG") 21ST CENTURY CABLE TV, INC. ('Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ------------------------------ ----------------------------- _______________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -20- Exhibit G-1 ----------- System Sites Chicago, Illinois -21- SCHEDULE H INCORPORATED THIRD PARTY SOFTWARE AND LICENSES AND THIRD PARTY RIGHTS ADDITIONAL TERMS AND CONDITIONS A. INCORPORATED THIRD PARTY SOFTWARE - ------------------------------------ The following terms and conditions supplement, and where in conflict, supersede the terms and conditions contained in the Agreement but solely with respect to the identified item of Incorporated Third Party Software. There is no Incorporated Third Party Software in the CCS Products. B. THIRD PARTY RIGHTS - --------------------- The following terms and conditions supplement, and where in conflict supersede the terms and conditions contained in the Master Agreement and any Schedule, but solely with respect to the Third Party Rights described below. CSG may provide Customer with Products, Incorporated Third Party Software and Services subject to patent or copyright licenses that third parties, including ***. Customer acknowledges that Customer receives no express or implied license under the Third Party Licenses other than the right to use the Products, Incorporated Third Party Software and Services, as provided by CSG, in the cable system operator industry. Any modification of or addition to the Products, Incorporated Third Party Software or Services or combination with other software, hardware or services not made or provided by CSG is not licensed under the Third Party Rights, expressly or implicitly, and may subject Customer and any third party supplier or service provider to an infringement claim. *** other than through the authorized use of the Products, Incorporated Third Party Software or Services as provided by CSG. Agreed and accepted this _____ day of _______________1997, by: CSG SYSTEMS, INC. (-CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss --------------------------- ------------------------------------- _____________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -22- SCHEDULE I *** 1. ***. Subject to the terms and conditions of the Master Agreement for the term set forth in Section 10 below and for the fees set forth in Schedule F, ---------- subsequent to the Effective Date of the Master Agreement once Customer provides CSG with written notice of its desire to obtain the *** 2. ADDITIONAL SERVICES. In the event Customer desires for CSG to provide other services in addition to the Basic Services set forth in Section 1, the parties agree to negotiate in good faith with respect to the terms and conditions (including without limitation, pricing) on which such services shall be provided. Such services include, but are not limited to (i) special computer runs or reports, special accounting and information applications; and (ii) data processing and related forms and supplies and equipment other than those provided as standard pursuant to this Agreement (die "Additional Services"). The description of any such additional services, and any other terms and conditions related thereto, shall be set forth in an amendment to , this Agreement signed and dated by both parties. Unless otherwise agreed in writing by the parties in such amendment any such additional services shall be subject to the terms of this Schedule 1. ---------- 3. *** 4. SUBSCRIBER AUTHORIZATION. Customer shall obtain from each Subscriber ***. 5. REVIEW OF REPORTS. To maintain system integrity, Customer will inspect and review all reports and output created from information transferred or delivered by CSG and reject all incorrect reports within ***. Failure to timely reject any report or output shall constitute acceptance thereof, and Customer shall be deemed to have waived its rights and assumed all risks with respect thereto. 6. COMPLIANCE WITH LAWS. Customer will comply in all material respects with all federal state or local km and regulations pertaining to electronic payment processing. In the event of clear evidence of significant fraudulent activity by Customer, the Basic Services and any Additional Services will be discontinued immediately and any funds on the way to Customer will be impounded immediately. 7. COLLECTION DATA. Customer shall update subscriber account balance information to provide necessary data for the Basic Services and any Additional Services and shall ensure through periodic checks and updates that the data is current and accurate at all times. 8. SETTLEMENT OF RETURNS. Customer is ultimately responsible (a) for adequately funding the reserve account when using the weekly or monthly settlement process as described in Schedule A herein, and (b) when using the daily settlement process as described in Exhibit 1-1 herein, to cover on a daily basis all return debits incurred by Vendor (as defined in Exhibit I-1) and in the event collections have ceased, Customer shall be obligated to pay within ten (10) days any unfunded return amounts not funded to cover all remaining return debits. 9. INDEMNIFICATION BY CUSTOMER. Customer shall indemnify. defend and hold CSG, its Vendors (as defined in Exhibit 1-1), shareholders, directors, officers and employees harmless from any and all third party claims, losses, actions, suits, proceedings or judgments, including, without limitation, costs and reasonable attorneys' fees, incurred by or assessed against CSG resulting, in whole or in part, from (i) any and all acts or omissions of Customer, its officers, directors, shareholders, employees and agents, (ii) any action or failure to act by CSG in reliance on any Customer instruction, approval, election, decision, action, inaction, omission or nonperformance relating to the Services, or (iii) any information or data provided to CSG by Customer, provided, however, Customer shall not be required to indemnify CSG if such claims arise out of, relates to, or results from the gross negligence or intentional misconduct of CSG. ____________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -23- 10. RELIANCE ON INFORMATION. CSG shall be entitled to rely upon and act in accordance with any instructions, guidelines or information provided to CSG by Customer, which are given by such persons as have actual or apparent authority to provide such instructions, guidelines or information and shall incur no liability in doing so. 11. TERM . This Schedule I shall be effective on the date of commencement of the *** Services and continue for a period *** years. Agreed and accepted this _____ day of _____________, 1997, by: CSG SYSTEMS, INC. ("CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ------------------------------ ------------------------------------ EXHIBIT 1-1......Basic Services ______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -24- EXHIBIT I-1 *** ___________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -25- SCHEDULE K *** 1. ***. 2. DEFINITIONS RELATING TO INTELLECTUAL PROPERTY. "Customer's Intellectual Property" means the trademarks, service marks, other indicia of origin, copyrighted material and art work owned or licensed by Customer that CSG may use in connection with designing, producing and operating *** and performing its other obligations pursuant to this Agreement 'CSG Intellectual Property" means trademarks, servicemarks, other indicia of origin, copyrighted material and art work owned or licensed by CSG and maintained in CSG's public library that may be used in connection with designing, producing and operating ***. 3. DEVELOPMENT AND PRODUCTION OF ***. CSG will perform the design, development and programming services related to design and use of *** and create the work product deliverables (the "Work Product") set forth in a separately executed and mutually agreed upon *** work order in the form set forth in Exhibit K-3 attached hereto (the "Work Order") after the Effective Date set forth on the Work Order. *** will contain the CSG Intellectual Property and the Customer Intellectual Property set forth on the Work Order. Customer shall pay CSG the development fee for the Work Product set forth on the Work Order. After CSG has completed the Work Product CSG will produce and operate *** for Customer. 4. OWNERSHIP OF ***. Except with respect to Customer Intellectual Property, Customer agrees that all patents, copyrights, trade secrets and other proprietary rights in or to the Work Product shall be the sole and exclusive property of CSG, whether or not specifically recognized or perfected under applicable law. Customer shall not have or acquire any proprietary interest in the Work Product, including the actual format or layout for Customer or in CSG's billing and management information software and technology (the "CCS System"). Customer agrees that the Work Product are not works specially ordered and commissioned for use as a contribution to a collective work and are not works made for hire pursuant to U.S. Copyright Law. CSG hereby grants to Customer, and Customer accepts from CSG, a non-exclusive, non-transferable, paid up, royalty fee and perpetual right to use, reproduce, copy and display the design and format of the completed Work Product. 5. CUSTOMER'S INTELLECTUAL PROPERTY REPRESENTATIONS. Customer acknowledges that CSG may use all of Customer's Intellectual Property necessary to design, produce and operate *** and perform CSG's other rights and obligations pursuant to Schedule K of this Master Agreement CSG shall have the fight to cease use of any of Customer's Intellectual Property on *** at any time, upon notice to Customer. Customer represents and warrants that it owns or has licensed all Customer's Intellectual Property, and that CSG's use of Customer's Intellectual Property on ***. Pages will not constitute a misuse or infringement of the Customer's Intellectual Property, or an infringement of the rights of any third party. Customer will use best efforts to maintain its rights to use and license Customer's Intellectual Property, will immediately advise CSG of the loss of Customer's right to use any Customer's Intellectual Property, and will advise CSG of all copyright and other notices that must be used in connection with Customer's Intellectual Property and of any restrictions on use of Customer's Intellectual Property relevant to CSG. 6. INDEMNIFICATION RELATING TO ***. Notwithstanding anything to the contrary set forth in this Master Agreement Customer shall indemnify, defend and hold CSG harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto (including attorneys' fees), directly or indirectly resulting from Customer's breach of any representation or warranty under Section 5 of this Schedule K. and ---------- from any claim arising from CSG's actions on behalf of Customer in designing the Work Product producing and operating of *** or otherwise relating to this Schedule K, except for those claims arising from CSG Intellectual Property. - ---------- ____________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -26- 7. TERM. The day this Schedule K is executed as set forth below shall be referred to as the "Commencement Date." This Schedule K shall continue from the Commencement Date for a period of ***. Agreed and accepted this ______ day of ____________, 1997, by: CSG SYSTEMS, INC., ("CSG") 21ST CENTURY CABLE TV, INC. ("Customer") By: /s/ George F. Haddix By: /s/ Richard Wiegand-Moss ---------------------------- ------------------------------------- EXHIBIT K-1....*** Description of Service Service Bureau EXHIBIT K-2....Word Order (sample format) ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -27- EXHIBIT K-1 *** ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -28- EXHIBIT K-2 WORK ORDER (SAMPLE FORMAT) THIS WORK ORDER is made as of __________________. between CSG Systems, Inc., ("CSG"), and ________________ ("Customer"), pursuant to the *** Services Agreement that CSG and Customer executed as of ________________, 1997, and of which this Work Order forms an integral part.***. IN WITNESS WHEREOF, CSG AND CUSTOMER CAUSE THIS WORK ORDER TO BE DULY EXECUTED BELOW. CSG SYSTEMS, INC. ("CSG") ("Customer") By: _______________________________ By: _______________________________ Name: _____________________________ Name: _____________________________ Title: ____________________________ Title: ____________________________ Date: _____________________________ Date: _____________________________ ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -29- EX-10.4 3 EXHIBIT 10.4 EXHIBIT 10.4 JUNE 26, 1997 ------------- REVISED JULY 14,1997 PRESENTED TO 21/ST/ CENTURY THANK YOU --------- for giving us the opportunity to present our capabilities to you. This Proposal was assembled after research and consideration of how to best meet your stated goals. In Marketing Services, Inc. believes we can make a substantial contribution to your sales and marketing program. We work hard to determine the best, most cost-effective way to match our capabilities with your needs. We are pleased to present our recommendations to you today. ITI Delivers. GUARANTEED. ITI marketing Services 902 North 91st Plaza Omaha, Nebraska 68114 Phone 800-562-5000 CONTENTS -------- 1 Executive Summary 2 Program Overview 3 Critical Success Factors 5 Service Plan 7 Account Management 8 Recruitment & Training 9 Operations 10 Quality Assurance 11 Systems 12 Disaster Recovery 13 Commitment 14 Price Quotation/ Acceptance/Terms ITI MARKETING SERVICES The Teleservices Solution [LETTERHEAD OF MARKETING SERVICES APPEARS HERE] July 14, 1997 Richard Wiegand-Moss Chief Operating Officer 21/st/ CENTURY 350 N. Orleans Suite 737 Chicago, IL 60654 Dear Richard, Thank you for your continued interest in ITI Marketing Services, Inc. I am certain you will find ITI to be a true strategic partner you can rely upon for telemarketing advice and program consultation in helping you achieve your goals on this customer care project. We are pleased to present the attached Revised Proposal for your consideration. Please review the enclosure at your earliest convenience. Upon approval, sign both originals, forward one to Amy Schumacher at 902 N. 91/st/ Plaza Omaha, NE 68114, and retain the other for your files. Upon receipt of the signed Proposal and initial setup fee, we will promptly begin implementation and execution of your inbound dedicated program. We are very excited about the customer service opportunity and look forward to a mutually beneficial relationship. Please contact me with any questions you may have at (800) 562-5000, or directly at (402) 392-9222. Thank you again for your consideration. Sincerely, ITI MARKETING SERVICES, INC. Michael J. Lee EXECUTIVE SUMMARY - ------------------------------------------------------------------------------- Since our incorporation in 1986, ITI Marketing Services, Inc. (ITI) has grown to become one of the nation's leading telemarketing service agencies, providing Inbound, Outbound, Bilingual (Hispanic) and Interactive services to many of the Fortune 1000 companies. With over 3,400 Inbound and Outbound workstations and more than 9,000 talented employees processing over 150 million calls annually, ITI is consistently listed in the top 10 of the "Top 50 Service Agencies," as listed annually in Telemarketing and Call Center Solutions magazine. ITI's market focus is to support customized programs. We are experienced in a wide range of applications ranging from basic lead generation and order processing, to dealer/locator, to the implementation of sophisticated, dedicated programs and customer service support. ITI is dedicated to not only working for you, but also with you in achieving your goals. We believe in establishing partner-like relationships with our clients based upon mutual understanding and communication supported through shared dedication and trust. 21/st/ Century: Proposal July 14, 1997 Page 1 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL PROGRAM OVERVIEW - -------------------------------------------------------------------------------- 21/st/ Century has requested ITI to present a comprehensive Proposal for inbound customer care services. 21/st/ Century is developing a bundled offering with a cable television service, Internet access, high-speed date transmission, long distance telephone service, cellular, paging and security services. These services with be offered to some 300,000 residential houses, and 500,000 hotel rooms along Chicago's lakefront area. Other areas that might be targeted include Michigan, Illinois and Indiana. ITI would utilize the Cable Control Systems (CCS) through CSG Systems, Inc. to provide the customer care services utilizing ITI Customer Service Sales Representatives (CSSRs). If actual call volumes do not meet or exceed minimum projections, both 21/st/ Century and ITI will in good faith discuss future program development's and direction of ongoing customer service work. FOR ITI TO BE PREPARED FOR YOUR PROGRAM LAUNCH, YOUR START DATE IS DEPENDENT UPON RECEIPT OF ALL REQUIRED INFORMATION THREE WEEKS IN ADVANCE OF THE START DATE. Required information includes, but is not limited to: finalized input and output requirements, file formats, transmission protocols and specifications, magnetic media specifications, data editing/formatting rules, scripts, answers, responses, reporting requirements including samples or drafts of reports, test files (reference databases), volume projections and media and development schedules. 21/st/ Century: Proposal July 14, 1997 Page 2 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL CRITICAL SUCCESS FACTORS - ------------------------------------------------------------------------------- At ITI, we believe the results of your telemarketing initiative are contingent upon focused, consistent attention to the following critical success factors. ITI is dedicated to addressing these fundamentals which will be integrated as part of an overall service plan: Call Quality ITI requires all CSSRs conduct themselves in a professional, competent, and courteous manner to portray a sense of integrity. Every call must create a favorable impression and a seamless service plan. ITI is committed to the uncompromising quality of our CSSR staff. A Quality Assurance Plan, which includes service standards, will be developed for your program. Those components include: call monitoring, accuracy, script adherence, test calling and on-the-floor observation, coaching and counseling. Data Accuracy ITI believes it is imperative that the data collected on your and Reporting program be be accurately recorded and reported. ITI consistently monitors the information gathered for accuracy and incorporates a verification system for all data collected. ITI has the technical expertise to report and transmit data in a wide variety of formats and within the timeframes required. Volume Capacity ITI has experience with programs that produce wide volume fluctuations and constantly monitors programs to determine needs for realignment of volume coverage. ITI will work closely with you to develop anticipated call volume coverage requirements and create alternative staffing plans for timely implementation as required. 21/st/ Century: Proposal July 14, 1997 Page 3 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL CRITICAL SUCCESS FACTORS - CONTINUED... - ------------------------------------------------------------------------------- Account Management ITI assigns an Account Team consisting of a Sales Team Executive,Account Manager, Quality Assurance Manager, Systems Manager, Operations Manager and Training Coordinator to each program. These members hold the responsibility for analyzing business plans and developing detailed agendas for implementation and on-going maintenance. Additionally, an Account Executive from the Vice Presidential level or higher is assigned to serve and provide valuable insight. Cost Effectiveness ITI believes a superior service plan is able to balance costs and the quality of service. ITI has years of experience in handling a wide variety of programs. Our goal is to provide you with cost-effective services and, whenever possible, recommend ways to reduce costs while still maintaining the level of service our clients require. 21/st/ Century: Proposal July 14, 1997 Page 4 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL SERVICE PLAN - INBOUND - -------------------------------------------------------------------------------- ITI will provide the following inbound services to support the 21/st/ Century program: Service Availability Inbound call handling services are available 24 hours a day, 7 days a week. On a monthly average, we manage to an 80 percent service level of all calls within our Shared Group. Toll-Free Number ITI will assign exclusive toll-free numbers if necessary Assignment for the entire length of the program. Clients may also elect to transfer their preferred numbers to ITI for the entire length of the promotion. Customized Greeting Your specifically preferred greeting is delivered on programs utilizing exclusive toll-free numbers. Script Design Working in conjunction with you and your organization, ITI will develop automated call scripting. Script revisions may be made as needed to introduce new products or services, or to improve the efficiency or effectiveness of the call. Program-specific resource materials can also be made available for on-line reference. Training A Training Supervisor will be assigned to coordinate the introduction of the program as well as the CSG/CCS System Training. This individual develops both the implementation training material and enhancement training as required. All representatives will be required to pass a product knowledge examination prior to handling your calls. Quality Assurance A comprehensive Quality Assurance Plan, including program standards, will be implemented. Components of this plan typically include call monitoring, accuracy, script adherence, test calling and on-the-floor observations. 21/st/ Century: Proposal July 14, 1997 Page 5 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL SERVICE PLAN - INBOUND - CONTINUED... - -------------------------------------------------------------------------------- Reporting Detailed call summary reports, including incomplete call summaries, are available on a daily basis. In our Shared Services Group, client specific reporting relative to the number of calls which are busied or other ACD reporting is not available. ACD reports will be e-mailed on a daily basis with a month end report sent two business days after the end of the month. Account Team members assigned to your program will include a Sales Management Team Executive, Quality Assurance Manager, Account Manager, Systems Manager, Operations Manager, Training Coordinator and Senior Account Executive. Quarterly Business Quality Business Reviews (QBRS) include an analysis of call Reviews handling, overall performance, and results achieved relative to goals and objectives. Future objectives and strategies, as well as service requirements to support them, are also addressed. These reviews may involve client visits to ITI's facility, although business reviews conducted via conference call have been successful as well. 21/st/ Century: Proposal July 14, 1997 Page 6 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL PENALTIES FOR NON PERFORMANCE - -------------------------------------------------------------------------------- As long as actual call volume fall within ***% of client supplied projections and service level requirements are based on ***% of the calls answered within 30 seconds; ITI will reduce price of dedicated staffed station $*** per hour for every 2.5 seconds we exceed 30 seconds. This will be looked at on a weekly basis to determine the actual average speed of answer. If ITI exceeds client's goal of ***% of the customer calling in receiving a busy signal in the dedicated environment, ITI will deduct $*** per hour for every one percent over three percent. 21/st/ Century: Proposal July 14, 1997 Page 7 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. ACCOUNT MANAGEMENT - -------------------------------------------------------------------------------- Upon receipt of a signed contract, your Sales Executive will formally transition the bulk of the day-to-day communications regarding the account to your Account Manager. The Account Manager is the primary point of contract and will coordinate the setup and execution of your account. Within ITI, the Account Manager interacts with Department Heads to coordinate the launch of your program. The Account Manager serves as the central point of contact and your advocate to ensure your goals are being achieved. The Account Manager will work with you, the client, and our internal departments to develop and maximize critical performance factors to include, but not be limited to: . Develop Scripting . Test Data . Performance Objectives . Analyze and Interpret Results . Forecast Staffing Needs . Plan Strategies To Meet Performance Objectives ITI has a track record of establishing mutually profit-able, long-lasting relationships with our clientele. We believe our approach to Account Management and our commitment to partnerships have been the cornerstones to our success. 21/st/ Century: Proposal July 14, 1997 Page 8 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL RECRUITMENT AND TRAINING - -------------------------------------------------------------------------------- ITI recruits qualified individuals who not only meet specific standards of performance and possess the necessary skills, but also people with a dedication to quality and drive for success. Skills include: sales and communication abilities, spelling, speech, grammar, reading comprehension, typing and, in some cases, mathematical aptitude. All potential CSSRs must initially pass a telephone interview, which determines voice quality and speech proficiency. The second step involves a group interview which includes an overview of the position, introduction to ITI, as well as a script reading by each candidate. Typing, spelling and abbreviation tests are then administered, and those who qualify move on to a personal interview-. Through our in-depth recruiting analysis, ITI's clients are assured high quality call center representation (only 17 percent of those people interviewed become CSSRS). ITI is recognized for offering compensation packages which exceed those of any competitors within the cities in which we operate. Additionally, M offers a full benefits package, including medical coverage, a 401k Plan and profit sharing to both full-time and part-time employees. These factors allow ITI to recruit the most qualified individuals and to retain these valuable employees longer than our competition. In fact, ITI's turnover is just one quarter of the industry average. ITI's commitment to providing industry-leading compensation packages enables us to provide our clients with representatives, as well as reduced turnover and training costs. Upon acceptance, CSSRs begin a five to ten day classroom training program. Initial training involves a corporate orientation and an overview of policies and procedures with an emphasis on ITI's standards of quality and performance. Training includes a comprehensive introduction to ITI's clients and their programs as well as intensive product knowledge education. The class is also educated, in depth, on our automated system, followed by group and individual role-play exercises. Product knowledge/system examinations are conducted and each new employee must pass with a minimum score of 90 percent. As the CSSRs move from the classroom environment to the call center, they begin on-the-job training (OJT). During the OJT period, Team Sales Supervisors are assigned to small, manageable teams of CSSRS. The trainer may also work with each team, providing one-on-one education through call coaching, demonstration and side-by- side call monitoring. ITI maintains the highest standards while hiring and training quality sales representatives who will master your program, capture the information required and ensure your company s image is maintained. 21/st/ Century: Proposal July 14, 1997 Page 9 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL OPERATIONS - -------------------------------------------------------------------------------- The ITI Inbound Operations Management Team is responsible for managing all aspects of the Inbound Calling Center. This team consists of a Director of Operations, Operations Managers, Program Managers, Program Supervisors and Team Supervisors. The Director of Operations and Operations Managers are responsible for managing the call centers on a global basis. They oversee all hiring, training, performance, quality, call flow and all administrative aspects of the call center. Operations Managers, Program Managers, and Program Supervisors are responsible for managing the day-to-day activities of the CSSRs. The primary objective of this group is to ensure all personnel are handling each call in accordance with the agreed-upon client standards and objectives. To ensure adherence to our client's objectives, ITI provides extensive training to all Supervisory Personnel. Typically, an ITI Supervisor will have spent at least six months taking inbound calls prior to being eligible for promotion to Supervisor. This training affords an ITI Supervisor the ability to have a greater understanding of the demands of the CSSR position. The ratio of Supervisory Personnel to CSSRs vary to program requirements, but will approximate 1 Management Person to 9.4 Representatives. Maintaining ratios at these levels ensures each client that the individuals taking their calls are being given the necessary attention to properly execute each phone call. 21/st/ Century: Proposal July 14, 1997 Page 10 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL QUALITY ASSURANCE - -------------------------------------------------------------------------------- The key component to ITI's industry-leading level of call quality is our commitment to a structured quality assurance process which involves systematically monitoring each CSSR on a daily basis. During each shift a CSSR works, the ITI Quality Assurance Team monitors a minimum of two calls per CSSR per shift, to ensure adherence to both internal and claim specific standards, and to provide each individual feedback for improvement. This process is executed by both a Quality Assurance Representative (QAR) and Floor Supervisory Personnel. In an effort to make this subjective process more objective, ITI extensively trains each QAR and has developed monitoring sheets which allow for evaluation on specific elements of each phone call. Once the call has been critiqued, the QAR quickly communicates with the Floor Supervisor giving feedback about the call. The Floor Supervisor then provides this feedback to the CSSR during his or her work shift. To further ensure call quality, ITI Account Management Personnel frequently conduct test calls and provide feedback to Operation Personnel. This multi-faced approach to quality assurance in Inbound Operations has earned ITI a leadership position within the telemarketing industry. 21/st/ Century: Proposal July 14, 1997 Page 11 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL SYSTEMS - ------------------------------------------------------------------------------- ITI -utilizes both a Northern Telecom ACD and a Tandem Himalaya K1000 as inbound calling processing systems. The Northern Telecom system, with dual common control, has full ACD capability with Dialed Number Identification Service (DNIS), as well as Direct Terminal Interface (DTI) capabilities, connecting the Tandem Himalaya K1000 and the Northern Telecom through an ISDN (two-way) gateway. This facilitates an automated presentation of the script to the CSSR screen and may include your customized greeting. The Tandem Himalaya K1000 is supported by our custom-developed software and provides our clients with sophisticated scripting and branching capabilities. The Tandem is a specialized fault-tolerant system which is non-stop and utilizes redundant mirrored discs, enhancing data protection. The system requires no daily downtime for maintenance and processing. Via the Northern Telecom's Call Management System, ITI Inbound Services can provide many detailed management reports relating to service levels and statistical call data. All ITI software programs are developed internally and are proprietary. Our expertise in specialized, flexible script development has helped to make us an industry leader. 21/st/ Century: Proposal July 14, 1997 Page 12 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL DISASTER RECOVERY/BACK-UP SYSTEMS - -------------------------------------------------------------------------------- ITI understands the critical need to ensure our Inbound Operations are fully functional at all times. The following steps have been taken to ensure uninterrupted service to our clients, 24 hours a day, 7 days a week: . Tandem mainframe system is a fault-tolerant central processing unit which offers dual processing functionality at all times. We also have the ability to access the development system for back-up purposes and for remote processing. . ITI subscribes to 24-hour maintenance with Tandem and is connected to Tandem's National Secure Center, which automatically' receives warning calls from the Tandem processor if trouble is detected. The Northern Telecom ACD system also has maintenance available 24 hours a day in addition to an internal alarm system. . All software is duplicated and all data files are backed up daily with copies stored onsite and in an off-site controlled warehouse facility which specializes in records and data back-up storage. . ITI utilizes an Exide UPS (Uninterrupted Power Supply) which is also on-line with a Cummins diesel generator to supply a consistent flow of power to all phone stations, as well as to all critical support staff departments. Should a loss of power occur, standard operating procedures are supported by the back-up systems for the required duration. Both back-up systems are tested and maintained on a regular basis. 21/st/ Century: Proposal July 14, 1997 Page 13 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL COMMITMENT - -------------------------------------------------------------------------------- The cornerstones of ITI are knowledge, leadership, intensity, dedication and a commitment to accountability. Our goal is to redefine the standards by which all direct marketing companies are judged. You can trust that you have our unconditional commitment to excellence in achieving your goals. We welcome the opportunity to provide you with the services outlined within this Proposal, and are confident we are effectively deliver the quality service you deserve. More importantly, we are certain we can attain this in a cost-effective manner by utilizing our experiences, our economies of scale, our commitment to quality and our sales expertise. ITI welcomes the opportunity to establish a long-term working relationship with 21/st/ Century. Thank you for your time and consideration. 21/st/ Century: Proposal July 14, 1997 Page 14 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL ITI MARKETING SERVICES PRICE QUOTATION INBOUND PRICING - DEDICATED SERVICE GROUP ================================================================================ ITI Price Quotation: This price quotation is valid for 30 days from the date shown below. Please read the back of this form for terms and conditions on the services we provide. *** NOTE: Setup will be determined by script complexity, transmission format, transfer options and transmission protocol. 21/st/ CENTURY DATE ITI MARKETING SERVICES, INC. DATE /s/ Richard Weigand-Moss /s/ Daniel S. Hicks - ---------------------------------- ----------------------------------------- Daniel S. Hicks Vice President, Inbound Account Management 21/st/ Century: Proposal July 14, 1997 Page 15 pub/mikelee/proposals PROPRIETARY AND CONFIDENTIAL _______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. ADDITIONAL TERMS 1. Payment Terms; Conditions. -------------------------- (a) Invoices; Finance Charge. Client shall be invoiced weekly in ------------------------ accordance with the prices set forth on the front of this agreement. Payment of invoices is due ten (10) days from the date of invoice. Invoices remaining after the due date shall be subject to a finance charge of one and one-half percent (1.5%) per month. (b) Nonpayment; Withholding Data. If ITI has not received payment of an ---------------------------- invoice within ten (10) days from the invoice date. ITI may, at its sole and absolute discretion, with prior notice to Client, (i) withhold all call data in the possession of ITI at that time, (ii) refuse to furnish same to Client until said account is brought current, (iii) cancel any and all services being provided to Client, and (iv) refuse to deliver any and all information in the possession of ITI until Client's account is brought current. (c) Price Change. ITI may change the price of its services quoted in this ------------ Agreement for just cause shown or because of an increase in the service supplied to or by ITI or because of governmental increases not controlled by ITI, as long as written notice of the increase is given to Client prior to the change taking effect. (d) Drag Calls. Upon termination of this Agreement. Client agrees to ---------- compensate ITI for any drag calls that may occur at the stated per call rate, as set forth in the pricing schedule. (e) Taxes. Client shall pay all service, sales, use and valued-added ----- taxes, duties, assessments and any other taxes or fees which may be assessed or levied by any governmental or regulatory authority with respect to the services provided by ITI to the Client pursuant to this Agreement. (f) Credit Approval; Deposits. ITI's acceptance of this Agreement is ------------------------- subject to satisfactory credit investigation and approval of Client. Upon such credit approval, Client may be required, in ITI's sole discretion, to place a security deposit with ITI in an amount to be determined by ITI to guarantee payment of all obligations owed to ITI hereunder. Upon termination of this Agreement, ITI will return such deposit to Client after deducting any amounts payable to or otherwise owed to ITI hereunder. 2. Changes to Project Agreements. ITI and Client further agree that it is ----------------------------- understood between the parties hereto that due to the nature of this business: (a) Service Change. Changes made in the scope of service specified in the -------------- service description after the terms of the same have been agreed to or any changes made by date changes, media requirements, additions or deletions, may result in additional charges to Client and will be governed by paragraph 1(c) above. (b) Oral Change. ITI shall not be held liable for errors to Client's ----------- project caused by oral changes, additions or deletions. All oral changes may be subsequently verified and approved in writing between Client and ITI to be valid. 3. Warranties; Representations. Client represents and warrants to ITI that: --------------------------- (a) Authorization; Compliance with Laws. Client is fully authorized to ----------------------------------- provide the products and/or services being offered to the prospects pursuant to the solicitations to be made by ITI under this Agreement. Client further represents and warrants to ITI that all products and/or services and the offering of all products and/or services to be provided by ____ to the prospects will fully comply with all applicable federal, state and local laws, _____ and regulations, including, but not limited to, the Telephone Consumer Protection Act of 1991, the Telemarketing and Consumer Fraud and Abuse Prevention Act (the "TCFAPA") and any similar federal and state legislation regarding telephone marketing. (b) Scripts; FTC's Rule. Client has provided ITI with all necessary ------------------- information concerning the products and/or services to be marketed pursuant to this Agreement to enable ITI to assist in the development of telephone marketing scripts containing the disclosures required by Section 310.3 of the Federal Trade Commission's Telemarketing Sales Rule (the "Rule") and any other regulation or law specifically applicable to such products and/or services. All such information is true and correct and, if applicable, consistent with representations made by or on behalf of Client in the marketing of such products and/or services in other media. Client will immediately inform ITI of any changes in its policies or practices or in the description of such products and/or services that may require a change in such disclosures. If applicable, Client further represents and warrants that product labeling, packaging and instructions comply with applicable law. (c) Disclosure. Client has disclosed the existence of any decrees, orders ---------- or consent agreements, and of any pending formal or informal governmental investigations, regarding the products and/or services that are the subject of this Agreement or Client's business practices based upon the Rule or any other consumer protection law and Client will immediately inform ITI of any change in the status of such matters or the institution of other or further investigations under such laws as soon as it becomes aware of them. 4. Performance in Accordance with Accepted Standards. ITI shall perform all ------------------------------------------------- duties and obligations required of it pursuant to this Agreement in accordance with accepted telemarketing industry standards. ITI represents to Client that it will comply with all applicable federal, state and local laws, rules and regulations, including the TCFAPA. Except as set forth in the immediately preceding sentence, ITI makes no express or implied warranties (whether implied in fact or in law). ITI has made no affirmations of fact or other representations to the Client other than those expressly set forth in this Agreement and Client hereby agrees that it has not relied on any affirmation of fact or other representation from ITI in entering into this Agreement other than those expressly set forth in this Agreement. 5. Intellectual Property; Call Data. ITI and Client agree that all software -------------------------------- programs developed by ITI for Client are owned by ITI and remain the exclusive property of ITI and shall be retained by ITI at the termination of this Agreement. ITI and Client further agree that all call data and all customer information generated by this contract belong to Client, subject to the terms of this Agreement. 6. Identification; Limitation of Damages ------------------------------------- (a) Indemnification. Subject to the limitations set forth in this --------------- Agreement, each party (the 'Identifying Party") agrees to indemnify and hold harmless the other party, its officers, directors, shareholders, employees or agents (the "Indemnified Party") from any and all liabilities, losses, damages, claims, suits, judgments, costs and expenses (including reasonable attorneys' fees and costs of any investigation of action related thereto) ("Losses") suffered or incurred by the Indemnified Party, its officers, directors, shareholders, employees or agents, arising out of any error, omission, misconduct or negligence of the Indemnifying Party. Further, Client shall indemnify and hold ITI harmless from any Losses arising out of any scripts and/or support materials provided or approved by Client, and hereby releases ITI from any Losses in connection herewith. (b) Consequential; Total Damages. In no event shall ITI be liable to ---------------------------- Client for any incidental or consequential damages of any kind (including, without limitation, lost profits) which result from one or more of the following: (i) a breach by ITI of the terms of this Agreement or of any agreement implied in law arising by reason of the transactions contemplated by this Agreement; or (ii) any negligent actions or omissions of ITI. In no event shall either party be liable to the other for any punitive damages arising by virtue of any dealings between the parties. In no event shall ITI be liable for any claims or demands against Client by a third party arising out of, or connected with the services provided hereunder. ITI's entire liability to Client for damages (other than consequential and incidental damages and damages arising by virtue of third-party claims and demands for which ITI has no liability as provided above) in connection with the services provided to Client, or provided by Client to its Clients, shall not exceed in the aggregate the total contract price due ITI under this Agreement. 7. Diversion of Employees. During the term of this Agreement and for a ---------------------- period of two (2) years following the expiration or termination of this Agreement, Client will not, directly or indirectly: (a) induce or attempt to influence any employee of ITI to terminate his or her employment with ITI; (b) employ or recommend for employment any employee of ITI; or (c) identify for employment any employee of ITI. 8. Term; Termination. ----------------- (a) *** (b) Termination for Cause. Notwithstanding any other provision in this --------------------- paragraph, either party hereto may terminate this Agreement with ten (10) days advanced written notice of the termination date to the other party hereto, if: (1) The other party hereto has falsified information that led to this Agreement: (2) The other party hereto is found to not be conducting its business in a proper manner; (3) The other party is unable to pay its debts generally as they come due or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation, insolvency or the appointment of a receiver or similar officer, or makes an assignment for the benefit of all, or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations. (c) Termination for Changed Laws. Either Party shall have the right to ---------------------------- terminate this Agreement, without liability to the other, in the event of any judicial, regulatory or legislative change rendering performance of this Agreement impossible, illegal or impractical. Such Party shall provide the other with written notice of such termination as promptly as possible, but in no event less than ten (10) days prior to the termination date. 9. Entire Agreement. This Agreement constitutes the complete Agreement ---------------- between ITI and Client and no other verbal representations or written representations will supersede this Agreement, except that additions and changes properly documented and authorized and referred to for the purpose of this Agreement as an amendment will become part of this original Agreement as if fully rewritten herein. 10. Waiver. The waiver by either Party, or the failure by either Party to ------ claim a breach of any provision of this Agreement or to give notice with respect thereto, shall not be held to be a waiver of any subsequent breach of such provision or any other provision. ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. 11. Severability. In the event any provision of this Agreement is held to be ------------ illegal, invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder of this Agreement shall not be affected thereby and this Agreement shall continue in fully force and effect as modified and shall be enforced to the fullest extent permitted by law. 12. Assignment. Neither this Agreement, nor any of the rights, duties or ---------- obligations hereunder, may be assigned (whether by operation of law or otherwise) or otherwise delegated by either Party without the prior written consent of the Non-Assigning Party and any attempted assignment which is not in conformity herewith shall be voidable at the option of the Non-Assigning Party. If such an assignment is approved, this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto and their respective successors and permitted assigns. 13. Force Majeure. Each party hereto (other than the obligation of Client to ------------- make payments for any services rendered hereunder) shall be excused from performing any obligations under this Agreement, in whole or in part, as a result of delays or interference caused by the other party or by an act of God, war, labor disputes, strikes, floods, lightning, severe weather, shortage of materials, failures or fluctuations in electrical power, heat, light, air conditioning, disruption of a line, service or program by a common carrier or billing services provider, disruption or malfunction of any data processing or telecommunications network, facility or equipment, third-party nonperformance, or other cause beyond a party's reasonable control, and such nonperformance shall not be a default hereunder or a basis for termination hereof. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the local laws of the State of Nebraska. EX-10.5 4 EXHIBIT 10.5 EXHIBIT 10.5 POLE ATTACHMENT AGREEMENT This POLE ATTACHMENT AGREEMENT (the "Agreement") is dated this 3rd day of April, 1996 by COMMONWEALTH EDISON COMPANY ("ComEd"), an Illinois corporation, and 21ST CENTURY CABLE TV, INC. ("21st Century"), an Illinois corporation. In consideration of the mutual covenants,, terms and conditions herein contained, the parties agree as follows: 1.0. PURPOSE AND CONSTRUCTION OF AGREEMENT 1.1 21st Century provides or intends to provide certain telecommunication services to residents of the portions of ComEd's service territory set forth in Exhibit A to this Agreement. Exhibit A may be amended at any time during the Term. of this Agreement by the mutual written consent of the parties. In order to expedite construction and otherwise save costs in providing such services, 21st Century desires to attach fiber optic-strands and/or cable wire, strand hardware and other associated equipment, hardware and power supplies to utility poles that are owned in whole or in part by ComEd within such service area. 1.2 ComEd owns, both wholly and jointly with others, valuable pole plant, which it acquired and maintains at considerable cost and expense. ComEd is willing to permit the placement of the fiber optic strands and/or cable wire, strand hardware and other associated equipment, hardware and power supplies referred to above on certain of its poles that it owns in whole or in part, provided that (i) it receives appropriate compensation as set forth in this Agreement, (ii) it is protected from all liability that may result therefrom as set forth in this Agreement, and (iii) such attachments do not materially interfere with its own service and operating requirements, including considerations of economy and safety. 1.3 This Agreement is not intended, and shall not be construed, to authorize any action by 21st Century that would adversely affect the quality or reliability of the electric service provided by ComEd. Nor shall it be construed so as to preclude ComEd from taking any action that it considers necessary to maintain the reliability or quality of such electric service or to ensure the safety of its employees or the public. 1.4 The parties agree that it would serve their mutual economic and other interests for 21st Century, under the conditions set out herein and to the extent it may lawfully do so, to attach its fiber optic strands and/or cable wire, strand hardware and other associated equipment, hardware and power supplies to the pole plant owned by ComEd, pursuant to the conditions set forth below and in return for payment to ComEd of the fees set forth in this Agreement, where such attachment will not materially interfere with ComEd's service and operating requirements. Through this Agreement, ComEd intends to give 21st Century licenses to use particular poles in the manner and for the purpose set forth herein. No easement rights, interest in real estate or other interest in property is granted or intended to be granted by this Agreement. No use, however extended, of ComEd poles under this Agreement shall create or vest in 21st Century any ownership or property rights in ComEd's poles. 1.5 21st Century acknowledges that this Agreement was negotiated between ComEd and 21st Century, that 21st Century has had an adequate opportunity to review the Agreement and to suggest or request changes thereto, that it has made an independent assessment of the business risks and benefits of entering into this Agreement, that based on this evaluation 21st Century desires to enter into this Agreement, and that the Agreement is, as a whole, just and reasonable. 2.0 DEFINITIONS. 2.1 "Attachment" means the fiber optic strand or cable wire, strand or wire hardware or equipment mounted on the strand or wire, including but not limited to the cable, amplifiers, and splice boxes that are used in providing 21st Century Service. An Attachment is placed "on," or is "attached to," a ComEd Pole if any portion of it is physically located on the ComEd Pole, if any portion of it is located within 10 feet of the ComEd Pole, or if any portion of it precludes the use of the adjacent ComEd Pole space by others. 2.2 "21st Century Service" means the broad band telecommunication services provided by 21st Century to its customers, including community antenna television service which is operated to perform for hire the service of receiving and distributing video and audio program signals by wire, cable or other means to members of the public who subscribe to such service. -2- 2.3 "ComEd Poles" means wooden poles included in ComEd Account 364 that ComEd owns in whole or in part. 2.4 "Effective Date" means the date ComEd executes this Agreement. 2.5 "Facility" or "Facilities" means equipment and hardware other than, and incidental to, the Attachment or Power Supply, such as, but not limited to, vertical risers and grounding wires, that are used in providing 21st Century Service and that are placed on ComEd Poles in conjunction with placement of the Attachment or Power Supply. A facility is placed "on," or is "attached to," a ComEd Pole if it is physically located on the pole, if it is located within 10 feet of the ComEd Pole, or if it precludes the use of the adjacent ComEd Pole space by others. 2.6 "Power Supply" means the 21st Century power supply mounted on or by a ComEd Pole. A power supply is placed "on," or is "by" a ComEd Pole if it is physically located on the pole, if it is located within 10 feet of the ComEd Pole, or if it precludes the use of the adjacent ComEd Pole space by others. 3.0 AUTHORITY FOR ATTACHMENTS. 3.1 21st Century agrees that it will, at its own expense, procure and maintain any and all easements, licenses, consents, franchises, certifications, permits, approvals or authorizations .that it may require to engage in business and to use public streets and thoroughfares in the area served, or for the placement of its Attachments, Facilities or Power Supplies by any property owners or by any municipal, state or governmental agency having jurisdiction. ComEd may, at its discretion, request evidence that all such approvals or authorizations have been obtained and are in full force and effect. 3.2 21st Century shall not place any Attachment, Facility, or Power Supply on ComEd Poles until after the Effective Date of this Agreement and shall not place any Attachment, Facility, or Power Supply on ComEd Poles until written permission has been requested and granted as provided in Section 4 of this Agreement, all conditions of such -3- permission have been satisfied, and all necessary licenses, easements, consents, franchises, certifications and permits have been obtained by 21st Century. 3.3 21st Century agrees to not place any Attachment, Facility, or Power Supply on ComEd Poles until all necessary makeready work, as set forth in Section 5 of this Agreement, has been performed by ComEd. 4.0 APPLICATIONS FOR PERMISSION TO PLACE ATTACHMENTS. 4.1 21st Century shall submit a written Application for Permission to Make Attachment("Application"), to ComEd, substantially in the form of attached Exhibit B-1, for the placement of each proposed Attachment, Facility, or Power Supply, specifying the location of the ComEd Pole, the nature of the placement sought, and the date proposed for such placement. 4.2 ComEd will indicate on the Application the replacements, changes and rearrangements to the facilities, equipment or plant of ComEd or other joint owners or users of the ComEd Pole that will be necessary to accommodate the proposed placement of 21st Century's Attachments, Facilities or Power Supplies and the estimated cost of such replacements, changes or rearrangements to be charged to 21st Century ("Marked Application"). Such estimates shall be based on fully allocated costs and will include all direct and indirect costs for labor, time, service and applicable administrative overheads, and will be made in accordance with ComEd's General Order 25, as that order may be amended from time to time. Within thirty (30) days of receipt of the Application, ComEd will return the Marked Application to 21st Century. 4.3 If after receiving the Marked Application, 21st Century still desires to place the identified Attachments, Facilities or Power Supplies on ComEd Poles under the conditions indicated, and to pay the costs estimated, 21st Century shall return the Marked Application to ComEd to indicate acceptance. 4.4 ComEd reserves the right to deny any Application when it believes that the proposed placement of an Attachment, Facility or Power Supply would adversely affect current or proposed utilization of the ComEd Poles by ComEd or other owners, or would otherwise -4- adversely affect ComEd's service or operations. ComEd further reserves the right to specify conditions under which the placement of an Attachment, Facility or Power Supply that would otherwise be denied will be permitted. 4.5 When an Application is granted as provided herein, a permit will be issued by ComEd substantially in the form of attached Exhibit B-2. 5.0 MAKEREADY. 5.1 21st Century agrees to pay in advance the estimated cost of replacements, changes and rearrangements necessary to accommodate the placement of 21st Century's Attachments, Facilities or Power Supplies, as shown on the Application. ComEd shall make such replacements, changes and rearrangements upon receipt of such payment in due course and pursuant to a schedule which will not interfere with ComEd's other responsibilities and duties, unless 21st Century requests, and ComEd agrees to, an expedited makeready schedule as set forth in this Section. 5.2 21st Century may request in writing that all or part of the makeready work be performed on an expedited schedule. If 21st Century makes a request, ComEd may, in its discretion, accept or deny such request. If ComEd agrees to undertake such expedited makeready, ComEd and 21st Century will negotiate a schedule acceptable to both, which schedule will be confirmed in writing. 21st Century agrees to pay ComEd 1.5 times its costs as estimated pursuant to Paragraph 5.1 (including overtime labor costs) for all work performed according to any such expedited schedule. 5.3 21st Century agrees to also pay the costs (to the extent not paid pursuant to Paragraphs 5.1 or 5.2 above), when billed, for any engineering work performed by ComEd, including any analysis, survey or inspection of the proposed route of 21st Century's Attachments, Facilities or Power-Supplies, or the preparation of engineering documentation or work orders and drawings for any replacements, changes and rearrangements of ComEd Poles and facilities or the facilities of other users, that may be necessary to accommodate 21st Century's Attachments, Facilities or Power Supplies, whether occurring prior or subsequent to the placement of any Attachments, Facilities or Power Supplies. 21st Century shall be entitled to reimbursement of -5- such costs actually paid by 21st Century to the extent that ComEd receives reimbursement of such costs from other users. 5.4 21st Century agrees to pay when billed the cost of any additional guying required to accommodate 21st Century's Attachments, Facilities or Power Supplies to the extent such costs are not paid pursuant to Paragraphs 5.1, 5.2, or 5.3 of this Section. 6.0 PROCEDURES FOR ATTACHMENT. 6.1 21st Century agrees to make its Attachments, and place its Facilities and Power Supplies, in a safe and workmanlike manner, in accordance with ComEd's rules and regulations and in compliance with all applicable laws, rules and regulations imposed by any governmental unit or agency having jurisdiction. In particular, all placements of Attachments, Facilities, and Power Supplies coveted by this Agreement shall meet the requirements and specifications of 83 Ill. Admin. Code Part 305, as it may be amended from time to time, and all 21st Century workers shall be equipped for and conform to OSHA safety regulations. 6.2 21st Century shall bond its Attachments at the first, last and tenth poles in each of its cable runs. 21st Century's cable shall be bonded to ComEd's multi-grounded neutral systems in accordance with ComEd's instructions. At ComEd's discretion, ComEd may bond 21st Century's cable to ComEd's systems. If ComEd chooses to perform the bonding, 21st Century agrees to pay when billed ComEd's costs for bonding 21st Century's cable to ComEd's systems. 6.3 21st Century agrees that it will not place any Attachments on a ComEd Pole at more than one level without the express, written permission of ComEd. 6.4 All cables shall be attached flush with the ComEd Pole except where otherwise indicated by ComEd in writing. 6.5 Each Attachment and Power Supply shall be clearly labeled with 21st Century's name and a phone number where a representative of 21st Century can be reached, twenty-four (24) hours a day, to receive reports of problems with 21st Century's Attachments, Facilities or Power Supplies. 21st Century shall investigate all such reports in a timely manner. -6- 7.0 MAINTENANCE, REPAIR, RELOCATION, REMOVAL AND INSPECTION. 7.1 ComEd will maintain the ComEd Poles and repair or replace ComEd Poles as necessary to fulfill its own service requirements. ComEd is not required to maintain any ComEd Poles for a period longer than demanded by its own service requirements. In the event that ComEd determines that it will no longer maintain a ComEd Pole on which 21st Century has placed an Attachment, Facility, or Power Supply, ComEd will send written notice to 21st Century that it will no longer maintain the ComEd Pole and may, at ComEd's discretion, offer 21st Century alternative pole space or the right to purchase the subject ComEd Pole pursuant to terms and conditions set forth in the offer. 7.2 21st Century will at its oft expanse maintain its Attachments, Facilities, and Power Supplies placed on a ComEd Pole in a safe condition, in thorough repair, and in accordance with ComEd's rules and regulations and in compliance with all applicable laws, rules and regulations imposed by any governmental unit or agency having jurisdiction. In particular, all placements of Attachments, Facilities, and Power Supplies covered by this Agreement shall at all times meet the requirements and specifications of 83 Ill. Admin. Code Part 305, as it may be .amended from time to time, and all 21st Century workers shall be equipped for and conform to OSHA safety regulations. 21st Century agrees to maintain its Attachments, Facilities, and Power Supplies in such a manner as will not interfere with the use of any ComEd Pole or facilities placed thereon by ComEd or other users and shall exercise special precautions to avoid damaging ComEd's property and facilities or the property and facilities of other parties on the ComEd Poles. Upon notice by ComEd that any Attachment, Facility, or Power Supply is interfering with or endangering equipment, property or facilities of ComEd or other pole users, 21st Century agrees that it will, at its own expense, immediately take all steps necessary to remedy such interference or dangerous condition. 7.3 21st Century may at any time remove its Attachments, Facilities or Power Supplies but shall immediately give ComEd written notice of such removal. No refund of fees or charges previously billed will be made upon such removal. -7- 7.4 Upon notice from ComEd to 21st Century that the use of any ComEd Pole is forbidden by municipal or public authorities or property owners, the license granted by this Agreement covering the use of such ComEd Pole shall immediately terminate. 21st Century agrees to remove all of its Attachments, Facilities, and Power Supplies from such ComEd Pole at its own expense within thirty (30) days of receipt of such notice. However, if the municipal or public authority or property owner requires removal within less than thirty (30) days, then 21st Century agrees to remove all of its Attachments, Facilities, and Power Supplies from such ComEd Pole at its own expense within the time set by the municipal or public authority or property owner. No refund of fees or charges previously billed will be made upon such removal. If 21st Century fails to remove all of its Attachments, Facilities, and Power Supplies within the time set forth above, ComEd may, at its option, effect the removal and 21st Century agrees to pay, when billed, the costs of such removal. 7.5 21st Century shall, at its own expense, upon notice from ComEd, relocate, replace or remove its Attachments, Facilities or Power Supplies, or transfer the Attachments, Facilities or Power Supplies to substitute poles, or perform any other work in connection with their relocation, replacement or removal that may be required by ComEd to accommodate the service or operating requirements of ComEd or any joint owner of a ComEd Pole. If 21st Century fails to perform any act or work pursuant to this Paragraph in a timely manner as set forth in ComEd's notice to 21st Century, ComEd may, at its option perform such act or work and 21st Century agrees to pay, when billed, ComEd's costs and expenses. 21st Century may request in writing that ComEd relocate, replace or renew 21st Century's Attachments, Facilities or Power Supplies, or transfer the Attachments, Facilities or Power Supplies to substitute poles, or perform any other work in connection with their relocation, replacement or removal. ComEd may, in its sole discretion, accept or reject 21st Century's written request. If ComEd accepts 21st Century's written request, 21st Century will pay ComEd its costs and expenses within thirty (30) days from the date that a bill for such costs and expenses is rendered by ComEd. ComEd's decision to reject 21st Century's request that ComEd perform work pursuant to this Paragraph shall not relieve 21st Century of its duties and obligations under this Paragraph. 7.6 If 21st Century places any Attachments, Facilities or Power Supplies on ComEd Poles in violation of Section 3 of this Agreement, or fails to remove all Attachments, Facilities, and Power Supplies following termination of this Agreement, ComEd may remove such -8- Attachments, Facilities or Power Supplies without incurring any liability and without any duty to account to 21st Century for the removed property. ComEd will bill 21st Century for the expense of removal and 21st Century will pay ComEd such expenses within thirty (30) days from the date of each such bill rendered by ComEd. The rights contained in this Paragraph are in addition to all other rights ComEd has under this Agreement including, but not limited to, ComEd's right to terminate the Agreement and ComEd's right to collect charges for unauthorized placement of Attachments, Facilities or Power Supplies. 7.7 If ComEd determines that its own service or operating requirements, including but not limited to considerations of economy and safety, require the immediate relocation, replacement, removal or disconnection of any-of the Attachments, Facilities or Power Supplies located on any ComEd Pole, ComEd may, without notice and at its own expense, affect such relocation, replacement, removal or disconnection, and may, but need not, transfer the facilities to substitute poles, or perform any other work that may be required in the maintenance, replacement, removal or relocation of poles, or facilities located thereon, or that may be otherwise required to meet the service or operating needs of ComEd. ComEd shall give 21st Century notice of any such change in 21st Century's facilities that requires subsequent attention by 21st Century. 7.8 ComEd also reserves the right to make periodic inspections of the entire plant of 21st Century located within ComEd's service area, or a portion of that plant, as often as conditions warrant. The cost of such inspection will be borne by 21st Century. ComEd will bill 21st Century for the cost of such inspection and 21st Century will pay ComEd such cost within thirty (30) days from the date of each such bill rendered by ComEd. If ComEd determines that corrections or changes need to be made to any of 21st Century's Attachments, Facilities or Power Supplies in order to ensure ComEd's service or operating requirements, including considerations of economy and safety, 21st Century will make such corrections or changes at its own expense, in a timely manner. 7.9 Neither the occurrence nor the nonoccurrence of any inspection will relieve 21st Century of any responsibility, obligation or liability assumed under this Agreement. 8.0 CHARGES. -9- 21st Century agrees to pay ComEd all fees and charges set forth in this Section within thirty (30) days from the date of each bill rendered by ComEd. 8.1 Annual Fee. ---------- 8.1.1 Century agrees to pay *** per year for each Attachment or Power Supply for which 21st Century has been issued a permit to attach to or place on a ComEd Pole. Such Annual Fee shall be paid in the year that ComEd grants a permit for the placement of such Attachment or Power Supply and thereafter will be payable on or before the first day of January of each year during which this Agreement remains in effect. 8.1.2 Payment of the Annual Fee to ComEd shall not in ,-any way affect 21st Century's obligations or duties to pay monies, whether in the form of fees, charges, or otherwise, to any joint owner of a ComEd Pole. 8.2 Charge for Unauthorized Attachment: 21st Century recognizes that ---------------------------------- ComEd incurs administrative and other expenses when an unauthorized placement is made on a ComEd Pole. Accordingly, 21st Century agrees to pay ComEd *** per ComEd Pole for each Attachment or other placement made by 21st Century in violation of Section 3, or any other Section, of this Agreement. This charge will be paid in addition, and without prejudice, to any of the other rights and remedies ComEd may have under this Agreement in the event of 21st Century's violation of the terms and conditions of this Agreement, including but not limited to ComEd's right to collect an Annual Fee for the ComEd Pole on which the unauthorized placement is made, ComEd's right to remove or relocate the Attachment, Facility, or Power Supply, and ComEd's rights to terminate this Agreement. 8.3 Interest. 21st Century agrees to pay interest at *** on all rates and -------- charges not timely paid, on and from the date that payment is due. 8.4 Taxes. Each party will be solely responsible for any taxes or ----- assessments levied on any of its wires, cables, equipment or facilities. ___________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -10- 9.0 RESOLUTION OF DISPUTES. 9.1 The parties agree to address disagreements and disputes relating to technical fee and billing issues arising in the implementation of this Agreement through the procedures set forth in this Section before resorting to legal proceedings. 9.2 Each party shall designate an employee who will be the "Dispute Coordinator" for purposes of this Section and a more senior employee who will be the "Review Manager" for purposes of this Section. The employees initially designated by each party as their Dispute Coordinators and Review Managers are set forth in Exhibit C to this Agreement. Parties may change such designation by giving notice of such change pursuant to Section 18 of this Agreement. 9.3 Each party shall raise any questions, disagreements or disputes, of the type described in Paragraph 9.1, arising in the implementation of this Agreement with the Dispute Coordinator. 9.4 Where the Dispute Coordinators have been unable to resolve any such disagreement or dispute, within thirty (30) days of notice of such dispute, the parties will refer such disagreement or dispute to the Review Managers for the respective parties who will work together to resolve the relevant issue in a manner that meets the interests of both parties. 9.5 If the parties, after complying with the provisions of Paragraphs 9.3 and 9.4, are unable to resolve the disagreement or dispute within sixty (60) days, and the dispute involves more than One Hundred Thousand Dollars ($100,000.00), they agree to submit such disagreement or dispute to a neutral independent mediator for non-binding mediation. If a mediator cannot be agreed upon, one will be selected by the CPR Institute for Dispute Resolution. 9.6 The parties agree that the following timetable shall apply to the resolution of all matters, unless an extension is agreed to by the parties: (i) for all billing matters, the mediation shall be completed within thirty (30) days of the date that the aggrieved party provides notice to -11- the other party that mediation is required; and (ii) for all other matters, mediation shall be completed within sixty (60) days of the date the aggrieved party provides notice to the other party that mediation is required. 10.0 LIABILITY AND INDEMNIFICATION. 10.1 ComEd has the right to maintain, replace, relocate, and remove ComEd Poles and to maintain, replace, relocate, remove, and operate its facilities in such manner as will enable it to fulfill its own service requirements. ComEd shall not be liable to 21st Century, or any customer of 21st Century, or any other person, for any interruption of service or for any interference with the operation of 21st Century's Attachments, Facilities, Power Supplies, or other equipment arising in any way out of such maintenance, replacement, relocation, removal or operation. 10.2 ComEd will not be liable for any noise, induced voltages, currents or other interference in the facilities owned by 21st Century. 10.3 21st Century agrees to indemnify, hold harmless and defend ComEd from and against any and all claims and demands for damages to property, or for injury or death to persons, that are related to, arise out of, or are caused by, the placement of 21st Century's Attachments, Facilities, and Power Supplies, including claims arising out of or related to repair and maintenance work performed by 21st Century, its employees, agents, contractors or subcontractors. This indemnification shall include, but not be limited to, claims made under any workman's compensation law or under any plan for employee's disability and death benefits (including, without limitation, claims and demands that may be asserted by employees, agents, contractors, and subcontractors). 21st Century shall immediately notify ComEd of any such claims, demands, damages, injuries or deaths, and shall provide a written report, or other pertinent material or information if requested. 10.4 21st Century agrees to indemnify ComEd, its successors and assigns, against any and all claims and demands for damages or losses resulting from any interruption of 21st Century's or ComEd's service, or the service of ComEd's or 21st Century's customers, if such interruption in service arises out of or is in any way related to the exercise by 21st Century of rights granted under this Agreement. -12- 10.5 21st Century agrees to be liable for and promptly reimburse ComEd or other ComEd Pole users for expenses incurred in repairing or replacing ComEd Poles or facilities damaged or destroyed if such damage or destruction is caused, in whole or in part, by the presence on ComEd Poles of 21st Century's Attachments, Facilities or Power Supplies, or by an act, acts or failure to act on the part of 21st Century, its agents, employees, contractors, sub-contractors or customers. 10.6 21st Century's duties and obligations to indemnify ComEd shall survive termination of this Agreement. 11.0 REPRESENTATIONS AND WARRANTIES. 11.1 Power and Authority. Each party represents and warrants that it is a ------------------- corporation duly organized, validly existing, in good standing under the laws of the State in which it is incorporated and has full power and authority to execute this Agreement and undertake the responsibilities and obligations .contemplated by it. 11.2 Enforceability. Each of the parties represents and warrants that the -------------- execution and performance of this Agreement have been duly authorized by all necessary corporate actions, that the Agreement constitutes a valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, and that they have independently reviewed the Agreement, including the charges set forth in Section 8, and concluded that the Agreement is just and reasonable. 11.3 Insurance. 21st Century represents and warrants that it maintains and --------- will continue to maintain policies of insurance to protect the parties to this Agreement and other users from and against any and all claims, demands, actions, judgments, costs, expenses and liabilities that may arise or result, directly or indirectly, from or by reason of any loss, injury, or damage due to 21st century's placement of its Attachments, Facilities, or Power supplies on ComEd Poles so long as this Agreement is in effect. 21st Century represents and warrants that during the entire Term of this Agreement it will carry Workman's Compensation Insurance and each of the -13- following types of insurance in amounts acceptable to ComEd, but, in no event, less than *** as to any one person and *** as to any one occurrence: (i) property liability insurance, (ii) personal injury liability insurance, and (iii) general liability insurance. 21st century represents and warrants that ComEd shall be named as an additional insured on each such policy of insurance. 21st Century agrees to submit to ComEd certificates from each insurance company stating the named insureds and the type, amount and term of the insurance and further stating that the insurance company will not cancel or change any policy of insurance issued to 21st Century except after thirty (30) days' written notice to ComEd. 11.4 Bond. 21st Century represents and warrants that during the entire Term ---- of this Agreement it will maintain a bond to guarantee the payment of all sums that may become due from 21st Century to ComEd under the terms of this Agreement. At the time this Agreement becomes effective, 21st Century agrees to furnish a bond to ComEd in the amount shown on the Bond Schedule attached as Exhibit D for the number of ComEd Poles being used throughout the term of this Agreement. The bond shall be in a form and with a surety acceptable to ComEd. If 21st Century's use of ComEd Poles at any time exceeds the number of poles covered by the bond, 21st Century represents and warrants that it will immediately raise the total bond amount to the level which satisfies the requirement set forth in the Bond Schedule. 12.0 DEFAULT, TERMINATION AND OTHER REMEDIES. 12.1 Either party may terminate this Agreement upon the discovery of a breach of the other party of one of the representations or warranties set forth in this Agreement and upon written notification to the other party. 12.2 Either party may terminate this Agreement upon the default of the other party if the default is not timely cured after written notification. 12.3 If 21st Century fails to comply with any of the provisions of this Agreement, it shall be in default and ComEd shall provide written notification of the default. If 21st Century fails to correct the default within thirty (30) days after receiving written notice of such default, then ComEd may, at its discretion, terminate this entire Agreement or terminate a permit or __________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -14- permits granted pursuant to Section 4 this Agreement to place Attachments, Facilities or Power Supplies on any particular ComEd Poles. These remedies are not exclusive, but are in addition to all other rights and remedies that ComEd may have. 12.4 If at any time 21st Century loses a franchise to use the public streets and highways in any area included in Exhibit A to this Agreement, ComEd may terminate this entire Agreement or terminate a permit or permits granted pursuant to Section 4 of this Agreement. 12.5 Upon termination of any permit to use ComEd Poles granted pursuant to this Agreement, or upon termination of the entire Agreement, 21st century agrees to immediately remove all Attachments, Facilities, and Power Supplies from all ComEd Poles affected by the termination at its own cost. If 21st Century fails to do so, ComEd may remove the Attachments, Facilities or Power Supplies without incurring any liability and without any duty to account to 21st Century for the removed property. ComEd will bill 21st Century for the expense of removal and 21st Century will pay ComEd such expenses when billed by ComEd. 12.6 In the event that 21st Century defaults under this Agreement and ComEd elects to terminate this Agreement, or upon termination of this Agreement, 21st Century shall not be relieved of its duties or obligations under this Agreement so long as any 21st Century Attachment, Facility, or Power Supply remains on any ComEd Pole. 12.7 Unless this Agreement is otherwise terminated in its entirety, this Agreement shall automatically terminate on the last day of the Term of this Agreement as defined in Section 19'. 13.0 ASSIGNMENT. 13.1 21st Century agrees that it will not assign or transfer the privileges granted by this Agreement without the prior written consent of ComEd, which consent will not be unreasonably withheld. 21st Century recognizes that ComEd will incur administrative and other expenses when it investigates a request to assign or transfer the privileges granted by this Agreement and 21st Century agrees to pay all such reasonable costs when billed. -15- 13.2 An unauthorized assignment or transfer of this Agreement includes, but is not limited to, 21st Century explicitly granting permission or otherwise allowing, explicitly or implicitly, any party other than 21st Century to use 21st Century Attachments, Facilities or Power supplies, or any portion thereof, which are placed on a ComEd Pole. 13.3 This Agreement shall extend to and be binding upon any successors or assigns of 21st Century, whether or not written permission for assignment or transfer has been granted, and on ComEd's successors and assigns. 13.4 21st Century will not be released of any of its duties or obligations under this Agreement, including, but not limited to 21st Century's duties and obligations to indemnify ComEd as set forth in Section 10 of this Agreement, except by the express written consent of ComEd. ComEd's consent to the assignment or transfer of all or part of this Agreement shall not constitute consent to release 21st Century of any of its duties or obligations under this Agreement unless such intent is explicitly set forth by ComEd in writing. 13.5 21st Century recognizes and agrees that ComEd will incur extra administrative and other expenses if 21st Century makes an unauthorized assignment or transfer of this Agreement. Accordingly, to cover such administrative costs, 21st Century agrees to pay ComEd *** for each unauthorized assignment or transfer of this Agreement. These charges will be made in addition, and without prejudice, to any of the other rights and remedies ComEd may have under this Agreement in the event of 21st Century's violation of the terms and conditions of this Agreement, including but not limited to ComEd's right to collect Annual Fees, ComEd's right to remove or relocate unauthorized placements of Attachments, Facilities or Power Supplies, and ComEd's right to terminate this Agreement. 14.0 OTHER USERS. This Agreement does not limit the right of ComEd to make additional contracts with other persons, firms, corporations, or associations for use of ComEd Poles or facilities placed thereon, nor is it intended to limit the rights or privileges previously conferred by ComEd to others. __________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -16- 15.0 WAIVER OF TERMS OR CONDITIONS. 15.1 The failure of ComEd to enforce or insist on compliance with any of the terms and conditions of this Agreement shall not constitute a waiver or relinquishment of any such terms or conditions. 15.2 The acceptance of payment by ComEd of any of the fees or charges set forth in this Agreement shall not constitute a waiver of any breach or violation of the terms of this Agreement. 16.0 COMPLIANCE WITH APPLICABLE LAWS. 21st Century agrees to comply with all applicable laws, rules and regulations relating to the installation, maintenance and use of its Attachments, Facilities, and Power Supplies. 21st Century is solely responsible for identifying and complying with all such rules and regulations. 17.0 REGULATORY APPROVAL. 17.1 This Agreement may be filed with, and may be subject to the approval of, the Illinois Commerce Commission. If this Agreement is subject to the approval of the Illinois Commerce Commission, the parties agree to jointly seek such approval; if the Commission does not then grant such approval, this Agreement shall terminate as of the day such approval is denied. 17.2 If the Annual Fee, or any other fee, charge or expense set forth in this Agreement is subject to the approval of the Illinois Commerce Commission, or any other administrative, judicial, or legislative body, and the Annual Fee or other fee, charge or expense is not approved by the Illinois Commerce commission or other administrative, judicial, or legislative body, this Agreement shall terminate as of the day such approval is denied. -17- 18.0 NOTICE. Except where otherwise indicated, notices required under this Agreement shall be sufficient if sent by certified mail return receipt requested, postage prepaid, to the parties at the addresses set forth below, or to such other addresses as the parties may hereafter substitute by written notice given in the manner prescribed in this Paragraph. If to Commonwealth Edison Company: Chris Patchaouras Commonwealth Edison Company 1319 South First Avenue Maywood, Illinois 60153 With a copy to: Commonwealth Edison Company Office of the General Counsel 125 South Clark Street, Suite 1535 Chicago, Illinois 60603 If to 21st Century Cable TV, Inc.: (insert name) 21st Century Cable TV, Inc. North Pier Terminal 401 East Illinois Street Suite 535 Chicago, Illinois 60611 19.0 TERM OF AGREEMENT This Agreement shall become effective as of the Effective Date and shall remain in affect for a period of *** years unless otherwise terminated pursuant to this Agreement. ____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -18- 19.1 Option To Renew. 21st Century shall have an option to renew this --------------- Agreement for one additional *** year term provided that 21st Century is not in default under the terms and conditions of this Agreement and provided 21st Century agrees to pay the fee indicated on Exhibit E attached hereto and all other fees stated herein. 20.0 AMENDMENT. Neither this Agreement nor any of the provisions hereof can be amended, changed, waived, discharged or terminated, except by an instrument in writing signed by both parties. 21.0 ATTORNEYS' FEES, WAIVER OF JURY TRIAL. If either party institutes an action or proceeding against the other relating to the provisions of this Agreement or any default hereunder, the unsuccessful party to such action or proceeding will reimburse the successful party therein for the reasonable expenses of attorneys fees, disbursements and costs, and litigation expenses incurred by the successful party, in an amount awarded by a court. The parties each hereby waive the right (if any) to trial by jury in any such action or proceeding. 22.0 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between ComEd and 21st Century. --This Agreement supersedes, in all respects, all prior written or oral agreements, if any, between the parties and there are no agreements, understandings, warranties or representations between ComEd and 21st Century except as set forth herein. 23.0 CONSTRUCTION OF AGREEMENT. ComEd and 21st Century have each read and fully understand the terms of this Agreement; each has had the opportunity to have this Agreement reviewed by counsel. The rule of construction providing that ambiguities in a contract shall be construed against the drafter shall not apply. ________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -19- 24.0 ATTACHMENTS. All schedules or attachments annexed hereto are incorporated herein for all purposes as though set forth herein in full. 25.0 APPLICABLE LAW. The laws of the State of Illinois shall govern the construction of this Agreement. IN WITNESS WHEREOF, the parties to this Agreement by their duly authorized representatives have executed this Agreement. COMMONWEALTH EDISON COMPANY By: /s/ Paul D. McCoy -------------------------------- Printed Name: Paul D. McCoy ---------------------- Title: Vice President ----------------------------- Date: 4/3/96 ------------------------------ 21ST CENTURY CABLE TV, INC. By: /s/ Glenn W. Milligan -------------------------------- Printed Name: Glenn W. Milligan --------------------- Title: President & CEO ----------------------------- Date: 3/26/96 ----------------------------- -20- Exhibit A [SURVEY MAP] -21- Exhibit B [B-1 Application for Permission to Make Attachment B-2 Permit granting permission to make attachment] -22- Exhibit C Commonwealth Edison Company - --------------------------- Dispute Coordinator: Chris Patchaouras Commonwealth Edison Company 1319 South First Avenue Maywood, Illinois 60153 Review Manager: Gregory V. Welch Commonwealth Edison Company 1319 South First Avenue Maywood, Illinois 60153 21st Century Cable TV, Inc. - -------------------------- Dispute Coordinator: [insert name, address and telephone number] Review Manager: [insert name, address and telephone number] -23- EXHIBIT D BOND SCHEDULE -------------
AMOUNT OF BOND REQUIRED NUMBER OF POLES EDISON POLES --------------- ------------ 0-100 *** 101-200 *** 201-300 *** 301-400 *** 401-500 *** 501-600 *** 601-700 *** 701-800 *** 801-900 *** 901-1000 *** 1001-2200 *** 2200 - up ***
In the event that Licensee has executed more than one Pole Lease Agreement, Licensee may, with Licensor's written permission, in lieu of furnishing a single bond for each such agreement, furnish either (1) a single bond which covers the obligations under all such Agreements, or (2) two or more bonds, each of which is written in an amount called for under this Bond Schedule for the total number of poles for which permits for pole attachments have been granted in the areas ------- to which the Agreements covered by any such bond relate. * Plus $*** for each 100 poles in excess of 1,000 poles. The amount of bond required, up to a maximum of $***, shall be equal to or in excess of the amount thus determined for the number of Edison poles covered by approved permits. In ---------------- order to minimize the need for frequent change in the Bond amount, it is recommended the amount be such that it cover proposed expansion by the COMM ---- Company within the succeeding six to twelve months. ____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -24- COMMUNICATION (COMM) GUY REQUIREMENTS ------------------------------------- POLES SOLELY OWNED BY EDISON OR ------------------------------- JOINTLY OWNED WITH A TELEPHONE CO --------------------------------- 1. Guy strain due to COMM shall be calculated for heavy ice loading conditions specified in 83 Ill. Admin. Code Part 305. 2. COMM may provide its own guy, rod and anchor to hold its unbalanced strain or may utilize Edison and telephone company anchor and rod providing COMM specifies its strain in down guy an permit application sent to Edison and the telephone company and providing Edison and the telephone company approve the installation or upon telephone company approval may utilize solely owned telephone company guying facilities. 3. COMM shall provide for guying under one of the following plans to hold unbalanced strain due to facilities. a. COMM may install its anchor, rod and down guy, providing sufficient space exists to avoid interference with present guys and anchors --- during and following installation. b. COMM may attach to an existing or replaced Edison anchor rod (requires Edison approval only). c. COMM may utilizing, replaced or new solely owned telephone company anchors, rods and guys, or attach COMM guy to sale telephone company rod and anchor (requires telephone company approval only). d. COMM may utilize existing or replaced telephone company guy and jointly owned Edison and telephone company rod and anchor (Edison and telephone company approval required). [CHART] -25- POLE MOUNTED COMMUNICATION (COMM)) CABINET ON JOINT EDISON & TELEPHONE CO POLE (ONLY 1-CABINET PER POLE) [CHART] Notes: 1. COMM shall not place power supply or other pole mounted equipment cabinets on: (a) Corner poles (b) Transformer poles (c) Capacitor poles (d) Disconnect and/or fuse poles (e) Recloser poles (f) Primary-cable terminal poles (g) Other equipment poles so designed by local forces (h) Any joint pole so designated by telephone co. (i) Any pole with a telephone co. 2. The COMM System shall be designed in such a way that no power supply can be electronically backed from another power supply through the COMM Systems. -26- MINIMUM CLEARANCE BETWEEN EDISON & COMMUNICATION (COMM) FACILITIES [CHART] Notes: 1. Telephone company will specify clearances between telephone and Communication facilities. 2. On each jointly used pole, standard or special space assigned to Edison and uppermost height of communication facility attachment in telephone space varies with height of pole, and mutual agreement between Edison and each telephone company. 3. Vertical separation shall be a minimum of 48" between pole attachments and a minimum of 40" between bottom of supply conductors and top of communication equipment. 4. On solely owned Edison poles, Edison will specify maximum attachment height for Communication facilities. -27- MINIMUM MID SPAN CLEARANCES [CHART] -28- EX-10.6 5 EXHIBIT 10.6 Exhibit 10.6 AMERITECH - ILLINOIS Structure License Agreement This Agreement, effective the 14th day of November, 1996 between Ameritech, hereinafter called Licensor, and 21st Century Cable TV, Inc., located at 455 N. Cityfront Plaza Drive, #2950 in Chicago, Illinois hereinafter called Licensee. WITNESSETH: Whereas, Licensee proposes to furnish communication services in the municipality of Chicago, Illinois. Whereas, Licensee will need to place and maintain aerial and/or underground communications facilities within the area described above and desires to place such communications facilities on poles and/or in the conduit system of Licensor; and, Whereas, Licensor is willing to permit to the extent it may lawfully do so, the placement of said communications facilities on or within Licensor's facilities where reasonably available and where such use will not interfere with Licensor's service requirements or the use of its facilities by others. Now therefore, in consideration of the mutual covenants, terms and conditions herein contained, the parties do hereby mutually covenant and agree as follows: ARTICLE I DEFINITIONS As used in this Agreement: A. ANCHOR ROD A metal rod connected to an anchor and to which a guy strand is attached. Also known as, a "guy rod". B. AMERITECH As used herein "AMERITECH" means Illinois Bell Telephone Company aka Ameritech - Illinois, a corporation organized and existing under the laws of the State of Illinois, having its principal office in the City of Chicago, Illinois. C. CONDUIT A structure containing one or more ducts. D. CONDUIT SYSTEM Any combination of ducts, conduit(s), and manholes joined to form any integrated system but not including cable vaults or buildings owned or controlled by Licensor or in the Licensor's remote terminals or controlled environmental vaults.. E. DUCT A single enclosed raceway for communications cables. F. GUY STRAND A metal cable of high tensile strength which is attached to a pole and anchor rod (or another pole) for the purpose of reducing pole stress. G. INNERDUCT Normally a 1 - 1/4" or 1" duct placed in groups of 2 or 3 inside a larger duct. -2- H. JOINT OWNER A person, firm or corporation having an ownership interest in a pole and/or anchor rod with Licensor. I. JOINT USER A party who owns poles or anchor rods to which Licensor is extended or may hereafter be extended joint use privileges or to whom Licensor has extended or may hereafter extend joint use privileges of Licensor's poles or anchor rods. J. LICENSEE A person, firm, corporation or entity which is a telecommunications carrier, as defined in 220 ILCS 5/13-202 or the owners of a cable television system as defined in 47 U.S.C. sec 522(5). K. LICENSEE'S COMMUNICATIONS FACILITIES The cables and associated equipment and hardware utilized by Licensee in providing communications service and located between Licensee-provided terminal equipment and/or patron-provided terminal equipment. L. LICENSOR'S POLES Poles owned by Licensor in whole or in part. M. MANHOLE An opening in a conduit system which persons may enter for the purpose of installing and maintaining communications facilities. N. MAKE-READY WORK The work required (including field survey, rearrangement and/or transfer of existing facilities on a pole or in a conduit system, replacement of a pole or any other changes) to -3- accommodate Licensee's communication facilities on Licensor's poles or in Licensors conduit system. O. OTHER LICENSEE Any entity, other than Licensee herein or a Joint User, to whom Licensor has or hereafter shall extend the privilege of attaching communications facilities to Licensor's poles or occupying Licensor's conduit system. P. PATRON A person, firm or corporation who receives Licensee's communications service. Q. POLE ATTACHMENT Any item of Licensee's communication facilities in direct contact with Licensors pole. R. SUSPENSION STRAND A metal cable of high tensile strength attached to pole and used to support communications facilities. Also known as "messenger". Article II Scope of Agreement A. Subject to the provisions of this Agreement, Licensor agrees to issue to Licensee for any lawful communications purpose, revocable, non-exclusive permits authorizing the attachment of Licensee's communications facilities to Licensor's poles. B. Subject to the provisions of this Agreement, Licensor agrees to issue to Licensee for any lawful communications purpose, revocable, non-exclusive Permits authorizing the placing of Licensee's communications facilities in Licensors conduit system. -4- C. Nothing contained in this Agreement shall be construed to compel Licensor to construct, retain, extend, place or maintain any pole, or other facilities not needed for Licensor's own service requirements. D. Nothing contained in this Agreement shall be construed as a limitation, restriction, or prohibition against Licensor with respect to any agreement and/or arrangement which Licensor has heretofore entered into, or may in the future enter into, with others not parties to this Agreement regarding the poles and conduit systems covered by this Agreement. The rights of Licensees shall at all times be subject to any such existing agreement and/or arrangement. E. This Agreement may be subject to approval by the Illinois Commerce Commission. Article III Fees and Charges A. Licensee agrees to pay to Licensor the fees and charges as specified herein and in accordance with the terms and conditions of Appendix 1, attached hereto and made a part hereof. B. Nonpayment of any amount due under this Agreement shall constitute a default of this Agreement. C. Licensee shall furnish bond in a form of satisfactory to Licensor or other satisfactory evidence of financial security in such amount as Licensor from time to time may require, in an initial amount of $*** for each municipality to guarantee the performance of all of Licensee's obligations hereunder. The amount of the bond or financial security shall not operate as a limitation upon the obligations of the Licensee hereunder. D. At the expiration of one year from the date of this agreement, and at the end of every six month period thereafter, changes in the amount of the fees and charges specified in Appendix I may be made by Licensor upon one month prior written notice to Licensee, and Licensee agrees to pay such changed fees and charges. _________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -5- Specifications Notwithstanding any other provision of this Agreement, Licensee may terminate this agreement at the end of such notice period if the change in fees and charges is not acceptable to Licensee, by giving Licensor written notice of its election to terminate this Agreement at least 15 days prior to the end of such notice period. E. Changes or amendments to Appendix I shall be effected by the separate execution of Appendix I as so modified. The separately executed Appendix I shall become a part of and be governed by the terms and conditions of this Agreement. Article IV Advance Payment A. Licensee shall make an advance payment to the Licensor unless alternative methods have been negotiated prior to: 1. any undertaking by Licensor of a field survey in an amount specified by Licensor sufficient to cover the estimated charges for completing such field survey. 2. any performance by Licensor of any make-ready work required in an amount specified by Licensor sufficient to cover the estimated charges for completing the required make-ready work. B. The amount of the advance payment required will be credited against the charge for such field survey and/or make-ready work. C. Where the advance payment made by Licensee to Licensor for field survey or make ready work is less than the charge for such work, Licensee agrees to pay Licensor all sums due in excess of the amount of the advance payment. D. Where the advance payment made by Licensee to Licensor for field survey or make ready work exceeds the charge for such work, Licensor shall refund the difference to Licensee. Article V -6- Specifications A. Licensee's communications facilities shall be placed and maintained in accordance with the requirements and specifications of the latest edition of the Bell System Manual of Construction Procedures (Blue Book), the National Electrical Code (NEC), the National Electrical Safety Code (NESC), the rules and regulations of the Occupational Safety and Health Act (OSHA) and General Order 160 of the Illinois Commerce Commission or any governing authority having jurisdiction over the subject matter. Where a difference in specifications may exist, the more stringent shall apply. B. If any part of Licensee's communications facilities is not so placed and maintained and Licensee has not corrected the violation within 15 days from the date of written notice thereof from Licensor, Licensor may in addition to any other remedies Licensor may have hereunder, remove Licensee's communications facilities from any or all of Licensor's poles or perform such other work and take such other action in connection with said communications facilities that Licensor's employees or performance of Licensor's service obligations at the cost and expense to Licensee in accordance with Appendix I and without any liability on the part of Licensor, provided, however, that when in the sole judgment of Licensor such a condition may endanger the safety of Licensor's employees or interfere with the performance of Licensor's service obligations, Licensor may take such action without prior notice to Licensee. Article VI Legal Requirements A. Licensee shall be responsible for obtaining from the appropriate public and/or private authority any required authorization to construct, operate and/or maintain its communications facilities on public and private property at the location of Licensor's pole and conduit system which Licensee uses. Licensor reserves the right to terminate an existing Permit or refuse to grant a new Permit where such evidence is unsatisfactory. -7- B. The parties hereto shall at all times observe and comply with, and the provisions of the Agreement are subject to, all laws, ordinances, regulations and use restrictions which in any manner affect the rights and obligations of the parties hereto under this Agreement, so long as such laws, ordinances, regulations, or restrictions remain in effect. C. No Permit granted under this Agreement shall extend to any of the Licensor's poles or conduit system where the placement of Licensee's communications facilities would result in a forfeiture of the rights of Licensor, Joint Owners or Joint Users, to occupy the property on which such poles or conduit system are located. If the existence of Licensee's communications facilities on Licensor's pole or in Licensor's conduit system would cause a forfeiture of the right of the Licensor, Joint Owners or Joint Users, or all to occupy such property, Licensee agrees to remove its communications facilities forthwith upon notification by Licensor. If said communications facilities are not so removed, Licensor may perform and/or have performed such removal without liability on the part of Licensor and Licensee agrees to pay Licensor, Joint Owners or Joint User or all, the cost thereof and for all losses and damages that may result. Article VII Issuance of Permits A. Before Licensee shall attach to any pole and/or occupy any duct of Licensor. Licensee shall make Application for and have received an appropriate permit. (Appendix III, Forms P-1 and P-2 and/or C-1 through C- 2). B. Licensee agrees to limit filing of Applications for Pole Attachment Permits (Appendix III, Forms P1 and P2) to include not more than 300 poles on any one Application and 1500 poles on all Applications which are pending approval by Licensor at any one time. Such limitations will apply to Licensor's poles located within a single plant construction district of Licensor. Licensee further agrees to designate a desired priority of completion of the field survey and make-ready work for each Application relative to all other of its Applications on file with Licensor at the same time. -8- Article VIII Make-Ready Requirements A. Pole 1. When an Application for Pole Attachment Permit is submitted by Licensee a field survey will be required for each pole for which attachment is requested to determine the adequacy of the pole to accommodate Licensee's communications facilities. Licensor will advise the Licensee will advise the Licensee in writing of the estimated charges that will apply for such field survey. (Appendix III, Form A- 1, Authorization for Field Survey/Make-Ready Work). 2. The field survey may be performed jointly by representatives of Licensor, Joint Owner and/or Joint User and Licensee. 3. Licensor reserves the right to refuse to grant a Pole Attachment Permit for attachment to a pole when Licensor determines that the communications space on such pole is required for its exclusive use or that of a governmental entity with pole attachment rights and that the pole may not reasonably be rearranged or replaced to accommodate Licensee's communications facilities. 4. In the event Licensor determines that a pole to which Licensee desires to attach is inadequate or otherwise needs rearrangement of the existing facilities thereon to accommodate the Licensee's communications facilities. Licensor will advise the Licensee in writing of the estimated make-ready charges that will apply (Appendix III, Form A-1, Authorization for Field Survey/Make-Ready Work). Licensee shall have 30 days from the date of said Form A-1 to indicate its authorization for completion of the required make-ready work and acceptance of the resulting charges. 5. Any required make-ready work will be performed following receipt by Licensor of completed Form A-1. Licensee shall pay Licensor for all make-ready work completed in accordance with the provisions of this Agreement and shall also reimburse the owner(s) of other facilities attached to said poles for any expense incurred by it or them in transferring or rearranging the facilities -9- of such other owners to accommodate Licensee's pole attachment. Licensee shall not be entitled to reimbursement of any amounts paid to Licensor for pole replacements or for rearrangement of facilities on Licensor's poles by reason of the use by the Licensor or other authorized user(s) of any additional capacity resulting from such replacement or rearrangement. 6. Should Licensor, a Joint Owner or a Joint User or a governmental entity with pole attachment rights, for its own service requirements, need to attach additional facilities to any of Licensor's poles, to which Licensee is attached, Licensee's will either rearrange its communications facilities on the pole or transfer them to a replacement pole as determined by Licensor so that the additional facilities of Licensor, Joint Owner or Joint User [or governmental entity] may be attached. The rearrangement or transfer of Licensee's communications facilities will be made at Licensee's sole expense. 10. Permit Applications received by Licensor from two or more Licensees for accommodations on the same pole will be processed by Licensor in attachment accordance with the procedures detailed in Appendix II attached hereto. 11. Whenever it is necessary for Licensor to replace its pole to accommodate Licensee's communications facilities, Licensor may grant Licensee the option. where possible and acceptable to Joint Owner or Joint User, to become the owner of the pole upon payment of all replacement costs on a fully installed basis. This option is subject to the further conditions that: a. Licensee grants Licensor and any Joint Owner or Joint User the right to attach their respective facilities to such replacement pole upon the same terms and conditions as set forth in this Agreement and b. that any governmental entity having attachment rights to Licensor's pole shall be granted similar attachment rights under the same terms and conditions as apply to the pole being replaced. -10- 12. Should Licensee exercise these options and become the pole owner, it agrees to maintain the pole in a safe and serviceable condition for all attachees to the pole for as long as Licensee owns an interest in the pole. B. Anchor Rod 1. Licensee may attach its guy strand to Licensor's existing anchor rod at no charge where Licensor determines that adequate capacity is available; provided that Licensee agrees to secure any necessary right-of-way therefore from the appropriate property owner. 2. Should Licensor, Joint Owner or Joint User attached to the anchor rod, need for its own service requirements to increase its load on the anchor rod to which Licensee's guy is attached, Licensee will either rearrange its guy strand on the anchor rod or transfer it to a replacement anchor as determined by Licensor. The cost of such rearrangement and/or transfer, and the placement of a hew or replacing anchor will be at the sole expense of Licensee agrees to pay. 3. If Licensee does not rearrange or transfer its guy strand within 15 days following the date of written notice from Licensor regarding such requirement, Licensor, Joint Owner or Joint User may perform, or have performed, the work involved and Licensee agrees to pay the full costs thereof. C. Conduit System 1. When an Application for Conduit Occupancy Permit (Appendix III, Form C-1) is submitted by Licensee a record check by the Licensor will be required to determined the availability of the conduit system to accommodate Licensee's communications facilities. Licensor will advise the Licensee in writing of the estimated charges that will apply for field verification and make ready work required. (Appendix III, Form A-1, Authorization for Field Survey/Make-Ready Work). 2. The Licensor retains the right, in its sole judgment, to determine whether such requested space is or is not available. The Licensor will notify the Licensee if the requested space is not available. -11- 3. If, in the Licensor's sole discretion, the requested space may be made available by rearrangement of the existing communications facilities therein, Licensor will advise the Licensee in writing of the estimated make-ready charges that will apply (Appendix III, Form A-1, Authorization for Field Survey Make-Ready Work). Licensee shall have 30 days from the date of said Form A-1 to indicate its authorization for completion of the required make-ready work and acceptance of the resulting charges. 4. Should Licensor [or governmental entity with whom Licensor has an agreement granting such entity priority access to and occupancy of Licensor's conduit system] need, for its own service requirements, any of the space occupied by Licensee's communications facilities in Licensor's conduit system and, if Licensor advises Licensee that Licensee's communications facilities can be accommodated otherwise in Licensor's conduit system, Licensee shall be required to rearrange its communications facilities in the manner designed by the Licensor and at the expense of Licensee. If Licensee has not so rearranged its communications facilities within 15 days of the date of written notice from Licensor requesting such rearrangement, Licensor may perform to have performed such rearrangement without any liability on the part of the Licensor and Licensee agrees to pay the costs thereof. D. In performing all make-ready work to accommodate Licensee's communications facilities. Licensor will endeavor to include such work in its normal work load schedule. Article IX CONSTRUCTION, MAINTENANCE AND REMOVAL OF COMMUNICATIONS FACILITIES A. Licensee may attach to the poles of the Licensor or place in the conduit systems of the Licensor, only those Licensee communication facilities authorized to be attached or placed in the Permit issued under Article VII, above. Licensee shall not attach to the poles of the Licensor or place in the conduit or trench systems of the Licensor, any Licensee communications facilities not authorized to be attached or placed in a Permit issued under Article VII. Licensee shall not modify, -12- supplement, add to or rearrange any Licensee communications facilities attached to the poles of the Licensor, or placed in the conduit of the Licensor, without having first been issued a Permit by the Licensor under Article VII. B. Licensee shall, at its own expense, construct and maintain its communications facilities on Licensor's poles and in Licensor's conduit system in a safe condition and in a manner acceptable to Licensor, so as not to conflict with the use of the Licensor's poles or conduit system by Licensor or other authorized user's facilities attached thereon or placed therein. Licensee shall include in its installation of facilities appropriate permanent labels or other identification to all cables and equipment placed on Licensor's poles and in Licensor's conduit system. C. Licensor shall specify the point of attachment on each of Licensor's poles to be occupied by Licensee's communications facilities. Where multiple Licensee's attachments are involved, Licensor will attempt to the extent practical, to designate the same relative position on each pole for each Licensee's communications facilities. D. Licensee shall provide written notification to Licensor and obtain specific written authorization from Licensor before relocating or replacing its communication facilities on Licensor's poles. E. Licensee's communications facilities shall be placed in, maintained, removed from, relocated or replaced in Licensor's conduit system only when specified authorization for the work to be performed and approval of the party to perform such work has been obtained in advance from Licensor. Licensor retains the right to specify what, if any, work shall be performed by Licensor at Licensee's expense. F. In each instance where Licensee's communications facilities are to be placed in Licensor's conduit system, Licensor shall designate the particular duct the cable will occupy, the location where and manner in which Licensee's cables will enter and exit Licensor's conduit system, the racking of cables in the manhole and the specific location for any associated equipment to be located in the conduit system, Licensor reserves the right to include or limit the type, number and size of Licensee's communications facilities which may be placed in Licensor's conduit system. -13- G. Licensor's manholes shall be opened only at permitted by Licensor's authorized employees or agents. Licensee shall be responsible for obtaining any necessary permits from appropriate authorities to open manholes and conduct work operations. Licensee's employees, agents or contractors will be permitted to enter or work in Licensor's manholes only when an authorized agent or employee of Licensor is present. Licensor's said agent or employee shall have the authority to suspend Licensee's work operations in and around Licensor's manholes if, in the sole discretion of said agent or employee, any hazardous conditions arise or any unsafe practices are being followed by Licensee's employees, agents or contractors. Licensee agrees to pay Licensor the charges, as determined, in accordance with the terms and conditions of Appendix 1, for having Licensor's agent or employee present when Licensee's work is being done in and around Licensor's manholes. The presence of Licensor's authorized agent or employee shall not relieve Licensee of its responsibility to conduct all of its work operations in and around Licensor's manholes in a safe and workman like manner, in accordance with the terms of Article V. H. Licensor may when it deems an emergency to exist, rearrange, transfer or remove Licensee's communications facilities attached to Licensor's poles or occupying Licensors conduit system without incurring any liability on the part of the Licensor. As soon as practicable thereafter, Licensor will endeavor to arrange for reacommodation of Licensee's communication facilities so affected. Licensee agrees to pay Licensor for all expense incurred by Licensor in connection with such rearrangement, transfer, removal and reacommodation. I. If necessary to accommodate the facilities of a subsequent Licensee, Licensee shall, at Licensor's direction but at the expense of the subsequent Licensee, rearrange its facilities on a pole, or transfer its facilities to a replacement pole. J. Licensee shall be liable for and shall pay for any rearrangements or transfers of the facilities of the Licensor, a Joint Owner or Joint User, a governmental entity or other Licensee which is required due to a violation by Licensee of one or more of the requirements or specifications identified in Section A of Article V. K. Licensor may, but is not required to, transfer, or have transferred, Licensee's facilities from poles on which such facilities are attached to poles requiring replacement. Licensor shall have no liability to Licensee for any such transfer. If the Licensor elects not to transfer Licensee's facilities due to safety considerations, -14- Licensor shall notify Licensee in writing and Licensee shall transfer such facilities, at its sole costs and without any abatement of the Facility Transfer Fee. L. If Licensee shall fail to complete any rearrangement or transfer required hereunder within 15 days after the date of written notice from Licensor requesting such rearrangement or transfer, Licensor, or a Joint Owner or Joint User, may perform or have performed such rearrangement or transfer without liability on the part of Licensor or the Joint User or Joint- Owner and Licensee agrees to pay the cost thereof. M. Licensee, at is expense will remove its communications facilities from Licensor's pole(s) or duct(s) within 30 days after 1 termination of the Permit covering such pole attachment or conduit occupancy or 2. the date Licensee substitutes for communications facilities in one duct with facilities in another duct or ducts. If Licensee falls to remove its communications facilities within such periods as specified preceding, Licensor shall have the right to remove such facilities at Licensee's expense and without any liability on the part of the Licensor. Licensee shall advise Licensor in writing as to the date on which the removal of its communications facilities from each Licensor pole and/or portion of conduit system has been completed. ARTICLE X Termination of Licenses A. Any Permit issued under this Agreement shall automatically terminate when Licensee or Licensor ceases to have authority to construct and operate its communications facilities on public or private property at the location of the particular pole or duct covered by the Permit. -15- B. Licensee may at any time surrender its Permit and remove its communications facilities from a pole or portion of a conduit system by giving Licensor written notice of such intention (Appendix III, Form E and F). Once Licensee's communications have been removed they shall not again be attached to such pole or be placed in the same portion of the conduit system until Licensee has complied with all provisions of this Agreement as though no previous Permit has been issued. ARTICLE XI Inspection of Licensee's Communications Facilities A. Licensor reserves the right to make periodic inspections of any part of Licensee's communications facilities and guying attached to Licensor's poles or occupying Licensor's conduit system, and Licensee shall reimburse Licensor for the expense of such inspections. Any charge imposed by Licensor for such inspections shall be in addition to any other sums due to payable by Licensee under this Agreement. B. The frequency and extend to such inspections by Licensor will depend primarily upon Licensee's performance in relation to the requirements of Articles V, VII and IX herein. C. Licensor will give Licensee advance written notice of such inspections, except in those instances where, in the sole judgment of Licensor, safety considerations justify the need for such an inspection without the delay of waiting until a written notice has been forwarded to Licensee. D. The making of periodic inspections or the failure to do so shall not operate to relieve Licensee of any responsibility, obligation or liability assumed under this Agreement. ARTICLE XII Unauthorized Attachment or Occupancy -16- A. If any of Licensee's communications facilities shall be found attached to Licensor's poles or in Licensor's conduit system for which no Permit is outstanding, Licensor, without prejudice to its other rights or remedies under this Agreement (including termination) or otherwise, may Impose a charge and require Licensee to submit in writing, within 15 days after the date of written notification from Licensor or the unauthorized attachment or occupancy, a pole attachment or Conduit occupancy Permit Application. If such Application is not received by the Licensor within the specified time period, Licensee shall remove its unauthorized attachment or occupancy with 15 days of the final date for submitting the required Application, or Licensor may remove Licensee's communications facilities without liability, and the expense of such removal shall be borne by Licensee. B. For the purpose of determining the applicable charge, absent satisfactory evidence to the contrary, the unauthorized pole attachment or conduit occupancy shall be treated as having existed for a period of two year(s) prior to its discovery or for the period beginning with the date on which Licensee was initially authorized to attach facilities of the same communications system to poles or occupy the conduit system, whichever period shall be the shorter; and the fees and charges as specified in Appendix 1, shall be due and payable forthwith whether or not Licensee is permitted to continue the pole attachment or conduit occupancy. C. No act or failure to act by Licensor with regard to said unlicensed use shall be deemed as a ratification or the licensing of the unlicensed use; and if any Permit should be subsequently issued, said Permit shall not operate retroactively or constitute a waiver by Licensor of any of its rights of privileges under this Agreement or otherwise; provided, however, that Licensee shall be subject to all liabilities, obligations and responsibilities of this Agreement in regard to said unauthorized use from its inception. ARTICLE XIII Licensor's Lien Should Licensor under any applicable Article of this Agreement remove Licensee's communications facilities from Licensor's poles or conduit system, Licensor will deliver to Licensee the communications facilities so removed upon payment by Licensee of the cost of removal, storage and delivery and all other amounts due Licensor hereunder. -17- In the event Licensor terminates this Agreement in accordance with Article XIX, Subparagraph B, then Licensor is granted a lien on Licensee's communications facilities occupying Licensor's conduit system or attached to Licensor's poles or removed therefrom, with power of public or private sale, to cover any amounts due Licensor under the provisions of this Agreement. Such liens shall not operate to prevent Licensor from pursuing, at its option, any other remedy in law, equity or otherwise including any other remedy provided for in this Agreement. ARTICLE XIV Liability and Damages A. Licensor reserves to itself, its successors and assigns, the right to locate and maintain its poles and conduit system and to operate its facilities in conjunction therewith in such a manner as will best enable it to fulfill its own service requirements. Licensor shall not be liable to Licensee for any interruption of Licensee's service or for interference with the operation of Licensee's communications facilities, or for any special, indirect, or consequential damages arising in any manner, including Licensor's negligence, out of the use of Licensor's pole or conduit systems or Licensor's actions or omissions in regard thereto and Licensee shall indemnify and save harmless Licensor from and against any and all claims, demands, causes of action, costs and attorneys fees of whatever kind resulting therefrom. Licensor shall exercise precaution to avoid damaging the communications facilities of the Licensee; make an immediate report to the Licensee of the occurrence of any such damage caused by Licensor's employees, agents or contracts and agrees to reimburse the Licensee for all costs incurred by the Licensee to repair such damaged facilities. B. Licensee shall exercise precaution to avoid damaging the facilities of Licensor and of others attached to Licensors pole or placed in Licensor's conduit system, and Licensee assumes all responsibility for any and all loss from such damage caused by Licensee's employees, agents or contractors. -18- Licensee shall make an immediate report to Licensor and any others attached to Licensor's poles or conduit system occupant of the occurrence of any such damage and agrees to reimburse the respective parties for all costs incurred in making repairs. C. Licensee shall indemnify, protect and save harmless Licensor from and against any and all claims, demands, causes of action and costs (including attorney fees) for damages to property and injury or death to persons, including payments made under any Workman's Compensation Law or under any plan for employee's disability and death benefits, which may arise out of or be caused by the erection, maintenance, presence, use of removal of Licensee's communications facilities or by their proximity to the facilities of the parties attached to Licensors poles or placed in Licensors conduit system, or by any act or omission of Licensee's employees, agents or contractors on or in the vicinity of Licensor's poles or conduit system. D. Licensees shall indemnify, protect and save harmless Licensor from any and all claims, demands, causes of action, costs (including attorney fees) of whatever kind which arise directly or indirectly from the construction and operation of Licensee's communications facilities, including taxes, special charges by others, claims and demands for damages or loss for infringement of copyright, for libel and slander, for unauthorized use to television broadcast programs and other program material, and from and against all claims and demands for infringement of patents with respect to the manufacture, use and operation of Licensee's communications facilities in combination with Licensor's poles, conduit system or otherwise. E. In the event Licensor is named as a party in any legal or quasi legal proceeding wherein Licensee's occupation of property is disputed or challenged, Licensee agrees to reimburse Licensor its full cost of participation therein including attorney's fees. F. In those circumstances where a property owner demands that Licensor relocate facilities located on property and such demand for relocation is precipitated, in whole or in part, by the activities of the Licensee on the owner's property or by the attachment of Licensee's communication facilities to the Licensor's poles or placement of Licensee's communication facilities in Licensee's conduit (or trench system), and Licensor, in ------------------ response to such demand, relocates such facilities to avoid the owners property, Licensee shall pay the Licensor's costs of such relocation. -19- ARTICLE XV Insurance A Licensee shall carry insurance (including contractual liability coverage) issued by an insurance carrier satisfactory to Licensor to protect the parties hereto from and against any and all claims, demands, causes of actions, judgments, cost (including attorneys fees), expenses and liabilities of every kind and nature which may arise or covered in Article XIV preceding. B. The amounts of such insurance: 1 against liability due to damage to property shall be not less than *** as to any one occurrence and *** aggregate, and 2. against liability due to injury to or death of persons shall not be not less than *** as to any one person and ***, aggregate. C. Licensee shall also carry such insurance as will protect it from all claims under any Workman's Compensation Law in effect that may be applicable to it. D. Licensee shall submit to Licensor certificates by each company insuring Licensee to the effect that it has insured Licensee for all Liabilities of Licensee covered by the Agreement and that it will not cancel or change any such policy of insurance Licensee except after 60 days' written notice to Licensor. E. All insurance must be effective before Licensor will authorize Licensee to attach its communications facilities in Licensor's conduit system and shall remain in force until such communications facilities have been removed from all such poles and/or conduit systems. ARTICLE XVI Authorization not Exclusive _______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -20- Nothing herein contained shall be construed as a grant of any exclusive authorization, right or privilege to Licensee. Licensor shall have the right to grant, renew and extend rights and privileges to others not parties to this Agreement, by contract or otherwise, to use any pole or conduit system covered by this Agreement. ARTICLE XVII Assignment of Rights A. Licensee shall not assign or transfer this Agreement or any authorization granted hereunder, and this Agreement shall not inure to the benefit of Licensee's successors, without the prior written consent of Licensor. B. In the event such consent or consents are granted by Licensor, then this Agreement shall extend to and bind the successors and assigns of the parties hereto. ARTICLE VIII Failure to Enforce Failure of Licensor to enforce or insist upon compliance-with any of the terms or conditions of this Agreement or to give notice or declare this Agreement or any authorization granted hereunder terminated shall not constitute a general waiver or relinquishment of any term or condition of this Agreement, but the same shall be and remain at all times in full force and effect. ARTICLE XIX Termination of Agreement A. Subject to provisions of Article XVII, hereof, should Licensee cease to provide its communications services in the area(s) covered by this Agreement, then all of Licensee's rights, privileges and authorizations under this Agreement, including all -21- Permits issued hereunder, shall automatically terminate as of the date following the final day that such communications services are provided. B. If Licensee shall fail to comply with any of the terms or conditions of this Agreement or default in any of its obligations under this Agreement and shall fail within thirty (30) days after the date of written notice from Licensor to correct such default or noncompliance, Licensor may at its option, forthwith terminate this Agreement and all authorizations granted hereunder, or the authorizations covering the poles or conduit system as to which such default or noncompliance shall have occurred. C. Licensor shall have the right to forthwith terminate this entire Agreement, or any Permit issued hereunder, without prior notice to Licensee: 1 If Licensee's communications facilities are used or maintained in violation of any law or in aid of any unlawful act or undertaking; or 2. If Licensee defaults under Article V of this Agreement; or 3. If Licensee attaches to any of Licensor's poles or occupies Licensor's conduit system without having first been issued a Permit therefore. D. If the insurance carrier shall at any time notify Licensor that the policy or policies of insurance, required under Article XV hereof, will be canceled or changed so that the requirements of Article XV will no longer be satisfied, then this Agreement terminates upon the effective date of such cancellation or change. E. In the event of termination of this Agreement or any of Licensee's rights, privileges or authorizations hereunder, Licensee shall remove its communications facilities from Licensor's poles and conduit system within six months from the date of termination; provided, however, that Licensee shall be liable for and pay all fees and charges pursuant to terms of this Agreement to Licensor until Licensee's communications facilities are actually removed from Licensor's poles and conduit system. F. If Licensee does not remove its communications facilities from Licensor's poles and conduit system within the applicable time periods specified in this Agreement, -22- Licensor shall have the right to remove them at the expense of Licensee and without any liability on the part of Licensor to Licensee therefore. ARTICLE XX Term of Agreement A. Unless sooner terminated as herein provided, this Agreement shall continue in effect for a term of *** from the date hereof, and thereafter until either party hereto terminates this Agreement by giving the other party at least six months prior written notice thereof. Such six month's of termination may be given to take effect at the end of the original *** period or thereafter. B. Termination of this Agreement or any Permits issued hereunder shall not affect Licensee's liabilities andobligations incurred hereunder prior to the effective date of such termination. ARTICLE XXI Notices All written notices required under this Agreement shall be given by posting the same in certified first class mail, return receipt requested or overnight carrier, with all fees prepaid, to Licensee as follows: Glenn W. Milligan, President & CEO 21st Century Cable TV, Inc. 455 N. Cityfront Plaza Drive, #2950 Chicago, IL 60611 and to Licensor as follows: Ameritech - Illinois ATTN: Structure Leasing Coordinator _____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -23- 54 Mill Street Box 32 Pontiac, MI 48342 or to such address as the parties hereto may from time to time specify. ARTICLE XXII Supersedure of Previous Agreement(s) This Agreement supersedes all previous agreements, whether written or oral, between Licensee and Licensor for placement and maintenance of Licensee's communications facilities on Licensor's poles and in Licensor's conduit system within the geographical area covered by this Agreement; and there are no other provisions, terms, conditions to this Agreement except as expressed herein. All currently effective Permits heretofore granted to Licensee pursuant to such previous agreements shall be subject to the terms and conditions of this Agreement. In Witness Whereof, the parties hereto have executed this Agreement in duplicate on the day and year first above written. Witness (Attest) Illinois Bell Telephone Company a.k.a. Ameritech - Illinois _________________________ By: ___________________________ Secretary Title: ________________________ 21st Century Cable TV, Inc. ------------------------------- Company Name Witness (Attest) By: ___________________________ -24- ______________________ Title: ________________________ Secretary President & CEO -25- APPENDIX I Schedule of Fees and Charges This Appendix I, effective as of _____________, is an integral part of the Structure License Agreement between AMERITECH (Licensor) and 21st Century Cable TV, Inc. dated _____________ and contains the fees and charges governing the use of Licensor's poles and conduit system by Licensee's communications facilities. POLE ATTACHMENTS AND CONDUIT OCCUPANCY A. ATTACHMENT AND OCCUPANCY FEES 1. General a. Attachment and occupancy fees commence on the day the Permit is issued. Such fees cease as of the final day of the semi-annual billing period in which the removal of the communications facilities is completed by the Licensee or by the Licensor. b. Fees shall be payable semi-annually in advance on the first day of January and July, without proration. c. For the purpose of computing the total attachment and conduit occupancy fees due hereunder, the total fee shall be based upon the number of poles and duct feet of conduit for which Permits have been issued before the first day of June and the first day of December each year. The first advance payment of the semi- annual fee for Permits issued under this Agreement shall include a proration from the first day of the month following the date the Permit was issued to the first regular semi-annual payment date. d. Attachment or occupancy fees for initial issuance of a Permit for attachment or occupancy are due at the time of Permit issuance for the semi-annual billing period in which the Permit is issued. The attachment or occupancy fees for initial issuance of a Permit made in December or June shall also include prepayment for the subsequent semi-annual billing period. -26- APPENDIX I SCHEDULE OF FEES AND CHARGES 2. Fees Pole Attachments Yearly Annual Fee ---------------- ----------------- (a) Suspension strand, each, per pole = *** *** (b) Drive hook, drops, power supplies or guy strand, per pole = (See note below) Note: Fee applies only where such hardware is the sole attachment to a pole or bracket. Facility Transfer Fee *** --------------------- The Facility transfer fee shall be calculated annually and shall be the product of ***% (the percentage of poles Ameritech replaces annually is ***%) of the total poles multiplied by $*** to which Licensee is attached as of December 31 of the previous year. Conduit Occupancy ----------------- (a) Per foot of duct occupied by *** (within Chicago City Limits) Licensee's communications *** (outside Chicago City Limits) facilities (b) For the purpose of computing the total fee due hereunder, the length of duct considered occupied shall be measured from the center to _____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -27- center of manholes, or from the center of a manhole to the end of Licensor's duct occupied by Licensee's communications facilities. -28- APPENDIX I SCHEDULE OF FEES AND CHARGES B. Charges 1. Computation All charges for field survey, make-ready work, inspections, removal of Licensee's facilities from Licensor's poles and conduit system and other work performed for Licensee shall be based upon the full cost and expense to Licensor of such work or for having such work performed by an authorized representative of the Licensor. 2. Pole Replacements The charge for replacement of a pole required to accommodate Licensee's attachment, in accordance with Article VIII, a, 3, shall be based on Licensor's fully installed costs less salvage value, if any. In such cases, Licensee shall have the option, where possible and acceptable to any Joint User or owner to become the owner of the replacement pole in accordance with Article VIII, a, 8. C. Payment Date Failure to pay all fees and charges within 30 days after presentment of the bill therefore or on the specified payment date, whichever is later, shall constitute a default of this Agreement and shall result in the imposition of a late charge of 1 1/2% per month or part thereof, of the unpaid balance. Illinois Bell Telephone Company a.k.a. Ameritech - Illinois By: _____________________________ Title: __________________________ By: _____________________________ -29- Title: __________________________ President & CEO Appendix II Multiple Pole Attachment Permit Applications This Appendix, effective as of ___________ is an integral part of the Structure License Agreement between AMERITECH Company (Licensor), and 21st Century Cable TV, Inc. (Licensee), dated __________________ and contains the procedure for processing multiple Pole Attachment Permit Applications governing the use of Licensor's poles. PROCEDURE FOR PROCESSING MULTIPLE POLE ATTACHMENT PERMIT APPLICATIONS The following procedure shall be adhered to in processing Applications to attach to Licensor's poles by multiple Licensees. A. Definitions Simultaneous Permit Applications -------------------------------- Properly completed Pole Permit Applications relative to the same pole which are -received by the Licensor from multiple applicants on the same business day. Non-Simultaneous Permit Applications ------------------------------------ Properly completed Pole Permit Applications relative to the same pole which are received by the Licensor from multiple applicants on different business days. Initial applicant ----------------- The applicant filing the first properly completed Permit Applications (nonsimultaneous) for attachment to a specific pole. Additional applicant -------------------- Each applicant filing a properly completed Permit Application (non- simultaneous) for attachment to a specific pole for which a prior Permit Application has been received by the Licensor. -30- Make-Ready Work --------------- The work required (including field survey, rearrangement and/or transfer of existing facilities on a pole, replacement of a pole or any other changes) in connection with the accommodation of the Licensee's communications facilities on Licensor's pole. Option 1 -------- An arrangement whereby Licensor will process the Permit Application of initial applicant as if there is no other Permit Application on file for the same pole. Option 2 -------- An arrangement whereby Licensor will process Permit Applications of initial and additional applicant in accordance with the procedure applicable for simultaneous multiple Permit Applications. B. MULTIPLE PERMIT APPLICATIONS PROCESSING --------------------------------------- Both simultaneous and non-simultaneous multiple Permit Applications for the same pole will be processed by the Licensor in accordance with the procedures set forth in the flow chart which comprises pages 4 to 6 inclusive, of this Appendix. C. OPTION ARRANGEMENTS ------------------- 1. Upon being offered Options 1 and 2, the initial applicant will be advised that he may make an immediate selection of the option desired or may delay selection until the required make-ready survey work has been completed and the estimate or make-ready charges are quoted by the Licensor. An initial applicant electing to delay its decision, shall indicate the option desired within 15 days after the Licensor has quoted the estimate of the make-ready charges that will apply, otherwise, the Licensor will deem the initial applicant to have selected Option 1. 2. The Permit Application processing procedure to be adhered to in accordance with Option 2 will be subject to acceptance by all of the multiple applicants involved. The additional applicant(s) will have 15 days from the date of notification by the Licensor that the initial applicant has selected Option 2 to accept or reject the conditions applicable under Option -31- 2, otherwise, the Licensor will deem the additional applicant(s) to have rejected such conditions. 3. All work in progress on the initial applicant's Permit Application involving multiple pole attachments will be suspended by the Licensor from the time that the initial applicant is offered Options 1 and 2 until the Licensor receives notification of the initial applicant option selection in accordance with C.1. above. D. MAKE-READY SURVEY REQUIREMENT 1. Where required make-ready survey is to be completed on two bases, the multiple applicants shall be so advised before such survey is Commenced. 2. The make-ready survey required to develop the estimated charges applicable for Options 1 and 2 will include a determination of the work requirements necessary to: a. issue Permits simultaneously to the multiple applicants and, b. issue a Permit to the initial applicant before commencing the required make-ready work necessary to accommodate the additional applicant(s). 3. Licensor will consider any Permit Application involving simultaneous multiple attachments as canceled upon the failure of an applicant to notify the Licensor in writing of his acceptance of the estimate of make-ready charges and accompany such acceptance with the advance payment within 30 days of receipt of such estimate from the Licensor. 4. Licensor or Licensor's authorized representative will perform the make-ready survey in all situations involving simultaneous Permit Applications. 5. Where an initial applicant has been authorized by Licensor to perform its own make-ready survey, and properly completed pole Applications are received from an additional applicant(s), establishing a non- simultaneous Permit Application situation, the conditions of Option 1 will automatically apply and -32- the option arrangements, detailed in Section C of this Appendix, will not be applicable. E. MAKE-READY WORK SCHEDULE Any simultaneous multiple applicant who does not agree with the alternative arrangement that provides for the Licensor to complete ALL make-ready work before simultaneously granting Permits to all multiple applicants will be deemed by the Licensor to have canceled his Application. F. CHANGES IN APPENDIX This Appendix may be changed in whole or in part at any time during the term of this Agreement at the sole option of the Licensor upon the giving of not less than 30 days written notice thereof of the Licensee(s) and to substitute in place thereof such other provisions as the Licensor may deem necessary as relative to multiple attachments to poles of the Licensor. -33- PROCEDURE FOR PROCESSING MULTIPLE POLE ATTACHMENT PERMIT APPLICATIONS WHERE NO MAKE-READY SURVEY EXPENSE HAS BEEN INCURRED BY LICENSOR
Make-Ready Survey Make-Ready Survey Make-Ready Work Make-Ready Cost Requirement Cost Allocation Schedule Cost Allocation To be done on two Multiple applicants must bases to determine develop mutually agreeable accommodation requirements for: Total cost to be 1. order of pole Total cost shared A Simultaneous 1. attachment by shared equally availability and equally by multiple Applications single licensee by multiple 2. overall completion applicants 2. attachment by applicants. schedule - If only one multiple - where multiple applicants applicant agrees to licensees within 15 days from estimated shared (a) simultaneously receipt of estimate from portion of total (b) non- Licensor, Licensor, will cost that applicant simultaneously offer as an alternative, to will be quoted the complete all make-ready cost applicable to work involved before accommodate a single simultaneously granting licensee. (see 1, under permits to multiple Make-Ready Survey applicants. Requirement)
-34- B. Non-Simultaneous Applications Options Available Initial Applicant Initial Applicant to Initial Applicant Licensor will treat as Is charged the cost non-multiple applicant. attributable to the Option 1 - any change of priority of pole work involved to availability or overall accommodate (Licensor will process completion schedule that is attachment by one as if no multiple To be done on two bases desired after either has been licensee. permit applications to determine initially agreed upon with the exist) accommodation Licensor is subject to requirements for: Licensor's ability to 1. attachment by single accommodate in its licensee established work schedule. 2. attachment by Total cost to be multiple licensees shared equally by Additional Applicant Additional Applicant (a) simultaneously multiple applicants Required make-ready work will Is charged the cost (b) non-simultaneously not be performed until permits attributable to the have been granted to initial work involved to applicant unless the accommodate performance of such work will attachment by an not delay the completion of the additional licensee make-ready work required to on a pole attached accommodate the initial by initial licensee. applicant.
PROCEDURE FOR PROCESSING MULTIPLE POLE ATTACHMENT PERMIT APPLICATIONS WHERE PARTIAL MAKE-READY SURVEY EXPENSE HAS BEEN INCURRED BY LICENSOR
Make-Ready Survey Make-Ready Survey Make-Ready Work Make-Ready Cost Requirement Cost Allocation Schedule Cost Allocation
-35- Options Available to Initial Applicant Balance of required survey to be Initial Applicant Option 1 completed on two bases to determine Will be charged the cost accommodate requirements incurred for that portion (Licensor will process for: of the survey which has as if no multiple already been completed. SAME AS 1 B. SAME AS 1 B. permit applications 1. attachment by single Additional Applicant exist) licensee 2. attachment by multiple Will be charged the cost licensees incurred to resurvey the (a) simultaneously completed portion of the (b) non-simultaneously survey to determine the requirements to Portion of survey already accommodate attachment by completed for initial multiple licensees. application will be resurveyed to determine the Total cost of the balance requirements to of the required survey accommodate an additional will be shared equally by licensee. the multiple applicants.
PROCEDURE FOR PROCESSING MULTIPLE POLE ATTACHMENT PERMIT APPLICATIONS WHERE PARTIAL MAKE-READY SURVEY EXPENSE HAS BEEN INCURRED BY LICENSOR
Make-Ready Survey Make-Ready Survey Make-Ready Work Make-Ready Cost Requirement Cost Allocation Schedule Cost Allocation Option 2 (Licensor will process as simultaneous permit applications) SAME AS 1 A. SAME AS 1 A.
-36- PROCEDURE FOR PROCESSING MULTIPLE POLE ATTACHMENT PERMIT APPLICATIONS WHERE MAKE-READY SURVEY IS COMPLETE BUT MAKE-READY WORK
Make-Ready Survey Make-Ready Survey Make-Ready Work Make-Ready Cost Requirement Cost Allocation Schedule Cost Allocation Options Available to Initial Applicant Will be charged the cost Option 1 Resurvey required to of the survey which has SAME AS 1. B. SAME AS 1. B. determine accommodate already been completed. (Licensor will process requirements for as if attachment by Additional Applicant no multiple multiple licensees. permit applications 1. simultaneously Will be charged the cost exist) to resurvey to determine 2. non-simultaneously the requirements for accommodations multiple licensees. Option 2 (Licensor will process SAME AS 1. A. SAME AS 1. A. as simultaneous permit applications)
-37- ADMINISTRATIVE FORMS AND NOTICES This Appendix, effective as of ______________, is an integral part of the Structure License Agreement between AMERITECH Company (Licensor) and 21st Century Cable TV, Inc. (Licensee), dated ______________ and contains the administrative forms governing the use of Licensor's poles and conduit system by Licensee's communications facilities. INDEX OF ADMINISTRATIVE FORMS Authorization for Field Survey/Make-Ready Work A-1 Application and Duct Occupancy Permit C-1 Application for Conduit Route Planning Services C-1A Cost Request/Duct Permit Application Data Sheet C-2 Notification of Surrender or Modification of Duct Occupancy Permit by Licensee C-3 Application and Pole Attachment Permit P-1 Pole Data Sheet P-2 Notification of Surrender or Modification of Pole Attachment Permit by Licensee P-3
-38- Appendix III Form A-1 AUTHORIZATION FOR FIELD SURVEY/MAKE READY WORK (LICENSEE) The necessary work associated with your Application and Conduit ----------------------- Occupancy Permit. Application and Pole Attachment Permit or Application for - ---------------- -------------------------------------- --------------- Conduit Alternate Route Selection Services. number ____________ in the - ------------------------------------------ municipality of for the placement of communication facilities in Ameritech owned conduit or on Ameritech owned poles has been completed. The results of the record check as well as any necessary Field Survey and Make Ready work and associated estimated charges are indicated on the attached Cost Request/Conduit -------------------- Permit Application Data Sheet or Cost Request/Pole Permit Application Data Sheet - ----------------------------- ----------------------------------------------- and map(s). Following is a summary of the estimated charges which will apply. --------- Field Survey Make Ready Hours Cost Hours Cost ----------- ---- --------- ---- Engineering Construction Material Contractor Total All charges for Field Survey and/or Make Ready work associated with your application shall be based on the actual full cost and expense. including overhead. to the Licensor for performing such work. If the actual Charges exceed the amount of your deposit, a bill for the difference will be issued, unless prior alternate billing methods have been negotiated. Licensor must Inform Licensee of the desired method to proceed below within 30 days of this notification AMERITECH - IL IN MI OH WI (circle one) By: ___________________________ ______________________________ (Signed) (Telephone number) (Title) (Date) -39- Based on information provided to me on these forms. please proceed as indicated: Licensee requests the Licensor to complete the indicated Field Survey work required. Licensee requests the Licensor to complete the indicated Make Ready work required. Licensee requests the Licensor to complete both the indicated Field Survey and Make Ready work concurrently. Licensee requests the Licensor to perform additional Route Record Checks as indicated an the attached revised stick maps or drawings and Cost ---- Request/Conduit Permit Application Data Sheet (form C2). Included is an - ------------------------------------------------------- additional deposit of *** per *** feet increment unless other prior alternate negotiated billing methods have been arranged. Also included are any other application or processing fees as outlined in Appendix I of the General Agreement Licensee requests the Licensor to perform Planning Record Check Services as indicated on the attached revised stick maps or drawings and Cost ---- Request/Conduit Permit Application Data Sheet (form C2). Included is an - ------------------------------------------------------- additional deposit of *** per *** feet increment or fraction thereof unless other prior alternate negotiated billing methods have been arranged. Also included are any other application or processing fees as outlined in Appendix I of the General Agreement. Licensee requests no additional work be done at this time and understands that the information and estimated charges provided remains in effect for only 30 days. The required Field Survey and/or Make Ready work to be incurred by the Licensor associated with my Application And Conduit Occupancy Permit or Application And ---------------------------------------- --------------- Pole Attachment Permit, number ___________ is authorized for the charges as - ---------------------- summarized above. If the actual charges exceed the estimated amount. payment to the Licensor will be made in accordance with the terms described above. LICENSEE. By: __________________________ _______________________ (Signed) (Telephone number) ______________________________ _______________________ (Title) (Date) Top portion to be completed by Licensor. Bottom portion to be completed by Licensee. *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -40- APPENDIX III Form C-1 Application and Conduit Occupancy Permit To Ameritech - IL IN Ml OH WI (Circle one) Customer application (Street address) (City, State & Zip) In accordance with the terms and conditions of the Structure License Agreement between us dated ___________19__, application is hereby made for a Permit to occupy feet of conduit for communications facilities as indicated on the attached stick map and conduit data sheet in the municipality of __________ Licensee has indicated on the attached data sheet the number and type of communication cables, outside diameters and any locations where it wishes to enter and exit manholes and/or place splices or fiber maintenance loops in Licensor's manholes. Enclosed is a deposit of *** per *** increment or fraction thereof in the total sum of $_________for Ameritech to provide a stick map and data sheet detailing the locations of manholes, center to center measurements and conduit availability associated with this application based on a record check (no field visit), unless Alternate Route Selection Services apply or other alternative billing methods have been negotiated, plus any other application or processing fees as outlined in Appendix of the Structure License Agreement. Licensee also understands that there is a *** Structure License Agreement processing fee if an initial issuance or a modification of a Structure License Agreement is required prior to the execution of this conduit occupancy Permit by the Licensor. By: (Name of Licensee) (Signed) (Billing address) (Printed) (City, State & Zip code) (Title) (Telephone Number) (Date) __________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -41- Make Ready work has been completed. Conduit occupancy Permit Number is hereby granted to place communication facilities described in this application. Ameritech - IL IN Ml OH WI Inventory of conduit occupied per this Permit (Circle one) by Licensee: By:. Conduit occupied this Permit (Signed) (Title) Previous count per last executed Permit Number (Telephone number) Total conduit footage occupied (Date) Top portion to be filled in by Licensee. Bottom to be ruled in by Licensor. -42- APPENDIX III Form C-lA APPLICATION FOR CONDUIT ALTERNATE ROUTE SELECTION SERVICES To Ameritech - IL IN Ml OH WI (circle one) Customer Application #____________ (Street Address) (City, State & Zip) Application is hereby made for Conduit Alternate Route Selection Services of approximately _______________ feet of conduit for communications facilities as indicated on the attached map and data sheet specifying the desired start and termination points. The Licensee has indicated on the attached map and data sheet the number and type of communication cables, outside diameters and any locations where it desires to enter or exit the conduit system. Enclosed is a deposit of *** per *** feet increment of conduit or fraction thereof in the sum of $ for the Licensor to provide Conduit Alternate Route - Selection Services to check the Licensor's records (No field survey) to identify a primary route and up to two alternative routes (if available). The Licensor will provide a stick map and data sheet by municipality indicating manhole locations, center to center measurements, duct availability, manhole entrance or exit availability and manhole congestion associated with this application. Where conduit is not available, the Licensee may suggest buried or aerial facility alternatives. The Licensee will not be under any obligation to construct conduit facilities if none are available. By: (Name of Licensee) (Signed) (Billing Address) (Printed) (City, State & Zip Code) (Title) (Telephone Number) (Date) ______________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -43- Attached are stick maps by municipality or governing entity prepared by the Licensor suggesting a conduit route based on the information originally provided by the Licensee. Also attached are Cost Request/Conduit Permit Application Data Sheets (Form C2) indicating availability within the route and cost estimates for the necessary Field Survey and Make Ready work required based on the Licenser's record check. Indicated below is how the Licensee desires the Licensor to proceed: ( ) Licensee has attached an Application and Conduit Occupancy Permit by municipality or governing entity for the route selected and the corresponding stick map. Licensee has also attached an executed Authorization For Field Survey/Make Ready Work form. ( ) Licensee requests the Licensor to perform additional Conduit Alternate Route Selection Services as indicated on the attached new maps and Cost Request/Conduit Permit Application data Sheets (Form C2). Enclosed is an additional deposit of *** per *** feet increment or fraction thereof. ( ) Licensee requests no additional work be done at this time and understands that the information and estimated charges provided remain in effect for only 30 days. LICENSEE: By: Date: ________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -44- COST REQUEST/CONDUIT PERMIT APPLICATION DATA SHEET [CHART] -45- COST REQUEST/CONDUIT PERMIT APPLICATION DATA SHEET [CHART] -46- COST REQUEST/CONDUIT PERMIT APPLICATION DATA SHEET [CHART] -47- EXPLANATION OF COST REQUEST/CONDUIT PERMIT APPLICATION DATA SHEET (FORM C2) (ONE DATA SHEET REQUIRED PER MUNICIPALITY) IN ITEM ENTITLED... INFORMATION PROVIDED BY Al CUSTOMER NAME AND ADDRESS Third Party A2 CUSTOMER APPLICATION NUMBER Third Party or Ameritech Structure Leasing Coordinator (ASLC) A3 MUNICIPALITY Third Party A4 NUMBER OF CABLES AND TYPE Third Party A5 OUTSIDE DIAMETER OF CABLE Third Party A6 SHEET 1 OF Third Party or IIP A7 INITIATIVE CODE Third Party or ASLC, if required Bl REQUEST TRACKING NUMBER Third Party or lip B2 A/W UNDERTAKING NUMBER IIP or Design Engineering B3 PLANNING ENGINEER IIP B4 TELEPHONE NUMBER IIP B5 RESPONSIBILITY CODE IIP B6 DESIGN ENGINEER IIP, if known, or Design Engineering B7 TELEPHONE NUMBER IIP, if known, or Design Engineering -48- B8. RESPONSIBILITY CODE IIP, if known, or Design Engineering B9 CONSTRUCTION FOREMAN IIP or Design Engineering, if known, or Construction B10 TELEPHONE NUMBER IIP or Design Engineering, if known, or Construction B11 RESPONSIBILITY CODE IIP or Design Engineering, if known, or Construction B12 MARKETING REPRESENTATIVE IIP or Design Engineering, if known, or ASLC B13 TELEPHONE NUMBER IIP or Design Engineering, if known, or ASLC C1 FIELD SURVEY ENGINEERING IIP. Verification and update, if HOURS necessary, by Design Engineering C2 FIELD SURVEY ENGINEERING COST IIP. Verification and update, if necessary by Design Engineering. Rates provided by ASLC C3 FIELD SURVEY CONSTRUCTION IIP. Verification and update, if HOURS necessary, by Design Engineering or Construction C4 FIELD SURVEY CONSTRUCTION IIP. Verification and update, if COST necessary by Design Engineering. Rates provided by ASLC. C5 TOTAL ESTIMATED FIELD SURVEY IIP by adding items C2 and COST C4 and entering. Verification and update, if necessary, by -49- Design Engineering C6 ESTIMATED START DATE IIP. Verification and update, if necessary, by Design Engineering or Construction C7 ESTIMATED COMPLETION DATE IIP. Verification and update, if necessary, by Design Engineering or Construction C8 MAKE - READY ENGINEERING IIP. Verification and update, if HOURS necessary, by Design Engineering C9 MAKE - READY ENGINEERING IIP. Verification and update if COST necessary, by Design Engineering.Rates.provided by ASLC. C10 MAKE - READY CONSTRUCTION IIP. Verification and update, if HOURS necessary, by Design Engineering or Construction C11 MAKE - READY CONSTRUCTION IIP. Verification and update, if COST necessary, by Design Engineering. Rates provided by ASLC. C12 MAKE - READY MATERIAL COST IIP. Verification and update, if necessary, by Design Engineering C13 CONTRACTOR COSTS IIP. Verification and update, if necessary, by Design Engineering or Construction C14 TOTAL ESTIMATED MAKE - READY IIP by adding items C9, C11, COST Cl 2 and C13 and entering. Verification and update, if -50- necessary, by Design Engineering C15 ESTIMATED START DATE IIP. Verification and update, if necessary, by Design Engineering or Construction C16 ESTIMATED COMPLETION DATE IIP. Verification and update, if necessary, by Design Engineering or Construction D 1 LICENSE NUMBER ASLC D2 TOTAL DUCT FEET AVAILABLE IIP. Verification and update, if TO LEASE THIS PERMIT necessary, by Design Engineering NOTE: Subtract any unavailable section conduit footage from column D4 before filling in item D2. D3 SECTION BEGINNING IIP. Verification and update, if MH/POLE/BLDG necessary, by Design Engineering D4 C.C. MEASUREMENT IIP. Verification and update, if necessary, by Design Engineering. This is the wall to wall measurement on records plus 1/2 beginning manhole length on records and 1/2 ending manhole length on records D5 SECTION ENDING IIP. Verification and update, if MH/POLE/BLDG # necessary, by Design Engineering D6 AVAILABLE DUCT IIP. Yes or NO answer. Verification and update, if necessary, by Design -51- Engineering or Construction D7 AVAILABLE INNERDUCT IIP. Yes or No answer. If No, provide estimated material and cost of placing maximum interducts in D13 and D14. Verification and update, if necessary, by Design Engineering or Construction D8 FIELD SURVEY REQUIRED IIP. Yes or No answer. Verification and update, if necessary, by Design Engineering D9 KNOCKOUT IIP. Yes or No answer if entrance or exit from MH is requested by Third Party. Verification and update, if necessary, by Design Engineering or Construction D10 LATERAL DUCT IIP. Yes or No answer if entrance or exit from MH is requested by Third Party. Verification and update, if necessary, by Design D11 CONGESTED MH IIP. Yes or No answer if splices or maintenance loops in MH are requested by Third Party. Verification and update, if necessary, by Design Engineering or Construction D12 TERMINATION SPACE IIP. Yes or No answer if entrance or exit from MH is requested by Third Party and -52- no knockouts or laterals are available. Verification and update, if necessary, by Design Engineering or Construction D13 FIELD SURVEY WORK REQUIRED, IIP or Design Engineering. MAKE READY WORK REQUIRED, Provide detailed explanations AND MATERIAL REQUIRED of any specific work or materials required found during Record Check or Field Survey for each NO* answer in D6-DI2. Also, provide any additional information needed at Field Survey or Make Ready. D14 ESTIMATED COST IIP. Estimated cost to provide labor or material for item D13, if required. Verification and update, if necessary, by Design Engineering D15 CONSTRUCTION COMMENTS Construction. Provide comments as the result of Field Survey or Make Ready work. Examples include: Size of available conduit/innerduct, blockages, duct assignments, location in MH for terminations -53- Appendix III Form C-3 NOTIFICATION OF SURRENDER OR MODIFICATION OF CONDUIT OCCUPANCY PERMIT BY LICENSEE To Ameritech - IL IN Ml OH WI (Circle one) (Street Address) (City, State & Zip Code) In accordance with the terms and conditions of the Structure License Agreement between us dated __________ 19_, notice is hereby given that the Permit covering occupancy of the following conduit in the municipality or governing entity of is surrendered or modified as indicated. Permit Number Dated ____________,19___ Conduit Location Facilities Date Facilities Removed - ---------------- ---------- ----------------------- By (Name of Licensee) (Signed) (Billing Address) (Printed) (City, State & Zip Code) (Title) (Telephone Number) (Date) -54- To be completed by Licensor Date Notice Received _ ____Total Duct Feet Discontinued By ____________________ New Total Duct Feet Occupied -55- EX-10.7 6 EXHIBIT 10.7 EXHIBIT 10.7 THE APPAREL CENTER THIS LEASE made as of January 31, 1997 between LASALLE NATIONAL BANK, not individually but as Trustee under a Trust Agreement dated March 1, 1967, as extended, and known as Trust No. 36223 ("Landlord") and 21ST CENTURY CABLE TV, INC., an Illinois corporation ("Tenant"). WITNESSETH 1. DEMISED PREMISES; TERM. (A) Landlord does hereby demise and lease to Tenant, and Tenant accepts that certain space shown hatched on Exhibit "A" which is attached hereto and made a part hereof, consisting of approximately 32,422 rentable square feet and commonly described as a portion of the sixth floor ("Premises") of The Apparel Center, a building located on land at 350 North Orleans Street ("Building") (provided, however, the Building does not include the hotel premises [herein "Hotel Premises",] located in the same physical structure as the Building) constructed on the north portion of the property bounded by West Kinzie Street, North Orleans Street, the Chicago River, and a line 352.50 feet south of and parallel with the south line of West Kinzie Street in Chicago, Illinois (such land and Building hereinafter referred to, together with all present and future easements, additions, improvements and other rights appurtenant thereto, as the "Property"), for a term beginning on the Commencement Date (as hereinafter defined) and ending on the last day of the *** Lease Year (as hereinafter defined) thereafter ("Term"), unless sooner terminated as provided herein, subject to the terms, covenants and agreements herein contained. The Commencement Date shall be the earlier of (a) substantial completion of Tenant's Work (as defined Article 35) or (b) July 1, 1997 (subject to extension in the event of' a Landlord Delay as provided in Article 35(A) or Article 35(B)(3)hereof). For purposes of this Lease, "Lease Year", shall mean a period of twelve (12) consecutive calendar months, the first of which shall commence on the Commencement Date if the Commencement Date shall be the first day of a calendar month, or on the first day of the first calendar month following the Commencement Date if the Commencement Date shall be other than on the first day of a calendar month, and shall end on the last day of the twelfth (12th) calendar month thereafter. Each successive Lease Year shall be a twelve (12) calendar month period commencing on the anniversary of the commencement of the first Lease Year. __________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. (B) Landlord and Tenant agree that the rentable area of the Premises initially demised pursuant to this Article 1 and any additional space that at any time may be demised hereunder shall be computed in accordance with Building Owners and Managers Association International Standard Method for Measuring Floor Area in Office Buildings known as American National Standard ANS1 Z65.1- 1996 (approved June 7, 1996) by American National Standards Institute, Inc. ("BOMA Standards"); provided, however, that the rentable area of any space added to the Premises shall be calculated by adding to the usable area of such space a percentage of said usable area equal to fifteen percent (15%), or BOMA Standard, whichever is less. In any event, it is agreed that after the addition of both of the Take-Down Spaces pursuant to Article 36, Tenant shall occupy the *** consisting of approximately *** rentable square feet. (C) Upon final approval of the plans and specifications for Tenant's Work, Landlord and Tenant agree to confirm the rentable square footage of the Premises and if the rentable square footage is not *** rentable square feet, then Landlord and Tenant shall amend this Lease to reflect the actual rentable square footage of the Premises and the Base Rent payable pursuant to Article 3, Tenant's Proportionate Share set forth in Article 4 and Landlord's Contribution set forth in Article 34 shall be adjusted to reflect the actual rentable square footage of the Premises. 2. USE. Tenant will use and occupy the Premises for general office purposes and for the transmitting of television, telephone and other telecommunications signals for which Tenant is legally licensed and incidental uses thereto and for no other use or purpose. Tenant will not use or permit upon the Premises anything that will invalidate any policies of insurance now or hereafter carried on the Building or that will increase the rate of insurance on the Premises or on the Building. Tenant will pay all extra insurance premiums on the Building which may be caused by the use which Tenant shall make of the Premises (other than a use stated in the first sentence hereof). Tenant will not (a) use or permit upon the Premises anything that may be dangerous to life or limb; (b) in any manner deface or injure the Building or any part thereof or overload the floors of the Premises; or (c) do anything or permit anything to be done upon the Premises in any way creating a nuisance or disturbing any other tenant in the Building or the occupants of neighboring property, or tending to injure the reputation of the Building. Tenant shall further not carry-on or permit any activities which might: (1) involve the storage, use or disposal of medical or hazardous waste or substances or the creation of an environmental hazard other than such substances in such amounts customarily used in normal office operations; or (2) impair or interfere with (i) the structure of the Building or the operation of Building systems, (ii) the character, reputation or appearance of the Building as a first-class building, (iii) the furnishing of services (including utilities, telephone and communications) to any portion of the Building, or (iv) the enjoyment by any other occupants of the Building or the benefits of such occupancy (for example, free of noise, odors or vibration emanating from the Premises). The Premises shall not be used for the purposes of any so called "office suites", schools, employment ________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -2- agencies, medical treatment facilities or any retail or wholesale activities, except as incidental to Tenant's permitted use described above. Tenant will fully and promptly comply, and operate the Premises in conformity, with all applicable federal, state and municipal laws, ordinances, codes, regulations and requirements respecting the Premises or Tenant's use or occupancy thereof, and activities therein provided, however, Tenant shall not be responsible for assuring that the "Building Systems" (as defined in Article 7 hereof), other than any Building Systems constructed or installed by Tenant, are in compliance with such laws, ordinances, codes, regulations or requirements. Tenant will not use the Premises for lodging or sleeping purposes, nor conduct or permit to be conducted on the Premises any business or activity which is contrary to the provisions of this Lease or to any applicable governmental laws, ordinances, codes, regulations and requirements. Tenant shall promptly pay all taxes of whatever kind which are imposed upon Tenant but which are to be collected by Landlord. Tenant shall at no time sell food on or from the Premises. Tenant shall at no time sell (within the meaning of the Illinois Liquor Control Act, as now or hereafter amended) alcoholic liquor on or from the Premises, provided, however, that Tenant may occasionally give complimentary food and alcoholic liquor to its guests on the Premises, on condition that Tenant shall comply with all applicable governmental requirements, and on further condition that, prior to the giving of such alcoholic liquor, Tenant shall procure and maintain continuously thereafter (or cause to be procured and maintained continuously thereafter) in force a policy of or endorsement for host liquor liability insurance, as set forth in Article 25 hereof. 3. BASE RENT. Tenant shall pay to Landlord an annual base rent ("Base Rent") for the Premises, (initially based on *** rentable square feet and including adjustments necessary to reflect the addition of the First Take-Down Space and Second Take-Down Space pursuant to Article 36 hereof) as shown below for each respective period in equal monthly installments during each respective period as follows:
ANNUAL MONTHLY BASS RENT PER LEASE YEAR BASE RENT INSTALLMENT RENTABLE SQUARE FOOT ---------- --------- ----------- -------------------- *** *** *** ***
_______________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -3- Tenant shall pay each installment of Base Rent in advance on the first day of every calendar month of the Term. All such payments shall be made payable to Landlord or Landlord's agent and shall be made at the office of the Building or at such other places and to such other parties as Landlord shall from time to time by written notice appoint. Base Rent shall be payable without any prior demand therefor and without any deductions or set-offs whatsoever. If the Term commences on a day other than the first day of the calendar month, or ends on a day other than the last day of the, calendar month, the Base Rent for such fractional month shall be prorated on the basis of 1/365th of the annual Base Rent for each day of such fractional month. 4. RENT ADJUSTMENTS. Landlord and Tenant agree that the following rent adjustments shall be made with respect to each calendar year of the Term, or portion thereof, including the calendar year in which the Term of this Lease begins and the calendar year in which the Term of this Lease terminates, after the Base Year (which Base Year for purposes of this Lease shall be the calendar year ending on December 31, 1997). For purposes of such rent adjustments, Tenant's Proportionate Share is agreed to be ***%, calculated by dividing *** rentable square feet, the initial square footage of the Premises by ***, being the rentable square feet in the Building, and effective on *** Tenant's Proportionate Share is increased to ***%. to reflect the addition of the First Take-Down Space of *** rentable square feet to the Premises pursuant to Article 36 hereof and effective on ***, Tenant's Proportionate Share is increased to ***% to reflect the addition of the Second Take of *** rentable square feet to the Premises. ________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -4- (A) Tenant shall pay to Landlord as additional rent an amount equal to Tenant's Proportionate Share of the amount by which Ownership Taxes (as hereinafter defined) paid in any calendar year during the Term after the Base Year exceed Ownership Taxes paid in the Base Year. Subject to the provisions below in this Paragraph (A), "Ownership Taxes" shall mean all taxes, assessments, impositions and governmental charges of every kind and nature which Landlord shall pay in a calendar year because of or in any way connected with the ownership, leasing, management, and operation of the Building and the Property. The definition of Ownership Taxes is subject to the following: (1) the amount of ad valorem real and personal property taxes against Landlord's real and personal property to be included in Ownership Taxes shall be the amount shown by the latest available tax bills required to be paid in the calendar year in respect of which ownership Taxes are being determined. The amount of any tax refunds shall be deducted from Ownership Taxes in the calendar year they are received by Landlord; (2) the amount of special taxes and special assessments to be included shall be limited to the amount of the installments (plus any interest, other than penalty interest, payable thereon) of such special tax or special assessment required to be paid during the calendar year in respect of which Ownership Taxes are being determined; (3) there shall be excluded from Ownership Taxes all income taxes [except for a specific tax or excise on rents or other income from the Property (or on the value of leases thereon) or a specific gross receipts tax or excise on rents or other income from the Property (or on the value of leases thereon)], excess profit taxes, franchise, capital stock and inheritance or estate taxes, except to the extent that any such tax is in lieu of, in substitution for, or a supplement to, in whole or in part, any tax included in Ownership Taxes. Ownership Taxes shall also exclude all taxes, assessments, charges, costs and disbursements paid in connection with the portion of the Building used for hotel purposes, and provided Tenant has timely paid Tenant's Share of Ownership Taxes, ownership Taxes shall exclude any penalties imposed in connection with any failure of Landlord to timely pay any Ownership Taxes; and (4) Ownership Taxes shall also include, in the calendar year paid, any actual out-of-pocket fees, costs and expenses (including reasonable attorneys' fees) incurred by Landlord in contesting or attempting to reduce or limit any ownership Taxes, regardless of whether any such reduction or limitation is obtained. -5- (B) Tenant shall also pay to Landlord as additional rent an amount equal to Tenant's Proportionate Share of the amount by which Operating Expenses for any calendar year during the Term after the Base Year exceed Operating Expenses for the Base Year. Subject to the provisions below in this Paragraph (B) , Operating Expenses shall mean all expenses, costs and disbursements of every kind and nature paid, incurred, or otherwise arising in respect of a calendar year because of or in connection with the ownership, management, maintenance, repair, and operation of the Building and the Property. The definition of Operating Expenses is subject to the following: (i) There shall be excluded from Operating Expenses: (1) costs of alterations of tenant spaces; (2) depreciation and amortization except as specifically provided herein; (3) principal and interest payments on mortgages, and financing or refinancing expenses; (4) return on investment; (5) Ownership Taxes with the respect to which Tenant is liable for its Proportionate Share pursuant to the preceding paragraph (A); (6) the cost of capital improvements, capital repairs in the nature of capital replacements, and capital equipment, except as provided in clause (ii) below with respect to capital items resulting in a reduction or limitation in Operating Expenses or required to comply with governmental requirements; (7) ground lease or master lease rents or costs in connection therewith; (8) real estate brokers, leasing commissions or compensation and any other expenses incurred in leasing space or procuring tenants; (9) any costs for which Landlord has received reimbursement (other than reimbursements from tenants under operating expense escalation clauses), whether from insurance or condemnation proceeds or clockwise; (10) attorneys, fees, costs and disbursements and other expenses incurred in connection with negotiation or enforcement of leases with tenants or prospective tenants of the Building; (11) expenses in connection with any service or other benefits of a type which are not provided to Tenant but which are Provided to another tenant or occupant of the Building; (12) overhead and profit increment paid to parents, subsidiaries or affiliates of Landlord or its beneficiary for services on or to the Building to the extent only that the costs of such services exceed the competitive costs of such services were they not so rendered by such parent, subsidiary or affiliate (subject, however, to the provision in clause (15) below as to management fees); (13) any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord or Landlord's beneficiary or any affiliate of either; (14) advertising, marketing and promotional expenditures; (15) management fees to the extent such fees exceed similar costs incurred in comparable office buildings in the area; provided, however, that in any event Tenant agrees that there may be included in Operating Expenses a management fee, whether paid to an affiliate of Landlord's beneficiary or an unrelated third party, in an amount up to 3% of gross revenues derived from the Building; (16) wages, salaries or other compensation paid to any employees of Landlord or Landlord's beneficiary or management agent above the grade of building manager; (17) penalties or fines incurred in connection with Landlord's failure to comply with laws unless caused by the act or omission of Tenant, its agents or employees, and (18) all charges, costs and disbursements properly allocable to the Hotel Premises. -6- (ii) In the event Landlord makes any capital improvement or any capital repair in the nature of a capital replacement or installs any capital equipment during the Term hereof which (a) results in a reduction or limitation in Operating Expenses, or (b) is required to comply with any governmental rules, regulations or requirements applicable from time to time to the Building or to the Property and enacted or initially enforced after the date of execution hereof, the costs thereof, as amortized in each case on a straight-line basis (unless otherwise required by generally accepted accounting principles) over the useful life of the item so capitalized, may be included in Operating Expenses; provided, however, that the amount paid by Tenant for any calendar year or portion thereof which falls within the Term of this Lease on account of a capital item described in clause (a) above shall not exceed the actual reduction in Tenant's Proportionate Share of Operating Expenses with respect to such calendar year or portion thereof by reason of such capital item. If the Building shall not have been fully occupied by tenants at any time during the Base Year or any succeeding calendar year, the Operating Expenses for such year may be equitably adjusted to reflect the Operating Expenses which vary with occupancy as though the Building had been fully occupied throughout such year. (C) [Intentionally Deleted] (D) In order to provide for current payments on account of increases in Ownership Taxes and Operating Expenses over the Base Year, Tenant agrees, at Landlord's request, to pay on account to Landlord for each calendar year of the Term or portion thereof following the Base Year, Tenant's share of adjustments due for such ensuing calendar year or portion thereof, as reasonably estimated by Landlord from time to time, in equal monthly installments, commencing on the first day of the month following the month in which Landlord notifies Tenant of the amount of such estimated rent adjustments or revisions thereto. The installments of estimated rent adjustments payable for each month of the current calendar year prior to the date of receipt of Landlord's estimate shall be due and payable within thirty (30) days after the receipt of such estimate. If, as finally determined (whether in the succeeding calendar year at the time of delivery of the statement provided for in paragraph (E) hereof, or in the current calendar year when the final amount of any portion of Ownership Taxes becomes known to Landlord), such rent adjustments shall be greater than or less than the aggregate of all installments so paid on account to Landlord prior to receipt of an invoice from Landlord, then Tenant upon receipt of such invoice shall pay to Landlord within twenty (20) days immediately following such notification the amount of such underpayment, or, provided Tenant is not in default hereunder, Landlord shall credit Tenant against the rent next coming due for the amount of such overpayment, as the case may be. It is the intention hereunder to estimate from time to time the amount of increases in Ownership Taxes and Operating Expenses for each calendar year over Ownership Taxes and Operating Expenses for the Base Year, and then to finally determine such rent adjustments at the end of such calendar year or as soon thereafter as possible based upon actual increases in Ownership Taxes and Operating Expenses for such calendar year. -7- (E) Landlord agrees to keep books and records showing the Ownership Taxes and operating Expenses in accordance with a system of accounts and generally accepted accounting principles consistently maintained on a year-to-year basis in compliance with -such provisions of this Lease as may affect such accounts. Landlord agrees that any cost included in Operating Expenses or Ownership Taxes shall not be included in more than one category of costs comprising Operating Expenses or ownership Taxes. Landlord shall deliver to Tenant within one hundred fifty (150) days after the close of each calendar year (including the calendar year in which this Lease begins and the calendar year in which this Lease terminates), a statement certified by an officer of Landlord Is agent substantially in the form of the sample statement attached hereto and made a part hereof as Exhibit "B". Failure or delay in delivering any such statement or accompanying invoice, or failure or delay in computing the rent adjustments pursuant to this Article 4, shall not be deemed a waiver by Landlord of its right to deliver such items nor shall any such failure or delay be deemed a release of Tenant's obligations with respect to any such statement or invoice, or constitute a default hereunder. All rent adjustments payable hereunder shall be made without any deductions or set-offs whatsoever. (F) The obligation of Tenant with respect to the payment of Base Rent and rent adjustments due hereunder shall survive the expiration or termination of this Lease. Any payment, refund, or credit made pursuant to this Article shall be made without prejudice to any right of Tenant to dispute, or of Landlord to correct, any items as billed pursuant to the provisions hereof. In the event that the Term of this Lease shall have been in effect for less than the full calendar year immediately preceding Tenant's receipt of the invoices provided for in paragraphs (D) and (E) hereof or if the Term shall end on a day other than the last day of a calendar year, the rent adjustment shall be pro rata on a per diem basis. In no event shall any rent adjustment result in a decrease in the Base Rent payable from time to time hereunder. Notwithstanding anything contained herein to the contrary, Landlord shall not have the right to make demand upon Tenant for additional amounts due with respect to, Operating Expenses and Ownership Taxes for any calendar year and Tenant shall not have to right to dispute or contest the amounts due or paid with respect to Operating Expenses and Ownership Taxes for any calendar year more than three (3) full years after the end of said calendar year. (G) In the event that Tenant disputes the accuracy of the statement, or the information therein contained, furnished by Landlord to Tenant pursuant to Paragraph (E) above, Tenant may require upon delivering notice in writing within sixty (60) days after submission of such statement that Ownership Taxes and Operating Expenses be audited by an independent, nationally recognized public accounting firm selected by Tenant and satisfactory to Landlord, at Tenant's expense, except as hereinafter provided. If as finally determined Tenant's Proportionate Share of actual Operating Expenses and Ownership Taxes for any calendar year is ninety-five percent (95%) or less of Tenant's Proportionate Share of Operating Expenses and Ownership Taxes as shown in the statement furnished by Landlord to Tenant pursuant to Paragraph (E), -8- Landlord shall pay the reasonable costs and expenses incurred by Tenant in engaging such public accounting firm to render such statement and if it is finally determined that Tenant has overpaid for Tenant's Proportionate Share of Operating Expenses or Ownership Taxes as a result of an error by Landlord, Landlord shall credit to tenant the amount of such overpayment in the manner provided above in Paragraph (D); provided, further, that if as finally determined Tenant's Proportionate Share of actual Operating Expenses or actual Ownership Taxes for any calendar year is greater than Tenant's Proportionate Share of Operating Expenses or ownership Taxes as shown in such statement furnished by Landlord to Tenant, Landlord in such instance reserves the right to issue to Tenant an amended invoice adjusting the amount of Tenant's Proportionate Share payable by Tenant to Landlord for such year. The statement rendered by such public accounting firm shall be final, binding and conclusive upon Landlord and Tenant. (H) In the event Tenant selects such firm of nationally recognized certified public accountants to examine Landlord's books and records for any calendar year, such firm shall promptly conduct such examination in accordance with generally accepted accounting principles consistently applied and, as soon as practicable, render to Landlord and Tenant a report stating such accountants, determination of the Operating Expense and Ownership Tax increase or decrease for such year over the Base Year and, if such determination is inconsistent with Landlord's statement of Operating Expense or Ownership Tax increase furnished to Tenant by Landlord, a reasonably-detailed basis for the determination and explanation of each discrepancy. Such accountants engaged by Tenant may inspect, audit, review, copy and examine (and Landlord agrees to make the same available for such purposes) in Chicago, Illinois only such of Landlord's books and records as are directly related to the preparation of Landlord's statement of Operating Expense and Ownership Tax increase, and such accountants engaged by Tenant may examine none of Landlord's books and records with respect to any property other than the Property. Landlord shall not be obligated to permit any individual to examine Landlord's books and records unless such individual and such individuals employer first execute and deliver to Landlord a written acknowledgment affirming that (i) such individuals examinations of Landlord's books and records shall be strictly confidential, and (ii) the results thereof and information derived therefrom or obtained in the course thereof shall not be (a) disclosed by such parties to any. person other than such individual's direct supervisor and Tenant's employees who have a position within Tenant requiring them to know such information and other individuals to whom disclosure is required by law or governmental rule or regulation, or (b) used by such parties for any purpose other than in preparing the report to be rendered to Landlord and Tenant; provided, however, such results and information from the accountant's examination may be used by Landlord and Tenant in enforcing their respective rights and obligations hereunder. -9- Tenant hereby covenants and agrees with Landlord that any examination of any information relating to Operating Expenses or Ownership Taxes furnished by Landlord to Tenant and any examination of Landlord's books and records by Tenant, its employees or agents shall be confidential in accordance with the provisions of this Paragraph (H) and the results of such examinations and information derived therefrom or obtained in the course thereof shall not be disclosed to anyone or used for any purpose other than as permitted pursuant to this Article 4. 5. CONDITION OF PREMISES. Tenant's entry into possession of all or any part of the Premises shall be conclusive evidence as against Tenant that such part of the Premises was in good order and satisfactory condition when Tenant took possession, except for (a) any latent defects in the structure of the Building (including the exterior of the Building and exterior windows of the Building), or (b) any latent defects in the Shell and Core Work constructed for Tenant's occupancy pursuant to Article 35(A) or in the electrical, plumbing, HVAC or other common systems of the Building, excluding items of damage caused by Tenant, its agents, contractors and suppliers, or (c) any incomplete Shell and Core Work which shall be identified by Landlord and Tenant prior to 14 Tenant's entering into possession of the Premises for the purpose of conducting its business therein, or (d) any latent defects in any Tenant's Work furnished by Landlord pursuant to Article 35.B, and any punchlist items in such Tenant's Work identified by Landlord and Tenant prior to Tenant's entering into possession of the Premises for the purpose of conducting its business therein. Tenant acknowledges that no promise of Landlord or its agents to alter, remodel or improve the Premises or the Building and no representation respecting the condition of the Premises or the Building have been made by Landlord or its agents to Tenant other than as may be contained herein. 6. POSSESSION. (A) In the event that possession of the Premises shall not be delivered to Tenant on the date above fixed for the commencement of the Term, this Lease shall nevertheless continue in full force and effect, and no liability shall arise against Landlord out of any such delay beyond the abatement of rent as provided in Article 35(A). (B) Tenant shall have the right from time to time to enter into possession of all or any part of the Premises prior to the Commencement Date for the purpose of conducting its business therein. All of the covenants and conditions of this Lease (including, without limitation, Landlord's provision of services as described in Article 9 hereof) shall be binding upon the parties hereto in respect of such pre-Term possession the same as if the first day of the Term had been fixed as of the date when tenant entered such possession, except that Tenant shall not be obligated to pay any Base Rent or any rent adjustments pursuant to Article 4 hereof for the period prior to the Commencement Date, but Tenant shall be responsible for the payment of electricity pursuant to Article 9(C) and for the payment of all costs incurred for janitorial and -10- cleaning services for the Premises from and after the date that Tenant so enters into possession for purposes of conducting business therein. 7. REPAIRS. Subject to Force Majeure events (as defined in Article 35(A)), Tenant will, at its own expense and subject to the provisions of Article 8 of this Lease, keep the "Tenant Responsible Premises" (as defined below in this Article 7) in good repair and tenantable condition at all times during the Term of this Lease, and Tenant shall promptly and adequately repair all damages to the Tenant Responsible Premises (except reasonable wear and tear and as otherwise provided in Article 25 of this Lease) and replace or repair all damages or broken interior glass (including any glass demishing walls and signs thereon, fixtures and appurtences, under the cited supervision and with the approval of Landlord, and within any reasonable period of time specified by Landlord. If Tenant does not do so, ten (10) days after written notice from Landlord (or sooner in an emergency situation or other situation giving or threatening to give rise to damage to person or property exists), Landlord may, but need not, make such repairs or replacements and the amount paid by Landlord for such repairs and replacements (including Landlord's overhead and profit and the cost of general conditions at Landlord's then published rates) shall be deemed additional rent reserved under this Lease due and payable within thirty (30) days after delivery of a bill therefor by Landlord. Landlord may, but shall not be required so to do, enter the Premises at all reasonable times to make such repairs or alterations, improvements and additions, including but not limited to ducts and all other facilities for air conditioning service, as Landlord shall deem necessary or appropriate for the safety, preservation or improvement of the Premises or the Building or any equipment located in the Building, or as Landlord may be required to do by the City of Chicago or by the order or decree of any court or by any other governmental authority, provided that Landlord gives Tenant prior notice (except in cases of an emergency) of any such repairs, alterations, improvements and additions in the Premises, and (except in cases of an emergency) so long as the performance of such work during ordinary business hours does not unreasonably interfere with Tenant's ability to conduct its business in the Premises. In the event Landlord or its agents or contractors shall elect or be required, in accordance with the preceding grammatical paragraph, to make repairs, alterations, improvements or additions to the Premises or the Building or any equipment located in the Building, Landlord shall be allowed to take into and upon the Premises all material that may be required to make such repairs, alterations, improvements or additions and, during the continuance of any said work, to temporarily close doors, entryways, public space and corridors in the Building and to interrupt or temporarily suspend Building services and facilities without being deemed or held guilty of eviction of Tenant or for damages for Tenant's property, business or person, and the rent reserved herein shall in no way abate while said repairs, alterations, improvements or additions are being made, and Tenant shall not be entitled to maintain any off-set or counterclaim for damages of any kind against Landlord by reason thereof. Landlord may, at its option, make all repairs, alterations, improvements and additions in and about the Building and the Premises -11- during ordinary business hours, so long as (except in case of an emergency) the performance of such work during ordinary business hours does not materially interfere with Tenant's access to the Premises or Tenant's ability to conduct its business in the Premises, and if such work during ordinary business hours is not of an emergency nature and does not materially interfere with Tenant's access to the Premises or Tenant's ability to conduct its business in the Premises and Tenant nonetheless desires to have the same done during any other hours Tenant shall pay for all overtime and additional expenses resulting therefrom. As used herein, "Tenant Responsible Premises" shall mean all alterations, additions and improvements in and to the Premises at any time or from time to time existing, whether constructed by Landlord or Tenant, including but not limited to all items of work constructed in the Premises in preparation for Tenant's initial occupancy thereof and any Antennae installed by Tenant from time to time on the Roof as described in Article 40, but excluding all "Building Systems" (as defined below in this Article 7). Subject to Force Majeure events, Landlord shall keep in good order and repair (and the cost thereof may be included in Operating Expenses), except as otherwise provided in Subparagraph B(ii) of Article 4 hereof) the following items ("Building Systems"): (i) the structural components and common areas of the Building serving the Premises; (ii) the mechanical, electrical, plumbing, heating ventilation, and air cooling systems serving the Premises unless installed by Tenant, including components of said systems outside and up to the perimeter of the Premises, but, other than as set forth in clauses (iii) and (iv), excluding any related systems, fixtures and equipment located within the Premises which are not a part of the Shell and Core Work; (iii) HVAC ducts in the Premises, but excluding variable air volume (VAV) boxes, reheats, in-ducts and other equipment and devices in or attached to the ducts; and (iv) the Building sprinkler system serving the Premises, including piping up to the Premises but excluding any piping, heads and apparatus within the Premises. Any liability of Tenant or Landlord for the performance of their respective obligations under this Article 7 shall be subject to the provisions of Articles 11 and 25 hereof. 8. ALTERATIONS. Tenant shall not, without the prior written consent of Landlord in each instance obtained, make any repairs, replacements, alterations, improvements or additions (collectively, "Improvements") to the Premises, the performance of which affects the Building structure, Building systems, common areas or other tenants' premises. Tenant shall give Landlord reasonable prior notice of all Improvements during the Term whether or not Landlord's consent thereto is required. To the extent Landlord's consent is required for any Improvements, such consent shall not be unreasonably withheld or delayed, but such consent may be conditioned upon such requirements regarding such Improvements as Landlord deems appropriate, including without limitation, the submission of detailed plans and specifications, and such Improvements shall be of a quality equal to or better than the standards of the Building. At -12- the time that Landlord gives its consent to any such improvements, Landlord may designate in writing any items which are atypical for standard office uses or require unusual expense for the removal (such as, but not limited to, staircases and vaults) as items which Landlord reserves the right to require Tenant to remove upon the expiration of the Term or upon any termination of this Lease or Tenant's right to possession hereunder. Neither approval of any plans and specifications nor supervision of any improvement work by Landlord or its agents shall constitute a representation or warranty by Landlord or its agents that such plans or work either (i) are complete or suitable for their intended purpose, or (ii) comply with applicable laws, ordinances, codes and regulations, it being expressly agreed by Tenant that Landlord assumes no responsibility or liability whatsoever to Tenant or to any other person or entity for such completeness, suitability or compliance. All such Improvements shall be done at Tenant's expenses by employees or agents of Landlord or contractors hired by Landlord (or by contractors hired by Tenant which contractors shall be subject to Landlord's prior written consent, which shall not be unreasonably withheld, and which contractors must be reputable and financially responsible, maintain proper insurance and ***), and, in either event, Tenant shall pay to Landlord or its agent a reasonable charge for supervision, general conditions, overhead and other actual out-of-pocket costs and expenses incurred by Landlord in connection with such work, as established by Landlord from time to time. The billing for such employees' time and general conditions shall be based upon the then published rates of the Building. In the event that Tenant uses its own contractors for the Improvements Landlord may, without limitation, require Tenant to: (a) comply with such constructions standards or procedures as may be applicable from time to time for construction activities in the Building; (b) give assurances reasonably satisfactory to Landlord that the construction of such Improvements will not ***; (c) submit satisfactory insurance certificates; (d) obtain all necessary permits; (e) furnish satisfactory security for the payment of all costs to be incurred in connection with the Improvements; and (f) upon completing any such Improvements, furnish Landlord with contractors' affidavits and full and final waivers of lien and receipted bills covering all labor and material expended and used and furnish Landlord with final construction drawings (marked up as constructed) for any such Improvements. Landlord and Tenant acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C. (S) 12-101 et seq.) and regulations and guidelines promulgated -- --- thereunder, as all of the same may be amended and supplemented from time to time (collectively "ADA"), establish requirements for business operations, accessibility and barrier removal, and that such requirements may or may not apply to the Premises and the Building depending on, among other things, whether: (1) Tenant's business is deemed a "public accommodation" or "commercial facility", (2) such requirements are "readily achievable", and (3) a given alteration affects a "primary function area" or triggers "path of travel" requirements. The parties hereby agree that ________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -13- (a) Landlord shall be responsible for ADA Title III compliance in the common areas of the Building, except as provided below, (b) Tenant shall be responsible for ADA Title III compliance in the Premises, including direct access into the Premises and any leasehold improvements or other work to be performed in the Premises under or in connection with this Lease other than the Shell and Core Work, and (c) Landlord may perform, or require that Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III "path of travel" requirements triggered by alterations in the Premises other than the Shell and Core Work and the Tenant's Work to be performed in connection with Tenant's initial occupancy of the Premises. Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenant's employees. All Improvements shall comply with all insurance requirements and with all applicable governmental laws, requirements, codes, ordinances and regulations. All Improvements shall be constructed in a good and workmanlike manner and only good grades of material shall be used. Except for he negligence of Landlord, its beneficiary or their respective agents, Tenant shall protect, defend, indemnify and hold Landlord, the Building and the Property, Landlord's beneficiaries, and their respective officers, directors, beneficiaries, partners, agents and employees harmless from any and all liabilities of every kind and description which may arise out of or in connection with such Improvements. All Improvements made by Landlord or Tenant in or upon the Premises whether temporary or permanent in character, including but not limited to wall coverings, carpeting and other floor covering, lighting installations, built-in or attached shelving, cabinetry, and mirrors, and shall become Landlord's property and shall remain upon the Premises at the termination of this Lease by Lapse of time or otherwise without compensation to Tenant [excepting only Tenant's movable office furniture, trade fixtures (other than attached or installed lighting equipment), telecommunications and broadcasting equipment and office equipment]; provided, however, that Landlord shall have the right to require Tenant to remove at Tenant's sole cost and expense in accordance with the provisions of Article 16 of this Lease: such Improvements which, in the case of initial Improvements to the Premises, are atypical for standard office uses or require unusual expense for removal (such as, but not limited to, staircases, vaults and telecommunications and broadcasting equipment) and are so identified in writing by Landlord at the time of its approval of the Plans pursuant to Article 35; any and all hazardous materials installed or placed in the Premises by Tenant; any equipment installed by Tenant on the roof of the Building or elsewhere outside the Premises, and any cabling and wiring and other facilities located outside the Premises and serving or intended to serve the Premises; and any items which Landlord previously designated for possible removal, at the time Landlord granted its consent to such Improvements, as provided above in this Article 8. All cabling, wiring and equipment installed at any time by or on behalf of Tenant outside of the Premises on the Property, whether as part of the initial Tenant's Work or otherwise, -14- including, without limitation, any such items installed in connection the Antennae described in Article 40 hereof (any installation of any such cabling, wiring or equipment shall in all cases be subject to Landlord's consent in its absolute discretion), shall be operated and maintained at Tenant's sole cost and expense in a manner which does not disturb improvements on the Property or the operation thereof or interfere with the operations of, or services provided to, tenants in the Building. Any such installation, operation, and maintenance shall be in accordance with any reasonable rules and regulations established by the Landlord from time to time, shall be at Tenant's sole risk, and shall be subject to the Tenant insurance requirements of Article 25 hereof and the provisions of Article 11 hereof. All such cabling, wiring and equipment shall be appropriately identified by color code, identification plate and/or other means reasonably specified by Landlord at the time of installation if initially installed by Tenant, and Tenant shall provide Landlord with plans and drawings locating and identifying such items in such detail as may be reasonably requested by Landlord. 9. SERVICES. Landlord shall provide the following services on all days during the Term of this Lease excepting Sundays and holidays (which holidays are New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day and may, in addition, include any other holiday from time to time observed by Tenant), unless otherwise stated: (A) Adequate passenger elevator service will be furnished daily as determined by Landlord, including the services of at least one (1) passenger elevator at all times (including holidays), subject to Force Majeure. (B) Conditioned air for heating, ventilating and cooling when necessary for normal comfort in the Premises will be provided from 8:00 A.M. to 8:00 P.M. Monday through Friday, and 8:00 A.M. and 1:00 P.M. Saturday, in accordance with the standards for the Premises set forth in Exhibit "C" attached hereto and made a part hereof. Whenever heat-generating machines, equipment or lighting fixtures installed by Tenant or excessive electrical usage by Tenant affect the temperature maintained by Landlord in the Premises, Landlord shall be relieved of responsibility for maintaining air conditioning in the Premises, and in such event Landlord further reserves the right at its option to (1) require Tenant to discontinue use of such heat-generating machines, equipment, lighting fixtures or excessive electrical load, or (2) install supplementary air conditioning units in the Premises, the cost, installation, operation and maintenance of which shall be paid by Tenant to Landlord at such rates as Landlord charges from time to time in the Building. Tenant agrees that at all times it will cooperate with Landlord and abide by all regulations and requirements which Landlord may prescribe for proper functioning of the ventilating and air conditioning systems. Landlord agrees that it shall make available to Tenant after-hours HVAC service at the expense of Tenant at times other than those identified above in this Paragraph (B), -15- provided that if Tenant desires any such service on Mondays through Fridays (holidays described above excepted), it shall request such service from Landlord on or before 4:00 p.m. on the day for which such service is requested, and in the event Tenant desires such service on Saturdays or Sundays or holidays (as described above), it shall request such service from Landlord no later than 4:00 p.m. on Friday (for service on Saturday or Sunday) and by 4:00 p.m. on the day preceding any holiday (for service on such holiday). Tenant shall pay for all such after-hours HVAC services at Landlord's published rates in effect in the Building from time to time (the published rates currently in effect being $81/hour per fan for water chilled air and $51/hour per fan for circulating air). Tenant may request such after-hours HVAC service by zone (determined by the respective areas served by separate fan rooms); and if another tenant has also specifically requested such after-hours service in the same zone during the same time period as requested by Tenant, Landlord shall reasonably allocate the charge for such service between Tenant and such other tenants so requesting such service. (C) Electricity for the Premises shall not be furnished by Landlord but shall be furnished and billed directly to Tenant by the electric utility company serving the Building. Landlord shall cause the Premises to be separately metered, if necessary. Tenant shall make all necessary arrangements with the utility company for paying for electric current furnished by it to Tenant and Tenant shall pay for all charges for electric current consumed on the Premises during the Term of this Lease. Tenant agrees that the minimum electrical load of the Premises shall be engineered so that during and after normal business hours the minimum temperature required therein shall be maintained by Tenant at all times so long as electrical service to the Premises is not terminated or interrupted through no fault or neglect of Tenant. Tenant shall not install or operate any electrical equipment or fixtures that overload lines servicing the Premises or which exceed a connected electrical load of the incidental use equipment of an average of one watt per square foot of the Premises, and an average of 7 watts per square foot of the Premises when added to Tenant's electrical load for lighting. (D) Janitorial services, as specified on Exhibit "D" attached hereto and made a part hereof, shall be provided at the sole cost and expense of Landlord, except that commencing on January 1, 1998, all increases in the costs of providing such janitorial services to Tenant in any calendar year in excess of Landlord's annualized cost per rentable square foot of providing such services to Tenant in calendar year 1997 shall be paid by Tenant on an estimated basis in monthly installments subject to final year-end adjustment in the same manner as provided for the payment of Operating Expense adjustments in Article 4 hereof. Tenant may from time to time procure directly from Landlord's cleaning contractor at Tenant's Expense such additional cleaning services as are desired by Tenant. (E) Building directory identification of a reasonable number of listings for Tenant (not to exceed (10) listings). -16- (F) Additional services (including after-hour cooling and ventilation and the provision of water) may be provided on terms and conditions as may be mutually agreed upon by Landlord and Tenant. Subject to Force Majeure, Tenant and its employees and invitees shall have access to the Premises twenty-four (24) hours a day, seven (7) days a week, fifty-two (52) weeks a year. At times other than normal business hours (i.e. 8 A.M. to 6 P.M. Monday through Friday) access shall be available through limited entrances and subject to regulations and procedures in place in the Building from time to time, including the furnishing of proper employee identification or authorization and the registering of a person's name, room number and time of entry and departure in a register furnished by Landlord and placed in the Lobby of the Building. Tenant shall apply to the applicable utility company or municipality for gas, telephone and all other utility services, other than those provided by Landlord, required by Tenant for use in the Premises in accordance with Article 2 hereof and, subject to Article 8 hereof, Tenant shall be responsible for the connection and installation of same. All charges for any services shall be deemed rent reserved under this Lease and shall be due and payable at the same time as the installment of rent with which they are billed, or, if billed separately, shall be due and payable within twenty (20) days after such billing. In the event Tenant shall fail to make payment for such services within ten (10) days from notice from Landlord that such amount has not been received, Landlord may, in addition to all other remedies which Landlord may have for the non-payment of rent without notice to Tenant, discontinue any or all such services (including, without limitation, electric current for lights and power in the Premises), and such discontinuance shall not be held or pleaded as an eviction or as a disturbance in any manner whatsoever of Tenant's possession, or relieve Tenant from the payment of rent when due, or vary or change any other provision of this lease or render Landlord liable for damages for any kind whatsoever. Tenant agrees that, to the extent permitted by law, neither Landlord nor its beneficiaries nor any of their respective agents, partners or employees, shall be liable to Tenant, or any of Tenant's employees, agents, customers or invitees or anyone claiming through, by or under Tenant, for any damages, injuries, losses, expenses, claims or causes of action, because of any interruption, diminution, delay or discontinuance at any time in the furnishing of any of the above services (including access to the Premises as described above in this Article 9) when such interruption, diminution, delay or discontinuance is occasioned, in whole or in part, by repairs, renewals, improvements or additions, by any strike, lockout or other labor trouble, by inability to secure gas, electricity, water or other fuel at the Building, by any accident or casualty whatsoever, by act or default of Tenant or other parties, or by any other cause beyond Landlord's reasonable control; nor shall any such interruption, diminution, delay or discontinuance be deemed an eviction or disturbance of Tenant's use or possession of the Premises or any part thereof; nor shall any such interruption, diminution, delay or discountenances relieve Tenant from full performance of -17- Tenant's obligations under this Lease, except as otherwise expressly provided herein. Notwithstanding the foregoing, in the event that (i) any interruption or discontinuance of services (including access to the Premises as described above) required to be provided pursuant to this Article 9 which was within the reasonable control of Landlord to prevent continues beyond three (3) consecutive business days after written notice to Landlord and materially and adversely affects Tenant's ability to conduct business in the Premises or (ii) the performance by Landlord of repairs in the Building that are not the responsibility of Tenant materially and adversely affects Tenant's ability to conduct business in the Premises and continues beyond three (3) consecutive business days after written notice to Landlord, and on account of such interruption or discontinuance described in clause (i) or such performance of repairs described in clause (ii), Tenant ceases doing business in the Premises (or a material portion thereof), Base Rent shall abate thereafter (as to the Premises or as to such material portion thereof, as the case may be) and for so long as Tenant remains unable to conduct its business in the Premises (or such material portion thereof). Landlord agrees to use reasonable efforts to restore such interrupted or discontinued service or to complete such repairs, as the case may be, as soon as reasonably practicable. 10. COVENANT AGAINST LIENS. Tenant agrees to pay when due for any work done or materials furnished by or on behalf of Tenant in or about the Premises or to all or any part of the Property and nothing in this Lease contained shall authorize or empower Tenant to do any act which shall in any way encumber the title of Landlord in and to the Premises or to the Property, nor shall the interest or estate of Landlord therein be in any way subject to any claims by way of lien or encumbrance whether claimed by operation or law or by virtue of any express or implied contract of Tenant, and any claim to a lien upon the Premises or the Property arising from any act or omission of Tenant shall accrue only against Tenant and shall in all respects be subordinate to the title and rights of Landlord to the Premises and the Property. Tenant covenants and agrees not to suffer or permit any lien or encumbrance to be placed against the Premises, the Building or the Property with respect to work or services claimed to have been performed for or materials claimed to have been furnished to Tenant or the Premises and, in case of any such lien or encumbrance attaching, or claim thereof being asserted, Tenant agrees to cause it to be immediately released and removed of record, or to provide security as hereinafter provided. If Tenant has not removed any such lien or encumbrance or provided Landlord with a title indemnity bond or such other security as is reasonably satisfactory to Landlord within thirty (30) days after notice to Tenant by Landlord, such failure shall constitute a default hereunder and, in addition to all other remedies available herein, Landlord may, but shall not be obligated to, pay the amount necessary to remove the lien or encumbrance, without being responsible for making any investigation as to the validity thereof, and the amount so paid together with all costs and expenses, including reasonable attorneys' fees, incurred in connection therewith shall be deemed additional rent reserved under this Lease due and payable forthwith. -18- 11. WAIVER OF CLAIMS. Subject to the provisions of Article 25 hereof, Tenant agrees that Landlord, Landlord's beneficiaries and their respective officers, directors, beneficiaries, partners, agents, and employees shall not be liable for (subject, however, to the provisions of Article 9 as to the abatement of rent for interruption of services) any direct or consequential damage (including, without limitation, damages claimed for actual or constructive eviction) either to person or property sustained by Tenant or any other person, due to the Building, the Property, or any part thereof or any appurtenances thereof becoming out of repair, or due to the happening of any accident in or about the Building or the Property, or due to any act or neglect of any tenant or occupant of the Building or the Property, or any other person, except to the extent that any such damage is caused by the negligence or intentional acts of Landlord, its beneficiaries or their respective agents, contractors, servants or employees. The foregoing provision, subject in all events to the provisions of Article 25 as stated above, shall apply particularly (but not exclusively) to damage caused by fire, explosion, water, snow, frost, steam, sewerage, illuminating gas, sewer gas or odors, or by the bursting or leaking of pipes, plumbing fixtures, or sprinkler system; without distinction as to the person whose act or neglect was responsible for the damage and whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different kind. Tenant further agrees that all personal property upon the Premises or brought or caused to be brought within the Building by Tenant shall be at the risk of Tenant only and that Landlord shall not be liable for any damage thereto or any theft thereof, except to the extent caused by the negligence or intentional acts of Landlord, its beneficiaries or their respective agents, contractors, servants or employees, subject in all events, however, to the provisions of Article 25. Subject to the provisions of Article 25 hereof, and except for the negligence or intentional acts of Landlord, its beneficiaries or their respective agents, contractors, servants or employees, Tenant shall protect, indemnify, defend and save Landlord, its beneficiaries and their respective officers, directors, agents, beneficiaries, partners, and employees harmless from and against any and all liabilities, damages, costs, claims, obligations and expenses arising out of or in connection with Tenant's use or occupancy of the Premises or Tenant's activities in or about the Building or the Property, or arising out of (and to the extent caused by) any act or negligence of Tenant or its agents, contractors, servants, employees or invitees. Subject to the provisions of Article 25 hereof, Landlord agrees that Tenant and its officers, directors, agents and employees shall not be liable to Landlord for any direct or indirect damage to the Building Systems or to person or property sustained by Landlord or any other person, caused by any portion of the Tenant Responsible Premises or any of Tenant's fixtures or equipment becoming out of repair or due to the happening of any accident in or about the Premises, except to the extent that any such damage is caused by the negligence or intentional acts of Tenant or Tenant's agents, contractors, servants or employees. Subject to the provisions of Articles 9 and 25 hereof, and except for the negligence or intentional acts of Tenant or Tenant's agents, contractors, servants or employees, Landlord shall -19- protect, indemnify, defend and save Tenant, its officers, directors, agents and employees harmless from and against any and all liabilities, damages, costs, claims, obligations and expenses arising out of or in connection with Landlord's operation of the Building or Landlord's activities in or about the Building or the Property other than the Premises or arising out of (and to the extent caused by) any act or negligence of Landlord, its beneficiaries or their respective agents, contractors, servants or employees. 12. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written consent of Landlord, (a) assign, convey, mortgage, pledge or otherwise transfer this Lease, or any part thereof, or any interest hereunder; (b) permit any assignment of this Lease, or any part thereof, by operation of law; (d) sublet the Premises or any part thereof; or (d) permit the use of the Premises, or any part thereof, by any parties other than Tenant, its agents and employees. Tenant shall, by notice in writing, advise Landlord of its desire from, on and after a stated date (which shall not be less than thirty (30) days after the date of Tenant's notice), to assign this Lease, or any part thereof, or to sublet any part or all of the Premises for the balance or any part of the Term. Tenant's notice shall: state the name and address of the proposed assignee or subtenant; provide financial information in reasonable detail concerning the proposed assignee or Tenant's obligation to provide such additional information concerning the financial condition of the proposed assignee or subtenant as may be requested by Landlord); include all of the material terms of the proposed assignment or sublease (whether contained in such assignment or sublease or in separate agreements) and state the consideration therefor and financial aspects thereof. In the event Tenant delivers such notice, Landlord shall have the right, to be, exercised by giving written notice to Tenant within ten (10) business days after receipt of Tenant's notice, to recapture the space described in Tenant's notice and such recapture notice shall, if given, cancel and terminate this Lease with respect to the space therein described as of the date stated in Tenant's notice. If Tenant's notice shall cover all of the Premises, and Landlord shall have exercised its foregoing recapture right, the Term of this Lease shall expire and end on the date stated in Tenant's 'notice as fully and completely as if that date had been herein definitely fixed for the expiration of the Term. If, however, this Lease be canceled with respect to less than the entire Premises, Base Rent and rent adjustments reserved herein shall be adjusted on the basis of the number of rentable square feet retained by Tenant in proportion to the number of rentable square feet contained in the Premises, as described in this Lease, and this Lease as so amended shall continue thereafter in full force and effect. If Landlord, upon receiving Tenant's notice with respect to any such space, shall not exercise its right to recapture as aforesaid, and if Tenant is not in default under the terms of this Lease, Landlord will not unreasonably withhold its consent to Tenant's assignment of the Lease or subletting such space to the party identified in Tenant's notice and upon the terms set forth ,in Tenant's notice, provided, however, that in the event Landlord consents to any such assignment or subletting, and as a condition thereto, Tenant shall pay to Landlord fifty per cent (50%) of all profit derived by Tenant from such assignment or subletting. For purposes of the foregoing, -20- profit shall be deemed to include, but shall not be limited to, the amount paid or payable to Tenant or any other party to effect or to induce Tenant or any third party to enter into any such transaction, and the amount of all rent and other consideration of whatever nature payable by such assignee or sublessee or a third party in excess of the Base Rent and rent adjustments payable by Tenant under this Lease, after deducting therefrom Tenant's reasonable expenses incurred in connection with such sublease or assignment, including advertising expenses, brokerage commissions, rent concessions, tenant improvement allowances, other financial concessions, and legal fees. If a part of the consideration for such assignment or subletting shall be payable other than in cash, the payment to Landlord of its. share of such non-cash consideration shall be in such form as is reasonably satisfactory to Landlord. Tenant shall and hereby agrees that it will furnish to Landlord upon request from Landlord a complete statement, certified by an officer of Tenant responsible for such information, setting forth in detail the computation of all profit derived and to be derived from such assignment or subletting, such computation to be made in accordance with generally accepted accounting principles. Tenant agrees that Landlord or its authorized representatives shall be given access at all reasonable times upon prior notice to Tenant to the books, records and papers of Tenant relating to revenue, expenses and the computation of profit with respect to any such assignment or subletting, and Landlord shall have the right to make copies thereof. The percentage of profit due Landlord hereunder shall be paid to Landlord within thirty (30) days of receipt of each payment of profit made from time to time by such assignee or sublessee to Tenant. Landlord's consent to any assignment or sublease shall not operate as a consent to any subsequent assignment or sublease or as a waiver of Landlord's right to require Tenant to seek Landlord's approval of all subsequent assignments and subleases. Any subletting or assignment hereunder shall not release or discharge Tenant of or from any liability, whether past, present or future, under this Lease, and Tenant shall continue fully liable hereunder. Any subtenant or assignee shall agree in a form reasonably satisfactory to Landlord to comply with and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease to the extent of the space sublet or assigned, and Tenant shall deliver to Landlord promptly within twenty (20) days after execution, a fully executed copy of each such sublease or assignment and all other agreements related thereto and an agreement of compliance by each such subtenant or assignee. Tenant agrees to pay to Landlord, on demand, all reasonable costs incurred by Landlord (including reasonable fees paid to attorneys) in connection with any request by Tenant for Landlord to consent to any assignment or subletting by Tenant. Any sale, assignment, mortgage, transfer, or subletting of this Lease which is not in compliance with the provisions of this Article shall be of no effect and void. Notwithstanding any requirement for Landlord to consider, solicit or obtain a sublease or assignment, whether statutory or otherwise, Landlord and Tenant expressly agree that Landlord's obligation with respect to such sublease or assignment shall arise only when Tenant submits such sublease or assignment to Landlord in the manner set out in this Article 12. -21- For purposes of the foregoing, (a) if Tenant is a partnership, any change in the partners of Tenant resulting in a change in the control of such Partnership, or (b) if Tenant is a corporation the voting stock of which is not listed on a nationally recognized security exchange or the National Association for Securities Dealers Automated Quotations (NASDAQ) or its equivalent, any transfer of any or all of the shares of stock of Tenant by sale, assignment, operation of law or otherwise resulting in a change in the present control of such corporation, or (c) the transfer of all or substantially all of the assets of Tenant, shall be deemed to be an assignment within the meaning of this Article 12. Notwithstanding anything set forth above to the contrary, Tenant shall have the right without the prior consent of Landlord, except as provided below, to assign this Lease or sublet the Premises or any part thereof to any Successor or Affiliate, as hereinafter defined, of Tenant, or to effect a transfer of ownership, control or assets of Tenant to a Successor or Affiliate of Tenant, on the following conditions: (a) Tenant shall notify Landlord in writing of such assignment, subletting or transfer not less than thirty. (30) days prior to the effective date thereof, and furnish to Landlord such information (including the most recent financial statement) regarding the identity, business, reputation and financial condition of such Affiliate or Successor as Landlord may reasonably require; (b) Tenant shall deliver to Landlord evidence reasonably satisfactory to Landlord that such Affiliate or Successor satisfies the requirements of this grammatical paragraph of Article 12; (c) in the case of any assignment (other than a deemed assignment by transfer of ownership, control or assets of Tenant) or any subletting, Tenant shall deliver to Landlord copies of all operative documents effecting such assignment or subletting, which documents shall be subject to Landlord's reasonable approval; and in the case of a deemed assignment by transfer of ownership, control or assets of Tenant, Tenant shall deliver to Landlord an executed copy of an agreement in form reasonably satisfactory to Landlord by which such transferee Affiliate or Successor has agreed to comply with, be bound by, and assume all of the terms, covenants, conditions and provisions of this Lease; (d) any such subletting, assignment or transfer shall not release or discharge Tenant of or from any liability, whether past, present or future, under this Lease and Tenant shall continue fully liable hereunder; and (e) the creditworthiness of such Successor or Affiliate shall be reasonably acceptable to Landlord. "Successor" is defined as any corporation or entity resulting from a merger or consolidation with Tenant or any corporation or entity succeeding to substantially all of the business and assets of Tenant; and "Affiliate" is defined as any corporation that through one or more - intermediaries, controls or is controlled by, or is under common control with, Tenant ("control" meaning the possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise) if, after giving effect to any such assignment, subletting or transfer to a Successor or Affiliate and any merger, consolidation, reorganization or transfer of assets in connection therewith, the aggregate net worth of the assigning Tenant (remaining liable on the Lease) and -22- the assignee, sublessee or transferee would not be substantially the same as or greater than the net worth of the Tenant (and any Affiliate or Successor previously liable on the Lease) immediately prior to such assignment, sublease or transfer (and any merger, consolidation, reorganization or transfer of assets in connection therewith), then Landlord shall not be deemed to be acting unreasonably in determining the creditworthiness of the Successor or Affiliate not to be acceptable. Notwithstanding anything to the contrary contained in this Article 12, Tenant shall have the right, without the consent of Landlord, to enter into license agreements (a "License") permitting the licensees to enter the Premises and use Tenant's telephone and computer systems in the Premises provided (i) Tenant gives Landlord reasonable advance notice of any such License with such information as Landlord may reasonably request, including, without limitation, a copy of the license agreement, (ii) Tenant shall not be in default under this Lease at the time such License is granted, (iii) the spaces subject to the License shall be operated by the licensee under the control of Tenant; however, the licensee shall not be required to assume Tenant's obligations under this Lease but shall be subject to, agree to be bound by and shall use and occupy the Premises in accordance with all of the terms, covenants and conditions of this Lease, (iv) such Licenses shall permit the use of the Premises only for limited hours and shall be of limited duration and the aggregate source subject to all such Licenses shall not exceed twenty-five percent (25%) of the Premises demised hereunder from time to time, (v) no licensee may use the name or address of or otherwise identify the Property or the Building in connection with its activities, and (vi) any such licensee shall have in effect at all times any necessary permits or licenses for its activities or business and the use of the Premises by such licensee shall not impair the reputation or character of the Building as a first class building. 13. EXPENSES OF ENFORCEMENT. Tenant shall pay all reasonable attorneys, fees and expenses of Landlord incurred in successfully enforcing any of the obligations of Tenant under this Lease. Landlord shall pay all reasonable attorneys, fees and expenses of Tenant incurred in successfully enforcing any of the obligations of Landlord under this Lease. 14. LANDLORD'S LIEN. Landlord shall have a first lien upon any and all rents from permitted subtenants or assignees of Tenant (if any) and upon the interest of Tenant under this Lease to secure the payment of all money due under this Lease. 15. LANDLORD'S REMEDIES. If default shall be made in the payment of the rent or any installment thereof or in the payment of any other sum required to be paid by Tenant under this Lease, or under the terms of any other lease or agreement between Landlord and Tenant, and such default shall continue for ten (10) days after written notice to Tenant or if default shall be made in the performance of any of the other covenants or conditions which Tenant is required to observe and perform hereunder or under any other lease or agreement -23- between Landlord and Tenant and such default shall continue for thirty (30) days after written notice to Tenant (or if any such default not involving a hazardous or dangerous condition and not involving Tenant's failure to comply with the provisions of Article 25 hereof cannot be cured within such 30-day period, so long as Tenant has promptly commenced to cure such default during such initial 30-day period and thereafter diligently pursues such cure to completion within a reasonable period of time and in all events within an additional sixty (60) days after the expiration of said 30-day period) or if the interest of Tenant in this Lease shall be levied on under execution or other legal process (and such 'levy is not dismissed within sixty (60) days), or if any petition shall be filed by or against Tenant to declare Tenant a bankrupt (and is not dismissed within sixty (60) days) or to delay, reduce or modify Tenant's debts or obligations or if any petition shall be filed or other action taken to reorganize or modify Tenant's capital structure, if Tenant be a corporation or other entity, or if Tenant be declared insolvent according to law or if any assignment of Tenant's property shall be made for the benefit of creditors or a receiver or trustee is appointed for Tenant or its property if Tenant shall abandon or vacate the Premises during the Term this Lease for a period exceeding fifteen (15) consecutive days, then Landlord may treat the occurrence of any one or more of the foregoing events as a breach of this Lease, and thereupon at its option may, without further notice or further demand of any kind to Tenant or any other person, have any one or more of the following described remedies in addition to all other rights and remedies provided at law or in equity: (a) Landlord may terminate this Lease and the Term created hereby, in which event Landlord may forthwith repossess the Premises by forcible entry and detainer suit or otherwise and be entitled to recover forthwith as damages a sum of money equal to the present value of the rent provided to be paid by Tenant for the balance of the stated Term of the Lease, less the present value of the fair rental value of the Premises for such period, and any other sum of money and damages owed by Tenant to Landlord. (b) Landlord may terminate Tenant's right of possession and may repossess the Premises by forcible entry and detainer suit, or otherwise, without further demand or notice of any kind to Tenant and without terminating this Lease, in which event Landlord shall reasonably attempt to mitigate its damages as required by law. Landlord in such instances expressly reserves the right to relet all or any part of the Premises for such rent and upon such terms as shall be satisfactory to Landlord may terminate greater or Lesser than that remaining under the Term of this Lease and the right to relet the Premises as a part of a larger area and the right to change the character or use made of the Premises). For the purpose of such reletting, Landlord may make such repairs, changes, alterations or additions in or to the Premises as may be necessary or convenient. If Landlord shall fail to relet the Premises, then Tenant shall pay to Landlord as damages a sum equal to the amount of the rent reserved in this Lease, for such period or periods. If the Premises are relet and a sufficient sum shall not be realized from such reletting after paying all of the costs and expenses of such repairs, changes, alterations and additions and the expense of such reletting and the collection of the rent accruing therefrom, to -24- satisfy the rent above provided to be paid, Tenant shall satisfy and pay any such deficiency upon demand therefor from time to time; and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this paragraph from time to time and that any suit or recovery of any portion due Landlord hereunder shall be no defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. (c) In addition to all other rights and remedies of Landlord hereunder or at law, in the event of a default by Tenant which continues beyond any cure period provided in this Article 15, Landlord shall be entitled to receive as damages from Tenant (in addition to any other damages provided herein) an amount equal to (i) the then unamortized Landlord's Contribution made available to Tenant pursuant to Article 34 hereof, assuming amortization of such amount over a period of 180 calendar months, commencing on the first full Lease Year, at a level monthly payment with an interest factor equal to *** percent (***%) per annum, plus (ii) any then unamortized Take-Down Improvement Allowance made available to Tenant pursuant to Article 36 hereof, assuming amortization of such amount over a period commencing on the date of disbursement thereof and ending on the expiration of the initial Term hereof at a level monthly payment with an interest factor equal to *** percent (***%) per annum; provided, however, in no event shall the provisions of this subparagraph (c) permit Landlord to receive a double recovery of any rent actually paid by Tenant. 16. SURRENDER OF POSSESSION. On or before the date this Lease and the Term hereby created terminate, or on or before the date Tenant's right of possession terminates, whether by lapse of time or at the option of Landlord, Tenant will: (a) remove those alterations, improvements and additions installed by Tenant which Tenant is required to remove pursuant to Article 8 hereof and restore the Tenant Responsible Premises to the same condition they were in upon completion of Tenant's Work (except for reasonable wear and tear and as otherwise provided in Article 25 of this Lease) and repair any damage to the Tenant Responsible Premises or the Building caused by Tenant's removal of such alterations, improvements or additions; (b) remove from the Premises and the Building all of Tenant's trade fixtures and personal property; and (c) surrender possession of the Premises to Landlord. If Tenant shall fail or refuse to restore the Premises to the above described condition on or before the above-specified date, Landlord may upon notice to Tenant enter into and upon the Premises and put the Premises in such condition, and recover from Tenant Landlord's cost of so doing. If Tenant shall fail or refuse to comply with Tenant's duty to remove all trade fixtures and personal property from the Premises and the Building on or before the above-specified date, the parties hereto agree and stipulate that Landlord may, as its election: (1) treat such failure or refusal as an offer by Tenant to transfer title to such trade fixtures and personal property to Landlord, in which event title hereto shall thereupon pass under this Lease as a bill of sale to and vest in Landlord absolutely without any cost either by set-off, credit allowance or otherwise, and Landlord may remove, sell, retain, _____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -25- donate, destroy, store, discard, or otherwise dispose of all or any part of said personal property in any manner that Landlord shall choose; or (2) treat such failure or refusal as conclusive evidence, on which Landlord and any third party shall be entitled absolutely to rely and act, that Tenant has forever abandoned such trade fixtures and personal property, and without accepting title thereto, Landlord may at Tenant's expense enter into and upon the Premises and remove, sell, retain, donate, destroy, store, discard or otherwise dispose of all or any part thereof in any manner that Landlord shall choose without incurring liability to Tenant or to any other person. In no event shall Landlord ever become or accept or be charged with the duties of a bailee (either voluntary or involuntary) of any personal property or trade fixtures; and the failure of Tenant to remove all personal property and trade fixtures from the Premises and the Building shall forever bar Tenant from bringing any action or from asserting any liability against Landlord with respect to any such property which Tenant fails to remove. If Tenant shall fail or refuse to surrender possession of the Premises to Landlord on or before the above-specified date, Landlord may forthwith re-enter the Premises and repossess itself thereof as of its former state and remove all persons and effects therefrom, using such force as may be necessary, without being guilty of any manner of trespass or forcible entry or detainer. 17. HOLDOVER. Tenant will pay to Landlord an amount equal to *** percent (***%) the sum of the annual Base Rent plus *** percent (***%) of rent adjustments for all the time Tenant shall retain possession of the Premises or any part thereof after the termination of this Lease, whether by lapse of time or otherwise, and, in addition thereto, all damages, whether direct or consequential, sustained by Landlord on account of or as result of any such holdover extending for more than twenty (20) days, but the provisions of this Article shall not operate as a waiver by the Landlord of any right of re-entry hereinbefore provided. Landlord agrees that, upon receipt of written request from Tenant during the last thirty (30) days of the Term, Landlord will use reasonable efforts to estimate the nature and scope of the damages that Landlord would anticipate incurring if Tenant failed to vacate the Premises promptly upon expiration of the Term of this Lease. At the option of Landlord, expressed in a written notice to Tenant and not otherwise, any holding over by Tenant extending more than twenty (20) days beyond the termination of this Lease for any portion of a calendar month shall constitute a holding over and extension of this Lease for such entire calendar month at a rental equal to the greater of the holdover rental specified above in this Article 17 or the then prevailing rental rates for similar space in the Building. 18. [Intentionally Omitted.] 19. NOTICE. In every case where it shall be necessary or desirable for Tenant to give or serve upon Landlord any notice or demand,. Tenant shall give the requisite notice either (a) by delivering or causing to be delivered to Landlord a written or printed copy of such notice or ___________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -26- demand, or (b) by sending a written or printed copy of such notice or demand by either (i) Federal. Express or similar commercial overnight delivery service, or (ii) certified or registered mail-, return receipt requested, postage prepaid, addressed to Landlord at: Merchandise Mart Properties, Inc. 222 The Merchandise Mart, Suite 470 Chicago, Illinois 60654 Attention: President with a copy to: Merchandise Mart Properties, Inc. 222 The Merchandise Mart, Suite 470 Chicago, Illinois 60654 Attention: Legal Department In every case where under the provisions of this Lease it shall be necessary or desirable for Landlord to give or serve upon Tenant any notice or demand it shall be sufficient either (a) to deliver or cause to be delivered to Tenant a written or printed copy of such notice or demand, or (b) to send a written or printed copy of said notice or demand by either (i) Federal Express or similar commercial overnight delivery service, or (ii) certified or registered mail, return receipt requested, postage prepaid, addressed to Tenant, at: 21st Century Cable TV, Inc. 350 N Orleans Street 6th Floor Chicago, Illinois 60654 Attention: Manager of Purchasing and Contracts with a copy of default notices to: Neal, Gerber & Eisenberg Two North LaSalle Street Suite 2100 Chicago, Illinois 60602 Attention: Susan R. Proffitt Prior to commencement of the Term hereof and Tenant's occupancy of the Temporary Source (see Article 39), any notices which may be necessary or desirable for Landlord to give or serve upon Tenant shall be addressed to Tenant at 455 North Cityfront Plaza Drive, Suite 2950, Chicago, Illinois 60611, and addressed to the attention of those corporate titles set forth above. -27- Any such notice served upon Landlord or Tenant in accordance with the foregoing shall be deemed served effective upon receipt or upon refusal to accept delivery. Landlord and Tenant may designate alternative or additional addressees and addresses for notice by delivery of notice in accordance with the provisions of this Article 19; provided that the number of addressees/addresses to which notices to either party must be sent shall not exceed three (3). 20. NO SOLICITATION. Tenant shall not by itself or through any officer, salesman, employee, agent, advertisement or otherwise solicit business in the vestibules, entrances, elevator lobbies, corridors, hallways, elevators or other common areas of the Building. 21. CONDEMNATION. If the whole or any substantial part of the Premises or Building shall be taken or condemned by any competent authority for any public use or purpose or if any adjacent property or street shall be condemned or improved in such manner as to require the use of a substantial part of the Premises or the Building, the Term of this Lease, at the option of Landlord, shall end upon -the- date when the possession of the part so taken shall be required for such use or purpose and Landlord shall be entitled to receive the entire award, if any, without any payment to Tenant. Current rent shall be apportioned as of the date of such termination. Notwithstanding the foregoing, Tenant may, to the extent permitted by law, seek a separate award in a separate proceeding for the value of Tenant Responsible Premises and its trade fixtures and other personal property and moving and relocation expenses, so long as Tenant does not materially interfere with the proceedings being conducted by Landlord or otherwise reduce the award to which Landlord is entitled. 22. NONWAIVER. No waiver of any condition expressed in this Lease shall be implied by any neglect of Landlord or Tenant to enforce any remedy on account of the violation of such condition if such violation be continued or repeated subsequently, and no express waiver shall affect any condition other than the one specified in such waiver and that one only for the time and in the manner specifically stated. The receipt and acceptance by Landlord or Tenant of a sum of money which is less than the amount due and owing shall not, regardless of any endorsements or instructions to the contrary, constitute an accord and satisfaction. No receipt of moneys by Landlord from Tenant after the termination in any way of the Term hereof or of Tenant's right of possession hereunder or after the giving of any notice shall, reinstate, continue or extend the Term or affect any notice given to Tenant prior to the receipt of such moneys, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Premises Landlord may receive and collect any rent due, and the payment of such rent shall not waive or affect such notice, suit or judgment. 23. WAIVER OF NOTICE. To the extent that the notice provided in Article 15 hereof satisfies the requirements, if any, for service of notice or demand prescribed by any -28- applicable statute or law, Tenant hereby expressly waives the service of any other notice of intention to terminate this Lease or to re-enter the Premises and waives the service of any demand for payment of rent or for possession and waives the service of any other notice or demand prescribed by any statute or other law. 24. FIRE OR CASUALTY. If the Premises or any part of the Building shall be damaged by fire or other casualty and if such damage does not render all or a substantial portion of the Premises or the 'Building untenantable (and for purposes of this Article 24, the Premises shall be deemed untenantable if there is (i) a substantial impairment of the reasonable means of access thereto or (ii) substantial impairment of reasonable means of access to the Antennae on the Roof or damage to a substantial portion of the Antennae on the Roof which materially adversely impairs Tenant Is ability to conduct business in the Premises), then Landlord shall proceed to repair and restore the Building Systems (including the Building Systems in the Premises) and the reasonable means of access to the Premises with reasonable promptness, given the nature of the damage to be repaired, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord's control. If any such damage renders all or a substantial portion of the Premises or the Building untenantable, Landlord shall, with reasonable promptness after the occurrence of such damage, but in all events within forty-five (45) days after such damage occurred, obtain, at no cost to Tenant, an opinion of an independent architect, engineer or other qualified licensed professional, estimating the length of time will be required to complete the repair and restoration of the Building Systems (including the reasonable means of access to the Premises) and the Tenant Responsible Premises (stating separate estimated time periods for the repair and restoration of the Building Systems, including those in the Premises, and the repair and restoration of the Tenant Responsible Premises) and by written notice advise Tenant of such estimate (such notice being referred to herein as the "Repair Estimate Notice"). If it is so estimated that the amount of time required to substantially complete such repair and restoration of both the Building Systems (including those in the Premises and the reasonable means of access to the Premises) and the Tenant Responsible Premises will exceed one hundred eighty (180) days, then either Landlord or Tenant (but as to Tenant, only if all or a substantial portion of the Premises are rendered untenantable) shall have the right to terminate this Lease as of the date of such damage upon giving notice to the other at any time within twenty (20) days after Landlord delivers the Repair Estimate Notice to Tenant (it being understood that Landlord may, if it elects to do so, also give such notice of termination together with the Repair Estimate Notice). Notwithstanding the foregoing, if such damage renders untenantable a substantial portion of the Building but does not render untenantable a substantial portion of the Premises, Landlord shall not have the right to terminate this Lease on account of such damage, unless Landlord elects generally to terminate all leases in the Building which Landlord is entitled to terminate on account of such damage or Landlord elects to demolish all or a substantial portion of the Building, and any such termination of this Lease shall be effective as of a date, specified by Landlord, not less than sixty (60) days after the delivery of such termination notice. -29- Unless this Lease is terminated as provided in the preceding paragraph, Landlord shall proceed with reasonable promptness to repair and restore the Building Systems, including Building Systems in the Premises and the reasonable means of access to the Premises, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord's reasonable control, and also subject to zoning laws and applicable building codes then in effect. when the repair and restoration of the Building Systems is completed to a degree making the Premises suitably available for Tenant's repair and restoration of the Tenant Responsible Premises, Tenant shall proceed with reasonable promptness to repair and restore the Tenant Responsible Premises, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Tenant's reasonable control and applicable building codes then in effect. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease (except as hereinafter provided) if such repair and restoration of the Building Systems is not in fact completed within the time period specified in the Repair Estimate Notice. If the Building Systems are not repaired and restored by the number of days equal to one hundred fifty percent (150%.) of the number of days specified in the Repair Estimate Notice for completion of the repair and restoration of the Building Systems, measured from the date of delivery of the Repair Estimate Notice (provided, however, such number of days may be extended up to an additional one hundred twenty (120) days due to Force Majeure events), then either party (but as to Landlord, only if Landlord has diligently commenced and pursued such repair and restoration) may terminate this Lease, effective as of the date of such fire or other casualty, by written notice to the other party delivered not later than thirty (30) days after the expiration of said period but prior to substantial completion of such repair or restoration. Notwithstanding anything to the contrary herein set forth, (a) Landlord shall have obligation, to repair or restore any of the Tenant Responsible Premises or Tenant's office furniture, trade fixtures, office equipment, merchandise or any other items of Tenant's property in the Premises or the Building; (b) if any such damage rendering all or a substantial portion of the Premises or the Building untenantable shall occur during the last one (1) year of the Term and provided Tenant has not delivered a binding notice under Article 37 to extend the Term of this Lease beyond the then current Term (or Extended Term), each of Landlord and Tenant shall have the option to terminate this Lease by giving written notice to the other within sixty (60) days after the date such damage occurred, and if such option is so exercised, this Lease shall terminate as of a date not less than sixty (60) days after the delivery of such notice; and (c) Landlord shall have the right -to terminate this Lease by giving written notice to Tenant within sixty (60) days of the date such damage occurred if Landlord elects to terminate all tenant leases in the Building which Landlord is entitled to terminate on account of such damage or to demolish the Building, and if such right is so exercised, this Lease shall terminate as of a date, specified by Landlord, not less than sixty (60) days after the delivery of such notice. In the event any such fire or casualty damage renders the Premises or any part thereof untenantable and if this Lease shall not be terminated pursuant to the foregoing provisions of, -30- this Article 24 by reason of such damage, then all rent (including, without limitation, Base Rent and rent adjustments) payable pursuant to this Lease with respect to the Premises or such portion so rendered untenantable shall abate during the period beginning with the date of such damage and ending with the date that Tenant substantially completes the repair and restoration of the Tenant Responsible Premises (or such portion rendered untenantable) or commences substantial use of the Premises (or such portion rendered untenantable) for the conduct of its business, whichever is earlier, but in all events not later than the number of days equal to one hundred fifty percent (150%) of the number of days specified in the Repair Estimate Notice for completion of the repair and restoration of the Tenant Responsible Premises, measured from the date that the Building Systems are repaired and restored to a degree making the Premises suitably available for Tenant to commence and continue without unreasonable interruption Tenant's repair and restoration of the Tenant Responsible Premises, provided, however, such number of days may be extended up to an additional one hundred-twenty (120) days due to Force Majeure events. Such abatement shall be in an amount bearing the same ratio to the total amount of all rent (including rent adjustments) payable pursuant to this Lease for such period as the portion of the Premises rendered and remaining untenantable due to such fire or casualty from time to time bears to the entire Premises. In the event of termination of this Lease pursuant to this Article 24, all rent (including, without limitation, Base Rent and rent adjustments) payable pursuant to this Lease (to the extent not abated pursuant to the foregoing) shall be apportioned on a per diem basis and be paid to the date of termination. 25. INSURANCE. In consideration of the leasing of the Premises at the rental stated in Articles 3 and 4, Landlord and Tenant agree to provide insurance and allocate the risk of loss as follows: Tenant, at its sole cost and expense, agrees to purchase and keep in force and effect during the Term hereof (a) Property Insurance on the Tenant Responsible Premises and Tenant's contents, furniture, fixtures, equipment and other personal property located in the Building, covering the interests of Landlord and Tenant as to damage or other 'loss caused by those perils customarily covered by an all risk policy, and in any event including without limitation, fire or other casualty, vandalism, theft, sprinkler leakage, water damage (however caused), explosion, malfunction and failures of heating and cooling or similar apparatus, perils covered by extended coverage, and other similar perils in amounts not less than the full insurable replacement value of such property with a deductible amount in a commercially reasonable amount, taking into account the financial condition of Tenant, and (b) broad form Commercial General Liability Insurance, including blanket contractual liability, host liquor liability (if alcoholic liquor within the meaning of the Illinois Liquor Control Act will be given to guests), personal injury liability, and broad form property damage liability coverages, with limits of not less than *** for personal injury, bodily injury, sickness, disease or death or for damage or injury ___________________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -31- to or destruction of property (including the loss of use thereof) for any one occurrence. Tenant's Property Insurance policy shall provide that it is specific and not contributory and shall contain a clause pursuant to which the insurance carrier waives all rights of subrogation against Landlord and Landlord's- beneficiary, and its partners, trustees, officers, directors, agents and employees with respect to losses payable under such policy; and Tenant agrees to indemnify Landlord and Landlord's beneficiary, and its partners, trustees, officers, directors, agents and employees against all liabilities, damages, costs, claims, obligations and expenses (including attorneys, fees) arising from any failure of Tenant's Property Insurance policy to contain such a waiver of subrogation. If the potential for host liquor liability shall arise due to Tenant's activities pursuant to Article 2 of this Lease, the Tenant shall procure and maintain a policy, or endorsement for, liability insurance before undertaking such activities. Tenant's Commercial General Liability Policy and, if required, its host liquor liability policy or endorsement, shall each name Landlord, its beneficiaries, and their respective officers, directors, beneficiaries, partners, agents, and employees as additional insureds. All such insurance shall be provided by commercial insurers of recognized responsibility. Landlord agrees to purchase and keep in force and effect insurance on the Building and Building Systems against fire and such other risks as may be included in extended coverage insurance from time to time available on a replacement value basis in an amount sufficient to prevent Landlord from becoming a coinsurer under the terms of the applicable policies and shall contain a clause pursuant to which the insurance carriers waive all rights of subrogation against the Tenant, its agents, officers, directors and employees, with respect to losses payable under such policies. Tenant shall, from time to time upon request from Landlord but not more frequently than once each calendar year (except in the case of any change in coverage or any change in insurer, in any of which events Tenant agrees to provide Landlord written notice of such change within thirty (30) days of its occurrence) ,deliver to Landlord certificates of insurance evidencing the insurance coverage required by this Article 25, with a notation on such certificates as to the waiver of subrogation provided above. By this Article, Landlord and Tenant intend that the risk of loss or damage to property (including personal property and equipment used in connection with the Building and also including any automobile or other vehicles from time to time parked in any parking spaces which Landlord may from time to time lease to Tenant), as described above be borne by responsible insurance carriers to the 'extent above provided and' Landlord and Tenant hereby release each other and agree to look solely to, and seek recovery only from, their respective insurance carriers in the event of a loss of a type described above to the extent that such coverage is agreed to be provided hereunder. For this purpose any applicable deductible amount shall be treated as though it were recoverable under such policies. Landlord and Tenant agree that applicable portions of all moneys collected from such insurance shall be used toward full compliance with -32- the obligations of Landlord and Tenant under this Lease in connection with damage resulting from fire or other casualty. 26. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the following rights, exercisable without notice, except as otherwise stated, and without liability to Tenant for damages or injury to property, person or business and without effecting an eviction, constructive or actual, or disturbance of Tenant's use or possession or giving rise to any claim for set-off or abatement except as otherwise expressly provided herein: (A) To change the Building's name or street address. Landlord agrees to give Tenant one hundred eighty (180) days prior notice of such change of street address (except where Landlord is required to change the street address by any governmental authority). (B) To install, affix and maintain any and all signs on the exterior and interior of the Building. (C) To designate and approve, prior to installation by Tenant, all types of window shades, blinds, drapes, awnings, window ventilators and other similar equipment, and to reasonably control all internal lighting that may be visible from the exterior of the Building so as to promote the uniformity or harmony of appearance of the exterior of the Building. (D) Except as provided otherwise in this Lease, to reserve to Landlord the exclusive right to designate, limit, restrict and control any business or any service in or to the Building. (E) To grant to anyone the exclusive right to conduct any business or render any service in or to the Building, provided such exclusive right shall not operate to exclude Tenant from the use expressly permitted herein or increase the costs therefor to Tenant, and the rates charged by any such vendor shall be competitive market rates. (F) To impose reasonable rules and regulations regarding the placing of vending or dispensing machines of any kind in or about the Premises without the prior written permission of Landlord. (G) To show the Premises to prospective tenants at reasonable hours by appointment during the last nine (9) months of the Term, as it may be extended. (H) To reasonably approve the weight, size and location of safes and other heavy equipment and bulky articles in and about the Premises and the Building (so as not to exceed the legal live load), and to require all such items and furniture and similar items to be moved into and out of the Building and Premises only at such times and in such manner as Landlord shall reasonably direct in writing. Subject to the provisions of Articles 11 and 25, any damages done -33- to the Building or to other tenants in the Building by taking in or taking out safes, furniture, and other articles or from overloading the floor in any way shall be paid by Tenant. Furniture, boxes, merchandise or other bulky articles shall be transported within the Building only upon or by vehicles equipped with rubber tires and shall be carried only in a freight elevator when such service is available. Movements of Tenant's property into or out of the Building and within the Building are entirely at the risk and responsibility of Tenant and Landlord reserves the right to require registration before allowing any such property to be moved into or out of the Building. Landlord reserves the right to reasonably regulate the movement of, and to inspect, all property and packages brought into or out of the Building to enforce compliance with the terms of this Lease and to reasonably regulate delivery and service of supplies and the usage of loading docks, receiving areas and freight elevators. Landlord shall not discriminate against Tenant in its right to use such loading docks, receiving areas and freight elevators in conjunction with other tenants. (I) To have access for Landlord to any mail chutes located on the Premises according to the rules of the United States Postal Service. (J) To close the Building after regular working hours and on Saturdays, Sundays and holidays established by Landlord (subject to the limitations set forth herein) from time to time subject, however, to Tenant's right to admittance under such reasonable regulations as Landlord may prescribe from time to time, which may include, by way of example but not of limitation, that persons entering or leaving the Building identify themselves to a security officer by registration or otherwise and that said persons comply with Landlord's regulations concerning their and leaving the Building (Landlord agrees to furnish to Tenant prior notice in the case of any scheduled Building shutdown when Tenant shall not be able to gain access to the Premises provided such notice shall not limit or affect any rights granted to Tenant in Article 9 hereof). (K) To change the arrangement, configuration, size or location of entrances, passageways, doors and doorways, corridors, stairs, toilets, elevators and escalators and other public service portions of the Building and the Property not contained within the Premises or any part thereof, so long as Landlord uses reasonable efforts to give Tenant prior notice in the event of any changes to common areas of the Building directly and materially serving the Premises or the Antennae on the Roof and so long as any such change does not materially and adversely affect Tenant's ability to conduct its business in the Premises or Tenant's access to the Premises or access to the Antennae on the Roof. (L) To change the character or use of any part of the Building or the Property. (M) Subject to the rights granted Tenant in Article 40 hereof, to use for itself the roof, the exterior portions of the Premises and such areas within the Premises (so long as the useable area of the Premises is not materially reduced) required for structural columns and their enclosures and the installation of utility lines, Building systems and other installations required -34- to service the Building, the Property or tenants or occupants thereof and to maintain and repair same, no rights being hereby conferred upon Tenant, and, unless otherwise specifically provided herein, to exercise for itself any rights to the land and improvements below the floor level of the Premises or the air rights above the Premises and to the land and improvements located on and within the public areas. Neither Tenant nor its employees, invitees, guests and agents shall, without obtaining in each instance the prior written consent of Landlord (which consent shall not be unreasonably withheld or delayed, and shall be conditioned upon such requirements as Landlord deems appropriate) (1) go above or through suspended ceilings, (2) remove any ceiling tiles or affix anything thereto, remove anything therefrom or cut into or alter the same in any way, (3) enter fan rooms or other mechanical spaces, or (4) open doors or remove panels providing access to utility lines, Building systems or other installations required to service tenants. 27. RULES AND REGULATIONS. Subject to the rights expressly granted to Tenant elsewhere in this Lease, Tenant agrees to observe the reservations to Landlord in Article 26 hereof and agrees to comply and to use reasonable business efforts to have its employees, agents, and servants to observe and comply, at all times, with the following rules and regulations and with such reasonable modifications thereof and additions thereto as Landlord may make for the Building (so long as Landlord has delivered to Tenant prior notice of any such modifications and additions and that same are reasonable), and that failure to observe and comply with such reservations, rules and regulations, after written notice of such failure and an opportunity to cure as provided in Section 15 hereof, shall constitute a default under this Lease: (A) No sign, picture, advertisement or notice, typewritten or otherwise, shall be displayed, inscribed, painted or affixed on any part of the outside or inside of the Building, or on or about the Premises in any location visible from outside the Premises, except on glass of the doors and windows of the Premises and on the directory board of the Building and then only of such nature, color, size, style and material as shall be first approved by Landlord in writing, which approval shall not be unreasonably withheld. (B) Tenant shall not, without Landlord's prior written consent (which consent shall not be unreasonably withheld), install or operate any heating device or air conditioning equipment, steam or internal combustion engine, boiler, stove, machinery, or mechanical devices upon the Premises (other than as set forth in the final plans for Tenant's Work described in Article 35) or carry on any mechanical or manufacturing business thereon, or use or permit to be brought into the Building flammable fluids such as gasoline, kerosene, benzene, or naphtha (except in such small quantities as customarily used by office tenants for general office use in compliance with applicable legal requirements) or use any illumination other than electric lights. All equipment, fixtures, lamps and bulbs shall be compatible with, and not exceed the capacity of, the Building's electrical system. No explosives, firearms, radioactive or toxic or hazardous -35- substances or materials, or other articles deemed extra hazardous to life, limb or property shall be brought into the Building or the Premises. (C) Any person or persons employed by Tenant to do janitor work or care for the Premises shall be subject to and under the reasonable control and direction of the building manager (in such manner and to such extent as generally applicable to persons employed by Building tenants) while in the Building and outside of the Premises, but not as agent of Landlord. Tenant shall be responsible, at its sole cost and expense, for the removal of refuse and rubbish from the Premises to the designated collection areas in the Building. Such refuse and rubbish shall be stored and transported in containers reasonably acceptable to Landlord and shall be deposited in locations acceptable to Landlord and consistent with policies established by Landlord for the Building generally. (D) After completion of the Shell and Core Work, Tenant shall at its expense provide artificial light for employees of Landlord while doing work and making repairs or alterations in the Premises. (E) The location and manner of installation of all telegraph, telephone, communications, signal and electric connections, cabling and wiring (other than connections, wiring or cabling located exclusively within the Premises and not affecting the Building structure, Building Systems, common areas or other tenants' premises) shall be subject to the reasonable approval of Landlord and any work in connection therewith shall be subject to the direction of Landlord. Tenant shall give Landlord reasonable prior notice of the installation of all such telegraph, telephone, communication, signal and electric connections, cabling and wiring whether or not Landlord's approval thereto and direction thereof is required. Landlord reserves the right to control the entity or entities providing telephone wire installation, repair and maintenance in the Building to the Building telephone closets on the various floors and to reasonably restrict and control access to such Building telephone closets. Tenant may select the vendor or vendors and service providers with respect to the installation, repair and maintenance of other communication and signal cabling and wiring subject to the general direction of Landlord and such reasonable rules and regulations as may be established by Landlord for the protection of the Building and its efficient, high-quality and harmonious operation. (F) Tenant must list all furniture and fixtures to be taken from the Building at any time and from time to time prior to the expiration of the Term hereof upon a form furnished by Landlord. Such list shall be presented at the office of the Building for registration (or if closed, to the security officer) before acceptance by the security officer or elevator operator. (G) Tenant, its licensees, agents, servants, and employees and guests shall not encumber or obstruct sidewalks, entrances, passages, courts, corridors, vestibules, halls, elevators, stairways or other common areas in or about the Building. -36- (H) No bicycle or other vehicle and no animal (except seeing eye dogs) shall be allowed in the showrooms, offices, halls, corridors or any other parts of the Building. (I) Tenant shall not allow anything to be placed against or near the glass in the partitions between the Premises and the halls or corridors of the Building which shall diminish the light in the halls or corridors. (J) Tenant shall not allow anything to be placed on the outer window ledges of the Premises, nor shall anything be thrown by Tenant or its employees out of the windows of the Building. Tenant shall keep all windows closed. (K) No additional locks shall be placed upon any entry doors to the Premises and no locks shall be changed without the prior written consent of Landlord, which shall not be unreasonably withheld. Upon termination of this Lease, Tenant shall surrender all keys and key cards of the Premises and of the Building and give to Landlord the explanation of the combination of all locks on safes or vault doors in the Premises. (L) The building manager shall at all times keep a pass key and be allowed admittance to the Premises to cover any emergency, fire or other casualty that may arise and in other appropriate instances. Landlord and Landlord's agents shall have the right to enter the Premises at all reasonable hours upon prior notice (except in case of an emergency) to examine the same. (M) Unless otherwise advised by Landlord, neither Tenant nor its employees shall undertake to regulate the radiator controls or thermostats. Tenant shall report to the office of the Building whenever such thermostats or radiator controls are not working properly or satisfactorily. (N) If Tenant desires shades or venetian blinds for outside windows, must be furnished and installed at the expense of must be of Tenant, and must of such type, color and material as may reasonably be prescribed by Landlord. (O) Tenant assumes full responsibility for protecting its space from theft, robbery and pilferage, which includes keeping doors locked and other means of entry into the Premises closed and secured. (P) Tenant shall not peddle, canvass, solicit or distribute handbills or flyers on or about the Property except as specifically authorized by Landlord. (Q) Tenant shall not sell food of any kind or cook in the Building, unless in coffee-makers or microwave or similar ovens installed and maintained by Tenant for use by its -37- employees and invitees, and subject to any reasonable applicable Building rules and regulations and all applicable laws. Tenant may serve complimentary foods to its guests provided that it shall first comply with all applicable laws, ordinances, codes and regulations. (R) Water in the Premises shall not be wasted by Tenant or its employees by tying or wedging back the faucets of the washbowls or otherwise. (S) Tenant shall use neither the name of the Building (except as the address of its business) nor pictures of the Building in advertising or other publicity or for any other purpose without Landlord's prior written consent. (T) In the event Tenant designates non-smoking areas in the Premises, Tenant shall also designate sufficient smoking areas within the Premises for its employees; and Tenant shall use all reasonable efforts, in dealing with its employees, to cooperate with and enforce Landlord's policies prohibiting the use of the public areas of the Building as smoking areas. Landlord reserves the right upon prior notice to Tenant to make such other and further reasonable rules and regulations as in Landlord's reasonable judgment may from time to time be needed for the safety, care and cleanliness of the Premises and the Building and for the preservation of good order therein so long as such further rules and regulations do not diminish any rights heretofore expressly granted to Tenant in this Lease. Landlord agrees that all such rules and regulations shall be enforced in a manner that does not singularly target Tenant and no other tenants similarly situated or engaged in conduct similar to that of Tenant. 28. MISCELLANEOUS. Tenant and Landlord further covenant with each other that: (A) All rights and remedies of Landlord and Tenant under this Lease shall be cumulative, and none shall exclude any other rights and remedies allowed by law. (B) The word "Tenant" wherever used herein shall be construed to mean tenants in all cases where there is more than one tenant, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or individuals, men or women, shall in all cases be assumed as though in each case fully expressed. If there is more than one tenant, all obligations and liabilities hereunder imposed upon Tenant shall be joint and several. (C) This Lease and the rights of Tenant hereunder shall be and are subject and subordinate at all times to any ground leases or master leases and to the lien of any mortgages or deeds of trust now or hereafter in force against the Property or the Building, or both of them, and to all advances made or hereafter to be made upon the security thereof, and to all renewals, modifications, amendments, consolidations, replacements and extensions thereof. Any -38- mortgagee or beneficiary under a deed of trust, however, may elect to have this Lease be superior to its mortgage or deed of trust. This provision is self- operative and no further instrument of subordination or priority shall be required. In confirmation of such subordination or priority Tenant shall promptly execute such further instruments as may be reasonably requested by Landlord and in the event Tenant fails to do so within twenty (20) days after demand in writing by certified or registered mail, Landlord shall deliver to Tenant a further written request and if Tenant fails to execute and deliver such instruments within five (5) business days after receipt of such further notice from Landlord, such failure shall constitute a material default hereunder and shall entitle Landlord to exercise the remedies provided by Article 15 hereof (without any notice otherwise required by said Article 15). Notwithstanding the foregoing, this Lease and the rights of Tenant hereunder shall not be subject or subordinate to the lien of any mortgage or deed of trust imposed upon the Property after the date hereof unless, as a condition thereto, such mortgagee or holder shall deliver to Tenant a non-disturbance agreement in form and substance reasonably satisfactory to Tenant. (D) Each of the provisions of this Lease shall extend to and shall, as the case may require, bind or inure to the benefit of, not only Landlord and Tenant, but also their respective heirs, legal representatives, successors and assigns, provided, this clause shall not permit any assignment contrary to the provisions of Article 12 hereof. (E) All of the representations and obligations of Landlord and Tenant are contained herein and no modification, waiver or amendment of this Lease or any of its conditions or provisions shall be binding upon Landlord unless in writing signed by a duly authorized officer of Landlord's agent or upon Tenant unless in writing and signed by a duly authorized officer of Tenant. (F) All amounts due and payable from Tenant under this Lease or under any work order or other agreement relating to the Premises shall be considered as rent and, if unpaid when due, shall bear interest from such date until paid at the maximum legal rate of interest available, provided such rate of interest shall not exceed two percent (2%) per annum plus the Prime Rate as announced by the Northern Trust Bank in Chicago, Illinois and in effect on the first day of each calendar quarter, determined and subject to change as of the first day of each calendar quarter. (G) Submission of this instrument for examination shall not bind Landlord or Tenant in any manner, and no lease or obligation on Landlord or Tenant shall arise until this instrument is signed and delivered by Landlord and Tenant. (H) Except as set forth in Article 40, no rights to light or air over any property, whether belonging to Landlord or any other persons, are granted to Tenant by this Lease. -39- (I) The laws of the State of Illinois shall govern validity, performance and enforcement of this Lease. The invalidity or unenforceability of any provision of this Lease shall not affect or impair any other provision. (J) Landlord's title is and always shall be paramount to the title of Tenant. Nothing herein contained shall empower Tenant to commit or engage in any act which can, shall or may encumber the title of Landlord. (K) In case Landlord or any successor owner of the Property or the Building shall convey or otherwise dispose of any portion thereof to another person, such other person shall in its own name thereupon be and become Landlord hereunder and shall assume fully in writing and be liable upon all liabilities and obligations of this Lease to be performed by Landlord which first arise after the date of conveyance, and such original Landlord or successor owner shall, from and after the date of conveyance, be free of all liabilities and obligations not then incurred. (L) Neither this Lease, nor any memorandum, affidavit or other writing with respect thereto, shall be recorded by Tenant or by anyone acting through, under or on behalf of Tenant, and the recording thereof in violation of this provision shall constitute a material breach of this Lease. (M) Nothing contained in this Lease. shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent, partnership, joint venture or any association or relationship between Landlord and Tenant other than that of landlord and tenant. (N) Landlord shall have the right to apply payments received from Tenant pursuant to this Lease (regardless of Tenant's designation of such payments) to satisfy any obligations of Tenant hereunder, in such order and amounts as Landlord in its reasonable discretion may elect. (O) All indemnities, covenants and agreements of Landlord and Tenant, respectively, contained herein which inure to the benefit of the other party shall be construed to inure also to the benefit of the other party's officers, directors, beneficiaries, partners, agents and employees. (P) Unless otherwise notified in writing by Landlord, Tenant may rely upon notices and directions from officers of Merchandise Mart Properties, Inc., Landlord's beneficiary's management agent for the Building and Property, as the authorized action of Landlord. 29. ATTORNMENT. Upon request of the holder of any note secured by a mortgage or deed of trust on the Building or Property, Tenant will agree in writing that no action taken by such holder to enforce said mortgage or deed of trust shall terminate this Lease or invalidate or constitute a breach of any of the provisions hereof and Tenant will attorn to such mortgagee or -40- holder, or to any purchaser of the Property or Building, at any foreclosure sale or sale in lieu of foreclosure, for the balance of the Term of this Lease and on all other terms and conditions herein set forth, provided that, in the case of any mortgage or trust deed imposed upon the Property after the date hereof, as a condition to such attornment by Tenant, such mortgagee or holder shall deliver a Non-Disturbance Agreement to Tenant. 30. ESTOPPEL CERTIFICATE. Tenant agrees that from time to time (but not more frequently than once each year and also upon commencement of the Term and in connection with any sale or refinancing of the Building and upon any request by Landlord's lender) upon not less than thirty (30) days' prior request by Landlord, Tenant or Tenant's duly authorized representative having knowledge of the following facts shall deliver to Landlord a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or if there have been modifications that the Lease as modified is in full force and effect); (b) the dates to which Base Rent, rent adjustments and other sums payable under this Lease have been paid; (c) that, to the best of Tenant's knowledge, neither Landlord nor Tenant is in default under any provision of this Lease, or, if in default, the nature thereof in reasonable detail; (d) that, to the best of Tenant's knowledge, there are no offsets or defenses to the payment of Base Rent, additional rent or any other sums payable under this Lease, or if there are any such offsets or defenses, specifying such in reasonable detail; and (e) such other matters relating to the status of the Lease as may be reasonably requested. In the event Tenant fails to deliver such statement to Landlord within such 30-day period, such failure, if not cured within an additional 15- day period after delivery of written notice thereof, shall constitute a material default hereunder and exercise the remedies provided by Article 15 hereof (without any notice otherwise required by said Article 15). Landlord agrees that from time to time upon not less than thirty (30) days prior written request by Tenant (but not more frequently than once each year), and upon not less than thirty (30) days prior written request by any approved assignee or subtenant in connection with the execution and delivery of any assignment or sublease, Landlord or Landlord's duly authorized representative having knowledge of the following facts shall deliver to Tenant a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or if there have been modifications that the Lease, as modified, is in full force and effect); (b) the dates to which the Base Rent, rent adjustments and other sums payable under this Lease have been paid; (c) that to the best of Landlord's knowledge, neither Landlord nor Tenant is in default under any provision of this Lease, or, if in default, the nature thereof in reasonable detail; and (d) such other matters relating to the status of the Lease as may be reasonably requested. 31. BROKERS. Landlord and Tenant represent and warrant to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker other than CB Commercial Real Estate Group, Inc. and Chicago Realty Group, L.L.C. in the negotiation or making of this Lease, and each agrees to indemnify and hold harmless the other -41- from the claim or claims of any other broker or brokers claiming to have interested Tenant in the Building or Premises or claiming to have caused Tenant to enter into this Lease. Landlord shall be responsible for the commission or other compensation of CB Commercial Real Estate Group, Inc. and Chicago Realty Group, L.L.C. payable pursuant to separate agreements, if any, between Landlord and such brokers. 32. SECURITY DEPOSIT. A. As security for the full and prompt performance by Tenant of all of Tenant's obligations hereunder, Tenant has upon execution of this Lease provided to Landlord and will during the Term of this Lease maintain on deposit with Landlord, an unconditional irrevocable letter of credit in favor of Merchandise Mart Properties, Inc., as agent of Landlord, from a bank approved by Landlord, in the form attached hereto as Exhibit "E" (the "Letter of Credit"), which provides for security in the initial amount of $***. Prior to and as a condition to Landlord's obligation to pay any Take-Down Improvement Allowance pursuant to Article 36 hereof, Tenant shall cause the amount of the Letter of Credit to be increased by the amount of the Take-Down Improvement Allowance to be paid by Landlord under Article 36 hereof. Commencing on the first day of the Second Lease Year and on the first day of each successive Lease Year thereafter, so long as Tenant is not in default-hereunder, the amount of the Letter of Credit shall be automatically reduced for such Lease Year by the amount necessary to result in the proportionate reduction (assuming a level annual reduction) of the Letter of Credit over the remaining balance of the Term. Tenant agrees that, in the event of any default by Tenant under this Lease, Landlord shall have the right to draw down on the Letter of Credit in an amount necessary to cure such default ("the Cure Amount") and Tenant agrees that within ten (10) days after such initial draw of the Cure Amount Tenant shall replenish the Cure Amount and shall cause the Letter of Credit to be amended in a manner that it is restored to the full amount available thereunder prior to such draw by Landlord. Tenant further agrees that, in addition to all of the rights and remedies provided to Landlord pursuant to Article 15 hereof, whether or not this Lease or Tenant's right to possession hereunder has been terminated, (a) in the event Tenant is in default under any of the terms, covenants and conditions of this Lease and Tenant has so failed to replenish the Letter of Credit as aforesaid, or (b) in the event Tenant has filed (or there has been filed against Tenant) a petition for bankruptcy protection or other protection from its creditors under any applicable and available law, then Landlord may at once and without notice to Tenant be entitled to draw down on the entire amount of the Letter of Credit and apply such resulting sums toward (i) reimbursement to Landlord for all of Landlord's then unamortized costs incurred in leasing to Tenant the Premises demised by this Lease, including, without limitation (xx) the then unamortized Landlord's Contribution made available to Tenant pursuant to Article 34 hereof, assuming amortization of such amount over a period of 180 calendar months, commencing on the first full Lease Year, at a level monthly payment with an interest factor equal to *** percent (***%) per annum, plus (yy) any then unamortized Take-Down Improvement Allowance made available to Tenant pursuant to Article 36 hereof, assuming amortization of ______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -42- such amount over a period commencing on the date of disbursement thereof and ending on the expiration of the initial Term hereof at a level monthly payment with an interest factor equal to *** percent (***%) per annum, and (ii) reimbursement to Landlord for any other damages suffered by Landlord as a result of such default. B. The foregoing Letter of Credit shall provide for an original expiration date of June 30, 1998 and shall be automatically extended without amendment (subject to the reductions described above) for additional successive one-year periods from the original expiration date or any future expiration date thereof for the Term of this Lease, unless sixty days prior to any such expiration date the bank sends to Landlord by certified/registered mail, return receipt requested or overnight courier written advice that the bank has elected not to consider the Letter of Credit renewed for any such additional one-year period. In the event such bank so advises Landlord that such Letter of Credit will not be so renewed, Landlord shall promptly thereafter notify Tenant thereof in writing, and Tenant shall obtain a substitute Letter of Credit from a bank reasonably approved by Landlord meeting all of. the terms and conditions described in Paragraph A. above, which substitute Letter of Credit ("Substitute Letter of Credit") shall be reasonably satisfactory to Landlord and delivered to Landlord no later than thirty (30) days prior to the expiration date of such Letter of Credit then in effect. In that event Tenant fails to deliver such Substitute Letter of Credit to Landlord at least thirty (30) days prior to the expiration date of such Letter of Credit then in effect, Landlord shall in such instance have the right without notice to Tenant to immediately draw down on the entire amount of the Letter of Credit then available to Landlord; in such instance Landlord shall retain such resulting sum as a cash security deposit (which sum shall be reduced, so long as Tenant is not then in default hereunder, to reflect the reduction schedule applicable if Landlord were holding the Letter of Credit described in Paragraph A above) and Landlord shall have the right to use such cash security to the same extent that Landlord would be entitled to draw down on the Letter of Credit pursuant to the terms of Paragraph A. above. Landlord shall not, unless required by law, keep the security deposit separate from its general funds or pay interest thereon to Tenant. As between Landlord and Tenant only, all draws under the Letter of Credit (or cash security, deposit, as the case may be) and rights of Landlord to apply the proceeds of any such draw or draft shall be subject to the provisions of this Lease, including all applicable notice and cure periods provided for in Article 15 hereof, if any, except that where this Article 32 states no notice to Tenant is required, Landlord is not obligated to give any notice under Article 15 prior to taking any action provided for in this Article 32. 33. PARKING. Landlord agrees to cause to be made available to Tenant during the first *** Lease years of the initial Term, ***. _______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -43- So long as Tenant is not in default hereunder, *** shall be due by Tenant for the Parking Spaces during the first *** Lease Years and thereafter during the initial Term Tenant may lease the Parking Spaces at the then prevailing rates in effect from time to time for parking spaces in such parking lot. Landlord reserves the right to substitute a different garage or parking lot parking spaces to satisfy its obligation to provide the foregoing Parking Spaces, provided any such substitute garage or parking lot is the closest public lot to the Building. With respect to the Parking Spaces, Tenant agrees to comply with all regulations in effect from time to time at the facilities in which the Parking Spaces are located. Tenant agrees that its use, and the use by its agents, employees and invitees, of the Parking Spaces shall be entirely at Tenant's own risk and responsibility; and Tenant further agrees that, subject to the provisions of Article 25 hereof, Landlord, Landlord's beneficiaries, LaSalle National Bank, as Trustee under Trust Agreement dated May 27, 1981, known as Trust No. 104000 ("Mart Landlord"), Mart Landlord's beneficiaries, and their respective officers, directors, partners, agents and employees shall not, except as otherwise provided by law, be liable for any injury to persons or damage to property occurring in, on or around the Parking Spaces. 34. LANDLORD'S CONTRIBUTION. (A) As an inducement for Tenant to enter into this Lease, Landlord agrees to pay to Tenant an allowance (the "Landlord's Contribution") in an amount not to exceed *** (calculated by ***). The Landlord's Contribution shall be applied towards the payment of costs incurred in connection with (i) the alterations, additions and improvements furnished or installed in the Premises by Tenant in accordance with Article 35 hereof, including, without limitation, fees for design, architectural and engineering drawings and (ii) such other expenses, including the cost of furnishings, fixtures and equipment as are related to the Lease. The Landlord's Contribution shall be applicable only in connection with the initial preparation for occupancy of the Premises. To the extent that any portion of the Landlord's Contribution is used for the purchase of furnishings, fixtures or equipment, Tenant agrees that Landlord shall have a security interest in such furnishings, fixtures or equipment, and Tenant agrees to execute, upon Landlord's request, security agreements, UCC financing statements or other documents evidencing Landlord's security interest in such items. (B) It shall be a condition of Landlord's obligation to pay any installment of the Landlord's Contribution for work performed by any contractor or supplier, other than those engaged by Landlord, that Tenant shall provide or cause to be provided to Landlord (to the extent customarily required by title insurance companies) contractor's affidavits and waivers of lien covering all labor and material used and expended for which contractors are requesting payment, and (if applicable) invoices establishing the actual cost of items purchased and labor provided, all ___________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -44- in form and content reasonably satisfactory to Landlord. it shall be a further condition to Landlord's obligation to pay or credit any amount of Landlord's Contribution at any time that Tenant is not then in monetary default or in default under any of the other material terms, covenants and conditions of this Lease. Landlord's Contribution shall be advanced, upon satisfaction of the foregoing conditions, as costs are incurred, subject to customary retainage. 35. IMPROVEMENT WORK. In connection with the preparation of the Premises for initial occupancy, and subject to the terms, covenants and conditions of Article 8 hereof (to the extent not contrary to or inconsistent with the provisions of this Article 35), Landlord and Tenant agree that the following shall apply: A. Shell and Core Work. ------------------- 1. Landlord shall substantially complete at its sole cost and expense as soon as reasonably possible all of the additional base building work included in the Shell and Core Work defined below, subject to delays caused by Force Majeure events and Tenant Delays (defined below). For purposes hereof, the "Shell and Core Work" includes the following: (a) the demolition and removal of existing tenant improvements located in the Premises, including ceilings, grid, lighting, partitions, interior doors, floor coverings, millwork and fixtures and minor floor latexing; (b) the furnishing and installation of energy efficient thermopane glass windows with thermal break frames, comparable to the windows previously installed by Landlord on the fourth (4th) floor of the Building, on the southerly and westerly walls of the south tower. The parties recognize that a time period of fourteen (14) to sixteen (16) weeks is required for the ordering, fabrication and installation of the windows; (c) the construction of a demising wall ready to receive Tenant finish; and (d) the installation of sound batt installation around the fan room. 2. In the event Landlord shall fail to substantially complete the Shell and Core Work on or before the Commencement Date for reasons other than a Tenant Delay (as defined below), then, such failure shall constitute a Landlord Delay to the extent it delays the completion of Tenant's Work beyond the Commencement Date, and the -45- Commencement Date shall be extended one (1) day for each day that any Landlord Delay delays completion of Tenant's Work. If the completion of Tenant's Work is delayed beyond July 10, 1997 as a result of a Landlord Delay and not due to any Force Majeure events or Tenant Delays, then notwithstanding anything to the contrary set forth herein, Landlord agrees that in addition to the extension of the Commencement Date described above in this Article 35(A)(2), Base Rent and rent adjustments shall abate after the Commencement Date one (1) day for each day of such delay beyond July 10, 1997 (subject to extension of such date by reason of Force Majeure or Tenant Delays). 3. Substantial completion of the Shell and Core Work shall mean completion of such Work with the exception of minor and insubstantial details of construction or mechanical adjustment, the incompletion of which will not unreasonably interfere with Tenant's use of the Premises. 4. As used herein, "Force Majeure" events shall mean fire, casualty, emergencies, lockouts, strikes, labor disputes, war, governmental action, acts of God, labor or material shortages, transportation delays, and other causes beyond the reasonable control of the respective party to prevent, of which the respective party has notified the other party within ten (10) days after the notifying party becomes aware of the occurrence of such a cause, but excluding insufficiency of funds or inability to obtain financing or disbursement of loans. 5. In the event Landlord shall be delayed in substantially completing the Shell and Core Work as a result of any fault of Tenant or its agents or representatives in connection with any of the obligations of Tenant set forth in this Lease, including, without limitation, any delay in Tenant's approval of any plans or specifications or other materials submitted by Landlord to Tenant for Tenant's review and approval such delay shall be a "Tenant Delay". 6. Landlord and Tenant agree that their respective construction representatives will cooperate with each other to prepare a construction schedule with the objective of substantially completing the Shell and Core Work and Tenant's Work as soon as reasonably possible and the parties recognize it is the goal of Tenant to commence initial construction of Tenant's Work within forty-five (45) days after Lease execution. Landlord and Tenant agree that it may be more efficient, cost effective and productive for Landlord to perform certain portions of the Shell and Core Work in conjunction with and during the construction of Tenant's Work and Tenant agrees to cooperate and coordinate with Landlord in good faith in identifying any items of the Shell and Core Work to be performed during the construction of Tenant's Work, and Landlord and Tenant agree to use reasonable -46- efforts to work in harmony with each other and cooperate so that Tenant may enter into occupancy of the Premises as soon as reasonably possible. B. Tenant's Work. Tenant shall be responsible for the construction of all ------------- improvements in the Premises beyond the Shell and Core Work, subject to the terms and conditions hereinafter provided: 1. Plans and Specifications. ------------------------ (a) Tenant shall cause to be prepared and delivered to Landlord by reputable and qualified architects and engineers, the following plans and specifications ("Plans") for all improvements Tenant desires to have completed in the Premises in connection with Tenant's initial occupancy of the Premises ("Tenant's Work"): (i) Architectural drawings (consisting of floor construction plan, ceiling lighting and layout, power, and telephone plan). (ii) Mechanical drawings (consisting of AC, electrical, telephone and plumbing). (iii) Finish drawings and schedule (consisting of wall finishes and floor finishes and miscellaneous details). All such Plans shall be submitted to Landlord in a state ready for Landlord's review and approval, which shall not be unreasonably withheld or delayed, on an interim basis when available from time to time. Tenant shall deliver to Landlord seven (7) sets of all Plans provided for Landlord's review. Landlord shall approve or disapprove of such Plans within six (6) business days after its receipt thereof (and in the case of disapproval, state its reasons for such disapproval), so long as Tenant or its architect have at least on a regular basis consulted with Landlord in connection with preparation of such Plans and delivered to Landlord preliminary drafts-of all such Plans as they become available from time to time. Landlord shall not withhold its approval of any improvements which do not affect Building Systems, the structural or member components of the Building, common areas of the Building or operations in and around the Building. Landlord and Tenant agree to cooperate and consult with each other on a regular basis in connection with the preparation of such Plans and during construction of the Tenant's Work. If Landlord fails to provide such approval or fails to notify Tenant of the reasons for Landlord's disapproval within the foregoing six (6) business day review period, Landlord shall be deemed to have approved all such Plans. (b) All Plans shall comply with all (1) applicable statutes, ordinances, regulations, laws, and codes, and (2) the requirements of Landlord's fire insurance underwriters. -47- Neither review nor approval by Landlord of the Plans shall constitute a representation or warranty by Landlord that such Plans either (i) are complete or suitable for their intended purpose, or (ii) comply with applicable laws, ordinances, codes and regulations, it being expressly agreed by Tenant that Landlord assumes no responsibility or liability whatsoever to Tenant or to any other person or entity for such completeness, suitability or compliance, except to the extent that any such work is performed specifically at and in accordance with the specific direction of Landlord or its management agent. Tenant shall not make any material changes in the Plans, whether before commencement of construction or during construction, without Landlord's prior written approval, which approval shall not be unreasonably withheld. Landlord shall approve or disapprove any such changes within six (6) business days after its receipt thereof (and in the case of disapproval, state its reasons for such disapproval). 2. Performance of Tenant's ----------------------- (a) Tenant may select its own contractors, subcontractors and/or suppliers for the performance of the Tenant's Work provided, however, that Landlord may require Tenant to give assurances reasonably satisfactory to Landlord that all such contractors, subcontractors and suppliers are reputable, financially responsible, maintain proper insurance and will not jeopardize labor harmony. Landlord may also require Tenant to comply with such construction standards or procedures as may be applicable from time to time for construction activities in the Building (a set of such standards and procedures currently in effect having been delivered by Landlord to Tenant in a book entitled Construction Standards, Procedures and Specifications, Revised: December, 1992.) - ------------------------------------------------------------------------------- and to submit reasonably satisfactory insurance certificates to Landlord. Tenant shall pay to Landlord, within thirty (30) days after receipt of any invoice therefor, Landlord's actual costs reasonably incurred by Landlord for reviewing the Plans, coordinating the construction with the Building and providing general conditions (as hereinafter provided), including any costs paid by Landlord to third parties, if any, and the reasonable actual cost of time spent by Landlord's employees to perform, such duties, such costs to be determined under the billing rates set forth in Exhibit "F" attached hereto and made a part hereof. (b) Subject to approval of Tenant's Plans as provided by Paragraph B.1 above and after the filing of the Plans with the appropriate governmental agencies, Tenant shall, at Tenant's sole costs and expense, except as otherwise provided herein, cause the contractors employed by it to commence, as soon as reasonably practicable, to construct and install and pursue to completion in the Premises the Tenant is Work in accordance with the Plans and without' deviation from the Plans. Tenant agrees that it shall be responsible for all contractors, subcontractors and suppliers engaged by Tenant, and that all work performed by such parties shall be performed and completed in a good, diligent and workmanlike manner, with no unreasonable noise or interference with Landlord's and other tenants' Decorations in the Building (taking into account the nature, extent and time schedule for Tenant's Work). -48- (c) Such license to enter upon the Premises prior to the Commencement Date for the performance of Tenant's Work is conditioned upon Tenant and Tenant's agents, contractors, workmen, mechanics, suppliers and invitees working in harmony and not interfering with Landlord or Landlord's contractors or agents in doing any work in or about the Building, or with other tenants, invitees and occupants of the Building. If at any time such entry shall cause such disharmony or interference or, in Landlord's reasonable judgment, such disharmony or interference is imminent, Landlord shall have the right to withdraw such license upon twenty-four (24) hours' written notice to Tenant. When, in Landlord's reasonable judgment, the cause of such disharmony or interference or imminent potential disharmony or interference ceases to be present, Landlord shall then promptly again grant such license to enter upon the Premises. Tenant agrees that any such entry into and occupation of the Premises shall be deemed to be under all of the terms, covenants, conditions and provisions of this Lease except as to the covenants to pay rent, and further agrees that, except for the negligence or willful acts of Landlord, its beneficiary or any of their respective agents, employees or contractors, Landlord shall not be liable in any way for any injury, loss or damage which may occur to any of Tenant's work or installations made in the Premises or to property placed therein; and, except for the negligence (by act or omission) or willful acts of Landlord, its beneficiary or any of their respective agents, employees or contractors, and except to the extent prohibited by law, Tenant shall protect, indemnify, defend and save Landlord, its beneficiaries and their respective officers, directors, agents, beneficiaries, partners, and employees harmless from and against any and all liabilities, costs, damages, fees and expenses arising out of or in any way connected with the activities of Tenant or its agents, contractors, suppliers or workmen in or about the Premises or Building. To the extent Tenant employs any contractors from time to time to do work in the Premises, Tenant shall cause such contractors to secure and pay for Worker's Compensation, Employers Liability Insurance, and Comprehensive General Liability Insurance in customary forms and amounts reasonably acceptable to Landlord. All policies shall be endorsed to include Landlord and its employees and agents as additional insured parties. Certificates of such insurance shall be delivered to Landlord prior to Tenant commencing any work in the Premises. (d) Subject to Tenant's compliance with the reasonable rules and regulations regarding the use thereof, Landlord shall provide Tenant (unless Tenant elects otherwise as provided below) with the following general conditions at Landlord's scheduled rates: (i) materials management coordination; (ii) reasonable access to freight elevator services and loading docks, free of charge during business hours (weekdays 7:30 a.m. to 5:00 p.m. for loading docks and weekdays 6:00 a.m. to 8:00 p.m. for elevator service) during the completion of the Tenant's Work, and in connection therewith Landlord agrees that it shall use reasonable efforts to accommodate Tenant's construction schedule (Tenant agrees to pay for any after business hours -49- elevator operator charges); (iii) ventilation, temporary electricity and water during the construction period; and (iv) trash removal services from the loading docks of the Building during construction. Landlord's schedule of costs for general conditions as of the date of execution hereof is included in Exhibit "F" attached hereto and made a part hereof; such charges may be revised from time to time to reflect Landlord's increased costs for supplying such items. Tenant shall have the right to supply any general conditions (except to the extent such general conditions are part of the normal operation of the Building and such operation would be disrupted if such general conditions were provided by another party) by itself or through its contractors rather than rely upon or be required to use any services supplied by Landlord, provided, however, in exercising such right, Tenant shall no-. interfere with the operation of the Building. (e) Landlord and Tenant acknowledge that Landlord and its contractors may be performing portions of the Shell and Core Work at the same time that Tenant and its contractors will be performing Tenant's Work. Landlord and Tenant agree to cooperate with each other and to coordinate their respective work, and to use their best efforts to cause their respective contractors to so cooperate and coordinate, so that both the Shell and Core Work and Tenant's Work may proceed expeditiously. 3. Delays in Completion of Tenant's Work. The number of days of ------------------------------------- delay beyond July 1, 1997 in substantially completing Tenant's Work arising out of or on account of any of the following events, except to the extent such events are caused by the act or failure to act of Tenant, shall constitute "Landlord Delays" and the outside date for the Commencement Date as set forth in Article 1 hereof shall be extended one day for each day that any Landlord Delay delays completion of Tenant's Work (and under certain circumstances, Landlord Delays may also result in a rent abatement as described in Article 35(A)(2) hereof): Any delay resulting from Landlord's failure to approve the Plans in a timely manner as required by this Article 35; or (ii) Any delay resulting from Landlord's failure to perform in a timely manner the Shell and Core Work pursuant to Paragraph (A) of this Article 35; or (iii) Provided Tenant and its contractors have used all, reasonable efforts to comply with the provisions of this Article 35(B), any delay resulting from Landlord's revocation of the license under subparagraph B.2(c) of this Article 35 for Tenant's contractors to enter upon the Premises for the construction of Tenant's Work; or (iv) Any other fault of Landlord or its agents, contractors, or representatives in connection with any of the obligations of Landlord set forth in this Article 35 (provided Tenant notifies Landlord in writing within ten (10) days after Tenant first learns of any such delay). -50- 4. Tenant's Move-In. In connection with Tenant's initial occupancy ---------------- of the Premises after substantial completion of Tenant's Work, Tenant shall have the right to reserve reasonable portions of the Building is loading docks and freight elevators (or passenger elevators), subject to scheduling to the mutual reasonable satisfaction of Landlord and Tenant. Such reservation and use of the elevators and loading docks in connection with Tenant's move-in shall be without charge to Tenant, except that Tenant shall pay the cost of any after-hours elevator service (i.e. other than 6:00 a.m. to 8:00 p.m. on weekdays) at Landlord's actual cost (including overhead) in accordance with the rates included in Exhibit "F". 36. EXPANSION OBLIGATIONS. (A) Effective on ***, there shall be automatically added to the Premises demised hereunder approximately *** rentable square feet of space contiguous to the Premises on the *** of the Building (the "First Take-Down Space"), subject to the terms of this Article 36. Effective on ***, there shall be automatically added to the Premises demised hereunder approximately *** rentable square feet of space contiguous to the Premises on the *** of the Building (the "Second Take-Down Space"), subject to the terms of this Article 36, which Second Take- Down Space is in addition to the First Take-Down Space. The exact size, location and configuration of the First Take-Down Space shall be reasonably determined by Tenant, provided the remaining balance of the space (being the Second Take-Down Space) is of a leasable and appropriate configuration and the exact size, location and configuration of the Second Take-Down Space shall be determined by Landlord, the rentable area set forth above for each Take-Down Space being an estimate only; however, it is the parties' intent that after the addition of the Second Take-Down Space, the Premises shall consist of approximately *** rentable square feet, being the *** of the Building. (B) Each of the Take-Down Spaces shall be added to the Premises on all of the terms, covenants and conditions of this Lease, including the payment of Base Rent and rent adjustments pursuant to Articles 3 and 4 hereof, except for Articles 34, 35 and 39 hereof. The Base Rent Schedule set forth in Article 3 and the Tenant's Proportionate Share set forth in Article 4 are inclusive of Tenant's obligation to pay Base Rent and rent adjustments for each of the Take- Down Spaces; however, if the rentable square footage of any Take-Down Space is other than as set forth above, then Landlord and Tenant shall enter into an amendment to this Lease reflecting the actual square footage and adjusting the Base Rent and Tenant's Proportionate Share accordingly. (C) Notwithstanding anything in this Lease to the contrary, Tenant agrees to accept each Take-Down Space in an "as is" broom clean condition (excluding furniture and equipment) _____________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -51- as existing on the date such space is added to the Premises; provided, however, Landlord agrees to make Available to Tenant, at Tenant's option, an improvement allowance ("Take-Down Improvement Allowance") in an amount not to exceed to (i) with respect to the First Take-Down Space, $*** per rentable square foot of such First Take-Down Space, and (ii) with respect to the Second Take-Down Space, $*** per rentable square foot of such Take-Down Space, to be applied toward payment of costs of alterations, additions and improvements, made to such Take- Down Space by Tenant (including, without limitation, fees for design, architectural and engineering drawings). Landlord shall disburse such Take-Down Space Improvement Allowance to or on behalf of Tenant on the same terms and conditions as applicable to the disbursement of Landlord's Contribution with respect to Tenant's original construction of the Premises as provided in Article 34 hereof. It is a condition to Landlord's obligation to pay any portion of the Take-Down Improvement Allowance that Tenant has increased the amount of the Letter of Credit as described in Article 32. (D) Tenant may, at its option, add either of the Take-Down Spaces to the Premises on, the terms set forth in this Article 36, on a date which is earlier than the date set forth above for the automatic take-down of such space, upon delivery at least one hundred twenty (120) days prior written notice to Landlord. In such event, Landlord and Tenant agree to enter into an amendment to this Lease reflecting the addition of such Take-Down Space within 90 days after Landlord advises Tenant of the final size, location and configuration of such Take-Down Space, and in such event, in lieu of the Take-Down Improvement Allowance described in subparagraph (C), the amount of the Take-Down Improvement Allowance shall be equal to the product of (i) $*** per rentable square foot of such Take-Down Space by (ii) the number of Lease Years (including fractions thereof rounded to the nearest one-twelfth) remaining in the initial Term. 37. OPTIONS TO EXTEND TERM. Subject to the terms of this Article 37, the Term may be extended, at the option of Tenant, for *** successive periods of *** years each, each such period being herein sometimes referred to as an "Extended Term" (and constituting part of the "Term"), as follows: (A) Each option to extend the Term for an Extended Term must be exercised by Tenant by (1) delivery to Landlord, not more than *** months and not less than *** months, prior to the commencement of the applicable Extended Term, of a non-binding written notice of Tenant's good faith intent to exercise such option and (2) delivery to Landlord of a binding written notice exercising such option no less than *** months prior to the commencement of the applicable Extended Term; provided, however, in no event shall such binding written notice be required to be delivered earlier than fifteen (15) days after the final determination of Extension Term Rent pursuant to Paragraph (D) below and, if applicable, Article 38 hereof. Tenant shall not have the right to extend the Term beyond the last day of the *** full calendar month of the ______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -52- Term (as extended pursuant to this Article 37). Any termination of this Lease or any termination of Tenant's right of possession hereunder during the initial Term hereof or during an Extended Term shall terminate all rights to extend granted hereunder. If Tenant shall fail to give Landlord timely notice of its exercise of an option herein contained or, in the case of the second option to extend, if Tenant shall fail to exercise such first option to extend, Tenant shall be deemed to have waived such option to extend the Term hereof and such option and subsequent option, if any, shall thereupon become null and void. (B) Each Extended Term shall be on the same terms, covenants and conditions of this Lease, except for the provisions of Articles 33, 34, 35 and 39 hereof, and except for the determination of Base Rent as hereinafter provided. The provisions of Article 4 hereof providing for the payment of rent adjustments with respect to increases in Operating Expenses and Ownership Taxes shall be applicable to any Extended Term, provided that the Base Year used in the calculation of such rent-adjustments in any Extended Term shall be the calendar year in which such Extended Term begins. -- (C) The Base Rent during any Extended Term (herein referred to as "Extension Term Rent") shall be at a rate equal to the Fair Market Rent (as defined in Article 38 hereof) during each Extended Term, which Fair Market Rent shall be calculated in advance but as of the first day of the applicable Extended Term rather than as of the date such calculation is made; provided, however, that the calculation so made shall be final and shall not be remade on the first day of any such Extended Term. The calculation shall reflect the full length of the Extended Term, and shall be recalculated for any subsequent Extended Term. (D) Landlord shall provide Tenant with Landlord's calculation of Fair Market Rent, no later than one month after delivery of Tenant's non-binding written notice under Paragraph (A) above. If Tenant notifies Landlord in writing within ten (10) days after delivery of Landlord's calculation of the Fair Market Rent that Tenant contests Landlord's calculation and the parties cannot within ten (10) days after delivery of such notice by Tenant ("the Negotiation Period") reach agreement on the Fair Market Rent payable during any such Extended Term, then the Fair Market Rent shall be determined in accordance with the procedures set forth in Article 38 hereof. (E) Tenant may extend the Term only as to all of the Premises as are demised to Tenant on the date of Tenant's exercise of such applicable option to extend. (F) Tenant's rights to exercise its option to extend the Term of this Lease for any Extended Term are subject to the condition that Tenant is not in monetary default or in default under any of the other material terms, covenants or conditions of this Lease at the time that Tenant delivers its written notice to Landlord of the exercise of any such option to extend for an Extended Term, or upon the commencement of such Extended Term unless Landlord, in its absolute discretion, elects in writing to waive such condition to the effective exercise of the opt-- -53- ion (provided the foregoing shall not affect or limit Landlord's rights to enforce any defaults of Tenant pursuant to Article 15 hereof). Notwithstanding the foregoing, if the existence of any such default shall, pursuant to the foregoing, make ineffective the exercise of such option, such exercise shall nevertheless become effective as of the originally scheduled date if such default is cured within the earlier of (i) any applicable cure or grace period specified in Article 15 hereof or (ii) thirty (30) days after delivery of notice of such default by Landlord to Tenant. (G) In the event Tenant exercises any option pursuant to this Article 37, Tenant shall accept the Premises in "as is" condition. (H) In the event Tenant exercises any option pursuant to this Article 37, Tenant and Landlord agree to enter into an amendment to this Lease setting forth the terms applicable to such Extended Term within ninety (90) days after the date Tenant gives binding notice of its exercise of an option to extend the Term of this Lease for an Extended Term. (I) The options to extend granted pursuant to this Article 37 are personal to 21st Century Cable TV, Inc. (and any Successor or Affiliate to whom this entire Lease has been assigned in compliance with Article 12) and may not be exercised by or for the benefit of any other party. Any termination of this Lease or of Tenant's right to possession under this Lease shall extinguish and cancel all rights of Tenant under this Article 37. 38. FAIR MARKET; ARBITRATION PROCEDURES. (A) "Fair Market Rent" for the Premises with respect to any Extended Term shall mean the fair rental, as of the date for which such Fair Market Rent is being calculated, per annum per rentable square foot for comparable space for a comparable term, by reference to comparable space with a comparable use in the Building, and in other buildings comparable to the Building in quality and location, but excluding those leases where the tenant has an equity interest in the property. The Fair Market Rent shall be determined on the basis of a fixed base rent per square foot without rent adjustments of any kind (other than rent adjustments with respect to increases in Operating Expenses and ownership Taxes as provided in Article 4 hereof and, with respect to Fair Market Rent for any Extended Term, using as a Base Year the calendar year in which the respective Extended Term commences), whether in the nature of CPI adjustments, step increases or otherwise (the economic value of any such adjustments then customarily applicable in the market to be reflected instead in the determination of such base rent), and taking into account in the calculation of such base rent (as a decrease in the otherwise applicable base rent) any then market tenant improvement allowance or concession, free rent concession, or other concessions, allowances or inducements (other than tenant equity interests in the property) of any kind then customarily available in the market (such concessions, allowances or inducements not to be separately stated or paid with respect to any Extended Term). -54- (B) In the event Tenant disagrees with Landlord's determination of. Fair Market Rent at any time and the parties thereafter reach agreement on such Fair Market Rent (and resulting Extension Term Rent) during any Negotiation Period described in Article 37 hereof, such Fair Market Rent (and resulting Extension Term Rent) shall be reflected in the lease amendment required to be executed by Landlord and Tenant pursuant to Article 37 hereof. (C) In the event Landlord and Tenant are unable to reach agreement on the calculation of Fair Market Rent during any Negotiation Period described in Article 37 hereof, then in any such event the Fair Market Rent shall be determined in accordance with the following arbitration procedures: (i) within five (5) days after the expiration of any such Negotiation Period, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimate is not more than *** percent of the lower of such estimates, then the Fair Market Rent shall he the average of the two estimates. Otherwise, within five (5) days after such exchange of estimates, either Landlord or Tenant may submit the question to arbitration in accordance with clause (ii) below, by delivery of written notice to the other exercising such right within such five (5) day period. (ii) within seven (7) days after receipt of such notice, Landlord and Tenant shall select, to act as an arbitrator, an independent MAI appraiser with experience in real estate activities, including at least ten (10) years' experience in appraising office space in the downtown Chicago area. If the parties cannot agree on such an appraiser, each party shall then within a period of seven (7) days thereafter select an independent MAI appraiser meeting the previously-described criteria, and within a third period of seven (7) days after the appointment of the last of the two appraisers to be appointed, the two appointed appraisers shall select a third appraiser meeting the aforementioned criteria, and all three of such appraisers shall independently determine the Fair Market Rent (each such independent determination of the Fair Market Rent shall be called an "Appraised Rent"). if one party shall fail to make an appointment of an appraiser within the foregoing seven (7) day period, then the appraiser chosen by the other party shall choose the other two appraisers. (iii) once the appraiser (or appraisers if the parties cannot agree on a single appraiser) has been selected as provided in clause (ii) above, then, as soon thereafter as practicable but in any case within fourteen (14) days after the selection of such appraiser (or the last of such appraisers, as the case may be) the single appraiser's Appraised Rent or the average of the two closest Appraised Rents (in the case of more than one appraiser) shall he calculated in accordance with the criteria described in Paragraph (A) of this Article 38 (such average shall be called the "Average Appraised Rent") a.-id the appraiser (or appraisers, as the case may be) shall ______________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -55- select one of the two estimates of Fair Market Rent submitted by Landlord and Tenant pursuant to Article 38(C)(i), which shall be the one that is closer to the Appraised Rent or Average Appraised Rent, as the case may be. Landlord and Tenant agree that the estimates submitted by Landlord and Tenant to each other shall not be furnished to the appraisers) until the appraisers have informed Landlord and Tenant of the Appraised Rent or Average Appraised Rent, as the case may be, as determined by them. The value so selected shall be the Fair Market Rent. The decision of the appraisers) as to the Fair Market Rent shall be submitted in writing to, and be final and binding on, Landlord and Tenant. Landlord and Tenant shall share equally the costs of the appraisers who participated in the foregoing procedure. Any fees of any counsel engaged directly by Landlord or Tenant, however, shall be borne by the party obtaining such counsel. 39. TEMPORARY SPACE. As an accommodation to Tenant, Landlord shall make available, at the request of Tenant, for Tenant's occupancy for the conduct of its business up to approximately 5,000 rentable square feet of temporary space in the Building, which temporary space is more fully shown and described on Exhibit "G" attached hereto and made a part hereof, commencing on February 1, 1997, but extending not later than the Commencement Date. All of the covenants and conditions of the Lease shall be binding upon Tenant in respect of its use and possession of such temporary space, except that: (i) Tenant agrees to accept such space in "as is" condition as existing on the date such space is made available to Tenant; and (ii) Tenant shall not be obligated to pay to Landlord any rent in respect of such space (other than housekeeping and janitorial charges and utility charges, which may be billed directly to Tenant or allocated to Tenant on a proportional basis as reasonably determined by Landlord). 40. ROOFTOP EQUIPMENT. (A) Tenant may at any time during the Term, including any Extended Term, at its sole cost and expense, locate, install and maintain on those certain antennae platforms located on the roof' of the Building on the second and thirteenth floors, northwest side, of the Building (collectively, the "Roof"), as the location of such platforms is more fully shown and described in Exhibit "H" attached hereto, satellite antennae or dishes or other similar communication devices from time to time (the "Antennae"), subject to the reasonable approval of Landlord with respect to size, location, method of installation, and screening (to the extent such is necessary to avoid unsightly installation of such Antennae). Tenant shall pay rent for the use of such antennae platforms on the Roof as follows: -56- Lease Year Annual Rent Monthly Installment ---------- ----------- ------------------- *** *** *** Such rent shall be additional rent due under this Lease payable at the same time and manner as Base Rent. (B) In connection with the installation of the Antenna, Tenant shall have the right at its sole cost and expense to connect such Antennae to the Premises demised hereby by appropriate cables in locations reasonably designated by Landlord and subject to such reasonable rules and regulations as may be unposed by Landlord from time to time. Landlord agrees to make available to Tenant riser space as is reasonable and necessary for such connection of the Antennae to the Premises. The location, installation, operation and maintenance of the Antennae shall (i) conform to all applicable zoning and other applicable governmental guidelines, laws, codes, rules, regulations, ordinances and licensing requirements in effect from time to time as well as all reasonable architectural standards established by Landlord from time to time and any other requirements or conditions applicable to such installation or maintenance; (ii) be subject to and completed in accordance with the terms and conditions of Article 8 hereof and be performed in such manner so as to maintain all warranties on the Roof and not affect the structural components of the Roof and shall be coordinated through Landlord; (iii) be located on that part of the Roof as Landlord may from time to time designate away from the perimeter of the Roof (as such initial location is shown on Exhibit "F") so as not to be visible from street level); provided that (a) Landlord shall reasonably cooperate with Tenant in locating such items so that they shall be useable and useful for their intended purposes, and (b) Landlord may from time to time require Tenant-to relocate any or all of such items to another portion or other portions of the Roof, at Landlord's sole cost and expense, so long as such relocation does not unreasonably interfere with Tenant's use thereof; and (iv) not unreasonably interfere with the use of any other communications equipment installed on the Roof -from time to time by Landlord or other tenants in the Building (and Landlord agrees not to grant to other tenants of the Building or third parties the right to install antennae or equipment on the Roof so as to adversely affect the Antennae of Tenant or the operation thereof and to require any such other tenants hereafter permitted to install similar equipment to agree not to unreasonably interfere with the use of any such communications equipment installed by other tenants, including Tenant, of the Building). __________________ *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. -57- Tenant shall promptly repair and restore, in a manner consistent with any warranties, any damage to the Roof or the Building resulting from or arising out of Tenant's installation, operation, maintenance and repair of the Antennae and other equipment of Tenant pursuant hereto and protect, indemnify, defend and hold Landlord and Landlord's beneficiaries and any other owner or owners of the Building and their beneficiaries, and all of their respective officers, directors, partners, agents and employees, harmless from and against any liabilities, damages, costs, claims, and expenses arising out of or in connection with Tenant's activities under this Article 40. (C) Tenant agrees that upon expiration of the Term hereof it will promptly remove any such Antennae and equipment and conduits, cables and other facilities connecting such Antennae and equipment to the Premises demised hereby, and repair and restore, in a manner consistent with any warranties, any damage caused to the Roof, the Building or the Property in connection with such installation or removal. Tenant and Landlord shall have continuing access to all areas of the Roof of the Building. Upon prior notice to Tenant, Landlord shall have the right, at Landlord's expense, to remove the Antennae and/or relocate the Antennae from time to time as may be necessary or desirable for the maintenance or repair of the Roof, provided that Landlord coordinates with Tenant the timing and location and uses reasonable efforts to mitigate any unreasonable interruption of Tenant's satellite services. 41. COVENANT OF QUIET ENJOYMENT. Landlord covenants that Tenant, upon paying the Base Rent, rent adjustments and other payments provided for herein, and upon keeping, observing and performing all other terms, covenants, conditions and agreements herein contained on the part of Tenant to be kept, observed and performed, shall, during the Term, as extended, peaceably and quietly have, hold and enjoy the Premises subject to the rights of any mortgagee and the terms, covenants, conditions and agreements hereof free from hindrance by Landlord or any other person claiming by, through or under Landlord. 42. ENTIRE AGREEMENT. Except as expressly otherwise provided herein, this Agreement, together with all of the exhibits attached hereto, constitutes the entire understanding between Landlord and Tenant as to the subject matter hereof and supersedes all prior agreements between the parties hereto about such matters, and all of the representations and obligations of Landlord and Tenant are contained herein. -58- 43. TRUSTEE CLAUSE. It is expressly understood and agreed that this Lease is executed on behalf of LASALLE NATIONAL BANK, not personally but as Trustee aforesaid, in the exercise of the power and authority conferred upon and invested in it as such Trustee, and under the direction of the beneficiaries of a certain Trust Agreement dated March 1, 1967, as extended, and known as Trust No. 36223. It is further expressly understood and agreed that LASALLE NATIONAL BANK, as Trustee aforesaid, has no right or power whatsoever to manage, control or operate said real estate in any way or to any extent and is not entitled at Any time to collect or receive for any purpose, directly or indirectly, the rents, issues, profits or proceeds of said real estate or any lease or sale or any mortgage or any disposition thereof. Nothing in this Lease contained shall be construed as creating any personal liability or personal responsibility of the Trustee or any of the beneficiaries of the Trust, or any of their respective officers, directors, beneficiaries, partners, agents, and employees, 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 expressly or impliedly herein contained, or to keep, preserve or sequester any property of said Trust or for said Trustee to continue as said Trustee; and that so far as the parties herein are concerned the owner of any indebtedness or liability accruing hereunder shall look solely to and attempt to collect solely from the trust estate from time to time subject to the provisions of said Trust Agreement for payment thereof, Tenant hereby expressly waiving and releasing said personal liability and personal responsibility of the Trustee and any of the beneficiaries of the Trust, and any of their respective officers, directors, beneficiaries, partners, agents and employees on behalf of itself and all persons claiming by, through or under Tenant. -59- IN TESTIMONY WHEREOF, the parties hereto have caused this instrument to be executed in duplicate as of the day and year first above written. TENANT: LANDLORD: 21ST CENTURY CABLE TV, INC. LASALLE NATIONAL BANK, not individually but as Trustee under a Trust Agreement dated March 1, 1967, as extended, and known as Trust No. 36223, as aforesaid By: /s/ Glenn Milligan By: /s/ -------------------------- ------------------------- Its: President & CEO Its: Senior Vice President ------------------------- ------------------------ -60- CERTIFICATE (If Tenant is a Corporation) I, _______________________________, ___________________ Secretary of ___________________________________________, Tenant, hereby certify that the foregoing Lease has been authorized by all necessary corporate action on behalf of Tenant, the officer(s) executing the foregoing Lease on behalf of Tenant was/were duly authorized to act in his/their capacities as and his/their action(s) are the action of Tenant. _________________________ ______________ Secretary (Corporate Seal) -61- EX-21.1 7 EXHIBIT 21.1 EXHIBIT 21.1 SUBSIDIARIES OF 21ST CENTURY TELECOM GROUP, INC.
NAME OWNERSHIP STATE OF INCORPORATION 21st Century Cable TV of Illinois, Inc. Wholly-owned Illinois 21st Century Telecom of Illinois, Inc. Wholly-owned Illinois
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