EXHIBIT NUMBER (10)(xvi)(3)
TO 1995 FORM 10-K
GG8224A-348/mbr
5/11/88
THIRD AMENDMENT TO AGREEMENT OF LEASE
-------------------------------------
THIS AMENDMENT, made and entered into as of May 20, 1988 by and
between American National Bank and Trust Company of Chicago, as Trustee under
Trust Agreement, dated August 21, 1985 and known as Trust 65287 ("Landlord")
and The Northern Trust Company, an Illinois banking corporation ("Tenant").
WITNESSETH: THAT
WHEREAS, Landlord and Tenant are parties to a certain Agreement of
Lease dated as of August 27, 1985; and
WHEREAS, the Agreement of Lease was amended by that certain First
Amendment to Agreement of Lease dated as of August 15, 1986 and by that certain
Second Amendment to Agreement of Lease dated as of August 6, 1987 (as so
amended, the "Lease"); and
WHEREAS, Landlord and Tenant desire to further amend the Lease as
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The following is inserted at the end of, and as part of, the last
full paragraph of Xxxxxxxxx 0X of the Lease:
"Notwithstanding Tenant's right to exclude certain portions of the Premises
from the Plans for improvement at a future date (the "Excluded Space"), the
Term (as defined in Paragraph 3 hereof) of this Lease shall be deemed to
have commenced as to the Excluded Space on the earlier to occur of (a) the
date Tenant has received the certificate of the Architect that the Building
has been substantially completed and Tenant has received the certificate of
the Architect and Tenant's Space Planner that the Premises other than the
Excluded Space have been substantially completed pursuant to the Plans; or
(b) the date Tenant takes occupancy of the Excluded Space."
2. The last three lines of Paragraph 6 of the Lease are hereby
deleted, and the following inserted in lieu thereof:
"and, provided further, Tenant has delivered to Landlord certificates
evidencing insurance (which insurance shall in all respects and at all
times comply with the provisions of Paragraph 17C hereof) against any
liability of Landlord arising from serving of alcoholic beverages in the
Premises."
3. Paragraph 21 of the Lease is hereby deleted, and the following
inserted in lieu thereof:
"21. Subordination. This Lease shall be prior to any mortgage or ground or
underlying lease, provided, however, Tenant agrees to subordinate its
rights hereunder at all times to (i) the lien of any mortgage or mortgages
designated by Landlord and all advances made or thereafter made upon the
security thereof, and (ii) to all future ground or underlying leases of the
Land and the Building designated by the Landlord and to execute any such
agreements evidencing such subordination as may be required by the
mortgagee or ground or underlying lessor, as the case may be, and to attorn
to and to recognize, as Landlord, the purchaser at a foreclosure sale or
the mortgagee or its nominee in the event the mortgagee or such nominee
accepts a deed in lieu of foreclosure, or the ground or underlying lessor
in the event of termination of such underlying or ground lease in return
for and upon delivery to Tenant by such purchaser or such mortgagee or its
nominee or the ground or underlying lessor, as the case may be, of an
agreement providing that in the event of a foreclosure of such mortgage or
the giving of the deed in lieu of foreclosure or a termination of such
ground or underlying lease, this Lease shall not be terminated and Tenant
may remain in possession of the Premises pursuant to the terms of this
Lease and retain all the rights, options and privileges granted to it
hereunder as long as Tenant is not in default hereunder and continues to
perform its obligations hereunder and further providing that the purchaser
at a foreclosure sale or transferee in the case of a deed given in lieu of
foreclosure or ground or underlying lessor, as the case may be, will assume
all of the obligations of the Landlord in such case; provided, however,
that in no event shall the mortgagee, said purchaser at a foreclosure sale,
said transferee in the case of a deed given in lieu of foreclosure or
ground or
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underlying lessor, as the case may be, have any personal liability
whatsoever hereunder for its own acts or omissions or obligations; and
further provided that the mortgagee, said purchaser at a foreclosure sale
or said transferee in the case of a deed given in lieu of foreclosure or
ground or underlying lessor, as the case may be, shall also have no
personal liability for the acts or omissions or obligations of Landlord
arising or to be performed prior to any such sale or transfer of the Land
or Building to such party including, without limitation, any liability for
any deposits made by the Tenant hereunder, unless such deposits have been
transferred to such party; and provided, further, that the mortgagee, said
purchaser at a foreclosure sale, said transferee in the case of a deed
given in lieu of foreclosure or ground or underlying lessor, as the case
may be, shall be subject to any offsets or defenses which Tenant might have
against any prior Landlord pursuant to Tenant's rights as set forth in
Paragraph 35 hereof. Such agreement may, among other things, require the
Tenant to notify the mortgagee or the ground or underlying lessor of any
default by the Landlord and afford such a mortgagee a reasonable
opportunity to cure such default prior to any termination of this Lease by
Tenant provided that the Premises are reasonably usable by Tenant for its
normal business activities. Tenant further agrees that, except as to
secondary mortgage financing expressly permitted in such mortgage or ground
or underlying lease, it will not, without the consent of the mortgagee or
ground or underlying lessor, as the case may be, voluntarily subordinate
this Lease to any lien or encumbrance without the consent of said mortgagee
or ground or underlying lessor, as the case may be. To fulfill Tenant's
obligations under the provisions of this Paragraph 21, Tenant agrees that
it will execute a Subordination, Non-Disturbance and Attornment Agreement
in the form attached to this Lease as Exhibit G."
4. The second full paragraph of Paragraph 25 of the Lease is hereby
deleted, and the following inserted in lieu thereof:
"The term "Landlord" as used in this Lease means only the owner or the
mortgagee in possession (including anyone claiming any title or any
interest in the Land or the Building by, through or under said mortgagee)
for the time being of the Land and the Building (or the owner of a lease of
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the Building or of the Land and the Building) of which the Premises form a
part, so that in the event of any sale or sales (including a sale or
transfer arising by virtue of a foreclosure of any mortgage of the Land or
the Building or any deed given in lieu of foreclosure thereof) of the Land
and the Building or of said lease, or in the event of a lease of the
Building, or the Land and the Building, except for the obligations set
forth in Xxxxxxxxx 00, Xxxxxxxx shall be and hereby is entirely free and
relieved of all covenants and obligations of Landlord thereafter to be
performed hereunder, provided any purchaser, transferee or lessee of the
Building, or of the Building and the Land has, subject to the provisions of
Paragraph 21 hereof, assumed and agreed to carry out any and all covenants
and obligations of Landlord hereunder thereafter to be performed."
5. The following sentence is hereby added at the end of and as a part
of Paragraph 36B of the Lease:
"Notwithstanding the foregoing provisions of this paragraph, Tenant shall
have no right to terminate this Lease as aforesaid provided in the event
Landlord's interest in the Land or Building or this Lease, or all of the
aforesaid, is transferred and Landlord or its affiliate does not remain the
developer and manager of the Building, all as a result of a mortgage
foreclosure sale of any mortgage of the Land or the Building or a deed
given in lieu of foreclosure thereof during the period commencing on the
date of execution of this Lease and expiring one (1) year after the
Commencement Date of this Lease."
6. The following sentence is inserted at the end of and as part of
Paragraph 43C of the Lease:
"Further, the rights of Tenant and restrictions set forth in this Paragraph
43 shall also not apply to any sale or transfer of the Land or Building
pursuant to a mortgage foreclosure sale of any mortgage of the Land or
Building or any deed given in lieu of foreclosure thereof but shall
thereafter apply to any transfer by the purchaser who took title at said
mortgage foreclosure sale including the holder of said mortgage or its
nominee who took title by virtue of said mortgage foreclosure sale or deed
in lieu of foreclosure thereof."
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7. As amended herein, the Lease shall remain in full force and effect
and, except as expressly amended herein, shall be unaffected hereby. In the
event of any conflict between the provisions of this Amendment and the
provisions of the Lease, the provisions of this Amendment shall control.
8. This Third Amendment to Agreement of Lease is executed by American
National Bank and Trust Company, not personally, but in the exercise of the
power and authority conferred upon and vested in it as Trustee. It is expressly
understood and agreed that nothing herein shall be construed as creating any
liability whatsoever against Trustee personally; and in particular, without
limiting the generality of the foregoing, there shall be no personal liability
to pay any indebtedness accruing hereunder or to perform any covenant, either
express or implied, herein contained, or to keep, preserve, or sequester any
property and all personal liability of every sort, if any, is hereby expressly
waived by said Tenant, and by every person now or hereafter claiming any right
or security hereunder; and that, so far as the Trustee is concerned, the owner
of any indebtedness or liability accruing hereunder shall look solely to the
assets of said property and the proceeds thereof for the payment thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, not individ-
ually, but solely as Trustee under
Trust Agreement dated August 21,
1985 and known as Trust No. 65287
By: /s/ J. XXXXXXX XXXXXX
------------------------------
Title: Vice President
-----------------------
Attest:
/s/ XXXXXXX XXXXXXXX
-----------------------------------
Asst. Secretary
TENANT:
THE NORTHERN TRUST COMPANY
By: /s/ XXXXXXX XXXXXX
------------------------------
Title: Vice President
Attest:
/s/ XXXX X. XXXXXX
-----------------------------------
Secretary
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(TRUSTEE ACKNOWLEDGMENT)
STATE OF )
) SS
COUNTY OF )
I, KULA DAVIDSON, a Notary Public in and for said County in the State
aforesaid, DO HEREBY CERTIFY THAT J. XXXXXXX XXXXXX and XXXXXXX XXXXXXXX
personally known to me and known by me to be the Vice President and Assistant
Secretary, respectively, of American National Bank and Trust Company, in whose
name, as Trustee, the above and foregoing instrument is executed, appeared
before me this day in person and acknowledged that they signed and delivered the
said instrument as their free and voluntary act and as the free and voluntary
act of said American National Bank and Trust Company, as Trustee as aforesaid,
for the uses and purposes therein set forth, and the said Vice President and
Assistant Secretary then and there acknowledged that they, as custodian of the
corporate seal of said American National Bank and Trust Company did affix the
said corporate seal to said instrument as their free and voluntary act and as
the free and voluntary act of said American National Bank and Trust Company, as
Trustee as aforesaid, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this seventh day of July, 1988.
/s/ KULA DAVIDSON
---------------------------------
Notary Public
My Commission Expires:
----------------------------------
____________________________________
| "OFFICIAL SEAL" |
| Kula Davidson |
| Notary Pubic, State of Illinois |
| My Commission Expires 12/26/90 |
|__________________________________|
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(DOMESTIC CORPORATION ACKNOWLEDGEMENT)
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, XXXXXXXX XXXXXX, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY THAT XXXXXXX XXXXXX and XXXX X. XXXXXX
personally known to me to be the Vice President and Secretary, respectively, of
The Northern Trust Company, an Illinois banking corporation, and personally
known to me to be the same persons whose names are subscribed to the foregoing
instrument, appeared before me this day in person and severally acknowledged
that they signed and delivered the said instrument as Vice President and
Secretary of said corporation, and caused the corporate seal of said corporation
to be affixed thereto, pursuant to the authority given by the Board of Directors
of said corporation, as their free and voluntary act and as the free and
voluntary act and deed of said corporation, for the uses and purposes therein
set forth.
GIVEN under my hand and Notarial Seal this 20th day of May, 1988.
/s/ Xxxxxxxx Xxxxxx
---------------------------------
Notary Public
My Commission Expires:
7-25-91
----------------------------------
________________________________________
| "OFFICIAL SEAL" |
| Xxxxxxxx Xxxxxx |
| Notary Public, Xxxx County, Illinois |
| My Commission Expires July 25, 1991 |
|_______________________________________|
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CONSENT TO AMENDMENT
The undersigned, Madison Plaza II Partnership, the sole beneficiary of
Landlord and a joint obligor with Landlord with respect to certain covenants
imposed upon Landlord pursuant to the Lease, and Mellon Bank, N.A., a national
banking association, the collateral assignee of the Lease, hereby consent to the
foregoing Amendment.
MADISON PLAZA II PARTNERSHIP,
an Illinois general partnership
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Xxx X. Xxxxxx, general partner
By: /s/ J. Xxxx Xxxxxxx
-----------------------------------
J. Xxxx Xxxxxxx, general partner
MELLON BANK, N.A., a national
banking association
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Title: Officer
Attest:
/s/ Xxxxx X. Xxxxxx
----------------------------------
Assistant Vice President
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(DOMESTIC CORPORATION ACKNOWLEDGEMENT)
COMMONWEALTH OF PENNSYLVANIA )
) SS.
OF ALLEGHENY )
I, , a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY THAT XXXXX X. XXXXXXXXX and XXXXX X. XXXXXX
personally known to me to be the Officer and Asst. Vice President, respectively,
of Mellon Bank, N.A., a national banking association, and personally known to me
to be the same persons whose names are subscribed to the foregoing instrument,
appeared before me this day in person and severally acknowledged that they
signed and delivered the said instrument as Officer and Asst. Vice President of
said association, and caused the corporate seal of said association to be
affixed thereto, pursuant to authority given by the Board of Directors of said
association as their free and voluntary act and as the free and voluntary act
and deed of said association for the uses and purposes therein set forth.
Given under my hand and Notarial Seal this 24th day of June, 1988.
/s/ Xxxxx Xxxx Xxxxx
----------------------------------
Notary Public
My Commission Expires:
XXXXX XXXX XXXXX, NOTARY PUBLIC
PITTSBURGH, ALLEGHENY COUNTY
MY COMMISSION EXPIRES APRIL 9, 1990
Member, Pennsylvania Association of Notaries
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GG8228A-348/mbr
5/11/88
EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made this day of , 19 between The Northern
Trust Company, an Illinois banking corporation with offices at
(hereinafter called "Tenant"), CIGNA Investments, Inc., a Connecticut
corporation having its principal office and place of business at 000 Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx or its nominee (hereinafter called
"Lender"), and American National Bank and Trust Company of Chicago, not
personally, but as Trustee under Trust Agreement dated August 21, 1985 and known
as Trust No. 65287 (hereinafter referred to as "Landlord").
WITNESSETH:
----------
WHEREAS, the Tenant has entered into a certain lease (the "Lease") dated
, with Landlord covering premises within a certain building known
as (the "Premises"); and more particularly described in
Exhibit "A" attached hereto and incorporated herein; and
WHEREAS, the Lender has agreed to make a loan secured by a mortgaged (the
"Mortgage") to the Landlord, (is currently the holder of a mortgage covering the
Premises pursuant to a Mortgage Deed dated , and recorded
in Mortgage Book , Page in (the "Mortgage")
securing a loan to the Landlord); and
WHEREAS, it is to the mutual benefit of the parties hereto that Lender make
such loan to Landlord; and
WHEREAS, it is a condition precedent to obtaining said loan or was a
condition of said loan, that said Mortgage securing said loan be a lien or
charge upon the Premises unconditionally prior and superior to the Lease and
leasehold interest of Tenant; and
WHEREAS, Tenant acknowledges when it is recorded that said Mortgage
constitutes, or will constitute, a lien or charge upon the Premises which is, or
should be, unconditionally prior and superior to the Lease and leasehold
interest of Tenant; and
WHEREAS, Lender has been requested by Tenant and by Landlord to enter into
a non-disturbance agreement with Tenant;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto mutually covenant and agree as
follows:
1. The Lease and any extensions, renewals, replacements or modifications
thereof, and all of the right, title and interest of the Tenant in and to said
Premises are and shall be subject and subordinate to the Mortgage and to all of
the terms and conditions contained herein, and to any renewals, modifications,
replacements, consolidations and extensions thereof; and, pursuant to Paragraph
43C of the Lease, Lender may exercise its right to purchase the Premises
pursuant to the Mortgage before Tenant may exercise its right to purchase the
Premises pursuant to Paragraph 43 of the Lease. In the event that Lender shall
not elect to exercise its prior right to purchase the Premises pursuant to the
Mortgage, and Tenant thereafter does elect to purchase the Premises pursuant to
Paragraph 43 of the Lease, then such exercise by Tenant of its right to purchase
the Premises pursuant to Paragraph 43 of the Lease shall in all events be
subject and subordinate to the terms and conditions of the Mortgage. Tenant
agrees that Tenant's right to purchase the Premises set forth in Paragraph 43 of
the Lease shall not apply to any transfer of the Premises pursuant to a mortgage
foreclosure sale or deed given in lieu of foreclosure thereof. Lender agrees
that Tenant's right to purchase the Premises as set forth in Paragraph 43 of the
Lease shall apply to (a) any subsequent transfer by Lender of the Premises in
the event Lender has acquired title to the Premises pursuant to Lender's right
to purchase the Premises as set forth in the Mortgage (and in the event Tenant
does so then exercise its right to purchase the Premises, such exercise shall in
all events be subject and subordinate to the Mortgage if said Mortgage is then
in effect); and (b) any subsequent transfer by the purchaser who took title to
the Premises at said mortgage foreclosure sale including the holder of the
Mortgage or its nominee who took title by virtue of said mortgage foreclosure
sale or deed in lieu of foreclosure thereof (and in the event Tenant does so
then exercise its right to purchase the Premises, such exercise shall in all
events be subject and subordinate to the Mortgage if said Mortgage is then in
effect).
2. Lender consents to the Lease and, in the event of foreclosure of said
Mortgage, or in the event Lender comes into possession or acquires title to the
Premises as a result of the enforcement of foreclosure of the Mortgage or the
note secured thereby, or as a result of any other means, Lender agrees to
recognize Tenant and
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further agrees that it will not terminate the Lease nor disturb Tenant's
possession of the Premises so long as Tenant is not in default under any of the
terms, covenants or conditions of the Lease.
3. Tenant agrees with Lender that if the interests of Landlord in the
Premises shall be transferred to and owned by Lender by reason of foreclosure or
other proceedings brought by it, or any other manner, or shall be conveyed
thereafter by Lender or shall be conveyed pursuant to a foreclosure sale of the
Premises (and for purposes of this paragraph, the term "Lender" shall be deemed
to include any grantee of the lender or purchaser at foreclosure sale), Tenant
shall be bound to Lender under all of the terms, covenants and conditions of the
Lease for the balance of the term thereof remaining and any extensions or
renewals thereof which may be effected in accordance with any option therefor in
the Lease, with the same force and effect as if Lender were the Landlord under
the Lease, and Tenant does hereby attorn to Lender as its Landlord, said
attornment to be effective and self-operative without the execution of any
further instruments on the part of any of the parties hereto immediately upon
Lender succeeding to the interest of the landlord in the Premises. Tenant
agrees, however, upon the election of and written demand by Lender within twenty
(20) days after Lender receives title to the Premises, to execute an instrument
reasonably satisfactory in form and substance to Tenant, in confirmation of the
foregoing provisions, in which Tenant shall acknowledge such attornment and
shall set forth the terms and conditions of its tenancy.
4. Tenant and Lender agree that if Lender shall succeed to the interest of
Landlord under the Lease, Lender shall assume all of the obligations of the
Landlord under the Lease which arise and are to be performed by the landlord
prior to and during the period Lender is the Landlord under the Lease; provided,
however, that in no event shall the Lender (a) have any personal liability
whatsoever under the Lease for the performance of the Landlord's obligations
thereunder (whether such performance or failure of performance shall be that of
Lender or any prior Landlord), or (b) bound by an security deposit which Tenant
may have paid to any prior landlord, unless such deposit is in an escrow fund
available to Lender, or (c) be bound by any amendment or modification of the
Lease made without Lender's consent. Tenant further agrees with Lender that
except as to secondary mortgage financing expressly permitted in the Mortgage,
Tenant will not voluntarily subordinate the Lease to any lien or encumbrance
without Lender's consent, and in no event shall Tenant voluntarily subordinate
the Lease to any lien or encumbrance unless Lender shall have first approved the
form and substance of the instrument by which such
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subordination is accomplished, which approval Lender agrees not to withhold
unreasonably.
5. In the event that the landlord shall default in the performance or
observance of any of the terms, conditions or agreements in the Lease, Tenant
shall give written notice thereof to the Lender and the Lender shall have the
right (but not the obligation) to cure such default. Tenant shall not take any
action with respect to such default under the Lease including without limitation
any action in order to terminate, rescind or void the Lease (provided the
Premises are reasonably usable by Tenant for its normal business activities) or
to withhold any rental thereunder, for a period of 10 days after receipt of such
written notice thereof by the Lender with respect to any such default capable of
being cured by the payment of money and for a period of 30 days after receipt of
such written notice thereof by the Lender with respect to any other such default
(provided, that in the case of any default which cannot be cured by the payment
of money and cannot with diligence be cured within such 30-day period because of
the nature of such default or because Lender requires time to obtain possession
of the Premises in order to cure the default, if the Lender shall proceed
promptly to attempt to obtain possession of the Premises, where possession is
required, and to cure the same and thereafter shall prosecute the curing of
such default with diligence and continuity, then the time within which such
default may be cured shall be extended for such period as may be necessary to
complete the curing of the same with diligence and continuity).
6. This Agreement shall bind and inure to the benefit of the parties
hereto, their successors and assigns. As used herein the term "Tenant" shall
include the Tenant, its successors and assigns; the words "foreclosure" and
"foreclosure sale" as used herein shall be deemed to include the acquisition of
Landlord's estate in the Premises by voluntary deed (or assignment) in lieu of
foreclosure, and the word "Lender" shall include the Lender herein specifically
named and any of its successors and assigns, including anyone who shall have
succeeded to Landlord's interest in the Premises by, through or under
foreclosure of the Mortgage.
7. This Agreement shall be the whole and only agreement between the parties
hereto with regard to the subordination of the Lease and leasehold interest of
Tenant to the lien or charge of the Mortgage in favor of Lender, and shall
supersede and cancel any prior agreements as to such, or any, subordination,
including, but not limited to, those provisions, if any, contained in the Lease,
which provide for the subordination of the Lease and leasehold interest of
Tenant to a deed or deeds of trust or to a mortgage or mortgages to be
thereafter executed, and shall
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not be modified or amended except in writing signed by all parties hereto.
8. The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
IN WITNESS WHEREOF, the parties hereto have placed their hands and seals
the day and year first above written.
Signed and acknowledged in TENANT:
the presence of us:
THE NORTHERN TRUST COMPANY
By
------------------------------------ ------------------------------------
Typed Name: Typed Name:
Title:
Attest:
------------------------------------ -------------------------------
Typed Name: Typed Name:
Title:
LENDER:
CIGNA Investments, Inc.
By
------------------------------------ ------------------------------------
Typed Name: Typed Name:
Title:
Attest:
------------------------------------ -------------------------------
Typed Name: Typed Name:
Title:
LANDLORD:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, as
Trustee aforesaid
By
------------------------------------ ------------------------------------
Typed Name: Typed Name:
Title:
Attest:
------------------------------------ -------------------------------
Typed Name: Typed Name:
Title:
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Exhibit A
(SNDA-MTG)
Description of Premises
-----------------------
Beneficiary's Initials: -----
Lender's Initials: -----
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