exv10w1



 





EXHIBIT 10.1




 

 








HINES VAF WESTWOOD OF LISLE II, L.P.,

as Landlord




AND




SXC HEALTH SOLUTIONS, INC.

as Tenant




 



LEASE AGREEMENT

 






Dated: March 24, 2006




Building: 2441 Warrenville Road, Lisle, Illinois




 

 






 









 







TABLE OF CONTENTS





	 	 	 	 	 	 	 	 	 
	Article	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE 1 REFERENCE DATA AND DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 2 DEMISED PREMISES AND TERM	 	 	3	 
	 
	 	Section 2.1.	 	Demised Premises    	 	 	3	 
	 
	 	Section 2.2.	 	Term    	 	 	3	 
	 
	 	Section 2.3.	 	Tenant’s Entry upon Demised Premises before Commencement	 	 	 	 
	 
	 	 	 	Date       	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 3 RENT AND SECURITY DEPOSIT	 	 	5	 
	 
	 	Section 3.1.	 	Fixed Rent         	 	 	5	 
	 
	 	Section 3.2.	 	Additional Rent      	 	 	5	 
	 
	 	Section 3.3.	 	Past Due Rent     	 	 	5	 
	 
	 	Section 3.4.	 	Security Deposit     	 	 	6	 
	 
	 	Section 3.5.	 	Rent Payments     	 	 	8	 
	 
	 	Section 3.6.	 	Fixed Rent and Tenant’s Expense Charge Abatement     	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 4 TENANT’S SHARE OF OPERATING COSTS AND TAXES	 	 	9	 
	 
	 	Section 4.1.	 	Definitions    	 	 	9	 
	 
	 	Section 4.2.	 	Tenant’s Payment of Operating Costs and Taxes    	 	 	13	 
	 
	 	Section 4.3.	 	Refunds; Other Items     	 	 	15	 
	 
	 	Section 4.4.	 	Controllable Expenses    	 	 	15	 
	 
	 	Section 4.5.	 	Tenant’s Expense Charge Abatement   	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 5 OCCUPANCY OF DEMISED PREMISES	 	 	16	 
	 
	 	Section 5.1.	 	Occupancy of Demised Premises    	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 6 CONDUCT OF BUSINESS BY TENANT	 	 	16	 
	 
	 	Section 6.1.	 	Use of Demised Premises    	 	 	16	 
	 
	 	Section 6.2.	 	Compliance with Laws and Requirements of Public Authorities	 	 	16	 
	 
	 	Section 6.3.	 	Rules and Regulations   	 	 	18	 
	 
	 	Section 6.4.	 	Landlord Compliance    	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 7 COMMON AREA	 	 	19	 
	 
	 	Section 7.1.	 	Control of Common Area    	 	 	19	 
	 
	 	Section 7.2.	 	Parking    	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 8 REPAIRS, ALTERATIONS AND MECHANICS’ LIENS	 	 	20	 
	 
	 	Section 8.1.	 	Repairs     	 	 	20	 
	 
	 	Section 8.2.	 	Alterations    	 	 	21	 
	 
	 	Section 8.3.	 	Mechanics’ Liens     	 	 	22	 
	 
	 	Section 8.4.	 	Indemnification    	 	 	22	 
	 
	 	Section 8.5.	 	Reasonable Consent   	 	 	23	 
	 
	 	Section 8.6.	 	Non-Consent Alterations     	 	 	23	 






i









 






	 	 	 	 	 	 	 	 	 
	Article	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE 9 UTILITIES AND BUILDING SERVICES	 	 	24	 
	 
	 	Section 9.1.	 	Heating, Ventilating and Air Conditioning	 	 	24	 
	 
	 	Section 9.2.	 	Cleaning Service     	 	 	25	 
	 
	 	Section 9.3.	 	Elevator Service     	 	 	25	 
	 
	 	Section 9.4.	 	Electricity     	 	 	25	 
	 
	 	Section 9.5.	 	Interruption of Services     	 	 	27	 
	 
	 	Section 9.6.	 	Overtime Services     	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 10 PROPERTY AND OTHER TAXES	 	 	28	 
	 
	 	Section 10.1.	 	Tenant’s Property        	 	 	28	 
	 
	 	Section 10.2.	 	Increased Value of Improvements     	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 11 INSURANCE AND INDEMNITY	 	 	28	 
	 
	 	Section 11.1.	 	Tenant’s Insurance    	 	 	28	 
	 
	 	Section 11.2.	 	Indemnity and Non-Liability   	 	 	29	 
	 
	 	Section 11.3.	 	Waiver of Subrogation  	 	 	31	 
	 
	 	Section 11.4.	 	Landlord Insurance/Landlord Indemnity    	 	 	32	 
	 
	 	Section 11.5.	 	Landlord’s Negligence    	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 12 DAMAGE BY CASUALTY	 	 	33	 
	 
	 	Section 12.1.	 	Termination of Lease; Repair by Landlord     	 	 	33	 
	 
	 	Section 12.2.	 	Repair by Tenant     	 	 	34	 
	 
	 	Section 12.3.	 	Abatement of Rent; Notices of Status of Repairs/Restoration	 	 	35	 
	 
	 	Section 12.4.	 	Untenantability    	 	 	35	 
	 
	 	Section 12.5.	 	Core and Shell    	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 13 EMINENT DOMAIN	 	 	36	 
	 
	 	Section 13.1.	 	Taking of Demised Premises     	 	 	36	 
	 
	 	Section 13.2.	 	Partial or Temporary Taking of Building     	 	 	36	 
	 
	 	Section 13.3.	 	Surrender    	 	 	36	 
	 
	 	Section 13.4.	 	Rent Adjustment for Partial Taking of Demised Premises    	 	 	37	 
	 
	 	Section 13.5.	 	Awards     	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 14 RIGHTS RESERVED TO LANDLORD	 	 	37	 
	 
	 	Section 14.1.	 	Access to Demised Premises     	 	 	37	 
	 
	 	Section 14.2.	 	Additional Rights     	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 15 ASSIGNMENT AND SUBLETTING	 	 	39	 
	 
	 	Section 15.1.	 	Consent Required    	 	 	39	 
	 
	 	Section 15.2.	 	Notice of Proposed Assignment or Sublease; Recapture	 	 	40	 
	 
	 	Section 15.3.	 	Grounds for Withholding Consent     	 	 	41	 
	 
	 	Section 15.4.	 	Excess Rent Payment    	 	 	41	 
	 
	 	Section 15.5.	 	Lease Assumption; Subtenant Attornment	 	 	42	 
	 
	 	Section 15.6.	 	Prohibition   	 	 	42	 
	 
	 	Section 15.7.	 	Permitted Transfers   	 	 	43	 






ii









 






	 	 	 	 	 	 	 	 	 
	Article	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE 16 INTENTIONALLY OMITTED	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 17 DEFAULT	 	 	43	 
	 
	 	Section 17.1.	 	Events of Default    	 	 	43	 
	 
	 	Section 17.2.	 	Damages    	 	 	45	 
	 
	 	Section 17.3.	 	Waiver of Jury Trial   	 	 	46	 
	 
	 	Section 17.4.	 	Other Remedies    	 	 	47	 
	 
	 	Section 17.5.	 	Landlord Defaults    	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 18 SURRENDER	 	 	47	 
	 
	 	Section 18.1.	 	Possession   	 	 	47	 
	 
	 	Section 18.2.	 	Merger   	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 19 HOLDING OVER	 	 	48	 
	 
	 	Section 19.1.	 	Holding Over    	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 20 REMEDIES CUMULATIVE	 	 	48	 
	 
	 	Section 20.1.	 	No Waiver    	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 21 ESTOPPEL CERTIFICATE, SUBORDINATION, ATTORNMENT	 	 	48	 
	 
	 	Section 21.1.	 	Estoppel Certificate     	 	 	48	 
	 
	 	Section 21.2.	 	Subordination    	 	 	49	 
	 
	 	Section 21.3.	 	Attornment    	 	 	50	 
	 
	 	Section 21.4.	 	Mortgages    	 	 	50	 
	 
	 	Section 21.5.	 	Protection of Successor Landlord     	 	 	50	 
	 
	 	Section 21.6.	 	Mortgagee’s Right To Cure     	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 22 QUIET ENJOYMENT	 	 	52	 
	 
	 	Section 22.1.	 	Quiet Enjoyment    	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 23 NOTICES	 	 	52	 
	 
	 	Section 23.1.	 	Notices    	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 24 MISCELLANEOUS PROVISIONS	 	 	53	 
	 
	 	Section 24.1.	 	Time    	 	 	53	 
	 
	 	Section 24.2.	 	Applicable Law and Construction     	 	 	53	 
	 
	 	Section 24.3.	 	Parties Bound    	 	 	53	 
	 
	 	Section 24.4.	 	No Representations by Landlord    	 	 	53	 
	 
	 	Section 24.5.	 	Brokers    	 	 	53	 
	 
	 	Section 24.6.	 	Severability   	 	 	54	 
	 
	 	Section 24.7.	 	Force Majeure    	 	 	54	 
	 
	 	Section 24.8.	 	Definition of Landlord   	 	 	54	 
	 
	 	Section 24.9.	 	No Option   	 	 	54	 
	 
	 	Section 24.10.	 	 Exculpatory Clause    	 	 	54	 
	 
	 	Section 24.11.	 	 Intentionally Omitted    	 	 	55	 
	 
	 	Section 24.12.	 	 No Recording    	 	 	55	 
	 
	 	Section 24.13.	 	 No Light, View or Air Easements    	 	 	55	 
	 
	 	Section 24.14.	 	 Financial Statements    	 	 	55	 






iii









 






	 	 	 	 	 	 	 	 	 
	Article	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE 25 TENANT IMPROVEMENTS	 	 	55	 
	 
	 	Section 25.1.	 	Tenant’s Improvements    	 	 	55	 
	 
	 	Section 25.2.	 	Allowance    	 	 	56	 
	 
	 	Section 25.3.	 	Space Plan Allowance    	 	 	58	 
	 
	 	Section 25.4.	 	Card Readers    	 	 	58	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 26 SIGNAGE	 	 	59	 
	 
	 	Section 26.1.	 	Building Signage    	 	 	59	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 27 RIGHT OF FIRST OFFER	 	 	59	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 28 EXPANSION OPTION	 	 	66	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 29 RENEWAL OPTION	 	 	72	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 30 MARKET RENTAL RATE	 	 	74	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 31 OPTION TO TERMINATE	 	 	76	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 32 GENERATOR	 	 	78	 
	 
	 	Section 32.1.	 	Installation     	 	 	79	 
	 
	 	Section 32.2.	 	Maintenance and Repair     	 	 	80	 
	 
	 	Section 32.3.	 	Assignability     	 	 	80	 
	 
	 	Section 32.4.	 	Representation      	 	 	81	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 33 EXISTING LEASE PAYMENT	 	 	81	 
	 
	 	Section 33.1.	 	Payment     	 	 	81	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 34 SECURED AREA	 	 	81	 
	 
	 	Section 34.1.	 	Secured Area    	 	 	81	 






	 	 	 
	EXHIBIT A

	 	Plan Showing Tenant’s Space
	EXHIBIT B

	 	Legal Description of Land
	EXHIBIT C

	 	Rules and Regulations
	EXHIBIT D

	 	Parking Rider
	EXHIBIT E

	 	Pre-Approved General Contractors
	EXHIBIT F

	 	Form of SNDA
	EXHIBIT G

	 	Expansion Space A
	EXHIBIT H

	 	Expansion Space B
	EXHIBIT I

	 	Building Signage Identification — Name/LOGO Depiction
	EXHIBIT J

	 	Cleaning Specifications
	EXHIBIT K

	 	HVAC Design Standards







iv











 





LEASE AGREEMENT




     THIS
LEASE AGREEMENT (this “Lease”) is made between Landlord and Tenant named in Article 1 as
of the date set forth therein. Landlord and Tenant, in consideration of the covenants and
agreements contained herein, agree as follows:



ARTICLE 1

REFERENCE DATA AND DEFINITIONS




     The following are definitions of terms used in this Lease, and each reference in this Lease
to any of the following subjects shall be construed to incorporate the data, terms, covenants and
provisions stated for that subject in this Article 1, subject to the terms of the balance of this
Lease:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DATE OF EXECUTION OF 

THIS LEASE:	 	March       , 2006.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD	 	Hines VAF Westwood of Lisle II, L.P.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MANAGING AGENT:	 	Hines GS Properties, Inc.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD’S ADDRESS:	 	Hines VAF Westwood of Lisle II, L.P.

c/o Hines GS Properties, Inc.

2443 Warrenville Road

Lisle, Illinois 60532
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	with a copy to:
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Hines VAF Westwood of Lisle II, L.P.

c/o Hines Interests Limited Partnership

300 Atlantic Street

Suite 206

Stamford, Connecticut 06901

Attn: Alan Rubenstein
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	and to:
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Hines Interests Limited Partnership

One South Dearborn

Suite 2000

Chicago, Illinois 60603

Attn: Thomas J. Danilek






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TENANT:	 	SXC Health Solutions, Inc.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STATE OF TENANT’S
FORMATION/
INCORPORATION:	 	Texas
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TENANT’S ADDRESS:	 	2441 Warrenville Road

Suite 600

Lisle, Illinois 60532

Attn: Joel Cesario

cc: Chief Financial Officer
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DEMISED PREMISES:	 	All of Floors 4 and 5 and a portion of floor 6, as shown on Exhibit A, agreed for all purposes of
this Lease to be 65,782 square feet, subject to adjustment as hereinafter provided.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BUILDING:	 	2441 Warrenville Road, Lisle, Illinois, which includes all improvements, including the office
building and parking areas, driveways and landscaped areas, located on the Land, which Building is
agreed for all purposes of this Lease to contain 148,423 square feet of rentable area as of the
date hereof.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LAND:	 	The land described on Exhibit B.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PROJECTED TURNOVER DATE:	 	Within five (5) business days after the mutual execution and delivery of this Lease by Landlord
and Tenant.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COMMENCEMENT DATE:	 	February 1, 2007
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EXPIRATION DATE:	 	January 31, 2018
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TERM:	 	Eleven (11) Years
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RENEWAL TERM:	 	One (1) renewal term of Five (5) Years
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FIXED RENT:

	 	Period
	 	Monthly

Fixed Rent
	 	Annual Fixed
Rent
	 	Annual Fixed
Rent Per RSF

	 

	 	2/1/07 through 1/31/08
	 	$	75,375.21	 	 	$	904,502.50	 	 	$	13.75	 
	 	2/1/08 through 1/31/09
	 	$	78,116.13	 	 	$	937,393.50	 	 	$	14.25	 
	 	2/1/09 through 1/31/10
	 	$	80,857.04	 	 	$	970,284.50	 	 	$	14.75	 
	 	2/1/10 through 1/31/11
	 	$	83,597.96	 	 	$	1,003,175.50	 	 	$	15.25	 
	 	2/1/11 through 1/31/12
	 	$	86,338.88	 	 	$	1,036,066.50	 	 	$	15.75	 
	 	2/1/12 through 1/31/13
	 	$	89,079.79	 	 	$	1,068,957.50	 	 	$	16.25	 
	 	2/1/13 through 1/31/14
	 	$	91,820.71	 	 	$	1,101,848.50	 	 	$	16.75	 
	 	2/1/14 through 1/31/15
	 	$	94,561.63	 	 	$	1,134,739.50	 	 	$	17.25	 
	 	2/1/15 through 1/31/16
	 	$	97,302.54	 	 	$	1,167,630.50	 	 	$	17.75	 
	 	2/1/16 through 1/31/17
	 	$	100,043.46	 	 	$	1,200,521.50	 	 	$	18.25	 
	 	2/1/17 through 1/31/18
	 	$	102,784.38	 	 	$	1,233,412.50	 	 	$	18.75	 






2









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RENTAL ABATEMENT:	 	Fixed Rent and Tenant’s Expense Charge shall be abated for the periods described in Section 3.6,
subject to the terms set forth therein.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TENANT’S
PROPORTIONATE SHARE:	 	44.321%, determined as set forth in Section 4.1(c).
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DEFAULT RATE:	 	The lesser of (1) three percent (3%) above the Prime Rate, per annum, or (2) the maximum rate of
interest permitted by law. For purposes of the foregoing, the “Prime Rate” shall mean the rate of
interest announced from time to time by JPMorgan Chase, Chicago, Illinois (or any successor) as
its “prime rate” or “corporate base rate”, changing as and when such rate changes, or if such rate
is no longer in existence, then such other “prime rate” as may be designated by Landlord, in its
reasonable discretion.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SECURITY DEPOSIT AMOUNT:	 	$300,000.00, as the same may from time to time be adjusted as provided in Section 3.4 below.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORMAL BUSINESS HOURS:	 	Monday through Friday

8:00 A.M. to 6:00 P.M.

Saturdays

8:00 A.M. to 1:00 P.M.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BROKER:	 	Staubach Midwest, LLC (“Tenant’s Broker”) and CB Richard Ellis (“Landlord’s Broker”)






ARTICLE 2

DEMISED PREMISES AND TERM




     Section 2.1. Demised Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the Demised Premises, upon and subject to the covenants, agreements, terms,
conditions, limitations, exceptions and reservations of this Lease.



     Section 2.2. Term. The term of this Lease (sometimes referred to herein as the
“Term”) shall be the period of time specified in Article 1 hereof. Except as hereinafter provided,
the Term shall commence on the Commencement Date as shown in Article 1 and shall expire without
notice to Tenant on the Expiration Date as shown in Article 1, subject to any renewal options
provided herein.



     Section 2.3. Tenant’s Entry upon Demised Premises before Commencement Date. Provided
that Tenant complies at all times with the provisions and requirements of this Lease (other than
the obligation to pay Fixed Rent and, except as provided for below in this Section 2.3, the
obligation to pay Additional Rent (as defined in Section 3.2 hereof)), Tenant may enter upon the
Demised Premises from and after the “Turnover Date” (as defined in




3











 




Section 25.1 hereof) and prior to the Commencement Date to perform the Tenant’s Work (as defined in
Section 25.1 below), and to otherwise install trade fixtures and furnishings and to make the
Demised Premises ready for the conduct of Tenant’s business, provided, however, that any
contractors as Tenant may engage to undertake such installations and other preparatory work shall
be subject to Landlord’s written approval prior to engagement (not to be unreasonably withheld,
conditioned or delayed), and provided further, that Tenant shall undertake such installations and
other preparatory work only with such labor organization affiliation or lack of affiliation as
Landlord may reasonably approve. For purposes of the foregoing, Landlord hereby pre-approves those
general contractors listed on Exhibit E. Any work performed under this Section 2.3 shall comply, in
any event, with the terms and requirements set forth in Section 25.1 below. Any such occupancy of
all or any portion of the Demised Premises prior to the Commencement Date shall be upon all of the
terms and conditions set forth in this Lease relative to occupancy during the Term (other than the
obligation to pay Fixed Rent and, except as provided below in this Section 2.3, Additional Rent
hereunder). Utility costs (including, but not limited to, HVAC, other than after-hours HVAC as
provided below) for utility services furnished to the Demised Premises which, if furnished during
the Term, would be included as part of “Tenant’s Expense Charge” under this Lease (i.e., as opposed
to being charged and payable separately by Tenant, such as in the case of electricity) (herein,
“Base Building Utility Charges”), shall, from and after the Turnover Date, and through the day
preceding the Commencement Date, be the responsibility of Landlord. The cost of any utilities
(including but not limited to, electricity and after-hours HVAC) to the Demised Premises which, if
furnished during the Term, would be payable separately by Tenant and not as part of “Tenant’s
Expense Charge” under this Lease (herein, “Direct Utility Charges”), shall, from and after the
Turnover Date, and through the day preceding the Commencement Date, be the responsibility of
Tenant, and shall be paid for by Tenant either by paying any applicable utility company directly
(i.e., if separately metered) or by paying Landlord its Building-standard rates (i.e., if not
separately metered), which Building-standard rates, to the extent applicable, shall be based on
Landlord’s actual costs therefor, without additional mark-up to Landlord on account thereof. Tenant
shall be responsible for installation of separate metering for electricity, as a required part of
the Tenant’s Work hereunder, if separate metering is not already present at the Demised Premises
(or any portion thereof) as of the Turnover Date. Tenant shall have no right to occupy any portion
of the Demised Premises for the conduct of business operations therefrom at any time prior to the
Commencement Date, except as expressly provided below in this Section 2.3, or unless otherwise
consented to by Landlord (at its sole discretion). Notwithstanding the foregoing, Tenant shall have
the right to occupy the following areas of the Demised Premises prior to the Commencement Date, for
the conduct of business therefrom, without Landlord’s consent thereto (but subject to the other
terms of this Section 2.3): (i) that portion of the Demised Premises located on the 6th
floor of the Building and known as Suite 620, comprised of 2,723 rentable square feet (the “Suite
620 Space”), and/or (ii) that portion of the Demised Premises located on the 6th floor
of the Building and known as Suite 610, comprised of 10,532 rentable square feet (the “Suite 610
Space”). If Tenant occupies the Suite 620 Space prior to the Commencement Date for the conduct of
business therefrom, Tenant shall have no obligation to pay Fixed Rent or Additional Rent relative
thereto at any time prior to the Commencement Date (other than payment of Direct Utility Charges,
as provided above). If Tenant occupies all or any portion of the Suite 610 Space prior to the
Commencement Date for the conduct of business therefrom,





4









 







Tenant shall pay Landlord, in addition to payment of the Direct Utility Charges described above, a
contribution toward Landlord’s operating costs, in an amount equal to $6.39 per square feet of
rentable area of the overall Suite 610 Space per annum, calculated for the period of such occupancy
(payable in monthly installments, in advance, prorated for any partial calendar month, at the same
time and place as otherwise applicable to monthly payments of Fixed Rent during the Term hereof).
The exact rentable area of any space leased as part of the Demised Premises or otherwise located at
the Building from time to time, shall be determined by Landlord, measured in accordance with
ANSI/BOMA Z65.1 1996 standards (it being understood and agreed that the rentable area of the
Demised Premises and of the Building set forth in Article 1, and the rentable area of the Suite 610
Space and the Suite 620 Space as set forth above in this Section 2.3, have been determined based on
such BOMA measurement standard, and the parties stipulate that such measurements shall remain
binding on the parties hereunder during the entire Term for all purposes of this Lease, subject to
the terms of Section 4. l(c) below). From and after the Commencement Date, Tenant shall pay Fixed
Rent and Additional Rent (including Tenant’s Expense Charge and Direct Utility Charges) as
otherwise provided in this Lease.




ARTICLE 3

RENT AND SECURITY DEPOSIT




     Section 3.1. Fixed Rent. Tenant shall pay to Landlord, without any prior demand
therefor and without any deduction or set-off whatsoever (except as expressly provide in this
Lease), the Fixed Rent set forth in Article 1. Fixed Rent shall be due and payable in monthly
installments each equal to the Monthly Fixed Rent set forth in Article 1, in advance on the first
day of each and every calendar month during the Term.



     Section 3.2. Additional Rent. Any sums or charges to be paid by Tenant pursuant to
the provisions of this Lease, other than the Fixed Rent, shall be designated as “Additional Rent”.
Any sums or charges to be paid by Tenant pursuant to the provisions of the Lease, other than Fixed
Rent and Tenant’s Expense Charge payments (which Fixed Rent and Tenant’s Expense Charge payments
shall be payable on a monthly regularly scheduled basis as set forth in Section 3.1 and Section
4.2(b) hereof), shall be payable within thirty (30) days after Landlord gives written notice that
payment is due, unless otherwise provided in this Lease. Landlord shall have the same rights
against Tenant for default in payment of Additional Rent as for default in payment of the Fixed
Rent. As used in this Lease, the term “Rent” shall mean the Fixed Rent and Additional Rent. The
payment of Rent hereunder is independent of each and every other covenant and agreement contained
in this Lease.



     Section 3.3. Past Due Rent.




     (a) If Tenant shall fail to pay any installment of Rent within five (5)
business days following the date when such Rent is due and payable (provided that,
on the first two (2) occasion of late payment of Rent occurring in any calendar
year, the hereafter described “Late Charge” shall not accrue unless Tenant fails to
pay such Rent within ten (10) business days following the date when such Rent is
due and payable), Tenant shall pay a charge (the “Late



5









 







Charge”) which shall be 3% of the amount of such unpaid installment of Rent. The
parties agree that the amount of such Late Charge represents a reasonable estimate
of the cost and expense that will be incurred by Landlord in processing each
delinquent payment of Rent by Tenant and that such Late Charge shall be paid to
Landlord as liquidated damages for each delinquent payment.




     (b) Unpaid Rent which is not paid within five (5) business days following the
date when due shall bear interest at the Default Rate from the date due until paid
(provided that, on the first two (2) occasions of late payment of Rent occurring in
any calendar year, such interest shall not accrue unless Tenant fails to pay such
delinquency within five (5) business days after Landlord gives written notice of
such delinquency to Tenant, but on the third and any subsequent occasion of late
payment of Rent occurring in any calendar year, no such notice from Landlord shall
be required for Default Rate interest to accrue as otherwise provided in this
Section 3). Payment of such interest shall not excuse or cure any default by Tenant
under this Lease. The parties agree that the payment of interest and the payment of
Late Charges provided for in Section 3.3(a) above are distinct and separate from one
another in that the payment of interest is to compensate Landlord for its inability
to use the money improperly withheld by Tenant, while the payment of Late Charges is
to compensate Landlord for its additional administrative expenses in handling and
processing delinquent payments.



     Section 3.4. Security Deposit. Concurrent with Tenant’s execution and delivery of
this Lease to Landlord, and as an express condition of Landlord’s obligation to fund any portion
of the “Allowance” under Section 25.2 below, or to disburse the “One Time Existing Lease Payment”
under Section 33.1 below (and subject, in any event, to the terms of the last paragraph of this
Section 3.4 regarding the form of the deposit hereunder and Tenant’s right, at any time, to
deliver the same either as a letter of credit or in cash), Tenant shall deposit with Landlord an
unconditional and irrevocable letter of credit (as the same may be decreased as hereinafter
provided, the “Letter of Credit Security Deposit”) in the amount of $300,000.00 in form reasonably
satisfactory to Landlord and issued by such bank with a Chicago, Illinois office reasonably
satisfactory to Landlord, as security for the full and faithful performance of every provision of
this Lease to be thereafter performed by Tenant (the Letter of Credit Security Deposit, together
with (1) any cash from time to time held by Landlord as part of the security deposit following a
draw on the Letter of Credit Security Deposit or (2) any cash from time to time held by Landlord
as part of the security deposit following Tenant’s election, at its sole discretion, to deposit
such cash as all or part of the required security deposit under this Section 3.4 (and subject, in
any event, to the terms of the last paragraph of this Section 3.4 regarding the form of the
deposit hereunder), is sometimes referred to herein as the “Security Deposit”). If Tenant defaults
with respect to any provision of this Lease, including but not limited to the provisions relating
to the payment of Rent, and such default remains uncured beyond applicable cure periods provided
hereunder, then Landlord may, as applicable, (i) use, apply or retain all or any part of the
Security Deposit which is then held by Landlord in the form of cash (herein, the “Cash Security
Deposit”), or (ii) draw on the Letter of Credit Security Deposit, in whole or in part, but only to
the extent necessary in Landlord’s good faith judgment to cure such default (provided that
Landlord may draw upon any Letter of Credit Security



6









 







Deposit in whole in the event Tenant defaults in its obligation to timely deliver a replacement
letter of credit as required hereunder), and Landlord may use, apply or retain all or any part of
the proceeds thereof, for the payment of any Rent and any other sum in default, or for the payment
of any other amount which Landlord may spend or become obligated to spend by reason of Tenant’s
default or to compensate Landlord for any other loss or damage which Landlord may suffer by reason
of Tenant’s default. If any portion of the Cash Security Deposit or proceeds from a draw on the
Letter of Credit Security Deposit is so used or applied, Tenant shall, within ten (10) business
days after written demand therefor, as applicable, deposit cash with Landlord in an amount
sufficient to restore the Cash Security Deposit to its original amount or cause the issuing bank to
restore the Letter of Credit Security Deposit to its original amount, and Tenant’s failure to do
such shall be a material breach of this Lease, without any additional cure period hereunder.
Landlord shall not be responsible for keeping any Cash Security Deposit or any proceeds from a draw
on the Letter of Credit Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on either. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it through July 31, 2011, the Cash Security Deposit, the Letter of
Credit Security Deposit, or any balance thereof, as applicable, shall be returned to Tenant (or at
Landlord’s option to the last assignee of Tenant’s interest hereunder) no later than ten (10) days
following Tenant’s request therefor from Landlord (which request shall be delivered no earlier than
August 1,2011). Landlord shall deliver the Cash Security Deposit or the Letter of Credit Security
Deposit to the purchaser of Landlord’s interest in the Building, in the event that such interest is
sold, and, provided that such purchaser agrees in writing to be bound by the terms and conditions
of this Lease with respect to such Security Deposit, thereupon Landlord shall be discharged from
any further liability with respect to same. Tenant hereby agrees not to look to any mortgagee as
mortgagee, mortgagee in possession, or successor in title to the Building for any Cash Security
Deposit or Letter of Credit Security Deposit required by Tenant hereunder, unless such items have
actually been received by said mortgagee as security for Tenant’s performance of this lease.
Landlord agrees to deliver the Security Deposit required to be held by Landlord hereunder to any
such mortgagee on or before such time as the mortgagee succeeds to Landlord’s interest hereunder.
Nothing herein shall be construed to limit the amount of damages recoverable by Landlord or any
other remedy to the Security Deposit.



     Any letter of credit delivered by Tenant hereunder as the Letter of Credit Security Deposit
shall expire no earlier than twelve (12) months after issuance and all subsequent replacement
letters of credit shall expire no earlier than twelve (12) months from the expiration date of the
then outstanding and expiring letter of credit. Subject to the terms of the next succeeding
paragraph relative to permitted reductions in the amount of the Security Deposit, Tenant shall
ensure that at all times during the Term of this Lease and for fifteen (15) business days after
expiration of the term, cash or an unexpired letter of credit in the amount of the Security
Deposit required hereunder shall be in the possession of Landlord. During the Term, Tenant shall
deliver cash or a replacement letter of credit to Landlord no later than fifteen (15) business
days prior to the expiration date of then outstanding and expiring letter of credit; provided,
however, that the replacement letter of credit shall not be required to have an effective date
earlier than the expiration date of the then existing letter of credit (it being the intent that
Tenant not be required to have two outstanding letters of credit at any one time). Failure by
Tenant to deliver cash or any replacement letter of credit as required above shall entitle
Landlord



7









 







to draw under the outstanding letter of credit and to retain the entire proceeds thereof for
application as the Security Deposit under this Lease (provided that Tenant shall thereafter
continue to have the right and, if required by Landlord, the obligation, to substitute a Letter of
Credit Security Deposit for such Cash Security Deposit then being held by Landlord, in accordance
with the requirements of this Section 3.4). Each letter of credit shall be for the benefit of
Landlord and its successors and assigns, shall be expressly transferable without any cost or fee
payable by the transferor or transferee thereof, and shall entitle Landlord or its successors or
assigns to draw from time to time under the letter of credit in portions or in whole as provided
herein upon presentation of a sight draft.



     In the event that Tenant is not in default, with respect to any provision of this Lease as of
any respective “Security Deposit Reduction Date,” hereinafter described, then, notwithstanding
anything contained hereinabove to the contrary (but subject to the terms of the last paragraph of
this Section 3.4 regarding the right to again take the benefit of the following reduction if
various defaults are thereafter cured within applicable cure periods hereunder), (i) Landlord
shall return to Tenant, no later than ten (10) days following Tenant’s request therefor (which
request shall be given no earlier than the applicable Security Deposit Reduction Date), that
portion of any Cash Security Deposit or Letter of Credit Security Deposit then being held by
Landlord hereunder corresponding to the amount of the “Permitted Security Deposit Reduction”
permitted as of such Security Deposit Reduction Date (as hereinafter set forth), or (ii) Tenant
shall have the right to deliver an amendment to the then existing letter of credit as a supplement
to any Letter of Credit Security Deposit then being held by Landlord hereunder, or a replacement
letter of credit for any such Letter of Credit Security Deposit, which amended letter of credit or
replacement letter of credit shall be in the amount of the “Remaining Balance of Security Deposit”
corresponding to such Security Deposit Reduction Date (as hereinafter set forth).



	 	 	 	 	 	 	 	 	 
	 	 	Permitted Security	 	Remaining Balance
	Security Deposit	 	Deposit Reduction	 	of Security Deposit
	August 1,2009
	 	$	150,000.00	 	 	$	150,000.00	 
	August 1,2010
	 	$	150,000.00	 	 	$	0.00	 






     If Tenant is not entitled to the foregoing reduction in the Security Deposit solely because
Tenant is in default under this Lease as described in the preceding paragraph, then Tenant shall
not be entitled to any further reduction in the Security Deposit amount required hereunder;
provided, however, that notwithstanding the foregoing, Tenant may again take the benefit of such
reduction and subsequent reductions if and when such default and all other subsequent defaults
have been cured within applicable cure periods provided hereunder.



     Notwithstanding anything herein to the contrary, Tenant shall have the right, at its sole
election, to deposit the Security Deposit required from time to time hereunder with Landlord
either in the form of a Cash Security Deposit or in the form of a Letter of Credit Security
Deposit, in either case meeting the requirements otherwise set forth in this Section 3.4. relative
to the requisite Security Deposit hereunder.



     Section 3.5. Rent Payments. All Rent payments shall be made to Landlord at the
address set forth in Article 1, or at such other place designated by Landlord in writing, in
lawful



8









 







currency of the United States of America. Rent payments applicable to partial months falling within
the Term or occurring as a result of the application of the Monthly Fixed Rent payable upon Lease
execution shall be prorated.



     Section 3.6. Fixed Rent and Tenant’s Expense Charge Abatement. Notwithstanding the
foregoing, (a) Fixed Rent and Tenant’s Expense Charge (as defined in Section 4.2 below)
attributable to that portion of the initial Demised Premises hereunder situated on the
4th and 5th floors of the Building (the “Initial Full Floor Premises”) shall
abate for each calendar month commencing with the Commencement Date and continuing through July
31, 2007 (each such calendar month, a “Full Floor Abatement Month”), and (b) Fixed Rent and
Tenant’s Expense Charge attributable to that portion of the initial Demised Premises hereunder
situated on the 6th floor of the Building (the “Initial Partial Floor Premises”) shall
abate for each calendar month commencing with the Commencement Date and continuing through
December 31, 2007 (each such calendar month, a “Partial Floor Abatement Month”); provided that
Tenant shall remain responsible for all other obligations of Tenant hereunder during each of the
aforedescribed Full Floor Abatement Months and Partial Floor Abatement Months (as the case may
be), and provided further, that such applicable abatement of Fixed Rent and Tenant’s Expense
Charge shall not apply for any Full Floor Abatement Month or Partial Floor Abatement Month (as the
case may be) during which Tenant, at any time, is otherwise in default under this Lease, which
default is not thereafter cured within any applicable cure periods hereunder. In connection with a
default by Tenant under this Lease, which default is thereafter cured within applicable cure
periods, the applicable abatement of Fixed Rent and Tenant’s Expense Charge shall then apply to
the full amount of the balance thereof as of the date that such abatement was suspended or not
applied.



ARTICLE 4

TENANT’S SHARE OF OPERATING COSTS AND TAXES




     Section 4.1. Definitions. As used herein:




     (a) “Operating Costs” shall mean any and all costs, charges, expenses and
disbursements of every kind and nature which Landlord shall pay or become obligated
to pay in connection with the operation, ownership, maintenance, management and
repair of the Building and the Common Area, including, without being limited to,
the following:




     (1) All wage, salary and labor costs of all persons engaged in
the operation, maintenance, management and repair of the Building
(including, without being limited to, all applicable taxes, insurance
and benefits).




     (2) Costs of any utilities supplied by Landlord (including,
without being limited to, heat, electricity, gas, water and sewer),
fuel and Building supplies and materials and of the operation and maintenance of



9









 







all Building systems (including, without being limited to,
heating, ventilation and air-conditioning (“HVAC”) systems).




     (3) Costs of all insurance, including, without being limited to,
casualty, workmen’s compensation, rental and liability insurance.




     (4) Costs of all maintenance and service agreements, including,
without being limited to, window and other cleaning, snow removal, line
painting, policing, elevator maintenance and janitorial service.




     (5) Costs of repairs, replacements, decorations, and general
maintenance, including, without being limited to, exterior
building maintenance, paving, curbs, drainage, lighting, sidewalks and
landscaping.




     (6) Professional fees and expenses (including, without being
limited to, legal, accounting, architectural and engineering fees).




     (7) All costs of making any alterations to the Building for
life-safety systems or energy conservation or other capital
improvements required by any governmental requirement enacted or amended after the
date hereof or which are primarily for the purpose of reducing or
stabilizing Operating Costs or providing additional or increased
services to
the tenants of the Building, amortized on a “straight-line” basis over
the
useful life of such improvements (as reasonably determined by Landlord
consistent with generally accepted accounting principles), using an
interest
factor for purposes of such amortization equal to 2% over the Prime
Rate
described in Article 1 above, calculated as of the date the cost of
such
improvements was incurred). In the case of loss or damage to the
Building due to fire or other casualty, the costs of repairing,
restoring or
replacing any portion of the Building which constitute
capital
improvements shall be included in Operating Costs (on an amortized
basis
as provided above) to the extent of (a) deductible amounts under
insurance
policies, or (b) other uninsured amounts (except for uninsured amounts
that would have been covered by insurance had Landlord maintained the
insurance required to be maintained by Landlord hereunder).
Notwithstanding the foregoing, it is agreed that (A) the amortization
amount in respect to any capital improvement for the purpose of
reducing or stabilizing Operating Costs as described above in this subclause (7)
which may be included in Operating Costs in any calendar year shall not
exceed Landlord’s good faith estimate of the reduction in Operating
Costs
to be achieved for such year as a result of such capital improvement,
and
(B) there shall be no amount included in Operating Costs under this
subclause (7), in any event, for the costs of any Turnover
Noncompliance
Work, as described in Section 6.4 of this Lease.




     (8) All property management fees, costs and expenses.



10









 






     (9) All fees or other charges incurred in conjunction with voluntary
or involuntary membership in any energy conservation, air quality,
environmental, traffic management or similar organizations.



     Notwithstanding the foregoing, Operating Costs shall not include: costs or other items
included within the meaning of the term “Taxes” (as hereinafter defined), costs of alterations and
other leasehold improvements and relocations of the premises of tenants of the Building; costs of
any financial concessions, allowances, abatements or other inducements granted to tenants in the
Building; costs of capital improvements to the Building other than those specifically included in
subclause (7) set forth above; depreciation or amortization charges other than as provided in
subclause (7) above; interest and principal payments on mortgages or any other fees related
thereto; ground rental payments; legal fees in connection with negotiating leases with other
tenants in the Building, or in connection with consenting to subleases or in connection with
enforcing lease obligations of other tenants or subtenants in the Building; interest, fines and
penalties on late payments or misconduct by Landlord; real estate brokerage and leasing
commissions; any expenditures for which Landlord has been reimbursed by tenants (other than
pursuant to tax and operating expense reimbursement provisions in leases); the costs of providing
services to other tenants of the Building without a charge (other than through payment by such
tenants of operating expenses and taxes, such as Operating Costs and Taxes) that are in excess of
those services provided or made available to Tenant without a charge (other than through payment of
Operating Costs and Taxes hereunder), to the extent of such excess; legal, appraisal and accounting
fees, disbursements and charges incurred in connection with the leasing, sale or refinancing of the
Building, or in connection with matters related to Landlord’s organization as a limited partnership
(or other entity) or in connection with dealings with Landlord’s partners or members (i.e., as
distinguished from matters relating to the ownership, operation, management, maintenance or repair
of the Building); legal, appraisal and accounting fees, disbursements and charges incurred in
connection with disputes with tenants or occupants of the Building or disputes with any mortgagee
or with partners or members of Landlord; costs in performing any Turnover Noncompliance Work as
described in Section 6.4 of this Lease; salaries paid to any executive employee above the grade of
regional building manager and regional building engineer (which are includable only to the extent
that such regional building manager and regional building engineer are engaged in servicing the
Building; provided further, that in no event shall more than 20% of the overall respective annual
salaries paid to any such regional building manager or regional building engineer ever be included
as part of Operating Costs in any given calendar year hereunder); expenses for repairs, maintenance
or replacements for which Landlord is reimbursed from or pursuant to insurance or condemnation
proceeds (or for which Landlord would have been reimbursed had Landlord maintained any property
insurance required to be maintained by Landlord hereunder); advertising, entertainment and
promotional expenditures relating to leasing of space at the Building; costs of electricity
furnished to individual tenant spaces to the extent such costs are separately charged and payable
by such tenants (other than pursuant to provisions in such tenants’ leases providing for
reimbursement of operating expenses and taxes of the Building, such as Operating Costs and Taxes);
overhead and profit increment paid to subsidiaries or affiliates of Landlord for services to the
Building, to the extent only that the cost of such services exceed competitive cost of such
services were they not so rendered by a subsidiary or affiliate (provided that this exclusion shall
in no way reduce or affect the management fee component of Operating Costs otherwise



11









 







permitted hereunder); costs of acquisitions of fine art (as distinguished from decorative items and
as distinguished from cleaning and maintenance costs for such fine art); rentals of Building
systems, elevators or other equipment ordinarily considered to be of a capital nature, except to
the extent such amounts would otherwise have been included as Operating Costs under subclause (7)
above had such systems, elevators or other equipment been purchased by Landlord; damages awarded to
a tenant of the Building against Landlord by reason of Landlord’s breach of that tenant’s lease;
costs incurred with respect to Landlord’s sale, financing, re-financing, syndication, mortgaging,
hypothecating or transfer of all or any portion of the Building or Landlord’s interest therein;
costs for repairs, maintenance, replacements or services for which Landlord is reimbursed from any
source (other than payments by tenants of operating expenses and taxes, such as Operating Costs and
Taxes); management fees in excess of commercially reasonable management fees determined based upon
the prevailing management fees then being charged by management agents of Class A office buildings
in Lisle/Naperville, Illinois providing comparable levels of services as those being provided by
the management agent for the Building and expensed to tenants of such buildings, provided, however,
that “three percent (3%)” of gross rental income of the Building shall, for purposes of this
subclause, be conclusively deemed a commercially reasonable management fee (it being understood
that the management fees permitted to be included in Operating Costs shall be governed solely by
the exclusion, and shall not be affected by any other exclusion described in this Section 4.1); the
costs of any judgment, settlement or arbitration award resulting from Landlord’s liability for
failure to perform its obligations under any lease or other contract by which it may be bound;
costs incurred by Landlord resulting directly from Landlord’s tortious, negligent or other unlawful
conduct; Landlord’s political or charitable contributions; and bad debt losses.



     If Landlord is not furnishing any particular work or service (the cost of which if performed
by Landlord would constitute an Operating Cost) to a tenant who has undertaken to perform such
work or service in lieu of the performance thereof by Landlord, Operating Costs shall be increased
by an amount equal to the additional Operating Costs which would have been incurred during such
period by Landlord if it had at its own expense furnished such work or services to such tenant. In
determining the amount of Operating Costs for any calendar year, if less than 100% of the net
rentable square feet of the Building shall have been occupied by tenant(s) at any time during such
calendar year, Operating Costs shall be determined for such year by adjusting those components of
Operating Costs which directly vary with the occupancy level of the Building, to be an amount
equal to the like expenses which would have been incurred had such occupancy been 100% throughout
such year.




     (b) “Taxes” shall mean the aggregate amount of real estate and personal
property taxes and any special assessments levied, assessed or imposed upon the
Land and/or the Building (but not including income or franchise taxes or any other
taxes imposed upon or measured by the Landlord’s income or profits, except as
provided herein), other than any water or sewer charge to the extent the same are
included in Operating Costs for the applicable calendar year. If because of any
change in the taxation of real estate, any other tax, assessment or surcharge of
any kind or nature (including, without being limited to, any franchise, income,
profit, sales, use, occupancy, gross receipts or rental tax) is imposed upon,
against or with respect to Landlord, or the occupancy, rents or income therefrom,
either in



12









 







lieu of, in substitution for or in addition to any of the foregoing Taxes, such
other tax, assessment or surcharge (which shall be measured as if the Land or the
Building, as the case may be, were the only asset of Landlord or such owner) shall
be deemed part of Taxes. With respect to any calendar year, all expenses, including
attorney’s, accounting and experts’ fees and expenses, incurred in contesting the
validity or amount of Taxes, the assessed valuation of the Land and/or Building or
in obtaining a refund of Taxes shall be considered as part of Taxes for such year.
For the purpose of determining Taxes for any given year, the amount to be included
for such year shall be Taxes which are paid during such year rather than Taxes which
are assessed or become a lien during such year.




     (c) “Tenant Proportionate Share” shall mean a fraction, the numerator of which
is the rentable area of the Demised Premises from time to time (i.e., including the
rentable area of any expansion space leased by Tenant from time to time hereunder),
and the denominator of which is the rentable area of the Building (subject, in any
event, to the terms set forth in Section 4.3(c) below).



     Section 4.2. Tenant’s Payment of Operating Costs and Taxes.




     (a) For each calendar year during the Term, Tenant shall pay to
Landlord, as Additional Rent, at the times and in the manner provided below,
Tenant’s Proportionate Share of the sum of (1) Operating Costs for such
calendar
year and (2) Taxes for such calendar year (collectively, “Tenant’s Expense
Charge”).




     (b) At any time during the Term, Landlord shall have the right to
compute and deliver to Tenant a written estimate (an “Estimate”) of Tenant’s
Expense Charge for the applicable calendar year and, without further notice,
Tenant shall pay to Landlord commencing with the next payment of Monthly
Fixed Rent occurring not less than thirty (30) days after Tenant’s receipt of
such statement and continuously thereafter with payments of Monthly Fixed Rent until
delivery of the next Estimate, monthly installments equal to one-twelfth of the
amount set forth in such Estimate, together with, in the case of the first such
monthly payment, an amount equal to the difference between (i) the amount of
such monthly installment times the number of months in such year preceding the
first monthly payment, less (ii) the amount of any monthly installments in
respect
of the prior Estimate theretofore paid to Landlord. In the event Landlord is
required under any mortgage of the Land or the Building to escrow Operating
Costs and/or Taxes, Landlord may (without obligation) use the amount required
to
be escrowed as a basis for determining the Estimate. Without limitation of any
of
the terms set forth in this Article 4, it is hereby confirmed by Landlord that
the
estimated aggregate Operating Costs and Taxes for calendar year 2006, for
information purposes only, as of the date hereof, is $8.89 per square foot of
rentable area of the Building.



13









 






     (c) Landlord shall deliver to Tenant within 150 days after the end of
each calendar year during the Term (or as soon thereafter as is reasonably
practicable) a written statement (the “Statement”) setting out in reasonable
detail
Tenant’s Expense Charge for such year certified to be correct by Landlord. If
the
aggregate of the monthly installments actually paid by Tenant to Landlord on
account of the estimated Tenant’s Expense Charge during any calendar year (the
“Actual Payments”) differs from the amount of Tenant’s Expense Charge payable
according to the Statement (the “Obligated Payments”), Tenant shall (1) if the
Obligated Payments shall exceed the Actual Payments, pay to Landlord, within
30 days after the date of delivery of the Statement, an amount equal to such
excess, or (2) if the Actual Payments shall exceed the Obligated Payments, then
Landlord shall credit such excess to any Rent theretofore or next due and
owing,
as applicable; provided, however, that if the amount of the credit due to
Tenant
exceeds the amount of its next regularly scheduled monthly payment of Rent,
then
Landlord shall remit to Tenant the amount of such excess in cash, to be paid to
Tenant no later than the date on which Tenant’s next regularly scheduled
monthly
payment of Rent is due. If this Lease shall expire or be terminated prior to
full
application of such excess, Landlord shall pay to Tenant, within thirty (30)
days
after expiration or termination of this Lease, the balance thereof not
theretofore
applied against Rent (except that Landlord may first offset such excess against
any rental or other damages due and owing from Tenant resulting from any then
existing default of Tenant under this Lease).




     (d) Tenant may examine, and Tenant’s Representatives (as hereinafter
defined) may audit, at Tenant’s expense and at all reasonable times, Landlord’s
books and records relating to items affecting Tenant’s Expense Charge as set
forth
in a Statement delivered by Landlord for any year for which Tenant’s Expense
Charge payments become due; provided that Tenant’s right to examine and/or
audit shall expire one hundred eighty (180) days following the delivery of the
Statement pertaining to the items of Tenant’s Expense Charge which are being so
examined or audited. If Tenant does not deliver a written notice to Landlord
taking written exception to any item of Tenant’s Expense Charge, and specifying
in detail the reasons for such exception, within said 180 day period,
Landlord’s
Statement of Tenant’s Expense Charge shall be considered as final and accepted
by Tenant and Landlord. For purposes of the foregoing,
the term
“Representative” shall mean a nationally or regionally recognized independent
certified public accounting firm licensed to do business in the State of
Illinois.
For each examination of Landlord’s books and records, the employees of Tenant
or Tenant’s Representative who personally examine such books and records shall
include a certified public accountant, but if deemed necessary or appropriate
by
the accountant may also include other real estate professionals
who are
experienced in management of Class-A office buildings. Tenant shall not
retain
its Representative on a contingent fee basis. In the event any such audit by
Tenant’s Representatives determines that Landlord’s Statement of
Tenant’s
Expense Charge overstated such figure from the actual amount so required
hereunder for any calendar year by an amount in excess of three percent (3%),



14









 







Landlord shall be responsible for the prompt payment of reasonable out-of-pocket
audit fees incurred by Tenant under this subparagraph (d); otherwise, Tenant shall
be responsible for the prompt payment of all audit fees incurred in connection with
such audit and, in addition, Tenant shall also be responsible for payment to
Landlord of all out-of-pocket costs and expenses incurred by Landlord in connection
with such audit. Notwithstanding any exception timely made by Tenant, Tenant shall
pay Landlord the full amount of Tenant’s Expense Charge as determined by Landlord,
subject to readjustment at such time as any such exception may be resolved (i.e.,
either by agreement of Landlord or by a final determination of a court of competent
jurisdiction) in favor of Tenant (and Landlord agrees to pay Tenant the amount of
any over-payment made by Tenant on account of Tenant’s Expense Charge within thirty
(30) days after any such final resolution thereof in favor of Tenant).



     Section 4.3. Refunds; Other Items.




     (a) In the event a refund of any Operating Costs or Taxes is obtained
and actually paid to Landlord, Landlord, within thirty (30) days of receipt
thereof,
shall credit an appropriate portion thereof (after deducting any unrecouped
expenses in connection with obtaining such refund) to the next installment(s)
of Rent.




     (b) The rendering of a Statement for any year shall not preclude
Landlord from issuing a correction thereto at a later time, including a
correction
for items not included in the original Statement.




     (c) If physical changes are made to the Demised Premises or Building
(i.e., not including mere remeasurements at the Building), changing the number
of rentable square feet contained in the Demised Premises or Building (as the case
may be) from that set forth in Article 1 hereof, Landlord shall make an
appropriate adjustment to Tenant’s Proportionate Share (i.e., based upon the
same
ratio of rentable square feet of the Demised Premises to rentable square feet
of the
Building as used in calculating Tenant’s Proportionate Share as of the date
hereof); it being understood that, in the absence of Tenant’s leasing of
additional
space (i.e., in addition to the initial Demised Premises hereunder) at the
Building,
the rentable area of the “Demised Premises”, for purposes of this Lease, shall
remain the square footage set forth in Article 1 hereof, and in the absence of
physical changes to the rentable area of the Building resulting from casualty
or
condemnation events, the rentable area of the “Building”, for purposes of this
Lease, shall remain the square footage set forth in Article 1 hereof.



     Section 4.4. Controllable Expenses. Notwithstanding anything contained herein to the
contrary, for purposes of computing Tenant’s Proportionate Share of Operating Costs for any
calendar year starting with calendar year 2008, the “Controllable Expenses” (as hereinafter
defined) shall not increase by more than five percent (5%) per calendar year on a compounding and
cumulative basis over the course of the Term. To illustrate the foregoing, if Controllable
Expenses are Two and no/100 dollars ($2.00) per rentable square foot of the Building for




15












 




calendar year 2007, then Controllable Expenses for calendar year 2008 shall not exceed Two and
10/100 dollars ($2.10) per rentable square foot of the Building, and Controllable Expenses for
calendar year 2009 will not exceed Two and 21/100 Dollars ($2.21) per square foot of rentable area
of the Building. For purposes hereof, the term “Controllable Expenses” shall mean all Operating
Costs other than costs of capital improvements or other capital expenditures (to the extent same
may be included in Operating Costs as provided above), security, insurance, utilities, snow removal
and contracts negotiated pursuant to collective bargaining agreements.




     Section 4.5. Tenant’s Expense Charge Abatement. Notwithstanding anything herein to
the contrary, Tenant shall be entitled to certain abatements of Tenant’s Expense Charge as and to
the extent expressly set forth in Section 3.6 above.



ARTICLE 5

OCCUPANCY OF DEMISED PREMISES




     Section 5.1. Occupancy of Demised Premises. The occupancy of the Demised Premises or
any part thereof for business by Tenant or anyone claiming by, under or through Tenant shall be
conclusive evidence that (a) Tenant accepts possession; (b) the Demised Premises were in good and
satisfactory condition; and (c) Landlord’s work, if any, was satisfactorily completed at the time
such occupancy was so taken; provided that the foregoing shall not limit Landlord’s continuing
maintenance and repair obligations as expressly set forth in this Lease, including but not limited
to Sections 6.4 and 8.1 (a).



ARTICLE 6

CONDUCT OF BUSINESS BY TENANT




     Section 6.1. Use of Demised Premises. Tenant shall use the Demised Premises during
the Term solely for general office use, including use for data processing center operations, and
for other lawful ancillary purposes, provided that any such other lawful ancillary purpose is
consistent with comparable Class-A office buildings in Lisle/Naperville, Illinois, and for no
other purpose.



     Section 6.2. Compliance with Laws and Requirements of Public Authorities.




     (a) At all times during the Term, Tenant shall give prompt notice to Landlord
of any notice Tenant receives of any violation of any law or requirement of a
governmental authority affecting the Demised Premises or the Building or any
regulation of the board of fire underwriters having jurisdiction over the Building
(“Applicable Law”), and, at its sole cost and expense, shall comply with all
Applicable Laws, including any violation, order or duty imposed upon Landlord or
Tenant, arising from or relating to (1) Tenant’s use of the Demised Premises; (2)
the manner or conduct of Tenant’s business or operation of its installations,
equipment or other property therein; (3) any cause or condition created by or at
the insistence of Tenant; or (4) breach of any of Tenant’s



16









 






obligations hereunder. Notwithstanding the foregoing, but subject to the provisions
of Section 6.2(c) regarding “Hazardous Materials” and subject to the terms of the
last sentence of Section 6.4 below, (A) Tenant shall not be obligated (and instead,
Landlord shall be obligated) to make any capital improvements or capital
replacements required by changes in Applicable Laws following the Commencement Date,
to the extent similar capital improvements or capital replacements will be required
to be made in the Building as a whole as a result of such changes in Applicable Law
(i.e., as distinguished from alterations or improvements made necessary by Tenant’s
particular use of the Demised Premises or required to be made to, or made necessary
by, Tenant’s Work or other Tenant Alterations), and all such capital improvements or
capital replacements which are not so required to be made by Tenant shall instead be
made by Landlord (subject to potential reimbursement as part of “Operating Costs”,
as and to the extent permitted in Section 4.1), and (B) Tenant shall not be
obligated to correct any violation existing at the Demised Premises as of the
Turnover Date of any Applicable Laws in effect as of the Turnover Date, to the
extent constituting “Turnover Noncompliance Work” which is Landlord’s obligation
under Section 6.4 below.




     (b) Tenant shall not do, permit or suffer any act or thing to be done
which is injurious to the Building or the Demised Premises, which is immoral, a
nuisance, contrary to Applicable Law or in violation of the certificate of
occupancy issued for the Building or which would result in the cancellation of,
or any increase in premiums for, insurance maintained by Landlord with respect to
the Building or the Demised Premises.




     (c) Tenant shall not use, maintain or allow the use or maintenance of
the Demised Premises or any part thereof to treat, store, dispose of, transfer,
release, convey or recover Hazardous Materials (as hereinafter defined) nor
shall Tenant otherwise, in any manner, possess or allow the possession of any
Hazardous Materials on or about the Demised Premises; provided, however, any
Hazardous Material lawfully permitted and generally recognized as necessary and
appropriate for general office use, including data process center usage, may be
stored and used on the Demised Premises so long as (i) such storage and use is
in the ordinary course of Tenant’s business permitted under this Lease; (ii) such
storage and use is performed in compliance with all applicable laws and in
compliance with the highest standards prevailing in the industry for the
storage and use of such materials; and (iii) Tenant delivers prior written notice to
Landlord of the identity of and information regarding such materials as
Landlord may require. “Hazardous Materials” shall mean any solid, liquid or gaseous
waste, substance or emission or any combination thereof which may (i) cause or
significantly contribute to an increase in mortality or serious illness, or
(ii) pose the risk of a substantial present or potential hazard to human health, to the
environment or otherwise to animal or plant life, and shall include without
limitation hazardous substances and materials described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;



17









 






the Resource Conservation and Recovery Act, as amended; and any other applicable
federal, state or local laws. Tenant shall immediately notify Landlord of the
presence or suspected presence of any Hazardous Materials on or about the Demised
Premises and shall deliver to Landlord any notice received by Tenant relating
thereto.




     (d) Tenant agrees that it shall not keep, use, sell or offer for sale in or
upon the Demised Premises any article which may be prohibited by any then
available standard forms of fire insurance policies with extended coverage.
Tenant agrees to pay to Landlord any increase in premiums for insurance
maintained by Landlord with respect to the Demised Premises or the Building
resulting from the use of the Demised Premises by Tenant; provided that
Landlord agrees that the foregoing shall not apply to Tenant’s use of the Demised
Premises for general office use, including data processing center usage.




     (e) Tenant shall pay all costs, expenses, fines, penalties or damages
which may be imposed upon Landlord by reason of Tenant’s failure to comply
with the provisions of this Section 6.2.



     Section 6.3. Rules and Regulations. Tenant and its agents, employees, contractors and
invitees shall faithfully observe and comply with the rules and regulations attached hereto as
Exhibit C and incorporated herein by this reference, and such reasonable changes thereto, whether
by modification, elimination or addition, as Landlord may, at any time and from time to time, make
in respect of the Demised Premises and/or the Building (the “Rules and Regulations”). Such changes
shall be effective upon notice thereof from Landlord to Tenant. In the case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and Regulations, as
originally promulgated or as changed, the provisions of this Lease shall control. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations, or the provisions in any other lease, as against any other
tenant; provided, however, that Landlord shall not enforce the Rules and Regulations so as
unjustly to discriminate against Tenant. Landlord shall not be liable to Tenant for the
nonperformance or violation thereof by any other tenant or anyone else.



     Section 6.4. Landlord Compliance. Without limiting Tenant’s obligations under Section
6.2 above, (A) Landlord shall comply with all Applicable Laws pertaining to the Common Areas of
the Building, or otherwise relating to Landlord’s performance of any maintenance or repair
obligations imposed upon Landlord hereunder, and (B) Landlord shall be responsible, within a
reasonable time frame based on the circumstances, for the remediation or other compliance work
(herein, “Turnover Noncompliance Work”) required on account of the Demised Premises not complying,
as of the Turnover Date, with any Applicable Laws (including, without limitation, the Americans
With Disabilities Act) as in effect as of the Turnover Date. For purposes of this Section 6.4, it
is understood and agreed that (i) except for costs of Turnover Noncompliance Work (which shall be
at no cost to Tenant), any costs incurred by Landlord relative to such compliance activities under
this Section 6.4 may be included as part of “Operating Costs” hereunder (subject to the
limitations expressly provided in the definition of Operating Costs in this Lease), and (ii)
Tenant shall have no claim against Landlord relative to



18









 




noncompliance of Applicable Laws under this Section 6.4 if any such noncompliance of Applicable
Laws does not adversely impact Tenant’s use and quiet enjoyment of any portion of the Demised
Premises in accordance with the terms of this Lease, and (iii) Tenant shall reasonably cooperate
with Landlord in allowing access to the Demised Premises, subject to prior scheduling with Tenant,
to enable Landlord to perform any compliance work under this Section 6.4 which is required within
the Demised Premises.




ARTICLE 7

COMMON AREA




     Section 7.1. Control of Common Area.




     (a) As used in this Lease, the term “Common Area” shall mean that
part of the interior and exterior of the Building (including, if applicable,
certain areas external to the Building benefiting both the Building and the building
commonly known as 2443 Warrenville Road, Lisle, Illinois) designated by
Landlord for the common use of all tenants, which includes parking area,
sidewalks, landscaping, curbs, driveways, delivery passages, loading
areas, private streets and alleys, lighting facilities, drinking fountains, meeting
rooms, public toilets and the like. Landlord grants Tenant a nonexclusive license for
the Term, to use in common with the invitees of Landlord and Tenant and such other
persons as Landlord and Tenant shall designate, the Common Area, subject to the
terms and conditions of this Lease and to the Rules and Regulations.




     (b) Landlord reserves the right, at any time and from time to time,
without incurring any liability to Tenant therefor, to change the arrangement,
dimensions and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, parking areas or other parts of the
Common Area; provided that, except to the extent required by Applicable Laws or in the
case of an emergency, no action taken by Landlord under this subclause (b)
shall materially adversely affect Tenant’s access to the Demised Premises or Tenant’s
right to use and occupy the Demised Premises in accordance with the terms of
this Lease. In such event, Landlord shall repair any physical damage caused to the
Demised Premises.




     (c) Landlord reserves the right, at any time and from time to time, to
use portions of the Common Areas for art and other displays, promotional events
and other uses not inconsistent with the character of the Building.



     Section 7.2. Parking. Tenant shall have only such parking rights as are provided
in the Parking Rider set forth as Exhibit D attached hereto.



19









 





ARTICLE 8

REPAIRS, ALTERATIONS AND MECHANICS’ LIENS




     Section 8.1. Repairs.




     (a) Landlord shall (i) keep the core and shell (as defined in Section
12.5), the roof, exterior walls, foundation and structural frame of the
Building and the Common Area in good order, repair and condition (excluding, however, all
repairs which Tenant is obligated to make or pay for pursuant to this Section
8.1 and all repairs which any other tenant of the Building is required to make
pursuant to the terms of such tenant’s lease), consistent with comparable Class A office
building standards, at all times during the Term, and (ii) keep in good order,
condition and repair, consistent with comparable Class A office
building standards, all outside windows of the Demised Premises and the base Building
electrical, plumbing, heating, ventilating and air conditioning systems
servicing the Demised Premises (other than as set forth in Section 8.1(b)
below). Landlord’s repair obligations hereunder shall include the “replacement” of
items for which Landlord is responsible for repair hereunder, as opposed to repairs
to such items, if such items have reached the end of their useful life (as
determined by Landlord, in good faith), and if the replacement (in lieu of repair) of such
items would be the commercially reasonable course of action in accordance with
comparable Class A office building standards. Tenant shall give Landlord prompt
notice of any defective condition in any base Building plumbing, heating system
or electrical lines located in, servicing or passing through the Demised
Premises and following such notice, Landlord shall use commercially reasonable efforts
where practicable to initiate all repairs promptly and to remedy the condition
with due diligence, subject to unavoidable delay, but at the expense of Tenant if
repairs are necessitated by any default by Tenant hereunder or by any negligence or
willful misconduct attributable to Tenant, Tenant’s agents, employees, invitees
or licensees; provided, however, that no liability of Landlord to Tenant shall
accrue hereunder unless and until Tenant has given notice to Landlord of the specific
repair to be made.




     (b) Tenant, at its sole cost and expense, shall (i) keep the Demised
Premises (including all Tenant’s Work and other Alterations) in good order,
repair and condition at all times during the Term, and (ii) promptly and adequately
repair all damage to the Demised Premises, including damage to interior windows
and to any portion of the Building air conditioning, heating, electrical,
mechanical and plumbing systems which run through the Demised Premises and which serve
the Demised Premises, to the extent caused by Tenant or its contractors,
agents, employees or invitees (and to the extent not caused by Tenant or it contractors
or agents, employees or invitees, then Landlord shall make such repairs as and to
the extent provided in Section 8.1 (a) above). All repairs made by or on behalf
of Tenant shall be made and performed in accordance with the provisions of
Section 8.2 and shall be consistent in quality and design to Class A office
buildings in Lisle/Naperville, Illinois. If Tenant fails to proceed with due



20









 






diligence to make repairs required to be made by Tenant, and such failure shall
continue for 10 business days after notice from Landlord (except that no such notice
shall be required in the case of an emergency or in the event such failure
materially impacts the occupancy of any other Building tenant or occupant or the
core and shell [as defined in Section 12.5] of the Building), the same may, at
Landlord’s sole discretion and without limiting other rights or remedies available
to Landlord, be made by Landlord at the expense of Tenant and the actual costs so
incurred by Landlord shall be paid to Landlord by Tenant within thirty (30) days of
submission of a bill or statement therefor by Landlord.



     Section 8.2. Alterations. Tenant shall not make any alterations, additions or
improvements (collectively, “Alterations”) in or to the Demised Premises without Landlord’s prior
written consent (not to be unreasonably withheld, conditioned or delayed, as provided in Section
8.5 below). In the event Tenant requests Landlord to perform any construction management or
supervisory services relative to any Alterations, and if Landlord in its sole discretion agrees to
perform such services, then in addition to the cost of such Alterations, Tenant agrees to pay
Landlord, as Landlord’s charges for all such services, a cost recovery fee in an amount mutually
agreeable to Landlord and Tenant at such time; otherwise Tenant shall pay Landlord a cost recovery
fee equal to Landlord’s actual out-of-pocket costs (including third-party
architectural/engineering review costs) incurred in connection with Landlord’s performance of its
customary level of supervision, review, approval and coordination for such type of Alteration (the
“Out-of-Pocket Costs”). Tenant shall only utilize contractors approved by Landlord (not to be
unreasonably withheld, conditioned or delayed). Tenant shall submit full and complete plans and
specifications for any Alterations to Landlord, and shall obtain Landlord’s prior approval
thereof, prior to commencing any such Alterations. Tenant shall, before making any Alterations, at
its expense, obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates to Landlord, and
Tenant agrees to carry, and to cause Tenant’s contractors and sub-contractors to carry such
workmen’s compensation, general liability, personal and property damage insurance as Landlord may
reasonably require. Upon completion of any Alterations, Tenant shall deliver to Landlord one set
of “as-built” plans and specifications therefor. All Tenant’s Work and all fixtures, paneling,
partitions, railing and other Alterations, installed in the Demised Premises, either by Tenant or
by Landlord on Tenant’s behalf, shall become the property of Landlord and shall remain upon and be
surrendered with the Demised Premises upon the expiration or earlier termination of the Lease,
unless Landlord, by notice to Tenant given at the time of approval of the plans and specifications
therefor (or within a reasonable time after Landlord receives notice of any “Non-Consent
Alterations” or any “Higher Price Interior Alterations” under Section 8.6 below), elects to have
them removed by Tenant, in which event, the same shall be removed from the Demised Premises by
Tenant on or before the Expiration Date or earlier termination hereof; provided, however, that
such removal requirement shall only be imposed by Landlord if Landlord, in good faith, determines
that such item or items would not be customary for office usage at comparable Class-A office
buildings in Lisle/Naperville, Illinois or would be excessive costly or hazardous to remove.
Nothing in this section shall be construed to give Landlord title to or to prevent Tenant’s
removal of trade fixtures, moveable office furniture and equipment (all of which shall be removed
by Tenant prior to the Expiration Date or earlier termination hereof),



21









 




but upon removal of any such equipment and fixtures from the Demised Premises or upon removal of
other installations (including, without limitation, items of Tenant’s Work and other Alterations)
as may be required by Landlord pursuant to Landlord’s rights to so require removal as described in
this Section 8.2, Tenant shall promptly and at its expense, repair and restore the Demised Premises
to the condition existing prior to installation (subject to ordinary wear and tear) and repair any
damage to the Demised Premises or the Building due to such removal. All property that was permitted
or required to be removed by Tenant at the end of the Term but which remains in the Demised
Premises for ten (10) business days after Tenant vacates the Demised Premises shall be deemed
abandoned and may, at the election of Landlord, and without limitation on other rights or remedies
available to Landlord, either be retained as Landlord’s property or may be removed from the Demised
Premises by Landlord at Tenant’s expense. Without limitation of the foregoing, Tenant shall have no
right or obligation to remove any fixtures, tenant improvements or other items located at the
initial Demised Premises as of the Turnover Date hereunder.




     Section 8.3. Mechanics’ Liens. Tenant shall (a) pay before delinquency all costs and
expenses of work done or caused to be done by Tenant in the Demised Premises; (b) keep the title
to the Building, Land and every part thereof free and clear of any lien or encumbrance in respect
of such work; and (c) indemnify and hold harmless Landlord against any claim, loss, cost, demand
(including reasonable legal fees), whether in respect of liens or otherwise, arising out of the
supply of material, services or labor for such work. Tenant shall immediately notify Landlord of
any lien, claim of lien or other action of which Tenant has knowledge and which affects the title
to the Building, Land or any part thereof. Tenant shall not permit any lien or claim for lien of
any mechanic, labor or supplier or any other lien to be filed against the Building, or the Demised
Premises or any part thereof, arising out of any Alterations or other work performed or alleged to
be performed, by or at the direction of Tenant. If any such lien or claim for lien is filed,
Tenant shall, within fifteen (15) business days of receiving notice of such lien or claim, (i)
have such lien or claim for lien released of record, or (ii) deliver to Landlord a bond, title
insurance or other security in form, content, and amount reasonably satisfactory to Landlord
relative to such lien or claim for lien (whereupon, in the case of this subclause (ii), Tenant
shall thereafter diligently contest such lien or claim for lien). Without limitation of the
foregoing, Tenant shall indemnify, defend and hold harmless, Landlord from and against any such
lien or claim for lien, and the foreclosure or attempted foreclosure thereof, and Tenant shall
cause any such lien to be released of record, in any event, prior to final enforcement thereof. If
Tenant fails to take the actions described in subclause (i) or subclause (ii) above, then
Landlord, without investigating the validity of such lien or claim for lien and without limiting
other rights or remedies available to it hereunder, may pay or discharge the same, and Tenant
shall, as payment of Additional Rent hereunder, reimburse Landlord upon demand for the amount so
paid by Landlord.



     Section 8.4. Indemnification. Without limitation of any other indemnification
provisions contained in this Lease, Tenant hereby agrees to indemnify, protect, defend and hold
harmless Landlord, and Landlord’s agents, employees, contractors, officers, trustees, directors,
shareholders, partners and principles (disclosed or undisclosed) from and against all claims,
liabilities, losses, damages and expenses of whatever nature arising out of or in connection with
any Alterations, including, without limitation, the cost of any repairs to the Demised Premises or



22









 




Building necessitated by activities of Tenant or Tenant’s contractors and bodily injury to persons,
except to the extent caused by the negligence or willful misconduct of Landlord or of said other
parties.




     Section 8.5. Reasonable Consent. With respect to any Alterations, other than
Non-Consent Alterations as described in Section 8.6 below, Landlord agrees not to unreasonably
withhold, delay or condition its consent to such Alterations; provided, however, that Landlord
shall not be deemed to have acted unreasonably if it withholds its consent because, in Landlord’s
reasonable opinion, such work would adversely affect Building systems, the structure of the
Building or the safety of its occupants; would increase Landlord’s cost of repairs, insurance or
furnishing services or otherwise adversely affect Landlord’s ability to efficiently operate the
Building or furnish services to Tenant or other tenants; involves toxic or hazardous materials in
any unlawful manner; or requires entry into another tenant’s premises or use of public areas
(other than use of public areas for prompt movement of materials to the Demised Premises), or
otherwise adversely affects another tenant’s premises or the Common Areas. The foregoing reasons,
however, shall not be exclusive of the reasons for which Landlord may withhold consent, whether or
not such other reasons are similar or dissimilar to the foregoing. Landlord shall give its
approval or disapproval (giving reasonably detailed reasons in case of disapproval) of the plans
and specifications or other submissions for any Alterations (other than those constituting
Tenant’s Work, which shall instead be governed by Article 25) within ten (10) business days after
their delivery to Landlord with Tenant’s express written request for Landlord’s approval thereof
(and, as to any subsequent revised plans and specifications or other submissions submitted by
Tenant to Landlord, within five (5) business days after their delivery to Landlord with Tenant’s
express request for Landlord’s approval thereof). In the event Landlord fails to give its approval
or disapproval of such plans and specifications or other submissions within said 10-business day
(or 5-business day, as applicable) period, then, to the extent Tenant’s request for approval
expressly stated thereon that failure to respond within such 10-business day (or 5-business day,
as applicable) period shall be deemed Landlord’s approval of such plans and specifications or
other submissions, the plans and specifications or other submissions for such Alterations so
submitted shall be approved by Landlord.



     Section 8.6. Non-Consent Alterations. Notwithstanding the foregoing provisions of
this Section, Tenant may perform certain interior alterations (collectively, “Non-Consent
Alterations”) to the Demised Premises such as, but not limited to, carpeting, painting (so long as
the odors from the same do not materially or unreasonably interfere with any other tenant’s
operations), hanging artwork or wall coverings, installing furniture systems, installing non-load
bearing demountable partitions, or other similar interior decorating improvements, without (1)
obtaining Landlord’s consent therefor, (2) obtaining Landlord’s approval of the
contractors/service providers performing the same, or (3) payment of any cost recovery fee or
other supervision fee to Landlord (but subject to the remaining requirements of this Section 8),
but only if (i) such items do not affect the Building structure or HVAC, electrical or other
Building systems, the public areas of the Building or any other tenant space, (ii) Tenant gives
prior written notice to Landlord of such items, including a description of the contemplated work
and the types of materials being used, (iii) the cost of such alterations do not exceed an
aggregate of $100,000 in any 12-month period (the “Cost Limitation”), and (iv) the
contractors/service providers performing such work are reputable and do not cause any labor
disharmony at the



23









 




Building. Approval of plans and specifications shall not be required for the foregoing Non-Consent
Alterations, where plans and specifications are not reasonably appropriate for the work to be
performed. Without limitation of the foregoing, with respect to any such interior alterations which
meet all of the criteria of “Non-Consent Alterations” described above in this Section 8.6 other
than the Cost Limitation described in clause (iii) (herein, the “Higher Price Interior
Alterations”), Landlord shall have the right to approve such Higher Price Interior Alterations, in
accordance with the terms of Section 8.5 above, and all other terms of this Article 8 shall apply
with respect thereto; provided that Landlord shall give its approval or disapproval (giving
reasonably detailed reasons in case of disapproval) of such Higher Price Interior Alterations
within five (5) business days after Tenant’s delivery of the items described in clause (ii) above
relative to such items and Tenant’s express written request from Landlord’s approval thereof (and
if Landlord fails to give its approval or disapproval within said 5-business day period, then to
the extent Tenant’s request for approval expressly stated therein that failure to respond within
such 5-business day period shall be deemed Landlord’s approval of such Higher Price Interior
Alterations, then the Higher Price Interior Alterations shall be deemed approved by Landlord).




ARTICLE 9

UTILITIES AND BUILDING SERVICES




     Section 9.1. Heating, Ventilating and Air Conditioning.




     (a) Subject to limitations and restrictions imposed by federal, state
and/or local authorities, Landlord shall furnish heating and air-conditioning
to the Demised Premises during Normal Business Hours, when reasonably necessary to
provide a temperature condition required for the comfortable occupancy of the
Demised Premises under normal business operations, consistent with the HVAC
design standards described in Exhibit K attached hereto. Wherever
heat generating machines or equipment (other than standard office equipment, such as
reproduction machines) are used in the Demised Premises which may affect the
temperature which would otherwise be maintained by the
Building air-conditioning system, Landlord reserves the right to install supplementary
air-conditioning units for the Demised Premises at the expense of Tenant and
the costs of operation and maintenance thereof shall be paid by Tenant to Landlord
at rates determined by Landlord. Any air-conditioning units required for
Tenant’s computer systems shall be installed at the expense of Tenant and the costs of
operation and maintenance of same shall be paid by Tenant to Landlord at rates
determined by Landlord.




     (b) Tenant recognizes that, outside of Normal Business Hours, Tenant
may require overtime HVAC services in order to render the Demised Premises
comfortable and tenantable and that Tenant shall have no claim against Landlord
for the condition of the Demised Premises outside of Normal Business Hours,
subject to the terms set forth below in this Section 9.1(b). Without limiting
the foregoing, if Tenant desires air conditioning or heat during times or on days
other



24









 






than Normal Business Hours, Landlord shall provide such service to Tenant provided
that (i) Tenant notifies Landlord on or before 2:00 p.m. on any business day on
which Tenant desires air conditioning or heat after Normal Business Hours on such
business day, or before 5:00 p.m. on the business day immediately preceding any
holiday or weekend day for which Tenant desires such service other than during
Normal Business Hours; and (ii) Tenant shall pay Landlord, Landlord’s then
after-hours HVAC charges in connection with such after-hours service (which
after-hours’ charges, as of the date hereof, are described in Section 9.6 below).



     Section 9.2. Cleaning Service. Landlord shall provide customary janitor and cleaning
service in and about the Demised Premises and Common Areas of the Building in accordance with the
specifications attached hereto as Exhibit J, with such changes thereto as may be elected by
Landlord so long as such changes are consistent with janitorial cleaning services being furnished
at comparable Class A office buildings located in the Lisle/Naperville, Illinois area, provided in
no event shall the service levels be decreased below what is provided in Exhibit J (provided that
Landlord shall have no obligation to provide cleaning services to the Demised Premises prior to
the Commencement Date hereunder, except as it relates to the Suite 620 Space and/or the Suite 610
Space described in Section 2.3 above, for which Landlord shall furnish such cleaning services to
such respective spaces from and after any earlier date in which Tenant notifies Landlord that
Tenant has commenced the conduct of business operations therefrom). Tenant shall not provide any
cleaning services without Landlord’s consent and then only at Tenant’s sole responsibility and
expense and by cleaning contractors or employees and in a manner at all times satisfactory to
Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant’s refuse and rubbish
to the extent that such refuse and rubbish removed by Landlord exceeds the refuse and rubbish
normally attendant upon the use of the Demised Premises as offices. Landlord’s obligations under
the terms of this Section 9.2 are subject to the terms of Article 34 below relative to certain
“Secured Areas” as expressly described therein.



     Section 9.3. Elevator Service. Landlord shall furnish non-attended automatic elevator
service during Normal Business Hours, except that one (1) elevator shall be subject to call at all
times.



     Section 9.4. Electricity.




     (a) The Demised Premises shall be separately metered for electrical use.
Electricity shall be distributed to the Demised Premises either by the electric
utility company serving the Building or, at Landlord’s option, by Landlord, and
Landlord shall permit Landlord’s wire and conduits, to the extent available,
suitable and safely capable, to be used for such distribution. If and so long as
Landlord is distributing electricity to the Demised Premises, Tenant shall obtain
all of its electricity from Landlord and shall pay all of Landlord’s charges (at
rates which shall not exceed the reasonably competitive rates for such service
charges to tenants by other electrical utility providers in Lisle/Naperville,
Illinois for space comparable in size to the space leased to Tenant). If the
electric utility company is distributing electricity to the Demised Premises,
Tenant at its cost shall make



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all necessary arrangements with the electric utility company for metering and paying
for electric current furnished to the Demised Premises. Tenant’s use of electricity
in the Demised Premises shall be for the operation of building standard lighting,
electrical fixtures, computers, other data processing or storage equipment and other
office machines and lamps (expressly excluding high electrical consumption business
machines and space heaters) and shall not at any time exceed the capacity of any of
the electrical conductors and equipment in or otherwise serving the Demised
Premises. For information purposes, the electrical capacity (lights and outlets) for
the Demised Premises is as follows: electrical lighting and electronic equipment
load of six (6) watts/square foot (Demand Load) of floor area. If Tenant determines
that it requires additional electrical capacity, Landlord shall reasonably cooperate
with Tenant’s reasonable requests and proposals to obtain such extra power; provided
that (a) such cooperation, as well as any actions taken by Tenant relative to such
additional power needs, shall be at no cost, expense or liability to Landlord, (b)
Tenant’s proposed method of obtaining additional power shall not adversely affect
Building operations or any other tenant’s space or any Building systems, Common
Areas or other core and shell components and (c) any work required to obtain such
additional electrical capacity shall be performed by Tenant, at its expense, in
accordance with the terms and requirements of Article 8 (including all approval
rights of Landlord as set forth therein).




     (b) Tenant shall not, without Landlord’s prior written consent in each
instance (not to be unreasonably withheld, conditioned or delayed in accordance
with the standards of reasonableness set forth in Section 8 above), connect any
additional fixtures, appliances or equipment (other than normal office
electrical fixtures, lamps, computers, other data processing or storage equipment and
similar office machines) to the Building’s electric distribution system or make
any alterations or additions to the electric system of the Demised Premises
existing at the commencement of the Term (it being understood that in no event shall any
lighting or other fixtures, appliances or equipment, whether of the types
described in this clause (b) or otherwise, exceed the overall electrical capacity for the
Demised Premises described in the last sentence of Section 9.4(a) above). If
Landlord grants such consent, the cost of all additional risers and other
equipment required therefor shall be paid as Additional Rent by Tenant to Landlord upon
demand.




     (c) Landlord, at Tenant’s expense, shall purchase and install all light
bulbs, fluorescent and other lighting tubes, ballasts and any incandescent
lamps used in Building-standard lighting fixtures installed by Landlord in the
Demised Premises upon notification from Tenant that such installation is
required, provided that such changes are at market rates. Tenant shall use only such
electrical lighting fixtures and lamps as may be approved by Landlord. Tenant
shall replace, as necessary, all bulbs and fluorescent tubes in non-Building-
standard lighting fixtures, if any, installed in the Demised Premises. If
Tenant shall fail to make any such replacement within five (5) days after written
notice



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from Landlord, Landlord may make such replacement and charge the cost of labor and
materials involved therein to Tenant as additional rent.



     Section 9.5. Interruption of Services. Subject to Section 11.5 hereof, Tenant agrees
that neither Landlord, nor any of Landlord’s constituent partners or owners, nor any of their
respective agents, partners, owners, members or employees, shall be liable for damage or injury to
person, property or business or for loss or interruption of business, or for any other matter, in
the event there is any failure, delay, interruption or diminution in furnishing any service.
Subject to Section 11.5 hereof and except as expressly provided below in this Section, no such
failure, delay, interruption or diminution shall be deemed to constitute an eviction or disturbance
of Tenant’s use or possession of the Demised Premises, in whole or in part, actual or constructive,
nor entitle Tenant to any claim for set-off, abatement or reduction of Rent, nor render Landlord
liable for damages, nor relieve Tenant from the performance of or affect any of Tenant’s
obligations under this Lease. Notwithstanding the foregoing, if the services described in Sections
9.1, 9.3 or 9.4 (but, as to Section 9.4, only to the extent Landlord has elected to furnish
electricity directly to Tenant as provided therein or to the extent the electricity interruption is
caused solely by Landlord’s negligence or willful misconduct or Landlord’s failure to maintain and
repair the base Building electrical systems as required under this Lease) above, are interrupted,
such that Tenant is not able and actually ceases to conduct any of its customary business
activities in the Demised Premises or any portion thereof for a period of three (3) consecutive
business days, then, Base Rent and Tenant’s Expense Charge shall abate with respect to those
portions of the Demised Premises so rendered untenantable as of the fourth (4th) consecutive
business day and thereafter until such time as service is restored so that Tenant is able to or
actually resumes occupancy of the Demised Premises (or such affected portion thereof, as
applicable) for any of its customary business activities. Landlord shall use commercially
reasonable efforts to minimize such failure, delay, interruption or diminution in furnishing the
services described in Sections 9.1, 9.3 and 9.4 (but, as to Section 9.4, only to the extent
Landlord has elected to furnish electricity directly to Tenant as provided therein) above.
Notwithstanding any of the foregoing provisions of this Section, untenantability by reason of
damage by fire or other casualty shall be governed by the provisions of Article 12 hereof. Subject
to Section 11.5 hereof, in the case of any untenantability of the Demised Premises or any portion
thereof as a result of the matters described in this Section, the remedies expressly set forth
hereinabove in this Section shall constitute Tenant’s sole and exclusive remedies as against
Landlord with respect to such untenantability.



     Section 9.6. Overtime Services. In the event Tenant requires any utilities or
services described in this Article 9 during periods other than as provided in this Article 9 and
provided that Tenant shall have given Landlord notice no later than 2:00 P.M. of the last business
day prior to Tenant’s need for such services, Landlord shall provide Tenant with such services and
Tenant shall pay Landlord, as Additional Rent, Landlord’s then existing charges in respect thereto
(it being acknowledged that, as of the date hereof, for information purposes only, Landlord’s
after-hours charges for HVAC are $4.00 per hour per heat pump).




27











 





ARTICLE 10

PROPERTY AND OTHER TAXES




     Section 10.1. Tenant’s Property. In addition to the Rent and other charges to be paid
by Tenant hereunder, Tenant shall reimburse Landlord, upon demand, for any and all taxes payable by
Landlord whether or not now customary or within the contemplation of the parties hereto, levied,
assessed or imposed: (1) upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Demised Premises or any portion
thereof; (2) upon the measured value of Tenant’s personal property owned, installed, used or
located in the Demised Premises, it being the intention of Landlord and Tenant that, to the extent
possible, such personal property taxes shall be billed to and paid directly by Tenant; (3) upon the
leasehold interest or any right of occupancy of Tenant in the Demised Premises; or (4) upon this
transaction. Any reimbursement referred to above shall be collectible by Landlord as Additional
Rent hereunder.



     Section 10.2. Increased Value of Improvements. If the tenant improvements in the
Demised Premises, whether installed or paid for by Landlord or Tenant and whether or not affixed
to the real property so as to become a part thereof, are assessed for real property tax purposes
at a valuation higher than the valuation at which tenant improvements conforming to Landlord’s
“Building Standard” in other space in the Building are assessed, then the real property taxes and
assessment levied against Landlord, or against the Building or any portion thereof, by reason of
such excess assessed valuation shall be deemed to be taxes levied against personal property of
Tenant and shall be governed by the provisions of Section 10.1 above. If the records of the tax
assessor having jurisdiction over the Building are available and sufficiently detailed to serve as
a basis for determining whether such tenant improvements are assessed at a higher valuation than
Landlord’s “Building Standard,” such records shall be binding on both Landlord and Tenant;
otherwise, the actual cost of construction shall be the basis for such determination.



ARTICLE 11

INSURANCE AND INDEMNITY




     Section 11.1. Tenant’s Insurance. At all times from and after the Turnover Date and
thereafter during the Term hereof (but subject to the terms set forth below in this Section 11.1
regarding the “Delayed Insurance Delivery”), Tenant shall keep in full force and effect a policy
of commercial general liability and property damage insurance with respect to the Demised
Premises, in such limits as may be reasonably required from time to time by Landlord (provided
that any limits requested by Landlord shall be consistent with the limits required by landlords of
comparable Class A office buildings in the Lisle/Naperville, Illinois area for tenants of
comparable size and financial leased premises). The limits of commercial general liability
insurance on the Commencement Date shall be not less than $3,000,000 for death or injury to any
number of persons or for property damage, for each occurrence. Additionally, Tenant, for the
mutual benefit of Landlord and Tenant (when used in this Section 11.1 the term “Landlord” shall
include Landlord, its constituent partners and the members, partners, directors, officers, agents,
servants and employees of each of them), shall keep in force and effect insurance on all
alterations, additions, and improvements located at the Demised Premises, and on all personal



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property located in the Demised Premises, protecting Landlord and Tenant (including Tenant’s
partners, directors, officers, agents, servants and employees) from damage or other loss caused by
fire or other casualty, including but not limited to vandalism and malicious mischief, perils
covered by extended coverage, theft, sprinkler leakage, water damage (however caused), explosion
malfunction or failure of heating and cooling or other apparatus, and other similar risks in
amounts not less than the full insurable replacement value of such property. Such property
insurance shall provide that it is specific and non-contributory and shall contain a replacement
cost endorsement. In no event shall the limits of any coverage maintained by Tenant pursuant to
this Section 11.1 be considered as limiting Tenant’s liability under this Lease. These policies
shall name Landlord, any person, firms or corporations (including, without being limited to, any
mortgagee or lessor of Landlord) designated by Landlord and Tenant as insureds, shall include
blanket contractual liability coverage which insures contractual liability under the
indemnifications set forth in Section 11.2 hereof and shall contain a clause that the insurer will
not cancel or change the insurance without first giving Landlord 30 days prior written notice. The
insurance shall be written by an insurance company, licensed and qualified to do business in the
State in which the Building is located, which is reasonably acceptable to Landlord. An original
copy of the policy or a certificate of insurance shall be delivered to Landlord upon the execution
and delivery of this Lease and replacement certificates shall be delivered not less than ten (10)
days prior to the expiration of any then existing coverage; provided that Tenant shall have ten
(10) business days following the mutual execution and delivery of this Lease by both parties to
deliver such insurance policy or certificate of insurance to Landlord (the “Delayed Insurance
Delivery”). In no event shall Tenant have the right to begin performance of any Tenant’s Work or
other alterations or to otherwise commence any other business activities at the Demised Premises
prior to delivery of the requisite insurance policy or certificate of insurance to Landlord. The
insurance which Tenant is required to maintain in force and effect under this Section 11.1 shall be
primary insurance as respects Landlord (and any other additional insureds designated by Landlord)
and not excess over or contributory with any other available insurance. Certificates of insurance
evidencing the liability insurance coverage required under this Section 11.1 shall contain an
endorsement to such effect. In addition, at all times during the Term hereof, Tenant shall procure
and maintain Worker’s Compensation Insurance in accordance with the laws of the State in which the
Building is located.




     Section 11.2. Indemnity and Non-Liability.




     (a) Neither Landlord nor Landlord’s agents (including, without being limited,
to the Managing Agent), employees, contractors, officers, trustees, directors,
shareholders, partners or principals (disclosed or undisclosed) shall be liable to
Tenant or Tenant’s agents, employees, contractors, invitees or licensees or any
other occupant of the Demised Premises, and Tenant shall save Landlord, its
successors and assigns and their respective agents, employees, contractors,
officers, trustees, directors, shareholders, partners and principals (disclosed or
undisclosed) harmless from any loss, cost, liability, claim, damage, expense
(including reasonable attorneys’ fees and disbursements), penalty or fine incurred
in connection with or arising from any injury to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any of Tenant’s property or
of the property of any other person, irrespective of the cause of such injury,



29









 






damage or loss (including the acts or negligence of any tenant or of any owners or
occupants of adjacent or neighborhood property or caused by operations in
construction of any private, public or quasi-public work), except, however, to the
extent of any personal injury or property damage resulting from the negligence or
willful misconduct of Landlord or Landlord’s agents or employees. However, even if
such loss or damage is caused by the negligence or willful misconduct of Landlord,
its agents or employees, Tenant waives, to the full extent permitted by law, any
claim for consequential damages in connection therewith. To the extent of Tenant’s
insurance coverage, and to the fullest extent permitted by law, Landlord, and its
agents and employees, shall not be liable, for any loss or damage to any person or
property due to the negligence of Landlord, its agents or employees.





     (b) Neither any (1) performance by Landlord, Tenant or others of any
repairs, improvements, alterations, additions, installations,
substitutions, betterments or decorations in or to the Building, the Building equipment and
systems, the Common Areas or the Demised Premises, (2) failure of Landlord or
others to make any such repairs or improvements, (3) damage to the Building,
the Building equipment and systems, the Common Areas, the Demised Premises or
Tenant’s property, (4) injury to any persons, caused by other tenants or
persons in the Building, or by operations in the construction of any private, public, or
quasi-public work, or by any other cause, (5) latent defect in the Building,
the Building equipment and systems, the Common Areas or the Demised Premises,
nor (6) inconvenience or annoyance to Tenant or injury to or interruption of
Tenant’s business by reason of any of the events or occurrences referred to in
the foregoing subdivisions (1) through (5) shall impose any liability on Landlord
to Tenant, other than, subject to Section 24.10 hereof, such liability relative to
injury to persons or property damage as may be imposed upon Landlord by law for
Landlord’s negligence or the negligence of Landlord’s agents or employees in
the operation or maintenance of the Building, the Building equipment and systems or
the Common Areas or for the breach by Landlord of any express covenant of this
Lease on Landlord’s part to be performed. No representation, guaranty or
warranty is made or assurance given that the communications or security
systems, devices or procedures of the Building will be effective to prevent injury to
Tenant or any other person or damage to, or loss (by theft or otherwise) of, any of
Tenant’s property or of the property of any other person, and Landlord reserves
the right to discontinue or modify at any time such communications or security
systems or procedures without liability to Tenant.




     (c) Subject to the terms of this Section 11.2 and Section 11.3 below, in
addition to and without limiting or being limited by any other indemnity in
this Lease, but rather in confirmation and furtherance thereof, to the extent not
prohibited by law, Tenant agrees to indemnify, defend by counsel reasonably
acceptable to Landlord and hold Landlord, Landlord’s constituent owners, and
each such party’s respective agents, employees, contractors, officers,
directors, shareholders, owners, partners, members, or principals, harmless of, from and



30









 






against any and all losses, damages, liabilities, claims, liens, costs and expenses,
including court costs and reasonable attorneys’ fees and expenses, in connection
with injury to or death of any person occurring within or about the Demised
Premises, or with respect to damage to or theft, loss or loss of the use of any
property, occurring in or about the Demised Premises, but only to the extent that
the foregoing losses, damages, liabilities, claims, liens, costs and expenses arise
from or are caused by the undertaking by Tenant or its agents or contractors of
Tenant’s Work or other Tenant Alterations or repairs at the Demised Premises, or
from any breach or default on the part of Tenant in the performance of any covenant
or agreement on the part of Tenant to be performed pursuant to the terms of this
Lease, or from any negligent act or omission or willful misconduct of Tenant, or any
of its employees, agents, licensees, invitees or contractors. No persons or entities
other than Landlord and such other indemnified parties shall be deemed third party
beneficiaries of the indemnitees set forth in this Section 11.2(c). Tenant’s
obligations under this Section 11.2(c) shall survive the expiration or earlier
termination of this Lease.




     (d) Tenant shall pay to Landlord as Additional Rent, within thirty (30) days
after submission by Landlord to Tenant of bills or statements therefor, sums equal
to all losses, costs, liabilities, claims, damages, fines, penalties and expenses
referred to in this Section 11.2.



     Section 11.3. Waiver of Subrogation.




     (a) Landlord and Tenant shall each use commercially reasonable
efforts to procure an appropriate clause in, or endorsement to, each of its
policies for fire and extended coverage insurance, pursuant to which the insurance
company effectively waives subrogation or consents to waiver of its right of
recovery against the other party, which, in the case of Tenant, shall be deemed
to include any subtenant in the Demised Premises, and having obtained such clause
or endorsement of waiver of subrogation or consent to a waiver of the right of
recovery, such party hereby agrees that it will not make any claim against or
seek to recover from the other for any loss or damage to its property or the
property of others covered by such fire or extended coverage insurance; provided, however,
that the release, discharge and covenant not to sue herein contained shall be
limited by the terms and provisions of the waiver of subrogation clause or
endorsement, or the clause or endorsement consenting to a waiver of right of
recovery, and shall be co-extensive therewith.




     (b) If either party hereto shall not be able to obtain such clause or
endorsement on a particular policy after using reasonable efforts to do so,
then that party shall so notify the other party hereto at least 15 days prior to the
date the policy is to take effect. If a party shall fail to give notice of inability
to obtain such clause or endorsement, then that party shall be deemed to have waived its
right of recovery from the other party with respect to any loss or damage
insured



31









 






against by the policy with respect to which notice was not given as provided above.



     Section 11.4. Landlord Insurance/Landlord Indemnity.




     (a) Landlord shall carry during the Term hereof replacement cost
property insurance on the Building core and shell (as defined in Section 12.2
below) (including all base Building improvements at the Building, but excluding
the Tenant’s Work and all other alterations, additions or improvements to the
Demised Premises) against fire and other extended coverage perils in an amount
sufficient to prevent Landlord from being deemed a co-insurer of the risks
insured under the policy. Landlord shall also carry, during the Term hereof, liability
insurance, contractual liability insurance, rent loss insurance and
workers’ compensation insurance consistent with insurance coverages maintained by other
landlords of other Class A office buildings in Lisle/Naperville, Illinois and
otherwise in accordance with all applicable laws.




     (b) Subject to the terms of Sections 11.2 and 11.3 above, in addition to
and without limiting or being limited by any other indemnity in this Lease, but
rather in confirmation and furtherance thereof, to the extent not prohibited by
law, Landlord agrees to indemnify, defend by counsel reasonably acceptable to Tenant
and hold Tenant harmless of, from and against any and all losses, damages,
liabilities, claims, liens, costs and expenses, including court costs and
reasonable attorneys’ fees and expenses, imposed on them in connection with injury to or
death of any person, occurring within the Common Areas of the Building, or with
respect to damage to or theft, loss or loss of the use of property of third
(3rd) parties, occurring within the Common Areas of the Building, but only to the
extent that the foregoing losses, damages, liabilities, claims, liens, costs
and expenses arise from or are caused by any breach or default on the part of
Landlord in the performance of any covenant or agreement on the part of Landlord to be
performed pursuant to the terms of this Lease, or from any negligent act or
omission or willful misconduct of Landlord, or any of its employees, agents,
officers, directors, partners or contractors. No persons or entities other
than Tenant shall be deemed third party beneficiaries of the indemnities set forth
in this Section 11.4(b).



     Section 11.5. Landlord’s Negligence. Subject to the provisions of Section 11.3
hereof, no agreement of Tenant in this Lease shall be deemed to exempt Landlord from liability or
damages for injury to persons or damage to property caused by or resulting from the negligence,
gross negligence or willful misconduct of Landlord, its agents or employees, in the operation or
maintenance of the Demised Premises or Building.



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ARTICLE 12

DAMAGE BY CASUALTY




     Section 12.1. Termination of Lease; Repair by Landlord. If the Demised Premises or the
Building (including any portion of the Building providing necessary access to the Demised Premises)
shall be damaged by fire or other casualty and if such damage does not render all or a substantial
portion of the Demised Premises or the Building untenantable, then Landlord shall proceed with
reasonable promptness to repair and restore the core and shell of the Building and the Demised
Premises so as to render the Demised Premises tenantable, subject to reasonable delays for
insurance adjustments and delays caused by matters beyond Landlord’s reasonable control, and also
subject to zoning laws and building codes then in effect. If any such damage renders all or a
substantial portion of the Demised Premises or the Building (including any portion of the Building
providing necessary access to the Demised Premises) untenantable, Landlord shall, within sixty (60)
days after the occurrence of such damage, estimate the length of time that will be required to
substantially complete the repair and restoration of the core and shell of the Building and the
Demised Premises, as the case may be, necessitated by such damage and shall by notice advise Tenant
of such estimate. If it is so estimated that the amount of time required to substantially complete
such repair and restoration will exceed two hundred forty (240) days from the date such damage
occurred, then either Landlord or Tenant (but Tenant shall have such right only if all or a
substantial portion of the Demised Premises [or any portion of the Building providing necessary
access to the Demised Premises] is rendered untenantable and the estimated time, in Landlord’s
reasonable business judgment, required for Landlord to substantially complete such repair or
restoration to render the Demised Premises tenantable will exceed such two hundred forty (240) day
period, and only if the damage was not caused by the negligence or willful misconduct of Tenant,
its agents, contractors, employees or invitees) shall have the right to terminate this Lease as of
the date of notice of such election by giving notice to the other at anytime within twenty (20)
days after Landlord gives Tenant the notice containing said estimate (it being understood that
Landlord may, if it elects to do so, also give such notice of termination together with the notice
containing said estimate). Unless this Lease is terminated as provided in the preceding sentence,
Landlord shall proceed with reasonable promptness to repair and restore the core and shell of the
Building or the Demised Premises so as to render the Demised Premises tenantable, subject to
reasonable delays for insurance adjustments and delays caused by matters beyond Landlord’s
reasonable control, and also subject to zoning laws and 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 repairs and restoration are not in fact completed within the time
period estimated by Landlord, as aforesaid, or within said two hundred forty (240) days. However,
if such repairs and restoration are not completed by a date (“Outside Date”) which is three hundred
sixty (360) days after the date of such fire or other casualty (or one hundred twenty (120) days
after the expiration of the time period estimated by Landlord as aforesaid, if longer than two
hundred forty (240) days and neither party terminated the lease as permitted), which Outside Date
shall be extended (as to Tenant’s ability to terminate only) by all periods of delay attributable
to the acts or omissions of Tenant or Tenant’s agents, employees or contractors, then, to the
extent either party initially had the right to terminate as provided above (or would have had the
right to so terminate if the initial estimate exceeded 240 days, as described above), then such
party shall again have the right to terminate this Lease, effective as of the date of notice of
such election, by giving written notice to the other party



33









 




within thirty (30) day period after said Outside Date as extended as aforesaid, but prior to
substantial completion of repair or restoration; provided, however, that Tenant shall have no right
to so terminate this Lease if the only portions of the core and shell which have not then been
completed are those which, due to sequencing of the work, cannot be completed until Tenant repairs
or restores the portions of the Demised Premises so required by Tenant hereunder, and provided that
Landlord shall have no right to so terminate this Lease if the failure to substantially complete
the repairs and restoration is a result of Landlord’s failure to take reasonable actions to
diligently pursue such repairs and restoration. Notwithstanding anything to the contrary herein set
forth: (i) Landlord shall have no duty pursuant to this Article 12 to repair or restore any portion
of the Tenant’s Work or any other Alterations or other improvements, additions or alterations made
by or on behalf of Tenant in the Demised Premises; (ii) Landlord shall not be obligated (but may,
at its option, so elect) to repair or restore the Demised Premises or Building (A) if the damage is
due to an uninsurable casualty, or (B) if insurance proceeds are insufficient to pay for such
repair or restoration (after taking into account any deductible maintained by Landlord, which
deductible amount shall not be considered for purposes of determining whether the insurance
proceeds are insufficient for purposes of this clause (ii)), and if Landlord had otherwise
maintained the insurance required to be maintained by Landlord hereunder, or (C) if any mortgagee
applies proceeds of insurance to reduce its loan balance, and the remaining proceeds, if any,
available to Landlord are not sufficient to pay for such repair or restoration (provided that if
Landlord elects not to so repair or restore the Demised Premises as a result of any matter
described in this clause (ii), Landlord shall promptly notify Tenant of such election, and, to the
extent such damage rendered a substantial portion of the Demised Premises [including any portion of
the Building providing necessary access to the Demised Premises] untenantable, Tenant shall
thereafter have the right to terminate this Lease effective upon written notice thereof to Landlord
given not later than fifteen (15) business days after Tenant’s receipt of notice of such election
by Landlord, in which event this Lease shall be deemed to have expired by lapse of time as of the
tenth (10th) business day following delivery of such termination notice, as if such date
was the stated expiration date of the Term hereof); and (iii) if any such damage rendering all or
substantial portion of the Demised Premises or Building (including any portion of the Building
providing necessary access to the Demised Premises) untenantable shall occur during the last year
of the Term and Tenant has not then validly exercised any option hereunder to renew the Term hereof
for a further renewal period hereunder, either party (but as to Tenant’s right, only if all or a
substantial portion of the Demised Premises is rendered untenantable and if such damage was not
caused by the negligence or willful misconduct of Tenant, its agents, contractors, employees or
invitees) shall have the option to terminate this Lease by giving written notice to the other
within thirty (30) days after the date such damage occurred, and if such option is so exercised,
this lease shall terminate as of the date of such notice.




     Section 12.2. Repair by Tenant. If this Lease is not terminated pursuant to this
Article 12, Tenant shall, in accordance with Section 8, proceed with reasonable promptness to
repair and restore all Tenant’s Work and other Alterations and all other alterations, additions
and improvements in the Demised Premises, other than any repairs or restoration required to be
made by Landlord pursuant to Section 12.1 above, to as near the condition which existed prior to
the fire or other casualty as is reasonably possible. Tenant agrees and acknowledges that Landlord
shall be entitled to the proceeds of any insurance coverage carried by Tenant relating to
improvements and betterments to the Demised Premises if this Lease terminates.



34









 




Notwithstanding anything herein to the contrary, Tenant shall be entitled to all insurance
proceeds from insurance which it carries relating to its furnishings, trade fixtures and other
items of personalty, irrespective of whether this Lease terminates, and Landlord shall have no
claim relative thereto.




     Section 12.3. Abatement of Rent; Notices of Status of Repairs/Restoration. In the
event any such fire or casualty damage renders the Demised Premises untenantable and if this Lease
shall not be terminated pursuant to the foregoing provisions of this Article 12 by reason of such
damage, then Rent shall abate during the period beginning with the date of such damage and ending
with the date when Landlord substantially completes its repair or restoration required hereunder.
Such abatement shall be in an amount bearing the same ratio to the total amount of Rent for such
period as the portion of the Demised Premises which is untenantable and not used by Tenant from
time to time bears to the rentable area of the entire Demised Premises. In the event of termination
of this Lease pursuant to this Article 12, Rent shall be apportioned on a per diem basis and be
paid to the date of the termination. At Tenant’s request from time to time, Landlord shall update
Tenant as to the status of the repair or restoration work being performed by Landlord under this
Article 12, and as to the then estimate of the time remaining to substantially complete such work.



     Section 12.4. Untenantability. As used in this Article 12, the term “untenantable”
means reasonably incapable of being occupied for its intended use due to damage to the Demised
Premises or Building. Notwithstanding anything contained to the contrary in this Article 12, the
Demised Premises or any portion of the Demised Premises, as applicable, shall be deemed
tenantable, for purposes of this Article 12, unless Landlord, pursuant to this Article 12, is
required to repair or restore any of the core and shell items located therein. Further, if
Landlord, pursuant to this Article 12, is required to repair or restore any of the core and shell
items located within the Demised Premises, then the Demised Premises, or portion thereof, as
applicable, shall be deemed tenantable following such time as Landlord has substantially completed
the repair and restoration work relative to core and shell items located within the Demised
Premises required to be performed by Landlord under this Article 12). Notwithstanding the
foregoing or anything herein to the contrary, the Demised Premises or any portion thereof, as
applicable, shall, in any event, be deemed tenantable for purposes of this Article 12 if Tenant
continues to conduct a substantial part of its customary business operations from the subject
portion of the Demised Premises.



     Section 12.5. Core and Shell. The term “core and shell” shall include all structural
components of the Building (i.e., whether located within the Demised Premises or otherwise), the
roof of the Building, all base building electrical, plumbing, heating, ventilating and air
conditioning systems (other than those utility systems the maintenance and repair of which are the
responsibility of Tenant as set forth in this Lease), and all Common Areas of the Building, but
specifically excludes the Tenant’s Work, any other Alterations and any other work related to
tenant improvements constructed or to be constructed by or for Tenant or other tenants or
installed within the Demised Premises or within any other tenant’s premises.



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ARTICLE 13

EMINENT DOMAIN




     Section 13.1. Taking of Demised Premises. If during the Term all of the Demised
Premises shall be taken for any public or quasi-public use under any statute or by right of eminent
domain, or sale-in-lieu of such taking, this Lease shall automatically terminate on the date on
which the condemning authority takes possession of the Demised Premises (hereinafter called the
“Date of Taking”). If twenty-five percent (25%) or more of the rentable area of the Demised
Premises is taken, Tenant or Landlord shall have the right to terminate this Lease by giving
written notice to the other party of termination within 30 days after the Date of Taking.



     Section 13.2. Partial or Temporary Taking of Building.




     (a) If during the Term, the Building, or any portion thereof, is taken or
sold as set out in Section 13.1, then (1) if in the reasonable opinion of
Landlord substantial alteration or reconstruction of the Building is necessary as a
result thereof, whether or not the Demised Premises are or may be affected; (2) if
one-quarter or more of the value, in Landlord’s sole judgment, of the Building
is included in such taking or sale; or (3) if such portion of the Common Areas
shall be taken as, in Landlord’s sole judgment, to materially interfere or prevent
access to the Building or reduce the value of the Land and the Building by more than
one-quarter; then, Landlord shall have the right to terminate this Lease by
giving to Tenant at least 30 days’ written notice thereof (provided, however, that
Landlord shall not have the right to so terminate this Lease on account of such
circumstance unless Landlord also terminates leases for all other similarly
situated office tenants at the Building).




     (b) If during the Term the Building or the Common Areas, or any
portion thereof, shall be taken as set out in Section 13.1 for a period of less
than one (1) year, this Lease shall remain in full force and effect
subject to Section 13.4 hereof. If such a taking shall be for a period of one (1) year or
more, then the provisions of Section 13.1 and Section 13.2(a), as the case may be,
shall be applicable.




     (c) If either party exercises its rights of termination under Section 13.1
or 13.2 (and any such right must be exercised within 30 days after the Date of
Taking, failing which such right shall be deemed waived), this Lease shall
terminate on the date stated in the notice, provided, however, that no
termination pursuant to notice hereunder may occur later than 60 days after the Date of
Taking.



     Section 13.3. Surrender. On the date of any termination under Section 13.1 or 13.2,
Tenant shall immediately surrender to Landlord the Demised Premises and all interests therein
under this Lease and Tenant shall pay Landlord Rent through the date of termination (or through
the Date of Taking if such date shall not be the same as the date of termination). Landlord may
re-enter and take possession of the Demised Premises and remove Tenant therefrom.



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     Section 13.4. Rent Adjustment for Partial Taking of Demised Premises. If any portion
of the Demised Premises (but less than the whole thereof) is so taken, and no rights of termination
herein conferred are timely exercised, the Term shall expire (or, in respect of a taking pursuant
to Section 13.2(b) hereof, have no force and effect for the period of such temporary taking) with
respect to the portion so taken on (or from) the Date of Taking. In such event, the Rent thereafter
payable under this Lease shall be adjusted pro rata by Landlord in order to account for the
resulting reduction (either temporarily or permanently) in the number of rentable square feet in
the Demised Premises.



     Section 13.5. Awards. Upon any taking or sale described in this Article 13, Landlord
shall be entitled to receive and retain the entire award or consideration for the affected lands
and improvements, and Tenant shall not have nor advance any claim against Landlord or anyone else
for the value of its property or its leasehold estate under this Lease, or for the costs or
removal or relocation, or business interruption expense or any other damages arising out of such
taking or purchase. Nothing herein shall give Landlord any interest in or preclude Tenant from
seeking and recovering on its own account a separate award from the condemning authority
attributable to the taking or purchase of Tenant’s trade fixtures, or the removal or relocation of
its business and effects, or the interruption of its business provided that Landlord’s award is
not diminished thereby. If any such award made or compensation paid to either party specifically
includes an award or amount for the other, the party first receiving the same shall promptly
account therefor to the other.



ARTICLE 14

RIGHTS RESERVED TO LANDLORD




     Section 14.1. Access to Demised Premises. Landlord and Landlord’s agents shall have
the right (but shall not be obligated) to enter the Demised Premises in any emergency at any time,
and to perform any acts related to the safety, protection or preservation thereof or of the
Building. At other reasonable times, and upon reasonable notice, Landlord may enter the Demised
Premises (1) to examine and make such repairs, replacements and improvements as Landlord may deem
necessary or reasonably desirable to the Demised Premises or to any other portion of the Building,
(2) for the purpose of complying with laws, regulations and other requirements of governmental
authorities or the provisions of this Lease (subject to the provisions of Section 14.2(b) below),
(3) for the purpose of posting notices of nonresponsibility, or (4) for the purposes of showing
the same to prospective purchasers or mortgagees of the Building, and during the last nine (9)
months of the Term for the purpose of showing the same to prospective tenants. Tenant shall permit
Landlord to use and maintain and replace unexposed pipes and conduits in and through the Demised
Premises and to erect new unexposed pipes and conduits therein. Landlord may, during the progress
of any work in the Demised Premises, take all necessary materials and equipment into the Demised
Premises and close or temporarily suspend operation of entrances, doors, corridors, elevators or
other facilities without such interference constituting an eviction. Tenant shall not be entitled
to any damages by reason of loss or interruption of business or otherwise during such periods.
During such periods Landlord shall use reasonable efforts to minimize any interference with
Tenant’s use of the Demised Premises. If Tenant is not present to open and permit an entry into
the Demised Premises,



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Landlord or Landlord’s agents may enter the same whenever such entry may be necessary or
permissible by master key or otherwise, provided reasonable care is exercised to safeguard Tenant’s
property. Such entry shall not render Landlord or its agents liable therefor, nor in such event
shall the obligations of Tenant hereunder be affected.




     Section 14.2. Additional Rights. Landlord shall have the following additional rights
exercisable without notice (except as provided below) and without liability to Tenant for damage
or injury to property, person or business, all claims for damage being hereby released, and
without effecting an eviction or disturbance of Tenant’s use or possession or giving rise to any
claim for setoffs, or abatement of Rent:




     (a) To change the name, number or designation by which the Building
may be known (with any change in the street address being done upon not less
than ninety (90) days notice, unless otherwise obligated to do so sooner by the
U.S. post office or other governmental or quasi-governmental body) (provided
that if Landlord voluntarily changes the Building’s street address, as opposed
to being obligated to do so by the U.S. post office or other governmental or
quasi-governmental body, Landlord shall reimburse Tenant for all reasonable costs
incurred by Tenant to replace obsolete stationery, business cards and other pre-printed materials used in Tenant’s business office at the Demised Premises, not
to exceed, in any event, $10,000.00);




     (b) To make such changes in or to the Building, including the building
equipment and systems, as Landlord may deem necessary or desirable, provided
that (1) in connection with any work, necessitated by such changes, Landlord
uses good faith efforts to maintain reasonable access to the Demised Premises and to
minimize unreasonable interference with the conduct of Tenant’s business, and
(2) all of such work shall be conducted in such a manner so that the Building
remains a Class A office building in Lisle/Naperville, Illinois.
Notwithstanding anything contained herein to the contrary, except to the extent required by
Applicable Laws or in the case of an emergency or any case where there is
material impact upon any other tenant’s occupancy or upon the core and shell of
the Building, no action by Landlord under this subclause (b) shall materially
adverse affect Tenant’s access to the Demised Premises, and in no event shall
any action by Landlord under this subclause (b) (i.e., whether required by
Applicable Law or by an emergency or otherwise) increase “Tenant’s Proportionate Share” or
the number of rentable square feet of the Demised Premises for purposes of this
Lease;




     (c) To grant to anyone the exclusive right to conduct any business or
render any services (including, without being limited to, the right to
designate all suppliers or persons furnishing sign painting and lettering, beverages, foods,
towels, vending machines or toilet supplies used or consumed on the Demised
Premises) in the Building, provided such exclusive right shall not operate to
exclude Tenant from the use expressly permitted by Article 6;



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     (d) To close the Building at any such reasonable times after Normal
Business Hours as Landlord may determine, subject, however, to Tenant’s right to
admittance on a 24-hour, 7-day a week basis (but subject to temporary closure for
emergency conditions or as required by Applicable Laws) under such regulations
as shall be prescribed from time to time by Landlord; and




     (e) To perform any act, obligation or other commitment required of or
by Tenant which Tenant has not performed for any reason whatsoever (including,
without being limited to, obtaining insurance coverage); provided that Landlord
has delivered written notice to Tenant of such failure as required by the applicable
provision of this Lease (which notice shall not in any event be less than five (5)
business days, unless otherwise stated in this Lease or unless relating to an
emergency situation), and to charge Tenant as Additional Rent all reasonable
costs and expenses incurred by Landlord for such performance, together with
interest thereon at the Default Rate from the dates of Landlord’s expenditures until
paid.



ARTICLE 15

ASSIGNMENT AND SUBLETTING




     Section 15.1. Consent Required.




     (a) Except as provided in Section 15.7 below, Tenant shall not, voluntarily or
involuntarily, by operation of law or otherwise: (i) assign, mortgage, pledge, encumber or
in any manner transfer this Lease in whole or in part, or (ii) sublet all or any part of
the Demised Premises, or allow any other person to occupy all or any part thereof, without
the prior written consent of Landlord in each instance, and any attempt to do any of such
acts without such consent shall be null and void and of no effect. Tenant shall pay or
reimburse Landlord, within thirty (30) days following Landlord’s demand therefor, the
actual out-of-pocket expenses by landlord (not exceeding, in any one instance, the sum of
One Thousand and No/100 Dollars ($1,000.00)) to cover Landlord’s expenses in reviewing
said request. A transfer of control of Tenant, including, without being limited to, a
transfer of stock or partnership interest or the merger, consolidation, sale of all or
substantially all of the other assets of Tenant or other corporate or other reorganization
of Tenant (whether or not Tenant shall be the surviving entity), shall be deemed an
assignment under this Lease and shall be subject to all the provisions of this Article,
including the requirement of obtaining Landlord’s prior consent (subject, however, to the
terms of Section 15.7 below). The consent by Landlord to any assignment, mortgage, pledge,
encumbrance, transfer or subletting shall not constitute a waiver of the necessity for
such consent to any subsequent assignment, mortgage, pledge, encumbrance, transfer or
subletting.



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     (b) If this Lease be assigned, or if the Demised Premises or any part
thereof be sublet or occupied by anyone other than Tenant, Landlord may collect
Rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein contained.




     (c) Notwithstanding any assignment, mortgage, pledge, encumbrance,
transfer or sublease of this Lease, Tenant shall remain fully liable for the
performance of all of the terms, covenants, obligations and conditions of this
Lease and shall not be released therefrom.



     Section 15.2. Notice of Proposed Assignment or Sublease; Recapture. Except as provided
in Section 15.7 below, Tenant shall, by notice in writing, advise Landlord of its intention from,
on and after a stated date (which shall not be less than twenty (20) nor more than one hundred
eighty (180) days after the date of the giving of Tenant’s notice to Landlord) to assign this Lease
or sublet all or any part of the Demised Premises for the balance or any part of the Term, and, in
such event, Landlord shall have the right, to be exercised by giving written notice to Tenant
within fifteen (15) days after its receipt of Tenant’s notice, (1) to terminate this Lease with
respect to the space described in Tenant’s notice as of the date stated in Tenant’s notice for the
commencement of the proposed assignment or sublease (provided that Landlord shall only have the
right to elect to terminate this Lease, as described in this clause (1), with respect to any
proposed assignment or any proposed sublease which, when added to the space covered by other then
existing subleases, covers greater than seventy percent (70%) of the rentable area of the Demised
Premises), or (2) to consent or refuse to consent to the proposed assignment or sublease, as
described in Section 15.3 below. Tenant’s notice shall include the name and address of the proposed
assignee or subtenant, a true and complete copy of the proposed assignment or sublease and
sufficient information, as Landlord deems reasonably necessary, to permit Landlord to determine (i)
the financial responsibility and character and the nature of the business of the proposed assignee
or subtenant, and (ii) whether Landlord has the right under this Lease to withhold consent to the
proposed assignment or sublease. If Tenant’s notice covers all of the Demised Premises and if
Landlord exercises its right to terminate this Lease as to such space, then the Term of this Lease
shall expire and end on the date stated in Tenant’s notice for the commencement of the proposed
assignment or sublease as fully and completely as if that date had otherwise been the expiration
date of the Term hereof. If, however, Tenant’s notice covers less than all of the Demised Premises,
and if Landlord exercises its right to terminate this Lease with respect to such space described in
Tenant’s notice, then as of the date stated in Tenant’s notice for the commencement of the proposed
sublease, Fixed Rent and Tenant’s Proportionate Share shall be adjusted on the basis of the number
of square feet of rentable area retained by Tenant, and this Lease as so amended, shall continue
thereafter in full force and effect.



     Notwithstanding any of the foregoing to the contrary, if Landlord notifies Tenant that
Landlord has elected to terminate this Lease with respect to the space described in a notice from
Tenant regarding a prospective assignment or sublease transaction, as described in clause (1)



40









 




above, then Tenant shall have the right, at its election, to rescind its earlier notice to
Landlord regarding such transaction, which rescission shall be exercised by notice to Landlord no
later than five (5) business days following Tenant’s receipt of Landlord’s election (time being of
the essence), whereupon this Lease shall continue in full force and effect, and Tenant’s earlier
notice to Landlord shall be deemed null and void




     Section 15.3. Grounds for Withholding Consent. If Landlord, upon receiving Tenant’s
notice with respect to any such space, does not exercise its right to terminate as aforesaid,
Landlord will not unreasonably withhold or delay its consent to Tenant’s assignment of this Lease
or subletting the space covered by Tenant’s notice. Landlord shall not be deemed to have
unreasonably withheld its consent to a proposed assignment of this Lease or to a proposed sublease
of part or all of the Demised Premises if its consent is withheld because: (i) Tenant is then in
default hereunder (it being understood that if Tenant is then in default under this lease, Landlord
shall have the right to condition any consent to a proposed assignment or subletting to Tenant
first having cured such default); (ii) any notice of termination of this Lease or termination of
Tenant’s right of possession shall have been given under Article 17 which is still outstanding;
(iii) either the portion of the Demised Premises which Tenant proposes to sublease, or the
remaining portion of the Demised Premises, or the means of ingress or egress to either the portion
of the Demised Premises which Tenant proposes to sublease or the remaining portion of the Demised
Premises is of such nature that it will violate any Applicable Law, or is of such accessibility,
size or irregular shape so as not to be suitable for normal renting purposes as space on a
multi-tenant floor within the Building; (iv) the proposed use of the Demised Premises by the
proposed assignee or subtenant does not conform with the use set forth in this Lease, or will
violate any applicable law, will impose any additional obligation upon Landlord (other than its
obligations under this Lease) or increase Landlord’s obligations under or cost of compliance with
any laws, or will violate any exclusive right Landlord has granted to any tenant of any part of the
Building; (v) in the reasonable judgment of Landlord the proposed assignee or subtenant is of a
character or is engaged in a business which would be deleterious to the reputation of the Building,
Landlord or any of the constituent partners of Landlord; (vi) in the reasonable judgment of
Landlord, the proposed assignee or subtenant is not sufficiently financially responsible to perform
its obligations under the proposed assignment or sublease; (vii) the proposed assignee or subtenant
is a government (or subdivision or agency thereof); or (viii) the proposed assignee or subtenant is
an occupant (or affiliate thereof) of the Building; provided, however, that the foregoing are
merely examples of reasons for which Landlord may withhold its consent and shall not be deemed
exclusive of any permitted reasons for reasonably withholding consent, whether similar or
dissimilar to the foregoing examples, and Landlord may consider all relevant factors in determining
whether to give or withhold its consent. Tenant agrees that all advertising by Tenant or on
Tenant’s behalf with respect to the assignment of this Lease or subletting of any part of the
Demised Premises must be approved in writing by Landlord prior to publication (which approval shall
not be unreasonably withheld, conditioned or delayed).



     Section 15.4. Excess Rent Payment. If Tenant (as Tenant or debtor-in-possession)
shall assign this Lease or sublet the Demised Premises, or any part thereof, at a rental or for
other consideration in excess of the Rent or pro rata portion thereof due and payable by Tenant
under this Lease, then Tenant shall pay to Landlord as Additional Rent one-half (1/2) of any such
excess rent or other consideration (as described below in this Section) immediately upon receipt
under



41









 




any such assignment or, in the case of a sublease, (i) on the later of the first day of each month
during the term of any sublease, or the day of receipt from such subtenant, one-half (1⁄2) of the
excess of all rent and other consideration (as described below in this Section) paid by the
subtenant for such month over the Rent then payable to Landlord pursuant to the provisions of this
Lease for said month (or if only a portion of the Demised Premises is being sublet, one-half (1⁄2)
of the excess of all rent and other consideration due from the subtenant for such month over the
portion of the Rent then payable to Landlord pursuant to the provisions of this Lease for said
month which is allocable on a rentable area basis to the space sublet), and (ii) immediately upon
the receipt thereof, one-half (1⁄2) of any other consideration realized by Tenant from such
subletting. Landlord shall not be responsible for any deficiency if Tenant shall assign this Lease
or sublet the Demised Premises or any part thereof at a rental less than that provided for herein.
Whenever reference is made to the “excess” of rent or other consideration, such excess shall be
reduced by charging (i.e., on an amortized basis over the term of the sublease or
assignment) against the rent or other consideration paid by such assignee or subtenant, reasonable
brokerage commissions, leasehold improvements, tenant concessions and other out-of-pocket expenses
which Tenant has paid or given in connection with assigning the Lease or subleasing the applicable
portion of the Demised Premises.




     Section 15.5. Lease Assumption; Subtenant Attornment. If Tenant shall assign this
Lease, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written
instrument provided by Landlord and delivered to Landlord not later than ten (10) days prior to
the effective date of the assignment. If Tenant shall sublease any part of the Demised Premises,
Tenant shall obtain and furnish to Landlord, not later than ten (10) days prior to the effective
date of such sublease and in form reasonably satisfactory to Landlord, the written agreement of
such subtenant to the effect that the subtenant will attorn to Landlord, at Landlord’s option and
written request (at Landlord’s sole election), if this Lease terminates before the expiration of
the sublease. Tenant shall, not later than fifteen (15) days after the effective date of any such
assignment or sublease, deliver to Landlord a certified copy of the instrument of assignment or
sublease.



     Section 15.6. Prohibition. In no event shall Tenant assign this Lease or enter into
any sublease, license, concession or other agreement for use, occupancy or utilization of any part
of the Demised Premises which provides for a rental or other payment for such use, occupancy or
utilization based in whole or in part on the income or profits derived by any person from the
Demised Premises leased, used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of gross receipts or sales), and Tenant agrees that all assignments,
subleases, licenses, concessions or other agreements for use, occupancy or utilization of any part
of the Demised Premises shall provide that the person having an interest in the possession, use,
occupancy or utilization of the Demised Premises shall not enter into any lease, sublease,
license, concession or other agreement for use, occupancy or utilization of space in the Demised
Premises which provides for a rental or other payment for such use, occupancy or utilization based
in whole or in part on the income or profits derived by any person from the Demised Premises
leased, used, occupied or utilized (other than an amount based on a fixed percentage or
percentages of gross receipts or sales) and any such purported assignment, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a conveyance of any



42









 




right or interest in the possession, use, occupancy or utilization of any part of the Demised
Premises.




     Section 15.7. Permitted Transfers. Notwithstanding any of the foregoing, Landlord’s
consent shall not be required for an assignment or sublet to a Tenant Affiliate (as hereinafter
defined), and Landlord shall not terminate this Lease with respect to the Demised Premises or any
portion of the Demised Premises or otherwise collect any excess rent under Section 15.4 above as a
result of such assignment or sublet to a Tenant Affiliate; provided, however, that (i) Tenant shall
give reasonable prior notice to Landlord of the proposed assignment or sublet; and (ii) if an
assignment, such assignee shall assume the obligations of Tenant under this Lease. As used in this
Lease, the term “Tenant Affiliate” shall mean any entity (1) which results from a merger or
consolidation with the Tenant under this Lease; (2) which acquires all or substantially all of the
assets of the Tenant under this Lease for a purpose other than to circumvent the provisions of this
Section 15; or (3) which is controlled by, controls, or is under common control with the then
Tenant under this Lease. For purposes of the foregoing, the term “control” shall mean the
ownership, directly or indirectly, of more than 50% of the ownership interests and voting interests
in Tenant. By way of clarification and not in limitation of the foregoing, any assignment or
sublease to a Tenant Affiliate described in this Section 15.7 shall not be subject to the terms of
this Section 15 regarding Landlord’s consent rights, Tenant’s requirement to pay to Landlord any
excess rent, or Landlord’s recapture right, but such assignment or sublease shall be subject to the
other terms of this Section 15, including the terms of Section 15.1(c) regarding the continued
liability of any “Tenant” making an assignment or sublease as well as the continued liability of
each prior “Tenant” (i.e., unless the assigning “Tenant” and/or prior “Tenant” ceases to exist as a
separate legal entity as a result of the transaction giving rise to the permitted assignment under
this Section 15.7, such as in the case of a merger).



ARTICLE 16

INTENTIONALLY OMITTED




ARTICLE 17

DEFAULT




     Section 17.1. Events of Default. This Lease and the Term and estate hereby granted
are subject to the limitation that, whenever any of the following events of default occur
(sometimes referred to in this Lease, in any instance, as a “default”):




     (a) Failure by Tenant to pay any regularly scheduled payment of Rent
(including, without limitation, monthly payments of Fixed Rent and Tenant’s
Expense Charge) when due if such failure continues for five (5) business days
after written notice to Tenant of such failure;




     (b) Any valid transfer of Tenant’s rights in all or any portion of the
Demised Premises or Tenant’s rights under this lease, which transfer violates
the terms set forth in Article 15;



43









 






     (c) Failure by Tenant to commence to cure forthwith, immediately
after receipt of notice from Landlord, any hazardous condition which Tenant has
created or permitted in violation of law or of this Lease, or any failure by
Tenant to thereafter diligently pursue and complete such cure within fifteen (15) days
after receipt of such notice from Landlord; provided that such 15-day period
shall be extended for the time reasonably required to complete such cure (not to
exceed, in any event, an additional 255-day period), if such failure cannot
reasonably be cured within said 15-day period and Tenant commences to cure
such failure within said 15-day period and thereafter diligently and
continuously proceeds to cure such failure;




     (d) Failure by Tenant to complete, execute and deliver any instrument
or document required to be completed, executed and delivered by Tenant pursuant
to Article 21 of this Lease, within the time required for such instrument or
document in accordance with such Article;




     (e) Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease (including any payment of Rent,
if not a regularly scheduled payment of Rent), if such failure shall continue for
fifteen (15) days after written notice thereof from Landlord to Tenant;
provided that, with respect to all defaults under this Section 17.1(e) other than
defaults in the payment of Rent, such 15-day period shall be extended for the time
reasonably required to complete such cure (not to exceed, in any event, an additional
255-day period), if such failure cannot reasonably be cured within said 15-day period
and Tenant commences to cure such failure within said 15-day period and thereafter
diligently and continuously proceeds to cure such failure;




     (f) The levy upon execution or the attachment by legal process of the
leasehold interest of Tenant, or the filing or creation of a lien in respect of
such leasehold interest, which lien shall not be released or discharged within sixty
(60) days from the date of such filing;




     (g) Tenant becomes insolvent or admits in writing its inability to pay
its debts as they mature, or makes an assignment for the benefit of creditors,
or applies for or consents to the appointment of a trustee or receiver for Tenant
or for the major part of its property;




     (h) A trustee or receiver is appointed for Tenant or for a major part of its
property, without Tenant’s application therefor or consent thereto, and is not
discharged within sixty (60) days after such appointment; or




     (i) Any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding for relief under any bankruptcy law or similar law
for the relief of debtors, is instituted (A) by Tenant, or (B) against Tenant and
is allowed against it or is consented to by it or is not dismissed within
seventy-five (75) days after such institution;



44









 




then regardless and notwithstanding the fact that Landlord has or may have some other remedy under
this Lease or by virtue hereof, or in law or in equity, Landlord may give to Tenant a notice (the
“Termination Notice”) of intention of Landlord to end the term of this Lease specifying a day not
less than five (5) days thereafter and, upon the giving of the Termination Notice, this Lease and
the Term and estate hereby granted shall expire and terminate upon the day so specified in the
Termination Notice as fully and completely and with the same force and effect as if the day so
specified were the Expiration Date and all rights of Tenant shall terminate and Tenant shall remain
liable for damages as hereinafter provided. From and after any date upon which Landlord is entitled
to give a Termination Notice, Landlord, without further notice and with or without giving such
Termination Notice, may enter upon, re-enter, possess and repossess itself of the Demised Premises,
by force, summary proceedings, ejectment or otherwise, (but all only to the extent permitted by
applicable law) and may dispossess and remove Tenant and all other persons and property from the
Demised Premises and may have, hold and enjoy the Demised Premises and the right to receive all
rental and other income of and from the same. As used in this Lease the words “enter” and
“re-enter” are not restricted to their technical legal meanings. Tenant expressly waives the
service of any statutory demand or notice which is a prerequisite to Landlord’s commencement of
eviction proceedings against Tenant, including the demands and notices specified in 735 ILCS §§
5/9-209 and 5/9-210.




     Upon and after such entry into possession Landlord may, but shall have no obligation to
(except for any reasonable mitigation obligations as otherwise required by law), relet the Demised
Premises, or any part thereof, for the account of Tenant, to any person, firm or corporation,
other than Tenant, for such Rent, for such time and upon such terms as Landlord, in Landlord’s
sole discretion (subject to any reasonable mitigation requirements imposed by applicable law),
shall determine, and Landlord shall not be required to accept any tenant offered by Tenant or to
observe any instruction given by Tenant about such reletting.



     Section 17.2. Damages.




     (a) Tenant covenants and agrees that in the event of the termination of this
Lease or re-entry by Landlord, under, any of the provisions of this Article 17 or
pursuant to law, by reason of default hereunder on the part of Tenant, Tenant shall
pay to Landlord, as damages with respect to this Lease, at the election of
Landlord:




     (1) a sum which at the time of such termination of this Lease or at
the time of any re-entry by Landlord, as the case may be, represents the
excess, if any, of:




	 	i.	 	the aggregate of the Rent which would have been payable
by Tenant for the period commencing with such earlier
termination of this Lease or the date of any such re-entry,
as the case may be, and ending with the Expiration Date of
this Lease, had this Lease not so terminated or had Landlord
not so re-entered the Demised Premises




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	 	 	 	(discounted to present value using a discount factor equal
to the Prime Rate at the time of the default), over
	 
	 	ii.	 	the aggregate fair market
rental value of the Demised Premises for the same period
(discounted to present value using a discount factor equal to
the Prime Rate at the time of the default); or






     (2) sums equal to the Rent which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the days specified in this Lease following such
termination or such re-entry and until the Expiration Date of this Lease,
provided, however, that if the Demised Premises shall be leased or re-let
during said period, Landlord shall credit Tenant with the net rents, if any,
received by Landlord from such leasing or re-letting, such net Rent to be
determined by first deducting from the gross rents as and when received by
Landlord from such leasing or re-letting the reasonable expenses incurred or
paid by Landlord in terminating this Lease or of re-entering the Demised
Premises and of securing possession thereof, as well as the reasonable
expense of leasing and re-letting, including altering and preparing any
portion of the Demised Premises for new tenants, brokers’ commissions and
all other reasonable expenses properly chargeable against the Demised
Premises and the rental therefrom; but in no event shall Tenant be entitled
to receive any excess of such net rents over the Rent, payable by Tenant to
Landlord hereunder.




     (b) Suit or suits for the recovery of any and all damages, or any
installments thereof, provided for hereunder may be brought by Landlord from
time to time at its election, and nothing contained herein shall be deemed to
require Landlord to postpone suit until the date when the term of this Lease
would have expired if it had not been terminated under the provisions of this Article
17, or under provisions of any law, or had Landlord not re-entered the Demised
Premises.




     (c) Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any damages to which
Landlord may lawfully be entitled in any case other than those particularly
provided for above.



     Section 17.3. Waiver of Jury Trial. The parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way connected with this Lease
or the interpretation thereof, the relationship of Landlord and Tenant, Tenant’s use or occupancy
of the Demised Premises, and/or any claim of injury or damage.



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     Section 17.4. Other Remedies. Landlord may, upon five (5) business days notice thereof
(except that no such notice shall be required in the case of an emergency or if there is any
material impact upon another tenant’s occupancy or upon the core and shell of the Building) to
Tenant (which notice shall state that Landlord intends to exercise its rights hereunder to perform
any obligation on Tenant’s behalf and bill Tenant for the costs and expenses incurred by Landlord
therefor), but shall not be obligated to, perform any obligation of Tenant under this Lease, and,
if Landlord so elects, all costs and expenses paid by Landlord in performing such obligation,
together with interest at the Default Rate, shall be reimbursed by Tenant to Landlord on demand.
Any and all remedies set forth in this Lease: (a) shall be in addition to any and all other
remedies Landlord may have at law or in equity; (b) shall be cumulative; and (c) may be pursued
successively or concurrently as Landlord may elect. The exercise of any remedy by Landlord shall
not be deemed an election of remedies or preclude Landlord from exercising any other remedies in
the future.



     Section 17.5. Landlord Defaults. The occurrence or existence of any one or more of
the following shall constitute a “Landlord Default” under this Lease: (i) Landlord fails to pay
any amounts when due from Landlord to Tenant hereunder, and such failure continues for five (5)
business days after written notice from Tenant to Landlord; or (ii) Landlord fails to observe or
perform any of the other covenants, conditions or provisions of this Lease and fails to cure such
default within fifteen (15) business days after written notice thereof from Tenant to Landlord,
provided that with respect to any such default that cannot reasonably be cured within fifteen (15)
business days, such period for cure shall be extended for such period as is reasonably necessary
to cure such default, not exceeding an additional two hundred fifty-five (255) days, so long as
Landlord commences good faith efforts to cure within the initial 15-business day period and
diligently pursues efforts to cure within such additional period. Upon any Landlord Default under
this Lease, Tenant shall be entitled to exercise any and all remedies available to Tenant as
expressly provided in this Lease or that would be available to Tenant at law or in equity, subject
only to the limitations set forth in Section 21.6 and Section 24.10 of this Lease.



ARTICLE 18

SURRENDER




     Section 18.1. Possession. Upon the expiration or earlier termination of this Lease,
Tenant shall immediately quit and surrender possession of the Demised Premises in as good a state
and condition as they were when entered into, reasonable wear and tear and casualty damage (other
than that which Tenant is obligated to repair) excepted, all subject to any property removal
rights and requirements set forth in Section 8.2 above. Upon such surrender, all right, title and
interest of Tenant in the Demised Premises shall cease.



     Section 18.2. Merger. The voluntary or other surrender of this Lease by Tenant or the
cancellation of this Lease by mutual agreement of Tenant and Landlord shall not work a merger, but
shall, at Landlord’s option, terminate all or any subleases and subtenancies or operate as an
assignment to Landlord of all or any subleases or subtenancies. Landlord’s option hereunder shall
be exercised by notice to Tenant and all known sublessees or subtenants in the Demised Premises or
any part thereof.



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ARTICLE 19

HOLDING OVER




     Section 19.1. Holding Over. If Tenant retains possession of the Demised Premises or
any part thereof after the expiration or earlier termination of this Lease, Tenant shall pay as
Rent a sum equal to 125% (for the first thirty days of such holding over) and 150% (for all
subsequent days of such holding over) of the amount, including Fixed Rent and Additional Rent
hereunder, payable for the month preceding such holding over computed on a daily basis for each day
that Tenant remains in possession. In addition thereto, Tenant shall be liable for and shall pay to
Landlord, all damages, consequential as well as direct, sustained by reason of Tenant’s holding
over. At Tenant’s written request made at any time during the last six (6) months of the Term,
Landlord shall notify Tenant of any leasing of the Demised Premises (or any portion thereof) for a
term commencing following the termination or expiration of the Term or of Tenant’s right to
possession hereunder, which may give rise to indemnification obligations of Tenant pursuant to this
Article 19. No occupancy by Tenant after the expiration of other termination of this Lease shall be
construed to extend the Term. The provisions of this section do not waive Landlord’s right of
re-entry or right to regain possession by actions at law or in equity or any other rights
hereunder, and any receipt of payment by Landlord shall not be deemed a consent by Landlord to
Tenant’s remaining in possession or be construed as creating or renewing any lease or right of
tenancy between Landlord and Tenant.



ARTICLE 20

REMEDIES CUMULATIVE




     Section 20.1. No Waiver. No waiver by Landlord or Tenant of a breach of any
covenants, agreements, obligations or conditions of this Lease shall be construed to be a waiver
of any future breach of the same or any other covenant, agreement, obligation or condition hereof.
No receipt of money by Landlord from Tenant after notice of default, or after the termination of
this Lease or the commencement of any suit or final judgment of possession of the Demised
Premises, shall reinstate, continue or extend the term of this Lease or affect any notice, demand
or suit. The rights and remedies hereby created are cumulative, and the use of one remedy shall
not be construed to exclude or waive the right to the use of another, or exclude any other right
or remedy allowed by law.



ARTICLE 21

ESTOPPEL CERTIFICATE, SUBORDINATION, ATTORNMENT




     Section 21.1. Estoppel Certificate. Tenant shall at any time (but not more than twice
in any calendar year unless in connection with a pending sale or financing transaction) within ten
(10) business days following the request of Landlord, execute and deliver in recordable form and
in substance reasonably satisfactory to Landlord, an written estoppel certificate certifying: the
date Tenant accepted occupancy of the Demised Premises; the date to which Rent has been paid; the
amount of any Security Deposit; that this Lease is in full force and effect and has not been



48









 




modified or amended (or if modified or amended, describing the same) and that there are no defenses
or offsets thereto or defaults of Landlord under this Lease (or if any be claimed, describing the
same); that Tenant has accepted the Demised Premises and the condition thereof and of all
improvements thereto and has no claims against Landlord or any other party with respect thereto (or
if Tenant does not believe the Demised Premises have been satisfactorily completed or believes it
has any claims against Landlord, a full and complete explanation thereof); and such other matters
as Landlord may reasonably request. If Tenant does not complete, execute and deliver to Landlord
the estoppel certificate as and when required herein, then if Landlord serves upon Tenant a second
request and Tenant does not complete, execute and deliver to Landlord the estoppel certificate
within three (3) business days after service of such second request, then such failure by Tenant
shall be deemed a “default” under Section 17.1 (d) above (i.e., without the requirement that
Landlord provide Tenant with any further notice and opportunity to cure same).




     Section 21.2. Subordination. This Lease is and shall be subject and subordinate to
all ground or underlying leases, mortgages and deeds of trust which now or hereafter affect the
Land, Building and/or any ground or underlying leases thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof, subject, however, to the condition precedent
that any mortgagee under a future mortgage placed on the Building shall execute and deliver to
Tenant a subordination, non-disturbance and attornment agreement in recordable form (herein, an
“SNDA”) which shall include (i) recognition and non-disturbance agreements to the effect that the
mortgagee, will not disturb Tenant’s continued occupancy of the Demised Premises under this Lease
so long as Tenant is not in default beyond applicable cure periods hereunder, (ii) such other
reasonable terms and conditions as are contained in the mortgagee’s customary form of
subordination, non-disturbance and attornment agreement (provided that, with respect to the
Initial SNDA (defined below), the form attached hereto as Exhibit F shall constitute the requisite
SNDA hereunder, and with respect to any Subsequent SNDA’s (defined below), any of the terms set
forth in the Initial SNDA (defined below) and below in this Article 21 shall be deemed acceptable
for all purposes hereof), and (iii) provisions consistent within this Article 21 regarding the
rights granted to, and obligations of, any such mortgagee. Within thirty (30) days following
mutual execution and delivery by Landlord and Tenant of this Lease, and after Tenant’s execution
and delivery to Landlord of an original counterpart of a subordination, non-disturbance and
attornment agreement in the form attached hereto as Exhibit F (the “Initial SNDA”), Landlord shall
use all reasonable efforts to cause the currently existing mortgagee to deliver to Tenant an
original counterpart of said Initial SNDA executed on behalf of such currently existing mortgagee.
All SNDAs delivered by Landlord to Tenant hereunder after the Initial SNDA are defined as
“Subsequent SNDA’s”. Landlord and Tenant shall each be responsible for paying their own respective
attorneys’ fees relative to negotiating and/or otherwise processing the aforedescribed SNDAs. In
confirmation of any such subordination, Tenant will execute and deliver upon demand of Landlord
any and all instruments desired by Landlord subordinating this Lease to such ground or underlying
lease, mortgage or deed of trust (subject to receipt of an SNDA, as and to the extent provided
herein). Tenant’s failure to execute and deliver any such instruments within ten (10) business
days after notice from Landlord requesting the execution and delivery of said instruments, which
failure continue for a period of three (3) business days after service of a second request
therefor, shall be deemed



49









 




a “default” under Section 17.1(d) above, hereunder, without any additional notice or cure periods
being required hereunder.




     Section 21.3. Attornment. Tenant agrees that, at the option of the landlord under any
ground lease now or hereafter affecting the real property of which Demised Premises forms a part,
Tenant shall attorn to said landlord in the event of the termination or cancellation of such
ground lease and if requested by said landlord, enter into a new lease with said landlord (or a
successor ground-lessee designated by said landlord) for the balance of the term then remaining
hereunder upon the same terms and conditions as those herein provided (subject, in any event, to
the terms of any then existing SNDA).



     Section 21.4. Mortgages. Tenant covenants and agrees that, if by reason of default
under any mortgage or deed of trust which may now or hereafter affect the Land and/or the Building,
the mortgagee thereunder enters into and becomes possessed of the said mortgaged property either
through possession or foreclosure action or proceeding, or in the event of the sale of the said
mortgaged property as a result of any action or proceeding to foreclosure the said mortgage, Tenant
will attorn to the mortgagee or such then owner as its landlord under this Lease, unless the
mortgagee or such then owner shall elect to terminate this Lease and the rights of the tenant
hereunder (which termination right shall be subject to any then existing SNDA’s). Tenant agrees to
execute and deliver, at any time and from time to time, within ten (10) business days following the
request of the mortgagee or the then owner of the said mortgaged property of which the Demised
Premises forms a part, any instrument which may be necessary or appropriate to evidence such
attornment. Tenant further waives the provisions of any statute or rule of law now or hereafter in
effect which may give or purport to give Tenant any right of election to terminate this Lease or to
surrender possession of the Demised Premises in the event any proceeding is brought by the
mortgagee under any such mortgage to terminate the same, and agrees that unless and until such
mortgagee, in connection with any such proceeding, shall elect to terminate this Lease and the
rights of Tenant hereunder, this Lease shall not be affected in any way whatsoever by any such
proceeding.



     Section 21.5. Protection of Successor Landlord. Notwithstanding anything to the
contrary in this Lease or any mortgage, any party that becomes owner of the Demised Premises or
the Building as a result of (i) foreclosure under any mortgage, (ii) any other exercise by a
Mortgagee (as defined below) of rights and remedies (whether under any mortgage or under
applicable law, including bankruptcy law) as holder of a mortgage, or (iii) delivery by Landlord
to a Mortgagee (or its designee or nominee) of a deed or other conveyance of Landlord’s interest
in the real property in lieu of any of the foregoing (“Successor Landlord”) shall not be liable
for or bound by and of the following matters (except as set forth to the contrary in any then
applicable SNDA):




     (a) Claims Against Former Landlord. Any right of Tenant to any offset,
defense, claim, counterclaim, reduction, deduction or abatement against Tenant’s
payment of Rent or performance of Tenant’s other obligations under this Lease,
arising (whether under this Lease or under applicable law) from Landlord’s breach
or default of under this Lease (“Offset Right”) that Tenant may have against
Landlord or any other party that was landlord under this Lease at any time



50









 






before the occurrence of any attornment by Tenant (“Former Landlord”) relating to
any event or occurrence before the date of attornment, including any claim for
damages of any kind whatsoever as the result of any breach by Former Landlord that
occurred before the date of attornment. The foregoing shall not limit either (i)
Tenant’s right to exercise against Successor Landlord any Offset Right otherwise
available to Tenant because of events occurring after the date of attornment or (ii)
Successor Landlord’s obligation to correct any condition that existed as of the date
of attornment and violate Successor Landlord’s obligations as landlord under this
Lease or (iii) such Successor Landlord’s obligations under this Lease which are
required to be performed from and after the date such Successor succeeds to Former
Landlord’s interest hereunder and obligations under this Lease which have not been
performed by any prior owner and which continue to be unperformed at the time of the
succession and which directly affect Tenant’s quiet enjoyment of the Demised
Premises, such as required maintenance, repairs, restoration and furnishing of
services.




     (b) Prepayments. Any payment of Rent that Tenant may have made to
Former Landlord more than thirty (30) days before the date such Rent was first
due and payable under this Lease with respect to any period after the date of
attornment other than, and only to the extent that, this Lease expressly
required such prepayment.




     (c) Payment; Security Deposit; Work. Any obligation (i) to pay
Tenant any sum(s) that any Former Landlord owed to Tenant unless such sums, if
any, shall have been actually delivered to Mortgagee by way of an assumption of
escrow accounts or otherwise; or (ii) with respect to any security deposited
with Former Landlord, unless such security was actually delivered to Mortgagee.




     (d) Modification, Amendment or Waiver. Any modification or
amendment of this Lease, or any waiver of the terms of this Lease, made without
Mortgagee’s written consent.




     (e) Surrender, Etc. Any consensual or negotiated surrender,
cancellation, or termination of this Lease, in whole or in part, agreed upon
between Landlord and Tenant, unless effected unilaterally by Tenant pursuant to
the express terms of this Lease.



     Section 21.6. Mortgagee’s Right To Cure. Notwithstanding anything to the contrary in
this Lease, before exercising any termination right:




     (a) Notice to Mortgagee. Tenant shall provide any holder of a mortgage
affecting the Demised Premises, the Building, the land beneath the Building or any
interest of Landlord therein (a “Mortgagee”) with notice of the breach or default
by Landlord giving rise to same (the “Default Notice”) and, thereafter, the
opportunity to cure such breach or default as provided for below.



51









 






     (b) Mortgagee’s Cure Period. After Mortgagee receives a Default Notice,
Mortgagee shall have a period of thirty (30) days beyond the time available to
Landlord under this Lease in which to cure the breach or default by Landlord.
Mortgagee shall have no obligation to cure (and shall have no liability or
obligation for not curing) any breach or default by Landlord, except to the extent
that Mortgagee agrees or undertakes otherwise in writing. In addition, as to any
breach or default by Landlord the cure of which requires possession and control of
the Premises, provided that Mortgagee undertakes by written notice to Tenant to
exercise reasonable efforts to cure or cause to be cured by a receiver such breach
or default within the period permitted by this paragraph, Mortgagee’s cure period
shall continue for such additional time (the “Extended Cure Period”) as Mortgagee
may reasonably require to either: (i) obtain possession and control of the Premises
with due diligence and thereafter cure the breach or default with reasonable
diligence and continuity; or (ii) obtain the appointment of a receiver and give such
receiver a reasonable period of time in which to cure the default.



ARTICLE 22

QUIET ENJOYMENT




     Section 22.1. Quiet Enjoyment. Landlord covenants and agrees with Tenant that upon
payment by Tenant of the Rent hereunder and upon the observance and performance of all of the
terms, covenants and conditions on Tenant’s part to be observed and performed, Tenant may peaceably
and quietly enjoy the Demised Premises, free of all claims from Landlord or any party claiming by,
through or under Landlord, but subject, nevertheless, to the terms and conditions of this Lease
(including, without being limited to, the provisions of Article 21). Without limitation of the
foregoing, if any other tenant at the Building is making excessive and unreasonable noise, which
causes a material nuisance to Tenant’s operations at the Demised Premises which is inconsistent
with comparable Class A office building standards, then Landlord shall exercise such reasonable
efforts, consistent with Landlord’s rights under its existing lease with such tenant and in
accordance with Applicable Laws, to cause such tenant to take actions to eliminate or reasonably
reduce such excessive and unreasonable noise.



ARTICLE 23

NOTICES




     Section 23.1. Notices. Whenever any notice or consent is required or permitted
hereunder, such notice or consent shall be in writing. Any notice or document required or
permitted to be delivered hereunder shall be deemed to be delivered (a) upon receipt or refusal of
receipt when sent by personal delivery or by recognized overnight courier or (b) upon the third
(3rd) business day after being deposited in the United States Mail, postage prepaid,
Registered or Certified Mail, Return Receipt Requested, addressed to the parties hereto at the
addresses set forth in Article 1, or at such other addresses as they have theretofore specified by
written notice delivered in accordance herewith.



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ARTICLE 24

MISCELLANEOUS PROVISIONS




     Section 24.1. Time. Time is and shall be of the essence of this Lease and all its
provisions.



     Section 24.2. Applicable Law and Construction.




     (a) This Lease shall be governed by and construed under the laws of
the State in which the Building is located.




     (b) The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one
tenant and to either corporations, associations, partnerships or individuals,
males or females, shall in all instances be assumed as though fully expressed. If
there is more than one person or entity who or which are Tenant under this Lease, the
obligations imposed upon Tenant under this Lease shall be joint and several.
The relationship between Landlord and Tenant created hereunder shall be that of
lessor and lessee and nothing herein shall be construed as creating any joint
venture or partnership. The captions used in this Lease are for convenience
only and do not in any way limit or amplify the terms and provisions hereof.



     Section 24.3. Parties Bound. It is agreed that this Lease, and each and all the
covenants and obligations hereof, shall be binding upon and inure to the benefit of, as the case
may be, the parties hereto, their respective heirs, executors, administrators, successors and
assigns, subject to all agreements and restrictions herein contained with respect to assignment or
other transfer of Tenant’s interest herein.



     Section 24.4. No Representations by Landlord. Neither Landlord nor Landlord’s agents
have made any representations or promises with respect to the physical condition of the Property
or the Building, the Demised Premises, permissible uses of Demised Premises, the rents, leases,
expenses of operation or any other matter or thing affecting or related to the Demised Premises
except as herein expressly set forth, and no rights, easements, or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth in the provisions of this Lease. Tenant
has inspected the Building and the Demised Premises and is thoroughly acquainted with their
condition, and agrees to accept the same “as is” (provided that the foregoing shall not limit any
maintenance and repair obligations of Landlord expressly set forth herein). All understandings and
agreements heretofore made between the parties hereto are merged in this Lease, which alone fully
and completely expresses the agreement between Landlord and Tenant, and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it,
in whole or in part, or a surrender of this Lease or of the Demised Premises or any part thereof
or of any interest of Tenant therein unless such executory agreement is in writing and signed by
Landlord and Tenant.



     Section 24.5. Brokers. Landlord and Tenant each represents and warrants to the other
party that the party making such representation and warranty did not deal with any brokers in



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connection with this Lease other than the Brokers identified in Article 1. Landlord hereby agrees
to pay the brokerage commissions payable to said Brokers in accordance with a written agreement
between Landlord and such Brokers. Each party shall indemnify, defend and hold the other, its
agents and their respective partners, members, shareholders and employees harmless of, from and
against any and all losses, damages, liabilities, claims, liens, costs and expenses, including
without limitation court costs and reasonable attorneys’ fees and expenses, arising from any claims
or demands of any other brokers or finders for any commission alleged to be due such other brokers
or finders claiming to have dealt with the indemnifying party in connection with this Lease or with
whom the indemnifying party hereafter deals or whom such indemnifying party employs.




     Section 24.6. Severability. The invalidity or unenforceability of any provision of
this Lease shall not affect or impair the validity of any other provision.



     Section 24.7. Force Majeure. If either party fails to perform timely any of the
terms, covenants or conditions of this Lease on such party’s part to be performed, and such
failure is due in whole or in part to any strike, lockout, labor trouble, civil disorder, riot,
insurrection, act of terrorism, war, accident, fire or other casualty, adverse weather condition,
act of God, governmental inaction, restrictive governmental law or regulation, inability to
procure materials, electricity, gas, other fuel or water or other utilities at the Building after
reasonable effort to do so, act or event caused directly or indirectly by or by default of the
other party or any of the other party’s employees or agents, or any cause beyond the reasonable
control of such party, then such party shall not be deemed in default under this Lease as a result
of such failure so long as such party continues to take all commercially reasonable efforts to
cure such failure. Nothing in this Section 24.7 shall affect, in any manner, such party’s
obligations to pay amounts otherwise due and owing under this Lease as and when due, and failure
to timely pay such amounts shall not be subject to “force majeure” delays or extensions.



     Section 24.8. Definition of Landlord. As used in this Lease, the term “Landlord”
shall mean only the owner, or the mortgagee in possession, for the time being, of the Building and
the Land or the owner of a lease of the Building or of the Land and the Building, so that in the
event of any sale of the Building or of the Land and the Building or of said Lease, or in the
event of a lease of the Building or of the Land and the Building, said Landlord shall be and
hereby is entirely freed and relieved of all covenants and obligations of Landlord hereunder
accruing after such sale or lease and thereafter to be performed or observed, and it shall be
deemed and construed without further agreement between the parties or their successors in
interest, or between the parties and any such purchaser or lessee, that such purchaser or lessee
has assumed and agreed to performed and observe any and all covenants and obligations of Landlord
hereunder.



     Section 24.9. No Option. The submission of this Lease for examination or execution
does not constitute a reservation of or option for the Demised Premises, and this Lease becomes
effective as a lease only upon execution and delivery thereof by Landlord and Tenant.



     Section 24.10. Exculpatory Clause. All separate and personal liability of Landlord or
any trustee, director, officer, partner, member, owner, principal (disclosed or undisclosed),
agent or




54











 




employee thereof of every kind or nature, if any, is waived by Tenant, and by every person now or
hereafter claiming by, through or under Tenant; and Tenant shall look solely to Landlord’s estate
in the Land and the Building for the payment of any claim against Landlord.




     Section 24.11. Intentionally Omitted.



     Section 24.12. No Recording. Tenant shall not record this Lease, or any portion or
any reference hereto. In the event Tenant records this Lease, or permits or causes this Lease, or
any portion hereof or reference hereto to be recorded, Landlord may declare a default hereunder
and pursue any and all of its remedies provided in this Lease.



     Section 24.13. No Light, View or Air Easements. Any diminution or shutting off of
light, view or air by any structure which may be erected on lands adjacent to the Property shall
in no way affect this Lease or impose any liability on Landlord.



     Section 24.14. Financial Statements. At Landlord’s request, Tenant shall deliver to
Landlord, within one hundred eighty (180) days after the end of each fiscal year of Tenant,
Tenant’s annual financial statements prepared substantially in accordance with generally accepted
accounting principles. All such financial information shall be certified by the chief financial
officer of Tenant as being true, accurate and complete in all material respects. Landlord shall not
disclose such financial information to any third party other than its lenders, partners, members,
agents, consultants, advisors, attorneys and accountants or as may be otherwise required by a
government or governmental agency or pursuant to court order.



ARTICLE 25

TENANT IMPROVEMENTS




     Section 25.1. Tenant’s Improvements. Landlord shall deliver possession of the Demised
Premises to Tenant on or before the Projected Turnover Date. The date Landlord actually tenders
possession of the Premises to Tenant is herein referred to as the “Turnover Date”.



     Subject to the provisions of Section 25.2 below, Tenant shall, at its sole cost and expense,
perform such work as may be necessary or desired by Tenant to improve the Demised Premises for
occupancy, all subject to and in accordance with the provisions of this Lease, including, without
limitation, the provisions of Article 8 hereof. All work referred to in this subparagraph, which
work is to be constructed within a period following the Turnover Date and prior to the
Commencement Date, is hereinafter referred to as “Tenant’s Work”. Tenant shall have the right to
retain its own general contractor for construction of the Tenant’s Work, which general contractor
shall be subject to Landlord’s approval (which approval shall not be unreasonably withheld,
conditioned or delayed as provided in Article 8 hereof). Without limitation of the foregoing, the
parties agree that those general contractors listed on Exhibit E hereto shall be deemed acceptable
to Landlord for purposes of this Section 25.1. Without limitation of the requirement of Article 8
hereof that plans and specifications shall be subject to Landlord’s approval, Tenant shall submit
full and detailed architectural and engineering plans and specifications to Landlord for
Landlord’s approval prior to the commencement of Tenant’s Work



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(which approval shall not be unreasonably withheld, conditioned or delayed, as provided in Article
8). In the event Tenant elects to employ an engineer designated by Landlord in the preparation of
any portion of the plans, or for the performance of any portion of Tenant’s Work, Tenant shall
employ and be responsible for all fees of said engineer in preparing the plans or portion thereof
and for any portion of Tenant’s Work performed by said engineer. In the event Tenant has elected
not to employ Landlord’s designated engineer in the preparation of the plans, Landlord reserves the
right to have the plans reviewed by Landlord’s designated engineer (limited to structural, MEP and
life/fire safety engineering review), and Tenant shall pay or reimburse Landlord, within thirty
(30) days following Landlord’s demand, for the actual out-of-pocket cost and expense incurred by
Landlord relative to such engineering review (the “Engineer Review Costs”). Landlord’s approval
shall be required of engineering plans and specifications, whether prepared by Landlord’s
designated engineer or another engineer. Landlord shall not charge Tenant any supervisory or
coordination fee in connection with the Tenant’s Work; and except for payment of Engineer Review
Costs, if applicable, as provided above, Landlord shall not be entitled to payment of any other
“Out-of-Pocket Costs” (as defined in Section 8.2 above) in connection with the Tenant’s Work,
notwithstanding the terms of Article 8 to the contrary. Tenant shall not permit noise from
construction of Tenant’s Work to unreasonably or materially disturb other tenants in the Building.
Tenant’s Work which does so disturb other tenants shall be performed after regular working hours.
Any entry upon the Demised Premises by Tenant or its representatives prior to the Commencement Date
hereof in order to perform Tenant’s Work hereunder shall be subject to all of the terms and
provisions of this Lease, except that Tenant shall not be obligated to pay Fixed Rent or Tenant’s
Expense Charge for any such period prior to said Commencement Date.




     In addition, during normal construction hours for the duration of the phased construction of
the Tenant’s Work, fixturing and move-in period, Tenant shall be allowed to use, at no cost to
Tenant, the freight elevator in the Building for the purposes of moving materials, equipment and
personnel to the Demised Premises. Landlord shall use all reasonable efforts to make the freight
elevator available to Tenant, Tenant’s general contractor and Tenant’s sub-contractors on a
non-exclusive basis during normal business hours.



     Section 25.2. Allowance. Landlord shall make a contribution (the “Allowance”) towards
the cost of Tenant’s Work (including, without limitation, the costs of construction, permits and
inspections, design drawings, architectural drawings, mechanical, electrical and plumbing drawings
and other miscellaneous items including cabling, telephone, furnishings and signage) and toward
moving costs and any other architectural and engineering fees and any other project management
fees and fees of other related project consultants, all in connection with such Tenant’s Work, in
the amount of $2,499,716.00 (i.e., being $38.00 per square foot of rentable area of the Demised
Premises), on the terms and conditions hereinafter set forth:




     (a) Landlord shall disburse the Allowance proceeds from time to time, upon
Tenant’s request for payment from time to time (which first request shall be made
no earlier than thirty (30) days following the Turnover Date and which requests
shall be made no more than once in any calendar month) and certification that the
Tenant’s Work for which payment is requested, has been performed and that the
amounts for which payment is requested are due and owing, which



56









 






disbursement shall be made (i) to Tenant (or, at Landlord’s option, by check payable
jointly to Tenant and to Tenant’s materialmen and contractors) within thirty (30)
days after presentation by Tenant to Landlord of request for payment and appropriate
and complete owner’s sworn statements, contractor’s affidavits and waivers of lien
showing that the work covered thereby has been performed in the Demised Premises and
(ii) to Tenant (or, at Landlord’s option, by check payable jointly to Tenant and to
Tenant’s other suppliers) for such other items which are the basis of such request
within thirty (30) days after receiving bills of such suppliers and, to the extent
their work is lienable, upon presentation of statements, affidavits and waivers as
described in (i) above.




     (b) Landlord has no obligation to disburse any portion of the
Allowance if Tenant is in default under this Lease (provided that if Tenant
cures such default within applicable cure periods, then Tenant shall again be
entitled to such disbursement). Disbursement of any portion of the Allowance shall not be
deemed a waiver of Tenant’s obligation to comply with such provisions. Tenant
shall be responsible for the appropriateness and completeness of the
contractors’ affidavits and waivers of lien and approval of any of such work; Landlord shall
have no responsibility for any of the foregoing.




     (c) In the event that the cost of Tenant’s Work and such other items for
which the Allowance may be applied should for any reason be less than the full
amount of the Allowance, Tenant shall be entitled to receive such difference
either in cash (within thirty (30) days after notice from Tenant) or as a
credit against Fixed Rent for the Demised Premises next coming due under this Lease
(with such choice being made at Landlord’s sole election); provided that Tenant
shall not be so entitled to any portion of such difference exceeding twenty
percent (20%) of the stated amount of the Allowance hereunder. In the event Landlord
reasonably determines, at any time, that the cost of Tenant’s Work and such
other items for which the Allowance may be applied will be in excess of the amount of
the then undisbursed portion of the Allowance, then Tenant shall be solely
responsible for payment of such excess, and Tenant, at Landlord’s option, shall
pay all such excess amounts before Landlord is obligated to disburse any
further portion of the Allowance, and such requirement of Tenant shall be an express
condition for Landlord’s obligation to disburse any further portion of
the Allowance. For purpose of the foregoing, the estimated cost of Tenant’s Work
and other items for which the Allowance may be applied shall be determined by
Landlord based on certified cost statements delivered by Tenant to Landlord
from time to time, and, in any event, delivered by Tenant to Landlord promptly upon
Landlord’s request therefor.




     (d) Tenant shall be required to apply at least $1,249,858.00 of the
overall Allowance (i.e., being $19.00 per square foot of rentable area of the
Demised Premises) toward so-called “hard construction costs” relative to the
Tenant’s Work (the “Hard Cost Allocation”), and as a consequence, in no event
shall Tenant be entitled to apply more than $1,249,858.00 of the overall



57









 






Allowance (i.e., being $19.00 per square foot of rentable area of the Demised
Premises) (the “Soft Cost Allocation”) towards the cost of telephone and data
cabling, moving expenses, signage, furniture, fees of architects, engineers, project
managers and other project consultants, and other so-called “soft” costs, as well as
towards any credit against Fixed Rent as provided in Section 25.2(c) above (which
credit against Fixed Rent shall be subject to such further limitations, in addition
to being required to be taken from the Soft Cost Allocation, as set forth in said
Section 25.2(c) above). Without limitation of the foregoing, it is hereby confirmed
that the direct costs payable to Tenant’s contractor(s) associated with the
acquisition/installation of affixed fire suppression systems and/or raised flooring
within the data center portion of the Demised Premises shall be deemed “hard
construction costs” for purposes hereof.



     Section 25.3. Space Plan Allowance. Without limitation of the foregoing terms
regarding the “Allowance” due and owing from Landlord hereunder, Landlord hereby agrees to make
the following contribution (the “Space Plan Allowance”) pursuant to the following terms and
conditions:




     (a) A contribution toward the fees and costs due and owing from Tenant to its
space planner in connection with the preparation of the initial space plans for
Tenant’s Work and up to one revision thereof in the amount not to exceed $7,893.84
(i.e., being $.12 per square foot of rentable area of the Demised Premises).



     Within thirty (30) days following submission by Tenant’s space planner to Landlord of a
payment request with respect to the Space Plan Allowance, which request shall include a copy of the
invoice(s) showing amounts due and owing to Tenant’s space planner in connection with said space
plans, and, if requested by Landlord, a lien waiver from said space planner showing that all
amounts so due and owing in connection with the preparation of the space plans have been fully
paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant’s direction,
directly to the aforedescribed space planner. In the event that the fees and costs payable by
Tenant to its space planner in connection with preparation of the foregoing space plans is, for any
reason, less than the full amount of the Space Plan Allowance, then Tenant shall not be entitled to
receive any such difference. In the event that the foregoing fees and costs are greater than the
Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess costs
and fees.



     Section 25.4. Card Readers. Without limitation of the foregoing terms of this Article
25, Landlord agrees to install, at Landlord’s expense, a card reader in each of two elevator cabs
serving the Demised Premises, and Tenant shall the right to integrate its security system at the
Demised Premises in a manner so as to utilize such card reader facilities. The foregoing card
reader installation work shall be performed by Landlord on or before January 1, 2007. Any such
security system and card reader integration work performed by Tenant shall be performed in
accordance with the terms of this Article 25 (if included as part of the Tenant’s Work) and
Article 8 above.



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ARTICLE 26

SIGNAGE




     Section 26.1. Building Signage. So long as the original named Tenant herein and/or a
Tenant Affiliate (as described in Section 15 hereof) continues to occupy not less than 30,000
square feet of rentable area of the Demised Premises for the conduct of business operations
therefrom, Tenant shall have the right to install and maintain, during the Term hereof, at Tenant’s
expense, name identification signage (corporate identity name and/or logo) for Tenant located on
the top of the Building, in any one of the east, south or north sides of the Building (“Building
Signage Identification”). The location of any such Building Signage Identification shall be within
the “band” on such applicable side of the Building currently located at the top of the Building,
and in no event shall the Building Signage Identification extent past the roofline of the Building.
The design and font for such Building Signage Identification shall be consistent with the name/logo
depicted in Exhibit I attached hereto and incorporated herein or otherwise acceptable to Landlord,
at its sole discretion; provided that block lettering shall also be acceptable to Landlord, in lieu
of the font shown on Exhibit I. The colors used for such Building Signage Identification shall be
white, black and/or red (as selected by Tenant), or any other color requested by Tenant and
approved by Landlord, at its sole discretion. The materials used for such Building Signage
Identification shall be consistent with comparable Class A office building standards. Tenant shall
have the right, at its expense, to install illuminated Building Signage Identification, so long as
the type of illumination is consistent with Class A office building standards, and does not include
neon or flashing light elements, and provided that the balance of the terms of this Section 26.1
shall continue to apply relative thereto. It is acknowledged that Exhibit I is attached for
illustration purposes relative to certain pre-approved signage elements as expressly described
above in this Section 26.1 (it being understood that Tenant shall have the right to install its
signage on only one side of the Building, as described above in this Article 26, notwithstanding
anything in said Exhibit I to the contrary). All work performed under this Article 26 shall comply
and be performed in accordance with the terms and conditions described in the Article 25 (if
included as part of the Tenant’s Work) and in Article 8 of this Lease, in any case subject to the
necessary approvals and other terms and conditions therein described, and subject to Tenant
obtaining all necessary Village of Lisle and other applicable governmental permits and approvals
therefor. The signage rights of Tenant set forth in this Article 26 are personal to the original
named Tenant hereunder and any permitted Tenant Affiliate assignee, and may not be exercised by any
other assignee or by any sublessee of said Tenant unless Landlord otherwise consents thereto (at
Landlord’s sole discretion), and shall be used solely to identify the name and/or logo of said
original named Tenant or any permitted Tenant Affiliate assignee hereunder.



ARTICLE 27

RIGHT OF FIRST OFFER




     Subject to the provisions hereinafter set forth, Landlord hereby grants to Tenant the right
to lease, on the terms and conditions hereinafter set forth, each portion of space on the first
(1st), second (2nd), third (3rd) and sixth (6th)
floors of the Building (the “First Offer Space”) which is



59









 




not otherwise being leased by Tenant hereunder and which becomes available for leasing during the
First Offer Period (as hereinafter defined).





     (a)
A portion of the First Offer Space shall be deemed to be “available for leasing”upon the occurrence of the following events.




     (1) the expiration of an Existing Lease (as hereinafter defined)
of such portion of the First Offer Space (including any renewals or
extensions thereof, pursuant to options set forth therein), provided
that such portion of the First Offer Space is not then subject to a right or
option to lease such space granted in another Existing Lease;




     (2) if such portion of the First Offer Space is subject to a right
or option granted in another Existing Lease, which right or option is
not exercised, the later to occur of (A) the expiration of such right or
option unexercised and (B) the expiration of the Existing Lease of such
portion of the First Offer Space (including any renewals or extensions thereof,
pursuant to options set forth therein); or




     (3) if such portion of the First Offer Space is subject to a right
or option granted in another Existing Lease, which option is exercised,
the expiration of the term of such other Existing Lease (including any
renewals or extensions thereof, pursuant to options granted therein) or
any later date on which the term of the demise of such portion of the First
Offer Space created by the exercise of such right or option (including
any renewals or extensions thereof, pursuant to options granted in such
Existing Lease) expires.




     (b) Prior to Landlord leasing or granting any option to lease, or
otherwise marketing for leasing, any portion of the First Offer Space which
becomes, or is to become, available for leasing during the First Offer Period,
Landlord shall give Tenant written notice (herein, in each case, an “Initial
Availability Notice”) of the location and rentable area of such portion of the
First Offer Space, the date of commencement of the term of the demise, as determined
by Landlord, with respect to such portion of the First Offer Space (the “First
Offer Space Commencement Date”), the rental rate for such portion of the First
Offer Space (determined as hereinafter provided) and a description of all
concessions (rent abatements, tenant improvement allowances, etc.) applicable
to such First Offer Space. The First Offer Space Commencement Date for any given
First Offer Space shall not be less than sixty (60) days after the date such
corresponding Initial Availability Notice is given by Landlord.




     (c) Tenant’s right to lease the First Offer Space described in any such
Initial Availability Notice from Landlord shall be exercisable by written
notice from Tenant to Landlord of Tenant’s election to exercise said right given not
later than ten (10) days after Landlord’s Initial Availability Notice is given, time
being



60









 






of the essence. If such right is not so exercised, Tenant’s right of first offer
pursuant to the applicable Initial Availability Notice shall thereupon terminate as
to such portion of the First Offer Space, and Landlord may thereafter market the
subject First Offer Space for leasing, and enter into proposals or letters of intent
for the leasing of, and/or for the granting of options to lease, all or any portion
of such First Offer Space, all without notice to Tenant and free of any right in
Tenant under this Article 27, except as provided in Section 27(d) below. If any
Initial Availability Notice covers less than a full floor at the Building, or
pertains to space on the second (2nd) or sixth (6th) floors of
the Building, then Tenant may not elect to lease less than the entire area of the
First Offer Space described in such Initial Availability Notice. If any Initial
Availability Notice covers the full third (3rd) floor and/or the full
first (1st) floor at the Building, then Tenant may elect to either lease
(i) the entire area of such full floor(s) described in such Initial Availability
Notice, or (ii) one-half of any such full floor(s) included in such Initial
Availability Notice. Tenant must designate, in its exercise notice, whether it is
exercising its first offer right with respect to less than the entire area described
in the Initial Availability Notice, as permitted in the previous sentence, and in
the absence of such proper notice so designating less than the entire such First
Offer Space, Tenant shall, upon delivery of its exercise notice, be deemed to have
exercised its first offer right with respect to the entire area described in the
Initial Availability Notice.




     (d) If Tenant, pursuant to Section 27(c) above, does not timely exercise its
first offer right relative to any portion of the First Offer Space described in an
Initial Availability Notice (such First Offer Space not so exercised being referred
to specifically as the “Marketable First Offer Space”), then Landlord may
thereafter market and/or enter into proposals/letters of intent relative to all or
portions of the Marketable First Offer Space. With respect to any such Marketable
First Offer Space, it is agreed that, following such time as Landlord has engaged
in serious discussions with a party other than Tenant concerning a lease or option
to lease with respect to any portion of such Marketable First Offer Space for a
term commencing during the First Offer Period (which shall include, in order to
constitute serious discussions, (A) delivery by Landlord to such party of at least
one (1) proposal for the leasing of such portion of the Marketable First Offer
Space and (B) delivery by such prospect to Landlord of at least one
counter-proposal [or delivery by Landlord to such prospect of a revised proposal
based on comments received from such prospect]), and in any event prior to leasing
or granting an option to lease any portion of the Marketable First Offer Space
which is the subject of such serious discussions, Landlord shall give Tenant
written notice (in each case, a “Second Availability Notice”) of the location and
square feet of rentable area of such portion of the Marketable First Offer Space,
the date of commencement of the term of the demise, as determined by Landlord, with
respect to such portion of the Marketable First Offer Space (the “Marketable First
Offer Space Commencement Date”), the rental rate for such portion of the Marketable
First Offer Space (determined pursuant to the “Market Rental Rate” provisions as
provided below, and including any applicable



61









 






concessions, such as free rent, tenant improvement allowances, etc., if and to the
extent included as part of such Market Rental Rate determination hereunder) and a
description of any expansion rights being offered to the prospective tenant which
would be superior to Tenant’s first offer rights under this Article 27. Unless the
parties mutually agree otherwise, the Marketable First Offer Space Commencement Date
(exclusive of the commencement date for any expansion space described in a Second
Availability Notice) shall not be less than sixty (60) days after the date such
Second Availability Notice is given by Landlord. Tenant’s right to lease the
Marketable First Offer Space described in such a Second Availability Notice from
Landlord shall be exercisable by written notice from Tenant to Landlord of Tenant’s
election to exercise said right given not later than ten (10) days after Landlord’s
Second Availability Notice is given, time being of the essence. If such right is not
so exercised, Tenant’s right of first offer shall thereupon terminate as to such
portion of the Marketable First Offer Space, and Landlord may thereafter lease or
grant options to lease such portion of the Marketable First Offer Space without
notice to Tenant and free of any right in Tenant under this Article 27 except as
hereinafter provided in this Section 27(d). If Tenant does not timely exercise its
first offer rights under this Section 27(d), and if, thereafter, Landlord and the
prospect (or an affiliate thereof) which was the subject of the serious discussions
giving rise to the Second Availability Notice do not enter into a lease and/or an
option to lease with respect to all or any portion of the Marketable First Offer
Space, then Landlord agrees that it shall not enter into a lease or grant an option
to lease with respect to such portion of the Marketable First Offer Space without
again giving a Second Availability Notice to Tenant following such time as Landlord
is again in serious discussions with a prospective tenant regarding all or any
portion of such Marketable First Offer Space for a term commencing within the First
Offer Period. In addition, if Landlord enters into a lease and/or grants option to
lease with respect to any such Marketable First Offer Space, then, at the end of
such lease (including any renewals thereof, pursuant to options set forth therein),
and the expiration of all such options, Tenant shall again have first offer rights
with respect to such space under this Article 27, to the extent such space again
becomes available for leasing during the First Offer Period. Tenant may not elect to
lease less than the entire area of the Marketable First Offer Space described in a
Second Availability Notice, and if a third-party lease would include the Marketable
First Offer Space together with other space in the Building which is not First Offer
Space, Tenant must exercise its right only with respect to such Marketable First
Offer Space. Further, if a Second Availability Notice includes a description of any
First Offer Space being offered as an expansion space option to the third party
prospect, then Tenant, if it so exercises its first offer right pursuant to such
Second Availability Notice, shall be granted the same such expansion option relative
to the proposed expansion space.




     (e) Unless Landlord otherwise agrees (at its sole discretion), Tenant may only
exercise its right to lease a portion of the First Offer Space, and an exercise
thereof shall only be effective, if at the time of Tenant’s exercise of said right
and on the pertinent First Offer Space Commencement Date or Marketable



62









 






First Offer Space Commencement Date (as the case may be), this Lease is in full
force and effect and Tenant is not in monetary default under this Lease, or in any
non-monetary default under this Lease beyond applicable cure periods hereunder, and
(inasmuch as this right of first offer is intended only for the benefit of the
original Tenant named herein and/or a permitted Tenant Affiliate assignee), if at
the time of Tenant’s exercise of said right and as of the pertinent First Offer
Space Commencement Date of Marketable First Offer Space Commencement Date (as the
case may be), the original named Tenant herein has not assigned this Lease (other
than to a permitted Tenant Affiliate), or sublet greater than fifty percent (50%) of
the rentable area of the Demised Premises (other than to one or more permitted
Tenant Affiliates) pursuant to one or more Long Term Assignment/Sublet Agreements
(as hereinafter defined) in effect as of any such date. Without limitation of the
foregoing, no sublessee or assignee (other than a permitted Tenant Affiliate
assignee) shall be entitled to exercise any first offer right hereunder, and, unless
Landlord otherwise agrees (at its sole discretion), no exercise of any first offer
right hereunder by the original Tenant named herein or a permitted Tenant Affiliate
assignee shall be effective in the event said Tenant assigns this Lease (other then
a permitted Tenant Affiliate assignee) or subleases all or greater than fifty
percent (50%) of the rentable area of the Demised Premises (other than to one or
more permitted Tenant Affiliates) pursuant to one or more Long Term
Assignment/Sublet Agreements in effect as of the date of Tenant’s exercise of such
first offer right or as of the pertinent First Offer Space Commencement Date or
Marketable First Offer Space Commencement Date (as the case may be). If the original
Tenant named in this Lease has assigned this Lease to any permitted Tenant Affiliate
assignee as of the time of Tenant’s exercise of any first offer rights under this
Article 27 or as of the pertinent First Offer Space Commencement Date or Marketable
First Offer Space Commencement Date (as the case may be), then, at Landlord’s
option, any such exercise of the first offer right under this Article 27 and the
corresponding lease amendment under Section 27(g) below shall need to be executed by
the original named Tenant in this Lease and each such permitted Tenant Affiliate
assignee in order to be effective for purposes hereof (unless, however, the original
named Tenant no longer exists as a separate and distinct entity as a direct result
of the transaction giving rise to the assignment to such permitted Tenant Affiliate
assignee, such as is the case of a merger, in which event only the permitted
assignee shall be obligated to execute such first offer exercise notice and
corresponding lease amendment hereunder). Notwithstanding anything herein to the
contrary, Landlord shall have the right, at its election, to waive any of the
conditions precedent to Tenant’s valid exercise of its first offer rights under this
Article 27, as such conditions are described above in this Section 27(e), whereupon
Tenant’s prior exercise of such first offer rights shall be valid and in full force
and effect in all respects. Any such waiver by Landlord must be in writing in order
to be effective for purposes of the preceding sentence. For purposes hereof, the
term “Long Term Assignment/Sublet Agreement” shall mean any assignment or sublease
agreement which has a term, inclusive of



63









 






extension or renewal options therein, which extends to a date which is later than
the last day of the then “Measuring Period” (as hereinafter defined). For purposes
hereof, the term “Measuring Period”, as of any date of determination, shall mean a
period equal to seventy-five percent (75%) of the then balance of the stated Term
hereof.




     (f) If Tenant has validly exercised its right to lease a portion of the First
Offer Space, then effective as of the First Offer Space Commencement Date or the
Marketable First Offer Space Commencement Date (as the case may be), such portion
of the First Offer Space shall be included in the Demised Premises, subject to all
of the terms, conditions and provisions of this Lease, except that:




     (1) Rent per square foot of rentable area for such portion of the
First Offer Space shall be equal to the Market Rental Rate (as defined
in Article 30 below) for such First Offer Space, provided that Tenant
shall be entitled to an abatement of Fixed Rent and Tenant’s Expense Charge
attributable to such First Offer Space for the period from and after
the applicable First Offer Space Commencement Date or Marketable First
Offer Space Commencement Date (as the case may be) and through the
first to occur of (A) sixty (60) days after such First Offer Space
Commencement Date or Marketable First Offer Space Commencement
Date (as the case may be), and (B) the day Tenant first occupies such
First Offer Space for the conduct of any business operations therefrom;




     (2) the rentable area of the Demised Premises shall be
increased by the rentable area of such portion of the First Offer Space
(and “Tenant’s Proportionate Share” shall be increased accordingly);




     (3) the term of the demise covering such portion of the First
Offer Space shall commence on the First Offer Space Commencement
Date or the Marketable First Offer Space Commencement Date (as the
case may be), and shall expire simultaneously with the expiration of
the term of this Lease, including any extension or renewal thereof;




     (4) any work performed by Tenant during the first six (6)
months following the First Offer Space Commencement Date or the
Marketable First Offer Space Commencement Date (as the case may be),
to initially ready the First Offer Space for occupancy, shall be
performed in accordance with the terms and conditions set forth in Article 25
above relative to the “Tenant’s Work” therein described (provided that there
shall be no “Allowance” relative to such work, except to the extent provided
in Section 27(f)(5) below, as applicable);




     (5) the First Offer Space shall be rented in its “as is” condition
as of the First Offer Space Commencement Date or Marketable First Offer
Space Commencement Date (as the case may be) (inasmuch as tenant



64









 






improvement work, allowances and other concessions, if any, as well as
market-level security deposit requirements, if any, will be reflected in
Market Rental Rate as described in Article 30 below).




     (g) If Tenant has validly exercised its right to lease a portion of the First
Offer Space, within thirty (30) days after request by either party hereto, Landlord
and Tenant shall enter into a written amendment to this Lease confirming the terms,
conditions and provisions applicable to such portion of the First Offer Space as
determined in accordance herewith.




     (h) If Tenant has validly exercised its right to lease a portion of the First
Offer Space, Landlord shall use commercially reasonable efforts to deliver
possession of such First Offer Space to Tenant on the pertinent First Offer Space
Commencement Date or Marketable First Offer Space Commencement Date (as the case
may be) (including, the filing and diligent prosecution of eviction proceedings, if
necessary, with respect to any holdover tenant therein), but in the event Landlord
should be unable for any reason to do so, then Landlord shall not be subject to any
liability for failure to deliver possession except as provided below in this
Section 27(h). Such failure to deliver possession shall not affect either the
validity of this Lease or the obligations of either Landlord or Tenant hereunder or
be construed to extend the expiration of the term of this Lease either as to such
portion of the First Offer Space or the balance of the leased Demised Premises;
provided that in such event, the First Offer Space Commencement Date or Marketable
First Offer Space Commencement Date (as the case may be) shall be extended until
Landlord is able to deliver possession (i.e., with any rental abatement periods
under Section 27(f)(l) hereof, as applicable, being deferred accordingly). Without
limitation of the foregoing, in the event Landlord fails to deliver possession of
any portion of the First Offer Space, which failure continues for ninety (90) days
beyond the pertinent First Offer Space Commencement Date or Marketable First Offer
Space Commencement Date (as the case may be) (the “Outside First Offer Space
Commencement Date”) for any reason whatsoever (including reasons beyond Landlord’s
reasonable control), then Tenant shall have the additional right, exercised upon
thirty (30) days’ prior written notice thereof to Landlord delivered at any time
following such 90-day period and prior to such time as Landlord has tendered the
applicable First Offer Space to Tenant (time being of the essence) and Landlord’s
failure to deliver possession of such First Offer Space to Tenant within such
30-day period, to revoke its earlier exercise of such applicable first offer right,
whereupon this Lease shall continue in full force and effect without regard to such
First Offer Space, and neither party shall have any further rights or obligations
with respect thereto (provided that Landlord shall again give Tenant the notices
under this Article 27 as and when required hereunder, and Tenant shall again have
first offer rights as provided in this Article 27, prior to Landlord leasing or
marketing for lease any such First Offer Space which remains available for leasing
for a term commencing during the First Offer Period). If Tenant fails to so revoke
its prior exercise notice within the time



65









 






periods set forth in the preceding sentence Tenant shall be deemed to have waived
such right, and the remaining terms of this Section 27(h) shall continue to apply.




     (i) In the event any portion of the First Offer Space is leased to Tenant other
than pursuant to the right of first offer described herein, such portion of the
First Offer Space shall thereupon be deleted from the First Offer Space.




     (j) As used herein, the following terms shall have the following meanings:




     (1) the term “First Offer Period” shall mean the term of this
Lease and all extensions and renewals thereof; provided, however, that
the First Offer Period shall not include the last twenty-four (24) months
of the stated Term unless Tenant has then exercised the option granted to
Tenant under Article 29 below to extend the term for the Renewal Period
described therein (in which event the First Offer Period shall not
include the last twenty-four (24) months of the Renewal Period); and




     (2) the term “Existing Lease” shall mean (A) any lease of any
space in the Building in effect as of the date hereof
(including amendments from time to time thereto which do not grant any additional
rights relative to the First Offer Space hereunder, and including
extensions or renewals thereof, pursuant to options currently granted
therein), whether or not the term of such lease has yet commenced, and/or (B) any
lease or lease amendment entered into by Landlord and a third party
following a Second Availability Notice to Tenant in accordance with
this Article 27 and Tenant’s failure to lease such space pursuant to this
Article 27 (including amendments from time to time thereto which do not
grant any additional rights relative to the First Offer Space
hereunder, and including extensions or renewals thereof, pursuant to options initially
granted in such lease or lease amendment).




     (k) If Tenant exercises its termination rights under Article 31 hereof, then
Tenant shall no longer have any first offer rights under this Article 27 at any
time following the exercise of said termination rights.



ARTICLE 28

EXPANSION OPTION




     Subject to the provisions hereinafter set forth, Landlord hereby grants to Tenant two (2)
separate options to lease, on the terms and conditions hereinafter set forth, space (the
“Expansion Space”) at the Building the exact area, configuration and location of the applicable
Expansion Space and the date of commencement of the term of the demise with respect to the
applicable Expansion Space (each such date being referred to as an “Expansion Space



66









 




Commencement Date”) and the Rent payable relative to such Expansion Space to be designated by
Landlord within the parameters set forth below.





     (a) Each of Tenant’s two (2) options to lease Expansion Space (sometimes
referred to herein as “Expansion Option 1” and “Expansion Option 2”,
respectively) shall be exercisable by written notice from Tenant to Landlord of
Tenant’s election to exercise said option given not later than the applicable
latest exercise date designated below, time being of the essence:



	 	 	 
	EXPANSION OPTION	 	LATEST EXERCISE DATE
	1

	 	April 1,2007
	2

	 	July 1, 2008







     If Tenant’s option as to either of the two (2) expansion options described above is
not so exercised on or before the applicable latest exercise date described above, such
applicable option shall thereupon terminate and Tenant shall not thereafter have any
right to lease any portion of the Expansion Space pursuant to such designated expansion
option (provided that any remaining expansion option under this Article 28 shall continue
in full force and effect and provided further that the failure to exercise any given
expansion option under this Article 28 shall have no effect whatsoever on Tenant’s rights
of first offer under Article 27 above with respect to the First Offer Space therein
described). As to either such expansion option, Tenant may not elect to lease less than
the entire area of the Expansion Space designated by Landlord in accordance with the
parameters described in Section 28(b) below.




     (b) As to each of the two (2) expansion options so exercised by Tenant,
Landlord shall determine the applicable Expansion Space Commencement Date,
subject to the following conditions:




     (1) the area and location of the Expansion Space for Tenant’s
respective expansion options shall meet the requirements designated in
the table set forth in Section 28(b)(2) below; and




     (2) the Expansion Space Commencement Date for each of the
two (2) expansion options designated above shall fall within the
following designated periods:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	WINDOW PERIOD FOR
	 	 	 	 	 	 	EXPANSION SPACE
	EXPANSION	 	EXPANSION	 	COMMENCEMENT
	OPTION	 	SPACE	 	DATE
	1

	 	10,898 rentable square
feet on the sixth
(6th) floor of
the Building, as
identified on Exhibit G
hereto (“Expansion Space
A”)
	 	Between June 1, 2007 and
January 1, 2008
(inclusive)






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	 	 	 	 	 	 	WINDOW PERIOD FOR
	 	 	 	 	 	 	EXPANSION SPACE
	EXPANSION	 	EXPANSION	 	COMMENCEMENT
	OPTION	 	SPACE	 	DATE
	2 

	 	13,156 rentable
square feet on the
second
(2nd)
floor of the
Building, as
identified on Exhibit
H hereto (“Expansion
Space B”)
	 	Between January 1,
2009 and July 1, 2009
(inclusive)







     (c) If Tenant has validly exercised its expansion option under this Article
28, then Landlord shall give Tenant written notice of the applicable Expansion
Space Commencement Date and, as it relates to Expansion Option 2, the applicable
“Market Rental Rate” for Expansion Space B as contemplated by Section 28(e)
below, no later than three (3) months prior to the designated Expansion Space
Commencement Date (provided that Landlord shall, in any event, give its
determination of “Market Rent Rate” for Expansion Space B within fifteen (15)
business days after Tenant’s request therefor (an “Expansion Space B Information
Request”), which Expansion Space B Information Request shall be made no earlier
than the following date:



EARLIEST EXPANSION SPACE B INFORMATION
REQUEST DATE




April 1, 2008





     (d) Unless Landlord otherwise agrees (at its sole discretion), Tenant may
only exercise said option under this Article 28, and an exercise thereof shall
only be effective, if at the time of Tenant’s exercise of said option and on the
pertinent Expansion Space Commencement Date, this Lease is in full force and
effect and Tenant is not in monetary default under this Lease, or in non-monetary
default under this Lease beyond applicable cure periods hereunder, and (inasmuch
as said option is intended only for the benefit of the original Tenant named in
this Lease and/or a permitted Tenant Affiliate assignee), if at the time of
Tenant’s exercise of such right and as of the pertinent Expansion Space
Commencement Date, the original Tenant named in this Lease has not assigned this
Lease (other than to a permitted Tenant Affiliate) or sublet greater than fifty
percent (50%)of the rentable area of the Demised Premises (other than to one or
more permitted Tenant Affiliates) pursuant to one or more Long Term
Assignment/Sublet Agreements (as defined in Section 27(e) above) in effect as of
either such date. Without limitation of the foregoing, no sublessee or assignee
(other than a permitted Tenant Affiliate assignee) shall be entitled to exercise
said option, and, unless Landlord otherwise agrees (at its sole discretion), no
exercise of said option by the original Tenant named in this Lease and/or a
permitted Tenant Affiliate assignee shall be effective in the event said Tenant
assigns this Lease (other than to a permitted Tenant Affiliate) or subleases all
or greater than fifty percent (50%) of the rentable area of the Demised Premises
(other than to one or



68









 






more permitted Tenant Affiliates) pursuant to one or more Long Term Assignment/Sublet Agreements in
effect as of the date of Tenant’s exercise of such expansion right or as of the pertinent Expansion
Space Commencement Date. In the event of an assignment to a permitted Tenant Affiliate assignee as
of the time of Tenant’s exercise of said option under this Article 28 or as of the Expansion Space
Commencement Date, then, at Landlord’s election, any exercise of said option under this Article 28
and the corresponding lease amendment under Section 28(f) below must be signed by both the original
named Tenant in this Lease and each such permitted Tenant Affiliate assignee in order to be
effective (unless, however, the original named Tenant no longer exists as a separate and distinct
entity as a direct result of the transaction giving rise to the assignment to such permitted
assignee, such as is the case of a merger, in which event only the permitted assignee shall be
obligated to execute such expansion exercise notice and corresponding lease amendment hereunder).
Notwithstanding anything herein to the contrary, Landlord shall have the right, at its election, to
waive any of the conditions precedent to Tenant’s valid exercise of its expansion rights under this
Article 28, as such conditions are described above in this Section 28(d), whereupon Tenant’s prior
exercise of such expansion rights shall be valid and in full force and effect in all respects. Any
such waiver by Landlord must be in writing to be effective for purposes of the preceding sentence.




     (e) If Tenant has validly exercised its option to lease any applicable Expansion Space, then
effective as of the pertinent Expansion Space Commencement Date, such Expansion Space shall be
included in the Demised Premises, subject to all of the terms, conditions and provisions of this
Lease, except that:




     (1) except as provided in Section 28(h) below, Rent per square
foot of rentable area of the Expansion Space shall be equal to the Market
Rental Rate (as defined in Article 30 below) for such Expansion Space,
and shall be payable by Tenant as and when Rent is otherwise due for the
balance of the Demised Premises;




     (2) the rentable area of the Demised Premises shall be
increased by the rentable area of the Expansion Space for all purposes
(including, without limitation, for purposes of determining “Tenant’s
Proportionate Share” under this Lease);




     (3) the term of the demise covering the Expansion Space shall
commence on the pertinent Expansion Space Commencement Date and
shall expire simultaneously with the expiration or earlier termination of
the Term of this Lease, including any extension or renewal thereof;




     (4) any work performed at the Expansion Space by Tenant
during the first nine (9) months following delivery of the Expansion Space
to Tenant to initially ready the Expansion Space for occupancy shall be




69











 






performed in accordance with the terms and conditions set forth in Article
25 above relative to the “Tenant’s Work” therein described (provided that
there shall be no “Allowance” relative to such work except to the extent
provided in Section 28(h) below, as applicable); and




     (5) except as provided in Section 28(h) below, the Expansion Space
shall be rented in its “as is” condition as of the Expansion Space
Commencement Date.




     (f) If Tenant has validly exercised its option to lease any Expansion
Space, then, within thirty (30) days after request by either party hereto,
Landlord and Tenant shall enter into a written amendment to this Lease confirming the
terms, conditions and provisions applicable to the Expansion Space as
determined
in accordance herewith.




     (g) In the event Landlord should be unable, due to the holding over of
any existing tenant(s), or due to a fire or other casualty, or for any other
reason, to
deliver possession of any Expansion Space on the applicable Expansion Space
Commencement Date, Landlord shall not be subject to any liability for failure
to deliver possession, except as provided below in this Section 28(g). Such
failure
to deliver possession shall not affect either the validity of this Lease or the
obligations of either Landlord or Tenant hereunder, or be construed to extend
the
expiration of the Term of this Lease either as to such Expansion Space or the
balance of the Demises Premises; provided, however, that under
such
circumstances, the Expansion Space Commencement Date shall be deferred until
Landlord is able to deliver possession. Landlord shall use
commercially
reasonable efforts to deliver possession of each applicable Expansion Space to
Tenant as of the stated Expansion Space Commencement Date described herein,
or as soon thereafter as is reasonably practicable, including, if applicable,
the
commencement of an eviction or similar proceeding to recover possession thereof
from a holdover tenant. Without limitation of the foregoing, if any such
failure to
deliver possession of any Expansion Space persists for a period of ninety (90)
days following the foregoing stated Expansion Space Commencement Date (the
“Outside Expansion Space Commencement Date”) for any reason whatsoever
(including reasons beyond Landlord’s reasonable control), then Tenant shall
have
the right to terminate its earlier exercise of its expansion option under this
Article 29, upon thirty (30) days’ prior written notice thereof given to
Landlord at
any time following such 90-day period and prior to delivery of possession of
such
space to Tenant (time being of the essence) and Landlord’s failure to deliver
possession of such Expansion Space to Tenant within such 30-day period,
whereupon this Lease shall remain in full force and effect without regard to
said
Expansion Space (provided that Tenant shall continue to have all first offer
rights
as otherwise set forth in Article 27 above).




     (h) Notwithstanding the foregoing, with respect to the Expansion Space A
exercised by Tenant under Expansion Option 1 above, in lieu of paying



70









 






Market Rental Rate for such space, Tenant shall instead pay Fixed Rent and
Additional Rent with respect to such space in accordance with the same provisions
as applicable for the initial Demised Premises hereunder (i.e., with Fixed Rent per
square foot of rentable area for such Expansion Space being at the same respective
rates from time to time as Fixed Rent for the initial Demised Premises, all as
determined pursuant to Article 1 above).




     Further, with respect to both Expansion Space A and Expansion Space B, the following
terms shall apply:




     (1) Tenant shall be entitled to an abatement of Fixed Rent and
Tenant’s Expense Charge attributable to such Expansion Space for the
period from and after the applicable Expansion Space Commencement
Date and through the first to occur of (A) ninety (90) days after such
Expansion Space Commencement Date, and (B) the day Tenant first
occupies such Expansion Space for the conduct of any business
operations therefrom; and




     (2) such Expansion Space shall be rented in its “as is”
condition as of the Expansion Space Commencement Date; provided that,
with respect to Expansion Space A only, Tenant shall be entitled to an
“Allowance” in the amount of $38.00 per square foot of rentable area of
the applicable Expansion Space multiplied by a fraction, the numerator
of which is the number of calendar months from and after the applicable
Expansion Space Commencement Date therefor and the denominator of
which is 132 months. With respect to Expansion Space B only, the
“tenant improvement allowance” (if any) shall be determined as part of
the calculation of the Market Rental Rate for such space. Any work
desired by Tenant to ready such space for occupancy will be performed pursuant
to, and the foregoing Allowance or tenant improvement allowance shall
be
disbursed in accordance with, the same terms as set forth in Article 25
above relative to performance of the “Tenant’s Work” and disbursement
of the “Allowance” thereunder.




     (i) If Tenant, pursuant to Article 27 above or otherwise, has leased (with the
term “leased”, for purposes of this subparagraph (i), meaning either that the
demise of such applicable space has then commenced or that Tenant has otherwise
then exercised its first offer rights relative to such applicable space) any
portion of Expansion Space A prior to exercising the first (1st)
applicable expansion option under this Article 28, then such portion of Expansion
Space A so leased by Tenant shall be deducted from the Expansion Space otherwise
required for Expansion Option 1 under this Article 28 (provided that any remaining
portion of Expansion Space A for such particular expansion option hereunder and the
remaining applicable expansion option under this Article 28 shall continue in full
force and effect). Further, if Tenant, pursuant to Article 27 above or otherwise,
has leased any portion of Expansion Space B prior to



71









 






exercising the second (2nd) applicable expansion option under this
Article 28, then such portion of Expansion Space B so leased by Tenant shall be
deducted from the Expansion Space otherwise required for Expansion Option 2 under
this Article 28 (provided that any remaining portion of Expansion Space B for such
particular expansion option hereunder shall continue in full force and effect).




     (j) If Tenant exercises its termination rights under Article 31 hereof prior to
the exercise of any expansion option under this Article 28, then Tenant shall no
longer have any further expansion rights under this Article 28, and this Article 28
shall thereupon be null and void.



ARTICLE 29

RENEWAL OPTION




     Subject to the provisions hereinafter set forth, Landlord hereby grants to Tenant an option
to extend the Term of this Lease on the same terms, conditions and provisions as contained in this
Lease, except as otherwise provided herein, for one period of five (5) years (the “Renewal
Period”) after the expiration of the initial Term, which Renewal Period shall commence on February
1, 2018 (the “Renewal Period Commencement Date”) and end on January 31, 2023.




     (a) Said option shall be exercisable by written notice from Tenant to
Landlord of Tenant’s election to exercise said option given not later than
February 1, 2017 (herein, the “Latest Renewal Exercise Date”), time being of
the essence. If Tenant’s option is not so exercised, said option shall
thereupon
expire.




     (b) Unless Landlord otherwise agrees (at its discretion), Tenant may
only exercise said option, and an exercise thereof shall only be effective, if
at the
time of Tenant’s exercise of said option and on the Renewal
Period
Commencement Date, this Lease is in full force and effect and Tenant is not in
monetary default under this Lease, or in non-monetary default beyond applicable
cure periods under this Lease, and (inasmuch as said option is intended only
for
the benefit of the original Tenant named in this Lease and/or a permitted
Tenant
Affiliate assignee), as of the time of Tenant’s exercise of such right and as
of the
pertinent Renewal Period Commencement Date, not less than fifty percent (50%)
of the rentable area of the Demised Premises are occupied by the original
Tenant
named herein and/or one or more permitted Tenant Affiliates, and said Tenant
has
not assigned this Lease (other than to a permitted Tenant Affiliate) or sublet
greater than fifty percent (50%) of the rentable area of the Demised Premises
(other than to one or more permitted Tenant Affiliates), pursuant to one or
more
assignments and/or subleases in effect as of either such date. Without
limitation
of the foregoing, no sublessee or assignee (other than an assignee which is a
Tenant Affiliate) shall be entitled to exercise said option under this Article
29, and
no exercise of said option by the original Tenant named herein or by a Tenant
Affiliate assignee shall be effective, in the event said Tenant or Tenant
Affiliate



72









 






has assigned this Lease (other than to a permitted Tenant Affiliate) or has subleased greater than
fifty percent (50%) of the rentable area of the Demised Premises (other than to one or more
permitted Tenant Affiliates) pursuant to one or more assignments and/or subleases in effect as of
the time of Tenant’s exercise of said right or as of the Renewal Period Commencement Date. In the
event of an assignment to a Tenant Affiliate assignee permitted hereunder as of the time of
Tenant’s exercise of its renewal rights under this Article 29 or as of the Renewal Period
Commencement Date, then, at Landlord’s election, any exercise of the renewal option under this
Article 29 and the corresponding lease amendment under Section 29(d) below must be signed by both
the original named Tenant and each such successor Tenant Affiliate assignee in order to be
effective (unless, however, the original named Tenant no longer exists as a separate and distinct
legal entity as a direct result of the transaction giving rise to the assignment to such permitted
assignee, such as in the case of a merger, in which case only the permitted assignee shall be
obligated to execute the renewal option exercise notice and corresponding lease amendment
hereunder). Notwithstanding anything herein to the contrary, Landlord shall have the right, at its
election, to waive any of the conditions precedent to Tenant’s valid exercise of its renewal rights
under this Article 29, as such conditions are described in this Section 29(b), whereupon Tenant’s
prior exercise of such renewal rights shall be valid and in full force and effect in all respects.
Any such waiver by Landlord must be in writing in order to be effective for purposes of the
preceding sentence.




     (c) Rent per square foot of rentable area of the Demised Premises
payable during the Renewal Period with respect to all space included in the
Demised Premises as of the Renewal Period Commencement Date and all other
concessions shall be equal to or otherwise governed by the Market Rental Rate (as
defined in Article 30 below) for the Demised Premises. Landlord shall give
Tenant written notice of the Market Rental Rate within thirty (30) days following
written request by Tenant, which request shall be made no earlier than fifteen (15)
months prior to the Renewal Period Commencement Date.




     (d) If Tenant has validly exercised said option, within thirty (30) days
after request by either party hereto and determination of the Market Rental Rate,
Landlord and Tenant shall enter into a mutually acceptable written amendment to
this Lease, confirming the terms, conditions and provisions applicable to the
Renewal Period as determined in accordance herewith, with such revisions to the
rental provisions of this Lease as may be necessary to conform such provisions to
the Market Rental Rate.




     (e) Tenant shall have no right to extend the Term of this Lease beyond
the expiration of the Renewal Period.



73









 





ARTICLE 30

MARKET RENTAL RATE





     (a) As used herein, the term “Market Rental Rate” per square foot of rentable
area shall mean (i) the annual rate of net or base or fixed rent reasonably
determined to be the prevailing market net or base or fixed rental rate for
comparable space in the Lisle/Naperville, Illinois area which has been built out for
occupancy (taking into consideration the age of the build-out and the duration of
the terms for which such space is being leased, location and/or floor level within a
building, when the applicable rate becomes effective, quality and location of the
applicable building, differences in rentable area for the applicable building, and
differences in base building standards at the applicable building) and shall include
prevailing concessions such as, but not limited to, rental concessions, tenant
improvement work, allowances, brokerage commissions, time following delivery of the
space for construction of tenant improvements without payment of Rent, etc, for
terms commencing on or about the commencement date for the term for which Market
Rental Rate is being determined hereunder (provided however, that in determining
Market Rental Rate, there shall be no further rent abatement periods following
delivery of the space for construction of tenant improvements, with respect to the
First Offer Space under Article 27 and with respect to Expansion Space B under
Expansion Option 2 pursuant to Article 28 above, if applicable, in that the rental
abatement periods for construction of tenant improvements have already been agreed
to by the parties and set forth in Section 27(f)(l) and Section 28(h)(l),
respectively, above; and in the event that any such pre-agreed free-rent
construction periods differ from “market” at the time of determination of Market
Rental Rate, then the other components of Market Rental Rate shall be equitably
adjusted accordingly), plus (ii) additional components of the Market Rental Rate
consistent with additional components of rent charged for comparable space in the
Lisle/Naperville, Illinois area, which may include, among the other then prevailing
components of rent, periodic adjustments or additions to a fixed rent based on a
share of real estate taxes and other expenses (such as Tenant’s Proportionate Share
of Operating Costs and Taxes) and increases to adjust for inflation, and which may
also include an additional market-level security deposit based upon security
deposits being imposed upon other tenants at comparable office buildings in
Lisle/Naperville, Illinois leasing comparable space and having comparable concession
packages and being of comparable credit worthiness as that of Tenant. Comparable
arms length lease transactions (and, as it relates to a determination under Article
29, renewal transactions) at the Building and/or bona fide written proposals or
offers to lease comparable space at the Building (and, as it relates to a
determination under Article 29, to renew leases of comparable space) received by
Landlord from third parties (at arm’s length) or given by Landlord to third parties
(at arm’s length) may be used by Landlord and thereupon have preferential value as
an indication of the Market Rental Rate.



74









 






     (b) If Tenant disagrees with Landlord’s determination of Market Rental Rate
with respect to any first offer space under Article 27 above which is greater than
5,000 square feet of rentable area, or with respect to Expansion Space B under
Article 28 above, or with respect to any renewal option under Article 29 above
(which Tenant must do, if at all, in writing setting forth Tenant’s determination of
Market Rental Rate within fifteen (15) business days after Tenant’s receipt of
notice of Landlord’s determination of Market Rental Rate), and if the parties cannot
agree on the Market Rental Rate within thirty (30) days (or, as it relates to the
renewal option under Article 29 hereof, sixty (60) days) thereafter, then, at
Tenant’s election, and provided that Tenant has theretofore exercised its option for
which Market Rental Rate is being determined, such dispute shall be determined by
arbitration as hereinafter provided (it being understood and agreed that the binding
arbitration process described in this Section 30(b) may only commence if and to the
extent Tenant has validly exercised its option for which Market Rental Rate is being
so determined). Tenant may initiate the arbitration process by written notice to
that effect given to Landlord within fifteen (15) business days after the expiration
of such thirty (30) day (or, if applicable, as it relates to a renewal under Article
29, sixty (60) day) period (time being of the essence), and if Tenant fails to so
timely deliver such notice so initiating the arbitration process, then Tenant shall
be deemed to have waived such right, and Landlord’s determination of Market Rental
Rate shall be deemed the applicable Market Rental Rate for all purposes. If Tenant
timely exercises such right to initiate the foregoing arbitration process, as
described in the preceding sentence, then, within fifteen (15) business days after
the giving of such notice, Landlord and Tenant will each select an arbitrator who
shall be disinterested and shall be a person that has been actively engaged in the
development or leasing of Class A office buildings in the Lisle/Naperville, Illinois
area for a period not less than five (5) years immediately preceding his or her
appointment. If a party fails to timely select an arbitrator, which failure
continues for five (5) business days after written notice thereof from the other,
then the arbitrator timely selected shall be the sole arbitrator. Within five (5)
business days after the selection of both arbitrators, Landlord and Tenant shall
each simultaneously submit to the arbitrators a determination of Market Rental Rate
with such supporting materials as they deem appropriate (“Market Rate Supporting
Materials”). (If no submittal is made by a party, that party shall be deemed to have
submitted its original determination.) The arbitrators shall be directed to select,
within fifteen (15) business days after the receipt of such submittals, from the two
determinations submitted by Landlord and Tenant the one that is closer to the Market
Rental Rate as determined by the arbitrators, and said selection shall thereafter be
deemed the Market Rental Rate. If the two arbitrators so appointed fail to agree,
within such fifteen (15) business day period, as to which of the determinations
submitted by Landlord and Tenant is closer to the actual Market Rental Rate, the two
arbitrators shall, within ten (10) business days thereafter, appoint a third
arbitrator, using the criteria described above, to decide upon which of the two
determinations submitted is closest to the actual



75









 






Market Rental Rate. In the event the two arbitrators are not able to so agree upon a
third arbitrator within such ten (10) business day period, then either party may
request that the third arbitrator be appointed by the American Arbitration
Association, using the criteria described above. The third arbitrator shall be
directed to select, within ten (10) business days after his or her appointment, from
the two determinations submitted by the parties the one that is closer to the Market
Rental Rate as determined by the third arbitrator, and that selection shall
thereafter be deemed the Market Rental Rate. The cost of the foregoing arbitration
process shall be borne by the losing party. The determination made by the two
arbitrators or the third arbitrator, as the case may be, will be final and binding
upon Landlord and Tenant, and will not be subject to reconsideration by the two
arbitrators or the third arbitrator, as the case may be, or to review, appeal, or
challenge in any court. The determination made by the two arbitrators or the third
arbitrator, as the case may be, will have the same force and effect as if a court of
final resort had entered a final and binding and unappealable judgment enforcing
that determination, and the determination will be an enforceable term of this Lease.
If no determination is made prior to the date for commencement of payment of rent
for which Market Rental Rate must be determined, then Landlord’s determination shall
be used until the arbitration process is completed. If Tenant’s determination is
later selected, Landlord shall promptly refund any overpayments to Tenant.



ARTICLE 31

OPTION TO TERMINATE




     Tenant shall have the option, to be exercised as hereinafter provided, to terminate this
Lease effective as of January 31, 2014 (the “Termination Date”), subject to the terms and
conditions hereinafter set forth.




     (a) Tenant’s option to terminate this Lease shall be exercised, time being of
the essence, by written notice to Landlord given on or before January 31, 2013 (the
“Latest Termination Exercise Date”). If Tenant fails to so timely exercise its
termination right as described in the preceding sentence, then Tenant shall be
deemed to have waived such right, and this Article 31 shall thereupon be deemed
null and void. Fifty percent (50%) of the Termination Fee (as hereinafter defined)
shall be due from Tenant to Landlord on or before the date Tenant so exercises its
termination option, hereunder, and the remaining balance of such Termination Fee
shall be due on or before the Termination Date, and each such payment shall (at
Landlord’s option, at its sole discretion), be an express condition to the
effectiveness of Tenant’s early termination election hereunder. Payment of the
Termination Fee shall be made in cash or by check or by wire transfer of readily
available funds. “Termination Fee” shall mean the “Unamortized Demised Premises
Space Costs” (as hereinafter defined). For purposes hereof, “Unamortized Demised
Premises Space Costs”, shall be determined for each portion of the Demised Premises
being demised hereunder as of the date Tenant



76









 






delivers its termination notice (including, without limitation, the initial Demised
Premises and any First Offer Space and Expansion Space leased by Tenant hereunder),
and shall mean an amount calculated in each instance by determining the outstanding
principal balance of a loan as of the Termination Date, which loan has (A) an
original principal balance equal to the amount of all rent abatements, tenant
improvements costs, allowances, concessions (including, without limitation, the One
Time Existing Lease Payment described in Article 33 below) and brokerage commissions
given or incurred by Landlord and directly associated with the lease of the then
Demised Premises (which loan shall be deemed to have been made and disbursed as of
the Commencement Date, as it relates to the initial Demised Premises, and as of the
respective rent commencement date for each additional portion of the then Demised
Premises), (B) an interest rate of nine percent (9%) per annum, (C) a term and full
amortization period equal to the scheduled initial Term of the Lease for each
portion of the Demised Premises (i.e., meaning from and after the Commencement Date,
as it relates to the initial Demised Premises, and from and after the respective
rent commencement date for any additional space then included as part of the Demised
Premises, and in any such case, through the expiration of the initial Term of this
Lease), and (D) payments of principal and interest made, in equal monthly
installments, with interest paid in arrears, and assuming that the first payment was
made as of the Commencement Date, as it relates to the initial Demised Premises, and
as of the respective rent commencement date for any additional space then included
as part of the Demised Premises.




     (b) Unless Landlord otherwise agrees (at its discretion), Tenant may
only exercise its termination option hereunder, and an exercise thereof shall
only
be effective, if at the time of Tenant’s exercise of said option and on the
Termination Date hereunder, Tenant is not in monetary default under this Lease,
or in non-monetary default beyond applicable cure periods under this Lease.
Nothing herein shall be deemed a waiver of any rights or remedies available to
Landlord or Tenant hereunder in the event of any default by the other party at
the time Tenant exercises its termination rights hereunder, or as of the
Termination
Date, which default remains uncured beyond applicable cure periods hereunder.
Any notice to terminate shall be irrevocable by Tenant once given.




     (c) If Tenant so elects to terminate this Lease and pays to Landlord the
Termination Fee as and when due hereunder, then effective as of the Termination
Date this Lease shall be deemed to have expired by lapse of time. Tenant shall
be
responsible for all Rent and other charges relating to the Demised Premises
which accrue on or before the Termination Date.




     (d) If Tenant exercises its termination right under this Article 31, then
Tenant shall vacate and deliver possession of the Demised Premises to Landlord
on or before the Termination Date and deliver the Demised Premises to Landlord
in the manner set forth in, and the condition required by, this Lease for
surrender of the Demised Premises. Any retention of possession by Tenant of all or part
of



77









 






the Demised Premises after the Termination Date shall be deemed a holding over under
Article 19 of this Lease without consent of Landlord, and shall be subject to the
terms and conditions of said Article 19 with respect to such holdover.




     (e) Unless Landlord otherwise agrees, any exercise of the termination
right under this Article 31, in order to be effective, must be signed by the
original
named Tenant hereunder and each subsequent permitted assignee of Tenant’s
interest under this Lease (unless, however, any such party no longer exists as
a separate legal entity as a direct result of the transaction giving rise to the
assignment of this Lease, such as in the case of a merger). If Tenant exercises
its option to terminate under this Article 31, unless Landlord otherwise agrees,
Tenant shall be deemed to have represented and warranted to Landlord the
following matters as of the Termination Date:




     (1) Tenant owns and holds the entire interest of Tenant under
this Lease; and




     (2) There exists no subleases, assignments, liens or
encumbrances affecting the Demised Premises or assignments of Tenant’s
interest under this Lease which shall survive the Termination Date.




     (f) Tenant acknowledges that the Termination Fee constitutes a non-
refundable payment, notwithstanding any subsequent leasing of the Demised
Premises by Landlord. Landlord, in its sole discretion, may invalidate the
effectiveness of any prior exercise of Tenant’s termination rights under this
Article 31, if Tenant fails to pay the Termination Fee when the same is due
hereunder; provided that Landlord’s failure to so invalidate the effectiveness
of Tenant’s termination of this Lease on the Termination Date shall not affect
Tenant’s continued obligation to pay the Termination Fee or any rights and
remedies of Landlord on account of any such default by Tenant in paying the
Termination Fee as and when due hereunder.




     (g) If Tenant exercises its termination right under this Article 31, then
Tenant shall no longer have any additional first offer/expansion rights under
Article 27 or Article 28 hereof. Further, if Tenant exercises its right to
lease any First Offer Space under Article 27 hereof at any time after January 31, 2012,
then, in any such case, Tenant shall no longer have any termination rights under this
Article 31, and this Article 31 shall thereupon be null and void.



ARTICLE 32

GENERATOR




     Subject to the terms and conditions hereinafter set forth, Landlord grants to Tenant, during
the Term, the right to install one (1) commercially reasonable emergency generator relating to
Tenant’s business in the Demised Premises at a location at the Building designated by Landlord and
approved by Tenant in its reasonable discretion, for supplying emergency power to



78









 





the Demised Premises and, except as otherwise provided, to connect such equipment through existing
mechanical shafts or vertical riser paths to the Demised Premises. The rights to own, install and
use such additional generator under this Article 32 shall be in addition to the Tenant’s exclusive
right to use the existing generator currently serving and connected to the Demised Premises and the
existing Liebert units located at the Demised Premises as of the Turnover Date (the “Existing
Generator/Liebert Units”). Without limitation of the foregoing, Tenant shall have the right,
exercised by written notice thereof given on or before one (1) year prior to the Expiration Date
(or, if Tenant has exercised its renewal option under Article 29 above, then on or before one (1)
year prior to the end of the Renewal Period), to have Landlord convey the Existing
Generator/Liebert Units to Tenant, in consideration for the payment of One Dollar ($1.00), in which
case (i) Landlord shall convey such Existing Generator/Liebert Units to Tenant effective as of the
Expiration Date (or, if Tenant has exercised its renewal option under Article 29 above, then
effective as of the last day of the Renewal Period), by quit-claim bill of sale (i.e., without any
representations or warranties of any kind or nature whatsoever, express or implied), and (ii)
Tenant shall remove such Existing Generator/Liebert Units from the Demised Premises as of the
Expiration Date (or, if Tenant has exercised its renewal option under Article 29 above, then as of
the last day of the Renewal Period), in accordance with the removal/restoration and other
obligations set forth in Section 8.2 above relative to other equipment and improvements which must
be removed by Tenant thereunder. In no event shall Tenant have any right to obtain a conveyance of
the Existing Generator/Liebert Units pursuant to this Section 32.1 if the Term of this Lease, or
Tenant’s right to possession hereunder, is terminated for any reason prior to the stated Expiration
Date (or, if Tenant has exercised its renewal option under Article 29 above, then prior to the last
day of the Renewal Period) hereunder (i.e., whether due to a default by Tenant, or due to Tenant’s
exercise of any early termination rights hereunder, or otherwise). If, during the Term, Tenant’s
service provider for the maintenance, repair or operation of the Existing Generator/Liebert Units
requests authority from Landlord, as the owner of such items, to allow such service provider to so
provide the applicable servicing activities, then Landlord shall promptly respond to such request,
provided that any such servicing of the Existing Generator/Liebert Units, and the service
arrangement with any such service provider relative thereto, shall otherwise comply with all terms
and conditions set forth in this Lease governing the same.



     Section 32.1. Installation. If Tenant desires to exercise such right, Tenant shall
give a written notice to that effect to Landlord (a “Generator Notice”). The Generator Notice
shall specify in detail the requirements of such installation, all of which shall be subject to
the approval of Landlord. Landlord shall not unreasonably withhold or delay its approval provided
that such installation and the subsequent use of such generator equipment shall (i) be subject to
Landlord’s reasonable supervision, (ii) not adversely affect the structural safety or integrity of
the Building or otherwise adversely affect any Building systems or operations, (iii) meet
reasonable aesthetic and other standards of Landlord and Landlord’s architect and (iv) satisfy
other reasonable conditions hereinafter set forth. If Tenant delivers a Generator Notice to
Landlord, then Landlord shall designate by written notice to Tenant an appropriate area for such
installation (“Installation Area”), which Installation Area shall be subject to reasonable
approval of Tenant. The right granted to Tenant under this Article 32 shall be subject to the
following conditions precedent: (1) Landlord’s architect (acting reasonably) shall approve of the
location of the Installation Area and the appearance of those portions of the equipment to be
visible to the



79









 







public; (2) Landlord’s structural engineer (acting reasonably) shall approve of the location of the
Installation Area, the design and specifications of the equipment, the load to the affected
Building areas caused by such equipment, and other structural requirements of the installation; (3)
the installation must comply with the applicable requirements of any covenant, condition or
restriction of record and any municipal, county, state, federal or other governmental ordinance,
law, rule or regulation including, but not limited to zoning ordinances, and with all rules and
regulations for the Building; (4) the installation and operation of such equipment shall not
interfere with the safety or operations of the Building or reduce or affect its structural
integrity, and shall comply with the terms of this Lease; and (5) at Landlord’s request, Tenant
shall enter into Landlord’s standard form license agreement used at the Building relative to the
rights granted under this Article 32, the terms of which shall not conflict with the terms set
forth in this Section.



     Section 32.2. Maintenance and Repair. Tenant shall pay all costs and expenses of any
kind related to the installation, operation, maintenance, repair or removal of its generator
equipment and the maintenance, repair or operation of the Existing Generator/Liebert Units,
including any reasonable architect’s or engineering fees incurred by Landlord in connection with
required approvals and any other reasonable out-of-pocket costs incurred by Landlord; provided
that Tenant shall not be obligated to pay any rental or license fee on account of usage of the
Installation Area or other Building areas as contemplated by this Article 32. Tenant shall
maintain all such equipment in good repair. Subject to the terms of this Lease, Tenant shall be
responsible for any damage, loss or injury to the Building or other property and for any injury to
persons caused by installation, operation, maintenance or removal of such equipment. Upon the
expiration or earlier termination of this Lease, Tenant shall, at its sole cost and expense, (i)
remove the generator equipment and restore that portion of the Building where the generator
equipment was located to its condition existing prior to the installation thereof, ordinary wear
and tear excepted, and (ii) repair any damage or destruction caused by such removal. Restoration
and repair herein required to be performed by Tenant shall be completed under the reasonable
supervision of Landlord or Landlord’s representative. Notwithstanding the foregoing, unless
Landlord otherwise requires Tenant to do so, Tenant shall not remove, and shall not be reimbursed
for the cost thereof, any portion of the generator equipment which is embedded or permanently
attached in or to the Building including, but not limited to, cables and other wiring. To the
extent not expressly prohibited by law, and except to the extent resulting from the negligence or
willful misconduct of Landlord, Tenant agrees to hold Landlord and its constituent partners, and
their agents, and employees, harmless and to indemnify each of them against claims and
liabilities, including reasonable attorney’s fees, for injuries to persons and damage to or theft,
misappropriation or loss of property occurring in or about the Building and arising out of the
installation, maintenance, operation, removal or other use of the generator equipment installed
hereunder.



     Section 32.3. Assignability. All work performed by or on behalf of Tenant under this
Article 32 shall comply and be performed in accordance with the terms and conditions described in
Article 25 (i.e., if included as part of the Tenant’s Work) and in Article 8 of this Lease. The
generator and other rights of Tenant set forth in this Article 32 may not be assigned to any
party, and may be exercised only by Tenant or any permitted assignee under this Lease designated
by Tenant in writing to Landlord (it being understood that only one such party shall have the
right,



80









 







at any given time, to have any generator equipment located at the Building pursuant to this
Article 32), and no other party shall have the right to exercise such rights under this Article 32
without the express written consent of Landlord (at Landlord’s sole discretion).



     Section 32.4. Representation. Notwithstanding anything to the contrary contained
herein, Landlord does not hereby represent that the Building is suitable for Tenant’s intended use
or operation of the generator equipment contemplated by this Article 32.



ARTICLE 33

EXISTING LEASE PAYMENT




     Section 33.1. Payment. Tenant hereby represents to Landlord that Tenant has an early
termination charge of $757,815.00 which is due and owing to Tenant’s existing landlord under
Tenant’s existing lease for space at the building known as Finley Business Center (2505 Finley)
(“Existing Building”), which termination charge is due on or before March 30, 2006. Landlord hereby
agrees to pay Tenant, within three (3) business days after the mutual execution and delivery of
this Lease by both parties, the sum of $757,815.00 (the “One Time Existing Lease Payment”) as
consideration for Tenant obtaining such early termination of its existing lease at the Existing
Building, and Tenant shall promptly deliver to Landlord evidence of such payment made by Tenant to
its existing landlord at the Existing Building for the early termination of such existing lease,
once such payment has been made (which payment shall be made on or before March 30, 2006, as
described above). If Landlord has not returned a fully executed original of this Lease to Tenant
and otherwise paid the One Time Existing Lease Payment to Tenant on or before 5:00 p.m., Central
Time, on March 29, 2006, then Tenant shall have the right, exercised by written notice thereof
delivered to Landlord at any time prior to Landlord’s delivery of such executed Lease and such
payment to Tenant, to terminate this Lease and any further rights and obligations of the parties
hereunder, whereupon Landlord shall return any Security Deposit theretofore deposited by Tenant
hereunder, and neither party shall have any further rights or obligations under this Lease. If this
Lease has not been terminated pursuant to the preceding sentence, and if Landlord has delivered a
fully executed original of this Lease, together with the One Time Existing Lease Payment, to
Tenant, then, at either party’s request, the parties shall promptly enter into an instrument
confirming that such termination right of Tenant as set forth in this Article 33 is no longer
applicable, and that such termination right is null and void in its entirety.



ARTICLE 34

SECURED AREA




     Section 34.1. Secured Area. Prior to termination or expiration of this Lease or
Tenant’s right to possession of the Demised Premises hereunder, Landlord shall not, in the
exercise of any access rights set forth in this Lease, enter (except in the case of an emergency
or as otherwise provided below in this Article 34) certain areas of the Demised Premises that
Tenant shall reasonably designate for security purposes from time to time (herein, the “Secured
Areas”) (and



81









 







Landlord shall have no obligation to perform any janitorial or other services therein). If Landlord
determines that it is reasonably necessary to enter the foregoing Secured Areas, due to an
emergency, it may use such force as it determines, in good faith, to be necessary to gain such
access, and shall have no responsibility for damage or injury caused or otherwise resulting from
such entry. In the absence of an emergency which Landlord, in good faith, determines to require
immediate access to any such Secured Areas, Landlord shall endeavor to give advance written or oral
notice to Tenant prior to such entry to such Secured areas so as to permit Tenant to have a
representative present during any such entry. In the event Landlord so enters a Secured Area
without a representative of Tenant being present, then promptly after such entry, Landlord shall
provide Tenant with a written notice of Landlord’s reason for such entry.



[signature page follows]





82









 








     IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the 24 day
of March  , 2006.



	 	 	 	 	 
	 	LANDLORD:



HINES VAF WESTWOOD OF LISLE II, L.P.

 	 
	 	By:  	Hines VAF Westwood of Lisle II GP LLC, its
 	 
	 	 	general partner 	 
	 	 	 	 
	 	By:  	Hines Interests Limited Partnership,
 	 
	 	 	its authorized agent 	 
	 	 	 
	 	By:  	Hines Holdings, Inc., its
 	 
	 	 	general partner 	 
	 	 	 	 
	TD’A  	By:  	/s/ Thomas J. Danilek
 	 
	 	 	Name:  	Thomas J. Danilek 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	TENANT:



SXC HEALTH SOLUTIONS, INC., a Texas

corporation

 	 
	 	By:  	/s/ IRWIN STUDEN
 	 
	 	 	Name:  	IRWIN STUDEN 	 
	 	 	Title:  	CFO 	 



83









 






	 	 	 	 	 



EXHIBIT A




PLAN SHOWING TENANT’S INITIAL DEMISED PREMISES









A-1









 













A-2









 














A-3











 





EXHIBIT B




LEGAL DESCRIPTION OF LAND




PARCEL 1:



LOTS 2 AND 3 IN LISLE OFFICE PARK, BEING A SUBDIVISION IN SECTION 4, TOWNSHIP 38 NORTH, RANGE 10
EAST OF THE THIRD PRINCIPAL MERIDIAN. ACCORDING TO THE PLAT THEREOF RECORDED JULY 22, 1988 AS
DOCUMENT RBB-80228, IN DUPAGE COUNTY, ILLINOIS.




PARCEL 2:



A NON-EXCLUSIVE, IRREVOCABLE AND PERPETUAL EASEMENT IN FAVOR OF PARCEL 1 AFORESAID FOR INGRESS AND
EGRESS TO PROVIDE ACCESS FOR MOTOR VEHICLE AND PEDESTRIAN TRAFFIC TO AND FROM THE UNDERGROUND
PARKING STRUCTURE AS CREATED BY ACCESS EASEMENT AGREEMENT DATED FEBRUARY 20, 1990 AND RECORDED
MARCH 8, 1990 AS DOCUMENT R90-028602 MADE BY AND BETWEEN BOULEVARD BANK NATIONAL ASSOCIATION AS
TRUSTEE UNDER TRUST AGREEMENT DATED MAY 17, 1988 AND KNOWN AS TRUST NUMBER 8775 AND BOULEVARD BANK
NATIONAL ASSOCIATION AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 5, 1989 AND KNOWN AS TRUST
NUMBER 9118 OVER, UPON AND ACROSS THE FOLLOWING DESCRIBED LAND:



THAT PART OF LOT 1 IN LISLE OFFICE PARK, BEING A SUBDIVISION IN SECTION 4, TOWNSHIP 38 NORTH, RANGE
10 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EAST
LINE OF SAID LOT 1 WHICH IS 175.94 FEET SOUTHERLY OF THE NORTHEAST CORNER THEREOF: THENCE
CONTINUING ALONG SAID EAST LINE OF LOT 1 SOUTH 01 DEGREE 24 MINUTES
17 SECONDS EAST, 13.06 FEET TO A CORNER OF LOT 1: THENCE SOUTH 88 DEGREES 35 MINUTES 43 SECONDS EAST ALONG THE EAST LINE OF SAID
LOT 1, A DISTANCE OF 18.00 FEET TO A CORNER OF LOT 1: THENCE SOUTH 01 DEGREE 24 MINUTES 17 SECONDS
EAST ALONG THE EAST LINE OF SAID LOT 1, A DISTANCE OF 201.50 FEET TO A CORNER OF LOT 1: THENCE
NORTH 88 DEGREES 35 MINUTES 43 SECONDS WEST 12.00 FEET: THENCE NORTH 01 DEGREE 24 MINUTES 17
SECONDS EAST 181.57 FEET TO A POINT OF CURVATURE; THENCE NORTHWESTERLY ALONG A CURVE CONCAVE TO THE
SOUTHWEST, HAVING A RADIUS OF 10.50 FEET, AN ARC DISTANCE OF 18.53 FEET’. THE CHORD OF SAID ARC
HAVING A LENGTH OF 16.22 FEET AND A BEARING OF NORTH 49 DEGREES 09 MINUTES 30 SECONDS WEST: THENCE
NORTH 09 DEGREES 43 MINUTES 17 SECONDS WEST, 21.00 FEET, THENCE NORTH 80 DEGREES 16 MINUTES 43
SECONDS EAST. 10.78 FEET TO THE PLACE OF BEGINNING, IN DUPAGE COUNTY, ILLINOIS.




PARCEL 3:



A
NON-EXCLUSIVE, IRREVOCABLE AND PERPETUAL EASEMENT IN FAVOR OF PARCEL 1 AFORESAID FOR INGRESS AND
EGRESS TO PROVIDE PEDESTRIANS WITH ACCESS TO AND USE OF THE PLAZA AREA AS CREATED BY ACCESS
EASEMENT AGREEMENT DATED FEBRUARY 20, 1990 AND RECORDED MARCH 8, 1990
AS DOCUMENT R90-028602 MADE
BY AND BETWEEN BOULEVARD BANK NATIONAL ASSOCIATION AS TRUSTEE UNDER
TRUST AGREEMENT DATED MAY 17,
1988 AND KNOWN AS TRUST NUMBER 8775 AND BOULEVARD BANK NATIONAL ASSOCIATION AS TRUSTEE UNDER TRUST
AGREEMENT DATED DECEMBER 5, 1989 AND KNOWN AS TRUST NUMBER 9118 OVER, UPON AND ACROSS THE FOLLOWING
DESCRIBED LAND:




(SEE ATTACHED)





B-1









 







THAT PART
OF LOT 1 IN LISLE OFFICE PARK, BEING A SUBDIVISION IN SECTION 4, TOWNSHIP 38 NORTH,
RANGE TO EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE
EAST LINE OF SAID LOT 1 WHICH IS 78.50 FEET SOUTHERLY OF TIE
NORTHEAST CORNER THEREOF: THENCE
CONTINUING SOUTHERLY ALONG SAID EAST LINE, 66.00 FEET: THENCE WESTERLY
AT RIGHT ANGLES TO SAID EAST
LINE, 32.00 FEET: THENCE NORTHERLY PARALLEL WITH SAID EAST LINE,
18.00 FEET: THENCE WESTERLY AT
RIGHT ANGLES TO SAID EAST LINE, 18.00 FEET; THENCE NORTHERLY PARALLEL WITH SAID EAST LINE, 18.00
FEET: THENCE EASTERLY AT RIGHT ANGLES TO SAID EAST LINE, 18.00 FEET: THENCE NORTHERLY PARALLEL
WITH SAID EAST LINE, 30.00 FEET: THENCE EASTERLY AT RIGHT ANGLES TO
SAID EAST LINE,
32.00 FEET TO THE PLACE OF BEGINNING, IN DUPAGE COUNTY, ILLINOIS.




     P.I.N. 08-04-400-010-0000 and 08-04-208-001-0000



     Commonly
known as:  2441 Warrenville Road, Lisle, Illinois



B-2









 





EXHIBIT C




RULES AND REGULATIONS





	1.	 	No sidewalks, entrance, passages, courts, elevators, vestibules, stairways, corridors or
halls shall be obstructed or encumbered by Tenant or used for any purpose other than
ingress and egress to and from the Demised Premises, the Building or the landscaping,
parking facilities and other improvements and appurtenances.
	 
	2.	 	No awning or other projection shall be attached to the outside walls or windows of the
Building without the prior written consent of Landlord. No curtains, blinds, shades,
drapes or screens shall be attached to or hung in, or used in connection with any window
or door of the Demised Premises, without the prior written consent of Landlord. Such
awnings, projections, curtains, blinds, shades, drapes, screens and other fixtures must be
of a quality, type, design, color, material and general appearance approved by Landlord,
and shall be attached in the manner approved by Landlord. All electrical fixtures hung in
offices or spaces along the perimeter of the Demised Premises must be fluorescent, of a
quality, type, design, bulb color, size and general appearance approved by Landlord,
which approval shall not be unreasonably withheld.
	 
	3.	 	No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or
affixed by Tenant on any part of the outside or inside of the Demised Premises or of the
Building without the prior written consent of Landlord. In the event of the violation of
the foregoing by Tenant, Landlord may remove same without liability, and may charge
the expense incurred by such removal to Tenant. Interior signs on doors and directly
tablet shall be inscribed, painted or affixed for Tenant by Landlord at the expense of
Tenant, and shall be of a quality, quantity, type, design, color, size style, composition,
material, location and general appearance acceptable to Landlord.
	 
	4.	 	The sashes, sash doors, skylights, windows, and doors that reflect or admit light or air
into the halls passageways or other public places in the Building shall not be covered or
obstructed by Tenant, nor shall any bottles, parcels, or other articles be placed on the
window sills, or in the public portions of the Building.
	 
	5.	 	No show cases or other articles shall be put in front of or affixed to any part of the
exterior of the Building, nor placed in public portions thereof without the prior written
consent of Landlord.
	 
	6.	 	The water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed, and no sweepings, rubbish,
rags or other substances shall be thrown therein. All damages resulting from any misuse
of the fixtures by Tenant shall be borne by Tenant to the extent that Tenant or Tenant’s
agents, servants, employees, contractors, visitors, or licensees shall have caused the same.




C-1









 












	7.	 	Except for hanging pictures, Tenant shall not paint, mark, drill into or in any way
deface any part of the Demised Premises or the Building. No boring or cutting shall be
permitted, except with the prior written consent of Landlord, and as Landlord may direct.
	 
	8.	 	No animal or bird of any kind shall be brought into or kept in or about the Demised
Premises or the Building (except for service animals in the company of a handicapped
person).
	 
	9.	 	Tenant shall not make, or permit to be made, any unseemly or disturbing noises or
interfere with occupants of the Building or neighboring buildings or premises or those
having business with them. Tenant shall not throw anything out of the doors, windows or
skylights or down the passageways.
	 
	10.	 	Except as otherwise permitted under the Lease, neither Tenant nor any of Tenant’s agents,
servants, employees, contractors, visitors or licensees shall at any time bring or keep
upon the Demised Premises or in the Building any flammable, combustible or explosive
fluid, chemical or substance.
	 
	11.	 	No additional locks, bolts or mail slots of any kind shall be placed upon any of the doors
or windows by Tenant, nor shall any change be made in existing locks or the mechanism
thereof; however, the foregoing shall not apply to any card key system which Tenant
installs in full compliance with all other provisions of the Lease at its sole expense and
with respect to which Landlord is provided with all access cards necessary to fully
exercise all of its entry rights under the Lease with respect to the Demised Premises.
Tenant must, upon the termination of the tenancy, restore to Landlord all keys of stores,
offices and toilet rooms either furnished to or otherwise procured by Tenant and, in the
event of the loss of any keys so furnished, Tenant shall pay to Landlord the cost thereof.
	 
	12.	 	All removals, or the carrying in or out of any safes, freight, furniture, fixtures, bulky
matter or heavy equipment of any description must take place during the hours which
Landlord or its agent may determine from time to time. Landlord reserves the right to
prescribe the weight and position of all safes, which must be placed upon two-inch thick
plank strips to distribute the weight. The moving of safes, freight, furniture, fixtures,
bulky matter or heavy equipment of any kind must be made upon previous notice to the
Superintendent of the Building and in a manner and at the time prescribed by him, and
the persons employed by Tenant for such work are subject to Landlord’s prior approval.
Landlord reserves the right to inspect all safes, freight or other bulky articles to be
brought into the Building and to exclude from the Building all safes, freight or other
bulky articles which violate any of these Rules and Regulations or the lease of which
these Rules and Regulations are a part.
	 
	13.	 	Tenant shall not occupy or permit any portion of the Demised Premises to be occupied as
an office that is not generally consistent with the character and nature of an ordinary
desk-type office. Nor shall Tenant permit any portion of the Demised Premises to be
used (a) for an employment agency, a public stenographer or typist, a labor union office,
a physician’s or dentist’s office, a dance or music studio, a school, a beauty salon or




C-2









 











	 	 	barber shop, the business of photographic or multilith or multigraph reproductions or offset
printing (not precluding using any part of the Demised Premises for photographic, multilith
or multigraph reproductions solely in connection with Tenant’s own business and/or
activities), a restaurant or bar, an establishment for the sale of confectionery or soda or
beverages or sandwiches or ice cream or baked goods, an establishment for the preparation or
dispensing or consumption of food or beverages (of any kind) in any manner whatsoever, or as
a news or cigar stand, or as a radio or television or recording studio, theater or
exhibition hall, for manufacturing, for the storage of merchandise or for the sale of
merchandise, goods or property of any kind at auction, or for lodging, sleeping or for any
immoral purpose, or for a banking, trust company, depository, guarantee, or safe deposit
business, or as a savings bank, or as savings and loan association, or as a loan company, or
for the sale of travelers checks, money orders, drafts, foreign exchange or letters of
credit or for the receipt of money for transmission, or as a stock broker’s or dealer’s
office or for the underwriting of securities, or as a government office or foreign embassy
or consulate, or as tourist or travel bureau, or (b) a use which conflicts with any
so-called “exclusive” then in favor of, or is for any use the same as that stated in any
percentage lease to, another tenant of the Building (provided that Tenant’s use of the
Demised Premises for general office purposes or for customer data processing center
operations does not violate any such exclusive), or (c) a use which would be prohibited by
any other portion of this Lease (including but not limited to any Rules and Regulations then
in effect) or in violation of law. Tenant shall not engage or pay for any employees on the
Demised Premises other than those working at the Demised Premises, nor shall Tenant
advertise for laborers giving an address at the Demised Premises.
	 
	14.	 	Tenant shall not purchase spring water, towels, janitorial or maintenance or other like
service from any company or persons not reasonably approved by Landlord. Landlord
shall approve a sufficient number of sources of such service to provide Tenant with a
reasonable selection, but only in such instances and to such extent as Landlord in its
judgment shall consider consistent with security and proper operation of the Building.
	 
	15.	 	Landlord shall have the right to prohibit any advertising or business conducted by Tenant
referring to the Building which, in Landlord’s opinion, tends to impair the reputation of
the Building or its desirability as a first class building for offices and, upon notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
	 
	16.	 	Landlord reserves the right to exclude from the Building between the hours of 6:00 p.m.
and 8:00 a.m. on all days, and at all hours on Saturdays, Sundays and legal holidays, all
persons who do not present a pass to the Building issued by Landlord. Landlord may
furnish passes to Tenant so that Tenant may validate and issue same. Tenant shall
safeguard said passes and shall be responsible for all acts of persons in or about the
Building who possess a pass issued to Tenant.
	 
	17.	 	Tenant’s contractors shall, while in the Building, be subject to and under the control and
direction of the Superintendent of the Building (but not as agent or servant of said
Superintendent or of Landlord) except for supervision of work.




C-3









 












	18.	 	If the Demised Premises is or becomes infested with vermin as a result of the use or any
misuse or neglect of the Demised Premises by Tenant, its agents, servants, employees,
contractors, visitors, or licensees, Tenant shall forthwith at Tenant’s expense cause the
same to be exterminated from time to time to the satisfaction of Landlord and shall
employ such licensed exterminators as shall be approved in writing in advance by
Landlord.
	 
	19.	 	The requirements of Tenant will be attended to only upon application at or call to the
office of the Building. Building personnel shall not perform any work or do anything
outside of their regular duties, unless under special instructions from the office of the
Landlord.
	 
	20.	 	Canvassing, soliciting and peddling in the Building are prohibited and Tenant shall
cooperate to prevent the same.
	 
	21.	 	No water cooler, air conditioning unit or system or other apparatus shall be installed or
used by Tenant without the written consent of Landlord.
	 
	22.	 	There shall not be used in any Common Areas, public halls, plaza areas, lobbies or other
space in the Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks or dollies, except those equipped with rubber tires and
side guards.
	 
	23.	 	Tenant, Tenant’s agents, servants, employees, licensees or visitors shall not park any
vehicles in any driveways, service entrances, or areas posted “No Parking.”
	 
	24.	 	Tenant shall install and maintain, at Tenant’s sole cost and expense, an adequate visibly
marked (at all times property operational) fire extinguisher next to any duplicating or
photocopying machine or similar heat producing equipment, which may or may not
contain combustible material, in the Demised Premises.
	 
	25.	 	Tenant shall not use the name of the Building for any purpose other than as the address of
the business to be conducted by Tenant in the Demised Premises, nor shall Tenant use
any picture of the Building in its advertising, stationary or in any other manner without
the prior written permission of Landlord. Landlord expressly reserves the right at any
time to change said name without in any manner being liable to Tenant therefor.
	 
	26.	 	No smoking, eating, drinking or loitering is permitted in the common areas of the
Building except in designated areas, if any.
	 
	27.	 	Tenant shall cooperate and participate in all recycling programs, if any, established for
the Building by Landlord or nay governmental agency.
	 
	28.	 	Landlord reserves the right to make such other and further reasonable rules and
regulations as in Landlord’s judgment may from time to time be needful for the safety,
care and cleanliness of the Demised Premises or the Building, or the Property, and for the
preservation of good order therein, and upon publication or notice to Tenant, any such




C-4









 












other or further rules and regulations shall be binding upon Tenant with the same force and
effect as if they had been inserted herein at the time of the execution hereof.



C-5









 





EXHIBIT D




PARKING RIDER




     1. Provided Tenant is not in default under the Lease and has not violated the rules and
regulations set forth in this Exhibit D and any attachment hereto, as amended or supplemented
in
any fashion by Landlord from time to time in its sole and absolute discretion, including
without
limitation any rules and regulations concerning parking at the Building that Landlord may
promulgate from time to time pursuant to this Exhibit D (the “Parking Rules”), then during the
term of the Lease, (A) Tenant and its employees and business invitees visiting or conducting
business at the Demised Premises shall be entitled, on a non-exclusive and non-reserved basis,
to
the use the Building’s parking area (excluding, however, those areas thereof designated by
Landlord from time to time for the exclusive use of certain occupants of the Building or for
no
parking), but not greater than use of an aggregate of 4.00 parking spaces per one thousand
(1,000) square feet of the area of the Demised Premises (provided that Tenant shall not be in
default under the Lease if it uses up to an aggregate of 4.55 parking spaces per one thousand
(1,000) square feet of the area of the Demised Premises, notwithstanding anything herein to
the
contrary), and (B) Tenant and its designated employees shall have the right to use, on an
exclusive basis, ten (10) parking spaces in the indoor heated parking garage serving the
building
(which 10 spaces shall be located in such designated areas within such garage as may be
designated by Landlord from time to time, if Landlord so elects). Landlord reserves the right
to
designate certain of the surface parking area and covered parking area within the Building’s
parking areas as reserved parking stalls for other occupants of the Building. Tenant agrees
that,
except as specifically provided to the contrary in the Lease, Landlord may from time to time
and
at any time impose charges for parking at or about the Building, which charges are currently
(and
shall remain fixed for Tenant during the Term at) $60.00 per month for each space in the
heated
parking garage described above (it being acknowledged that there are no current parking
charges
imposed by Landlord for the other parking areas described in this Paragraph 1, and that
Landlord
shall only impose charges for such other parking areas to the extent consistent with market
parking charges for surface parking areas at other comparable buildings in Lisle/Naperville,
Illinois). All of the payments and charges provided in this Exhibit D shall be collectible
as
additional rent under the Lease.



     2. Tenant and its employees and business invitees shall not park any vehicle in any stall
designated for the exclusive use of any other person and Tenant further agrees to employ
reasonable measures to assure that its employees do not park in any such stall. Tenant shall
furnish Landlord with a list of its and its employees’ vehicle license numbers within thirty
(30) days after the Commencement Date and thereafter notify Landlord of any change in such list
within ten (10) days after such change occurs. Tenant agrees to assume responsibility for
compliance by its employees with all Parking Rules and for all losses (including the loss of
parking entrance key-cards, if any) and other damages caused by Tenant or Tenant’s agents,
servants, employees, contractors, visitors or licensees occurring during or relating to any
use of
the Building’s parking facilities. Tenant hereby authorizes Landlord to tow away from the
Building or attach violation stickers, devices or notices to any vehicle belonging to Tenant
or its employees which Landlord in good faith determines is parked in violation of the Parking Rules.



D-1









 




All costs of any such towing or violation device and all applicable violation fees shall be
payable by Tenant immediately upon demand by Landlord and, at Landlord’s option, such payment may
be required prior to the release of the towed vehicle to its owner.




     3. A condition of any parking shall be compliance by the vehicle operator with all
Parking Rules, including, without limitation, displaying any sticker or complying with any
other
identification system from time to time established by Landlord. Landlord expressly reserves
the
right to refuse to permit any person or vehicle in violation of the Parking Rules to enter or
remain
in the parking areas of the Building and to demand return therefrom of all parking stickers or
other identification supplied by Landlord and Tenant hereby agrees to assist Landlord in
enforcing all Parking Rules.



     4. In the event any surcharge, regulatory fee or parking tax is at any time (even at a time
when no parking charges are otherwise due under Section 1 above) imposed by
any
governmental authority, Tenant shall pay all such amounts applicable to Tenant’s parking
privileges hereunder to Landlord either in advance on the first day of each calendar month
concurrently with its installment of Monthly Fixed Rent or as otherwise billed from time to
time
by Landlord.



     5. All parking privileges relative to the parking spaces in the indoor heated parking
garage serving the Building are personal to the original named Tenant and any Tenant Affiliate
assignee, and may not be assigned to any other party without Landlord’s consent (at its
discretion).



     6. Landlord shall not be responsible for enforcing Tenant’s exclusive right to use any of
its reserved parking stalls under the Lease nor shall Tenant have any right to impound, tow or
impose any penalty on vehicles occupying such spaces; provided, however, that upon notice
from Tenant of any other person parking vehicles in Tenant’s reserved parking stalls, Landlord
shall use reasonable efforts (e.g., installing “reserved parking” signage and using reasonable
efforts to enforce the same) to stop such improper usage by other persons.



D-2









 





EXHIBIT E




PRE-APPROVED GENERAL CONTRACTORS




Interior Construction Group (ICG)




JC Anderson




Executive Construction (ECI)




Edison




Clune





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EXHIBIT F




FORM OF SNDA




SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT




          THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT (“Agreement”) is entered into as of                                         , 200__(the “Effective
Date”) by and between GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a
Delaware corporation (together with its successors and assigns, the “Mortgagee”), and
                                                            , a                     
                    
(hereinafter, collectively the “Tenant”), with reference to the following facts:




          A.                                         , a           
                              , whose address is                                                            
 
(the “Landlord”) owns fee simple title or a leasehold interest in the real
property described in Exhibit “A” attached hereto (the “Property”).




          B. Mortgagee has made or intends to make a loan to Landlord (the “Loan”).




          C. To secure the Loan, Landlord has or will encumber the Property by
entering into a mortgage or deed of trust in favor of Mortgagee (as amended, increased,
renewed, extended, spread, consolidated, severed, restated, or otherwise changed from time to time, the
“Mortgage”) to be recorded in the [Recorder of Deeds’ Office] in and for the County of                                         ,
State of                                         .




          D. Pursuant to the Lease effective                                         , (the “Lease”), Landlord
demised to Tenant [all] [a portion] of the Property consisting of the following (the “Leased
Premises”):
                                            
                                
                                            .




          E. Tenant and Mortgagee desire to agree upon the relative priorities of their
interests in the Property and their rights and obligations if certain events occur.




          NOW, THEREFORE, for good and sufficient consideration, Tenant and Mortgagee
agree:




     1. Definitions. The following terms shall have the following meanings for purposes of
this Agreement.



     a. Foreclosure Event. A “Foreclosure Event” means: (i) foreclosure under the
Mortgage; (ii) any other exercise by Mortgagee of rights and remedies (whether under the Mortgage
or under applicable law, including bankruptcy law) as holder of the Loan and/or the Mortgage, as a
result of which a Mortgagee becomes owner of the Property; or (iii) delivery by Landlord to
Mortgagee (or its designee or nominee) of a deed or other conveyance of Landlord’s interest in the
Property in lieu of any of the foregoing.



F-1









 





     b. Former Landlord. A “Former Landlord” means Landlord and any other party
that was landlord under the Lease at any time before the occurrence of any attornment under
this Agreement.



     c. Offset Right. An “Offset Right” means any right or alleged right of Tenant to any
offset, defense (other than one arising from actual payment and performance, which payment and
performance would bind a Successor Landlord pursuant to this Agreement), claim, counterclaim,
reduction, deduction, or abatement against Tenant’s payment of Rent or performance of Tenant’s
other obligations under the Lease, arising (whether under the Lease or under applicable law)
from Landlord’s breach or default under the Lease.



     d. Rent. The “Rent” means any fixed rent, base rent or additional rent under the
Lease.



     e. Successor Landlord. A “Successor Landlord” means any party that becomes
owner of the Property as the result of a Foreclosure Event.



     f. Termination Right. A “Termination Right” means any right of Tenant to cancel
or terminate the Lease or to claim a partial or total eviction arising (whether under the
Lease or under applicable law) from Landlord’s breach or default under the Lease.



     g. Other Capitalized Terms. If any capitalized term is used in this Agreement and
no separate definition is contained in this Agreement, then such term shall have the same
respective definition as set forth in the Lease.



     2. Subordination. The Lease, as the same may hereafter be modified, amended or
extended, shall be, and shall at all times remain, subject and subordinate to the terms
conditions and provisions of the Mortgage, the lien imposed by the Mortgage, and all advances made under

the Mortgage.



     3.  Nondisturbance, Recognition and Attornment.



     a. No Exercise of Mortgage Remedies Against Tenant. So long as the Tenant is not
in default under this Agreement or under the Lease beyond any applicable grace or cure periods
(an “Event of Default”), Mortgagee (i) shall not terminate or disturb Tenant’s possession of
the Leased Premises under the Lease, except in accordance with the terms of the Lease and this
Agreement and (ii) shall not name or join Tenant as a defendant in any exercise of Mortgagee’s
rights and remedies arising upon a default under the Mortgage unless applicable law requires
Tenant to be made a party thereto as a condition to proceeding against Landlord or prosecuting
such rights and remedies. In the latter case, Mortgagee may join Tenant as a defendant in
such action only for such purpose and not to terminate the Lease or otherwise adversely affect
Tenant’s rights under the Lease or this Agreement in such action.



     b. Recognition and Attornment. Upon Successor Landlord taking title to the
Property (i) Successor Landlord shall be bound to Tenant under all the terms and conditions of
the Lease (except as provided in this Agreement); (ii) Tenant shall recognize and attorn to
Successor Landlord as Tenant’s direct landlord under the Lease as affected by this Agreement;



F-2









 




and (iii) the Lease shall continue in full force and effect as a direct lease, in accordance with
its terms (except as provided in this Agreement), between Successor Landlord and Tenant. Tenant
hereby acknowledges notice that pursuant to the Mortgage and assignment of rents, leases and
profits, Landlord has granted to the Mortgagee an absolute, present assignment of the Lease and
Rents which provides that Tenant continue making payments of Rents and other amounts owed by Tenant
under the Lease to the Landlord and to recognize the rights of Landlord under the Lease until
notified otherwise in writing by the Mortgagee. After receipt of such notice from Mortgagee, the
Tenant shall thereafter make all such payments directly to the Mortgagee or as the Mortgagee may
otherwise direct, without any further inquiry on the part of the Tenant. Landlord consents to the
foregoing and waives any right, claim or demand which Landlord may have against Tenant by reason of
such payments to Mortgagee or as Mortgagee directs.




     c. Further Documentation. The provisions of this Article 3 shall be effective
and self-operative without any need for Successor Landlord or Tenant to execute any further
documents. Tenant and Successor Landlord shall, however, confirm the provisions of this
Article 3 in writing upon request by either of them within ten (10) days of such request.



     4. Protection of Successor Landlord. Notwithstanding anything to the contrary in the
Lease or the Mortgage, Successor Landlord shall not be liable for or bound by any of the following
matters:



     a. Claims Against Former Landlord. Any Offset Right that Tenant may have
against any Former Landlord relating to any event or occurrence before the date of attornment,
including any claim for damages of any kind whatsoever as the result of any breach by Former
Landlord that occurred before the date of attornment. The foregoing shall not limit either
(i) Tenant’s right to exercise against Successor Landlord any Offset Right otherwise available
to Tenant because of events occurring after the date of attornment or (ii) Successor Landlord’s
obligation to correct any conditions that existed as of the date of attornment and violate
Successor Landlord’s obligations as landlord under the Lease.



     b. Prepayments. Any payment of Rent that Tenant may have made to Former
Landlord more than thirty (30) days before the date such Rent was first due and payable under
the Lease with respect to any period after the date of attornment other than, and only to the
extent that, the Lease expressly required such a prepayment.



     c. Payment; Security Deposit; Work. Any obligation: (i) to pay Tenant any sum(s)
that any Former Landlord owed to Tenant unless such sums, if any, shall have been actually
delivered to Mortgagee by way of an assumption of escrow accounts or otherwise; (ii) with
respect to any security deposited with Former Landlord, unless such security was actually
delivered to Mortgagee; (iii) to commence or complete any initial construction of improvements
in the Leased Premises or any expansion or rehabilitation of existing improvements thereon;
(iv) to reconstruct or repair improvements following a fire, casualty or condemnation; or
(v) arising from representations and warranties related to Former Landlord.



     d. Modification, Amendment or Waiver. Any modification or amendment of the
Lease, or any waiver of the terms of the Lease, made without Mortgagee’s written consent.



F-3









 





     e. Surrender, Etc. Any consensual or negotiated surrender, cancellation, or
termination of the Lease, in whole or in part, agreed upon between Landlord and Tenant, unless
effected unilaterally by Tenant pursuant to the express terms of the Lease.



     5. Exculpation of Successor Landlord. Notwithstanding anything to the contrary in
this Agreement or the Lease, Successor Landlord’s obligations and liability under the Lease
shall never extend beyond Successor Landlord’s (or its successors’ or assigns’) interest, if any, in
the Leased Premises from time to time, including insurance and condemnation proceeds, security
deposits, escrows, Successor Landlord’s interest in the Lease, and the proceeds from any sale,
lease or other disposition of the Property (or any portion thereof) by Successor Landlord
(collectively, the “Successor Landlord’s Interest”). Tenant shall look exclusively to
Successor Landlord’s Interest (or that of its successors and assigns) for payment or discharge of any
obligations of Successor Landlord under the Lease as affected by this Agreement. If Tenant
obtains any money judgment against Successor Landlord with respect to the Lease or the
relationship between Successor Landlord and Tenant, then Tenant shall look solely to Successor
Landlord’s Interest (or that of its successors and assigns) to collect such judgment. Tenant
shall not collect or attempt to collect any such judgment out of any other assets of Successor
Landlord.



     6. Mortgagee’s Right to Cure. Notwithstanding anything to the contrary in the
Lease or this Agreement, before exercising any Offset Right or Termination Right:



     a. Notice to Mortgagee. Tenant shall provide Mortgagee with notice of the breach
or default by Landlord giving rise to same (the “Default Notice”) and, thereafter, the
opportunity to cure such breach or default as provided for below.



     b. Mortgagee’s Cure Period. After Mortgagee receives a Default Notice, Mortgagee
shall have a period of thirty (30) days beyond the time available to Landlord under the Lease
in which to cure the breach or default by Landlord. Mortgagee shall have no obligation to cure
(and shall have no liability or obligation for not curing) any breach or default by Landlord,
except to the extent that Mortgagee agrees or undertakes otherwise in writing. In addition, as
to any breach or default by Landlord the cure of which requires possession and control of the
Property, provided that Mortgagee undertakes by written notice to Tenant to exercise
reasonable efforts to cure or cause to be cured by a receiver such breach or default within the period
permitted by this paragraph, Mortgagee’s cure period shall continue for such additional time
as Mortgagee may reasonably require to either: (i) obtain possession and control of the Property
with due diligence and thereafter cure the breach or default with reasonable diligence and
continuity; or (ii) obtain the appointment of a receiver and give such receiver a reasonable
period of time in which to cure the default.



     7. Miscellaneous.



     a. Notices. Any notice or request given or demand made under this Agreement by one
party to the other shall be in writing, and may be given or be served by hand delivered personal
service, or by depositing the same with a reliable overnight courier service or by deposit in the
United States mail, postpaid, registered or certified mail, and addressed to the party to be
notified, with return receipt requested or by telefax transmission, with the original machine-



F-4









 




generated transmit confirmation report as evidence of transmission. Notice deposited in the mail in
the manner hereinabove described shall be effective from and after the expiration of three (3) days
after it is so deposited; however, delivery by overnight courier service shall be deemed effective
on the next succeeding business day after it is so deposited and notice by personal service or
telefax transmission shall be deemed effective when delivered to its addressee or within two (2)
hours after its transmission unless given after 3:00 p.m. on a business day, in which case it shall
be deemed effective at 9:00 a.m. on the next business day. For purposes of notice, the addresses
and telefax number of the parties shall, until changed as herein provided, be as follows:





	 	i.	 	If to the Mortgagee, at:
	 
	 	 	 	Greenwich Capital Financial Products, Inc. 

600 Steamboat Road 

Greenwich, Connecticut 06830 

Attn: Mortgage Loan Department
	 
	 	 	 	Telecopy No.: (203) 618-2052
	 
	 	ii.	 	If to the Tenant, at:
	 
	 	 	 	                                                            

                                                            

                                                            

Attn:                                                   
	 
	 	 	 	Telecopy No.: (           )                    





     b. Successors and Assigns. This Agreement shall bind and benefit the parties, their
successors and assigns, any Successor Landlord, and its successors and assigns. If Mortgagee
assigns the Mortgage, then upon delivery to Tenant of written notice thereof accompanied by
the assignee’s written assumption of all obligations under this Agreement, all liability of the
assignor shall terminate.



     c. Entire Agreement. This Agreement constitutes the entire agreement between
Mortgagee and Tenant regarding the subordination of the Lease to the Mortgage and the rights
and obligations of Tenant and Mortgagee as to the subject matter of this Agreement.



     d. Interaction with Lease and with Mortgage. If this Agreement conflicts with the
Lease, then this Agreement shall govern as between the parties and any Successor Landlord,
including upon any attornment pursuant to this Agreement. This Agreement supersedes, and
constitutes full compliance with, any provisions in the Lease that provide for subordination
of the Lease to, or for delivery of nondisturbance agreements by the holder of, the Mortgage.



     e. Mortgagee’s Rights and Obligations. Except as expressly provided for in this
Agreement, Mortgagee shall have no obligations to Tenant with respect to the Lease. If an
attornment occurs pursuant to this Agreement, then all rights and obligations of Mortgagee
under



F-5









 




this Agreement shall terminate, without thereby affecting in any way the rights and obligations of
Successor Landlord provided for in this Agreement.




     f. Interpretation; Governing Law. The interpretation, validity and enforcement of
this Agreement shall be governed by and construed under the internal laws of the State in
which the Leased Premises are located, excluding such State’s principles of conflict of laws.



     g. Amendments. This Agreement may be amended, discharged or terminated, or any
of its provisions waived, only by a written instrument executed by the party to be charged.



     h. Due Authorization. Tenant represents to Mortgagee that it has full authority to
enter into this Agreement, which has been duly authorized by all necessary actions. Mortgagee
represents to Tenant that it has full authority to enter into this Agreement, which has been duly
authorized by all necessary actions.



     i. Execution. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
instrument.



[THIS SPACE INTENTIONALLY LEFT BLANK]




F-6









 








          IN WITNESS WHEREOF, the Mortgagee and Tenant have caused this Agreement to
be executed as of the date first above written.




	 	 	 	 	 
	 	MORTGAGEE:





GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a
Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TENANT:

 	 
	 	                                                               	 
	 	a                                                             	 
	 	  	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



F-7









 






	 	 	 	 	 



LANDLORD’S CONSENT





     Landlord consents and agrees to the foregoing Agreement, which was entered into at Landlord’s
request. The foregoing Agreement shall not alter, waive or diminish any of Landlord’s obligations
under the Mortgage or the Lease. The above Agreement discharges any obligations of Mortgagee under
the Mortgage and related loan documents to enter into a nondisturbance agreement with Tenant.
Landlord is not a party to the above Agreement.



	 	 	 	 	 
	 	LANDLORD:

 	 
	 

	 	                                                               	 
	 

	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	Dated:                                                        ,              	 	 	 	 



F-8









 






	 	 	 	 	 



MORTGAGEE’S ACKNOWLEDGMENT




	 	 	 	 	 
	STATE OF                                            

	 	)	 	 
	 

	 	)	 	ss.
	COUNTY OF                                         

	 	)	 	 






          On the ___day of                      in the year                      before me, the undersigned, a
Notary Public in and for said state, personally appeared                                                             , proved to
me on the basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.




	 	 	 
	 

	 	 
	 

	 	 
	 

	 	Signature of Notary Public






F-9









 






TENANT’S ACKNOWLEDGMENT




	 	 	 	 	 
	STATE OF                                            

	 	)	 	 
	 

	 	)	 	ss.
	COUNTY OF                                         

	 	)	 	 






          On the ___day of                      in the year                      before me, the undersigned, a
Notary Public in and for said state, personally appeared                                                             , proved to
me on the basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.




	 	 	 
	 

	 	 
	 

	 	 
	 

	 	Signature of Notary Public






F-10









 






LIST OF EXHIBITS




     If any exhibit is not attached hereto at the time of execution of this Agreement, it may
thereafter be attached by written agreement of the parties, evidenced by initialing said exhibit.



Exhibit “A” — Legal Description of the Land




F-11









 








EXHIBIT G




EXPANSION SPACE A









G-1









 





EXHIBIT H




EXPANSION SPACE B









H-1









 





EXHIBIT I




BUILDING SIGNAGE IDENTIFICATION — NAME/LOGO DEPICTION










I-1











 





EXHIBIT J




CLEANING SPECIFICATIONS



The Landlord shall furnish janitorial services described below:



Daily — Five (5) times a week.





	•	 	Sweep, dry mop or vacuum all
floors. Remove gum, tar, etc. adhering to the floor.

	 
	•	 	Empty and damp wipe all ashtrays located on the outside of the
Building.
	 
	•	 	Dust all horizontal surfaces, including tops of desks, file cabinets and counters, that can be reached without a ladder
with a treated cloth, mitt or duster. (Papers and other objects on horizontal surfaces are not to be disturbed.)
	 
	•	 	Clean, polish and sanitize all drinking fountains.
	 
	•	 	Sweep all steps, sidewalks, plazas and interior landings leading to building.
	 
	•	 	Clean freight and passenger elevator cabs and landing doors including floors.
	 
	•	 	Empty all waste containers of waste paper and rubbish in quantities normal for office space.
	 
	•	 	Clean all common area washrooms and restrooms.
	 
	•	 	Spot clean all entrance doors, switch plates, walls and glass areas adjacent to such doors.
	 
	•	 	Dust exterior of all light fixtures other than ceiling fixtures with a feather duster.




Weekly





	•	 	Wash glass in building directory.
	 
	•	 	Walk parking area and grounds (empty exterior waste container) and sweep areas.
	 
	•	 	Dust mop stairwells.
	 
	•	 	Damp wipe all waste containers.
	 
	•	 	Wash all glass entrance doors and side panels inside and out.




Monthly





	•	 	Damp mop stairwell landings and treads.
	 
	•	 	Sweep and hose down exterior walks, trucking areas and shipping platforms.
	 
	•	 	Remove hard water stains from toilet fixtures.
	 
	•	 	Dust with treated dusters all Venetian blinds.




J-1









 











Every Three Months





	•	 	Machine scrub all common area lavatory and vestibule floors
	 
	•	 	Shampoo all elevator carpeting.




J-2









 











EXHIBIT K




HVAC DESIGN STANDARDS



System Criteria — Systems operations are based upon population not to exceed one person/200 square
feet of floor area.



Systems Operation Standards — Landlord provided HVAC system for all general office areas, in
operation during regular business hours of all business days, shall be sufficient to maintain the
following temperatures within the building:




	 	 	 	 	 	 	 	 	 
	Temperature	 	Heating Season	 	Cooling Season
	 
	 	 	 	 	 	 	 	 
	Outside:
	 	 	-10F.	 	 	94F. DB
	 
	 	 	 	 	 	74F. WB
	 
	 	 	 	 	 	 	 	 
	Inside:
	 	 	72F (+/-2F).	 	 	 	74F(±2°F).	 
	 
	 	 	 	 	 	 	 	 
	Discharge Air Temperature:
	 	 	 	 	 	 	55F.	 






K-1