exv10w14






Exhibit 10.14




EXECUTION COPY — UNIVERSITY PARK




LEASE




between




CENTERPOINT PROPERTIES TRUST




Landlord,




and




FEDERAL SIGNAL CORPORATION, a Delaware corporation




Tenant




Dated: July 2, 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE 1.

	 	GRANT AND TERM
	 	 	1	 
	ARTICLE 2.

	 	RENT
	 	 	2	 
	ARTICLE 3.

	 	IMPOSITIONS
	 	 	6	 
	ARTICLE 4.

	 	USE
	 	 	8	 
	ARTICLE 5.

	 	UTILITIES
	 	 	9	 
	ARTICLE 6.

	 	INSURANCE
	 	 	9	 
	ARTICLE 7.

	 	RETURN OF PREMISES
	 	 	14	 
	ARTICLE 8.

	 	HOLDING OVER
	 	 	14	 
	ARTICLE 9.

	 	CONDITION AND CARE OF PREMISES
	 	 	15	 
	ARTICLE 10.

	 	RIGHTS RESERVED TO LANDLORD
	 	 	16	 
	ARTICLE 11.

	 	ALTERATIONS
	 	 	16	 
	ARTICLE 12.

	 	ASSIGNMENT AND SUBLETTING
	 	 	18	 
	ARTICLE 13.

	 	WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT
	 	 	19	 
	ARTICLE 14.

	 	USE OF CASUALTY INSURANCE PROCEEDS
	 	 	21	 
	ARTICLE 15.

	 	EMINENT DOMAIN
	 	 	23	 
	ARTICLE 16.

	 	DEFAULT
	 	 	24	 
	ARTICLE 17.

	 	SUBORDINATION
	 	 	28	 
	ARTICLE 18.

	 	MORTGAGEE PROTECTION
	 	 	29	 
	ARTICLE 19.

	 	ESTOPPEL CERTIFICATE
	 	 	29	 
	ARTICLE 20.

	 	EXTENSION OPTIONS
	 	 	30	 
	ARTICLE 21.

	 	NONWAIVER
	 	 	30	 
	ARTICLE 22.

	 	CORPORATION OR PARTNERSHIP OR LIMITED LIABILITY
COMPANY
	 	 	31	 
	ARTICLE 23.

	 	REAL ESTATE BROKERS
	 	 	31	 
	ARTICLE 24.

	 	NOTICES
	 	 	31	 
	ARTICLE 25.

	 	HAZARDOUS MATERIALS
	 	 	32	 
	ARTICLE 26.

	 	TITLE AND COVENANT AGAINST LIENS
	 	 	37	 
	ARTICLE 27.

	 	MISCELLANEOUS
	 	 	38	 
	ARTICLE 28.

	 	EXCULPATORY PROVISIONS
	 	 	41	 
	ARTICLE 29.

	 	QUIET USE AND ENJOYMENT
	 	 	41	 






-i-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE 30.

	 	FINANCIAL STATEMENTS/CONFIDENTIALITY
	 	 	41	 
	ARTICLE 31.

	 	RIGHT OF FIRST OFFER
	 	 	42	 
	ARTICLE 32.

	 	CROSS DEFAULT
	 	 	43	 
	ARTICLE 33.

	 	SECURITY DEPOSIT
	 	 	43	 






-ii-









 






EXHIBTS & SCHEDULES




	 	 	 	 	 	 	 
	Exhibit A
	 	Legal Description of Land	 	 	 	 
	Exhibit B
	 	Memorandum of Lease	 	 	 	 
	Exhibit C
	 	List of Other Leases	 	 	 	 
	Exhibit D
	 	Form of Estoppel Letter	 	 	 	 
	Exhibit E
	 	Form of Letter of Credit	 	 	 	 
	Schedule 2.01
	 	Base Rent	 	 	 	 
	Schedule 7.03
	 	Trade Fixtures and Personal Property	 	 	 	 






 









 






LEASE




     THIS LEASE (hereinafter the “Lease”) is made and entered into as of the 2nd day of
July, 2008, by and between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(hereinafter, “Landlord”), and FEDERAL SIGNAL CORPORATION, a Delaware corporation
(hereinafter “Tenant”).



ARTICLE 1.

GRANT AND TERM




     1.01 Grant of Lease. Landlord, for and in consideration of the rents reserved herein
and of the covenants and agreements contained herein on the part of Tenant to be performed, hereby
leases to Tenant, and Tenant hereby leases from Landlord, that certain property legally described
on Exhibit A attached hereto and made a part hereof (the “Land”), consisting of an
approximately 429,164 square foot building located on the Land and all improvements located thereon
that exclusively serve the Premises (as hereinafter defined), and commonly known as 2645 Federal
Signal Drive, University Park, Illinois (the “Building”), subject to any covenants,
conditions, agreements, easements, encumbrances and restrictions affecting the Land or the
Building, including without limitation any such matters of record, as would be disclosed on a
current survey, and/or as imposed by applicable law, as the same may be amended or waived
(“Restrictions”).



          The Land, the Building and the improvements thereon and any and all replacements, additions
and substitutions thereto from time to time are collectively referred to as the “Premises.”



     1.02 Term of Lease. The term hereof shall commence on July 2, 2008 (the
“Commencement Date”) and shall expire on June 30, 2023 (the “Expiration Date”),
unless earlier terminated or extended as provided in this Lease (the “Term”). If the
Commencement Date occurs on a day other than the first (1st) day of a calendar month, Tenant shall
pay a proportionate Base Rent in advance at the monthly rate set forth herein for such partial
month.



     1.03 Lease Year Defined. As used in this Lease, the term “Lease Year” shall
mean if the Commencement Date is July 2, 2008, the first Lease Year shall be the period commencing
on the Commencement Date and ending on June 30, 2009 and each succeeding twelve (12) month period
thereafter, and in the final Lease Year that period which falls in whole or in part during the
Term.



     1.04 Compliance with Restrictions.



          (a) Notwithstanding anything to the contrary contained herein, it is expressly understood and
agreed by and between Landlord and Tenant that:





     (i) This Lease is subject and subordinate to the Restrictions;




     (ii) Tenant shall comply with the Restrictions at all times and shall pay all
amounts owing by, and perform all obligations thereunder which are the



 









 







responsibility of the owner, lessee, or occupant of, the Premises (including,
without limitation, the obligations of any “Party” under the Restrictions);




     (iii) As between Tenant and Landlord, Tenant shall be solely responsible for
the obligations under the Restrictions as the same relate to the Premises;




     (iv) Tenant shall responsible for the consequences of any violation of the
Restrictions without regard to its obligations hereunder and the indemnification
agreement under Section 13.02 hereunder shall apply, without limitation, to
any Losses (as defined in Section 13.02) arising from or relating to any
such violation; and




     (v) Without regard to the obligations hereunder, which are distinct and
separate obligations from those under the Restrictions, no right, power or privilege
granted to Tenant hereunder may be exercised or enjoyed by Tenant and no term,
covenant or conditions of this Lease benefiting Tenant or binding Landlord shall be
operative if and to the extent that such exercise, enjoyment or operation would not
be permitted by or would violate or be in conflict with any term, covenant or
condition of the Restrictions.



          (b) Subject to the limitations in this Lease, Tenant shall be entitled to enjoy the benefits
of services, easements and privileges available to the owner or occupant of the Premises under the
Restrictions.




          (c) Landlord, in its capacity as landlord under this Lease, agrees, during the Term, not to
amend, modify or grant any approval or concession under the Restrictions or to enter into any new
Restrictions or other covenant, condition, agreement, easement, encumbrance or restrictions
affecting the Land, the Building or the Premises, without Tenant’s written consent, if such
amendment, modification, or grant of approval or consent would adversely affect the Tenant’s
operations at the Premises or result in increased monetary obligations for Tenant under the
Restrictions.




          (d) Tenant agrees, during the Term, it has no legal right or authority to, and it shall not,
amend, modify or grant any approval or concession under the Restrictions or to enter into any new
Restrictions or other covenant, condition, agreement, easement, encumbrance or restrictions
affecting the Land, the Building, or the Premises, without Landlord’s written consent.




          (e) Notwithstanding anything the contrary herein, it is agreed that Landlord may exercise
extension options, rights of first refusal, rights of first offer, rights to purchase and other
similar rights under the Restrictions and may deliver estoppels, and undertake other customary
activities in its capacity as contemplated under the Restrictions.




ARTICLE 2.

RENT




     2.01 Base Rent. Tenant shall pay an annual base rent (hereinafter referred to as
“Base Rent”) for the Premises to Landlord, without notice or demand in equal monthly
installments.



2









 




Annual Base Rent for the first Lease Year shall equal One Million Eight Hundred Sixty-Six
Thousand Eight Hundred Sixty-Three and No/100 Dollars ($1,866,863.00) per Lease Year. The Base
Rent for each subsequent Lease Year period during the Term, shall increase two percent (2%) from
the Base Rent payable in the prior Lease Year period (See Schedule 2.01 attached hereto and
made a part hereof). Base Rent shall be payable in equal monthly installments (hereinafter referred
to as “Monthly Base Rent”), in advance, on the first (1st) day of the Term and on the first
(1st) day of each calendar month thereafter of the Term, and at the same rate for fractions of a
month if the Term begins on any day except the first day of a calendar month or ends on any day
except the last day of a calendar month. The first installment of Monthly Base Rent or the
appropriate portion thereof if the Commencement Date is not the first day of a month, shall be due
and payable on the Commencement Date.




     2.02 Manner of Payment. Base Rent, Rent Adjustments (as defined below), and all other
amounts becoming due from Tenant to Landlord hereunder (hereinafter collectively referred to as
“Rent”) shall be paid in lawful money of the United States to Landlord at 2023 Paysphere
Circle, Chicago, Illinois 60674, or as otherwise designated from time to time by written notice
from Landlord to Tenant.



     2.03 Net Lease. It is the intention of the parties hereto that the obligations of
Tenant hereunder shall be separate and independent covenants and agreements, and that any Base
Rent, Rent Adjustments, and other items of Rent and all other sums payable by Tenant hereunder
shall continue to be payable in all events, and that the obligations of Tenant hereunder shall
continue unaffected, unless the requirement to pay or perform the same shall have been terminated
pursuant to an express provision of this Lease or by operation of law. This is a net lease and
Base Rent, Rent Adjustments, Impositions, and all other items of Rent and all other sums payable
hereunder by Tenant shall be paid without notice or demand, and without setoff, counterclaim,
recoupment, abatement, suspension, deferment, diminution, deduction, reduction or defense, except
as otherwise specifically set forth herein. Tenant shall enforce any rights against Landlord in an
independent action. This Lease shall not terminate, and Tenant shall not have any right to
terminate this Lease, during the Term (except as otherwise expressly provided herein). Except as
provided under bankruptcy, insolvency, reorganization, composition, readjustment, liquidation,
dissolution, winding-up or other proceeding affecting Landlord, Tenant agrees that, except as
otherwise expressly provided herein, it shall not take any action to terminate, rescind or avoid
this Lease notwithstanding (i) the exercise of any remedy, including foreclosure, under any
mortgage (subject to Tenant’s non-disturbance rights), (ii) any action with respect to this Lease
which may be taken by Landlord under the Federal Bankruptcy Code or otherwise, (iii) the taking of
the Premises or any portion thereof (except as specifically provided in Article 15 hereof),
(iv) the prohibition or restriction of Tenant’s use of the Premises under any laws or otherwise
unless attributable to the intentional misconduct of Landlord, or (v) the destruction of the
Premises or any portion thereof. Landlord and Tenant agree that this Lease is a true lease and
does not represent a financing agreement. Each party shall reflect the transaction represented
hereby in all applicable books, records and reports (including income tax filings) in a manner
consistent with “true lease” treatment rather than “financing” treatment to the extent permitted by
law and applicable accounting principles.



     2.04 Definition of CPI Adjustment. The “CPI Adjustment” means the increase in the applicable
amount by multiplying the applicable amount by a fraction, the numerator of which is



3









 







the CPI published for the last calendar month, 3 months immediately prior to the last month of
such applicable Lease Year Period and the denominator of which is the CPI published for the
calendar month, 3 months immediately preceding the start of the Commencement Date. As used in this
Lease, “CPI” means the Consumer Price Index for All Urban Consumers, U.S. All Items (1982-84 = 100)
as published by the U.S. Department of Labor, Bureau of Labor Statistics, or if the publication of
that index is discontinued, such other reliable governmental or other reputable publication
reasonably selected by Landlord which reflects the then broad range of economic factors represented
in the Consumer Price Index as to such location.



     2.05 Fair Value. For purposes of this Lease, “Fair Value” shall mean (subject to further
determination below) Landlord’s determination, utilizing its reasonable judgment, of an annual
amount per rentable square foot for a term equivalent to the period for which Fair Value is being
determined beginning with the first (1st) day of the subject period that a willing tenant leasing
comparable space to the Premises would pay and a willing landlord in the metropolitan area where
the Premises are located (the “Market”) would accept at arm’s length, giving appropriate
consideration to annual rental rate per rentable square foot, rental escalations, concessions,
abatements, tenant improvement allowances, length of lease term, size and location of the premises
being leased, and other generally applicable terms and conditions prevailing for comparable space
in comparable properties located in the Market. Landlord’s determination of the Base Rent amount
shall be provided to Tenant within sixty (60) days of Landlord’s receipt of Tenant’s exercise of
its Extension Option notice (“Base Rent Notice”). In the event Tenant disagrees with Landlord’s
Fair Value determination as set forth in the Base Rent Notice, Tenant shall, within thirty (30)
days after receipt of the Base Rent Notice, furnish Landlord with a written notice of its objection
(“Tenant’s Objection Notice”). If Tenant’s Objection Notice is not delivered to Landlord within
said 30-day period, the Base Rent shall be the Base Rent set forth in the Base Rent Notice to
Tenant. If Tenant delivers Tenant’s Objection Notice, Landlord and Tenant shall then have thirty
(30) days (the “Negotiation Period”), to use good faith efforts to reach an agreed upon Base Rent
amount for the applicable Extension Period. If Tenant’s Objection Notice is delivered to Landlord
and Landlord and Tenant are unable to reach agreement, the Base Rent for the Extension Period shall
be established as follows:



          (a) No later than twenty (20) days following expiration of the Negotiation Period, Tenant and
Landlord shall each select an appraiser of their choice and give the other written notice of such
appraiser’s name, address and telephone number. The two appraisers shall then have thirty (30)
days to agree upon the Fair Value.




          (b) If the two appraisers can not agree upon Fair Value within said thirty (30) day period,
then the two appraisers so selected by Landlord and Tenant shall select a third appraiser within
fifteen (15) days after expiration of said thirty (30) day period, and shall furnish Landlord and
Tenant written notice of such third appraiser’s name, address and telephone number. The three
appraisers shall each then have thirty (30) days to make their determination as to Fair Value and
to notify Landlord and Tenant.




          (c) All appraisers selected pursuant to this provision shall be M.A.I. appraisers, unless
Landlord and Tenant shall otherwise agree in writing, each having at least ten (10) years
experience with commercial property in the Market. Each of the three (3) selected appraisers shall
then determine the Fair Value of the Premises for the applicable Extension




4









 







Period and the Base Rent hereunder, as applicable, shall be determined to be the average of
two (2) closest appraisals for each such Extension Period.




          If the procedure set forth above is implemented, and if for any reason whatsoever including,
without limitation, the institution of any judicial or other legal proceedings, the Base Rent for
the Extension Period has not been finally determined prior to the first day of said Extension
Period, then the amount of the Base Rent previously payable under the Lease for the prior period
shall be the Base Rent previously payable under this Lease until such time as the Base Rent is
finally determined as set forth above, and Landlord and Tenant shall, by appropriate payments to
the other, correct any overpayment or underpayment which may have been made prior to such final
determination.




          If the appraisers selected by Landlord and Tenant fail to appoint the third appraiser within
the time and in the manner prescribed above, then Landlord and/or Tenant shall promptly apply to
the nearest office to where the Premises are located of the American Arbitration Association for
the appointment of the third appraiser.




          All fees, costs and expenses incurred in connection with obtaining the appraisals and the
arbitration procedure set forth in this section shall be shared equally by Landlord and Tenant;
however, Landlord and Tenant shall each bear their own attorneys’ fees incurred with respect to
this procedure and the cost of the appraiser selected directly by such party.




     2.06 Additional Rent. All amounts and charges payable by Tenant under this Lease in
addition to the Base Rent described in Section 2.01 above (including, without limitation,
Rent Adjustments and payments for Impositions) shall be considered additional rent for the purposes
of this Lease, and the word “rent” in this Lease shall include such additional rent unless
the context specifically or clearly implies otherwise.



     2.07 Late Charge/Interest. Tenant acknowledges that its late payment of Base Rent
will cause Landlord to incur certain costs and expenses not contemplated under this Lease, the
exact amount of which is extremely difficult or impractical to fix. Therefore, if any future
payment of Base Rent, or any portion thereof, is not received by Landlord within five (5) days of
the date when due, then upon the second occurrence of any late payment of Base Rent in any twelve
(12) month period and thereafter during such twelve (12) month period, Tenant shall promptly pay to
Landlord a late charge equal to three percent (3%) of the unpaid amount (“Late Charge”).
Such Late Charge is in addition to any interest due pursuant to the Delinquency Rate pursuant to
the last sentence of this Section 2.05. Landlord and Tenant agree that the Late Charge (plus
interest) represents a reasonable estimate of costs and expenses incurred by Landlord from, and is
fair compensation to Landlord for, its loss suffered by such non payment by Tenant. If any
installment of Base Rent is not paid prior to a Default occurring, Landlord shall be entitled to
receive the payment of interest at the Default Rate on such unpaid installment of rent from the
date such installment became due and payable through the date payment was made by Tenant.



     2.08 Late Fees, Default Interest and other Penalties under the Restrictions. If
Tenant fails to pay any amount owing under the Restrictions, and a late fee or default interest, or
other penalty is imposed on or becomes due and payable by Landlord, Tenant shall pay to Landlord



5









 







upon demand any such amount so charged. Landlord may elect to pay such amount to the party
entitled thereto prior to any payment by Tenant hereunder, and Tenant shall reimburse Landlord for
any such amount within twenty (20) business days after Landlord’s demand therefor.



ARTICLE 3.

IMPOSITIONS




     3.01 Pay Impositions. Tenant shall pay or cause to be paid, in a timely manner and as
hereinafter provided, all of the following items, if any, to the extent that such items arise out
of (i) the use, ownership, leasing or operation of the Premises and/or any personal property,
equipment or other facility used in the operation thereof, (ii) the rent, income or other payments
received by Tenant or anyone claiming, by, through or under Tenant, (iii) the exercise of any
rights, obligations, easements and franchises as may now or hereafter be appurtenant, or appertain
to the use of the Premises, (iv) this transaction or any document to which Tenant is a party
creating or transferring an estate or interest in the Premises (whether occurring prior to,
contemporaneous with, or subsequent hereto), (v) the rent payable hereunder to Landlord, and/or
(vi) the business of Landlord in renting the Premises to Tenant (“Impositions”): (a) real
property taxes and assessments; (b) personal property taxes; (c) occupancy and rent taxes; (d)
water, water meter and sewer rents, rates and charges; (e) all charges, costs and other obligations
imposed on or with respect to the Premises pursuant to the Restrictions; (f) levies; (g) license
and permit fees; (h) service charges, with respect to police protection, fire protection, street
and highway maintenance, construction and lighting, sanitation and water supply, if any; (i) gross
receipts, excise or similar taxes (i.e., taxes customarily based upon gross income or receipts
which fail to take into account deductions relating to the Premises) imposed or levied upon,
assessed against or measured by Base Rent or other Rent payable hereunder, but only as related to
the Premises; (j) all excise, sales, value added, use and similar taxes; (k) charges for utilities,
communications and other services rendered or used in or about the Premises; (l) payments in lieu
of each of the foregoing, whether or not expressly so designated; and (m) fines, penalties and
other similar or like governmental charges applicable to any of the foregoing and any interest or
costs with respect thereto unless attributable to the acts of Landlord, its representatives,
agents, employees or designees (the “Landlord Parties”); and (n) any and all other federal,
state, county and municipal governmental and quasi-governmental levies, fees, rents, assessments or
taxes and charges, general and special, ordinary and extraordinary, foreseen and unforeseen, of
every kind and nature whatsoever, and any interest or costs with respect thereto, which actually
become due and payable during or arise during the Term. Each such Imposition, or installment
thereof, shall be paid before the last day the same may be paid without fine, penalty, interest or
additional cost; provided, however, that if, by law, any Imposition may at the option of the
taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of
such Imposition), Tenant may exercise the option to pay the same in such installments and shall be
responsible for the payment of such installments only, provided that all such installment payments
relating to periods prior to the date definitely fixed for the expiration of the Term or earlier
termination of the Lease are required to be made prior to the Expiration Date or such termination.
Notwithstanding anything contained in this Section 3.01 to the contrary,
“Impositions” shall include all charges which are assessed, levied or imposed, which
actually become due and payable during the Term, or which otherwise arise during the Term but which
are not due and payable until after the expiration of the Term, and Tenant shall promptly pay such
items as and when they become due and payable.



6









 





     3.02 Receipt of Payment. If requested by Landlord, Tenant shall furnish to Landlord,
within thirty (30) business days after such request (or such shorter period of time as may be
necessary to avoid a default under any relevant agreement or penalty under law), evidence
reasonably satisfactory to Landlord evidencing the payment of the Imposition.



     3.03 Other.



          (a) Except as provided in subparagraph (b) herein below, nothing contained in this Article
3 shall require Tenant to pay state or federal income, inheritance, estate, succession, capital
levy, stamp, excess profit, revenue or gift taxes of Landlord, or any corporate franchise tax
imposed upon Landlord.




          (b) If at any time during the Term, a tax or excise on Base Rent or other Rent or the right to
receive rents or other tax, however described, is levied or assessed against Landlord as a
substitute in whole or in part for any Impositions theretofore payable by Tenant, Tenant shall pay
and discharge such tax or excise on Rental or other tax before interest or penalties accrue, and
the same shall be deemed to be an Imposition levied against the Premises.




     3.04 Fiscal Periods. Any Imposition accruing with respect to the Premises, relating
to a fiscal period of the imposing authority, a part of which period is included within the Term
and a part of which is included in a period of time after the date definitely fixed in Article
1 hereof for the expiration of the Term shall be apportioned between Landlord and Tenant. The
foregoing obligations shall survive expiration or termination of the Term.



     3.05 Contest. Landlord agrees to contest Taxes on an annual basis. Tenant shall have
the right to contest the amount or validity, in whole or in part, of any other Imposition by
appropriate proceedings diligently conducted in good faith, but only after payment of such
Imposition, unless such payment would operate as a bar to such contest, in which event,
notwithstanding the provisions of Section 3.01 hereof, payment of such Imposition shall be
postponed if and only as long as:



          (a) neither the Premises nor any part thereof would, by reason of such postponement or
deferment, be, in the reasonable judgment of Landlord, in danger of being forfeited, lost or
adversely affected;




          (b) such contest shall not subject Landlord or any Mortgagee (as hereinafter defined) to the
risk of any criminal or civil liability;




          (c) such contest shall not cause Landlord to be in default under any Mortgage (as hereinafter
defined) or constitute a default under the Restrictions;




          (d) such contest shall not, in the reasonable judgment of Landlord, result in any Imposition
being increased; and




          (e) Tenant shall have deposited with, at Landlord’s option, either Landlord or a Depositary
(as hereinafter defined), simultaneously with such contest, cash or other security determined by
Landlord in the amount so contested and unpaid, together with all interest and




7









 







penalties in connection therewith and all charges that may be assessed against or become a
charge on the Premises or any part thereof in such proceedings.




          Upon the termination of such proceedings, it shall be the obligation of Tenant to pay the
amount of such Imposition or part thereof as finally determined in such proceedings, the payment of
which may have been deferred during the prosecution of such proceedings, together with any costs,
fees (including attorneys’ fees and disbursements), interest, penalties or other liabilities in
connection therewith, and upon such payment, Landlord or Depositary, as the case may be, shall
return, with any interest accrued thereon, any amount deposited with it in respect of such
Imposition as aforesaid, provided, however, that Landlord or Depositary, as the case may be, if
requested by Tenant, shall disburse said moneys on deposit with it directly to the imposing
authority to whom such Imposition is payable.




     3.06 Reduction of Assessed Valuation. Subject to the provisions of Section 3.05,
Tenant shall have the right to seek a reduction in the assessed valuation of the Premises for real
property tax purposes and to prosecute any action or proceeding in connection therewith.



     3.07 Joinder of Landlord. Landlord shall not be required to join in any proceedings
referred to in Section 3.05 or 3.06 hereof unless the provisions of any law, rule or
regulation at the time in effect shall require that such proceedings be brought by and/or in the
name of Landlord, in which event, Landlord shall join and reasonably cooperate in such proceedings
but shall not be liable for the payment of any costs or expenses in connection with any such
proceedings, and Tenant shall reimburse and indemnify Landlord for any and all costs or expenses
which Landlord may sustain or incur in connection with any such proceedings.



     3.08 Evidence of Imposition. Any certificate, advice or bill of the appropriate
official designated by law to make or issue the same or to receive payment of any Imposition
asserting nonpayment of such Imposition shall be prima facie evidence that such Imposition is due
and unpaid at the time of the making or issuance of such certificate, advice or bill.



ARTICLE 4.

USE




     4.01 Use. Tenant may use and occupy the Premises for any lawful purpose. Tenant
shall have no obligation to operate within the Premises. Tenant shall not permit the Premises, or
any portion thereof, to be used in such manner which impairs Landlord’s right, title or interest in
the Premises or any portion thereof, or in such manner which gives rise to a claim or claims of
adverse possession or of a dedication of the Premises, or any portion thereof, for public use.
Tenant shall not use or occupy the Premises or permit the Premises to be used or occupied (i)
contrary to any Restriction or any statute, rule, order, ordinance, requirement, regulation or
restrictive covenant applicable thereto, and shall at all times comply with same, (ii) in any
manner which would violate any certificate of occupancy, (iii) in any manner which would render the
insurance void, (iv) in any manner which would cause structural injury to the Building, (v) in any
manner which would cause the value or usefulness of the Premises or any part thereof to permanently
diminish or (vi) in a manner which would constitute a public or private nuisance or waste. Tenant
agrees that it will, promptly upon discovery of any such use, promptly notify Landlord and take all
necessary steps to compel the discontinuance of such use.



8









 





ARTICLE 5.

UTILITIES




     5.01 Payment for Utilities. During the Term, Tenant will pay, when due, all charges
of every nature, kind or description for utilities furnished to the Premises or chargeable against
the Premises, including all charges for water, sewage, heat, gas, light, garbage, electricity,
telephone, steam, power, or other public or private utility services. Prior to commencement of the
Term, Tenant shall pay for all utilities or services at the Premises used by it or its agents,
employees or contractors.



     5.02 Utilities. Tenant shall be responsible for contracting directly with all
suppliers of utility services. In the event that any charge or fee is required by the State in
which the Premises are located or by any agency, subdivision or instrumentality thereof, or by any
utility company or other entity furnishing services or utilities to the Premises, as a condition
precedent to furnishing or continuing to furnish utilities or services to the Premises, such charge
or fee shall be deemed to be a utility charge payable by Tenant. The provisions of this paragraph
shall include, but shall not be limited to, any charges or fees for present or future water or
sewer capacity to serve the Premises, any charges for the underground installation of gas or other
utilities or services, and other charges relating to the extension of or change in the facilities
necessary to provide the Premises with adequate utility services. Tenant may elect to cause the
separate metering of utilities to various portions of the Building. If Tenant makes such an
election, the costs of such separate metering shall be at the sole and exclusive cost of Tenant.
In the event Tenant fails to pay any such charge or fee contemplated by this Section 5.02,
Landlord shall have the right, but not the obligation, to pay such charges or fees on Tenant’s
behalf and Tenant shall reimburse Landlord for such utility charge at the default rate of interest
on all amounts owed until paid upon Landlord’s demand therefor. The inability of Tenant to obtain,
or any stoppage of, the utility services referred to in this Article 5 resulting from any
cause (other than Landlord’s wrongful acts) shall not make Landlord liable in any respect for
damages to any person, property or business, or entitle Tenant to any abatement of Rent or other
relief from any of Tenant’s obligations under this Lease.



ARTICLE 6.

INSURANCE




     6.01 Tenant’s Insurance.



          (a) Tenant shall:





     (i) keep the Building and the improvements on the Premises insured against loss
or damage by fire, windstorm, tornado and hail and all other hazards covered by the
usual extended coverage and “all risk” endorsements of whatsoever kind
(“Property Insurance”), including, without limitation, coverage for loss or
damage by water, flood (if required by Landlord), sprinkler leakage, subsidence,
building ordinance for legal non-conforming use, if applicable. Such Property
Insurance shall be (x) sufficient to prevent Landlord and Tenant from becoming
co-insurers under provisions of applicable policies of insurance, and (y)



9









 







in the amount not less than one hundred percent (100%) of the “Replacement
Cost” of the Building.




     (ii) provide and keep in force general commercial liability insurance
(“Liability Insurance”) against liability for bodily injury and death and
property damage, such Liability Insurance to be not less than Two Million Dollars
and No/100 ($2,000,000.00) combined single limit per occurrence and Two Million
Dollars and No/100 ($2,000,000.00) annual general aggregate for liability for bodily
injury, death and property damage, and not less than Two Million Dollars and No/100
($2,000,000.00) excess liability coverage, and shall include the Premises and all
sidewalks adjoining or appurtenant to the Premises, shall contain blanket
contractual coverage and shall also provide the following protection:




     (1) completed operations;




     (2) personal injury protection;




     (3) employees as additional insured coverage;




     (4) Blanket Contractual Liability coverage; which includes Landlord as
additional insured as Landlord’s interest may appear as respects the
Premises as defined in this Lease;




     (iii) provide and keep in force workers’ compensation and occupational disease
providing statutory benefits for all persons employed by Tenant at or in connection
with the Premises;




     (iv) provide and keep in force business interruption insurance that provides
coverage for lease payments as a continuing expense during the period of
interruption, but not to exceed 12 months;




     (v) if a sprinkler system shall be located in any portion of the Building,
provide and keep in force sprinkler leakage insurance in amounts reasonably required
by Landlord;




     (vi) provide and keep in force boiler, machinery and pressure vessel insurance
in an amount not less than Five Hundred Thousand and No/100 Dollars ($500,000.00)
per occurrence on a combined basis covering direct property loss and loss of income
and providing for all steam, mechanical and electrical equipment, including, without
limitation, all boilers, unfired pressure vessels, piping and wiring; and




     (vii) provide and keep in force such other insurance and coverages and in such
amounts as may from time to time be reasonably required by Landlord or any Mortgagee
against such other insurable hazards as at the time are commonly insured against in
the case of prudent owners of like buildings and improvements.



10









 





          (b) Whenever, under the terms of this Lease, Tenant is required to maintain insurance,
Landlord shall be an additional named insured for Liability Insurance and loss payee for Property
Insurance. If the Premises shall be subject to any Mortgage, the Liability Insurance shall, if
required by such Mortgage, name the Mortgagee as an additional named insured, under a standard
“noncontributory mortgagee” endorsement or its equivalent and the Property Insurance shall, if
required by such Mortgage, name the Mortgagee as a loss payee, and permitting the Mortgagee to
collect all proceeds pertaining to the damaged mortgage property thereunder, subject to the terms
of this Lease.




          (c) Coverage amounts with respect to any insurance required hereby shall be increased or
decreased every fifth (5th) Lease Year during the Term (subject to CPI adjustment), other than
with respect to Section 6.01(a)(i) which will always be maintained at one hundred percent
(100%)of the Replacement Cost of the Building. For purposes of calculating fluctuations in the CPI,
the calendar year 2008 shall be considered the base year (the “Base Year”). With respect
to the coverage amounts, the initial requirements hereinabove stated shall constitute the “Base
Amount”, and the Base Amount, as adjusted by the CPI pursuant hereto, shall be the
“Adjusted Amount”. The Adjusted Amount shall be determined as follows: The Base Amount
shall be increased or decreased to equal the product obtained by multiplying (i) the Base Amount by
(ii) a fraction, the numerator of which is the CPI for the then expiring Lease Year, and the
denominator of which is the CPI for the Base Year. For each such adjustment, the Base Amount used
for the initial calculation shall continue to be used for each subsequent application of this
provision. Notwithstanding anything to the contrary herein, coverage amounts shall never be less
than the amounts stated in Section 6.01(a) above.




     6.02 Payment of Losses.



          (a) Subject to Article 14, the loss under all policies required by any provision of
this Lease insuring against damage to the Building by fire or other casualty shall be payable:





     (i) to Tenant, as trustee, if the amount thereof is less than Five Hundred
Thousand and No/100 Dollars ($500,000.00), otherwise to the Depositary.


If a loss shall be payable to Tenant, as trustee, Tenant, provided that there is no Default by
Tenant hereunder, (1) shall hold the insurance proceeds with respect to such loss in trust for the
sole purpose of paying the cost of the Restoration, and (2) shall apply such proceeds first to the
payment in full of the cost of the Restoration before using any part of the same for any other
purpose. Tenant shall give Landlord notice of completion of the Restoration within thirty (30)
days thereafter. Within thirty (30) days after the date of such notice, Tenant shall pay over to
Landlord the unapplied proceeds and the trust obligations hereunder with respect to such proceeds
shall terminate. Notwithstanding the foregoing, if there is a Default by Tenant hereunder, Tenant
shall pay (or assign) all insurance proceeds with respect to such loss to Landlord.




          (b) All Insurance Policies shall be in such form and shall be issued by such responsible
companies licensed and authorized to do business in the State where the Premises are located as are
reasonably acceptable to Landlord. All such companies shall have a policyholder




11









 







rating of not less than A-VII, as rated in the most recent edition of Best’s Key Rating Guide
for insurance companies or, if Best’s ceases to be published, in a similar rating guide reasonably
acceptable to Landlord. All policies referred to in this Lease shall be procured, or caused to be
procured, by Tenant, at no expense to Landlord, and for periods of not less than one (1) year.
Evidence of Insurance (ACORD 27 or in such other form acceptable to Landlord) shall be delivered to
Landlord on or before each anniversary of the effective date of the policy, together with paid
receipts therefor. Premiums on policies shall not be financed in any manner whereby the lender, on
default or otherwise, shall have the right or privilege of surrendering or canceling or requesting
the surrender or cancellation of the policies, provided, however, that premiums may be paid in such
installments as are permitted pursuant to the provisions of the applicable policy so long as
payment by installments will not allow the insurer thereunder to cancel said policy. If Tenant
fails to submit such policies or certificates to Landlord within the specified time, or otherwise
fails to obtain and maintain insurance coverages in accordance with this Article 6, then,
Landlord, upon fifteen (15) days’ prior written notice to Tenant and Tenant’s failure to cure
within said period, may, but shall not be obligated to, procure such insurance on behalf of, and at
the expense of, Tenant, and if Landlord exercises such right and expends any funds to obtain such
insurance, Tenant shall reimburse Landlord for such amounts upon demand, it being understood that
any such sums for which Tenant is required to reimburse Landlord shall constitute additional rent
under this Lease. Such a failure shall constitute a Default hereunder and the reimbursement
obligations herein shall survive the Expiration Date or earlier termination hereof.




          (c) Tenant and Landlord shall cooperate in connection with the collection of any insurance
moneys that may be due in the event of loss, and Tenant and Landlord shall execute and deliver such
proofs of loss and other instruments which may be required for the purpose of obtaining the
recovery of any such insurance moneys.




          (d) Tenant shall not carry separate insurance concurrent in form or contributing in the event
of loss with that required by this Lease to be furnished by Tenant, unless Landlord and each
Mortgagee is included therein as additional named insureds with any loss payable as provided in
this Lease. Tenant shall immediately notify Landlord of the carrying of any such separate
insurance and shall cause the same to be delivered as required in this Lease.




          (e) Tenant shall not violate or permit to be violated any of the conditions or provisions of
any of the Insurance Policies, or take or fail to take any action that could impair coverage under
the Insurance Policies, and Tenant shall so perform and satisfy or cause to be performed and
satisfied the requirements of the companies writing such policies so that at all times companies of
good standing, satisfactory to Landlord (as provided in Section 6.02(a) hereof), shall be
willing to write and continue such insurance and all such Insurance Policies shall continue in full
force and effect without interruption and with all premiums paid.




          (f) Each Insurance Policy and each certificate therefor issued by the insurer shall contain
(i) an agreement by the insurer that such policy shall not be cancelled or modified without at
least thirty (30) days’ (ten (10) days in the case of cancellation for non-payment of premiums)
prior written notice to Landlord and each Mortgagee, and (ii) a waiver of subrogation by the
insurer of any right to recover the amount of any loss resulting from the negligence of Landlord or
its agents, employees or licensees.




12









 








          (g) Landlord shall not be limited in the proof of any damages which Landlord may claim against
Tenant arising out of or by reason of Tenant’s failure to provide and keep in force insurance, as
aforesaid, to the amount of the insurance premium or premiums not paid or incurred by Tenant and
which would have been payable under such insurance, but Landlord shall also be entitled to recover
as damages for such breach the uninsured amount of any loss, to the extent of any deficiency in the
insurance required by the provisions of this Lease, and damages, costs and expenses of suit
suffered or incurred by reason of damage to, or destruction of, the Premises occurring during any
period when Tenant shall have failed or neglected to provide insurance as aforesaid.




          (h) Tenant hereby waives any and every claim for recovery from the Landlord for any and all
loss or damage to the Land, Improvements or the Building or to the contents thereof, whether such
loss or damage is due to the negligence of Landlord or its agents or employees, which loss or
damage is required to be insured pursuant to this Lease, or the Restrictions; provided, however,
that the foregoing waiver shall not be operative in any case where the effect thereof is to
invalidate insurance coverage of the waiving party; provided further, that Tenant agrees to give
written notice of the terms of this waiver to each insurance company which has issued, or in the
future may issue, policies of physical damage to it, and to have said insurance policies properly
endorsed to prevent the invalidation of said insurance coverage by reason of said waiver and
provided further that such insurance company waives all rights of subrogation which it might have
against Landlord.




     6.03 Blanket or Umbrella Policy. The insurance required by this Lease, at the option
of Tenant, may be effected by blanket and/or umbrella policies issued to Tenant covering the
Premises and other properties owned or leased by Tenant, provided that the policies otherwise
comply with the provisions of this Lease and allocate to the Premises the specified coverage,
without possibility of reduction or coinsurance by reason of, or damage to, any other premises
covered therein.



     6.04 Loss Deductibles. All insurance provided for under Section 6.01,
excepting workers compensation insurance and liability insurance (which will be for such amount of
not more than $1,000,000.00 each and for workers compensation insurance contain such deductions as
permitted by applicable statutes), may contain loss deductible (or similar) clauses of no more than
Two Hundred Thousand and No/100 Dollars ($200,000.00) (subject to CPI Adjustment), except for
“catastrophe perils,” such as flood where market standard deductibles are acceptable.



     6.05 Definition of Depositary. As used in this Lease, “Depositary” shall mean
a savings bank, a savings and loan association, a commercial bank or trust company (whether acting
individually or in a fiduciary capacity), a pension or retirement fund, an insurance company
organized and existing under the laws of the United States or any state thereof, a real estate
investment trust existing in compliance with Sections 856 through 860 of the Internal Revenue Code
of 1986, as amended; provided, that each of the above entities shall qualify as Depositary within
the provisions of this definition only if it shall be qualified to do business in the State in
which the Premises are located and has assets of not less than One Hundred Million and No/100
Dollars ($100,000,000.00). If the Premises shall be subject to any Mortgage, “Depositary”
shall also mean the Mortgagee under such Mortgage. The account maintained by any Depositary shall
be in the name of Landlord.



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ARTICLE 7.

RETURN OF PREMISES




     7.01 Surrender of Possession. At the expiration or earlier termination of this Lease
by lapse of time or otherwise, or upon termination of Tenant’s right of possession without
termination of this Lease, Tenant shall surrender possession of the Premises to Landlord and
deliver all keys to the Premises to Landlord and make known to Landlord the combination of all
locks of vaults then remaining in the Premises, and, subject to the following paragraphs, shall
return the Premises and all equipment and fixtures of Landlord therein to Landlord broom clean, in
good operating condition, reasonable wear and tear, and damage from casualty and condemnation
excepted. At the expiration or earlier termination of this Lease by lapse of time or otherwise, or
upon termination of Tenant’s right of possession without termination of this Lease, Tenant and
Landlord shall jointly perform a walk-through of the Premises and establish a final punch list of
items requiring repair or restoration. Nothing in this Section 7.01 is intended to
increase or modify the obligations of the Tenant under Articles 14 or 15 herein.



     7.02 Installations and Additions. Tenant shall remove its Trade Fixtures and Personal
Property (as defined in Section 7.03) from the Premises during the Term, provided that Tenant
restores any damage to the Premises caused thereby. The Building and all other improvements
located on the Land, including, but not limited to, all structural components of the Building and
all plumbing, heating, lighting, electrical and air conditioning fixtures and equipment, and other
articles of personal property used exclusively in the operation of the Premises (but excluding
Trade Fixtures and Personal property), whether or not attached or affixed to the Premises, together
with all Alterations which by the terms of this Lease become the property of Landlord, shall be and
remain a part of the Premises and shall constitute the property of Landlord



     7.03 Trade Fixtures and Personal Property. Tenant shall remove Tenant’s furniture,
machinery, manufacturing equipment, safes, signs, trade fixtures, inventory and other items of
movable personal property of every kind and description from the Premises, as set forth on Schedule
7.03, attached hereto (“Trade Fixtures and Personal Property”) and restore any damage to
the Premises caused thereby, such removal and restoration to be performed prior to the end of the
Term or within ten (10) days following termination of this Lease or Tenant’s right of possession,
whichever is earlier. If Tenant does not remove such items, such items shall become Landlord’s
property and shall, at Landlord’s election, remain upon the Premises, all without compensation,
allowance or credit to Tenant. If Tenant fails to remove such items, Landlord may do so and
thereupon the provisions of Section 16.06 shall apply and Tenant shall pay to Landlord upon
demand the cost of removal and of restoring the Premises.



     7.04 Survival. All obligations of Tenant under this Article shall survive the
expiration of the Term or earlier termination of this Lease.



ARTICLE 8.

HOLDING OVER



Unless Landlord expressly agrees otherwise in writing, Tenant shall pay Landlord one hundred fifty
percent (150%) of the amount of the Base Rent and Rent Adjustments then applicable to the final
Lease Year of the Term prorated on a per diem basis for each day Tenant shall retain


14









 






possession of the Premises or any part thereof after expiration or earlier termination of this
Lease. The foregoing provisions shall not serve as permission for Tenant to hold-over, nor serve
to extend the Term (although Tenant shall remain bound to comply with all provisions of this Lease
until Tenant vacates the Premises, and shall be subject to the provisions of Article 7).
In addition thereto, in the event that Tenant’s retention of possession of the Premises (or any
portion thereof) continues for more than sixty (60) days after expiration of the Term or earlier
termination of the Lease, Tenant shall pay Landlord all damages, consequential as well as direct,
sustained by reason of Tenant’s retention of possession. The provisions of this paragraph do not
limit the Landlord’s rights of re entry or any other right hereunder. In the event of a holdover
by Tenant, upon demand by Landlord, Tenant shall so vacate the Premises within sixty (60) days.




ARTICLE 9.

CONDITION AND CARE OF PREMISES




     9.01 As-Is Condition. Tenant acknowledges and agrees that Tenant accepts the Premises
and the Building in “as-is” condition and agrees that Landlord makes no representation or warranty
as to the condition thereof. Tenant further acknowledges and agrees that prior to the Commencement
Date, Tenant has been in sole and exclusive possession and control of the Premises and the
Building.



     9.02 Tenant’s Obligations. Tenant shall take good care of the Premises, Building,
equipment serving the Building, and the other improvements, including, without limiting the
generality of the foregoing, roofs, foundations and appurtenances thereto, all mechanical,
electrical, plumbing, and heating, air-conditioning and ventilation systems located in or otherwise
serving the Building, all sidewalks, vaults, sidewalk hoists and curbs in front of or adjacent to
the Premises, all other common areas of the Premises maintained or required to be maintained by
Tenant as of the date hereof and all water, sewer and gas connections, pipes and mains which
service the Premises and which neither any public authority nor a utility company is obligated to
repair and maintain, and shall put, keep and maintain the Building and the other improvements in
good and safe order and working condition, and make all repairs therein and thereon, interior and
exterior, structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen,
necessary to keep the same in good and safe order and working condition and to comply with all
applicable laws, and the Restrictions, howsoever the necessity or desirability therefor may occur,
and whether or not necessitated by wear and tear, obsolescence or defects, latent or otherwise, and
including, complying with and correcting any deficiencies identified by the Village of University
Park in any inspection of the Premises. The necessity and adequacy of repairs made shall be
measured by standards which are appropriate for buildings of similar age and construction, as
applicable, provided, however, the decision whether an item needs to be replaced or repaired shall
be made at Landlord’s reasonable discretion. Tenant shall not commit or suffer, and shall use all
reasonable precaution to prevent, waste, damage or injury to the Premises. When used in this
Lease, the term “repairs” shall include all alterations, additions, installations,
replacements, removals, renewals and restorations. All repairs made by Tenant shall be at least
equal in quality and class to the original work and shall be made in compliance with all
Restrictions, as then in force.



     9.03 Landlord Not Obligated. Landlord shall not be required to furnish any services,
utilities or facilities whatsoever to the Premises, nor shall Landlord have any duty or obligation



15









 







to make any alteration, change, improvement, replacement, restoration or repair to, or to
demolish, the Building or any other Improvement presently or hereafter located on the Land. Tenant
assumes the full and sole responsibility for the condition, operation, repair, alteration,
improvement, replacement, maintenance and management of the Premises, including any Building or any
other Improvement.



     9.04 Landlord’s Right to Perform Tenant’s Obligations. In the event Tenant shall fail
to perform any of its obligations hereunder, Landlord may (but shall not be obligated to do so),
and without waiving or releasing Tenant from any obligation of Tenant hereunder, make any payment
or perform any other act which Tenant is obligated to make or perform under this Lease. All sums
so paid and all liabilities so incurred by Landlord, together with interest thereon at the default
rate of interest set forth in Section 27.07 herein, shall be payable to Landlord upon demand as
Additional Rent. Except in the case of an Emergency Situation, Landlord shall provide no less than
48 hours advance written notice of its performance, if reasonably feasible under the circumstances
and shall be subject to escort and supervision by Tenant. Nothing contained herein shall be
construed to require Landlord to advance monies for any purpose. In exercising its rights
hereunder, Landlord shall use reasonable efforts not to interfere with the normal operation of the
Premises. The term “Emergency Situation” shall mean a situation which has caused or is
likely to cause bodily injury to persons, environmental contamination of or material physical
damage to the Premises (or any portion thereof) or adjoining property or economic liability or
criminal jeopardy to Landlord.



ARTICLE 10.

RIGHTS RESERVED TO LANDLORD




     10.01 Rights Reserved to Landlord. Landlord reserves the following rights,
exercisable without notice and without liability to Tenant for damage or injury to property, person
or business and without effecting an eviction or disturbance of Tenant’s use or possession or
giving rise to any claim for setoff or abatement of Rent or affecting any of Tenant’s obligations
under this Lease:



          (a) To exhibit the Premises upon at least one (1) business day’s prior written notice, at
reasonable hours, to potential purchasers or lenders at any time during the Term, and for
reoccupancy during the last eighteen (18) months of the Term or at any time after Tenant
permanently vacates or abandons the Premises; and




          (b) To enter the Premises at reasonable hours for reasonable purposes and upon at least one
(1) business day’s prior written notice (except in the event of an emergency and/or during a
Default in which events no prior notice is required), including inspection.




ARTICLE 11.

ALTERATIONS




     11.01 Alterations. Tenant shall not demolish, replace or alter the structural
portions of the Building, or make any addition thereto or expansion thereof, or materially alter
the roof or exterior of the Building, without the Landlord’s prior written consent (such consent
not to be



16









 







unreasonably withheld, conditioned or delayed (a “Material Alteration”). In the event
of any Material Alteration or Work (as defined below) costing more than One Hundred Thousand and
No/100 Dollars ($100,000.00) in a calendar year period, Tenant shall provide Landlord with advance
written notice thereof and Landlord shall have twenty (20) days from receipt of such notice to
deliver notice to Tenant (a “Removal Notice”) of its election to require Tenant to, at the
expiration of the Lease Term, restore the Premises to the condition existing prior to such Work or
Material Alteration. If Tenant desires to undertake any such alterations which require Landlord’s
consent, it shall notify Landlord in writing of the proposed alterations, which notice shall
include copies of the plans and specifications relating thereto and Landlord agrees to exercise
commercially reasonable efforts to respond thereto within thirty (30) days after the date of the
request. Landlord agrees to state with specificity any objections it has to the proposed plans and
specifications. In all cases, Tenant shall comply with the following requirements with respect any
alterations, modifications or similar activities undertaken with respect to the Premises
(“Work”), whether subject to the foregoing consent requirement or not:



          (a) All Work, when completed, shall be of such a character as not to materially reduce the
value of the Premises below its value immediately before construction of such Work was commenced;




          (b) All Work shall be undertaken with reasonable diligence (subject to Force Majeure, as
hereinafter defined) and in a good and workmanlike manner and in compliance with all applicable
permits and authorizations and the Restrictions;




          (c) No Work shall impair the safety or structural integrity of the Building;




          (d) All Work shall be completed free of liens for work, services, labor and materials supplied
or claimed to have been supplied to the Premises (except as otherwise provided by law);




          (e) No Work shall be undertaken without obtaining the insurance required by Section
6.01 hereof; and




          (f) No Work shall be undertaken until Tenant shall have procured and paid for, insofar as the
same may be required from time to time, all permits and authorizations of all governmental
authorities for such Work. Landlord shall join in the application for such permit or authorization
and cooperate with Tenant and execute any additional documents as may be necessary to allow Tenant
to complete the alterations and changes, provided it is made without cost, liability, obligation or
expense to Landlord.




          At termination of this Lease, all Work that is a Material Alteration (other than Trade
Fixtures and Personal Property) shall become the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof at the termination of this Lease. All of the Work
may at Tenant’s option be removed by Tenant (unless a Removal Notice was delivered to Tenant as
provided above).




17









 








ARTICLE 12.

ASSIGNMENT AND SUBLETTING




     12.01 Assignment and Subletting.



          (a) Subject to the terms of ARTICLE 12, Tenant shall not have the right to assign or transfer
this Lease or sublet all or without Landlord’s prior written consent (such consent not to be
unreasonably withheld, conditioned or delayed).




          (b) Tenant may sublet the Premises, or any part thereof, without the consent of Landlord.




          (c) A permitted assignee or subtenant is referred to herein as the “Assignee”. With
respect to any Assignee, the following conditions shall be met: (i) the use of the Premises by the
Assignee will not violate any laws, regulations, and/or covenants, including, any Restrictions, and
(ii) all other terms and conditions of this Lease shall remain in full force and effect.




          (d) At the time of the assignment, if an Assignee has an investment grade rating equal to or
better than the greater of (i) BBB- or (ii) Tenant’s then investment rating as determined by
Standard’s and Poor (or its equivalent from another rating agency) and a tangible net worth of at
least Fifty Million and No/100 Dollars ($50,000,000.00) (A) Tenant’s obligations first arising
after such assignment under this Lease shall terminate; and (B) this Lease shall become a direct
lease between Landlord and Assignee for the entire Premises. Notwithstanding the foregoing, in the
event that the Restrictions do not allow this Lease to become a direct lease with the Assignee in
connection with such assignment, Landlord and Tenant shall cooperate with each other and execute,
or cause to be executed, all documents necessary to accomplish the intent of this Section without
being in violation of the Restrictions and satisfying the reasonable requests of Assignee,
including, without limitation, consents, recognition agreements, and subordination, non-disturbance
and attornment agreements.




          (e) Except as provided in (d) above, no assignment or subletting shall relieve Tenant of its
obligations hereunder, and Tenant shall continue to be liable as a principal and not as a guarantor
or surety, to the same extent as though no assignment or sublease had been made.




     12.02 Future Consents; Costs. Any consent or deemed consent by Landlord hereunder
shall not be deemed to be a consent to or relieve Tenant from obtaining Landlord’s consent, if
required, to any subsequent assignment or subletting. Landlord shall be reimbursed by Tenant for
any costs or expenses incurred pursuant to any request by Tenant for consent to any such assignment
or subletting, provided, however, in no event shall Tenant’s reimbursement for such costs and
expenses exceed $2,500.00 for any such request for consent.



     12.03 Profits. Landlord shall not be entitled to receive any of the rent or other
rental consideration due from the Assignee under such assignment or sublease and, if Landlord
receives any such rent or other rental consideration above the rent required to be paid by to
Landlord hereunder, Landlord shall immediately deliver such rent and other rental consideration to
Tenant. Tenant shall be entitled to retain all fees and other payments received by Tenant in
connection with an assignment of the Lease.




18











 





     12.04 Permitted Transfer. Notwithstanding the provisions of Article 12 above
to the contrary, Tenant may assign this Lease (herein, a “Permitted Transfer”), without
Landlord’s consent, to any: (a) person or entity which controls, is controlled by or is under
common control with Tenant or its parent or affiliated entities, (b) any person or entity resulting
from a merger or consolidation with Tenant or its parent, (c) any person or entity acquiring all or
substantially all of the assets of Tenant’s business or its parent’s business, or (d) to any person
or entity acquiring all or substantially all of the equity ownership of Tenant or its parent,
provided that: (a) at least fifteen (15) business days prior to such assignment, Tenant delivers
to Landlord notice of such assignment; (b) if an assignment, the Assignee assumes, in full, the
obligations of Tenant under this Lease; and (c) the Assignee continue to comply with the applicable
terms and conditions of this Lease.



     12.05 Publicly Traded Company. For purposes of this Article 12, if Tenant is
a publicly-held corporation, the transfer of Tenant’s stock publicly over a recognized security
exchange or over-the-counter market shall not be deemed an assignment of this Lease and shall not
be subject to any of the restrictions and provisions contained in this Article 12.



ARTICLE 13.

WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT




     13.01 Waiver of Certain Claims; Indemnity by Tenant.



          (a) Except as otherwise required under applicable government law (“Law”) or to the
extent of Landlord’s willful misconduct or negligence, but in all events, subject to the waiver of
claims and subrogation set forth in this Lease, Landlord and other Indemnified Parties (as
hereinafter defined) shall not in any event whatsoever be liable for any injury or damage to Tenant
or to any other Person happening in, on or about the Premises and its appurtenances, nor for any
injury or damage to the Premises or to any property belonging to Tenant or any other Person which
may be caused by any fire or breakage or by any other cause whatsoever or by the use, misuse or
abuse of the Building (including, but not limited to, any of the common areas within the Building,
and the other improvements, equipment serving the Building, elevators, hatches, openings,
installations, stairways, hallways or other common facilities) or the streets or sidewalk area
within the Premises or which may arise from any other cause whatsoever.




          (b) Landlord shall in no way be liable or responsible for any loss, damage, or expense that
Tenant may sustain or incur by reason of any change, failure, interference, disruption, defect,
unavailability or unsuitability in the supply or character of the energy furnished to the Premises,
and no such change, failure, interference disruption, defect, unavailability, or unsuitability
shall relieve Tenant from any of its obligations under the Lease.




          (c) Tenant Responsible for Personal Property. All personal property belonging to
Tenant or any occupant of the Premises, including but not limited to Trade Fixtures and Personal
Property, that is in the Building or the Premises shall be there at the risk of Tenant or other
person only and Landlord shall not be liable for damage thereto or theft or misappropriation
thereof except to the extent caused by Landlord’s intentional wrongful acts or negligence.




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     13.02 Indemnification.



          (a) Except as otherwise prohibited under Law or to the extent of Landlord’s or Landlord’s
Indemnified Parties’ (defined below) willful misconduct or negligence, Tenant shall indemnify,
defend and save Landlord and any agent, beneficiary, contractor, manager, member, director,
employee, lessor, mortgagee, officer, parent, partner, shareholder and trustee of Landlord
(collectively the “Landlord Indemnified Parties, and each a “Landlord Indemnified
Party”) harmless from and against any and all liabilities, suits, obligations, fines, damages,
penalties, claims, costs, charges and expenses, including, without limitation, reasonable engineers
 , architects’ and attorneys’ fees, court costs
and disbursements (“Losses”), which may be
imposed upon or incurred by or asserted against Landlord or any Landlord Indemnified Party by
reason of any of the following occurring prior to, during or after (but if after, then only if
attributable to a period of time falling prior to or within) the Term:





     (i) any use, nonuse, possession, occupation, alteration, repair, condition,
operation, maintenance or management of or activity at or on the Premises or any
part thereof or of any sidewalk, parking area, curb or vault adjacent thereto;




     (ii) any act or failure to act on the part of Tenant or any of its officers,
agents, employees or licensees;




     (iii) any accident, injury (including death at any time resulting therefrom) or
damage to any person or property occurring in, on or about the Premises or any part
thereof or in, on or about any sidewalk, curb, parking area or vault adjacent
thereto;




     (iv) any lien or claim which may be alleged to have arisen against or on the
Premises from work being performed by Tenant (or anyone acting by, through, under or
on behalf of Tenant), or any lien or claim which may be alleged to have arisen out
work performed under this Lease by Tenant (or anyone acting by, through, under or on
behalf of Tenant) and created or permitted to be created by Tenant against any
assets of Landlord under any law for work being performed by Tenant (or anyone
acting by, through, under or on behalf of Tenant), or any liability which may be
asserted against Landlord with respect thereto; and




     (v) any contest permitted pursuant to the provisions of Article 3
hereof.



          (b) Except as prohibited under Law or to the extent of Tenant or Tenant Indemnified Parties
(as defined herein) willful misconduct or negligence, Landlord shall indemnify and save Tenant and
any agent, beneficiary, contractor, manager, member, director, employee, lessor, mortgagee,
officer, parent, partner, shareholder and trustee of Tenant (collectively the “Tenant
Indemnified Parties” and each a “Tenant Indemnified Party”; the Tenant Indemnified
Party and the Landlord Indemnified Party shall be collectively called the “Indemnified
Party”) harmless from and against any and all liabilities, suits, obligations, fines, damages,
penalties, claims, costs, charges and expenses, including, without limitation,



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reasonable engineers’, architects’ and attorneys’ fees, court costs and disbursements, which
may be imposed upon or incurred by or asserted against any Tenant Indemnified Party by reason of
any willful misconduct or negligence by Landlord pursuant to or in connection with this Lease.




          (c) The obligations of Tenant and Landlord under this Article 13 shall not be affected
in any way by the absence in any case of covering insurance or by the failure or refusal of any
insurance carrier to perform any obligation on its part under insurance policies affecting the
Premises or any part thereof.




          (d) If any claim, action or proceeding is made or brought against any Indemnified Party
against which it is indemnified pursuant to this Article 13, then, upon demand by any
Indemnified Party, the other party shall resist or defend such claim, action or proceedings in the
Indemnified Party’s name, if necessary, by the attorneys for the insurance carrier (if such claim,
action or proceeding is covered by insurance), otherwise by such attorneys as the Indemnified Party
shall approve, which approval shall not be unreasonably withheld or delayed.




          (e) The provisions of this Article 13 shall survive the Expiration Date or earlier
termination hereof with respect to any liability, suit, obligation, fine, damage, penalty, claim,
cost, charge or expense arising out of or in connection with any matter which is the subject of
indemnification under this Article 13.




ARTICLE 14.

USE OF CASUALTY INSURANCE PROCEEDS




     14.01 Tenant’s Obligation to Restore. If all or any part of the Premises shall be
destroyed or damaged in whole or in part by fire or other casualty (whether or not insured) of any
kind or nature, ordinary or extraordinary, foreseen or unforeseen, Tenant shall give Landlord
prompt notice thereof (except with respect to partial damage the reasonably estimated cost of
repair of which shall be less than Five Hundred Thousand and No/100 Dollars ($500,000.00)), and
Tenant, whether or not such damage or destruction shall have been insured or insurable, and whether
or not insurance proceeds, if any, shall be sufficient for the purpose (collectively,
“Restoration”), with reasonable diligence (subject to Force Majeure) shall repair, alter,
restore, replace and rebuild (collectively, “Restore”) the same, in accordance with the
Restrictions and to a value which shall be not less than the value prior to such fire or other
casualty and nearly as practicable to the character of the Premises existing immediately prior to
such occurrence (subject to Tenant’s right to make Alterations), and Landlord, in no event, shall
be called upon to Restore the Premises, as now or hereafter existing, or any portion thereof or to
pay any of the costs or expenses thereof. If Tenant shall fail or neglect to Restore with
reasonable diligence (subject to Force Majeure) the Premises or the portion thereof damaged or
destroyed, or, having so commenced such Restoration, shall fail to complete the same with
reasonable diligence (subject to Force Majeure) in accordance with the terms of this Lease,
Landlord may (but shall not be obligated to), after thirty (30) days prior written notice to Tenant
and Tenant’s failure to commence or re-commence such Restoration, complete such Restoration at
Tenant’s expense. Upon Landlord’s election to so complete the Restoration, Tenant and Depositary
immediately shall pay to Landlord the insurance proceeds in accordance with the terms of
Section 14.02 below with interest thereon at the Default Rate on amounts expended by
Landlord in connection therewith. Each Restoration shall be done in accordance with the provisions
of this Lease.



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     14.02 Payment for Restoration. Subject to the provisions of Section 14.03,
and except as otherwise hereinafter provided, in case Tenant makes the Restoration, Depositary
shall pay over to Tenant from time to time, upon the following terms, any monies which may be
received by Depositary from insurance provided by Tenant (other than rent insurance) (collectively,
the “Restoration Funds”). Depositary shall pay to Tenant the Restoration Funds for the
purpose of Restoration to be made by Tenant to Restore the improvements on the Premises to a value
which shall be not less than the value prior to such fire or other casualty and nearly as
practicable to the character of the Premises existing immediately prior to such occurrence. Such
Restoration shall be done in accordance with, and subject to, the provisions of Article 11,
including, without limitation, the maintenance of the insurance coverage referred to in Article
11. Prior to the making of any Restoration (except with respect to partial damage, the
reasonably estimated cost of Restoration of which shall be less than Five Hundred Thousand and
No/100 Dollars ($500,000.00)), Tenant shall furnish Landlord and any Mortgagee with an estimate of
the cost of such Restoration (the “Estimate”), prepared by a licensed professional engineer
or registered architect and, upon Landlord’s request, plans and specifications for the Restoration
of Landlord’s and Mortgagee’s review. The Restoration Funds shall be paid to Tenant from time to
time thereafter in installments as the Restoration progresses upon application to be submitted from
time to time by Tenant to Depositary and Landlord showing the cost of work, labor, services,
materials, fixtures and equipment incorporated in the Restoration, or incorporated therein since
the last previous application, and paid for by Tenant or then due and owing. If any vendors’,
mechanics’, laborers’, or materialmen’s lien is filed against the Premises or any part thereof,
Tenant shall not be entitled to receive any further installment until such lien is satisfied,
otherwise discharged or insured over. The amount of any installment to be paid to Tenant shall be
such proportion of the total Restoration Funds as the cost of work, labor, services, materials,
fixtures and equipment theretofore incorporated by Tenant into the Restoration bears to the
Estimate, less all payments heretofore made to Tenant out of the Restoration Funds. Upon
completion of and payment for the Restoration by Tenant, the balance of the Restoration Funds shall
be paid over to Landlord. If the Estimate exceeds the insurance proceeds received by Depositary,
then, prior to the commencement of such Restoration or thereafter if at any time it is determined
by Landlord that the cost to complete the Restoration exceeds the unapplied portion of such
insurance proceeds, Tenant shall fund the excess prior to receiving a distribution of the unapplied
portion of the insurance proceeds from Landlord, in accordance with the provisions of this
Section 14.02. If Landlord makes the Restoration at Tenant’s expense, as provided in
Section 14.01, then, Landlord shall receive the Restoration Funds, from time to time, upon
Landlord’s application accompanied by a certificate containing the statements required under
clauses (i) and (ii) of Section 14.03(a), to the extent not previously paid to Tenant
pursuant to this Section 14.02.



     14.03 Conditions to Payment of Proceeds. The following shall be conditions precedent
to each payment made to Tenant as provided in Section 14.02 above:



          (a) There shall be submitted to Depositary and Landlord the certificate of the applicable
contractor, engineer or architect stating (i) that the sum then requested to be withdrawn either
has been paid by Tenant or is justly due to contractors, subcontractors, materialmen, engineers,
architects or other Persons (whose names and addresses shall be stated) who have rendered or
furnished work, labor, services, materials, fixtures or equipment for the work and giving a brief
description of such work, labor, services, materials, fixtures or



22









 






equipment and the principal subdivisions or categories thereof and the several amounts so paid
or due to each of said Persons in respect thereof, and stating in reasonable detail the progress of
the Restoration up to the date of said certificate; (ii) that no part of such expenditures has been
or is being made the basis, in any previous or then pending request, for the withdrawal of
insurance money or has been made out of the proceeds of insurance received by Tenant; (iii) that
the balance of the Restoration Funds held by Depositary will be sufficient, upon completion of the
Restoration, to pay for the same in full, and stating in reasonable detail an estimate of the cost
of such completion; and (iv) appropriate sworn statements and lien waivers (which comply with the
mechanics’ lien laws of the state where the Premises are located) from all Persons receiving
payment under such draw; and




          (b) At the time of making such payment, there is no Default on the part of Tenant under this
Lease.




     14.04 No Abatement of Rent. Except as provided in Section 14.05, this Lease
shall not terminate, be forfeited or be affected in any manner, nor shall there be any reduction or
abatement of the Rent payable hereunder, by reason of damage to or total, substantial or partial
destruction of the Building or any part thereof or the improvements on the Premises or any part
thereof, or by reason of the untenantability of the same or any part thereof, for or due to any
reason or cause whatsoever, and Tenant, notwithstanding any law or statute present or future,
waives any and all rights to quit or surrender the Premises or any part thereof; and Tenant’s
obligations hereunder, including, without limitation, the payment of Rent hereunder, shall continue
as though the improvements on the Premises had not been damaged or destroyed and without abatement,
suspension, diminution or reduction of any kind.



     14.05 Right to Terminate. Notwithstanding any other provision to the contrary
contained in this Article 14, upon the occurrence of a fire or major casualty in the last
twenty four (24) months of the Term or any extension of the Term, then, subject to the terms and
conditions hereinafter set forth, Tenant shall have the right, exercisable by written notice given
to Landlord no later than sixty (60) days following such fire or major casualty, to terminate this
Lease without further responsibility to Landlord, except for such indemnity or other provisions of
this Lease which by their nature are to survive the expiration or earlier termination of this
Lease. Such termination of this Lease by Tenant shall not be effective, and this Lease, and
Tenant’s obligation to pay Rent hereunder, shall continue until and unless (i) Tenant has complied
with all obligations pursuant to Article 6 hereof, and (ii) Tenant has paid or has caused
to be paid to Landlord, and assigned all claims with respect to, all insurance proceeds which shall
have been or are to be paid to Tenant or to Depositary with respect to the destruction or damage of
the Premises or which would have been paid if Tenant had complied with its obligations under
Article 6, plus the amount of any self-insured retention and deductibles not then paid and
the amount of, and the insurer has acknowledged in writing coverage and its responsibility for
payment of proceeds with respect to such insurance.



ARTICLE 15.

EMINENT DOMAIN




     15.01 Taking: Lease to Terminate. If a substantial and material portion of the
Building, Premises or the Land shall be lawfully taken or condemned for any public or quasi public
use or



23









 







purpose, or conveyed under threat of such condemnation, and, as a result thereof, the
remaining portion of the Premises cannot be used for the same purpose and substantially with the
same utility in all material respects as before such taking or conveyance, Tenant shall have the
right to terminate this Lease upon, and not before, the date of the taking of possession by the
condemning authority. Tenant hereby assigns to Landlord, Tenant’s interest in any award in
connection with the taking of the Premises. Notwithstanding the foregoing, to the extent permitted
by law, Tenant shall be allowed to pursue a claim against the condemning authority that shall be
independent of and wholly separate from any action, suit or proceeding relating to any award to
Landlord for reimbursement of Tenant’s leasehold interest, business interruption, relocation
expenses or for Tenant’s personal property, including but not limited to Trade Fixtures and
Personal Property.



     15.02 Taking: Lease to Continue. In the event only a part of the Premises shall be
taken as a result of the exercise of the power of eminent domain or condemned for a public or quasi
public use or purpose by any competent authority or sold to the condemning authority under threat
of condemnation, and, as a result thereof, the balance of the Premises can be used for the same
purpose and with substantially the same utility as before such taking, sale or condemnation, this
Lease shall not terminate and Tenant shall, to the extent practical, promptly repair and restore
the Premises, subject to Force Majeure. Landlord shall make the condemnation proceeds available to
Tenant for such repair and restoration upon the same terms and conditions as Restoration Funds are
made available under Article 14 above. Any award paid as a consequence of such taking,
sale or condemnation, shall be paid to Landlord and any sums not disbursed by Landlord to Tenant in
connection with the repair or restoration of the Premises shall be retained by Landlord. In the
event of such a partial taking where the Lease is not terminated as provided in Section
15.01, Rent shall be adjusted on a fair and equitable basis.



ARTICLE 16.

DEFAULT




     16.01 Events of Default. The occurrence of any one or more of the following matters
constitutes a default (each, a “Default”) by Tenant under this Lease:



          (a) Failure by Tenant to pay any Rent within five (5) business days after written notice of
failure to pay the same on the due date;




          (b) Failure by Tenant to pay, within five (5) business days after written notice of failure to
pay on the due date from Landlord to Tenant, any other moneys required to be paid by Tenant under
this Lease;




          (c) Failure by Tenant to observe or to perform any other covenant, agreement, condition or
provision of this Lease, if such failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant or such longer time as may be reasonably required to cure because
of the nature of the default (provided Tenant must have undertaken procedures to cure the default
within such thirty (30) day period and thereafter diligently pursue such effort to completion);




24









 





          (d) The levy upon, under writ of execution or the attachment by legal process of, the
leasehold interest of Tenant, or the filing or creation of a lien with respect to such leasehold
interest, which lien shall not be released or discharged within sixty (60) days from the date of
Landlord’s written request to release or discharge such filing;




          (e) The insolvency or bankruptcy of Tenant or Tenant’s admission in writing of its inability
to pay its debts as they mature, or Tenant’s making an assignment for the benefit of creditors, or
applying for or consenting to the appointment of a trustee or receiver for Tenant or for the major
part of its property;




          (f) The appointment of a trustee or receiver for Tenant or for the major part of its property
which is not discharged within sixty (60) days after such appointment;




          (g) The institution of any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings for relief under any bankruptcy law, or similar law for the
relief of debtors (i) by Tenant or (ii) against Tenant and are allowed against it or are consented
to by it or are not dismissed within sixty (60) days after such institution; or




          (h) The attachment of any lien or encumbrance to the Premises, and Tenant’s failure to
discharge or bond or insure over said lien or encumbrance within thirty (30) days from the date of
Landlord’s written request to discharge or bond or insure over such lien or encumbrance or within
ten (10) days prior to any sale or disposition or forfeiture pursuant to such execution, whichever
date shall first occur.




     16.02 Rights and Remedies of Landlord. If a Default occurs, and during the
continuance thereof, Landlord shall have the rights and remedies hereinafter set forth, which shall
be distinct, separate and cumulative and which shall not operate to exclude or deprive Landlord of
any other right or remedy allowed it by law:



          (a) Landlord may terminate this Lease by giving to Tenant notice of Landlord’s election to do
so, in which event the Term of this Lease shall end, and all rights, title and interest of Tenant
hereunder shall expire, on the date stated in such notice;




          (b) Landlord may terminate the right of Tenant to possession of the Premises without
terminating this Lease by giving notice to Tenant that Tenant’s right of possession shall end on
the date stated in such notice, whereupon the right of Tenant to possession of the Premises or any
part thereof shall cease on the date stated in such notice; and




          (c) Landlord may enforce the provisions of this Lease and may enforce and protect the rights
of Landlord hereunder by a suit or suits in equity or at law for the specific performance of any
covenant or agreement contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, including recovery of all moneys due or to become due from Tenant under any of
the provisions of this Lease.




     16.03 Right to Re-Enter. If Landlord exercises either of the remedies provided for in
Sections 16.02(a) or (b), Tenant shall surrender possession and vacate the Premises
and shall deliver immediately possession thereof to Landlord, and Landlord may re-enter and take
complete and peaceful possession of the Premises, with or without process of law, full and



25









 







complete license to do so being hereby granted to Landlord, and Landlord may remove all
occupants and property therefrom, using such force as may be necessary, without breaching the peace
and without relinquishing Landlord’s right to rent or any other right given to Landlord hereunder
or by operation of law.



     16.04 Current Damages. If Landlord terminates the right of Tenant to possession of
the Premises without terminating this Lease, Landlord shall have the right to immediate recovery of
all amounts then due hereunder. Such termination of possession shall not release Tenant, in whole
or in part, from Tenant’s obligation to pay the Rent hereunder for the full Term, and Landlord
shall have the right, from time to time, to recover from Tenant, and Tenant shall remain liable
for, all Base Rent, Rent Adjustments, Impositions and any other sums accruing as they become due
under this Lease during the period from the date of such notice of termination of possession to the
stated end of the Term. In any such case, Landlord may endeavor to relet the Premises or any part
thereof for such rent, for such time (which may be for a term extending beyond the Term of this
Lease) and upon such terms as Landlord shall determine and collect the rents from such reletting.
Subject to applicable law, Landlord shall not be required to mitigate its damages or to accept any
tenant offered by Tenant or to observe any instructions given by Tenant relative to such reletting
or otherwise. Also, in any such case, Landlord may make repairs, alterations and additions in or
to the Premises and redecorate the same to the extent deemed by Landlord necessary or desirable and
in connection therewith change the locks to the Premises, and Tenant shall pay upon demand the cost
of all the foregoing together with Landlord’s expenses of reletting. The rents from any reletting
shall be applied first to the payment of the expenses of reentry, redecoration, repair and
alterations and the expenses of reletting and second to the payment of Rent herein provided to be
paid by Tenant. Any excess or residue shall operate only as an offsetting credit against the
amount of Rent due and owing as the same thereafter becomes due and payable hereunder, and the use
of such offsetting credit to reduce the amount of Rent due Landlord, if any, shall not be deemed to
give Tenant any right, title or interest in or to such excess or residue and any such excess or
residue shall belong to Landlord solely, and in no event shall Tenant be entitled to a credit on
its indebtedness to Landlord in excess of the aggregate sum, including Base Rent, which would have
been paid by Tenant for the period for which the credit to Tenant is being determined, had no
Default occurred. No such reentry or repossession, repairs, alterations and additions, or
reletting shall be construed as an eviction or ouster of Tenant or as an election on Landlord’s
part to terminate this Lease, unless a written notice of such intention is given to Tenant, or
shall operate to release Tenant in whole or in part from any of Tenant’s obligations hereunder, and
Landlord, at any time and from time to time, may sue and recover judgment for any deficiencies from
time to time remaining after the application from time to time of the proceeds of any reletting.



     16.05 Final Damages. If this Lease is terminated by Landlord as provided in
Section 16.02(a), then, in addition to all other rights and remedies of Landlord, Tenant
shall remain liable to pay to Landlord as damages an amount equal to (i) all Rent due hereunder
accrued and unpaid for the period up to and including the Termination Date, plus (ii) all other
additional sums payable by Tenant or for which Tenant is liable or in respect of which Tenant has
agreed to indemnify Landlord under any of the provisions of this Lease, which may then be owing and
unpaid, plus (iii) all costs and expenses, including, without limitation, court costs and
reasonable attorneys’ fees incurred by Landlord in the enforcement of any of its rights and
remedies hereunder, plus (iv) the present value (based upon a discount rate of eight percent (8%)



26









 







per annum) of the Base Rent provided to be paid for the remainder of the Term less any amounts
which Landlord could obtain in reletting the Premises, plus (v) interest on the foregoing amounts
at the default rate set forth in Section 27.07 from the date of Landlord’s notice to Tenant
demanding payment therefor until paid.



     16.06 Removal of Personal Property. All property of Tenant removed from the Premises
by Landlord pursuant to any provisions of this Lease or of law may be handled, removed or stored by
Landlord at the cost and expense of Tenant, and Landlord in no event shall be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay Landlord for all expenses incurred by
Landlord in such removal and storage charges against such property as long as the same is in
Landlord’s possession or under Landlord’s control. All such property not removed from the Premises
or retaken from storage by Tenant within thirty (30) days after the end of the Term, however
terminated, at Landlord’s option, shall be conclusively deemed to have been conveyed by Tenant to
Landlord as by bill of sale without further payment or credit by Landlord to Tenant.



     16.07 Landlord’s Default. If Landlord shall violate, neglect or fail to perform or
observe any of the representations, covenants, provisions, or conditions contained in this Lease on
its part to be performed or observed, which default continues for a period of more than thirty (30)
days after receipt of written notice from Tenant specifying such default, or if such default is of
a nature to require more than thirty (30) days for remedy and continues beyond the time reasonably
necessary to cure (provided Landlord must have undertaken procedures to cure the default within
such thirty (30) day period and thereafter diligently pursues such efforts to cure to completion),
Tenant shall be entitled to exercise all rights and remedies provided Tenant at law or equity;
provided, however, (a) Tenant shall have no right to offset or abate rent in the event of any
default by Landlord under this Lease, except to the extent offset rights are specifically provided
to Tenant in this Lease; (b) Tenant shall have no right to terminate this Lease; (c) Tenant’s
rights and remedies hereunder shall be limited to the extent (i) Tenant has waived in this Lease
any of such rights or remedies and/or (ii) this Lease otherwise limits Tenant’s rights or remedies,
including the limitation on Landlord’s liability contained in Article 28 hereof.



     16.08 Attorneys’ Fees. The non-prevailing party shall pay all of the prevailing
party’s costs, charges and expenses, including court costs and reasonable attorneys’ fees, incurred
in enforcing the prevailing party’s obligations under this Lease, incurred by the prevailing party
in any action brought by a party in which the other party is the non-prevailing party or incurred
by a party in any litigation, negotiation or transaction in which the other party causes such
party, without such party’s fault, to become involved or concerned.



     16.09 Tenant Waiver. To the extent not prohibited by law, Tenant hereby waives and
releases all rights now or hereafter conferred by statute or otherwise which would have the effect
of limiting or modifying any of the provisions of this Article 16. Landlord and Tenant waive and
shall waive trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matter whatsoever arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the
Premises, or any claim of injury or damage.



27









 





     16.10 Suits to Recover Damages. Suit or suits for the recovery of damages, or for a
sum equal to any installment or installments of Rent payable hereunder or any other sums payable by
Tenant to Landlord pursuant to this Lease, may be brought by Landlord at any time and from time to
time at Landlord’s election, and nothing herein contained shall be deemed to require Landlord to
await the date whereon this Lease or the Term would have expired had there been no Default by
Tenant.



     16.11 Receipt of Payment after Termination. No receipt of moneys by Landlord from
Tenant after the termination of this Lease or Tenant’s right to possession, or after the giving of
any notice of the termination of this Lease or Tenant’s right to possession, shall reinstate,
continue or extend the Term or affect any notice theretofore given to Tenant, or operate as a
waiver of the right of Landlord to enforce the payment of Rent payable by Tenant hereunder or
thereafter falling due, or operate as a waiver of the right of Landlord to recover possession of
the Premises or any part thereof by proper remedy, it being agreed that after the service of notice
to terminate this Lease or Tenant’s right to possession or the commencement of any suit or summary
proceedings, or after a final order or judgment for the possession of the Premises, or any part
thereof or interest therein, Landlord may demand, receive and collect any moneys due or thereafter
falling due without in any manner affecting such notice, proceeding, order, suit or judgment, all
such moneys collected being deemed payments on account of the Tenant’s liability hereunder.



     16.12 Cumulative Remedies. No remedy contained herein or otherwise conferred upon or
reserved to Landlord or Tenant, shall be considered exclusive of any other remedy, but the same
shall be cumulative and shall be in addition to every other remedy given herein, now or hereafter
existing at law or in equity or by statute, and every power and remedy given by this Lease to
Landlord or Tenant may be exercised from time to time and as often as occasion may arise or as may
be deemed expedient. No delay or omission of Landlord or Tenant to exercise any right or power
arising from any default shall impair any such right or power or shall be construed to be a waiver
of any such default or an acquiescence therein.



ARTICLE 17.

SUBORDINATION




     17.01 Subordination. Landlord may execute and deliver a mortgage or trust deed in the
nature of a mortgage (both sometimes referred to as “Mortgage”) against the Premises or any portion
thereof. Subject to the terms of this Section 17.01, this Lease and the rights of Tenant
hereunder, shall automatically be and are hereby made expressly subject and subordinate at all
times to the lien of any Mortgage now or hereafter encumbering any portion of the Premises, and to
all advances made or hereafter to be made upon the security thereof. Additionally, provided that
the holder of said Mortgage agrees in writing not to disturb the rights of Tenant under this Lease
so long as Tenant is not in default hereunder, Tenant agrees to execute and deliver a
subordination, nondisturbance and attornment agreement in a form customarily required by
institutional lenders as may be requested in writing by Landlord from time to time.
Notwithstanding anything to the contrary contained herein, any mortgagee under a Mortgage may, by
notice in writing to the Tenant, subordinate its Mortgage to this Lease. The subordination
provided for in this Section 17.01 shall extend only to such mortgages or deeds of trust under
which the mortgagee by separate agreement contracts in writing not to disturb the



28









 







rights of Tenant under this Lease so long as Tenant is not in default hereunder and otherwise
in a form reasonably acceptable to Tenant.



     17.02 Liability of Mortgagee; Attornment. It is further agreed that (a) if any
Mortgage shall be foreclosed, (i) the Mortgagee (or its grantees) or purchaser at any foreclosure
sale (or grantee in a deed in lieu of foreclosure), or their respective successors and assigns
shall not be (x) liable for any act or omission of any prior landlord (including Landlord), (y)
bound by any obligations to perform any work or to make improvements to the Premises, or any
portion thereof, or (z) bound by any prepayment of Base Rent or other Rent which Tenant may have
made in excess of the amounts then due for the next succeeding month, (ii) the liability of the
Mortgagee hereunder or purchaser at such foreclosure sale or the liability of a subsequent owner
designated as Landlord under this Lease shall exist only so long as such Mortgagee, or purchaser or
owner is the owner of the Building or Land and such liability shall not continue or survive after
further transfer of ownership; and (iii) upon request of the Mortgagee, if the Mortgage is
foreclosed, Tenant will attorn, as Tenant under this Lease, to the purchaser at any foreclosure
sale under any Mortgage, and Tenant will execute such instruments as may be reasonably necessary or
appropriate to evidence such attornment; and (b) this Lease may not be modified or amended so as to
reduce Rent or shorten the Term provided hereunder, or so as to affect adversely in any other
respect to any material extent the rights of Landlord, and this Lease shall not be cancelled or
surrendered, without the prior written consent, in each instance, of the Mortgagee.



ARTICLE 18.

MORTGAGEE PROTECTION



Tenant agrees to give the Mortgagee by registered or certified mail, a copy of any notice or claim
of default served upon Landlord by Tenant, provided that prior to such notice, Tenant has been
notified in writing, by way of service on Tenant of a copy of an assignment of Landlord’s interests
in leases, or otherwise, of the address of such Mortgagee. Tenant further agrees that such
Mortgagee shall have the right to cure such default within the time period provided for hereunder
for Landlord to cure any Landlord Default.




ARTICLE 19.

ESTOPPEL CERTIFICATE



Tenant agrees that from time to time upon not less than ten (10) business days’ prior request by
Landlord, to deliver to Landlord a statement in the form attached hereto as Exhibit D
certifying (a) that this Lease is unmodified and in full force and effect (or if there have been
modifications, that this Lease as modified is in full force and effect and identifying the
modifications); (b) the date upon which Tenant began paying Rent and the dates to which Rent and
other charges have been paid; (c) that Landlord is not in default under any provision of this
Lease, or, if in default, the nature thereof in detail; (d) that the Premises have been completed
in accordance with the terms hereof and Tenant is in occupancy and paying Rent on a current basis
with no rental offsets or claims; (e) that there has been no prepayment of Rent other than that
provided for in this Lease; (f) that there are no actions, whether voluntary or otherwise, pending
against the other



29









 






party under the bankruptcy laws of the United States or any State thereof; and (g) such other
matters as may be reasonably requested. Landlord agrees that from time to time upon not less than
ten (10) business days’ prior request by Tenant to deliver to Tenant a statement certifying (a)
that this Lease is unmodified and in full force and effect (or if there have been modifications,
that this Lease as modified is in full force and effect and identifying the modifications); (b) the
dates to which Rent and other charges have been paid; (c) that Tenant is not in default under any
provision of this Lease, or, if in default, the nature thereof in detail; and (d) such other
matters as may be reasonably requested.




ARTICLE 20.

EXTENSION OPTIONS



Tenant shall have the option (each hereinafter referred to as a “Extension Option”) to extend the
Term for all of the Premises as of the expiration date of the Term, for five (5) additional periods
of five (5) years (each of said extension is an “Extension Term”) upon the following terms and
conditions:



A. Tenant gives Landlord written notice of its exercise of the applicable Extension Option at least
six (6) months prior to the expiration of the Term or the Extension Term, as the case may be.



B. Tenant is not in Default under this Lease either on the date Tenant delivers the notice required
under subsection A above or at the commencement of the Extension Term so exercised.



C. All of the terms, covenants and provisions of this Lease shall apply to each Extension Term,
except that Base Rent for the first (1st) and second (2nd) Extension Periods shall increase as
provided in Section 2.01 hereto, and the Base Rent for any subsequent Extension Term shall be at
Fair Value, and all Base Rent shall increase by two percent (2%) annually thereafter during the
applicable Extension Term and shall be payable in equal monthly installments as Monthly Base Rent.
Upon the failure of Tenant to exercise one or either of the options herein, and, in any event, upon
expiration of the sixth of such Extension Periods, Tenant shall have no further or additional right
to renew or extend the Lease.



D. Tenant agrees to accept the Premises to be covered by this Lease during any Extension Term in an
“as is” physical condition and Tenant shall not be entitled to receive any allowance, credit,
concession or payment from Landlord for the improvement thereof..



E. The Extension Options herein granted shall automatically terminate upon the earliest to occur of
(i) the expiration or termination of this Lease, or (ii) the failure of Tenant to timely or
properly exercise the Extension Option.




ARTICLE 21.

NONWAIVER



No waiver of any condition expressed in this Lease shall be implied by any neglect of Landlord to
enforce any remedy on account of the violation of such condition whether or not such violation is
continued or repeated subsequently, and no express waiver shall affect any condition other than the
one specified in such waiver and that one only for the time and in the manner



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specifically stated. Without limiting Landlord’s rights under Article 8, it is agreed that
no receipt of monies by Landlord from Tenant after the termination in any way of the Term or of
Tenant’s right of possession hereunder or after the giving of any notice shall reinstate, continue
or extend the Term or affect any notice given to Tenant prior to the receipt of such monies. It is
also agreed that after the service of notice or the commencement of a suit or after final judgment
for possession of the Premises, Landlord may receive and collect any monies due, and the payment of
said monies shall not waive or affect said notice, suit or judgment.




ARTICLE 22.

CORPORATION OR PARTNERSHIP OR LIMITED LIABILITY COMPANY



In case Tenant or Landlord is a corporation, such party represents and warrants that this Lease has
been duly authorized, executed and delivered by and on behalf of such party and constitutes the
valid and binding agreement of such party in accordance with the terms hereof. In case Tenant or
Landlord is a partnership or limited liability company, such party represents and warrants that all
of the persons who are general or managing partners in said partnership or are managers in said
limited liability company, as the case may be, have executed this Lease on behalf of such party, or
that this Lease has been executed and delivered pursuant to and in conformance with a valid and
effective authorization therefor by all of the general or managing partners of such partnership or
managers in said limited liability company, as the case may be, and constitutes the valid and
binding agreement of the partnership or the limited liability company, as the case may be.




ARTICLE 23.

REAL ESTATE BROKERS



Each party represents to the other that it has not dealt with any broker, agent, or finder in
connection with this Lease other than Jones Lange LaSalle and agrees to indemnify and hold the
other harmless from all damages, liability and expense, including reasonable attorneys’ fees,
arising from any claims or demands of any broker, agent or finder for any commission alleged to be
due such broker, agent or finder in connection with its having introduced that party to the
Premises or having participated in the negotiation of the sale and lease back of the Premises.




ARTICLE 24.

NOTICES



All notices and demands required or desired to be given by either party to the other with respect
to this Lease or the Premises shall be in writing and shall be delivered personally, sent by
facsimile with copy by overnight courier service, overnight courier service, prepaid, or sent by
United States registered or certified mail, return receipt requested, postage prepaid, and
addressed as herein provided. Notices to or demands upon Tenant shall be addressed to Tenant at
1415 W. 22nd Street, Suite 1100, Oak Brook, Illinois 60523, Attention: President, Fax No.: (630)
954-2138 with a copy to, Tenant at 1415 W. 22nd Street, Suite 1100, Oak Brook, Illinois 60523,
Attention: General Counsel, Fax No.: (630) 954-2138 along with a copy to, Paul, Hastings, Janofsky
& Walker, LLP, 191 North Wacker Drive, 30th Floor, Chicago, Illinois 60606, Attention: Gregory E.
Spitzer, Fax No.: (630) 954-2138. Notices to or demands upon Landlord shall be addressed to
Landlord at 1808 Swift Drive, Oak Brook, Illinois 60523,



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Attention: Mr. Sean P. Maher, Fax No.: 630-586-8010 with a copy to, Richmond Breslin LLP, 233 South
Wacker Drive, Suite 5775, Chicago, Illinois 60606, Attention: Mark S. Richmond, Esq., Fax No.:
312-258-0977. Notices and demands shall be deemed given and served (a) upon receipt or refusal, if
delivered personally, (b) one (1) business day after deposit with an overnight courier service, (c)
on the date sent, if delivered via facsimile at the number(s) set forth below, with a hard copy to
follow by overnight delivery service or (d) upon three (3) business days after deposit in the
United States mails, if mailed. Either party may change its address for receipt of notices by
giving notice of such change to the other party in accordance herewith.




ARTICLE 25.

HAZARDOUS MATERIALS




     25.01 Defined Terms.



          (a) “Claim” shall mean and include any demand, cause of action, proceeding, or suit
pursuant to Environmental Laws for any one or more of the following: (i) actual or punitive
damages, losses, injuries to person or property, damages to natural resources, fines, penalties,
interest, contribution or settlement, (ii) the costs and expenses of site investigations,
feasibility studies, information requests, health or risk assessments, or Response (as hereinafter
defined) actions, and (iii) the costs and expenses of enforcing insurance, contribution or
indemnification agreements.




          (b) “Environmental Laws” shall mean and include all federal, state and local statutes,
ordinances, regulations and rules in effect and as amended from time to time relating to
environmental quality, health, safety, contamination and cleanup, including, without limitation,
the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and the Water Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”), 7 U.S.C. Section 136 et seq.; the Noise Control Act, 42 U.S.C. Section 4901 et
seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C. Section 6901 et seq., as amended by the
Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section 300f
et seq.; the Comprehensive Environmental Response, Compensation and Liability Act
(“CERCLA”), 42 U.S.C. Section 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act, the Emergency Planning and Community Right-to-Know Act, and the Radon Gas and
Indoor Air Quality Research Act; the Toxic Substances Control Act (“TSCA”), 15 U.S.C.
Section 2601 et seq., and state and local superlien and environmental statutes and ordinances, with
implementing regulations, rules, as any of the foregoing may be amended from time to time.
Environmental Laws shall also include all state, regional, county, municipal, and other local laws,
regulations, and ordinances insofar as they are equivalent or similar to the federal laws recited
above or purport to regulate Hazardous Materials (as hereinafter defined).




          (c) “Hazardous Materials” shall mean and include the following, including mixtures
thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent
regulated under CERCLA; oil and petroleum products and natural gas, natural gas liquids, liquefied
natural gas and synthetic gas usable for fuel; pesticides regulated under FIFRA; asbestos and
asbestos-containing materials, PCBs, and other substances regulated under TSCA; source material,
special nuclear material, by-product material and any other radioactive materials




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or radioactive wastes, however produced, regulated under the Atomic Energy Act or the Nuclear
Waste Policy Act; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. §
1910.1200 et seq.; and any other hazardous substance, pollutant or contaminant regulated under any
other Environmental Law; provided, however, that “Hazardous Materials” shall not include normal
quantities of such materials, supplies and substances used by Tenant in operation of Tenant’s
business in the ordinary course, and in compliance with Environmental Laws or any other materials
and substances Managed in compliance with Environmental Laws.




          (d) “Manage” or “Management” means to generate, manufacture, process, treat,
store, use, re-use, refine, recycle, reclaim, blend or burn for energy recovery, incinerate,
accumulate speculatively, transport, transfer, dispose of or abandon Hazardous Materials.




          (e) “Release” or “Released” shall mean any actual or threatened spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing of Hazardous Materials into, upon, under and/or around the Premises including without
limitation into the environment, as “environment” is defined in CERCLA. “Response” or “Respond”
shall mean action taken to correct, remove, remediate, clean up, prevent, mitigate, monitor,
evaluate, investigate, assess or abate the Release of a Hazardous Material.




          (f) “Tenant Group” shall mean any or all of Tenant’s agents, employees,
representatives, contractors, workmen, mechanics, suppliers, customers, guests, licensees,
invitees, sublessees, assignees and all of their respective successors and assigns or any party
claiming by, through or under any of them.




          (g) “Environmental Condition” shall mean (i) the presence on the Premises of one or
more underground storage tanks or (ii) the existence of any Hazardous Materials on the Premises,
which is





     (i) in violation of or requiring cleanup under any Environmental Laws or the
provisions of this Article 25, or




     (ii) in concentrations or at levels exceeding applicable federal, state, or
local standards for soil, groundwater, or waste on industrial/commercial properties,
including without limitation Industrial/Commercial Cleanup Objectives,


and in either case subjects Landlord to liability for any Claim or which requires Environmental
Remediation to comply with an Environmental Law or to meet Industrial/Commercial Cleanup
Objectives.




          (h) “Environmental Remediation” shall mean any investigation, cleanup, removal,
containment, remediation, or other action relating to Hazardous Material(s) to the extent necessary
to comply with Environmental Law and cause the Premises to meet Industrial/Commercial Cleanup
Objectives.




          (i) “Pre-Existing Environmental Conditions” shall mean any Environmental Condition of
which Tenant has knowledge, including without limitation those Hazardous




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Materials and Environmental Conditions identified or described in the following environmental
documents: Carlson Environmental, Inc. Phase I Environmental Assessment, dated June 9, 2008;
Carlson Environmental, Inc. Environmental Business Risk Inspection Report, dated June 9, 2008;
Carlson Environmental, Inc. Phase II Limited Subsurface Soil and Ground Water Investigation dated
June 3, 2008; Carlson Environmental, Inc. Supplemental Phase II Subsurface Soil and Ground Water
Investigation, dated June 23, 2008; and Bureau Veritas Phase I Environmental Assessment, dated May
9, 2008.




          (j) “Industrial/Commercial Cleanup Objectives” shall mean either the Tier 1
Remediation Objectives for industrial/commercial property or Tier 2 Objectives for
industrial/commercial property as set forth in Tiered Approach to Corrective Action Objectives, 35
Ill. Admin. Code 742, including without limitation any revisions, modifications or amendments
thereto.




     25.02 Tenant’s Obligations with Respect to Environmental Matters. During the Term,
(i) Tenant shall comply, at its sole cost and expense, with all Environmental Laws; (ii) Tenant
shall not store, treat, dispose of or transport to or from the Premises any Hazardous Materials;
(iii) without limitation, Tenant shall not dispose of Hazardous Materials in dumpsters provided by
Landlord for tenant use; (iv) Tenant shall not discharge Hazardous Materials into drains or sewers
on the Premises; (v) keep the Premises free of any Hazardous Materials; (vi) Tenant shall not cause
or allow the Release of any Hazardous Materials on, to, under or from the Premises; (vii) Tenant
shall arrange at its sole cost and expense for the lawful transportation and off-site disposal at
permitted landfills or other permitted disposal facilities and otherwise in accordance with all
applicable Environmental Laws, of all Hazardous Materials that it generates; and (vii) not install
or operate any new above or below ground tank, or other storage or treatment vessel or device on
the Premises without obtaining Landlord’s prior written consent, which shall not be unreasonably
withheld, conditioned or delayed.



     25.03 Copies of Notices. During the Term, Tenant shall provide Landlord promptly with
copies of all information inquiries or requests, notices of material violations, notices of
potential responsibility, orders or decrees, Claims, complaints, notices of investigation,
judgments, letters, notices of environmental liens or Response actions in progress concerning the
Premises and (i) any actual or alleged material Release of a Hazardous Material on, to or from the
Premises; (ii) the imposition of any lien on the Premises; (iii) any actual or alleged material
violation of, or responsibility under, any Environmental Laws; or (iv) any actual or alleged
liability under any theory of common law tort or toxic tort, including without limitation,
negligence, trespass, nuisance, strict liability, or ultrahazardous activity (each a
“Notice”).



     25.04 Tests and Reports. Upon receipt of a Notice described in Section 25.03,
Landlord may request in writing, and Tenant shall provide within thirty (30) days of Tenant’s
receipt of a written request by Landlord (i) copies of all environmental reports and tests in the
possession of Tenant related to the Premises; (ii) copies of transportation and disposal contracts
(and related manifests, schedules, reports, and other information) entered into or obtained by
Tenant with respect to any Hazardous Materials; (iii) copies of any permits issued to Tenant under
Environmental Laws with respect to the Premises; (iv) copies of any and all reports, notifications,
and other filings made by Tenant to any federal, state, or local environmental authorities or
agencies (copies of which shall also have been delivered to Landlord at the time of



34









 







filing); and (v) any other reasonable applicable documents and information with respect to
environmental matters relating to the Premises and in each and every case only as it relates to the
subject matter of the Notice.



     25.05 Tenant’s Obligation to Respond. Upon the occurrence of a Release of Hazardous
Materials at, on, under or about the Premises, or if Tenant’s Management of Hazardous Materials at
the Premises (i) gives rise to liability or to a Claim under any Environmental Law, or any common
law theory of tort or otherwise; (ii) causes a threat to, or endangers, the public health; or (iii)
creates a nuisance or trespass, Tenant shall promptly notify Landlord of the same and, at its sole
cost and expense, shall perform Environmental Remediation and remove the Hazardous Materials from
the Premises, and take any other action necessary to resolve any Claim, remove the Hazardous
Materials or conditions causing the threat or endangerment of public health, and/or remove the
Hazardous Materials or conditions causing any nuisance or trespass.



     25.06 Landlord’s Right to Act. In the event that Tenant shall fail to comply with any
of its obligations under this Article 25 as and when required hereunder, after thirty (30) days
written notice to Tenant and Tenant’s failure to commence to cure such failure (except during an
emergency or a Default during which no notice and cure opportunity need be afforded to Tenant),
Landlord shall have the right (but not the obligation) to take such action as is required to be
taken by Tenant hereunder and in such event, Tenant shall be liable and responsible to Landlord for
all reasonable costs, expenses, liabilities, claims and other obligations paid, suffered, or
incurred by Landlord in connection with such matters. Tenant shall reimburse Landlord within
thirty (30) days or promptly upon demand for all such amounts for which Tenant is liable.



     25.07 Landlord’s Right to Inspection. In addition to Landlord’s other rights of
entry, access and inspection contained in this Lease, Landlord and its agents and representatives
shall have a right of entry and access to the Premises during normal business hours upon providing
Tenant with five (5) days written notice, for the purposes of (i) inspecting the documentation
relating to Hazardous Materials or environmental matters maintained by Tenant or any occupant of
the Premises; (ii) ascertaining the nature of the activities being conducted on the Premises and
investigating whether Tenant is in compliance with its obligations under this Article 25 of this
Lease; (iii) determining the type, kind, and quantity of all products, materials, and substances
brought onto the Premises, or made or produced thereon, and (iv) performing such environmental
investigations and assessments as Landlord may desire to perform in each case at Landlords sole
cost and expense. The investigation and assessments may include reasonable subsurface or other
invasive investigation of the Premises, including, but not limited to, soil borings and sampling of
site soil and ground or surface water for laboratory analysis, as may be recommended by the
Landlord’s consultant as part of its inspection of the Premises or based upon such other reasonable
evidence of Environmental Conditions warranting such subsurface or other invasive investigation.
Tenant will cooperate with Landlord and Landlord’s consultants and will supply, promptly upon
request, any information reasonably requested to facilitate the completion of the environmental
assessments and investigations. Tenant shall have the right to have a representative accompany the
representative of the Landlord at all times in its sole discretion, and Landlord shall use
reasonable efforts not to disrupt Tenant’s business operations at the Premises during such
inspections.



35









 





     25.08 Tenant’s Covenant. Upon the discovery of an Environmental Condition caused by
Tenant or any member of the Tenant Group:




     (i) promptly, but not later than three (3) business days after the discovery of
the Environmental Condition, notify Landlord of the Environmental Condition;




     (ii) furnish security reasonably acceptable to Landlord to secure performance
of Environmental Remediation and to assure Landlord that all necessary funds are
readily available to Landlord to pay the costs and expenses of Environmental
Remediation, in the event the Environmental Condition was caused by Tenant or any
member of the Tenant Group;




     (iii) prior to commencement of any Environmental Remediation, submit a proposed
scope of work for the Environmental Remediation, together with a timetable and a
cost estimate, to Landlord for review and approval;




     (iv) after obtaining Landlord’s approval, diligently perform the approved
Environmental Remediation;




     (v) comply with applicable release reporting requirements and provide Landlord
with any information necessary for Landlord to comply with Environmental Laws; and




     (vi) obtain a so called “no further remediation letter” or comparable
acknowledgment from each federal, state, or local governmental agency with
jurisdiction over the Environmental Condition that the Premises have been fully
remediated to commercial/ industrial cleanup objectives.



     25.09 Mold. Tenant acknowledges that mold spores are part of the natural environment
and mold may grow indoors when mold spores land on moist locations. Tenant acknowledges the
necessity of housekeeping, ventilation and moisture control (especially around plumbing,
heating/ventilation/air conditioning systems, and exterior wall surfaces of corner rooms) for mold
prevention. Tenant acknowledges that Tenant has inspected the Premises and confirms that Tenant has
not observed mold, mildew or moisture within the Premises. Tenant agrees to notify Landlord
promptly if material mold/mildew and/or moisture conditions (from any source, including leaks) are
discovered and to take appropriate steps to repair leaks and remediate conditions. Tenant releases
Landlord from any liability for any personal injury or damages to property caused by or associated
with moisture or the growth of or occurrence of mold or mildew on the Premises.



     25.10 Indemnification. Notwithstanding anything contained in this Lease to the
contrary, and except for Landlord’s negligence or willful misconduct, Tenant shall reimburse,
defend, indemnify and hold Landlord and Landlord Indemnified Parties, free and harmless from and
against any and all Claims, Response costs, losses, liabilities, damages, costs, and expenses,
including, without limitation, loss of rental income, loss due to business interruption, and



36









 







reasonable attorneys’ fees and costs, arising out of or in any way connected with any or all
of the following:



          (a) any Hazardous Materials which are or were actually Managed, generated, stored, treated,
released, disposed of or otherwise located on or at the Premises at any time during Tenant’s
occupation of the Premises (regardless of the location at which such Hazardous Material may in the
future be located or disposed of), including but not limited to, any and all (1) liabilities under
any common law theory of tort, nuisance, strict liability, ultrahazardous activity, negligence or
otherwise based upon, resulting from or in connection with any Hazardous Material; or (2)
obligations to perform Environmental Remediation;




          (b) any actual or alleged illness, disability, injury, or death of any person; in any manner
arising out of or allegedly arisen out of exposure to Hazardous Materials or other substances or
conditions introduced to or existing at, on or under the Premises during Tenant’s occupation of the
Premises;




          (c) any actual or alleged failure of Tenant or any member of the Tenant Group to comply with
all applicable Environmental Laws;




          (d) any failure by Tenant or any member of the Tenant Group to comply with its obligations
under this Article 25; and




          (e) any exacerbation of Pre-Existing Environmental Conditions.



In the event any Claims or other assertion of liability shall be made against Landlord for which
Landlord is entitled to indemnity hereunder, Landlord shall notify Tenant of such Claim or
assertion of liability and thereupon Tenant shall, at its sole cost and expense, assume the defense
of such Claim or assertion of liability and continue such defense at all times thereafter until
completion. The obligations of Tenant under this Article 25 shall survive any termination
or expiration of this Lease.




     25.11 No Liability of Landlord.



          (a) Landlord shall not have any liability to Tenant or any of its employees, agents,
shareholders, officers or directors, or any other persons as a result of any Hazardous Materials
located on the Premises now or at any time during the Tenant’s occupation of the Premises.




          (b) Tenant hereby waives and releases Landlord from all Claims arising from or relating to
Hazardous Materials existing as of the Commencement Date.




ARTICLE 26.

TITLE AND COVENANT AGAINST LIENS



Landlord’s title is and always shall be paramount to the title of Tenant and nothing contained in
this Lease shall empower Tenant to do any act which can, shall or may encumber the title of



37









 






Landlord. Tenant covenants and agrees not to suffer or permit any lien of mechanics or materialmen
to be placed upon or against the Premises, the Building or the Land and, in case of any such lien
attaching, to pay and remove or insure over same immediately and to indemnify, defend and save
Landlord harmless therefrom. Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation of law or
otherwise, to attach to or to be placed upon the Premises, the Building or the Land, and any and
all liens and encumbrances created by Tenant shall attach only to Tenant’s interest in the
Premises. If any such liens so attach and Tenant fails to pay and remove same within twenty (20)
days, Landlord, at its election, may upon written notice to Tenant, pay and satisfy the same and in
such event the sums so paid by Landlord, with interest from the date of payment at the rate set
forth in Section 27.07 for amounts owed Landlord by Tenant. Such sums shall be deemed to
be additional rent due and payable by Tenant at once without notice or demand. Tenant’s
obligations under this Article 26 shall survive the expiration or earlier termination of
this Lease.




ARTICLE 27.

MISCELLANEOUS




     27.01 Successors and Assigns. Each provision of this Lease shall extend to and shall
bind and inure to the benefit not only of Landlord and Tenant, but also of their respective heirs,
legal representatives, successors and assigns, but this provision shall not operate to permit any
transfer, assignment, mortgage, encumbrance, lien, charge or subletting contrary to the provisions
of this Lease.



     27.02 Modifications in Writing. No modification, waiver or amendment of this Lease or
of any of its conditions or provisions shall be binding upon either party unless in writing and
signed by Landlord and Tenant.



     27.03 Definition of Tenant. The word “Tenant” whenever used herein shall be
construed to mean Tenants or any one or more of them in all cases where there is more than one
Tenant; and the necessary grammatical changes required to make the provisions hereof apply either
to corporations, limited liability companies or other organizations, partnerships or other
entities, or individuals, shall be assumed in all cases as though fully expressed in each case. In
all cases where there is more than one Tenant, the liability of each shall be joint and several.
Landlord shall have the right, at its discretion, to enforce Landlord’s rights under this Lease
against each entity signing this Lease as Tenant, individually, or against all of such persons
collectively, so that any one of the entities signing this Lease as Tenant shall be bound to the
provisions of this Lease and shall be required to pay all of the Rent and other amounts from time
to time owed by Tenant under this Lease.



     27.04 Definition of Landlord. The term “Landlord” as used in this Lease means
only the owner or owners at the time being, of the Building or Premises, so that in the event of
any assignment, conveyance or sale, once or successively, of said Building or Premises, or any
assignment of this Lease by Landlord, said landlord making such sale, conveyance or assignment
shall be and hereby is entirely freed and relieved of all covenants and obligations of Landlord
hereunder accruing after such sale, conveyance or assignment, the purchaser, grantee or assignee
thereof shall assume all such covenants and obligations of the Landlord, and Tenant agrees to



38









 







look solely to such purchaser, grantee or assignee with respect thereto. This Lease shall not
be affected by any such assignment, conveyance or sale, and Tenant agrees to attorn to the
purchaser, grantee or assignee provided Tenant’s rights under this Lease are not disturbed.



     27.05 Headings. The headings of Articles and Sections are for convenience only and do
not limit, expand or construe the contents of the Articles or Sections.



     27.06 Time of Essence. Time is of the essence of this Lease and of all provisions
hereof.



     27.07 Default Rate of Interest. All amounts, including, without limitation, Base Rent
and Rent Adjustments, owed by Tenant to Landlord pursuant to any provision of this Lease shall bear
interest from the date due until paid at the annual rate of four percent (4%) in excess of the rate
of interest announced from time to time by J.P. Morgan Chase, as its prime, reference or corporate
base rate, changing as and when said prime, reference or corporate base rate changes, unless a
lesser rate shall then be the maximum rate permissible by law with respect thereto, in which event
said lesser rate shall be charged.



     27.08 Severability. The invalidity of any provision of this Lease shall not impair or
affect in any manner the validity, enforceability or effect of the rest of this Lease.



     27.09 Entire Agreement. Subject to the Restrictions, all understandings and
agreements, oral or written, heretofore made between the parties hereto are merged in this Lease
and the Purchase Agreement, which alone fully and completely expresses the agreement between
Landlord (and its beneficiaries, if any, and their agents) and Tenant.



     27.10 Force Majeure. If either party fails to perform timely any of the terms,
covenants and 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, inability to procure
materials, failure of power, restrictive governmental laws and regulations, riots, insurrections,
war, fuel shortages, accidents, casualties, acts of God, acts caused directly or indirectly by the
other party (or such other party’s agents, employees, contractors, licensees or invitees) or any
other cause beyond the reasonable control of such party (“Force Majeure”), then such party
shall not be deemed in default under this Lease as a result of such failure and any time for
performance by such party provided for herein shall be extended by the period of delay resulting
from such cause; except that the lack of money or the inability to pay or to otherwise satisfy an
obligation through the payment of money shall not constitute a Force Majeure.



     27.11 Memorandum of Lease. This Lease shall not be recorded. However, a memorandum
of this Lease in the form attached hereto as Exhibit B shall be executed, in recordable
form, by both parties concurrently herewith and recorded by Tenant, at Tenant’s expense, with the
official charged with recordation duties for the county in which the Premises are located, with
directions that it be returned to Tenant.



     27.12 No Construction Against Preparer. This Lease has been prepared by Tenant and
its professional advisors and reviewed by Landlord and its professional advisors. Landlord, Tenant
and their separate advisors believe that this Lease is the product of their joint efforts, that



39









 







it expresses their agreement, and that it should not be interpreted in favor of either
Landlord or Tenant or against either Landlord or Tenant merely because of their efforts in its
preparation.



     27.13 Waiver of Landlord’s Lien. Landlord hereby waives any statutory liens and any
rights of distress with respect to the personal property of Tenant (including but not limited to
trade fixtures, equipment and merchandise) from time to time located within the Premises
(“Tenant’s Property”). This Lease does not grant a contractual lien or any other security
interest to Landlord or in favor of Landlord with respect to Tenant’s Property. Landlord further
agrees to execute and deliver such instruments reasonably requested by Tenant’s Lender and in a
customary form reasonably acceptable to Landlord from time to time to evidence or effect the
aforesaid waiver and agreements of Landlord.



     27.14 Investment Tax Credits. Landlord expressly waives and relinquishes in favor of
Tenant any rights to claim the benefit of or to use any federal or state investment tax credits
that are currently, or may become, available during the Term as a result of any installation of any
equipment, furniture or fixtures installed by Tenant in or on the Premises whether or not such
items become a part of the realty and agrees to execute and deliver to Tenant any election form
required to evidence Tenant’s right to claim investment tax credits.



     27.15 Signage. Subject to the other terms and conditions of this Lease, Tenant shall
be entitled to place a sign upon the Premises subject to compliance of any Law, and the
Restrictions.



     27.16 Consent. Landlord’s granting of any consent under this Lease, or Landlord’s
failure to object to any action taken by Tenant without Landlord’s consent required under this
Lease, shall not be deemed a waiver by Landlord of its rights to require such consent for any
further similar act by Tenant.



     27.17 No Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a
lesser amount than the full amount stipulated herein as then required to be paid by Tenant in
respect of Tenant’s obligations under this Lease for Rent or any other payments shall be deemed to
be other than on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment of any such amount be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord’s right to recover the
balance of such amount or pursue any other remedy provided in this Lease.



     27.18 Applicable Law. This Lease shall be construed and enforced in accordance with
the laws of the state where the Premises are located.



     27.19 Tenant Authority. Tenant represents and warrants that it is duly formed and in
good standing, and has full corporate, partnership or limited liability company power and
authority, as the case may be, to enter into this Lease and has taken all corporate, partnership or
limited liability company action, as the case may be, necessary to carry out the transaction
contemplated herein, so that when executed, this Lease constitutes a valid and binding obligation
of Tenant enforceable in accordance with its terms.




40












 





ARTICLE 28.

EXCULPATORY PROVISIONS



It is understood and agreed expressly by and between the parties hereto, anything herein to the
contrary notwithstanding, that each and all of the representations, warranties, covenants,
undertakings and agreements made herein on the part of Landlord, while in form purporting to be the
representations, warranties, covenants, undertakings and agreements of Landlord, are nevertheless
each and every one of them made and intended, not as personal representations, warranties,
covenants, undertakings and agreements by Landlord or for the purpose or with the intention of
binding Landlord personally, but are made and intended for the purpose only of subjecting
Landlord’s interest in the Building, the Land and the Premises to the terms of this Lease and for
no other purpose whatsoever, and in case of default hereunder by Landlord, Tenant shall look solely
to the interests of Landlord in the Building and Land; that neither Landlord nor its officers,
directors, employees, partners, members, shareholders or agents shall have any personal liability
to pay any indebtedness accruing hereunder or to perform any covenant, either express or implied,
contained herein; and that no personal liability or personal responsibility of any sort is assumed
by, nor at any time shall be asserted or enforceable against, said Landlord, individually, or its
officers, directors, employees, partners, members, shareholders or agents.




ARTICLE 29.

QUIET USE AND ENJOYMENT



If and as long as Tenant shall faithfully perform the agreements, terms, covenants and conditions
hereof, Tenant shall and may (subject, however, to the provisions, reservations, terms and
conditions of this Lease) peaceably and quietly have, hold and enjoy the Premises for the Term
hereby granted, including extensions, without molestation or disturbance by or from Landlord or any
person or entity claiming through or under Landlord. This covenant shall be construed as running
with the land to and against subsequent owners and successors in interest and is not, nor shall it
operate or be construed as, a personal covenant of Landlord, except to the extent of Landlord’s
interest in the Premises and only so long as such interest shall continue, and thereafter this
covenant shall be binding upon such subsequent owners and successors in interest of Landlord’s
interest under this Lease, to the extent of their respective interests, as and when they shall
acquire the same, and only so long as they shall retain such interest.




ARTICLE 30.

FINANCIAL STATEMENTS/CONFIDENTIALITY



Tenant agrees to furnish to Landlord upon request, but not more than annually a copy of its audited
financial statements. In addition to the financial statements, Landlord may from time to time
obtain certain confidential and proprietary information concerning Tenant (the “Confidential
Information”). Landlord agrees and acknowledges that Tenant retains all right title and
interest in and to the Confidential Information and that the Confidential Information is intended
solely for Landlord’s own limited use in evaluating its investment in the Premises (the
“Permitted Use”). As unauthorized disclosure of the Confidential Information could cause
harm to the business of Tenant, Landlord agrees that Tenant may seek and be entitled to injunctive
relief (including specific performance), in the event of a breach of this provision. Landlord
agrees that the Confidential Information provided is confidential in all respects, that Landlord


41









 






will hold and treat it in the strictest of confidence, the Confidential Information will only be
used for the Permitted Use and that Landlord will not disclose or permit anyone else to disclose
the Confidential Information to any person, firm or entity without prior written authorization of
Tenant, except that the information may be disclosed for the Permitted Use to the Landlord’s
internal partners, shareholders, members and employees, accountants, advisors and lenders upon
notification to such persons of the confidential nature of such information and the terms of this
provision of the Lease (collectively “Permitted Parties”) or pursuant to a court order
(provided Landlord notifies the Tenant prior to disclosure by court order, Landlord cooperates with
the Tenant in any proceeding to obtain a protective order and only discloses the minimum required
Confidential Information). Landlord will promptly provide Tenant with notice of any unauthorized
disclosure of the Confidential Information or any other breaches of this provision.




ARTICLE 31.

RIGHT OF FIRST OFFER




     31.01 If Landlord desires to sell its interest in the Premises to a third-party (a
“Transfer”), at any time on or before the expiration of this Lease, Landlord shall notify
Tenant, in writing, at least thirty (30) days in advance of its intent to transfer the Premises
(the “Transfer Notice”), together with a term sheet setting forth, in reasonable detail,
the purchase price (the “Offered Price”) and the other material terms of the proposed
Transfer (the “Purchase Offer”). Tenant shall have the right to purchase the Leased
Premises at the Offered Price and upon the other terms and conditions of the Purchase Offer (the
“Right of First Offer”) by providing written notice to the Landlord (the “Exercise
Notice”) within thirty (30) days after Tenant’s receipt of the Transfer Notice (the
“Transfer Notice Period”), in which case the Landlord and Tenant shall proceed to close
such transaction during normal business hours on a date and at a place to be agreed upon, which
shall be no later than sixty (60) days after delivery of the Exercise Notice (the “Outside
Date”). If Tenant elects not to purchase the Premises or fails to notify Landlord of its
election to purchase the Premises prior to the expiration of the Transfer Notice Period, Landlord
may proceed with the proposed Transfer; provided, however, that (i) the Transfer is made in
exchange for consideration worth no less than ninety percent (90%) of the Offered Price and
otherwise on substantially similar terms as those set forth in the Purchase Offer, (ii) such
Transfer is completed within one hundred eighty (180) days of the Purchase Offer (provided,
however, if Landlord has entered into a purchase agreement within such one hundred eighty (180) day
period, and provided notice thereof to Tenant within such one hundred eighty (180) day period,
Landlord shall have an additional sixty (60) day period to complete the sale of the Premises) and
(iii) Tenant shall have a continuing first right to purchase as provided above. In the event that
the Transfer will not satisfy the requirement set forth in clause (i) above, Tenant shall have a
period of five (5) business days following receipt of notice from Landlord of the revised terms of
the proposed transfer, to purchase the Premises for the revised terms in accordance with the terms
of this Article 31.



     31.02 If Tenant timely elects to purchase the Leased Premises and thereafter fails to
consummate the purchase pursuant to the terms, conditions and time periods set forth in the
Purchase Offer and this Lease, except to the extent of a default by Landlord under the Purchase
Offer, then this Right of First Offer shall terminate and be of no further force and effect an
shall not apply to any further sales of the Premises.



42









 





ARTICLE 32.

CROSS DEFAULT




     32.01 Landlord and Tenant acknowledge that pursuant to that certain Purchase and Sale
Agreement of even date herewith between Landlord and Tenant, simultaneously herewith the parties
hereto or their subsidiaries have entered into separate leases, in substantially the same form as
this Lease, relating to the properties described in Exhibit C attached hereto (the
“Other Leases”). Landlord and Tenant agree, that so long as (i) CenterPoint Properties
Trust or any entity which controls, is controlled by or is under common control with CenterPoint
Properties Trust, (a “Controlled Affiliate”) shall be the landlord under this Lease and the
Other Leases, or (ii) the landlord under this Lease and the Other Leases is the same person or
entity or an entity which controls, is controlled by or is under common control with such landlord,
(a “Landlord Affiliate”) that a Default under this Lease shall be deemed a Default under
the Other Leases and that a Default (as defined in the Other Leases) under the Other Leases shall
be deemed a Default under this Lease. This cross-default provision in this Lease shall be
terminated and null and void upon a permitted assignment of this Lease pursuant to Article 12 above
or upon a change in the landlord under this Lease or the other Leases (other than to a Controlled
Affiliate or Landlord Affiliate).



ARTICLE 33.

SECURITY DEPOSIT




     33.01 Security Deposit. Tenant agrees to deposit with Landlord, upon the execution of
this Lease, the amount of Nine Hundred Thousand and No/100 Dollars ($900,000.00) (“Security
Deposit”) as security for the full and faithful performance by Tenant of each and every term,
provision, covenant and condition of this Lease. If a Default occurs, Landlord may use, apply or
retain the whole or any part of the Security Deposit for the payment of any sum then due hereunder
or which Landlord may expend or be required to expend by reason of the occurrence of such Default,
without limitation, any damages or deficiency in the reletting of the Premises, whether such
damages or deficiency shall have accrued before or after re entry by Landlord. If any of the
Security Deposit shall be so used, applied or retained by Landlord at any time or from time to
time, Tenant shall promptly, in each such instance, within five days of written demand therefor by
Landlord, pay to Landlord such additional sums as may be necessary to restore the Security Deposit
to the original amount set forth in the first Section of this Lease. If Tenant shall fully and
faithfully comply with all the terms, provisions, covenants and conditions of this Lease, the
Security Deposit, or the balance thereof, shall be returned to Tenant within three (3) business
days after all of the following: (a) the time fixed as the expiration of the Term of this Lease;
(b) the removal of Tenant from the Premises; and (c) the surrender of the Premises by Tenant to
Landlord in accordance with this Lease. Except as otherwise required by law, Tenant shall not be
entitled to any interest on the Security Deposit. In the absence of evidence reasonably
satisfactory to Landlord of an assignment of the right to receive the Security Deposit or the
remaining balance thereof, Landlord may return the Security Deposit to the original Tenant,
regardless of one or more assignments of this Lease.



     33.02 Letter of Credit.



43









 





          (a) Notwithstanding the foregoing, the Security Deposit may, at the option of Tenant, be in
the form of an unconditional and irrevocable letter of credit (hereinafter referred to as the
“Letter of Credit”) in the amount of the Security Deposit, in the form attached hereto as
Exhibit E and issued by a bank reasonably satisfactory to Landlord. The first such Letter
of Credit shall expire no earlier than thirty (30) days after the first (1st) anniversary of the
Commencement Date and all subsequent replacement Letters of Credit shall expire no earlier than
twelve (12) months from the expiry date of the then outstanding and expiring Letter of Credit. The
Letter of Credit may contain an “evergreen clause” providing that the Letter of Credit shall
automatically renew for one year intervals unless thirty (30) days prior to any expiration date,
Landlord is notified in writing by certified mail from the Letter of Credit issuer that the Letter
of Credit will not be renewed. Otherwise, Tenant shall ensure that at all times during the term of
this Lease and for thirty (30) days after expiration of the Term, an unexpired Letter of Credit in
the face amount of the Security Deposit or cash in such amount shall be in the possession of
Landlord. During the Term, Tenant shall deliver a replacement Letter of Credit to Landlord no
later than thirty (30) days prior to the expiry date of the then outstanding and expiring Letter of
Credit. Failure by Tenant to deliver any replacement Letter of Credit as required above shall
entitle Landlord to draw under the outstanding Letter of Credit and to retain the entire proceeds
thereof for application as the Security Deposit under this Lease. Each Letter of Credit shall be
for the benefit of Landlord and its successors and assigns 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
upon presentation of a sight draft and statement by Landlord that Landlord is entitled to draw
thereunder pursuant to the terms and provisions of this Lease. If Tenant defaults in respect to
any of the terms, provisions, covenants or conditions of this Lease, including, but not limited to,
payment of Base Rent, Additional Rent, or any other amount payable by Tenant hereunder, and such
default is not cured by Tenant within the applicable notice and cure periods contained in this
Lease, if any, Landlord may draw upon the Letter of Credit in part or in whole and may use, apply
or retain the whole or any part of the proceeds thereof or any cash or other Security Deposit for
any such payment, or for any other sum which Landlord may expend or be required to expend by reason
of Tenant’s default, including without limitation any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency shall have occurred before or after any re-entry by
Landlord. If the Letter of Credit shall be so drawn upon or otherwise if any of the Security
Deposit shall be so used, applied or retained in each such instance, upon the written demand
therefor by Landlord, pay to Landlord such additional sum as may be necessary to restore the
Security Deposit or deliver a replacement Letter of Credit.




     33.03 Successors. Landlord may deliver the Letter of Credit or any cash Security
Deposit funds deposited hereunder by Tenant to the transferee of Landlord’s interest in the Project
in the event that such interest is transferred, and thereupon Landlord shall be discharged from any
further liability with respect to said Letter of Credit or cash Security Deposit. Tenant hereby
agrees not to look to any mortgagee as mortgagee, mortgagee in possession, or successor in title to
the Project for any Letter of Credit or cash Security Deposit required by Landlord hereunder,
unless said Letter of Credit or sums have actually been received by or credited to said mortgagee
as security for Tenant’s performance of this Lease, in which event Landlord shall remain liable for
such Letter of Credit or cash Security Deposit. Tenant shall be responsible to pay any fees
imposed by the bank issuing said replacement letter of credit or for transferring the letter of
credit to the transferee.



44









 





     33.04 Reduction of Security Deposit.



          (a) The amount of the Security Deposit shall decrease by One Hundred Twenty Thousand and
00/100 Dollars ($120,000.00) annually for five (5) years beginning with the sixth (6th) Lease Year,
provided that a Default does not exist at such time and provided the Threshold Tests are satisfied
by Tenant or its guarantor, if applicable, at the time of such determination. If any of the
Threshold Tests are not met in any given year, the Security Deposit shall remain unchanged.




          (b) If at any time the Threshold Tests (defined below) have been satisfied and Tenant or its
guarantor, if applicable, has received a rating equal to or better than: (i) NAIC 2 from the
National Association of Insurance Commissioners or (ii) BBB from Standard & Poor’s (or its
equivalent from another rating agency) (the “Threshold Rating”), then the requirement for
Tenant to maintain the Security Deposit shall be terminated and the Letter of Credit shall be
cancelled and promptly be returned by Landlord to Tenant (the “Security Deposit
Termination”). Notwithstanding the foregoing, if after a Security Deposit Termination has
occurred, Tenant or its guarantor, as applicable, fails to satisfy the Threshold Test or the
Threshold Rating, then Tenant’s Security Deposit obligation under this Section 33 shall be
reinstated and within thirty (30) calendar days of the rating downgrade or failure to satisfy the
Threshold Test, Tenant shall deliver to Landlord a Letter of Credit in an amount equal to the
amount of the Security Deposit previously required under the Lease, but taking into account any
reductions under Section 33.04(a) above which would have been applicable. Tenant shall pay any and
all costs and expenses in connection with the issuance of a new Letter of Credit.




          (c) Except with respect to a Security Deposit Termination, the Security Deposit shall not be
reduced below Three Hundred Thousand and No/100 Dollars ($300,000.00).




          (d) The term “Threshold Tests” shall mean: If, during any quarter, tenant or its
guarantor, if applicable, has attained the following: (i) a tangible net worth of at least Fifty
Million and 00/100 Dollars ($50,000,000.00), (ii) an EBITDA greater than or equal to Fifty Million
and 00/100 Dollars ($50,000,000.00), and (iii) a Net Debt to EBITDA ratio less than or equal to
Three and One Quarter (3.25). For purposes of this Lease, EBITDA shall mean Operating Income from
Continuing Operations before interest, taxes, depreciation and amortization as set forth on the
Income Statement and Cash Flow Statement of Tenant or its guarantor, if applicable, to be
calculated on a trailing twelve (12) month basis, using the Tenant’s or its guarantor’s, if
applicable, most recent quarterly financial statements. “Net Debt” shall mean Total
Manufacturing Debt plus any Capital Leases less Cash as set forth on the applicable quarterly
financial statements.




45









 








     IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the date
first written above.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CENTERPOINT PROPERTIES TRUST, a 

Maryland real estate investment trust	 	 	 	FEDERAL SIGNAL CORPORATION, a

Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 
	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 






EXHIBIT A

LEGAL DESCRIPTION OF LAND




PARCEL 1:



THE SOUTHWEST 1/4 OF THE NORTHEAST 1/4 OF SECTION 8 (EXCEPT THAT PART CONVEYED
TO THE STATE OF ILLINOIS FOR INTERSTATE 57), IN TOWNSHIP 34 NORTH, RANGE 13 EAST
OF THE THIRD PRINCIPAL MERIDIAN, ALL IN WILL COUNTY, ILLINOIS.




PARCEL 2:



ALL THAT PART OF THE EAST 1/2 OF THE NORTHWEST 1/4 OF SECTION 8, TOWNSHIP 34
NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING EASTERLY OF THE EASTERLY RIGHT OF WAY
OF INTERSTATE HIGHWAY 57, IN WILL COUNTY, ILLINOIS.




A-1









 








EXHIBIT B


FORM OF MEMORANDUM OF LEASE




 






Parcel ID #                                         

This Instrument Prepared By and Upon

Recordation return to:




 






 






 






MEMORANDUM OF LEASE




     THIS MEMORANDUM OF LEASE (“Memorandum”) made as of the                      day of                     , 2008,
by and between                                         , a(n)                      (“Tenant”), and
                                        , a(n)                     (“Landlord”).



WITNESSETH:




     1. Premises. Landlord and Tenant have entered into a lease (“Lease”) dated
                    , 2008, for that certain real property lying, being and situate in the County of                     ,
City of                     , State of Illinois, more particularly described on EXHIBIT A attached
hereto and made a part hereof, together with the building containing approximately                     
(                    ) square feet (“Premises”).



     2. Term and Extension Options. The Lease has an initial term of                      (___)
years, subject to extension (at Tenant’s option) as provided therein for ___ (___) successive
additional periods of                      (___) years each.



     3. Incorporation of Lease. This Memorandum is for informational purposes only and
nothing contained herein shall be deemed to in any way modify or otherwise affect any of the terms
and conditions of the Lease, the terms of which are incorporated herein by reference. This
instrument is merely a memorandum of the Lease and is subject to all of the terms, provisions and
conditions of the Lease. In the event of any inconsistency between the terms of the Lease and this
instrument, the terms of the Lease shall prevail.



     4. Binding Effect. The rights and obligations set forth herein shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.



B-1









 





     IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year
first above written.



	 	 	 	 	 
	 	LANDLORD:

 	 
	 	
 	 
	 	 	 
	 	___ a(n) 
	 
	 
	 	By:  	
 	 
	 
	 	 	Print Name:  	 	 
	 
	 	 	Print Title:  	 	 
	 
	 	Date:  _______, 20___ 	 
	 
	 	TENANT:

 	 
	 	
 	. 
	 	 	 
	 	a 
	 
	 
	 	By:  	
 	 
	 
	 	 	Print Name:  	 	 
	 
	 	 	Print Title:  	 	 
	 
	 	Date:  _______, 20___ 	 



B-2









 







	 	 	 	 	 
	STATE OF ILLINOIS
	 	)	 	 
	 
	 	)	 	SS:
	COUNTY OF
	 	)	 	 






     I, the undersigned, a
Notary Public in and for said County in said State, hereby certify that
_________, whose
 name as _________ of _________, a _________, is signed to the foregoing instrument, who is
known to me, acknowledged before me on this day that, being informed of the contents of the
instrument, he, as such officer and with full authority, executed the same voluntarily for and as
the act of said     
                .



     Given under my
hand and official seal this ___ day of _________, 20___



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	State of 
	 
	 	My Commission expires: 
 	 
	 



	 	 	 	 	 
	STATE OF ILLINOIS
	 	)	 	 
	 
	 	)	 	SS:
	COUNTY OF
	 	)	 	 






     I, the
undersigned, a Notary Public in and for said County in said State, hereby certify that
_________, whose name as _________
of _________,
a _________, is signed to the foregoing instrument, who is
known to me, acknowledged before me on this day that, being informed of the contents of the
instrument, he, as such officer and with full authority, executed the same voluntarily for and as
the act of said                     .



     Given under
my hand and official seal this ___ day of _________, 20___



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	State of 
	 
	 	My Commission expires: 
 	 
	 



B-3









 






	 	 	 	 	 



EXHIBIT C




LIST OF OTHER LEASES




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Initial Annual	 	Initial Monthly	 	Allocation of Letter
	Property	 	Base Rent	 	Base Rent	 	of Credit Amount
	1300 West Bartlett
Road, Elgin, Illinois
	 	$	1,269,514.00	 	 	$	105,793.00	 	 	$	600,000.00	 






C-1









 






EXHIBIT D




FORM OF ESTOPPEL LETTER




                                              (the “Tenant”) hereby certifies to CENTERPOINT PROPERTIES TRUST, a
Maryland real estate investment trust (the “Landlord”) and                                         , a(n)
                                         (“Purchaser/Lender”) as follows:



     1. Pursuant to
that certain Lease dated          
                      , ______ (the “Lease”) with Tenant,
Tenant leases the land, building and other improvements commonly known as
               
                          (the “Premises”). The Lease, as amended, modified and supplemented,
is in full force and effect, and represents the entire agreement between Tenant and Landlord for
the Property. There are not amendments, modifications or supplements to the Lease, whether oral or
written except as follows (include the date of each amendment, modification or supplement):
                    
                               . A true and correct copy of the Lease, as amended, modified and
supplemented, is attached hereto as Exhibit “A”.



     2. The term of the
Lease began on                
     , ______ and will end on
             
               
       
  , ______.



     3. The Lease [does] [does not] provide for an option to extend the term of the Lease for
                     years. Except as expressly provided in the Lease, Tenant does not have any right or
option to renew or extend the term of the Lease, to lease other space at the Property, nor any
preferential right to purchase all or any part of the Premises.



     4. Tenant has neither sent nor received any notice of default under the Lease which remains
uncured and has no knowledge that either Landlord or Tenant are in default under the Lease except
as follows:        
                                              .



     5. Tenant is currently paying [Base Monthly] Rent under the Lease in the amount of
$        
                         and Tax Deposits in the amount of $                     and Expense Deposits in the
amount of $                    .



     6. Tenant has not prepaid any rent or other charge under the Lease to Landlord other than the
following:                       
                                                   .



     7. A [cash][letter of
credit] security deposit in the amount of $                     has been paid
to and is presently held by Landlord under the Lease, and Tenant has not given Landlord any other
security or similar deposit.


Dated this ___ day of  
                   , 200 __.




	 	 	 	 	 
	[NAME OF TENANT]

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



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EXHIBIT E




FORM OF LETTER OF CREDIT




IRREVOCABLE LETTER OF CREDIT




	 	 	 
	Applicant:

	 	Federal Signal Corp.

1415 W 22nd, #1100

Oak Brook, Il 60523
	 
	 	 
	Beneficiary:

	 	CENTERPOINT PROPERTIES TRUST

1808 Swift Road

Oak Brook, Illinois 60523-1501

Attention: Paul S. Fisher
	 
	 	 
	Amount:

	 	Nine hundred thousand AND /100 DOLLARS ($900,000)






Ladies and Gentlemen:



     We hereby establish our Irrevocable Letter of Credit No.                     , in favor of the
above-described Beneficiary, for the account of the above-described Applicant, in an aggregate
amount not exceeding nine hundred thousand AND /100 DOLLARS ($900,000). This Letter of Credit
shall automatically expire at 5:00 p.m. Chicago Time on July 1, 2009 (“Expiration Date”) provided,
however, that this Letter of Credit shall be shall automatically renewed for one (1) year periods
thereafter ending not earlier than June 30, 2013. Notwithstanding the foregoing, we shall have the
right not to renew this Letter of Credit on written notice to Landlord not less than sixty (60)
days prior to the then current Expiration Date.


It is a condition of this letter of credit that it shall be deemed to be automatically extended for
one (1) year from the present or any future expiration date hereof, unless at least sixty (60) days
prior to any such date, we shall notify you in writing by registered mail/courier that we elect not
to consider this letter of credit renewed for any such additional period.




     Funds under this Letter of Credit are available to you against your sight drafts drawn on us,
purportedly signed by your, an authorized officer stating on their face: “Drawn under Irrevocable
Standby Letter of Credit No.                     ” and accompanied by this original Letter of Credit for
endorsement and a certification by an officer of Centerpoint Properties Trust, as landlord stating
that the drawing is as per the terms of the under that certain Lease dated July 2, 2008, by and
between Centerpoint Properties Trust and Federal Signal Corporation, as tenant (the “Lease”).
Centerpoint Properties Trust shall be entitled to the draw requested pursuant to the terms of the
Lease. No other documentation, action or inquiry shall be required. Partial draws are permitted.



     Beneficiary shall have the right to transfer this Letter of Credit at no cost to Beneficiary.


This Credit is transferable one or more times and only in the full amount available to be drawn
under this Credit at the time of such transfer. Any such transfer may be effected only through the
bank upon presentation to the bank at 111 W. Monroe Street, 17th Floor W., Chicago, Illinois 60603,
Attn: Standby Letter of Credit Unit, of a duly executed instrument to transfer on the bank’s
attached form, together with the original of this Credit. Any transfer of this Credit may not
change the place of expiration of this Credit


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from the above-specified office. All proposed transfers are subject to review and our approval for
compliance with U.S. treasury and U.S. department of Commerce Regulations.



The insolvency or related proceeding of the applicant, will not affect the beneficiary’s right to
draw under this Letter of Credit.



In requesting the issuance of this Irrevocable Letter of Credit, the Applicant expressly
acknowledges and agrees that any insolvency or related proceeding of the Applicant shall in no way
alter or affect the beneficiary’s right to draw under the terms here-in. We undertake that drafts
drawn and presented in conformity with the terms of this Letter of Credit will be duly honored.
This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits, 2007
Revision, International Chamber of Commerce Publication No. 600. The number of the Credit and the
name of our Bank must be quoted on all drafts required.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	 	 
	 	By:  	

 	 
	 	 	Authorized Officer 	 
	 	 	 	 



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SCHEDULE 2.01




BASE RENT




	 	 	 	 	 
	Year	 	Base Rent
	1
	 	$	1,866,863.00	 
	2
	 	$	1,904,201.00	 
	3
	 	$	1,942,285.00	 
	4
	 	$	1,981,130.00	 
	5
	 	$	2,020,753.00	 
	6
	 	$	2,061,168.00	 
	7
	 	$	2,102,391.00	 
	8
	 	$	2,144,439.00	 
	9
	 	$	2,187,328.00	 
	10
	 	$	2,231,075.00	 
	11
	 	$	2,275,696.00	 
	12
	 	$	2,321,210.00	 
	13
	 	$	2,367,634.00	 
	14
	 	$	2,414,987.00	 
	15
	 	$	2,463,287.00	 






Schedule 2.01-1









 






SCHEDULE 7.03




TRADE FIXTURES AND PERSONAL PROPERTY



All apparatus, personal property, trade fixtures, inventory, equipment, machinery, fittings,
furniture, furnishings, chattel, materials and supplies located on and used in, or related to
Lessee’s business, including, but not limited to, overhead cranes, mainframe computers, kitchen
equipment and telephone and similar systems and articles of personal property of every kind and
nature whatsoever, and any additions, replacements, accessions and substitutions thereto or
therefor, and all proceeds of all of the foregoing, or any part of the foregoing used or usable in
connection with any present or future operation or letting (or subletting) of the Premises or the
activities at any time conducted thereon and now or hereafter owned by Lessee or by any sublessee
or other person or entity using all or any part of the Premises by, through, or under (or with the
express or implied consent of) Lessee; and also including the following:




2645 Federal Signal Drive, University Park, IL





In the Sheet Metal Dept., a large structure 5 ton Shaw Box bridge crane




In the Sheet Metal Dept., a tall pedestal 2 Ton Coffing hoist




In the Lift Truck Battery Charging station, a Cleveland Tramerail 2 Ton
small bridge crane




In the Metal Prep Dept., a long twin bridge crane 2Ton Electrolift
system over the dip tanks




In the Metal Prep Dept., a mono rail tram 2 Ton C&H hoist with a back
up hoist on the rail for the Detrex




In the Metal Prep Dept. boiler room, 2 steam boilers — Kewanee 100hp &
Columbia 75hp for the process steam/heat




In the Main Boiler Room, two 75 hp Sullair pneumatic compressors & 1
attached Sullair pneumatic dryer




In the main Boiler Room, one 10hp Ingersoll Rand pneumatic compressor




In the previous Crating Department, a short 1/2 ton pedestal Coffing hoist




In the Tool Room, a 3 ton under hung bridge Kundal crane




In the Tool Room, a 2 ton mono rail Coffing hoist




In FWS Dept., a column mounted jib crane half ton Coffing hoist




In the FWS Dept., two small light weight pedestal 1/4 ton Coffing hoists



Schedule 7.03-1









 






In the Assembly Dept., two Dayton process exhaust blowers for the
Electrovert Wave Solder process




In the ISG FAT Dept., Special application electrical transformers &
custom designed distribution centers for testing




In the Janitorial Dept., one trash compactor we use, is the property of
our rubbish hauler, Star Disposal




In the Janitorial dept., one cardboard bailer we use , is the property
of our scrap metal hauler, Cozzi/Metals Management




In the Metal prep dept., 18 dip tanks for the metal cleaning process




In the North Warehouse, 14 dock levelers in the truck pit




In the North Warehouse, 1 dock leveler in the rail pit




In the East Shipping/Receiving Dept., 8 dock levelers




Schedule 7.03-2