Exhibit
10.1


 


OFFICE LEASE


 


 


120 NORTH LASALLE STREET


 


CHICAGO, ILLINOIS


 


 


WITH


 


 


LKQ CORPORATION


 


 


SUITE 3300


 


 


DATED AS OF FEBRUARY 18, 2004


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1:

  	
  BASIC PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2:

  	
  PREMISES AND CONDITION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3:

  	
  TERM AND COMMENCEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4:

  	
  BASE RENT AND ADDITIONAL RENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5:

  	
  QUIET ENJOYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6:

  	
  UTILITIES AND SERVICES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7:

  	
  USE, COMPLIANCE WITH LAWS, AND RULES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8:

  	
  MAINTENANCE AND REPAIRS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9:

  	
  ALTERATIONS AND LIENS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10:

  	
  INSURANCE AND WAIVER OF CLAIMS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11:

  	
  CASUALTY DAMAGE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12:

  	
  CONDEMNATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13:

  	
  ASSIGNMENT AND SUBLETTING

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14:

  	
  PERSONAL PROPERTY, RENT AND OTHER TAXES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15:

  	
  LANDLORD’S REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16:

  	
  [INTENTIONALLY OMITTED]

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17:

  	
  ATTORNEYS’ FEES, JURY TRIAL, COUNTERCLAIMS
  AND VENUE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 18:

  	
  SUBORDINATION, ATTORNMENT AND LENDER
  PROTECTION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 19:

  	
  ESTOPPEL CERTIFICATES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 20:

  	
  RIGHTS RESERVED BY LANDLORD

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 21:

  	
  TENANT’S REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 22:

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 23:

  	
  RETURN OF POSSESSION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 24:

  	
  HOLDING OVER

  	
   

  



 


i

















 


	
  ARTICLE 25:

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 26:

  	
  REAL ESTATE BROKERS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 27:

  	
  NO WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 28:

  	
  SAFETY AND SECURITY DEVICES, SERVICES AND
  PROGRAMS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 29:

  	
  TELECOMMUNICATION LINES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 30:

  	
  HAZARDOUS MATERIALS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 31:

  	
  DISABILITIES ACTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 32:

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 33:

  	
  OFFER

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 34:

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 35:

  	
  ENTIRE AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 36:

  	
  RIGHT TO TERMINATE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 37:

  	
  RIGHT TO EXTEND

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS/RIDERS
  

  	
  Listed in Article 1.M

  
				



 


ii

















 


OFFICE LEASE


 


THIS OFFICE LEASE
(“Lease”) is made as of the 18th day of February, 2004, by and between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation (“Landlord”),
and LKQ CORPORATION, a Delaware corporation (“Tenant”).


 


WITNESSETH:


 


ARTICLE
1:         BASIC PROVISIONS


 


This Article contains the
basic lease provisions between Landlord and Tenant.


 


	
  A.
  Building:

  	
   

  	
  120 North LaSalle Street, Chicago, Illinois.

  
	
   

  	
   

  	
   

  
	
  B.
  Premises:

  	
   

  	
  Suite 3300 in the Building as outlined or
  cross-hatched on Exhibit A hereto.

  
	
   

  	
   

  	
   

  
	
  C.
  Commencement Date:

  	
   

  	
  August 1, 2004.

  
	
   

  	
   

  	
   

  
	
  D.
  Expiration Date:

  	
   

  	
  July 31, 2014, subject to Article 36.

  
	
   

  	
   

  	
   

  
	
  E.
  Rentable Area:

  	
   

  	
  The rentable area of the Premises shall be deemed
  13,650 square feet, and the rentable area of the Property (as defined in
  Article 32) shall be deemed 381,427 square feet, for purposes of this Lease,
  subject to Article 32.

  
	
   

  	
   

  	
   

  
	
  F.
  Tenant’s Share:

  	
   

  	
  3.579%, subject to Articles 4 and 32.

  
	
   

  	
   

  	
   

  
	
  G.
  Base Rent:

  	
   

  	
  Base Rent shall be paid pursuant to the following
  schedule and as further described in Article 4:

  



 




	
  Period

  	
   

  	
  Annual
  Base Rent

  	
   

  	
  Monthly
  Base Rent

  	
   

  	
  Per/RSF

  	
   

  
	
  8/1/04-7/31/05

  	
   

  	
  $

  	
  177,450.00

  	
   

  	
  $

  	
  14,787.50

  	
   

  	
  $

  	
  13.00

  	
   

  
	
  8/1/05-7/31/06

  	
   

  	
  $

  	
  184,275.00

  	
   

  	
  $

  	
  15,356.25

  	
   

  	
  $

  	
  13.50

  	
   

  
	
  8/1/06-7/31/07

  	
   

  	
  $

  	
  191,100.00

  	
   

  	
  $

  	
  15,925.00

  	
   

  	
  $

  	
  14.00

  	
   

  
	
  8/1/07-7/31/08

  	
   

  	
  $

  	
  197,925.00

  	
   

  	
  $

  	
  16,493.75

  	
   

  	
  $

  	
  14.50

  	
   

  
	
  8/1/08-7/31/09

  	
   

  	
  $

  	
  204,750.00

  	
   

  	
  $

  	
  17,062.50

  	
   

  	
  $

  	
  15.00

  	
   

  
	
  8/1/09-7/31/10

  	
   

  	
  $

  	
  232,050.00

  	
   

  	
  $

  	
  19,337.50

  	
   

  	
  $

  	
  17.00

  	
   

  
	
  8/1/10-7/31/11

  	
   

  	
  $

  	
  238,875.00

  	
   

  	
  $

  	
  19,906.25

  	
   

  	
  $

  	
  17.50

  	
   

  
	
  8/1/11-7/31/12

  	
   

  	
  $

  	
  245,700.00

  	
   

  	
  $

  	
  20,475.00

  	
   

  	
  $

  	
  18.00

  	
   

  
	
  8/1/12-7/31/13

  	
   

  	
  $

  	
  252,525.00

  	
   

  	
  $

  	
  21,043.75

  	
   

  	
  $

  	
  18.50

  	
   

  
	
  8/1/13-7/31/14

  	
   

  	
  $

  	
  259,350.00

  	
   

  	
  $

  	
  21,612.50

  	
   

  	
  $

  	
  19.00

  	
   

  






 


	
  H.
  Additional Rent:

  	
   

  	
  Tenant shall pay Tenant’s Share of Taxes and
  Expenses as further described in Article 4.

  
	
   

  	
   

  	
   

  
	
  I.
  Permitted Use:

  	
   

  	
  Executive and administrative offices, subject to
  Article 7.

  



 

















 


	
  J.
  [intentionally omitted]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  K.
  Broker:

  	
   

  	
  Collectively, CB Richard Ellis and Lincoln Property
  Company, each of which shall be paid by Landlord, subject to Article 26.

  
	
   

  	
   

  	
   

  
	
  L.
  [intentionally omitted]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  M.
  Riders/Exhibits:

  	
   

  	
  This Lease includes and incorporates by this
  reference:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Exhibit A:

  	
  Premises

  
	
   

  	
   

  	
  Exhibit B:

  	
  HVAC Specifications

  
	
   

  	
   

  	
  Exhibit C:

  	
  Janitorial Specifications

  
	
   

  	
   

  	
  Rider One:

  	
  Rules

  
	
   

  	
   

  	
   

  
	
  N.
  Landlord’s Notice Address (subject to Article 25):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Prudential Insurance Company of America

  
	
   

  	
   

  	
  Two Prudential Plaza

  
	
   

  	
   

  	
  180 North Stetson Street

  
	
   

  	
   

  	
  Suite 3275

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Attn:  Elliot
  Faulkner

  
	
   

  	
   

  	
   

  
	
  O.
  Tenant’s Notice Address (subject to Article 25):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  120 North LaSalle Street, Suite 3300

  
	
   

  	
   

  	
  Chicago, Illinois 60602

  
	
   

  	
   

  	
  Attn: 
  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bell Boyd & Lloyd LLC

  
	
   

  	
   

  	
  70 W. Madison Street, Suite 3300

  
	
   

  	
   

  	
  Chicago, Illinois 60602

  
	
   

  	
   

  	
  Attn:  Andrew
  Andreasik

  



 


The foregoing provisions
shall be interpreted and applied in accordance with the other provisions of
this Lease.  The terms of this Article,
and the terms defined in Article 32 and other Articles, shall have the meanings
specified therefor when used as capitalized terms in other provisions of this
Lease or related documentation (except as expressly provided to the contrary therein).


 


ARTICLE
2:         PREMISES AND CONDITION


 


Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord the Premises subject to
the provisions herein contained.  Tenant
has inspected the Premises (and portions of the Property, Systems and Equipment
providing access to or serving the Premises) or has had an opportunity to do
so, and agrees to accept the same “as is” without any agreements,
representations, understandings or obligations on the part of Landlord to
perform any alterations, repairs or improvements, except to the extent
expressly provided in this Lease.


 


2

















 


ARTICLE 3:         TERM
AND COMMENCEMENT


 


A.            Term and
Confirmation.  The
term (“Term”) of this Lease shall commence on the Commencement Date and end on
the Expiration Date, unless sooner terminated as provided herein.


 


B.            [intentionally
omitted]


 


C.            [intentionally
omitted]


 


ARTICLE
4:         BASE RENT AND ADDITIONAL RENT


 


A.            Base Rent.  Tenant shall pay Landlord the monthly Base
Rent set forth in Article 1 in advance on or before the first day of each
calendar month during the Term.


 


B.            Taxes and
Expenses.  Tenant
shall pay Landlord Tenant’s Share of Taxes and Expenses for each full or
partial calendar year during the Term in the manner described below.  The foregoing capitalized terms shall have
the meanings specified therefor in Articles 1 and 32.


 


C.            Payments.  Tenant shall pay such amounts as follows:


 


(i)            Landlord may reasonably estimate in
advance the amounts Tenant shall owe for Taxes and Expenses for any full or
partial calendar year of the Term.  In
such event, Tenant shall pay such estimated amounts, on a monthly basis, on or
before the first day of each calendar month, together with Tenant’s payment of
Base Rent.  Such estimate may be reasonably
adjusted from time to time by Landlord, including adjustments to reflect the
final Tax bills each year.


 


(ii)           Within 120 days after the end of each
calendar year, or as soon thereafter as practicable, Landlord shall provide a
statement (the “Statement”) to Tenant showing: (a) the amount of actual
Taxes and Expenses for such calendar year, (b) any amount paid by Tenant
towards Taxes and Expenses during such calendar year on an estimated basis, and
(c) any revised estimate of Tenant’s obligations for Taxes and Expenses
for the current calendar year.


 


(iii)          If the Statement shows that Tenant’s
estimated payments were less than Tenant’s actual obligations for Taxes and
Expenses for such year, Tenant shall pay the difference within ten (10)
business days after Landlord sends the Statement.


 


(iv)          If the Statement shows an increase in
Tenant’s estimated payments for the current calendar year, Tenant shall:
(a) pay the difference between the new and former estimates for the period
from January 1 of the current calendar year through the month in which the
Statement is sent within ten (10) business days after Landlord sends the
Statement, which amount shall be set forth in said Statement, and
(b) thereafter pay the new estimated amount until Landlord further revises
such estimated amount.


 


(v)           If the Statement shows that Tenant’s
estimated payments exceeded Tenant’s actual obligations for Taxes and Expenses,
Landlord shall credit the difference against payment(s) of Rent next due.  If the Term shall have expired and no
further Rent shall be due, provided that there is no outstanding Rent due and
payable by Tenant, Landlord shall provide a refund of such difference at the
time Landlord sends the Statement.


 


3

















 


(vi)          Landlord reserves the right to
reasonably change, from time to time, the manner or timing of Tenant’s payments
for Taxes and Expenses, provided that in no event shall such change result in a
duplication of payment for any item(s) by Tenant.  In lieu of providing one Statement covering all such items,
Landlord may provide separate statements, at the same or different times,
including separate statements for Taxes after bills are received.


 


D.            Tax Years,
Tax Refunds, Protest Costs, and Expense Adjustments For Prior Years.  Landlord shall include in Taxes each year
hereunder: (i) in general, the amounts which Landlord shall pay or become
obligated to pay in respect of such year (rather than amounts which are
assessed or become a lien during such year), (ii) for personal property
taxes, the amounts paid during such year, and (iii) for Taxes paid in
installments over more than one year, the amounts paid each year, and any
interest thereon.  Notwithstanding the
foregoing, however, Landlord shall each year: (a) credit against Taxes any
refunds received during such year, (b) include in Taxes any additional
amount paid during such year involving an adjustment to Taxes for a prior year,
whether due to error by the taxing authority, supplemental assessment, or other
such reason, (c) include, in either Taxes or Expenses, any reasonable fees
for attorneys, consultants and experts, and other reasonable costs paid during
such year in attempting to protest, appeal or otherwise seek to reduce or
minimize Taxes, whether or not successful, and (d) credit against Expenses
the cost of any item previously included in Expenses, to the extent that
Landlord receives reimbursement from insurance proceeds or a third party during
such year (excluding tenant payments for Taxes and Expenses).


 


E.             Grossing
Up and Tenant’s Share Adjustments.  If the Property is not fully occupied during all or a portion of
any calendar year, Landlord may, in accordance with sound accounting and
management practices, determine the amount of variable Expenses (i.e. those
items which vary according to occupancy levels) that would have been paid had
the Property been fully occupied, and the amount so determined shall be deemed
to have been the amount of such Expenses for such year.  If Landlord is not furnishing any particular
utility or service (the cost of which, if performed by Landlord, would be
included in Expenses) to a tenant during any period, Landlord may for such
period: (a) adjust Expenses to reflect the additional amount that would
reasonably have been incurred during such period had Landlord furnished such
utility or service to such tenant, or (b) exclude the rentable area of
such tenant from the rentable area of the Property in computing Tenant’s Share
of the component of Expenses for such utility or service.  If the Property shall contain non-office
rentable areas during any period, Landlord may exclude such non-office rentable
areas from the rentable area of the Property in computing Tenant’s Share for
such period and, in such an event, Expenses for such non-office rentable areas
shall likewise be excluded as more fully provided in Section 32(c)(1)
below.


 


F.             Prorations.  If the Term commences on a day other than
the first day of a calendar month or ends on a day other than the last day of a
calendar month, the Base Rent and any other amounts payable on a monthly basis
shall be prorated on a per diem basis for such partial calendar months.  If the Base Rent is scheduled to increase
under Article 1 other than on the first day of a calendar month, the amount for
such month shall be prorated on a per diem basis to reflect the number of days
of such month at the then current and increased rates, respectively.  If the Term commences other than on January
1, or ends other than on December 31, Tenant’s obligations to pay amounts
towards Taxes and Expenses for such first or final calendar years shall be
prorated on a per diem basis to reflect the portion of such years included in
the Term.


 


4

















 


G.            Payments
After Lease Term Ends. 
Tenant’s obligations to pay Taxes and Expenses (or any other amounts)
accruing during, or relating to, the period prior to expiration or earlier
termination of this Lease, shall survive such expiration or termination.  Notwithstanding anything contained herein to
the contrary, if Landlord fails to provide Tenant with a Statement for the
calendar year in which this Lease expires, or any prior year, within two (2)
years after such expiration date, then Landlord shall be deemed to have waived
its right to recover any year-end adjustment of Taxes or Expenses for such
final calendar year.


 


H.            Landlord’s
Accounting Practices and Records.  Landlord shall maintain records respecting Taxes and Expenses and
determine the same in accordance with sound accounting and management
practices.  Subject to the other
provisions of this Article, Landlord may from time to time use a full accrual
system of accounting, or a modified cash basis of accounting with appropriate
accrual adjustments to ensure that each year includes substantially the same
major recurring items, provided that in no event shall such change result in
duplication of payment for any item(s) by Tenant.  Tenant, or an independent certified accounting firm retained by
Tenant on an hourly fee basis (and not on a contingency fee basis), shall have
the right to inspect Landlord’s accounting records relative to Expenses and
Taxes during normal business hours at any time within thirty (30) days
following the furnishing to Tenant of the annual Statement.  Unless Tenant shall take written exception
to any item in any such Statement within such sixty (60) days following the
furnishing to Tenant of the annual Statement, such Statement shall be
considered final and binding on Tenant. 
If Tenant shall timely dispute any specific item(s) in an annual
Statement and if such dispute is not resolved between Landlord and Tenant
within thirty (30) days after notice of such dispute from Tenant, then either
party may, during the thirty (30) day period next following expiration of said
initial thirty (30) day period, refer such disputed item(s) to a reputable
independent certified public accountant mutually selected by Landlord and
Tenant for determination (and Landlord and Tenant each agree to act in a
commercially reasonable manner in such mutual selection of a reputable
independent certified public accountant), and the determination of such
accountant shall be final, conclusive and binding upon Landlord and
Tenant.  Tenant agrees to pay all costs
involved in such determination, unless it is determined that Landlord’s
original calculation of the amount of Tenant’s Share of Taxes and Expenses was
overstated by more than five percent (5%), in which event Landlord shall pay
all costs of such audit.  Pending
resolution of any such exceptions, Tenant shall pay Tenant’s Share of Taxes and
Expenses in the amounts shown on such Statement, subject to credit, refund or
additional payment after any such exceptions are resolved.


 


I.              General
Payment Matters.  Base
Rent, Taxes, Expenses, and any other amounts which Tenant is or becomes
obligated to pay Landlord under this Lease or other agreement entered in
connection herewith, are sometimes herein referred to collectively as “Rent,”
and all remedies applicable to the non-payment of rent shall be applicable
thereto.  Rent shall be paid in good
funds and legal tender of the United States of America.  Except as expressly provided in this Lease,
Tenant shall pay Rent without any deduction, recoupment, set-off or
counterclaim, and without relief from any valuation or appraisement laws.  Rent obligations hereunder are independent
covenants.  No delay by Landlord in
providing the Statement (or separate statements) shall be deemed a default by
Landlord or a waiver of Landlord’s right to require payment of Tenant’s
obligations for actual or estimated Taxes or Expenses, provided that the
original Statement of Taxes and Expenses for any calendar year shall be
delivered to Tenant within one (1) year after the end of such calendar year.  In no event shall a decrease in Taxes or
Expenses ever decrease the monthly Base Rent or give rise to a credit against
Base Rent in favor of Tenant.  Landlord
may apply payments received from


 


5

















 


Tenant to any
obligations of Tenant then accrued, without regard to such obligations as may
be designated by Tenant.


 


ARTICLE
5:         QUIET ENJOYMENT


 


Landlord agrees that if
Tenant timely pays the Rent and performs the terms and provisions hereunder,
Tenant shall hold the Premises during the Term, free of lawful claims by any
party acting by or through Landlord, subject to all other terms and provisions
of this Lease.


 


ARTICLE
6:         UTILITIES AND SERVICES


 


A.            Standard
Landlord Utilities and Services.  Landlord shall provide the following utilities and services (the
cost of which shall be included in Expenses, except as provided below):


 


(i)            Heat and air-conditioning to provide
a temperature condition consistent with the specifications set forth on Exhibit
B attached hereto from 8:00 a.m. until 6:00 p.m. Monday through Friday, and
from 8:00 a.m. until 1:00 p.m. on Saturdays, excluding all Holidays.


 


(ii)           Water from city mains for drinking,
lavatory and toilet purposes only, at those points of supply provided for
nonexclusive general use of tenants at the Property, or points of supply in the
Premises installed by or with Landlord’s written consent for such purposes.


 


(iii)          Cleaning and trash removal service in
and about the Premises consistent with the specifications set forth on Exhibit
C attached hereto.


 


(iv)          Passenger elevator service at all
times (subject to changes in the number of elevators in service after hours or
at other times), and freight elevator service (subject to scheduling by
Landlord and such standard charges as Landlord may impose), in common with
Landlord and other parties.  Elevator
service may be automatic.


 


B.            Electricity.  Landlord shall not furnish electricity, but
shall permit Tenant to make direct arrangements to obtain electricity from
Commonwealth Edison Company or another utility approved by Landlord, and shall
permit Landlord’s electric cables, circuits, riser lines, feeders and related
Systems and Equipment to be used for such purpose, but only to the extent that:
(i) all such Systems and Equipment are suitable, and the safe and lawful
capacity thereof is not exceeded, (ii) sufficient capacity remains at all
times for other existing and future tenants, as determined in Landlord’s
reasonable discretion, and (iii) Tenant uses only normal quantities and
types of office equipment and lighting in the Premises typical of average
office use.  Tenant shall make all
arrangements for direct payment for such electricity with such utility.  Tenant shall pay for all electricity
consumed in the Premises when due (including electricity during janitorial or
other service, during any alterations or repairs, and for any special HVAC and
lighting equipment serving the Premises). 
All such electricity costs separately paid by Tenant shall not be included
in Expenses.  Tenant’s connections, and
installation of new cables, circuits, feeders, meters or other equipment, shall
be at Tenant’s sole cost, and shall be subject to Landlord’s prior written
approval and the other provisions of Article 9 respecting Work, and the Rules
respecting access to the utility closets.


 


C.            Additional
Utilities and Services. 
Landlord shall not be responsible for inadequate air-conditioning or
ventilation whenever the use or occupancy of the Premises exceeds the normal
capacity or design loads of, affects the temperature or humidity otherwise


 


6

















 


maintained by, or
otherwise adversely affects the operation of, the Systems and Equipment for the
Property, whether due to items of equipment or machinery generating heat, above
normal concentrations of personnel or equipment, alterations to the Premises
made by or through Tenant without balancing the air or installing supplemental
HVAC equipment, or any other matter not caused by Landlord.  Without limiting the generality of the
foregoing, Landlord shall not be responsible for inadequate air conditioning or
ventilation to the extent that the same occurs because Tenant, without
providing adequate air conditioning and ventilation uses or permits the use of
any item, or concentrated group, of equipment consuming more than 500 watts in
the aggregate at rated capacity per 200 usable square feet.  In any such case, if Tenant does not remedy
such excess use promptly after written notice from Landlord, then Landlord may
elect to balance the air, install, operate, maintain and replace such
supplemental HVAC equipment during the Term, at Tenant’s expense, as an extra
utility or service (or require that Tenant arrange for the same as Work under
Article 9).  Landlord shall seek to
provide such extra utilities or services as Tenant may from time to time
request, if the same are reasonable and feasible for Landlord to provide and do
not involve modifications or additions to the Property or existing Systems and
Equipment, and if Landlord shall receive Tenant’s request within a reasonable
period prior to the time such extra utilities or services are required,
Landlord agreeing that not more than one (1) business day prior notice
shall be required for after-hours HVAC services.  Tenant shall, for any extra utilities or services, pay such
standard charges as Landlord shall from time to time establish, Landlord’s
out-of-pocket costs for architects, engineers, consultants and other parties
relating to such extra utilities or services, and a fee equal to fifteen
percent (15%) of such costs.  All
payments for such extra utilities or services shall be due at the same time as
the installment of Base Rent with which the same are billed, or if billed
separately, shall be due within ten (10) business days after such billing.  Notwithstanding the foregoing to the
contrary, in lieu of charging separately for additional utilities and services,
Landlord may reasonably elect from time to time to expand or modify the amounts
of services and utilities available without separate charge, in which case the
costs thereof shall be included in Expenses.


 


D.            Interruptions
and Changes.  Landlord
shall have no liability for interruptions, variations, shortages, failures,
changes in quality, quantity, character or availability of any utilities or
services caused by repairs, maintenance, replacements, alterations (including
any freon retrofit work), improvements, changes of service, strikes, lockouts,
labor controversies, accidents, inability to obtain services, fuel, steam, water
or supplies, governmental or utility company acts or omissions, requirements,
guidelines or requests, or other causes beyond Landlord’s reasonable control
(or under any circumstances with respect to utilities or services not required
to be provided by Landlord hereunder). 
In any such events after receiving notice, Landlord shall use reasonable
efforts to restore such utilities or services required to be provided hereunder
to reasonable levels.  Except as
expressly set forth below, under no circumstances whatsoever shall any of the
foregoing be deemed an eviction or disturbance of Tenant’s use and possession
of the Premises or any part thereof, serve to abate Rent, or relieve Tenant
from performance of Tenant’s obligations under this Lease.  Landlord in no event shall be liable for
damages by reason of loss of profits, business interruption or other
consequential damages in connection with the foregoing events.  Notwithstanding the foregoing, in the event
any such failure in furnishing any services required to be provided by Landlord
above is caused by the negligence or willful misconduct of Landlord and if such
failure causes the Premises to be untenantable, and as a result thereof Tenant
in fact ceases to use the Premises for a period in excess of five (5) consecutive
days, then commencing on the sixth (6th) consecutive day of such
untenantability and non-use, Base Rent and Tenant’s Share of Taxes and Expenses
payable by Tenant shall be abated until the earliest to occur of (i) the
date such failure or delay


 


7

















 


is remedied,
(ii) the date the Premises are again tenantable or (iii) the date
Tenant resumes use of the Premises.


 


ARTICLE
7:         USE, COMPLIANCE WITH LAWS, AND RULES


 


A.            Use of
Premises.  Tenant
shall use the Premises only for the permitted use identified in Article 1, and
all uses customarily and incidentally related to general office purposes, and
no other purpose whatsoever, subject to the other provisions hereof and of this
Lease.  Subject to Building rules and
regulations for after normal business hours access, Tenant shall be allowed
full access to the Premises at all times, 7 days per week, 24 hours per
day.  Notwithstanding anything to the
contrary contained in this Lease, Tenant shall not use or permit the Premises
to be used as a: (i) political party or social-welfare office,
(ii) medical, dental, psychology or science office or laboratory,
including for treatment, research, testing or counseling,
(iii) multi-party “executive” or “legal” suite type offices,
(iv) data processing, telecommunications or telemarketing center,
(v) school, educational or training facility, (vi) employment,
placement, recruiting or clerical support agency, (vii) computerized
vehicle sales, loan or “finder” service, (viii) governmental or
quasi-governmental office, whether local, state, federal or foreign, including
diplomatic and consulate, (ix) travel agency or reservation center,
(x) radio or television studio or broadcasting or recording facility, or
(xi) retail real estate brokerage, retail stock brokerage, retail bank or
other retail financial institution, loan office, depository, check-cashing or
wire-transferring service.


 


B.            Laws and
Other Requirements. 
Tenant shall not use or permit within the Premises anything that will:
(i) violate the requirements of Landlord’s insurers (provided, however,
that Landlord has delivered to Tenant notice of any specific requirements of
such Landlord’s insurers), the American Insurance Association, or any board of
underwriters, (ii) cause a cancellation of Landlord’s policies, impair the
insurability of the Property, or increase Landlord’s premiums (any such
increase shall be paid by Tenant without such payment being deemed permission
to continue such activity or a waiver of any other remedies of Landlord), or
(iii) violate the requirements of any Lenders, if any (provided, however,
that Landlord has delivered to Tenant notice of any specific requirements of
any such Lenders), the certificates of occupancy issued for the Premises or the
Property, or any other requirements, covenants, conditions or restrictions
affecting the Property at any time. 
Tenant shall not occupy or permit the Premises to be occupied at any
time with concentrations of personnel greater than one person per 175 rentable
square feet.  Tenant shall comply with
all Laws relating to the Premises and Tenant’s use of the Premises and
Property, including Laws governing Hazardous Materials as described in Article
30, and the Disabilities Acts as described in Article 31.  Tenant’s obligations to comply with Laws
shall include, without limitation: (a) obtaining all permits, licenses,
certificates and approvals to conduct its business in the Premises, or any
necessary waivers or variances, without thereby subjecting Landlord, the
Property or other occupants to any costs, requirements, liabilities or
restrictions, (b) any work to or for the Premises (or any systems or
equipment exclusively serving the Premises, including any freon retrofitting
work for such exclusive systems and equipment) required by Laws, and
(c) any work outside the Premises (if Landlord permits such work) required
by Laws based on Tenant’s particular use of, work within, or systems or
equipment exclusively serving, the Premises, whether any such work is deemed structural,
involves a capital expenditure or results in a benefit extending beyond the
Term.  Any work hereunder shall be
deemed “Work” subject to Article 9. 
Notwithstanding any contained herein to the contrary, Landlord
acknowledges and agrees that Landlord, and not Tenant, shall be responsible for
remedying any violations of Laws, including laws governing Hazardous Materials
and the Disabilities Acts, existing in the Property as of the date hereof and


 


8

















 


the costs and
expenses incurred by Landlord in so remedying any such existing violations
shall not be included in Expenses.


 


C.            Rules.  Tenant shall comply with the Rules set forth
in Rider One attached hereto (the “Rules”). 
Landlord shall have the right, by notice to Tenant or by posting at the
Property, to reasonably amend such Rules and supplement the same with other
reasonable Rules relating to the Property, or the promotion of safety, care,
efficiency, cleanliness or good order therein. 
Nothing herein shall be construed to give Tenant or any other Person any
claim, demand or cause of action against Landlord arising out of the violation
of such Rules by any other tenant or visitor of the Property, or out of the
enforcement, modification or waiver of the Rules by Landlord in any particular
instance.  Landlord shall not
discriminate against Tenant in the enforcement of the Rules and, in the event
of any inconsistency between this Lease and the Rules, this Lease shall prevail
and control.


 


ARTICLE
8:         MAINTENANCE AND REPAIRS


 


Except for customary
cleaning and trash removal provided by Landlord under Article 6, and casualty
damage to be repaired by Landlord under Article 11, Tenant shall keep and
maintain (or cause to be kept and maintained) the Premises in good and sanitary
condition, working order and repair, ordinary wear and tear excepted, in
compliance with all applicable Laws to the extent required under Article 7, and
as required under other provisions of this Lease, including the Rules
(including any carpet and other flooring material, paint and wall-coverings,
doors, windows, ceilings, interior surfaces of walls, lighting (including
lamps, bulbs, ballasts and starters), plumbing and other fixtures, alterations,
improvements, systems and equipment in or exclusively serving the Premises
whether installed by Landlord or Tenant). 
In the event that any repairs, maintenance or replacements are required,
Tenant shall promptly notify Landlord and arrange for the same either:
(i) through Landlord for such reasonable charges as Landlord may establish
from time to time, payable within ten (10) business days after billed, or
(ii) at Landlord’s option, by engaging such contractors as Landlord shall
first approve in writing, which approval shall not be unreasonably withheld,
conditioned or delayed to perform such work, all in a first class, workmanlike
manner approved by Landlord in advance in writing and otherwise in compliance
with Article 9 respecting “Work”. 
Tenant shall promptly notify Landlord concerning the necessity for any
repairs or other work hereunder and upon completion thereof.  Tenant shall pay Landlord for any repairs,
maintenance and replacements to areas of the Property outside the Premises,
caused, in whole or in part, as a result of moving any furniture, fixtures, or
other property to or from the Premises, or otherwise by Tenant or its
employees, agents, contractors, or visitors (notwithstanding anything to the
contrary contained in this Lease). 
Except as provided in the preceding sentence, or for damage covered
under Article 11, Landlord shall maintain and repair all structural components
(including the roof and exterior glass) and common areas of the Building and
common Building systems such as the heating, ventilating and air conditioning,
electrical, plumbing and life safety systems (including any such common
Building systems as may be located within the Premises, but not including any
of Tenant’s systems and equipment specifically serving the Premises), in a
manner consistent with other class A office buildings in the downtown Chicago,
Illinois, and otherwise in accordance with all applicable Laws (the cost of
which may be included in Expenses as herein provided).


 


ARTICLE
9:         ALTERATIONS AND LIENS


 


A.            Alterations
and Approval.  Tenant
shall not attach any fixtures, equipment or other items to the Premises, or
paint or make any other additions, changes, alterations or


 


9

















 


improvements to
the Premises or the Systems and Equipment serving the Premises (all such work
referred to collectively herein as the “Work”), without the prior written
consent of Landlord.  Landlord shall not
unreasonably withhold, condition or delay consent, except that Landlord
reserves the right to withhold consent in Landlord’s sole discretion for Work
affecting the structure, safety, efficiency or security of the Property,
Premises, Systems and Equipment, or the appearance of the Premises from any
exterior areas.  In seeking approval,
Tenant shall provide Landlord with notice of whether the Work will involve or
affect, to Tenant’s knowledge, any Hazardous Materials, whether such materials
are customary and usual based on standard industry practices, and all other
details relating thereto.


 


Notwithstanding the foregoing, Tenant may perform Work
in the interior of the Premises without Landlord’s prior written consent,
provided such Work (or the performance thereof) does not (i) affect the
mechanical, electrical, HVAC, life safety, or other Building operating systems,
(ii) affect the structural components of the Building or require
penetration of the floor or ceiling of the Premises, (iii) involve the use
or, to Tenant’s knowledge, disturbance of any Hazardous Material or
(iv) cost more than $20,000.00 in any one instance, and further provided
that Tenant gives Landlord prior written notice of such Work and further
provided that such Work (and the performance thereof) shall otherwise be in
compliance with the provisions of this Article 9 (except for the
requirement of Landlord’s consent).


 


B.            Approval
Conditions.  Landlord
reserves the right to impose reasonable requirements as a condition of such
consent or otherwise in connection with the Work, including requirements that
Tenant: (i) submit for Landlord’s prior written approval the names,
addresses and background information concerning all architects, engineers,
contractors, subcontractors and suppliers Tenant proposes to use, which
approval shall not be unreasonably withheld, conditioned or delayed,
(ii) submit for Landlord’s written approval detailed plans and
specifications prepared by licensed and competent architects and engineers,
which approval shall not be unreasonably withheld, conditioned or delayed,
(iii) obtain and post permits, (iv) if the reasonably estimated cost
of such proposed Work exceeds $20,000.00, provide bonds, additional insurance,
and/or a cash deposit of the total amount required to pay for the Work
(including plans, specifications, engineering and other lienable costs, and
Landlord’s fee described below) for Landlord to release or apply as the Work is
properly completed and lien waivers, affidavits and other documentation
satisfactory to Landlord are submitted, (v) submit architect, engineer,
contractor, subcontractor and supplier affidavits of payment and recordable
lien waivers in compliance with the Laws of the State of Illinois,
(vi) use union labor (if Landlord uses union labor), (vii) permit
Landlord or its representatives to inspect the Work at reasonable times, and
(viii) comply with such other reasonable requirements as Landlord may
impose concerning the manner and times in which such Work shall be done.  Landlord may require that all Work be
performed under Landlord’s supervision, and Landlord reserves the right to
designate the architects, engineers, contractors, subcontractors and suppliers
who will design and perform all Work and supply all materials affecting the
Systems and Equipment or structure of the Property.  If Landlord consents, inspects, supervises, recommends or
designates any architects, engineers, contractors, subcontractors or suppliers,
the same shall not be deemed a warranty as to the adequacy of the design,
workmanship or quality of materials, or compliance of the Work with the plans
and specifications or any Laws.


 


C.            Performance
of Work.  All Work
shall be performed: (i) in a first class, professional and workmanlike
manner, (ii) only with materials that are new, high quality, and free of
material defects, (iii) in accordance, in all material respects, with
plans, specifications, parties and other matters approved or designated by
Landlord in advance in writing, (iv) not to


 


10

















 


adversely affect
the Systems and Equipment or the structure of the Property, (v) diligently
to completion and so as to avoid any disturbance, disruption or inconvenience
to other tenants and the operation of the Property, and (vi) in compliance
with all Laws, the Rules and other provisions of this Lease, and such other
requirements as Landlord may reasonably impose concerning the manner and times
in which such Work shall be done.  Any
floor, wall or ceiling coring work or penetrations or use of noisy or heavy
equipment which may interfere with the conduct of business by other tenants at
the Property shall, at Landlord’s option, be performed at times other than
Landlord’s normal business hours (at Tenant’s sole cost).  Landlord may require that Tenant and its
employees, agents and contractors use the freight elevators, service entrances
or other areas at the Property for purposes of access hereunder, and all access
shall be subject to such identification and sign-in and sign-out procedures and
other requirements as Landlord may impose from time to time.  No asbestos-containing materials shall be
used or incorporated in the Work and no lead-containing surfacing materials,
solder, or other construction materials or fixtures where the presence of lead
might create a condition of exposure shall be used in the Work.  If Tenant fails to perform the Work as
required herein or the materials supplied fail to comply herewith or with the
specifications approved by Landlord, and Tenant fails to cure such failure
within 48 hours after notice by Landlord (except notice shall not be required
in emergencies), Landlord shall have the right to stop the Work until such
failure is cured (which shall not be in limitation of Landlord’s other remedies
and shall not serve to abate the Rent or Tenant’s other obligations under this
Lease).  Upon completion of any Work
requiring Landlord’s consent hereunder, Tenant shall provide Landlord with “as
built” plans, copies of all construction contracts, and proof of payment for
all labor and materials.


 


D.            Liens.  Tenant shall pay all costs for the Work when
due.  Tenant shall keep the Property,
Premises and this Lease free from any mechanic’s, materialman’s, architect’s,
engineer’s or similar liens or encumbrances, and any claims therefor, or stop
or violation notices, in connection with any Work.  Tenant shall remove any such claim, lien or encumbrance, or stop
or violation notices of record, by bond or otherwise within ten (10) business
days after notice by Landlord.  If
Tenant fails to do so, Landlord may pay the amount (or any portion thereof) or
take such other action as Landlord deems necessary to remove such claim, lien
or encumbrance, or stop or violation notices, without being responsible for
investigating the validity thereof.  The
amount so paid and costs incurred by Landlord shall be deemed additional Rent
under this Lease payable upon demand, without limitation as to other remedies
available to Landlord.  Nothing
contained in this Lease shall authorize Tenant to do any act which shall
subject Landlord’s title to, or any Lender’s interest in, the Property or
Premises to any such claims, liens or encumbrances, or stop or violation
notices, whether claimed pursuant to statute or other Law or express or implied
contract.


 


E.             Removal
of Work Upon Termination of Lease.  All Work hereunder shall remain or be removed from the Premises
upon expiration or earlier termination of this Lease; provided, however, that
Landlord shall have the right to require Tenant to remove such Work at Tenant’s
sole cost and expense in accordance with the provisions of Article 23 of
this Lease, which required removal shall be specified by Landlord when Landlord
consents to Tenant’s requested Work; provided, however that Landlord shall not
require Tenant to remove any such Work if it is of a quality and quantity
typically found in a general office use premises, but in any event Landlord may
require Tenant to remove any raised computer floor in the Premises and
telecommunications cabling which is installed by or for the benefit of Tenant
in the Premises.


 


F.             Landlord’s
Fees and Costs. 
Tenant shall pay Landlord a fee for reviewing, scheduling, monitoring,
supervising, and providing access for or in connection with the Work, in an
amount equal to fifteen percent (15%) of the total cost of the Work (including
costs of plans


 


11

















 


and permits
therefor), and Landlord’s reasonable out-of-pocket costs, including any costs
for security, utilities, trash removal, temporary barricades, janitorial,
engineering, architectural or consulting services, and other matters in
connection with the Work, payable within ten (10) business days after
billed.  Notwithstanding the foregoing,
the fifteen percent (15%) fee provided above shall be reduced to two and
one-half percent (2.5%) of the total cost of the Work with respect to any Work
completed within eighteen (18) months after the date hereof.


 


ARTICLE
10:       INSURANCE AND WAIVER OF CLAIMS


 


A.            Required
Insurance.  Tenant
shall maintain at its expense during the Term with respect to the Premises and
Tenant’s use thereof and of the Property:


 


(i)            Worker’s Compensation Insurance in
the amounts required by statute, and Employer Liability Insurance in at least
the following amounts: (a) Bodily Injury by Accident - $500,000 per
accident, (b) Bodily Injury by Disease - $500,000 per employee, and (c) Aggregate
Limit - $1,000,000 per policy year.


 


(ii)           Property Damage Insurance for the
protection of Tenant and Landlord, as their interests may appear, covering any
alterations or improvements in excess of any work provided or paid for by
Landlord under this Lease, Tenant’s personal property, business records,
fixtures and equipment, and other insurable risks in amounts not less than the
full insurable replacement cost of such property and full insurable value of
such other interests of Tenant, with coverage at least as broad as the most
recent editions published by Insurance Services Office, Inc. or any successor
organization (“ISO”), of: (a) Building and Personal Property Coverage Form
(CP0010), (b) Business Income Coverage Form (CP0030), covering at least
one year of anticipated income, (c) Boiler and Machinery Coverage Form
(BM0025), (d) Causes of Special Loss Form (CP1030), and (e) Sprinkler
Leakage - Earthquake Extension (CP1039).


 


(iii)          Commercial General Liability Insurance
(“CGL”) at least as broad as the most recent ISO edition of Commercial General
Liability Coverage Form (CG0001) with limits of at least the following amounts:
(a) Death or Bodily Injury - $2,000,000, (b) Property Damage or
Destruction (including loss of use thereof) - $1,000,000, (c) Products/Completed
Operations - $1,000,000, (d) Personal or Advertising injury - $1,000,000,
(e) Each Occurrence Limit - $2,000,000, and (f) General Aggregate
Limit - $3,000,000 per policy year. 
Such policy shall include endorsements: (1) for contractual
liability covering Tenant’s indemnity obligations under this Lease, and
(2) adding Landlord, and Landlord’s agents, representatives or advisors,
including, but not limited to, Lincoln Property Company, the management company
for the Property, and other parties designated by Landlord, as Additional
Insureds, on a form at least as broad as the most recent edition of Additional
Insured - Manager or Lessor of Premises Endorsement Form (CG2011) published by
ISO.  Tenant shall also maintain
umbrella excess liability insurance on a following form basis in excess of the
required commercial general liability insurance with limits not less than Five
Million Dollars ($5,000,000) per occurrence and aggregate.  Notwithstanding anything contained herein to
the contrary, the foregoing required limits of Tenant’s CGL policy may be
provided through a combination of primary and excess coverages so long as the
coverage afforded Landlord shall not be reduced or otherwise adversely
affected.


 


(iv)          Certificates, Subrogation and Other Matters.  Tenant shall provide Landlord with
certificates evidencing the coverage required hereunder prior to the
Commencement Date, or Tenant’s entry to the Premises for construction of
improvements or any other purpose (whichever first occurs).  Such certificates shall: (i) be on
ACORD Form 27 or such other form


 


12

















 


reasonably
approved or required by Landlord, (ii) state that such insurance coverage
may not be changed, canceled or non-renewed without at least ten (10) business
days’ prior written notice to Landlord, and (iii) include, as attachments,
originals of the Additional Insured endorsements to Tenant’s CGL policy
required above.  Tenant shall provide
renewal certificates to Landlord at least ten (10) business days prior to
expiration of such policies.  Except as
expressly provided to the contrary herein, coverage hereunder shall apply to
events occurring during the policy year regardless of when a claim is made.  Landlord may periodically (but not more than
once in any 24 consecutive month period) require that Tenant reasonably
increase or expand the aforementioned coverage, if and to the extent such
increases or expansions are consistent with insurance coverage required by
prudent owners of similar class office buildings in downtown, Chicago,
Illinois.  Except as provided to the
contrary herein, any insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance.  If Tenant obtains insurance under “blanket policies,” Tenant
shall obtain an endorsement providing that the insurance limits required
hereunder are not subject to reduction or impairment by claims or losses at
other locations.  Tenant’s insurance
policies shall be primary to all policies of Landlord and any other Additional
Insureds (whose policies shall be deemed excess and non-contributory).  All insurance required hereunder shall be
provided by responsible insurers licensed in the State of Illinois, and shall
have a general policy holder’s rating of at least A and a financial rating of
at least X in the then current edition of Best’s Insurance Reports.  The parties mutually hereby waive all rights
and claims against each other for all losses covered by their respective
insurance policies, and waive all rights of subrogation of their respective
insurers.  The parties agree that their
respective insurance policies are now, or shall be, endorsed such that said
waiver of subrogation shall not affect the right of the insured to recover
thereunder.  Landlord disclaims any
representation as to whether the foregoing coverages will be adequate to
protect Tenant.


 


(v)           Waiver of Claims.  Except for claims arising from Landlord’s intentional or
negligent acts which are not covered or required to be covered by Tenant’s insurance
hereunder, Tenant waives all claims against Landlord for injury or death to
persons, damage to property or to any other interest of Tenant sustained by
Tenant or any party claiming by or through Tenant resulting from: (i) any
occurrence in or upon the Premises, (ii) leaking of roofs, bursting,
stoppage or leaking of water, gas, sewer or steam pipes or equipment, including
sprinklers, (iii) wind, rain, snow, ice, flooding (including flooding of
basements and other subsurface areas), freezing, fire, explosion, earthquake,
excessive heat or cold, dampness, fire or other casualty, (iv) the
Property, Premises, Systems and Equipment being defective, out of repair, or
failing, and (v) vandalism, malicious mischief, theft, misappropriation or
other acts or omissions of any parties including Tenant’s employees, other
tenants, and their respective agents, employees, invitees and contractors (and
Tenant shall give Landlord immediate notice of any such occurrences).  To the extent that Tenant is required to or
does carry insurance hereunder, Tenant agrees that Tenant’s property loss risks
shall be borne by such insurance, and Tenant agrees to seek recovery only from
its insurance carriers in the event of such losses; for purposes hereof, any
deductible amount shall be treated as though it were recoverable under such
policies.  This provision is in addition
to, and not in limitation of, other provisions of this Lease limiting
Landlord’s liability.  To the extent
that Landlord is required to or does carry insurance hereunder, Landlord agrees
that Landlord’s property loss risk shall be borne by such insurance, and
Landlord agrees to seek recovery only from its insurance carriers in the event
of such losses; for purposes hereof, any deductible amount shall be treated as
though it were recoverable under such policies (which deductible amount may be
included in Expenses as hereinafter provided).


 


13

















 


B.            Landlord’s
Insurance.  Landlord
agrees to purchase and keep in force and effect commercial general liability
insurance in an amount not less than Five Million Dollars ($5,000,000.00) and
full replacement cost (excluding foundations and footings) insurance on the
Building improvements (not including, however, any tenant improvements,
alterations or additions) against fire or other casualty, including but not
limited to vandalism and malicious mischief, perils covered by extended
coverage, theft, sprinkler leakage, water damage (however caused), explosion,
malfunction or failure of heating and cooling or other apparatus.


 


ARTICLE
11:       CASUALTY DAMAGE


 


A.            Restoration.  Tenant shall promptly notify Landlord of any
damage to the Premises by fire or other casualty.  If the Premises or any common areas of the Property providing
access thereto shall be damaged by fire or other casualty, Landlord shall use
available insurance proceeds to restore the same.  Such restoration shall be to substantially the same condition
prior to the casualty, except for modifications required by zoning and building
codes and other Laws or by any Lender, any other modifications to the common
areas deemed desirable by Landlord (provided access to the Premises is not
materially impaired), and except that Landlord shall not be required to repair
or replace any of Tenant’s furniture, furnishings, fixtures or equipment, or
any alterations or improvements in excess of any work provided by Landlord
under this Lease or present in the Premises as of the date of this Lease.  Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant’s
business resulting in any way from such damage or the repair thereof.  Promptly following completion of Landlord’s
restoration work, Tenant shall repair and replace Tenant’s furniture, furnishings,
fixtures, equipment, and any alterations or improvements made by Tenant in
excess of those provided by Landlord, subject to and in compliance with the
other provisions of this Lease.


 


B.            Abatement
of Rent.  Rent for the
Premises, or portion thereof rendered unusable for the conduct of Tenant’s
business as a result of such casualty, shall abate from the date of the
casualty through the date that Landlord substantially completes Landlord’s
repair obligations hereunder (or the date that Landlord would have
substantially completed such repairs, but for delays by Tenant or any other
occupant of the Premises, or any of their agents, employees, invitees,
Transferees and contractors), provided such abatement: (i) shall apply
only to the extent the Premises are untenantable for the purposes permitted
under this Lease and not used by Tenant as a result thereof, based
proportionately on the square footage of the Premises so affected and not used,
and (ii) shall not apply if Tenant or any other occupant of the Premises,
or any of their agents, employees, invitees, Transferees or contractors caused
the damage.


 


C.            Termination
of Lease. 
Notwithstanding the foregoing to the contrary, in lieu of performing the
restoration work, Landlord may elect to terminate this Lease by notifying
Tenant in writing of such termination within ninety (90) days after the date of
damage (such termination notice to include a termination date providing at
least thirty (30) days for Tenant to vacate the Premises), if the Property
shall be damaged by fire or other casualty or cause such that: (a) repairs
to the Premises and access thereto cannot reasonably be completed within 120
days after the casualty without the payment of overtime or other premiums,
(b) more than twenty-five percent (25%) of the Premises is affected by the
damage and fewer than twelve (12) months remain in the Term, (c) any
Lender shall require that the insurance proceeds or any portion thereof be used
to retire the Mortgage debt (or shall terminate the ground lease, as


 


14

















 


the case may be),
or the damage is not fully covered, except for deductible amounts, by
Landlord’s insurance policies, or (d) the cost of the repairs,
alterations, restoration or improvement work would exceed twenty-five percent
(25%) of the replacement value of the Building (whether or not the Premises are
affected by the damage).  Tenant agrees
that the abatement of Rent provided herein shall be Tenant’s sole recourse in
the event of such damage, and waives any other rights Tenant may have under any
applicable Law to perform repairs or terminate the Lease by reason of damage to
the Premises or Property.


 


Notwithstanding anything
to the contrary contained herein, in the event Landlord’s restoration and repair
of the Premises is not completed within 180 days after the date of the
casualty, for any reason other than force majeure delays as more fully
described under Section 34.O below (provided, however, that such force majeure
delay shall not exceed six (6) months in the aggregate), Tenant shall have the
right to terminate this Lease on written notice given to Landlord prior to
substantial completion of such restoration and repair by Landlord.


 


ARTICLE
12:       CONDEMNATION


 


If at least ten percent
(10%) of the rentable area of the Premises shall be taken by power of eminent
domain or condemned by a competent authority or by conveyance in lieu thereof
for public or quasi-public use (“Condemnation”), including any temporary taking
for a period of one year or longer, this Lease shall terminate on the date
possession for such use is so taken. 
If: (i) less than ten percent (10%) of the Premises is taken, but
the taking includes or affects a material portion of the Building or Property,
or the economical operation thereof, or (ii) Landlord reasonably estimates
that the period for restoration will exceed 120 days after the effective date
of such taking, then in either such event, Landlord may elect to terminate this
Lease upon at least thirty (30) days’ prior notice to Tenant.  The parties further agree that: (a) if
this Lease is terminated, all Rent shall be apportioned as of the date of such
termination or the date of such taking, whichever shall first occur,
(b) if the taking is temporary, Rent shall not be abated for the period of
the taking, but Tenant may seek a condemnation award therefor (and the Term
shall not be extended thereby), and (c) if this Lease is not terminated
but any part of the Premises is permanently taken, the Rent shall be
proportionately abated based on the square footage of the Premises so taken and
Landlord shall, as soon as reasonably possible after the effective date of the
taking, restore the remaining portion of the Premises to a complete unit.  Notwithstanding anything to the contrary
contained in this Lease, if such restoration is not, for any reason other than
force majeure delays as more fully described under Section 34.O below
(provided, however, that such force majeure delay shall not exceed six (6)
months in the aggregate), completed within 180 days after the effective date of
the taking, Tenant shall have the right to terminate this Lease on written
notice given to Landlord prior to substantial completion of such
restoration.  Landlord shall be entitled
to receive the entire award or payment in connection with such Condemnation and
Tenant hereby assigns to Landlord any interest therein for the value of
Tenant’s unexpired leasehold estate and waives any right to participate
therein, except that Tenant shall have the right to file any separate claim
available to Tenant for a temporary taking of the leasehold as described above,
and for moving expenses and any taking of Tenant’s personal property, provided
such award is separately payable to Tenant.


 


ARTICLE
13:       ASSIGNMENT AND SUBLETTING


 


A.            Transfers.  Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld as
further described below: (i) assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer, this Lease


 


15

















 


or any interest
hereunder, by operation of Law or otherwise, (ii) sublet the Premises or
any part thereof, or (iii) permit the use of the Premises by any Persons
other than Tenant and its employees (all of the foregoing are hereinafter
sometimes referred to collectively as “Transfers” and any Person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
“Transferee”).  If Tenant shall desire
Landlord’s consent to any Transfer, Tenant shall notify Landlord in writing,
which notice shall include: (a) the proposed effective date (which shall
not be less than thirty (30) nor more than 180 days after Tenant’s notice),
(b) the portion of the Premises to be Transferred (herein called the
“Subject Space”), (c) the terms of the proposed Transfer and the
consideration therefor, the name, address and background information concerning
the proposed Transferee, and a true and complete copy of all proposed Transfer
documentation, and (d) financial statements (balance sheets and
income/expense statements for the current and prior three (3) years or, if the
proposed Transferee has not be in existence for at least three (3) years, for
such shorter period of time as such proposed Transferee has been in existence)
of the proposed Transferee, in form and detail reasonably satisfactory to
Landlord, certified by an officer, partner or owner of the Transferee, and any
other information reasonably requested by Landlord to enable Landlord to
determine the financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferee’s business and proposed use of
the Subject Space, and such other information as Landlord may reasonably
require.  Any Transfer made without
complying with this Article shall at Landlord’s option be null, void and of no
effect, or shall constitute a Default under this Lease.  Whether or not Landlord shall grant consent,
Tenant shall pay $1,000 towards Landlord’s review and processing expenses
simultaneous with Tenant’s submission of the request for Landlord’s consent;
provided, however, that if Tenant or the proposed Transferee requests any
changes to this Lease or Landlord’s standard form of consent in connection with
the proposed Transfer, and if Landlord’s reasonable costs and expenses
(including reasonable attorneys’ fees) exceed $1,000.00, Tenant shall reimburse
Landlord for such excess costs and expenses within ten (10) business days after
written request by Landlord.


 


B.            Approval.  Landlord will not unreasonably withhold,
condition or delay its consent to any proposed Transfer of the Subject Space to
the Transferee on the terms specified in Tenant’s notice.  The parties hereby agree that it shall be
reasonable under this Lease and under any applicable Law for Landlord to
withhold consent to any proposed Transfer where one or more of the following
applies (without limitation as to other reasonable grounds for withholding
consent): (i) the Transferee is of a character or reputation or engaged in
a business which is not consistent with the quality or nature of the Property
or other tenants of the Property, or would be a significantly less prestigious
occupant of the Property than Tenant, (ii) the Transferee intends to use the
Subject Space for purposes which are not permitted under this Lease,
(iii) the Subject Space is not regular in shape with appropriate means of
ingress and egress suitable for normal renting purposes, would result in more
than a reasonable number of occupants, or would require increased services by
Landlord, (iv) the Transferee is either a government (or agency or
instrumentality thereof), (v) the proposed Transferee or any affiliate
thereof is an occupant of the Property or has negotiated to lease space in the
Property from Landlord at any time during the prior three (3) months,
(vi) the proposed Transferee is not a responsible party with a reasonable
financial condition in relation to the obligations to be assumed in connection
with the Transfer, (vii) the Transfer involves a partial or collateral
assignment, or a mortgage, pledge, hypothecation, or other encumbrance or lien
on this Lease, or a Transfer by operation of Law, (viii) the proposed
Transfer involves conversion, merger or consolidation of Tenant into a limited
liability company or limited liability partnership which would have the legal
effect of releasing Tenant from any obligations under this Lease, (ix) the


 


16

















 


proposed Transfer
would cause Landlord to be in violation of any Laws or any other lease,
Mortgage or agreement to which Landlord is a party, would give a tenant of the
Property a right to cancel its lease, or would create material adverse tax
consequences for Landlord, (x) Tenant has committed and failed to cure a
Default or (xi) the proposed Transfer would cause a violation of the ERISA
representation set forth in Section 34.M below. If Tenant disagrees with
Landlord’s decision to deny approval, Tenant’s sole remedy shall be to seek
injunctive relief, unless, however, it is finally determined by a court of
competition jurisdiction that Landlord willfully and maliciously withheld
approval, in which event Tenant shall be entitled to damages.


 


C.            Transfer
Premiums.  If Landlord
consents to a Transfer, and as a condition thereto which the parties hereby
agree is reasonable, Tenant shall pay Landlord fifty percent (50%) of any
Transfer Premium derived by Tenant from such Transfer.  “Transfer Premium” shall mean, for a lease
assignment, all consideration paid or payable therefor.  “Transfer Premium” shall mean, for a
sublease, all rent, additional rent or other consideration paid by such
Transferee in excess of the Rent payable by Tenant under this Lease (on a monthly
basis during the Term, and on a per rentable square foot basis, if less than
all of the Premises is transferred), less the reasonable costs incurred by
Tenant in connection with such Transfer, including, without limitation,
marketing expenses, brokerage commissions, attorneys’ fees and the costs of any
improvements and alterations to the Premises in connection with such
Transfer.  “Transfer Premium” shall also
include so-called “key money,” or other bonus amount paid by Transferee to
Tenant, and any payment in excess of fair market value for services rendered by
Tenant to Transferee or in excess of Tenant’s depreciated tax basis for assets,
fixtures, inventory, equipment or furniture transferred by Tenant to
Transferee.  If part of the
consideration for such Transfer shall be payable other than in cash, Landlord’s
share of such non-cash consideration shall be in such form as is reasonably
satisfactory to Landlord.  The
percentage of the Transfer Premium due Landlord hereunder shall be paid within
ten (10) business days after Tenant receives any Transfer Premium from the
Transferee.


 


D.            Recapture.  Notwithstanding anything to the contrary
contained in this Article, Landlord shall have the option, by giving notice to
Tenant within thirty (30) days after receipt of Tenant’s notice of any proposed
Transfer, to approve or reject the proposed Transfer in accordance with the
requirements of this Lease, or to recapture the Subject Space.  Any recapture notice shall cancel and
terminate this Lease with respect to the Subject Space as of the date stated in
Tenant’s notice as the effective date of the proposed Transfer (or at
Landlord’s option, shall cause the Transfer to be made to Landlord or its agent
or nominee, in which case the parties shall execute reasonable Transfer
documentation promptly thereafter). 
Notwithstanding the foregoing, if Landlord shall deliver a recapture
notice to Tenant, Tenant shall then have the right, which right must be
exercised by written notice given to Landlord within five (5) business days
after Tenant’s receipt of the Recapture Notice, to withdraw its Transfer
notice, in which event Landlord’s Recapture Notice shall be null and void,
Tenant shall not enter into the proposed Transfer and this Lease shall remain
in full force and effect.  If this Lease
shall be canceled with respect to less than the entire Premises, the Rent
herein shall be prorated on the basis of the number of rentable square feet
retained by Tenant in proportion to the number of rentable square feet
contained in the Premises, this Lease as so amended shall continue thereafter
in full force and effect, and upon request of either party the parties shall
execute written confirmation of the same. 
Tenant shall surrender and vacate the Subject Space when required
hereunder in accordance with Article 23 and any failure to do so shall be
subject to Article 24.


 


E.             Terms of
Consent.  If Landlord
consents to a Transfer: (i) the terms and conditions of this Lease,
including Tenant’s liability for the Subject Space, shall in no way be


 


17

















 


deemed to have
been waived or modified, (ii) such consent shall not be deemed consent to
any further Transfer by either Tenant or a Transferee, (iii) no
Transferee, other than an Affiliate, shall succeed to any rights provided in
this Lease or any amendment hereto to extend the Term of this Lease, expand the
Premises, or lease other space, any such rights being deemed personal to the
initial Tenant, (iv) Tenant shall deliver to Landlord promptly after
execution, an original executed copy of all documentation pertaining to the
Transfer substantially in the form previously submitted to and approved by
Landlord under Section 13.A(c) above, and (v) Tenant shall furnish a
complete statement, certified by an independent certified public accountant, or
Tenant’s chief financial officer, setting forth in detail the computation of
any Transfer Premium that Tenant has derived and shall derive from such
Transfer.  Landlord or its authorized
representatives shall have the right at all reasonable times to audit the
books, records and papers of Tenant and any Transferee relating to any
Transfer.  If the Transfer Premium
respecting any Transfer shall be found understated, Tenant shall within thirty
(30) days after demand pay the deficiency, and if understated by more than five
percent (5%) Tenant shall pay Landlord’s costs of such audit.  Any sublease hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any sublease, Landlord shall have the right to:
(a) deem such sublease as merged and canceled and repossess the Subject
Space by any lawful means, or (b) deem such termination as an assignment
of such sublease to Landlord and not as a merger, and require that such subtenant
attorn to and recognize Landlord as its landlord under any such sublease.  If Tenant shall commit a Default under this
Lease, so long as Default remains uncured, Landlord is hereby irrevocably
authorized, as Tenant’s agent, to direct any Transferee to make all payments
under or in connection with the Transfer directly to Landlord (which Landlord
shall apply towards Tenant’s obligations under this Lease).


 


F.             Certain
Transfers.  For
purposes of this Lease, the term “Transfer” shall also include, and all of the
foregoing provisions shall apply to: (i) the conversion, merger or
consolidation of Tenant into a limited liability company or limited liability
partnership, (ii) if Tenant is a partnership or limited liability company,
the withdrawal or change, voluntary, involuntary or by operation of law, of a
majority of the partners or members, or a transfer of a majority of partnership
or membership interests, within a twelve month period, or the dissolution of
the partnership or company, and (iii) if Tenant is a closely held
corporation (i.e., whose stock is not publicly held and not traded through an
exchange or over the counter), the dissolution, merger, consolidation or other
reorganization of Tenant, or within a twelve month period: (a) the sale or
other transfer of more than an aggregate of 50% of the voting shares of Tenant
(other than to immediate family members by reason of gift or death) or
(b) the sale, mortgage, hypothecation or pledge of more than an aggregate
of 50% of Tenant’s net assets.


 


G.            Assignment
or Sublet to Affiliate. 
Notwithstanding anything to the contrary in this Article 13,
Landlord’s consent shall not be required for an assignment or sublet to an
Affiliate (as hereinafter defined), as long as (i) with respect to a
Transfer to an Affiliate defined under clauses (d) or (e) below, Tenant
provides to Landlord evidence, in form and substance satisfactory to Landlord,
that such Affiliate has a creditworthiness sufficient, in Landlord’s reasonable
judgement, to adequately assure future performance of all of Tenant’s
obligations under this Lease, including, without limitation, the timely payment
of Rent, (ii) Tenant is not in default under this Lease, (iii) Tenant
gives reasonable advance notice to Landlord of the proposed assignment or sublet
and (iv) such assignment or sublet is not a subterfuge by Tenant to avoid
its obligations under this Lease.  No
such Transfer to an Affiliate, however, shall release Tenant from any liability
or obligation under this Lease.  As used
herein, “Affiliate” shall mean any entity (a) which owns and controls
Tenant; (b) is owned and controlled by


 


18

















 


Tenant;
(c) is owned and controlled by an entity described in (a); (d) with
which Tenant may merge or consolidate; or (e) which acquires all or
substantially all of the capital stock or assets of Tenant.  Landlord acknowledges that as of the date
hereof Emerald Ventures, Inc., and Corporate Development Outsourcing, Inc.,
existing occupants of the Premises, are Affiliates of Tenant and, accordingly,
a sublease to such Affiliates does not require Landlord’s consent hereunder.


 


ARTICLE
14:       PERSONAL PROPERTY, RENT AND OTHER TAXES


 


Tenant shall pay prior to
delinquency all taxes, charges or other governmental impositions, if any, assessed
against or levied upon all fixtures, furnishings, personal property, systems
and equipment located in or exclusively serving the Premises, and any Work to
the Premises under Article 9 or other provisions of this Lease or related
documentation.  Whenever possible,
Tenant shall cause all such items to be assessed and billed separately from the
other property of Landlord.  In the
event any such items shall be assessed and billed with the other property of
Landlord, Tenant shall pay Landlord its share of such taxes, charges or other
governmental impositions within ten (10) business days after Landlord delivers
a statement and a copy of the assessment or other documentation showing the
amount of impositions applicable to Tenant’s property.


 


ARTICLE
15:       LANDLORD’S REMEDIES


 


A.            Default.  The occurrence of any one or more of the
following events shall constitute a “Default” by Tenant and shall give rise to
Landlord’s remedies set forth in Paragraph B below: (i) failure to make
when due any payment of Rent, unless such failure is cured within five
(5) days after notice (which notice may be in the form of a Landlord
statutory five (5) day notice); (ii) failure to observe or perform any
term or condition of this Lease other than the payment of Rent (or the other
matters expressly described herein), unless such failure is cured within any
period of time following notice expressly provided with respect thereto in
other Articles hereof, or otherwise within a reasonable time, but in no event
more than thirty (30) days following notice (provided, if the nature of
Tenant’s failure is such that more time is reasonably required in order to
cure, Tenant shall not be in Default if Tenant commences to cure within such
period, diligently seeks and keeps Landlord reasonably advised of efforts to
cure such failure to completion); (iii) failure to promptly cure upon
notice thereof any condition which is hazardous, materially interferes with
another Tenant or the operation or leasing of the Property, or may cause the
imposition of a fine, penalty or other remedy on Landlord or its agents or
affiliates, (iv) violating Article 13 respecting Transfers, or
(v) (a) making by Tenant of any general assignment for the benefit of
creditors, (b) filing by or for reorganization or arrangement under any
Law relating to bankruptcy or insolvency (unless, in the case of a petition
filed against Tenant, the same is dismissed within forty-five (45) days),
(c) appointment of a trustee or receiver to take possession of
substantially all of Tenant’s assets located in the Premises or of Tenant’s
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days, (d) attachment, execution or other judicial seizure of
substantially all of Tenant’s assets located in the Premises or of Tenant’s
interest in this Lease, (e) Tenant’s or any Guarantor’s convening of a
meeting of its creditors or any class thereof for the purpose of effecting a
moratorium upon or composition of its debts, (f) Tenant’s insolvency or
admission of an inability to pay debts as they mature, or (g) other than
with respect to the Sublease (as defined in as is more fully provided under
Section 34.N below), a violation by Tenant or any affiliate of Tenant under any
other lease or agreement with Landlord which is not cured within


 


19

















 


the time permitted
for cure thereunder.  The notice and
cure periods provided herein are in lieu of, and not in addition to, any notice
and cure periods provided by Law.


 


B.            Remedies.  If a Default occurs, Landlord shall have the
rights and remedies hereinafter set forth to the extent permitted by Law, which
shall be distinct, separate and cumulative with and in addition to any other
right or remedy allowed under any Law or other provision of this Lease:


 


(1)           Landlord may terminate this Lease and
Tenant’s right of possession, reenter and repossess the Premises by detainer
suit, summary proceedings or other lawful means, and recover from Tenant:
(i) any unpaid Rent as of the termination date, (ii) the amount by
which: (a) the present value of any unpaid Rent which would have accrued
after the termination date during the balance of the Term exceeds (b) the
present value of the reasonable rental value of the Premises under a lease substantially
similar to this Lease, taking into account among other things the condition of
the Premises, market conditions and the period of time the Premises may
reasonably remain vacant before Landlord is able to re-lease the same to a
suitable replacement tenant, and Costs of Reletting (as defined in Paragraph H
below) that Landlord may incur in order to enter such replacement lease,
(iii) any other amounts necessary to compensate Landlord for all damages
caused by Tenant’s failure to perform its obligations under this Lease.  For purposes of computing the amount of Rent
herein that would have accrued after the termination date, Tenant’s obligations
for Taxes and Expenses shall be projected based upon the average rate of
increase in such items from the Commencement Date through the termination date
(or if such period shall be less than three years, then based on Landlord’s
reasonable estimates).  The amounts
computed in accordance with the foregoing subclauses (a) and (b) shall
both be discounted in accordance with accepted financial practice at the rate
of five percent (5%) per annum to the then present value.


 


(2)           Landlord may terminate Tenant’s right
of possession, reenter and repossess the Premises by detainer suit, summary
proceedings or other lawful means, without terminating this Lease, and recover
from Tenant: (i) any unpaid Rent as of the date possession is terminated,
(ii) any unpaid Rent which thereafter accrues during the Term from the
date possession is terminated through the time of judgment (or which may have accrued
from the time of any earlier judgment obtained by Landlord), less any
consideration received from replacement tenants as further described and
applied pursuant to Paragraph H below, and (iii) any other amounts
necessary to compensate Landlord for all damages caused by Tenant’s failure to
perform its obligations under this Lease, including all Costs of Reletting (as
defined in Paragraph H below). Tenant shall pay any such amounts to Landlord as
the same accrue or after the same have accrued from time to time upon
demand.  At any time after terminating
Tenant’s right to possession as provided herein, Landlord may terminate this
Lease as provided in clause (1) above by notice to Tenant, and Landlord may
pursue such other remedies as may be available to Landlord under this Lease or
applicable Law.


 


C.            Mitigation
of Damages.  If
Landlord terminates this Lease or Tenant’s right to possession, Landlord shall
mitigate Landlord’s damages to the extent required by applicable Law, subject
to the following provisions.  If
Landlord is required to mitigate damages: (i) Landlord shall be required
only to use reasonable efforts to mitigate, which shall not exceed such efforts
as Landlord generally uses to lease other space at the Property,
(ii) Landlord will not be deemed to have failed to mitigate if Landlord or
its affiliates lease any other portions of the Property or other projects owned
by Landlord or its affiliates in the same geographic area, before reletting all
or any portion of the Premises, and (iii) any failure to mitigate as
described


 


20

















 


herein with
respect to any period of time shall only reduce the Rent and other amounts to
which Landlord is entitled hereunder by the reasonable rental value of the
Premises during such period, taking into account the factors described in
clause B(1) above.  In recognition that
the value of the Property depends on the rental rates and terms of leases
therein, Landlord’s rejection of a prospective replacement tenant based on an
offer of rentals below Landlord’s published rates for new leases of comparable
space at the Property at the time in question, or at Landlord’s option, below
the rates provided in this Lease, or containing terms less favorable than those
contained herein, shall not give rise to a claim by Tenant that Landlord failed
to mitigate Landlord’s damages.


 


D.            Reletting.  If this Lease or Tenant’s right to
possession is terminated, or Tenant abandons the Premises, Landlord may:
(i) in accordance with all applicable Laws, enter and secure the Premises,
change the locks, install barricades, remove any improvements, fixtures or
other property of Tenant therein, perform any decorating, remodeling, repairs,
alterations, improvements or additions and take such other actions as Landlord
shall determine in Landlord’s sole discretion to prevent damage or
deterioration to the Premises or prepare the same for reletting, and
(ii) relet all or any portion of the Premises (separately or as part of a
larger space), for any rent, use or period of time (which may extend beyond the
Term hereof), and upon any other terms as Landlord shall determine in
Landlord’s sole discretion. The consideration received from such reletting
shall be applied pursuant to the terms of Paragraph H below, and if such
consideration, as so applied, is not sufficient to cover all Rent and damages
to which Landlord may be entitled hereunder, Tenant shall pay any deficiency to
Landlord as the same accrues or after the same has accrued from time to time
upon demand, subject to the other provisions hereof.


 


E.             Specific
Performance and Collection of Rent.  Landlord shall at all times have the right without prior demand
or notice except as required by applicable Law to: (i) seek any
declaratory, injunctive or other equitable relief, and specifically enforce
this Lease or restrain or enjoin a violation of any provision hereof, and
Tenant hereby waives any right to require that Landlord post a bond or other
security in connection therewith, and (ii) sue for and collect any unpaid
Rent which has accrued.


 


F.             Late
Charges, Interest and Returned Checks.  Tenant shall pay, as additional Rent, a
service charge of Six Hundred Dollars ($600.00) or six percent (6%) of the
delinquent amount, whichever is greater, if any portion of Rent is not received
when due.  Notwithstanding the
foregoing, Landlord shall not charge Tenant such service charge if Tenant cures
such failure to pay any sum due within five (5) days after the due date
thereof; provided, however, that Tenant shall only have such cure period one
(1) time during any twelve (12) consecutive calendar month period.  In addition, any Rent not paid when due
shall accrue interest from the due date at the Default Rate until payment is
received by Landlord.  Such service
charges and interest payments shall not be deemed consent by Landlord to late
payments, nor a waiver of Landlord’s right to insist upon timely payments at
any time, nor a waiver of any remedies to which Landlord is entitled as a
result of the late payment of Rent.  If
Landlord receives two (2) or more checks from Tenant which are returned by
Tenant’s bank for insufficient funds, Landlord may require that all checks
thereafter be bank certified or cashier’s checks (without limiting Landlord’s
other remedies).  All bank service
charges resulting from any bad checks shall be borne by Tenant.


 


G.            Landlord’s
Cure of Tenant Defaults. 
If Tenant is in Default Landlord shall have the right (but not the
duty), to perform such obligation on behalf and for the account of Tenant.  In such event, Tenant shall reimburse
Landlord upon demand, as additional Rent, for


 


21

















 


all expenses
incurred by Landlord in performing such obligation together with an amount
equal to fifteen percent (15%) thereof for Landlord’s overhead, and interest
thereon at the Default Rate from the date such expenses were incurred.  Landlord’s performance of Tenant’s
obligations hereunder shall not be deemed a waiver or release of Tenant
therefrom.


 


H.            Other
Matters.  No re-entry
or repossession, repairs, changes, alterations and additions, reletting, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant’s right to possession, nor shall the
same operate to release Tenant in whole or in part from any of Tenant’s
obligations hereunder, unless express notice of such intention is sent by
Landlord to Tenant.  Landlord may bring
suits for amounts owed by Tenant hereunder or any portions thereof, as the same
accrue or after the same have accrued, and no suit or recovery of any portion
due hereunder shall be deemed a waiver of Landlord’s right to collect all
amounts to which Landlord is entitled hereunder, nor shall the same serve as
any defense to any subsequent suit brought for any amount not therefor reduced
to judgment.  Landlord may pursue one or
more remedies against Tenant and need not make an election of remedies until
findings of fact are made by a court of competent jurisdiction.  All rent and other consideration paid by any
replacement tenants shall be applied at Landlord’s option: (i) first, to
the Costs of Reletting, (ii) second, to the payment of all costs of
enforcing this Lease against Tenant or any Guarantor, (iii) third, to the
payment of all interest and service charges accruing hereunder,
(iv) fourth, to the payment of Rent theretofore accrued, and (v) with
the residue, if any, to be held by Landlord and applied to the payment of Rent
and other obligations of Tenant as the same become due (and with any remaining
residue to be retained by Landlord). 
“Costs of Reletting” shall include without limitation, all reasonable
costs and expenses incurred by Landlord for any repairs or other matters
described in Paragraph D above, brokerage commissions, advertising costs,
attorneys’ fees, and any commercially reasonable economic incentives given to
enter leases with replacement tenants. The times set forth herein for the
curing of Defaults by Tenant are of the essence of this Lease.  Tenant hereby irrevocably waives any right
otherwise available under any Law to redeem or reinstate this Lease, or
Tenant’s right to possession, after this Lease, or Tenant’s right to
possession, is terminated based on a Default by Tenant.  Notwithstanding anything contained herein to
the contrary, neither Landlord nor Tenant shall be liable for any consequential
or punitive damages.


 


ARTICLE
16:       [INTENTIONALLY OMITTED]


 


ARTICLE
17:       ATTORNEYS’ FEES, JURY TRIAL,
COUNTERCLAIMS AND VENUE


 


In the event of any
litigation or arbitration between the parties relating to this Lease, the
Premises or Property (including pretrial, trial, appellate, administrative,
bankruptcy or insolvency proceedings), the prevailing party shall be entitled
to recover its attorneys’ fees and costs as part of the judgment, award or
settlement therein.  In the event of a
breach of this Lease by either party which does not result in litigation but
which causes the non-breaching party to incur attorneys’ fees or costs, the
breaching party shall reimburse such fees and costs to the non-breaching party
upon demand.  If either party or any of
its officers, directors, trustees, beneficiaries, partners, agents, affiliates
or employees shall be made a party to any litigation or arbitration commenced
by or against the other party and is not at fault, the other party shall pay
all reasonable costs, expenses and attorneys’ fees incurred by such parties in
connection with such litigation.  IN THE
INTEREST OF OBTAINING A SPEEDIER AND LESS COSTLY HEARING OF ANY DISPUTE, LANDLORD
AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY


 


22

















 


AGAINST
THE OTHER ARISING OUT OF OR RELATING TO THIS LEASE, THE PREMISES OR THE
PROPERTY.  Although
such jury waiver is intended to be self-operative and irrevocable, Landlord and
Tenant each further agree, if requested, to confirm such waivers in writing at
the time of commencement of any such action, proceeding or counterclaim.  If Landlord commences any detainer suit,
summary proceedings or other action seeking possession of the Premises, Tenant
agrees not to interpose by consolidation of actions, removal to chancery or
otherwise, any counterclaim, claim of set-off, recoupment or deduction of Rent,
or other claim seeking affirmative relief of any kind (except a mandatory or
compulsory counterclaim which Tenant would forfeit if not so interposed).  Any action or proceeding brought by either
party against the other for any matter arising out of or in any way relating to
this Lease, the Premises or the Property, shall be heard in the Circuit Court
of Cook County, Illinois sitting in the central business district of the City
of Chicago.


 


ARTICLE
18:       SUBORDINATION, ATTORNMENT AND LENDER
PROTECTION


 


This Lease is subject and
subordinate to all Mortgages now or hereafter placed upon the Property, and all
other encumbrances and matters of public record applicable to the
Property.  Whether before or after any
foreclosure or power of sale proceedings are initiated or completed by any
Lender or a deed in lieu is granted (or any ground lease is terminated), Tenant
agrees upon written request of any such Lender or any purchaser at such sale,
to attorn and pay Rent to such party, and recognize such party as Landlord
(provided such Lender or purchaser shall agree not to disturb Tenant’s
occupancy so long as Tenant does not Default hereunder, on a form customarily
used by, or otherwise reasonably acceptable to, such party).  However, in the event of attornment, no
Lender shall be: (i) liable for any act or omission of Landlord, or
subject to any offsets or defenses which Tenant might have against Landlord
(arising prior to such Lender becoming Landlord under such attornment),
(ii) liable for any security deposit or bound by any prepaid Rent not
actually received by such Lender, or (iii) bound by any modification of
this Lease not consented to by such Lender. 
Any Lender may elect to make this Lease prior to the lien of its
Mortgage by written notice to Tenant, and if the Lender of any prior Mortgage
shall require, this Lease shall be prior to any subordinate Mortgage; such
elections shall be effective upon written notice to Tenant, or shall be
effective as of such earlier or later date set forth in such notice.  Tenant agrees to give any Lender by
certified mail, return receipt requested, a copy of any notice of default
served by Tenant upon Landlord, 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 leases, or otherwise) of the address of such Lender.  Tenant further agrees that if Landlord shall
have failed to cure such default within the time permitted Landlord for cure
under this Lease, any such Lender whose address has been provided to Tenant
shall have an additional period of thirty (30) days in which to cure (or such
additional time as may be required due to causes beyond such Lender’s control,
including time to obtain possession of the Property by appointment of receiver,
power of sale or judicial action). 
Should any current or prospective Lender require a modification or
modifications to this Lease which will not cause an increased cost or otherwise
materially and adversely change the rights and obligations of Tenant hereunder,
Tenant agrees that this Lease shall be so modified by a document which is, in
form and substance, reasonably acceptable to Tenant.  Except as expressly provided to the contrary herein, the
provisions of this Article shall be self-operative; however Tenant shall
execute and deliver, within ten (10) business days after requested, such
documentation as Landlord or any Lender may reasonably request from time to
time, whether prior to or after a foreclosure or power of sale proceeding is
initiated or completed, a deed in lieu is delivered, or a ground lease is
terminated, in order to further confirm or effectuate the matters set forth in
this Article in recordable form. Tenant hereby waives the provisions of any


 


23

















 


Law (now or hereafter adopted) which may give or
purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease or Tenant’s obligations hereunder if foreclosure or
power of sale proceedings are initiated, prosecuted or completed.


 


Currently, there is no
Mortgage encumbering the Building.  With
respect to any future Mortgage, upon written request by Tenant, Landlord will
use reasonable efforts to obtain a non-disturbance, subordination and attornment
agreement from the mortgagee on such mortgagee’s then current standard form of
agreement.  “Reasonable efforts” of
Landlord shall not require Landlord to incur any cost, expense or liability to
obtain such agreement.


 


ARTICLE
19:       ESTOPPEL CERTIFICATES


 


Tenant shall from time to
time, within five (5) business days after written request from Landlord,
execute, acknowledge and deliver a statement certifying: (i) that this
Lease is unmodified and in full force and effect or, if modified, stating the
nature of such modification and certifying that this Lease as so modified, is
in full force and effect (or specifying the ground for claiming that this Lease
is not in force and effect), (ii) the dates to which the Rent has been
paid, (iii) that Tenant is in possession of the Premises, and paying Rent
on a current basis with, to Tenant’s knowledge, no offsets, defenses or claims,
or specifying the same if any are claimed, (iv) that there are not, to
Tenant’s knowledge, any uncured defaults on the part of Landlord or Tenant
which are pertinent to the request, or specifying the same if any are claimed,
and (v) certifying such other matters, and including such current
financial statements (unless, however, Tenant is a publicly traded company and
such current financial statements are publicly available to Landlord), as
Landlord may reasonably request, or as may be reasonably requested by
Landlord’s current or prospective Lenders, insurance carriers, auditors, and
prospective purchasers (and including a comparable certification statement from
any subtenant respecting its sublease). 
Any such statement may be relied upon by any such parties.  If Tenant shall fail to execute and return
such statement within the time required herein, and does not cure such failure
within three (3) business days after a second notice given to Tenant, then
Tenant shall be deemed to be in Default hereunder.


 


Landlord shall from time
to time, within ten (10) business days after written request from Tenant,
execute, acknowledge and deliver a statement certifying:  (i) that this Lease is unmodified and in
full force and effect or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force and effect (or
specifying the ground for claiming that this Lease is not in full force and
effect), (ii) the dates to which Rent has been paid, (iii) that there are not,
to Landlord’s knowledge, any uncured defaults on the part of Landlord and
Tenant which are pertinent to the request, or specifying the same if they are
claimed, and (iv) certifying such other matters as Tenant may reasonable
request.  Any such statement may be
relied upon by the party to whom it is addressed.


 


ARTICLE
20:       RIGHTS RESERVED BY LANDLORD


 


Except to the extent
expressly limited herein, Landlord reserves full rights to control the Property
(which rights may be exercised without subjecting Landlord to claims for
constructive eviction, abatement of Rent, damages or other claims of any kind),
including more particularly, but without limitation, the following rights:


 


A.            General
Matters.  To:
(i) upon not less than ninety (90) days prior notice to Tenant, change the
name or street address of the Property or designation of the Premises,
(ii) install and maintain signs on the exterior and interior of the
Property, and grant any other


 


24

















 


Person the right
to do so, (iii) retain at all times, and use in appropriate instances, but
subject to the other requirements of this Lease, keys to all doors within and
into the Premises, (iv) grant to any Person the right to conduct any
business or render any service at the Property, whether or not the same are
similar to the use permitted Tenant by this Lease, (v) grant any Person
the right to use separate security personnel and systems respecting access to
their premises, (vi) have access for Landlord and other tenants of the
Property to any mail chutes located on the Premises according to the rules of
the United States Postal Service (and to install or remove such chutes), and
(vii) in case of fire, invasion, insurrection, riot, civil disorder,
public excitement or other dangerous condition, or threat thereof:
(a) limit or prevent access to the Property, (b) shut down elevator
service, (c) activate elevator emergency controls, and (d) otherwise
take such action or preventative measures deemed necessary by Landlord for the
safety of tenants of the Property or the protection of the Property and other
property located thereon or therein (but this provision shall impose no duty on
Landlord to take such actions, and no liability for actions taken in good
faith).


 


B.            Access To
Premises.  To enter
the Premises in order to: (i) inspect, (ii) supply cleaning service
or other services to be provided Tenant hereunder, (iii) show the Premises
to current and prospective Lenders, insurers, purchasers, brokers and
governmental authorities and, during the last twelve (12) months of the Term
hereof or after any Default by Tenant hereunder, prospective tenants, and
(v) perform any work or take any other actions under Paragraph
(C) below, or exercise other rights of Landlord under this Lease or
applicable Laws.  However, Landlord
shall: (a) provide reasonable advance written or oral notice to Tenant’s
on-site manager or other appropriate person (except in emergencies),
(b) take reasonable steps to minimize any disruption to Tenant’s business,
and following completion of any work, return Tenant’s leasehold improvements,
fixtures, property and equipment to the original locations and condition to the
fullest extent reasonably possible, and (c) avoid materially changing the
configuration or reducing the square footage of the Premises, unless required
by Laws (and in the event of any permanent material reduction, the Rent and
other rights and obligations of the parties based on the square footage of the
Premises shall be proportionately reduced). 
Tenant shall not place partitions, furniture or other obstructions in
the Premises which may prevent or impair Landlord’s access to the Systems and
Equipment for the Property or the Systems and Equipment for the Premises.  If Tenant requests that any such access
occur before or after Landlord’s regular business hours and Landlord approves,
Tenant shall pay all overtime and other additional costs in connection
therewith.


 


C.            Changes To
The Property.  To:
(i) paint and decorate, (ii) perform repairs or maintenance, and
(iii) make replacements, restorations, renovations, alterations, additions
and improvements, structural or otherwise (including freon retrofit work), in
and to the Property or any part thereof, including any adjacent building,
structure, facility, land, street or alley, or change the uses thereof
(including changes, reductions or additions of corridors, entrances, doors,
lobbies, parking facilities and other areas, structural support columns and
shear walls, elevators, stairs, escalators, mezzanines, solar tint windows or
film, kiosks, planters, sculptures, displays, and other amenities and features
therein, and changes relating to the connection with or entrance into or use of
the Property or any other adjoining or adjacent building or buildings, now
existing or hereafter constructed).  In
connection with such matters, Landlord may among other things erect
scaffolding, barricades and other structures, open ceilings, close entry ways,
restrooms, elevators, stairways, corridors, parking and other areas and
facilities, and take such other actions as Landlord deems appropriate.  However, Landlord shall: (a) take
reasonable steps to minimize or avoid any denial of access to the Premises
except when necessary on a


 


25

















 


temporary basis,
and (b) in connection with entering the Premises shall comply with
Paragraph B above.


 


D.            [intentionally
omitted]


 


ARTICLE
21:       TENANT’S REMEDIES


 


If Landlord shall fail to
perform any obligation under this Lease required to be performed by Landlord,
Landlord shall not be deemed to be in default hereunder nor subject to any
claims for damages of any kind, unless such failure shall have continued for a
period of thirty (30) days after notice thereof by Tenant (provided, if the
nature of Landlord’s failure is such that more time is reasonably required in
order to cure, Landlord shall not be in default if Landlord commences to cure
within such period and thereafter diligently seeks to cure such failure to
completion).  If Landlord shall default
and fail to cure as provided herein, Tenant shall have such rights and remedies
as may be available to Tenant under applicable Laws, subject to the other provisions
of this Lease; provided, Tenant shall have no right of self-help to perform
repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off, or abate Rent, or terminate this Lease, and Tenant hereby
expressly waives the benefit of any Law to the contrary; provided further,
however, that notwithstanding the foregoing, if Tenant obtains a final monetary
judgement against Landlord from a court of competent jurisdiction and if
Landlord fails to satisfy same within thirty (30) days after the date of such
final judgement, then Tenant may set-off the amount of such unpaid final
judgement against Rent.


 


ARTICLE
22:       INDEMNIFICATION


 


Except to the extent
arising from the intentional misconduct or negligent acts of Landlord, Tenant shall
defend, indemnify and hold Landlord harmless from and against any and all
claims, demands, losses, penalties, fines, fees, charges, assessments,
liabilities, damages, judgments, orders, decrees, actions, administrative or
other proceedings, costs and expenses (including court costs, attorneys’ fees,
and expert witness fees), arising from or relating to: (i) any violation
or breach of this Lease or applicable Law by any Tenant Parties (as defined
below), (ii) damage, loss or injury to persons, property or business
occurring in, about or from the Premises, and (iii) damage, loss or injury
to persons, property or business directly or indirectly arising out of any
Tenant Party’s use of the Premises or Property, or out of any other act or
omission of any Tenant Parties.  For
purposes of this provision, “Tenant Parties” shall mean Tenant, any other
occupant of the Premises and any of their respective agents, employees,
invitees, Transferees and contractors. 
Without limiting the generality of the foregoing, Tenant specifically
acknowledges that the undertaking herein shall apply to claims in connection
with or arising out of any “Work” as described in Article 9, Tenant’s
installation, maintenance, use or removal of any “Lines” as described in
Article 29, Tenant’s transportation, use, storage, maintenance, generation,
manufacturing, handling, disposal, release, discharge, spill or leak of any
“Hazardous Material” as described in Article 30, and violations of Tenant’s
responsibilities respecting the Disabilities Acts as described in Article 31
(whether or not any of such matters shall have been theretofore approved by
Landlord).


 


ARTICLE
23:       RETURN OF POSSESSION


 


At the expiration or
earlier termination of this Lease or Tenant’s right of possession, Tenant shall
vacate and surrender possession of the entire Premises in the condition
required under Article 8 and the Rules, ordinary wear and tear and damage
caused by fire or other casualty excepted, shall surrender all keys and key
cards, and any parking transmitters,


 


26

















 


stickers or cards, to Landlord, and shall remove all
personal property and office trade fixtures that may be readily removed without
material damage to the Premises or Property. 
All improvements, fixtures and other items, including ceiling light
fixtures, HVAC equipment, plumbing fixtures, hot water heaters, fire
suppression and sprinkler systems, “Lines” under Article 29, interior stairs,
wall coverings, carpeting and other flooring, blinds, drapes and window
treatments, in or serving the Premises, whether installed by Tenant or
Landlord, shall be Landlord’s property and shall remain upon the Premises, all
without compensation, allowance or credit to Tenant, unless Landlord elects
otherwise as provided herein.  If
Landlord requires removal of any Work pursuant to Article 9.E. above, Tenant
shall promptly remove same and restore the Premises to the condition prior to
the installation of such items in a good and workmanlike manner.  Notwithstanding anything contained herein to
the contrary, except with respect to Lines, Landlord shall not require Tenant
to remove any improvements currently existing in the Premises as of the date of
this Lease.  If Tenant shall fail to
perform any repairs or restoration, or fail to remove any items from the
Premises required hereunder, Landlord may do so and Tenant shall pay Landlord’s
charges therefor upon demand.  All
property removed from the Premises by Landlord pursuant to any provisions of
this Lease or any Law may be handled or stored by Landlord at Tenant’s expense,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof.  All property not
removed from the Premises or retaken from storage by Tenant within thirty (30)
days after expiration or earlier termination of this Lease or Tenant’s right to
possession, shall at Landlord’s option be conclusively deemed to have been
conveyed by Tenant to Landlord as if by bill of sale without payment by
Landlord.  Unless prohibited by applicable
Law, Landlord shall have a lien against such property for the costs incurred in
removing and storing the same.  Tenant
hereby waives any statutory notices to vacate or quit the Premises upon
expiration of this Lease.


 


ARTICLE
24:       HOLDING OVER


 


Unless Landlord expressly
agrees otherwise in writing, Tenant shall pay Landlord 150% of the amount of
Rent then in effect immediately prior to expiration or earlier termination of
this Lease, computed on a monthly basis for each month or portion thereof that
Tenant shall fail to vacate or surrender possession of the Premises or any part
thereof after expiration or earlier termination of this Lease as required under
Article 23, together with all damages sustained by Landlord on account thereof.  Tenant shall pay such amounts on demand,
and, in the absence of demand, monthly in advance.  The foregoing provisions, and Landlord’s acceptance of any such
amounts, shall not serve as permission for Tenant to hold-over, nor serve to
extend the Term (although Tenant shall remain a tenant-at-sufferance bound to
comply with all provisions of this Lease until Tenant properly vacates the
Premises, and shall be subject to the provisions of Article 23).  Landlord shall, in accordance with all
applicable Laws, have the right at any time after expiration or earlier
termination of this Lease or Tenant’s right to possession to reenter and
possess the Premises and remove all property and persons therefrom, and
Landlord shall have such other remedies for holdover as may be available to Landlord
under other provisions of this Lease or applicable Laws.


 


ARTICLE
25:       NOTICES


 


Except as expressly
provided to the contrary in this Lease, every notice or other communication to
be given by either party to the other with respect hereto or to the Premises or
Property, shall be in writing and shall not be effective for any purpose unless
the same shall be served personally or by national air courier service, or
United States certified mail, return receipt requested, postage prepaid, to the
parties at the addresses set forth in Article 1, or such other address or
addresses as Tenant or Landlord may from time to time designate by notice given


 


27

















 


as above provided. 
Every notice or other communication hereunder shall be deemed to have
been given as of the third business day following the date of such mailing (or
as of any earlier date evidenced by a receipt from such national air courier
service or the United States Postal Service) or immediately if personally
delivered.  Notices not sent in
accordance with the foregoing shall be of no force or effect until received by
the foregoing parties at such addresses required herein.


 


ARTICLE
26:       REAL ESTATE BROKERS


 


Tenant and Landlord each
represent to the other that they have dealt only with the broker, if any,
designated in Article 1 (whose commission, if any, shall be paid by Landlord
pursuant to separate agreement) as broker, agent or finder in connection with
this Lease, and agrees to indemnify and hold the other party harmless from all
damages, judgments, liabilities and expenses (including reasonable attorneys’
fees) arising from any claims or demands of any other broker, agent or finder
with whom the indemnifying party has dealt for any commission or fee alleged to
be due in connection with its participation in the procurement of Tenant or the
negotiation of this Lease.


 


ARTICLE
27:       NO WAIVER


 


No provision of this
Lease will be deemed waived by either party unless expressly waived in writing
and signed by the waiving party.  No
waiver shall be implied by delay or any other act or omission of either
party.  No waiver by either party of any
provision of this Lease shall be deemed a waiver of such provision with respect
to any subsequent matter relating to such provision, and Landlord’s consent or
approval respecting any action by Tenant shall not constitute a waiver of the
requirement for obtaining Landlord’s consent or approval respecting any
subsequent action.  Acceptance of Rent
by Landlord directly or through any agent or lock-box arrangement shall not
constitute a waiver of any breach by Tenant of any term or provision of this
Lease (and Landlord reserves the right to return or refund any untimely
payments if necessary to preserve Landlord’s remedies).  No acceptance of a lesser amount of Rent
shall be deemed a waiver of Landlord’s right to receive the full amount due,
nor shall any endorsement or statement on any check or payment or any letter
accompanying such check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord’s right
to recover the full amount due.  The
acceptance of Rent or of the performance of any other term or provision from,
or providing directory listings or services for, any Person other than Tenant
shall not constitute a waiver of Landlord’s right to approve any Transfer.  No delivery to, or acceptance by, Landlord
or its agents or employees of keys, nor any other act or omission of Tenant or
Landlord or their agents or employees, shall be deemed a surrender, or
acceptance of a surrender, of the Premises or a termination of this Lease,
unless stated expressly in writing by Landlord.


 


ARTICLE
28:       SAFETY AND SECURITY DEVICES, SERVICES AND
PROGRAMS


 


The parties acknowledge
that safety and security devices, services and programs provided by Landlord,
if any, while intended to deter crime and ensure safety, may not in given
instances prevent theft or other criminal acts, or ensure safety of persons or
property.  The risk that any safety or
security device, service or program may not be effective, or may malfunction,
or be circumvented by a criminal, is assumed by Tenant with respect to Tenant’s
property and interests, and Tenant shall obtain insurance coverage to the
extent Tenant desires protection against such criminal acts and other losses,
as further described in Article 10. 
Tenant agrees


 


28

















 


to cooperate in any reasonable safety or security
program developed by Landlord or required by Law.


 


ARTICLE
29:       TELECOMMUNICATION LINES


 


A.            Telecommunication
Lines.  Subject to
Landlord’s continuing right of supervision and approval, which approval shall
not be unreasonably withheld, conditioned or delayed, and the other provisions
hereof, Tenant may: (i) install telecommunication lines (“Lines”)
connecting the Premises to Landlord’s terminal block serving the floor or
floors on which the Premises are located, or (ii) use such Lines as may
currently exist and already connect the Premises to such terminal block.  Landlord’s predecessor or independent
contractor has heretofore connected such terminal block through riser system
Lines to Landlord’s main distribution frame (“MDF”) for the Property.  Landlord disclaims any representations,
warranties or understandings concerning the capacity, design or suitability of
Landlord’s riser Lines, MDF or related equipment.  If there is, or will be, more than one tenant on any floor, at
any time, Landlord may allocate, and periodically reallocate, connections to
the terminal block based on the proportion of square feet each tenant occupies
on such floor, or the type of business operations or requirements of such
tenants, in Landlord’s reasonable discretion. 
Landlord may arrange for an independent contractor to review Tenant’s
requests for approval hereunder, monitor or supervise Tenant’s installation,
connection and disconnection of Lines, and provide other such services, or
Landlord may provide the same.  In each
case, Tenant shall pay Landlord’s reasonable fees and costs therefor as
provided in Article 9.


 


B.            Installation.  Tenant may install and use Tenant’s Lines
and make connections and disconnections at the terminal blocks as described
above, provided Tenant shall: (i) obtain Landlord’s prior written approval
of all aspects thereof, (ii) use an experienced and qualified contractor
reasonably approved in writing in advance by Landlord (whom Landlord may
require to enter an access and indemnity agreement on Landlord’s then standard
form of agreement therefor), (iii) comply with such inside wire standards
as Landlord may adopt from time to time, and all other provisions of this
Lease, including Article 9 respecting Work, and the Rules respecting access to
the wire closets, (iv) not install Lines in the same sleeve, chaseway or
other enclosure in close proximity with electrical wire, and not install
PVC-coated Lines under any circumstances, (v) thoroughly test any riser
Lines to which Tenant intends to connect any Lines to ensure that such riser
Lines are available and are not then connected to or used for telephone, data
transmission or any other purpose by any other party (whether or not Landlord
has previously approved such connections), and not connect to any such
unavailable or connected riser Lines, and (vi) not connect any equipment
to the Lines which may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, unless the Lines therefor (including
riser Lines) are appropriately insulated to prevent such excessive
electromagnetic fields or radiation (and such insulation shall not be provided
by the use of additional unused twisted pair Lines).  As a condition to permitting installation of new Lines, Landlord
may require that Tenant remove any existing Lines located in or serving the
Premises.


 


C.            Limitation
of Liability.  Unless
due solely to Landlord’s intentional misconduct or grossly negligent acts,
Landlord shall have no liability for damages arising, and Landlord does not
warrant that the Tenant’s use of the Lines will be free, from the following
(collectively called “Line Problems”): (i) any eavesdropping, wire-tapping
or theft of long distance access codes by unauthorized parties, (ii) any failure
of the Lines to satisfy Tenant’s requirements, or (iii) any capacitance,
attenuation, cross-talk or other problems with the Lines, any misdesignation of
the Lines in the MDF room or wire closets, or any shortages, failures,


 


29

















 


variations,
interruptions, disconnections, loss or damage caused by or in connection with
the installation, maintenance, replacement, use or removal of any other Lines
or equipment at the Property by or for other tenants at the Property, by any
failure of the environmental conditions at or the power supply for the Property
to conform to any requirements of the Lines or any other problems associated
with any Lines or by any other cause.  Under
no circumstances shall any Line Problems be deemed an actual or constructive
eviction of Tenant, render Landlord liable to Tenant for abatement of any Rent
or other charges under the Lease, or relieve Tenant from performance of
Tenant’s obligations under the Lease as amended herein, provided, however, that
the foregoing shall not be deemed or construed as a waiver of damages caused by
the intentional misconduct or grossly negligent acts of Landlord.


 


ARTICLE
30:       HAZARDOUS MATERIALS


 


A.            Hazardous
Materials Generally Prohibited.  Tenant shall not transport, use, store, maintain, generate,
manufacture, handle, dispose, release, discharge, spill or leak any “Hazardous
Material” (as defined below), or permit Tenant’s employees, agents,
contractors, or other occupants of the Premises to engage in such activities on
or about the Property.  However, the
foregoing provisions shall not prohibit the transportation to and from, and
use, storage, maintenance and handling within, the Premises of substances
customarily and lawfully used in the business which Tenant is permitted to
conduct in the Premises under this Lease, but only as an incidental and minor
part of such business, provided: (i) such substances shall be properly
labeled, contained, used and stored only in small quantities reasonably necessary
for such permitted use of the Premises and the ordinary course of Tenant’s
business therein, strictly in accordance with applicable Laws and the
manufacturers’ instructions therefor, (ii) Tenant shall provide Landlord
with ten (10) days advance notice and, to the extent required by Law or
Landlord’s insurance carrier, current Material Safety Data Sheets (“MSDSs”)
therefor, and Landlord reserves the right to prohibit or limit such substances
in each such instance, (iii) such substances shall not be disposed of,
released, discharged or permitted to spill or leak in or about the Premises or
the Property (and under no circumstances shall any Hazardous Material be
disposed of within the drains or plumbing facilities in or serving the Premises
or Property or in any other public or private drain or sewer, regardless of
quantity or concentration), (iv) if any applicable Law or Landlord’s trash
removal contractor requires that any such substances be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant’s expense for
such disposal in approved containers directly with a qualified and licensed
disposal company at a lawful disposal site, (v) any remaining such
substances shall be completely, properly and lawfully removed from the Property
upon expiration or earlier termination of this Lease, and (vi) for
purposes of removal and disposal of any such substances, Tenant shall be named
as the owner, operator and generator, shall obtain a waste generator
identification number, and shall execute all permit applications, manifests,
waste characterization documents and any other required forms.


 


B.            Notifications
and Records.  Tenant
shall immediately notify Landlord of: (i) any inspection, enforcement,
cleanup or other regulatory action taken or threatened by any regulatory
authority with respect to any Hazardous Material on or from the Premises or the
migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party relating to any loss or injury claimed to have
resulted from any Hazardous Material on or from the Premises, (iii) any
release, discharge, spill, leak, disposal or transportation of any Hazardous
Material on or from the Premises in violation of this Article, and any damage,
loss or injury to persons, property or business resulting or claimed to have
resulted therefrom, and (iv) any matters where Tenant is required by Law
to give a notice to any regulatory authority respecting any Hazardous Materials
on or from the Premises.  Landlord shall
have the right (but


 


30

















 


not the
obligation) to notify regulatory authorities concerning actual and claimed
violations of this Article.  Tenant
shall promptly upon written request from time to time provide Landlord with
copies of all MSDSs, permits, approvals, memos, reports, correspondence,
complaints, demands, claims, subpoenas, requests, remediation and cleanup
plans, and all papers of any kind filed with or by any regulatory authority and
any other books, records or items pertaining to Hazardous Materials that are
subject to the provisions of this Article (collectively referred to herein as
“Tenant’s Hazardous Materials Records”).


 


C.            Clean Up
Responsibility.  If
any Hazardous Material is released, discharged or disposed of, or permitted to
spill or leak, by Tenant, its agents, contractors or employees, in violation of
the foregoing provisions, Tenant shall immediately and properly clean up and
remove the Hazardous Materials from the Premises, Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord) in compliance with applicable Laws, at Tenant’s expense
(without limiting Landlord’s other remedies therefor).  Such clean up and removal work and any
testing, investigation, feasibility and impact studies, and the preparation and
implementation of any remedial action plan required by any court or regulatory
authority having jurisdiction (“Tenant Remedial Work”) shall be considered Work
under Article 9 and subject to the provisions thereof, including Landlord’s
prior written approval (except in emergencies).  In connection therewith, Tenant shall provide documentation
evidencing that all Tenant Remedial Work or other action required hereunder has
been properly and lawfully completed (including a certificate addressed to
Landlord from a environmental consultant reasonably acceptable to Landlord, in
such detail and form as Landlord may reasonably require).  If any Hazardous Material is released,
discharged, disposed of, or permitted to spill or leak on or about the Property
or the Premises and is not caused by Tenant or other occupants of the Premises,
or their agents, employees, Transferees, or contractors, such release,
discharge, disposal, spill or leak shall be deemed casualty damage under
Article 11 to the extent that the Premises and Tenant’s use thereof is affected
thereby; in such case, Landlord and Tenant shall have the obligations and
rights respecting such casualty damage provided under this Lease.


 


D.            Hazardous
Material Defined.  The
term “Hazardous Material” for purposes hereof shall include, but not be limited
to: (i) any flammable, explosive, toxic, radioactive, biological,
corrosive or otherwise hazardous chemical, substance, liquid, gas, device, form
of energy, material or waste or component thereof, (ii) petroleum-based
products, diesel fuel, paints, solvents, lead, radioactive materials, cyanide,
biohazards, medical or infectious waste and “sharps”, printing inks, acids,
DDT, pesticides, ammonia compounds, and any other items which now or
subsequently are found to have an adverse effect on the environment or the
health and safety of persons or animals or the presence of which require
investigation or remediation under any Law or governmental policy, and
(iii) any item defined as a “hazardous substance”, “hazardous material”,
“hazardous waste”, “regulated substance” or “toxic substance” under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. §9601, et seq., Hazardous Materials Transportation Act,
49 U.S.C. §1801, et seq., Resource Conservation and Recovery Act of 1976, 42
U.S.C. §6901 et seq., Clean Water Act, 33 U.S.C. §1251, et seq., Safe Drinking
Water Act, 14 U.S.C. §300f, et seq., Toxic Substances Control Act, 15 U.S.C.
§2601, et seq., Atomic Energy Act of 1954, 42 U.S.C. §2014 et seq., and any
similar federal, state or local Laws, and all regulations, guidelines,
directives and other requirements thereunder, all as may be amended or
supplemented from time to time.


 


E.             Fees,
Taxes, Fines and Remedies. 
Tenant shall pay, prior to delinquency, any and all fees, taxes
(including excise taxes), penalties and fines arising from or based on


 


31

















 


Tenant’s activities
involving Hazardous Material on or about the Premises or Property, and shall
not allow such obligations to become a lien or charge against the Property or
Landlord.  If Tenant violates any
provision of this Article with respect to any Hazardous Materials, Landlord
may: (i) require that Tenant immediately remove all Hazardous Materials
from the Premises and discontinue using, storing and handling Hazardous
Materials in the Premises, and/or (ii) pursue such other remedies as may
be available to Landlord under this Lease or applicable Law.


 


F.             Existing
Conditions. 
Notwithstanding anything contained herein to the contrary, Tenant shall
have no obligation to clean up, or to reimburse, release, indemnify or defend
Landlord with respect to, Hazardous Materials, if any, which may exist in or on
the Premises as of the date hereof, except to the extent that Tenant knowingly
exacerbates the same or fails to notify Landlord of the existence of any such
Hazardous Material after acquiring knowledge thereof.  As more fully provided under Section 7.B above, Landlord, and not
Tenant shall be responsible for remedying any violations of Laws, including
Laws governing Hazardous Materials, existing in the Property as of the date
hereof and the costs and expenses incurred by Landlord in so remedying such
existing violations shall not be included in Expenses.


 


ARTICLE
31:       DISABILITIES ACTS


 


The parties acknowledge
that the Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) and
regulations and guidelines promulgated thereunder (“ADA”), and any similarly
motivated state and local Laws (“Local Barriers Acts”), as the same may be
amended and supplemented from time to time (collectively referred to herein as
the “Disabilities Acts”) establish requirements for business operations,
accessibility and barrier removal, and that such requirements may or may not
apply to the Premises and Property depending on, among other things:
(i) whether Tenant’s business is deemed a “public accommodation” or
“commercial facility”, (ii) whether such requirements are “readily
achievable”, and (iii) whether a given alteration affects a “primary
function area” or triggers “path of travel” requirements.  The parties hereby agree that: (a) Landlord
shall be responsible for any required ADA Title III and related Local Barriers
Acts compliance in the common areas, except as provided below, (b) Tenant
shall perform any required ADA Title III and related Local Barriers Acts
compliance in the Premises, and (c) Landlord may perform, or require that
Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III
and related Local Barriers Acts “path of travel” and other requirements
triggered by any public accommodation or other use of, or alterations in, the
Premises.  Tenant shall be responsible
for ADA Title I and related Local Barriers Acts requirements relating to
Tenant’s employees, and Landlord shall be responsible for ADA Title I and
related Local Barriers Acts requirements relating to Landlord’s employees.


 


ARTICLE
32:       DEFINITIONS


 


(A)          “Building” shall mean the structure
(or the portion thereof owned by Landlord) identified in Article 1.


 


(B)           “Default Rate” shall mean the Prime
Rate (as hereinafter defined) plus five percent (5%) per annum, or the highest
rate permitted by applicable Law, whichever shall be less.  “Prime Rate” shall mean the highest of the
Prime Rates as reported in the Money Rate Section of the Wall Street Journal.  If the Wall Street Journal no longer
publishes the Prime Rate as an index, Landlord may substitute a comparable
index including the Prime Rate or reference rate of a reputable financial
institution.


 


32



















C)            “Expenses” shall mean all expenses, costs and amounts
(other than Taxes) of every kind and nature relating to the ownership,
management, repair, maintenance, replacement, insurance and operation of the
Property, including any amounts paid for: (i) utilities for the Property,
including electricity, power, gas, steam, oil or other fuel, water, sewer,
lighting, heating, air conditioning and ventilating, (ii) permits,
licenses, inspections, warrants and certificates necessary to operate, manage
and lease the Property, (iii) costs of complying with Laws not applicable
to the Building as of the date hereof, including any freon retrofitting and
compliance with the “Disabilities Acts” (as described in Article 31),
(iv) insurance applicable to the Property, not limited to that required
under this Lease, and which may include earthquake, boiler, rent loss, workers’
compensation and employers’ liability, builders’ risk, automobile and other
coverages, including a reasonable allocation of costs under any blanket policies,
(v) supplies, materials, tools, equipment, uniforms, and vehicles used in
the operation, repair, maintenance, security, and other services for the
Property, including rental, installment purchase and financing agreements
therefor and interest thereunder, (vi) accounting, legal, inspection,
consulting, concierge, alarm monitoring, security, janitorial, trash removal,
snow and ice removal, and other services, (vii) management company fees,
(viii) wages, salaries and other compensation and benefits (including
health, life and disability insurance, savings, retirement and pension
programs, and the fair value of any parking privileges, including those
provided through collective bargaining agreements) for any manager and other
personnel or parties engaged in the operation, repair, maintenance, security or
other services for the Property, and employer’s FICA contributions,
unemployment taxes or insurance, any other taxes which may be levied on such
wages, salaries, compensation and benefits, and data or payroll processing
expenses relating thereto (if the manager or other personnel handle other
properties, the foregoing expenses shall be allocated appropriately between the
Property and such other properties), (ix) payments under any easement,
cross or reciprocal easement, operating agreement, tunnel agreement,
declaration, covenant, or other agreement or instrument pertaining to the
sharing of costs for common areas or other matters between the Property and any
other property (and a credit against Expenses for any payments received
pursuant to the foregoing), (x) parking surcharges or fees that may result
from any environmental or other Law or guideline (except to the extent such
surcharges or fees are directly recovered from users of the parking facility,
it being the intent that Landlord not double collect such surcharges or fees),
and any sales, use, value-added or other taxes on supplies or services for the
Property, (xi) the costs of operating and maintaining any on-site office
at the Property, including the fair rental value thereof, telephone charges,
postage, stationery and photocopying expenses, and telephone directory
listings, (xii) the cost of any imputed rental value for, as well as the
cost of maintaining and operating, conference rooms and related common
facilities in the Property (but only to the extent the costs thereof exceed any
revenues generated by the use of such facilities), (xiii) the amount of
insurance premiums saved by electing higher than customary deductibles, if
Landlord does not also include in Expenses the losses incurred as a result of
having such higher deductibles, and (xiv) operation, maintenance, repair,
installation, replacement, inspection, testing, painting, decorating and
cleaning of the Property, and any items located off-site but installed for the
benefit of the Property, including: (a) sidewalks, curbs, loading and
service areas and driveways, (b) storm and sanitary drainage systems,
(c) ”Lines” under Article 29, and other Systems and Equipment, and (d) all
other portions, facilities, features and amenities of the Property, including
common area fixtures, equipment and other items therein or thereon, floors,
floor coverings, corridors, ceilings, foundations, walls, wall-coverings,
restrooms, lobbies, trash compactors, doors, locks and hardware, windows,
gutters, downspouts, roof flashings and roofs. 
The foregoing provision is for definitional purposes only and shall not
be construed to impose any obligation upon Landlord to incur such expenses.  Landlord may retain independent contractors
(or affiliated


 


33

















 


contractors at
market rates) to provide any services or perform any work, in which case the
costs thereof shall be deemed Expenses. 
Expenses shall not, however, include:


 


(1)           depreciation, interest and
amortization on any Mortgages and other debt costs or ground lease payments
(except interest on the cost of capital expenditures to the extent permitted
below, and ground lease payments for Taxes and Expenses); legal fees in
connection with leasing, tenant disputes or enforcement of leases; real estate
brokers’ leasing commissions; improvements or alterations to tenant spaces; the
cost of providing any service directly to, and paid directly by, any tenant;
costs of any items to the extent Landlord receives reimbursement from a third
party (excluding payments by tenants for Taxes and Expenses); costs relating to
non-office rentable areas of the Property to the extent that Landlord deducts
such rentable areas in determining Tenant’s Share of Expenses under Article 4;
cost of correcting any violations of applicable governmental laws and
regulations, including laws relating to Hazardous Materials, the ADA and Local
Barriers Acts, to the extent applicable to the Building as of the date of this
Lease; advertising, marketing or promotional expenses not related to the
operation or management of the Building and leasing, sales or other commissions
relating to procuring new tenants for the Building; any cost or expenditure for
which Landlord is reimbursed (or which should be reimbursed if Landlord
maintained the insurance required under this Lease), whether by insurance
proceeds, condemnation awards, refunds, credits, warranties, service contracts
or from any tenant (including Tenant) of the Building or otherwise (excluding
payments by tenants for Taxes and Expenses); the cost of any kind of service,
work or utilities furnished to any other tenant in the Building which Landlord
does not generally make available to all tenants in the Building; costs
incurred in connection with the sale, financing, refinancing, mortgaging,
selling or change of ownership of the Building, including brokerage
commissions, attorneys’ and accountants’ fees, closing costs, title insurance
premium, transfer taxes and interests charges; all amounts which would
otherwise be included in Expenses which are paid to any affiliate or subsidiary
of Landlord, to the extent the costs of such services exceed the competitive
rates for similar services of comparable quality rendered by persons or
entities of similar skill, competence and experience; the cost of acquiring
sculptures, paintings and other objects of fine art, except for incidental
artwork for the common areas; and


 


(2)           capital expenditures (including
rentals incurred in leasing equipment ordinary considered to be of a capital
improvement nature if purchased), except those: (i) made primarily to
reduce Expenses, or to comply with Laws or insurance requirements not
applicable to the Building as of the date hereof, or which are intended to
enhance the safety of the Property, or (ii) for replacements of
nonstructural items located in the common areas of the Property required to
keep such areas in first class condition. 
To the extent that any such permitted capital expenditure exceeds
$5,000, such excess shall be amortized for purposes of this Lease over the
shorter of: (x) the period during which the reasonably estimated savings
in Expenses equals the expenditure, (y) the shortest period over which
Landlord may depreciate such item under the Federal Tax Code then in effect, or
(z) the useful life of the item, but in no event more than ten (10) years;
provided, Landlord may elect any longer period in Landlord’s discretion.  In each such case, Landlord may include
interest on the unamortized amount at the prevailing loan rate available to
Landlord when the cost was incurred. 
Expenses shall include any remaining amortization of such permitted
capital expenditures made prior to the date of this Lease.


 


(D)          “Holidays” shall mean all federal
holidays, and holidays observed by the State of Illinois, including New Year’s
Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veterans’ Day,
Thanksgiving Day, Christmas Day, and to the extent of services provided by
union members engaged at the Property, such other holidays observed by such
unions.


 


34

















 


(E)           “Landlord” shall mean only the
landlord from time to time, except that for purposes of any provisions
defending, indemnifying and holding Landlord harmless hereunder, “Landlord”
shall include past, present and future landlords and their respective partners,
beneficiaries, trustees, officers, directors, employees, shareholders,
principals, agents, affiliates, successors and assigns, and advisors.


 


(F)           “Law” or “Laws” shall mean all
federal, state, county and local governmental and municipal laws, statutes,
ordinances, rules, regulations, codes, decrees, orders and other such
requirements, applicable equitable remedies and decisions by courts in cases
where such decisions are considered binding precedents in the State of
Illinois, and decisions of federal courts applying the Laws of such State, at
the time in question.  This Lease shall
be interpreted and governed by the Laws of the State of Illinois.


 


(G)           “Lender” shall mean the holder of any
Mortgage at the time in question, and where such Mortgage is a ground lease,
such term shall refer to the ground lessor (and the term “ground lease”
although not separately capitalized is intended through out this Lease to
include any superior or master lease).


 


(H)          “Mortgage” shall mean all mortgages,
deeds of trust, ground leases and other such encumbrances now or hereafter
placed upon the Property or Building, or any part thereof, and all renewals,
modifications, consolidations, replacements or extensions thereof, and all
indebtedness now or hereafter secured thereby and all interest thereon.


 


(I)            “Person” shall mean an individual,
trust, partnership, limited liability company, joint venture, association,
corporation and any other entity.


 


(J)            “Premises” shall mean the area
within the Building identified in Article 1 and Exhibit A.  Possession of areas necessary for utilities
(including vaults and closets for the Property), services, safety and operation
of the Property, including the Systems and Equipment, fire stairways, perimeter
walls, space between the finished ceiling of the Premises and the slab of the
floor or roof of the Property thereabove, and the use thereof together with the
right to install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or above the Premises
in locations that will not materially interfere with Tenant’s use of the
Premises (and all such Systems and Equipment located in the Premises shall be
located behind finished walls or above finished ceilings unless otherwise
approved by Tenant, which approval shall not be unreasonably withheld,
conditioned or delayed), are hereby excepted and reserved by Landlord, and not
demised to Tenant.


 


(K)          “Property” shall mean the Building,
and any common or public areas or facilities, easements, corridors, lobbies,
sidewalks, loading areas, driveways, landscaped areas, skywalks, parking
garages and lots, and any and all other structures or facilities operated or
maintained in connection with or for the benefit of the Building, and all
parcels or tracts of land on which all or any portion of the Building or any of
the other foregoing items are located, and any fixtures, machinery, apparatus,
Systems and Equipment, furniture and other personal property located thereon or
therein and used in connection therewith.


 


(L)           “Rent” shall have the meaning
specified therefor in Article 4.


 


(M)         “Systems and Equipment” shall mean any
plant, machinery, transformers, duct work, cable, wires, and other equipment,
facilities, and systems designed to supply light, heat, ventilation, air
conditioning and humidity or any other services or utilities, or comprising or


 


35

















 


serving as any
component or portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, security, or fire/life/safety systems or equipment, or
any elevators, escalators or other mechanical, electrical, electronic, computer
or other systems or equipment for the Property, except to the extent that any
of the same serves particular tenants exclusively (and “systems and equipment”
without capitalization shall refer to such of the foregoing items serving
particular tenants exclusively).


 


(N)          “Taxes” shall mean all amounts (unless
required by Landlord to be paid under Article 14) for federal, state, county,
or local governmental, special district, improvement district, municipal or
other political subdivision taxes, fees, levies, assessments, charges or other
impositions of every kind and nature in connection with the ownership, leasing
and operation of the Property, whether foreseen or unforeseen, general,
special, ordinary or extraordinary (including real estate and ad valorem taxes,
general and special assessments, interest on special assessments paid in
installments, transit taxes, water and sewer rents, license and business
license fees, use or occupancy taxes, taxes based upon the receipt of rent
including gross receipts or sales taxes applicable to the receipt of rent or
service or value added taxes, personal property taxes, taxes on fees for
property management services, and taxes or charges for fire protection,
streets, sidewalks, road maintenance, refuse or other services).  If the method of taxation of real estate
prevailing at the time of execution hereof shall be, or has been, altered so as
to cause the whole or any part of the Taxes now, hereafter or heretofore
levied, assessed or imposed on real estate to be levied, assessed or imposed on
Landlord, wholly or partially, as a capital stock levy or otherwise, or on or
measured by the rents, income or gross receipts received therefrom, then such
new or altered taxes attributable to the Property shall be included within the
term “Taxes,” except that the same shall not include any portion of such tax
attributable to other income of Landlord not relating to the Property. Tenant
shall pay increased Taxes whether Taxes are increased as a result of increases
in the assessment or valuation of the Property (whether based on a sale, change
in ownership or refinancing of the Property or otherwise), increases in tax
rates, reduction or elimination of any rollbacks or other deductions available
under current law, scheduled reductions of any tax abatement, as a result of
the elimination, invalidity or withdrawal of any tax abatement, or for any
other cause whatsoever.  If Taxes are
reduced by, or credited with, any abatement or exemption issued by a taxing
authority to help finance or reimburse Landlord for costs incurred to comply
with Laws or otherwise, Taxes hereunder shall be computed without regard to
such abatement or exemption, except to the extent that Landlord properly
includes such costs in Expenses under this Lease.  Notwithstanding the foregoing, there shall be excluded from Taxes
all excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to Landlord’s general or net income
(as opposed to rents, receipts or income attributable to operations at the
Property).


 


(O)          “Tenant” shall be applicable to one or
more Persons as the case may be, the singular shall include the plural, and if
there be more than one Tenant, the obligations thereof shall be joint and
several.  When used in the lower case,
“tenant” shall mean any other tenant, subtenant or occupant of the Property.


 


(P)           “Tenant’s Share” of Taxes and
Expenses shall be the percentage set forth in Article 1, but if the rentable
area of the Premises or Property shall change, Tenant’s Share shall thereupon
become the rentable area of the Premises divided by the rentable area of the
Property, excluding any parking facilities, subject at all times to adjustment
under Article 4.  Tenant acknowledges
that the “rentable area of the Premises” under this Lease includes the usable
area, without deduction for columns or projections, multiplied by a load or
conversion factor, to reflect a


 


36

















 


share of certain
areas, which may include lobbies, corridors, mechanical, utility, janitorial,
boiler and service rooms, vaults and closets, restrooms, and other public,
common and service areas.  Except as
provided expressly to the contrary herein, the “rentable area of the Property”
shall include all rentable area of all space leased or available for lease at
the Property, which Landlord may reasonably re-determine from time to time, to
reflect re-configurations, additions or modifications to the Property,
provided, however, that the rentable area of the Property shall not be
decreased as a result of any change in the methodology employed by Landlord in
determining rentable areas.


 


ARTICLE
33:       OFFER


 


The submission and
negotiation of this Lease shall not be deemed an offer to enter the same by
Landlord (nor an option or reservation for the Premises), but the solicitation
of such an offer by Tenant.  Tenant
agrees that its execution of this Lease constitutes a firm offer to enter the
same which may not be withdrawn for a period of fifteen (15) days after
delivery to Landlord.  During such
period and in reliance on the foregoing, Landlord may, at Landlord’s option,
deposit any Rent, proceed with any plans, specifications, alterations or
improvements, and permit Tenant to enter the Premises, but such acts shall not
be deemed an acceptance of Tenant’s offer to enter this Lease, and such
acceptance shall be evidenced only by Landlord signing and delivering this
Lease to Tenant.


 


ARTICLE
34:       MISCELLANEOUS


 


A.            Captions
and Interpretation. 
The captions of the Articles and Paragraphs of this Lease, and any
computer highlighting of changes from earlier drafts, are for convenience of
reference only and shall not be considered or referred to in resolving
questions of interpretation.  Tenant
acknowledges that it has read this Lease and that it has had the opportunity to
confer with counsel in negotiating this Lease; accordingly, this Lease shall be
construed neither for nor against Landlord or Tenant, but shall be given a fair
and reasonable interpretation in accordance with the meaning of its terms.  The neuter shall include the masculine and
feminine, and the singular shall include the plural.  The term “including” shall be interpreted to mean “including, but
not limited to.”


 


B.            Survival
of Provisions.  All
obligations (including indemnity, Rent and other payment obligations) or rights
of either party arising during or attributable to the period prior to
expiration or earlier termination of this Lease shall survive such expiration
or earlier termination.


 


C.            Severability.  If any term or provision of this Lease or
portion thereof shall be found invalid, void, illegal, or unenforceable
generally or with respect to any particular party, by a court of competent
jurisdiction, it shall not affect, impair or invalidate any other terms or
provisions or the remaining portion thereof, or its enforceability with respect
to any other party.


 


D.            Failure to
Commence.  If the
Commencement Date is delayed in accordance with Article 3 for more than one (1)
year, this Lease shall thereupon be deemed terminated without further action by
either party.


 


E.             Short
Form Lease.  Neither
this Lease nor any memorandum of lease or short form lease shall be recorded by
Tenant, but Landlord or any Lender may elect to record a short form of this
Lease, in which case Tenant shall promptly execute, acknowledge and deliver the
same on a form prepared by Landlord or such Lender and reasonably acceptable to
Tenant.


 


37

















 


F.             Light,
Air and Other Interests. 
This Lease does not grant any legal rights to “light and air” outside
the Premises nor any particular view visible from the Premises, nor any
easements, licenses or other interests unless expressly contained in this
Lease.


 


G.            Authority.  If Tenant is any form of corporation,
partnership, limited liability company or partnership, association or other
organization, Tenant and all Persons signing for Tenant below hereby represent
that this Lease has been fully authorized and no further approvals are
required, and Tenant is duly organized, in good standing and legally qualified
to do business in the Premises (and has any required certificates, licenses,
permits and other such items).


 


H.            Partnership
Tenant.  If Tenant is
a partnership, all current and new general partners shall be jointly and
severally liable for all obligations of Tenant hereunder and as this Lease may
hereafter be modified, whether such obligations accrue before or after
admission of future partners or after any partners die or leave the
partnership.  Tenant shall cause each
new partner to sign and deliver to Landlord written confirmation of such
liability, in form and content satisfactory to Landlord, but failure to do so
shall not avoid such liability.


 


I.              Financial
Statements.  Landlord
has executed the Lease in reliance upon certain financial information which has
been submitted by Tenant to Landlord prior to the execution of the Lease (the
“Financial Information”).  Tenant shall,
within ten (10) days after requested from time to time, deliver to Landlord
financial statements, at least consistent in form and detail as the Financial
Information, for Tenant’s and all Guarantors’ then most recent full and partial
fiscal year preceding such request, certified by an independent certified
public accountant or Tenant’s or such Guarantors’ chief financial officer,
except, however, that if Tenant is a publicly traded company and such Financial
Information is publicly available to Landlord, Tenant shall not be obligated to
provide such financial statements to Landlord. 
As a material inducement to Landlord to enter into this Lease, Tenant
(and each party executing this Lease on behalf of Tenant individually)
represents and warrants to Landlord that the Financial Information is complete,
true and correct and presents a fair representation of Tenant’s financial
condition at the time of signing of this Lease.


 


J.             Successors
and Assigns; Transfer of Property.  Each of the terms and provisions of this Lease shall be binding
upon and inure to the benefit of the parties’ respective heirs, executors,
administrators, guardians, custodians, successors and assigns, subject to
Article 13 respecting Transfers and Article 18 respecting rights of
Lenders.  Subject to Article 18, if
Landlord shall convey or transfer the Property or any portion thereof in which
the Premises are contained to another party, such party shall thereupon be and
become landlord hereunder and shall be deemed to have fully assumed all of
Landlord’s obligations under this Lease accruing during such party’s ownership,
including the return of any security deposit, and Landlord shall be free of all
such obligations accruing from and after the date of conveyance or transfer.


 


K.            Limitation
of Landlord’s Liability. 
Tenant agrees to look solely to Landlord’s interest in the Property for
the enforcement of any judgment, award, order or other remedy under or in
connection with this Lease or any related agreement, instrument or document or
for any other matter whatsoever relating thereto or to the Property or
Premises.  Under no circumstances shall
any present or future, direct or indirect, principals or investors, general or
limited partners, officers, directors, shareholders, trustees, beneficiaries,
participants, advisors, managers, employees, agents or affiliates of Landlord,
or of any of the other foregoing parties, or any of their heirs, successors or
assigns have any liability for any of the foregoing matters.


 


38

















 


L.            Confidentiality.  Tenant shall keep the content and all copies
of this Lease, related documents or amendments now or hereafter entered, and
all proposals, materials, information and matters relating thereto strictly
confidential, and shall not disclose, disseminate or distribute any of the
same, or permit the same to occur, except to the extent reasonably required for
proper business purposes by Tenant’s employees, attorneys, insurers, auditors,
lenders and Transferees (and Tenant shall obligate any such parties to whom
disclosure is permitted to honor the confidentiality provisions hereof), and
except as may be required by Law or court proceedings.


 


M.           ERISA.  Tenant represents and warrants that:


 


(i)            Neither Tenant nor any of its
“affiliates” (within the meaning of Part V(c) of Prohibited Transaction
Exemption 84-14, 49 Fed. Reg. 9494 (1984), as amended (“PTE 84-14”)) has, or
during the immediately preceding year has exercised the authority to:


 


(a)           appoint
or terminate Landlord as investment manager over assets of any “employee
benefit plan” (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) invested in, or sponsored by,
Landlord; or


 


(b)           negotiate
the terms of a management agreement (including renewals or modifications
thereof) with Landlord on behalf of any such plan;


 


(ii)           To the best of Tenant’s knowledge,
Tenant is not “related” to Landlord (as determined under in Part V(h) of PTE
84-14);


 


(iii)          Tenant has negotiated and determined
the terms of this Lease at arm’s length, as such terms would be negotiated and
determined by the Tenant with unrelated parties; and


 


(iv)          Tenant is not an “employee benefit
plan” as defined in Section 3(3) of ERISA, a “plan” as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or an entity
deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any
such employee benefit plan or plan.


 


N.            Existing
Sublease.  Tenant is
currently an occupant of the Premises pursuant to that certain sub-sublease
dated June 1, 1998 (the “Sub-sublease”), by and between Tenant and Emerald
Ventures, Inc.  The Sub-sublease is
scheduled to expire on July 31, 2004. 
Tenant acknowledges and agrees that if the Sub-sublease or the existing
lease or sublease of the Premises is terminated by Landlord as a result of a
default by Tenant under the Sub-sublease, Landlord may elect to terminate this
Lease.  In the event of such termination,
Tenant shall not be liable for damages under Section 15.B above, but Tenant
shall reimburse Landlord for all costs and expenses incurred in connection with
this Lease, including brokerage commissions.


 


O.            Force
Majeure.  Neither
party shall be liable for any delay or failure to perform its nonmonetary
obligations hereunder due to (and the time for performance of any covenant
shall be deemed extended by the time last due to) any causes beyond its
reasonable control, including, without limitation, fire, accident, act of the
public enemy, war, rebellion, insurrection, sabotage, transportation delay,
labor dispute, shortages of material, labor, energy or machinery, or act of
God, act of government or the judiciary.


 


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ARTICLE
35:       ENTIRE AGREEMENT


 


This Lease, together with
the Riders, Exhibits and other documents listed in Article 1 (WHICH
COLLECTIVELY ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART
HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and
provisions between Landlord and Tenant relating to the matters set forth herein
and no prior or contemporaneous agreement or understanding pertaining to the
same shall be of any force or effect, except any such contemporaneous agreement
specifically referring to and modifying this Lease, signed by both
parties.  Without limitation as to the
generality of the foregoing, Tenant hereby acknowledges and agrees that
Landlord’s leasing agents and field personnel are only authorized to show the
Premises and negotiate terms and conditions for leases subject to Landlord’s
final approval, and are not authorized to make any agreements, representations,
understandings or obligations, binding upon Landlord, respecting the condition
of the Premises or Property, suitability of the same for Tenant’s business, the
current or future amount of Taxes or Expenses or any component thereof, the
amount of rent or other terms applicable under other leases at the Property,
whether Landlord is furnishing the same utilities or services to other tenants
at all, on the same level or on the same basis, or any other matter, and no
such agreements, representations, understandings or obligations not expressly
contained herein or in such contemporaneous agreement shall be of any force or
effect.  TENANT HAS RELIED ON TENANT’S
INSPECTIONS AND DUE DILIGENCE IN ENTERING THIS LEASE, AND NOT ON ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE HABITABILITY,
CONDITION OR SUITABILITY OF THE PREMISES OR PROPERTY FOR ANY PARTICULAR PURPOSE
OR ANY OTHER MATTER NOT EXPRESSLY CONTAINED HEREIN.  Neither this Lease, nor any Riders or
Exhibits referred to above may be modified, except in writing signed by both
parties.


 


ARTICLE
36:       RIGHT TO TERMINATE


 


Landlord and Tenant shall
each have the option, to be exercised as hereinafter provided, to terminate the
term of this Lease effective as of July 31, 2009 (the “Termination Date”).  Such option shall be exercised, if at all,
time being of the essence, by written notice given by Landlord or Tenant to the
other party (“Termination Notice”) no later than November 1, 2008; provided,
however, that notwithstanding the foregoing, if Landlord delivers its
Termination Notice to Tenant, Landlord shall have the right to rescind such
Termination Notice by written notice (the “Rescission Notice”) given to Tenant
no later than December 31, 2008.  If
Landlord timely delivers such Rescission Notice to Tenant, Landlord’s
Termination Notice shall be of no further force or effect; provided that if
Landlord shall deliver the Rescission Notice, Tenant shall have an additional
thirty (30) days after receipt thereof to deliver a Termination Notice.  Tenant may not, unless Landlord otherwise
agrees, exercise its option to terminate this Lease pursuant to this
Section 36 at any time at which a Default by Tenant exists under this
Lease, and no such termination shall be effective if such Default exists unless
Landlord otherwise agrees.  Any notice
of exercise of Landlord’s or Tenant’s option to terminate the term of this
Lease pursuant to this Section 36 shall be irrevocable by the exercising
party once given.  If either Landlord or
Tenant so exercises its option to terminate the term of this Lease then
effective as of the Termination Date, this Lease shall be deemed to have
expired by lapse of time, and Tenant shall return the Premises to Landlord on
the Termination Date in accordance with the requirements of this Lease.  All obligations of Tenant which accrue under
this Lease on or before the Termination Date shall survive such termination.


 


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ARTICLE
37:       RIGHT TO EXTEND


 


A.            Option
Period.  Provided that
this Lease is then in full force and effect, that Tenant is not then in Default
under this Lease, and that Tenant, or an Affiliate is then occupying 80% or
more of the Premises having been leased to the Tenant in the Building, Landlord
hereby grants to Tenant an option to extend the term of this Lease, on the same
terms and conditions set forth in the Lease, except that Tenant shall have no
further right to extend and except as set forth below, for one (1)
additional five (5) year term (the “Option Period”). The option to extend shall
be exercised, if at all, by written notice (“Option Notice”) to Landlord given
not later than November 1, 2013, time being of the essence.  Once the Option Notice is given, Tenant’s
exercise of such option shall be irrevocable. 
If the option hereby granted is not so exercised, Tenant shall have no
further right to extend the term of this Lease.  The Base Rent during the Option Period shall be the Market Rate
of Base Rent (as hereinafter defined and determined).  Landlord shall have no obligation to make improvements,
decorations, repairs, alterations or additions to the Premises as a condition
to Tenant’s obligation to pay rent for the Option Period.


 


B.            Market
Rate of Base Rent.  As
used in this Lease, the term “Market Rate of Base Rent” shall mean the then
prevailing annual rental rate per square foot of rentable area of space in the
Chicago Central Business District (the “Market Area”), for lease renewals of
comparable area and location to the space for which the Market Rate of Base
Rent is being determined and being renewed for a duration comparable to the
period for which such space is to be leased for periods commencing on or about
the commencement of the term of such space. The Market Rate of Base Rent shall
be determined by first taking into consideration comparable fact situations in
the Building, and if there are no comparable facts situations in the Building,
then taking into consideration comparable facts situations in comparable
buildings in the Market Area.  In
determining the Market Rate of Base Rent, the following shall be taken into
consideration: use, location and floor level within the applicable building,
the tenant improvements already in the space for which the Market Rate of Base
Rent is being determined, the location, quality, age and reputation of the
building, the definition of rentable area or net rentable area, as the case may
be, with respect to which such rental rates are computed, leasehold
improvements being provided (if any), rental concessions, abatements or other
monetary inducements (if any), the term of the renewal under consideration and
the extent of services provided thereunder, the extent of the amenities offered
at such building, applicable distinctions between “gross” leases and “net”
leases, base year figures (if any) for escalation purposes and other
adjustments (including by way of indexes) to base rental (if any); and may take
into consideration any other relevant term or condition in making such
evaluation.


 


C.            Arbitration.  Landlord shall notify Tenant of Landlord’s
determination of the Market Rate of Base Rent within thirty (30) days after
receipt of Tenant’s Option Notice, but no sooner than November 1, 2013.  If Tenant disagrees with Landlord’s
determination of the Market Rate of Base Rent, Tenant shall notify Landlord of
such disagreement within ten (10) days after receipt of Landlord’s
determination of the Market Rate of Base Rent. 
If Tenant fails to so notify Landlord of Tenant’s disagreement within
the required time period, Landlord’s determination of the Market Rate of Base
Rent shall be binding on Tenant.  If
Tenant so notifies Landlord that Landlord’s determination of the Market Rate of
Base Rent is not acceptable to Tenant, Landlord and Tenant shall, during the
thirty (30) day period after Tenant’s notice, attempt to agree on the Market
Rate of Base Rent.  If Landlord and Tenant
are unable to agree, Tenant shall either (i) accept Landlord’s
determination of the Market Rate of Base Rent or (ii) submit the
determination to binding arbitration as provided below.  If Tenant fails to so notify


 


41

















 


Landlord of
Tenant’s election under the preceding sentence within five (5) business days
after expiration of said thirty (30) day period, Tenant shall be deemed to have
elected to submit the determination to binding arbitration.  If Tenant elects to submit to arbitration
the determination of the Market Rate of Base Rent, Landlord and Tenant shall
select an expert within fifteen (15) days after Tenant’s election to
arbitrate.  Such expert shall be
actively engaged in and have a minimum of ten (10) years experience in leasing
similar office real estate and be familiar with similar office buildings in
Chicago, Illinois.  If Landlord and
Tenant are unable to agree upon an expert within said fifteen (15) day period,
then Landlord and Tenant shall each select an expert within five (5) days after
the expiration of said fifteen (15) day period.  Each such expert shall meet the same qualifications.  If two (2) experts are so selected, then
both experts so selected shall within fifteen (15) days after their selection
select a third expert who shall also meet the same qualifications.  After selection of the expert or experts, as
the case may be, each of Landlord and Tenant shall submit to the expert or
experts their respective determination of the Market Rate of Base Rent.  The expert or experts, as the case may be,
so selected shall within fifteen (15) days after selection determine which of
Landlord’s or Tenant’s determination reflects, in such expert or experts, as
the case may be, opinion the Market Rate of Base Rent.  The expert or experts, as the case may be,
shall only be permitted to select either Landlord or Tenant’s determination and
shall not be permitted to determine a different Market Rate of Base Rent.  The determination of the Market Rate of Base
Rent by such expert or experts shall be binding upon Landlord and Tenant.  If one (1) expert is selected, Landlord and
Tenant shall share equally the costs of such expert.  If three (3) experts are selected, Landlord and Tenant shall each
pay for the services of its expert and shall share equally the costs of the
third expert.


 


[signatures on following
page]


 


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IN WITNESS WHEREOF, the
parties have executed this Lease as of the date first set forth above.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  THE PRUDENTIAL INSURANCE
  COMPANY

  OF AMERICA, a New Jersey corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  LKQ CORPORATION, a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


43