EX-10.64






EXHIBIT 10.64




OFFICE LEASE




500 WEST MONROE




BROADWAY 500 WEST MONROE FEE LLC,




a Delaware limited liability company




as Landlord,




and




MIDWEST BANK & TRUST, Co.




an Illinois corporation,




as Tenant.




 









 





OFFICE LEASE




     This Office Lease (the “Lease”), dated as of the date set forth in Section 1 of the
Summary of Basic Lease Information (the “Summary”), below, is made by and between Broadway 500 West
Monroe Fee LLC, a Delaware limited liability company (“Landlord”), and Midwest Bank & Trust, Co.,
an Illinois corporation (“Tenant”).



SUMMARY OF BASIC LEASE INFORMATION




	 	 	 	 	 
	 	 	TERMS OF LEASE	 	DESCRIPTION
	1.

	 	Date:
	 	November ___, 2008
	 
	 	 	 	 
	2.

	 	Building:
	 	That certain office building having an address of
500 West Monroe Street, Chicago, Illinois, and as
further set forth in Section 1.1.2 of this Lease.
	 
	 	 	 	 
	3.

	 	Premises:
	 	Approximately sixteen thousand five hundred
thirteen (16,513) rentable square feet of space
consisting of (i) approximately fourteen thousand
one hundred fifty (14,150) rentable square feet of
space located on the thirty first
(31st) floor of the Building, as
further set forth in Exhibit A to this Lease (the
“Office Premises”), and (ii) approximately two
thousand three hundred sixty three (2,363)
rentable square feet of space located on the east
side of the lobby of the Building, as further set
forth in Exhibit A to this Lease) (the “Retail
Premises”, and together with the Office Premises,
referred to as the “Premises”).
	 
	 	 	 	 
	4.

	 	Project:
	 	The Building is part of an office project
currently known as “500 West Monroe.”
	 
	 	 	 	 
	5.

	 	Lease Term:
	 	One Hundred Twenty (120) months commencing on the
“Office Premises Commencement Date” (defined
below).
	 
	 	 	 	 
	6.

	 	Commencement Date:
	 	For the Office Premises, the earlier to occur of
(i) the date of Substantial Completion of the
Tenant Improvements (as defined in the Work
Letter), and (ii) May 1, 2009 (“Office Premises
Commencement Date”).
	 
	 	 	 	 
	 

	 	 	 	For the Retail Premises, the earlier to occur of
(i) the date of Substantial Completion of the
Tenant Improvements (as defined in the Work
Letter), and (ii) May 1, 2009 (“Retail Premises
Commencement Date”).
	 
	 	 	 	 
	7.

	 	Expiration Date:
	 	The tenth (10th) anniversary of the
Office Premises Commencement Date.
	 
	 	 	 	 
	8.

	 	Options to Extend:
	 	One (1) five (5)-year option pursuant to Exhibit E.
	 
	 	 	 	 
	9.

	 	 Base Rent:	 	 






	 	 	 	 	 	 	 
	Office Premises	 	 	 	 	 	 
	 	 	 	 	 	 	Approximate Annual
	Lease Year	 	Annual Base Rent	 	Monthly Base Rent	 	Rate per RSF
	1
	 	$325,449.96
	 	$27,120.83
	 	$23.00
	2
	 	$335,213.40
	 	$27,934.45
	 	$23.69
	3
	 	$345,269.76
	 	$28,772.48
	 	$24.40
	4
	 	$355,627.80
	 	$29,635.65
	 	$25.13
	5
	 	$366,296.64
	 	$30,524.72
	 	$25.88
	6
	 	$377,285.52
	 	$31,440.46
	 	$26.66
	7
	 	$388,604.04
	 	$32,383.67
	 	$27.46
	8
	 	$400,262.16
	 	$33,355.18
	 	$28.28
	9
	 	$412,270.08
	 	$34,355.84
	 	$29.13
	10
	 	$424,638.24
	 	$35,386.52
	 	$30.00






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	Retail Premises	 	 	 	 	 	 
	 	 	 	 	 	 	Approximate Annual
	Lease Year	 	Annual Base Rent	 	Monthly Base Rent	 	Rate per RSF
	1
	 	$59,075.04
	 	$4,922.92
	 	$25.00
	2
	 	$60,847.32
	 	$5,070.61
	 	$25.75
	3
	 	$62,672.76
	 	$5,222.73
	 	$26.52
	4
	 	$64,552.92
	 	$5,379.41
	 	$27.32
	5
	 	$66,489.48
	 	$5,540.79
	 	$28.14
	6
	 	$68,484.12
	 	$5,707.01
	 	$28.98
	7
	 	$70,538.64
	 	$5,878.22
	 	$29.85
	8
	 	$72,654.84
	 	$6,054.57
	 	$30.75
	9
	 	$74,834.52
	 	$6,236.21
	 	$31.67
	10
	 	$77,079.60
	 	$6,423.30
	 	$32.62






	 	 	 	 	 	 	 
	ATM Premises *	 	 	 	 	 	 
	 
	Lease Year	 	Annual Base Rent	 	Monthly Base Rent	 	 
	1
	 	$7,200.00
	 	$600.00
	 	 
	2
	 	$7,488.00
	 	$624.00	 	 
	3
	 	$7,787.52
	 	$648.96	 	 
	4
	 	$8,099.04
	 	$674.92	 	 
	5
	 	$8,423.04
	 	$701.92	 	 
	6
	 	$8,760.00
	 	$730.00	 	 
	7
	 	$9,110.40
	 	$759.20	 	 
	8
	 	$9,474.84
	 	$789.57	 	 
	9
	 	$9,853.80
	 	$821.15	 	 
	10
	 	$10,248.00
	 	$854.00	 	 








 




			
	*	 	Subject to Section 29.36 of the Lease.





	 	 	 	 	 
	10.

	 	Rent Payment Address:
	 	Electronic Funds Transfer:
	 

	 	 	 	Bank Name: KeyBank, N.A.
	 

	 	 	 	ABA Number: 021-300-077
	 

	 	 	 	Account Name: Broadway 500 West Monroe Fee LLC Lockbox
	 

	 	 	 	Account f/b/o Morgan Stanley Mortgage Capital Holdings
	 

	 	 	 	LLC, as Lender together with its successors or assigns
	 

	 	 	 	Account Number: 327820074398
	 
	 	 	 	 
	 

	 	 	 	If paying rent by check:
	 

	 	 	 	Broadway 500 West Monroe Fee LLC
	 

	 	 	 	PO Box 712915
	 

	 	 	 	Cincinnati, OH 45271-2915
	 
	 	 	 	 
	11.

	 	Intentionally Omitted.	 	 
	 
	 	 	 	 
	12.

	 	Tenant’s Share:
	 	1.5021% (for Office Premises)
	 
	 	 	 	 
	 

	 	 	 	0.2472% (for Retail Premises)
	 
	 	 	 	 
	13.

	 	Permitted Use:
	 	For Office Premises, general office use, so long as such
use is consistent with all applicable Laws and with the
character of a first class office building (the “Office
Premises Permitted Use”).
	 
	 	 	 	 
	 

	 	 	 	For Retail Premises, branch banking use, so long as such
use is consistent with all applicable Laws and with the
character of a first class office building (the “Retail
Premises Permitted Use”, together with the Office
Premises Permitted Use, the “Permitted Use”).
	 
	 	 	 	 
	14.

	 	Security Deposit:
	 	Two Hundred Seventy Five Thousand Dollars ($275,000.00),
subject to Article 21.






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	15.

	 	Parking Passes:
	 	Three (3) reserved passes and seven (7) unreserved passes.
	 
	 	 	 	 
	16.

	 	Address of Tenant:
	 	Midwest Bank and Trust Company
	 

	 	 	 	501 West North Ave.
	 

	 	 	 	Melrose Park, IL 60160
	 

	 	 	 	Attention: Bruno Costa, Executive Vice President
	 

	 	 	 	(Prior to Commencement Date)
	 
	 	 	 	 
	 

	 	 	 	Midwest Bank and Trust Company
	 

	 	 	 	500 West Monroe, 31st Floor
	 

	 	 	 	Chicago, IL 60661
	 

	 	 	 	Attention: Bruno Costa, Executive Vice President
	 

	 	 	 	(After Commencement Date)
	 
	 	 	 	 
	17.

	 	Landlord’s Address:
	 	Broadway 500 West Monroe Fee LLC,
	 

	 	 	 	c/o Broadway Partners
	 

	 	 	 	375 Park Avenue, 29th Floor
	 

	 	 	 	New York, New York 10152
	 

	 	 	 	Attention: National Leasing Counsel
	 
	 	 	 	 
	 

	 	 	 	And
	 
	 	 	 	 
	 

	 	 	 	c/o Broadway Partners
	 

	 	 	 	375 Park Avenue, 29th Floor
	 

	 	 	 	New York, New York 10152
	 

	 	 	 	Attention: Asset Manager
	 
	 	 	 	 
	 

	 	 	 	And
	 
	 	 	 	 
	 

	 	 	 	Friedman & Solomon LLP
	 

	 	 	 	9665 Wilshire Boulevard, Suite 810
	 

	 	 	 	Beverly Hills, California 90212
	 

	 	 	 	Attention: Robert E. Solomon, Esq.
	 
	 	 	 	 
	18.

	 	Brokers
	 	Landlord’s Broker: Jones Lang LaSalle
	 

	 	 	 	Tenant’s Broker: Studley, Inc.
	 
	 	 	 	 
	19.

	 	Improvement Allowance:
	 	Nine Hundred Twenty Four Thousand Seven Hundred Twenty
	 

	 	 	 	Eight Dollars ($56 per rentable square foot)






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ARTICLE 1

PREMISES, BUILDING, PROJECT, AND COMMON AREAS




     1.1 The Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises (the “Premises”) which are set forth in Section 3 of the Summary of
Basic Lease Information above (the “Summary”). The outline of the Premises is set forth in
Exhibit A attached hereto. Landlord and Tenant hereby acknowledge and agree that the
rentable square footage of the Premises shall be deemed to be as set forth in Section 3 of
the Summary and that the same shall not be subject to re-measurement or modification. The parties
hereto agree that the lease of the Premises is upon and subject to the terms, covenants and
conditions herein set forth, and Tenant covenants as a material part of the consideration for this
Lease to keep and perform each and all of such terms, covenants and conditions by it to be kept and
performed and that this Lease is made upon the condition of such performance. The parties hereto
hereby acknowledge that the purpose of Exhibit A is to show the approximate location of the
Premises in the “Building,” as that term is defined in Section 1.2, below, only, and such
Exhibit is not meant to constitute an agreement, representation or warranty as to the construction
of the Premises, the precise area thereof or the specific location of the “Common Areas,” as that
term is defined in Section 1.3, below, or the elements thereof or of the accessways to the
Premises or the “Project,” as that term is defined in Section 1.2, below. Except as
specifically set forth in this Lease and in the Work Letter attached hereto as Exhibit C,
if applicable (the “Work Letter”), Landlord shall not be obligated to provide or pay for any
improvement work or services related to the improvement of the Premises or occupancy thereof by
Tenant. Tenant also acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty regarding the condition of the Premises, the Building or the Project or
with respect to the suitability of any of the foregoing for the conduct of Tenant’s business and
Tenant shall accept the Premises in its “as is” condition of the Commencement Date, except as
specifically set forth in this Lease and the Work Letter, if applicable. The taking of possession
of the Premises by Tenant shall conclusively establish that the Premises and the Building were at
such time in good and sanitary order, condition and repair.



     1.2 The Building and The Project. The Premises are a part of the building set forth
in Section 2 of the Summary (the “Building”). The term “Project,” as used in this Lease,
shall mean (i) the Building and the Common Areas, (ii) the land (which is improved with
landscaping, parking facilities and other improvements) upon which the Building and the Common
Areas are located, and (iii) at Landlord’s discretion, any additional real property, areas, land,
buildings or other improvements added thereto outside of the Project. Landlord shall have the
right from time to time in Landlord’s sole discretion, to convert office space in the Project to
retail and/or residential space, or to convert retail and/or residential space in the Project to
office space.



     1.3 Common Areas. Tenant shall have the non-exclusive right to use in common with
other tenants in the Project, and subject to the Rules and Regulations set forth in Exhibit
D, those portions of the Project which are provided, from time to time, for use in common by
Landlord, Tenant and any other tenants of the Project (such areas, together with such other
portions of the Project designated by Landlord, are collectively referred to herein as the “Common
Areas”). The manner in which the Common Areas are maintained and operated shall be at the
reasonable discretion of Landlord and the use thereof shall be subject to such rules, regulations
and restrictions as Landlord may make from time to time, provided that at all times Landlord shall
maintain and operate the Common Areas in a manner substantially consistent with other “Class A”
office buildings in the Chicago, Illinois central business district. Landlord reserves the right
to close temporarily, make alterations or additions to, or change the location of elements of the
Project and the Common Areas and may temporarily close the Building or the Project in the event of
casualty, governmental requirements, the threat of an emergency such as terrorism, natural
disasters or acts of God, or if Landlord reasonably deems it necessary in order to prevent damage
or injury to person or property.



ARTICLE 2

LEASE TERM




     2.1 Lease Term. The terms and provisions of this Lease shall be effective as of the
date of this Lease. The term of this Lease (the “Lease Term”) shall be as set forth in Section
5 of the Summary, shall commence on the date set forth in Section 6 of the Summary (the
“Commencement Date”), and shall expire on the date set forth in Section 7 of the Summary
(the “Expiration Date”) unless this Lease is sooner terminated as hereinafter provided. For
purposes of this Lease, the term “Lease Year” shall mean each consecutive twelve (12) month period
during the Lease Term, provided that the last Lease Year shall end on the Expiration Date. If
Tenant, with Landlord’s prior written approval, takes possession of the Premises prior to the
Commencement Date for the sole purpose of performing any improvements therein or installing
furniture, fixtures, equipment or other personal property of Tenant, such possession shall be
subject to all of the terms and conditions of the Lease, except that Tenant shall not be required
to pay Base Rent only with respect to the period of time prior to the Commencement Date during
which Tenant performs such work.



     2.2 Delivery of Premises and Use Prior To Commencement Date. Landlord shall deliver
the Premises to Tenant promptly following mutual execution and delivery of the Lease for the
purpose of Tenant performing the Tenant Improvements (as defined in the Work Letter). Such
possession prior to the Commencement Date shall be subject to all of the terms and conditions of
this Lease, other than Tenant’s obligations to pay Base Rent (as defined in Article 3) and
Additional Rent (as defined in Article 4).



1









 





     2.3 Option to Extend. Tenant shall have one (1) option to extend the Lease Term with
respect to all of the Premises in accordance with the terms and provisions of Exhibit E.



ARTICLE 3

BASE RENT




     3.1. Base Rent. Tenant shall pay, without prior notice, demand, setoff or deduction,
to Landlord or Landlord’s agent at the address set forth in Section 10 of the Summary, or,
at Landlord’s option, at such other place as Landlord may from time to time designate in writing,
by a check for currency which, at the time of payment, is legal tender for private or public debts
in the United States of America, base rent (“Base Rent”) as set forth in Section 9 of the
Summary, payable in equal monthly installments as set forth in Section 9 of the Summary in
advance on or before the first (1st) day of each and every calendar month during the
Lease Term, without any abatement, setoff or deduction whatsoever. In accordance with Section
29.25, this Article 3 shall be construed as though the covenants herein between
Landlord and Tenant are independent and Tenant shall not be entitled to any setoff of the Rent or
other amounts owing to Landlord under this Article 3. The Base Rent for the first full
month of the Lease Term which occurs after the expiration of any free rent period shall be paid at
the time of Tenant’s execution of this Lease. If any Rent payment date (including the Commencement
Date) falls on a day of the month other than the first day of such month or if any payment of Rent
is for a period which is shorter than one month, the Rent for any fractional month shall be
calculated on a daily basis for the period from the date such payment is due to the end of such
calendar month or to the end of the Lease Term at a rate per day which is equal to
1/30th of the applicable monthly Rent. All other payments or adjustments required to be
made under the terms of this Lease that require proration on a time basis shall be prorated on the
same basis.



     3.2 Waived Rent. Notwithstanding anything herein which may be construed to the
contrary, provided there is no Default by Tenant existing under the Lease during the “Office
Premises Waiver Period” (as defined below), (i) the monthly installment of Base Rent for the Office
Premises specified in Section 9 of the Summary and (ii) “Tenant’s Share” of “Operating
Expenses” and “Tax Expenses” specified in Article 4, below, with respect to the Office
Premises, are hereby waived by Landlord (“Office Premises Waived Rent”) for months five (5) through
twelve (12) following the Office Premises Commencement Date (“Office Premises Waiver Period”).
Additionally, notwithstanding anything herein which may be construed to the contrary, provided
there is no Default by Tenant existing under the Lease during the “Retail Premises Waiver Period”
(as defined below), (i) the monthly installment of Base Rent for the Retail Premises specified in
Section 9 of the Summary and (ii) “Tenant’s Share” of “Operating Expenses” and “Tax Expenses”
specified in Article 4, below, with respect to the Retail Premises, are hereby waived by
Landlord (“Retail Premises Waived Rent”) for months five (5) through twelve (12) following the
Retail Premises Commencement Date (“Retail Premises Waiver Period”, together with the Office
Premises Waiver Period, the “Waiver Period”). This waiver shall not affect Tenant’s obligation to
pay any other charges payable by Tenant under the Lease during the applicable Waiver Period.
Commencing on the day following the last day of the applicable Waiver Period, Base Rent as
specified in Section 9 of the Summary and Tenant’s Share of Operating Expenses and Tax
Expenses as specified in Article 4 below shall be due and payable for the remainder of the
Lease Term.



     3.3. Conversion Right. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have the right to convert (the “Conversion Right”) all or a portion of the
Waived Rent to the “Allowance Amount” (as defined in the Work Letter) In order to exercise the
Conversion Right, Tenant must give Landlord written notice (the “Conversion Notice”) no later than
the submission of the “Final Costs” as set forth in the Work Letter, which notice shall specify how
much of the Waived Rent (the “Conversion Amount”) Tenant is electing to convert to the Allowance
Amount, or Tenant shall be deemed to have irrevocably waived the Conversion Right. Provided that
Tenant timely delivers the Conversion Notice, the Improvement Allowance shall be increased by an
amount equal to the Conversion Amount. If the Conversion Amount is less than the Waived Rent, the
Waiver Period shall be recalculated to take into account the reduction in the amount of the Waived
Rent. Promptly following Tenant’s delivery of the Conversion Notice, Landlord and Tenant shall
execute an amendment to this Lease. Without waiving any of Landlord’s other rights and remedies,
Tenant hall have no right to exercise the Conversion Right during the continuance of an Event of
Default by Tenant.



ARTICLE 4

ADDITIONAL RENT




     In addition to paying the Base Rent specified in Article 3 of this Lease, Tenant shall
pay “Tenant’s Share” (as defined in Exhibit B) of (a) the annual “Operating Expenses” (as
defined in Exhibit B), and (b) the annual “Tax Expenses” (as defined in Exhibit B). Such
payments by Tenant, together with any and all other amounts payable by Tenant to Landlord pursuant
to the terms of this Lease (other than Base Rent), are hereinafter collectively referred to as the
“Additional Rent”, and the Base Rent and the Additional Rent are herein collectively referred to as
“Rent.” All amounts due under this Article 4 as Additional Rent shall be payable for the
same periods and in the same manner as the Base Rent or as otherwise specifically set forth in this
Lease. The obligations of Tenant to pay the Additional Rent provided for in this Article 4 shall
survive the expiration of the Lease Term.




2











 





ARTICLE 5

USE OF PREMISES




     5.1 Permitted Use. Tenant shall use the Office Premises solely for the Office
Premises Permitted Use and the Retail Premises for the Retail Premises Permitted Use set forth in
Section 13 of the Summary and Tenant shall not use or permit the Premises or the Project to
be used for any other purpose or purposes whatsoever without the prior written consent of Landlord,
which may be withheld in Landlord’s sole discretion. Tenant shall, at its own cost and expense,
obtain and maintain any and all licenses, permits, and approvals necessary or appropriate for its
use, occupation and operation of the Premises for the Permitted Use. Tenant’s inability to obtain
or maintain any such license, permit or approval necessary or appropriate for its use, occupation
or operation of the Premises shall not relieve it of its obligations under this Lease, including
the obligation to pay Base Rent and Additional Rent. Tenant further covenants and agrees that
Tenant shall not use, or suffer or permit any person or persons to use, the Premises or any part
thereof for any use or purpose contrary to provisions of the Rules and Regulations set forth in
Exhibit D, attached hereto (as the same may be modified or rescinded from time to time), or
in violation of laws of the United States of America, the state in which the Project is located,
the ordinances, rules, regulations or requirements of the local municipal or county governing body
or other lawful authorities having jurisdiction over the Project, or all recorded covenants,
conditions, and restrictions now or hereafter affecting the Project including, without limitation,
any certificate of occupancy, any such laws, ordinances, regulations or requirements relating to
hazardous materials or substances, as those terms are defined by applicable laws now or hereafter
in effect (collectively, the “Law(s)”). A violation of the Rules and Regulations by Tenant shall be
deemed a default under this Article 5 Tenant shall not do or permit anything to be done in
or about the Project which will in any way damage the reputation of the Project or obstruct or
interfere with the rights of other tenants or occupants of the Project, or injure or annoy them or
use or allow the Project to be used for any improper, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises.



     5.2 Retail Premises Quality Standards. Landlord and Tenant acknowledge that
Landlord’s primary concern with respect to the Retail Premises is with the quality and reputation
of the retail operations located in the Project and, therefore, the character and quality of
Tenant’s operation of the Retail Premises are of paramount concern to Landlord and have strongly
influenced Landlord’s selection of Tenant. Accordingly, Tenant agrees, as a material part of this
Lease, that Tenant shall, throughout the Lease Term, maintain its quality and reputation, and the
quality of its banking service, consistent with an upscale, first-class, mixed-use office/retail
building in the Chicago, Illinois area. At all times during the Lease Term, Tenant shall utilize
and operate its business and the Retail Premises (or cause such utilization and operation)
prudently and in a manner consistent with sound business practices. Tenant agrees that on the
Retail Premises Commencement Date Tenant shall be fully staffed and open for the Retail Premises
Permitted Use.



     5.3 Maintenance of Retail Premises. Because of the location of the Retail Premises in
the Project and the critical importance of maintaining the Retail Premises in a first-class
condition so as not to detract from the appearance and condition of the Project, Landlord shall
have the right during the Lease Term to approve the concept, plans and specifications, and all
improvements, including furniture and fixtures, for the Retail Premises. Once approved, Tenant
agrees not to allow the improvements in the Retail Premises to deteriorate beyond the standard
approved by Landlord and to keep the same in a first-class condition, reasonable wear and tear
excepted. Tenant agrees to keep the interior and exterior of the Retail Premises in a neat, clean,
safe and sanitary condition. Tenant shall keep the signs of the Retail Premises well lighted until
8:00 p.m. each night or such shorter period as may be prescribed by any applicable policies or
regulations adopted by any utility or governmental agency, and shall maintain adequate night lights
thereafter.



     5.4 Tenant’s Trade Name in the Retail Premises. Tenant acknowledges that the name of
Tenant’s business establishment in the Retail Premises is of utmost concern and importance to
Landlord. Landlord shall therefore have the right to approve, in Landlord’s reasonable discretion,
the name of Tenant’s business establishment to be located in the Retail Premises.



     5.5 Retail Premises Operating Hours. Tenant shall keep the Retail Premises open for
business on each day of the week (except Saturday and Sunday) from 9:00 a.m. to 5:00 p.m. (“Minimum
Hours”), except for the date of observation of New Year’s Day, Presidents’ Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day and other locally or nationally
recognized holidays (collectively, the “Holidays”). In the event Landlord from time to time
establishes standard retail hours for the Project, Tenant shall remain open during such standard
hours; provided that if such standard hours are in excess of the Minimum Hours and Tenant
demonstrates that the hours in excess of the Minimum Hours are not economically justified, Landlord
shall not unreasonably withhold its consent to a waiver of such excess hours.



     5.6 Continued Operation of Retail Premises. Tenant covenants and agrees that it will
open for business in the Retail Premises on the Retail Premises Commencement Date, and thereafter
operate and conduct within the Retail Premises, continuously and uninterruptedly during the Lease
Term in accordance with this Section 5, the business which it is required to operate and
conduct under the provisions hereof, and that it will at all times keep and maintain the Retail
Premises and have sufficient personnel to service and supply the usual and ordinary demands and
requirements of its customers. In the event Tenant fails to continuously operate its business in
the Retail Premises as required by this Section 5, then in addition to all other remedies
available to Landlord (including without limitation, injunction and/or damages), Landlord may, but
is not obligated to, elect to terminate this Lease upon written notice of Landlord’s intent to
Tenant, whereupon this Lease shall terminate, and Tenant shall vacate the Premises upon the date
specified in Landlord’s notice to Tenant.



3









 





     5.7 Hazardous Substances. Neither Tenant, any of the officers, partners, contractors,
subcontractors, consultants, licensees, agents, concessionaires, subtenants, servants, employees,
customers, guests, invitees or visitors of Tenant (collectively, the “Tenant’s Agents”) nor any
other person shall store, place, generate, manufacture, refine, handle, or locate on, in, under or
around the Premises, the Building or Project any “Hazardous Substance” (as defined below), except
for storage, handling and use of reasonable quantities and types of cleaning fluids and office
supplies in the Premises in the ordinary course and the prudent conduct of Tenant’s business in the
Premises. As used in this Lease, the term “Hazardous Substance” shall mean and include any
chemical, material, element, compound, solution, mixture, sub-stance or other matter of any kind
whatsoever which is now or later designated, classified, listed or regulated under any Law,
statute, ordinance, rule, regulation, order or ruling of any agency of the State, the United States
Government or any local governmental authority, including, without limitation, asbestos, petroleum,
petroleum hydrocarbons and petroleum based products, urea formaldehyde foam insulation,
polychlorinated biphenyls (“PCBs”) and freon and other chlorofluorocarbons.



ARTICLE 6

SERVICES AND UTILITIES




     6.1 Standard Tenant Services. Landlord shall provide the following services on all
days (unless otherwise stated below) during the Lease Term.



          (a) Subject to limitations imposed by all governmental rules, regulations, orders and
guidelines applicable thereto, Landlord shall provide heating, ventilation and air conditioning
(“HVAC”) for use in the Premises from 8:00 A.M. to 6:00 P.M. Monday through Friday, and on
Saturdays from 8:00 A.M. to 1:00 P.M. (collectively, the “Building Hours”), except for the date of
observation of New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day and, at Landlord’s discretion, other locally or nationally recognized holidays days
recognized by unions as holidays (collectively, the “Holidays”). If Tenant desires HVAC service
outside the hours set forth above (“Overtime Periods”), Tenant shall deliver notice to the Building
office requesting such services at least 24 hours prior to the time Tenant requests such services
to be provided. If Landlord furnishes HVAC service during Overtime Periods, Tenant shall pay to
Landlord the then established Building rates for such service during Overtime Periods in the
Building upon demand thereof.




          (b) Landlord shall redistribute or furnish electricity to or for the use of Tenant in the
Premises for the operation of Tenant’s ordinary and customary lighting and office equipment in the
Premises reasonably necessary for typical general office use and in compliance with applicable
codes. Tenant shall bear the cost of replacement of lamps, starters and ballasts for non-Building
standard lighting fixtures within the Premises.




          (c) Landlord shall install and maintain a meter or meters, at Landlord’s expense, to measure
Tenant’s consumption of electricity. Tenant shall pay the public utility company directly for its
consumption of electricity.




          (d) Landlord shall provide potable water from the regular Building outlets for drinking,
lavatory and toilet purposes in the Building Common Areas.




          (e) Landlord shall provide janitorial services to the Premises five (5) days per week in a
manner consistent with other comparable buildings in the vicinity of the Building, except the date
of observation of the Holidays, in and about the Premises and window washing services in a manner
consistent with other comparable buildings in the vicinity of the Building. Tenant shall pay to
Landlord, as additional rent, the reasonable costs incurred by Landlord in removing from the
Building any of Tenant’s refuse and rubbish to the extent exceeding the amount of refuse and
rubbish usually generated by a tenant that uses the Premises for ordinary office purposes. Tenant,
at Tenant’s expense, shall exterminate the portions of the Premises that Tenant uses for the
storage, preparation, service or consumption of food against infestation by insects and vermin
regularly and, in addition, whenever there is evidence of infestation. Tenant shall engage persons
to perform such exterminating that are approved by Landlord, which approval Landlord shall not
unreasonably withhold, condition or delay. Tenant shall cause such persons to perform such
exterminating in a manner that is reasonably satisfactory to Landlord. Tenant shall comply with
any refuse disposal program (including, without limitation, any waste recycling program) that
Landlord imposes reasonably after having given Tenant reasonable advance notice of the
effectiveness thereof or that is required by applicable Laws.




          (f) Landlord shall provide nonexclusive, non-attended automatic passenger elevator service
during the Building Hours only (excluding Holidays and subject to Force Majeure), but shall have
one elevator available at all other times for nonexclusive non-attended automatic passenger
elevator service, and if the Building include an escalator, Landlord also shall provide
nonexclusive, non-attended automatic passenger escalator service during Building Hours only.




          (g) Landlord shall provide nonexclusive freight elevator service and access to the loading
dock subject to scheduling by Landlord, which use shall be at Landlord’s cost during Building
Hours. Tenant shall pay to Landlord, as additional rent, an amount calculated at the hourly rates
that Landlord charges from time to time for freight elevator service during Overtime Periods,
within ten (10) days after Landlord’s giving to Tenant an invoice therefore.




          (h) Except when and where Tenant’s right of access is specifically excluded as the result of
(i) an emergency, (ii) a requirement by any applicable Law, (iii) a specific provision set forth in
this Lease, (iv) Force Majeure, or (v) an event of casualty or condemnation, Tenant shall have the
right of ingress and egress to the Premises twenty-four (24) hours per day, seven (7) days per
week, every day of the year.




     6.2 Overstandard Tenant Use. If Tenant uses water, electricity, heat or air
conditioning in excess of that supplied by Landlord pursuant to Section 6.1 of this Lease,
Tenant shall pay to Landlord, upon billing, the



4









 




cost of such excess consumption, the cost of the installation, operation, and maintenance of equipment which is installed in order to supply such
excess consumption, and the cost of the increased wear and tear on existing equipment caused by
such excess consumption; and Landlord may install devices to separately meter any increased use and
in such event Tenant shall pay the increased cost directly to Landlord, on demand, at the rates
charged by the public utility company furnishing the same, including the cost of such additional
metering devices. Tenant’s use of electricity shall never exceed the capacity of the feeders to
the Project or the risers or wiring installation.




     6.3 Interruption of Use. Notwithstanding anything to the contrary contained herein,
to the extent permitted by applicable Law, Tenant agrees that Landlord shall not be liable for
damages, by abatement of Rent or otherwise, for failure to furnish or delay in furnishing any
service (including telephone, telecommunication, water and sewer, HVAC, and electrical services),
or for any diminution in the quality or quantity thereof, when such failure or delay or diminution
is occasioned, in whole or in part, by breakage, repairs, replacements, or improvements, by any
strike, lockout or other labor trouble, by inability to secure electricity, gas, water, or other
fuel at the Building or Project after reasonable effort to do so, by any riot or other dangerous
condition, emergency, accident or casualty whatsoever, by act, omission or default of Landlord or
other parties, or by any other cause; and such failures or delays or diminution shall never be
deemed to constitute an eviction (constructive or otherwise) or disturbance of Tenant’s use and
possession of the Premises or relieve Tenant from paying Rent or performing any of its obligations
under this Lease. Tenant hereby waives any existing or future Law, permitting the termination of
this Lease due to an interruption, failure or inability to provide any services. Furthermore,
Landlord shall not be liable under any circumstances for a loss of, or injury to, property or for
injury to, or interference with, Tenant’s business, including, without limitation, loss of profits,
however occurring, through or in connection with or incidental to a failure to furnish any of the
services or utilities as set forth in this Article 6. Landlord may comply with voluntary
controls or guidelines promulgated by any governmental entity relating to the use or conservation
of energy, water, gas, light or electricity or the reduction of automobile or other emissions
without creating any liability of Landlord to Tenant under this Lease.



     6.4 Abatement Right. Notwithstanding anything to the contrary contained in this
Article 6, if: (i) Landlord ceases to furnish any service in the Building for a period in excess
of ten (10) consecutive Business Days after Tenant notifies Landlord of such cessation (the
“Interruption Notice”); (ii) such cessation does not arise as a result of an act or omission of
Tenant; (iii) such cessation is not caused by a fire or other casualty (in which case Article 11
shall control); (iv) the restoration of such service is reasonably within the control of Landlord,
unless rental loss insurance is available (in which event the amount of abatement shall in no event
exceed the amount of rental loss insurance); and (v) as a result of such cessation, the Premises or
a material portion thereof, is rendered untenantable and Tenant in fact ceases to use the Premises,
or material portion thereof, then to the extent permitted by applicable Law, Tenant, as its sole
remedy, shall be entitled to receive an abatement of Rent payable hereunder during the period
beginning on the eleventh (11th) consecutive Business Day of such cessation and ending on the day
when the service in question has been restored. In the event the entire Premises has not been
rendered untenantable by the cessation in service, the amount of abatement that Tenant is entitled
to receive shall be prorated based upon the percentage of the Premises so rendered untenantable and
not used by Tenant. For purposes of this section, repair or restoration of any utility services to
the Building shall not be considered to be reasonably within the control of Landlord if the
interruption of such utility services results from the failure of any equipment or facilities
maintained by the utility provider.



ARTICLE 7

REPAIRS




     7.1 Tenant’s Obligations. Except as otherwise provided in this Lease, Landlord shall
have no maintenance obligation concerning the Premises and no obligation to make any repairs or
replacements, in, on, or to the Premises. Tenant shall, at Tenant’s own expense, pursuant to and
in accordance with the terms of this Lease, including without limitation Article 8 hereof,
keep the Premises, including all improvements, fixtures and furnishings therein, and the floor or
floors of the Building on which the Premises are located, in good order, repair and condition at
all times during the Lease Term (including, electrical and mechanical systems not considered part
of the “Building Systems” (as defined below) that have been installed for the exclusive use and
benefit of Tenant such as additional HVAC equipment, hot water heaters, electronic, data, phone,
and other telecommunications cabling and related equipment, and security or telephone systems for
the Premises). Tenant shall not commit or allow to be committed any waste on any portion of the
Premises. In addition, Tenant shall, at Tenant’s own expense, but under the supervision and
subject to the prior written approval of Landlord, and within any reasonable period of time
specified by Landlord, pursuant to the terms of this Lease, including without limitation
Article 8 hereof, promptly and adequately repair all damage to the Premises and replace or
repair all damaged, broken, or worn fixtures and appurtenances, except for damage caused by
ordinary wear and tear; provided however, that, at Landlord’s option, or if Tenant fails to make
such repairs within the time and in the manner required by this Lease, Landlord may, but need not,
make such repairs and replacements, and Tenant shall pay Landlord upon demand the cost thereof,
including a percentage of the cost thereof sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs or expenses arising from Landlord’s involvement with such
repairs and replacements forthwith upon being billed for same. Landlord may, but shall not be
required to, enter the Premises at all reasonable times to make such repairs, alterations,
improvements or additions to the Premises or to the Project or to any equipment located in the
Project as Landlord shall desire or deem necessary or as Landlord may be required to do by
governmental or quasi-governmental authority or court order or decree. Notwithstanding the
foregoing, except in the event of (a) an emergency or (b) routine services provided by Landlord
under the Lease (i.e. janitorial services), Landlord shall provide Tenant with reasonable advanced notice
prior to entering the Premises such that a representative from Tenant may be present during such
access.



5









 





     7.2 Landlord’s Obligations. Subject to Section 7.1 above and to Article
11 and Article 13 hereof, Landlord shall maintain and make all necessary repairs to and
replacements of (a) the “Building Systems” that service the Premises, (b) the structural portions
of the Building, (c) the roof of the Building, and (d) within a reasonable period following receipt
of notice of the need for repair and replacement from Tenant, the exterior walls and windows of the
Premises. The term “Building Systems” shall mean the service systems of the Building, including,
without limitation, the mechanical, gas, steam, electrical, sanitary, HVAC, elevator, plumbing, and
life-safety systems of the Building up to the point of connection of localized distribution to the
Premises (it being understood that the Building Systems shall not include any systems that Tenant
installs in the Premises). Nothing contained in this Section 7.2 shall require Landlord to
maintain or repair the systems within the Premises that distribute within the Premises electricity,
HVAC or water. Except as provided in Article 11, there shall be no abatement of Rent, nor
shall there be any liability of the “Landlord Parties” (as defined below), by reason of any injury
to, or damage suffered by Tenant, including without limitation, any inconvenience to, or
interference with, Tenant’s business or operations arising from the making of, or failure to make,
any maintenance or repairs, alterations or improvements in or to any portion of the Building and/or
the Project. Tenant hereby waives the benefit of any Laws granting it the right to make repairs at
Landlord’s expense, to place a lien upon the property of Landlord and/or upon Rent due Landlord, or
the right to terminate this Lease or withhold Rent on account of any Landlord default (including
without limitation, the failure of Landlord to make repairs). No provision of this Lease shall be
construed as obligating Landlord to perform any repairs, alterations or improvements to the
Premises or the Project except as otherwise expressly agreed to be performed by Landlord pursuant
to the provisions of this Lease.



ARTICLE 8

ADDITIONS AND ALTERATIONS




     8.1 Landlord’s Consent to Alterations. Tenant may not make any improvements,
alterations, additions or changes in or to the Premises or any mechanical, plumbing or HVAC
facilities or systems pertaining to the Premises (collectively, the “Alterations”) without first
procuring the prior written consent of Landlord to such Alterations. Landlord’s consent to
Alternations shall be requested by Tenant not less than thirty (30) days prior to the commencement
thereof, and which consent shall not be unreasonably withheld by Landlord, provided it shall be
deemed reasonable for Landlord to withhold its consent to any Alteration which affects the
structural portions or the Building Systems or is visible from the exterior of the Building or
Common Areas or requires access to areas outside the Premises. Notwithstanding the foregoing,
Tenant shall not be required to obtain Landlord’s consent for repainting, recarpeting, installing
systems, furniture or other alterations, tenant improvements, alterations or physical additions to
the Premises which are cosmetic in nature totaling less than Twenty Five Thousand Dollars ($25,000)
in any single instance or series of related alterations performed within a six-month period
(provided that Tenant shall not perform any improvements, alterations or additions to the Premises
in stages as a means to subvert this provision), in each case provided that (a) Tenant delivers to
Landlord written notice thereof, a list of contractors and subcontractors to perform the work (and
certificates of insurance for each such party) and any plans and specifications therefor prior to
commencing any such Alterations (for informational purposes only so long as no consent is required
by Landlord as required by this Lease), (b) the installation thereof does not require the issuance
of any certificate of occupancy, building permit or other governmental approval, or involve any
core drilling or the configuration or location of any exterior walls of the Building, and (c) such
Alterations will not affect the structural portions or the systems or equipment of the Building, or
be visible from the exterior of the Building or Common Areas or require access to the areas outside
the Premises. The construction of the initial improvements to the Premises shall be governed by the
terms of the Work Letter and not the terms of this Article 8.



     8.2 Manner of Construction. Landlord may impose, as a condition of its consent to any
and all Alterations or repairs of the Premises or about the Premises, such requirements as Landlord
in its sole discretion may deem desirable., including, but not limited to, the requirement that (a)
Tenant utilize for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list provided and approved by Landlord, (b) upon Landlord’s
request, Tenant shall, at Tenant’s expense, remove “Specialty Alterations” (as defined below) upon
the expiration or any early termination of the Lease Term, (c) Tenant secure, prior to commencing
any Alterations, at Tenant’s sole expense, form of security satisfactory to Landlord in an amount
sufficient to ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee, and (d) all Alterations conform in terms of quality and style to the Building’s
standards established by Landlord from time to time. Notwithstanding subsection (c) above, at the
time Tenant seeks Landlord’s consent to a proposed “Specialty Alteration” (as defined below),
Tenant shall provide Landlord with Notice identifying the proposed Specialty Alterations and
requesting that Landlord notify (the “Removal Notice”) Tenant as part of Landlord’s consent which
Specialty Alterations Landlord will require Tenant to remove upon the expiration or early
termination of this Lease. Tenant shall only be obligated to remove from the Premises at the
expiration or early termination of this Lease such Specialty Alterations so identified by Landlord
in the Removal Notice. If such Alterations will involve the use of or disturb Hazardous Substances
existing in the Premises, Tenant shall comply with Landlord’s rules and regulations concerning such
Hazardous Substances. Tenant shall construct such Alterations and perform such repairs in a good
and workmanlike manner, in conformance with any and all applicable Laws and pursuant to a valid
building permit or other governmental approval issued by the city or county, as applicable, in
which the Project is located, all in conformance with Landlord’s construction rules and regulations
as established from time to time. In the event Tenant performs any Alterations in the Premises
which require or give rise to governmentally required changes to the “Base Building,” as that term
is defined below, then Landlord shall, at Tenant’s expense, make such changes to the Base Building. The “Base
Building” shall include the structural portions of the Building, and the public restrooms, Building
Systems and the systems and equipment located in the internal core of the Building on the floor or
floors on which the Premises are located. In performing the work of any such Alterations, Tenant
shall have the work performed in such manner so as not to obstruct access to the Project or any
portion thereof, by any other tenant of the Project, and so as not to obstruct the business of



6









 




Landlord or other tenants in the Project. Tenant shall not use (and upon notice from Landlord
shall cease using) contractors, services, workmen, labor, materials or equipment that, in
Landlord’s reasonable judgment, would disturb labor harmony with the workforce or trades engaged in
performing other work, labor or services in or about the Building or the Common Areas. All
portions of the work involving excessive noise or inconvenience to other users of the Project shall
be done after Building Hours. In addition to Tenant’s obligations under Article 9 of this
Lease, upon completion of any Alterations, Tenant agrees to deliver to the Project management
office a reproducible copy of the “as built” drawings of the Alterations in CADD format as well as
all permits, approvals and other documents issued by any governmental agency in connection with the
Alterations. “Specialty Alterations” shall mean Alterations which are not standard office
installations such as kitchens, executive bathrooms, raised computer floors, computer room
installations, supplemental HVAC equipment, safe deposit boxes, vaults, libraries or file rooms
requiring reinforcement of floors, internal staircases, slab penetrations, conveyors, dumbwaiters,
and other Alterations of a similar character.




     8.3 Payment for Improvements. If payment is made directly to contractors, Tenant
shall comply with Landlord’s requirements for final lien releases and waivers in connection with
Tenant’s payment for work to contractors. Whether or not Tenant orders any work directly from
Landlord, Tenant shall pay to Landlord an amount equal to three percent (3%) of the cost of such
work to compensate Landlord for all overhead, general conditions, fees and other costs and expenses
arising from Landlord’s involvement with such work. Tenant shall pay promptly to Landlord, upon
demand, all out-of-pocket costs actually incurred by Landlord in connection with Tenant’s
Alterations, including costs incurred in connection with (a) Landlord’s review of the Alterations
(including review of requests for approval thereof) and (b) the provision of Building personnel
during the performance of any Alteration, to operate elevators or otherwise to facilitate Tenant’s
Alterations



     8.4 Construction Insurance. In addition to the requirements of Article 10 of
this Lease, in the event that Tenant makes any Alterations, prior to the commencement of such
Alterations, Tenant shall provide Landlord (a) with evidence that Tenant carries “Builder’s All
Risk” insurance in an amount approved by Landlord covering the construction of such Alterations,
(b) certificates of, (1) worker’s compensation insurance in amounts not less than the statutory
limits (covering all persons to be employed by Tenant, and Tenant’s contractors and subcontractors,
in connection with such Alterations), and (2) commercial general liability insurance (including
property damage and bodily injury coverage), in each case in customary form, and in amounts that
are not less than Five Million Dollars ($5,000,000) with respect to general contractors and One
Million Dollars ($1,000,000) with respect to subcontractors, naming the Landlord Parties as
additional insureds, and (c) such other insurance as Landlord may require, it being understood and
agreed that all of such Alterations shall be insured by Tenant pursuant to Article 10 of
this Lease immediately upon completion thereof.



     8.5 Supplemental HVAC Installations. Tenant shall not have the right to install a
supplementary HVAC system from the Premises without Landlord’s consent, which consent shall not be
unreasonably withheld or delayed. In no event shall any vents or louvers associated with any
supplementary HVAC system be installed on the exterior of the Building.



     8.6 Federal Visual Artists’ Rights Act of 1990. Tenant agrees that Tenant will not
install, affix, add or paint in or on, nor permit, any work of visual art (as defined in the
Federal Visual Artists’ Rights Act of 1990 or any successor law of similar import) or other
Alterations to be installed in or on, or affixed, added to, or painted on, the interior or exterior
of the Premises, or any part thereof, which work of visual art or other Alterations would, under
the provisions of the Federal Visual Artists’ Rights Act of 1990, or any successor law of similar
import, require the consent of the author or artist of such work or Alterations before the same
could be removed, modified, destroyed or demolished.



ARTICLE 9

COVENANT AGAINST LIENS




     Upon completion of any Alteration, Tenant shall promptly furnish Landlord with sworn owner’s
and contractor’s statements and full and final waivers of lien covering all labor and materials
included in such Alteration. Tenant shall not permit any mechanic’s lien to be filed against the
Building or Project, or any part thereof, arising out of any Alteration performed, or alleged to
have been performed, by or on behalf of Tenant. If any such lien is filed, Tenant shall within ten
(10) Business Days after receipt of notice of the filing thereof (or within such additional period
of time as is reasonably necessary if Tenant proceeds with diligence), have such lien released of
record or deliver to Landlord a bond in form, amount, and issued by a surety satisfactory to
Landlord, indemnifying Landlord against all costs and liabilities resulting from such lien and the
foreclosure or attempted foreclosure thereof. If Tenant fails to have such lien so released or to
deliver such bond to Landlord, Landlord, without investigating the validity of such lien, may pay
or discharge the same; and Tenant shall reimburse Landlord upon demand for the amount so paid by
Landlord, including Landlord’s expenses and attorneys’ fees.



ARTICLE 10

INDEMNIFICATION AND INSURANCE




     10.1 Indemnification and Waiver. Tenant hereby assumes all risk of damage to property
or injury to persons in, upon or about the Premises from any cause whatsoever and agrees that
Landlord, its property manager, managing agents, investors, officers, partners, subpartners,
members, managers, lenders (including, without limitation, any trustee, mortgagee or holder of any
trust indenture, deed of trust or mortgage which now or hereafter encumbers the Building and/or
Project), ground lessors and their respective officers, agents, servants, employees, and
independent contractors (collectively, “Landlord Parties”) shall not (unless and to the extent
resultant from



7









 




Landlord and/or Landlord Parties’ gross negligence or willful misconduct) be liable
for, and are hereby released from any responsibility for, any damage either to person or property
or resulting from the loss of use thereof, which damage is sustained by Tenant or by other persons
claiming through Tenant. To the extent permitted under applicable Law, Tenant shall indemnify,
defend, protect, and hold harmless the Landlord Parties from any and all losses, costs, damages,
actions, causes of actions, proceedings, liens, fines, penalties, expenses and liabilities
(including without limitation court costs and reasonable attorneys’ fees incurred in connection
with the proceeding whether at trial or on appeal) (collectively,
“Claims”) incurred in connection
with or arising from any cause in, on or about the Premises, any violation of any of Laws,
including, without limitation, any environmental Laws, any acts, omissions or negligence of Tenant
or of any person (other than Landlord or Landlord Parties’ negligence or willful misconduct)
claiming by, through or under Tenant, or of the contractors, agents, servants, employees, invitees,
guests or licensees of Tenant or any such person, in, on or about the Project or any breach of the
terms of this Lease, either prior to, during, or after the expiration of the Lease Term, provided
that the terms of the foregoing indemnity shall not apply to the gross negligence or willful
misconduct of Landlord. Should Landlord be named as a defendant in any suit brought against Tenant
in connection with or arising out of Tenant’s occupancy of the Premises, Tenant shall pay to
Landlord its costs and expenses incurred in such suit, including without limitation, its actual
professional fees such as appraisers’, accountants’ and attorneys’ fees. Further, Tenant’s
agreement to indemnify Landlord pursuant to this Section 10.1 is not intended and shall not
relieve any insurance carrier of its obligations under policies required to be carried by Tenant
pursuant to the provisions of this Lease, to the extent such policies cover the matters subject to
Tenant’s indemnification obligations, nor shall they supersede any inconsistent agreement of the
parties set forth in any other provision of this Lease. The provisions of this Section
10.1 shall survive the expiration or sooner termination of this Lease.




     10.2 Tenant’s Compliance With Landlord’s Fire and Casualty Insurance. Tenant shall,
at Tenant’s expense, comply with all insurance company requirements pertaining to the use of the
Premises. If Tenant’s conduct or use of the Premises causes any increase in the premium for such
insurance policies then Tenant shall reimburse Landlord for any such increase as Additional Rent.
Tenant, at Tenant’s expense, shall comply with all rules, orders, regulations or requirements of
the American Insurance Association (formerly the National Board of Fire Underwriters) and with any
similar body.



     10.3 Tenant’s Insurance. Tenant shall maintain the following coverages in the
following amounts:



          (a) Commercial General Liability Insurance payable on an “occurrence” rather than a “claims
made” basis covering the insured against claims of bodily injury, personal injury and property
damage (including loss of use thereof) arising out of Tenant’s operations, and contractual
liabilities (covering the performance by Tenant of its indemnity agreements) containing coverage at
least as broad as that provided under the then most current Insurance Services Office (ISO)
commercial general liability insurance form which provides the broadest coverage, including a Broad
Form endorsement covering the insuring provisions of this Lease and the performance by Tenant of
the indemnity agreements set forth in Section 10.1 of this Lease, for limits of liability
not less than:




	 	 	 	 	 	 	 
	Bodily Injury and

Property Damage

Liability

	 	$5,000,000 each occurrence

$5,000,000 annual aggregate
	 	Personal Injury

Liability
	 	$5,000,000 each occurrence
$5,000,000 annual aggregate

0% Insured’s participation






          (b) Physical Damage Insurance covering (i) all office furniture, business and trade fixtures,
office equipment, free-standing cabinet work, movable partitions, merchandise and all other items
of Tenant’s property on the Premises installed by, for, or at the expense of Tenant, (ii) the
leasehold improvements in and to the Premises (including, without limitation, all Alterations), and
any other improvements which exist in the Premises as of the Commencement Date (excluding the Base
Building) (the “Original Improvements”), and (iii) all other improvements, alterations and
additions to the Premises. Such insurance shall be written on an “all risks” of physical loss or
damage basis, for the full replacement cost value (subject to reasonable deductible amounts) new
without deduction for depreciation of the covered items and in amounts that meet any co-insurance
clauses of the policies of insurance and shall include coverage for damage or other loss caused by
fire or other peril including, but not limited to, vandalism and malicious mischief, terrorism,
earthquake sprinkler leakage, theft, water damage of any type, including sprinkler leakage,
bursting or stoppage of pipes, and explosion, and providing business interruption coverage
sufficient to pay Base Rent and Tenant’s Share of Direct Expenses for a period of one year, and
having a deductible amount, if any, not in excess of $25,000.




          (c) Employer’s Liability or other similar insurance pursuant to all applicable state and local
statutes and regulations with limits of no less than $1,000,000.00.




          (d) Worker’s Compensation as required by the Laws of the State where the Building is located
with the following minimum limits of liability: Coverage A —
statutory benefits; Coverage B —
$1,000,000 per accident and disease.




          (e) Comprehensive Automobile Liability insuring bodily injury and property damage arising from
all owned, non-owned and hired vehicles, if any, with minimum limits of liability of $1,000,000 per
accident.




          (f) Tenant shall carry and maintain during the entire Lease Term, at Tenant’s sole cost and
expense, increased amounts of the insurance required to be carried by Tenant pursuant to this
Article 10 and such other reasonable types of insurance coverage and in such reasonable amounts
covering the Premises and Tenant’s operations therein, as may be reasonably requested by Landlord.




     10.4 Form of Policies. The minimum limits of policies of insurance required of Tenant
under this Lease shall in no event limit the liability of Tenant under this Lease. Such insurance
shall (i) name Landlord Parties, and any other party the Landlord so specifies, as an additional
insured; (ii) specifically cover the liability



8









 




assumed by Tenant under this Lease, including, but
not limited to, Tenant’s obligations under Section 10.1 of this Lease; (iii) be issued by
an insurance company having a rating of not less than A-X in Best’s Insurance Guide or which is
otherwise acceptable to Landlord and licensed to do business in the State where the Building is
located; (iv) be primary insurance as to all claims thereunder and provide that any insurance
carried by Landlord is excess and is non-contributing with any insurance requirement of Tenant; (v)
be in form and content reasonably acceptable to Landlord; and (vi) provide that said insurance
shall not be canceled or coverage changed unless thirty (30) days’ prior written notice shall have
been given to Landlord and any mortgagee of Landlord. Tenant shall deliver said policy or policies
or certificates thereof to Landlord on or before the Commencement Date and at least thirty (30)
days before the expiration dates thereof. In the event Tenant shall fail to procure such
insurance, or to deliver such policies or certificate, Landlord may, at its option, procure such
policies for the account of Tenant, and the cost thereof shall be paid to Landlord within five (5)
days after delivery to Tenant of bills therefor. Tenant shall have the right to provide the
casualty insurance required by this Article 10 pursuant to blanket policies, but only if
such blanket policies expressly provides, on a per occurrence basis, that a loss that relates to
any other location does not impair or reduce the level of protection available for the Premises
below the amount required by this Lease. Tenant may not self-insure against any risks required to
be covered by insurance provided by Tenant hereunder without Landlord’s prior written consent.
Tenant has the right to satisfy Tenant’s obligation to carry liability insurance with an umbrella
insurance policy if such umbrella insurance policy contains an aggregate per location endorsement
that provides the required level of protection for the Premises.




     10.5 Subrogation. Landlord and Tenant intend that their respective property loss
risks shall be borne by reasonable insurance carriers to the extent above provided, and Landlord
and Tenant hereby agree to look solely to, and seek recovery only from, their respective insurance
carriers in the event of a property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each other for such losses,
and waive all rights of subrogation of their respective insurers, for damage to its properties and
loss of business (specifically including loss of rent by Landlord and business interruption by
Tenant) as a result of the acts or omissions of the other party or the other party’s employees,
agents, or contractors (specifically including the negligence of either party or its employees,
agents, or contractors and the intentional misconduct of the employees, agents, or contractors of
either party), to the extent any such claims are covered by the workers’ compensation, employer’s
liability, property, rental income, business income, or extra expense insurance required to be
maintained by Landlord and Tenant pursuant to this Lease, or other property insurance that either
party may carry at the time of an occurrence, provided such waiver of subrogation shall not affect
the right to the insured to recover thereunder. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of subrogation shall not affect the
right of the insured to recover thereunder, so long as no material additional premium is charged
therefor.



     10.6 Additional Insurance Obligations. Tenant shall carry and maintain during the
entire Lease Term, at Tenant’s sole cost and expense, increased amounts of the insurance required
to be carried by Tenant pursuant to this Article 10 and such other reasonable types of
insurance coverage and in such reasonable amounts covering the Premises and Tenant’s operations
therein, as may be reasonably requested by Landlord.



ARTICLE 11

DAMAGE AND DESTRUCTION




     11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly notify Landlord
of any damage to the Premises resulting from fire or any other casualty (“Casualty”). If the (a)
Premises, (b) any Common Areas serving or providing access to the Premises, or (c) Building Systems
servicing the Premises shall be damaged by Casualty, and Landlord or Tenant does not elect to
terminate this Lease in accordance with the terms below, Landlord shall promptly and diligently,
subject to reasonable delays for insurance adjustment or other matters beyond Landlord’s reasonable
control, and subject to all other terms of this Article 11 and all applicable Laws, restore
the damaged portions of the Base Building, such Common Areas and/or such Building Systems. Such
restoration shall be to substantially the same condition of the Base Building and the Common Areas
prior to the Casualty, except for modifications required by zoning and building codes and other
Laws or by the holder of a mortgage on the Building or Project or any other modifications to the
Common Areas deemed desirable by Landlord, provided that access to the Premises and any common
restrooms serving the Premises shall not be materially impaired. Upon the occurrence of any
Casualty to the Premises, upon notice (the “Landlord Repair Notice”) to Tenant from Landlord,
Tenant shall assign to Landlord (or to any party designated by Landlord) all insurance proceeds
payable to Tenant under Tenant’s insurance required under Section 10.3 of this Lease, and
Landlord shall also repair any injury or damage to the Tenant Improvements and the Original
Improvements installed in the Premises and shall return such Tenant Improvements and Original
Improvements to their original condition; provided that if the cost of such repair by Landlord
exceeds the amount of insurance proceeds received by Landlord from Tenant’s insurance carrier, as
assigned by Tenant, the cost of such repairs shall be paid by Tenant to Landlord prior to
Landlord’s commencement of repair of the damage. In the event that Landlord does not deliver the Landlord Repair
Notice within thirty (30) days following the date the casualty becomes known to Landlord, Tenant
shall, at its sole cost and expense, repair any injury or damage to the Tenant Improvements and the
Original Improvements installed in the Premises and shall return such Tenant Improvements and
Original Improvements to their original condition. In such case, Tenant may use its insurance
proceeds for such purpose. Whether or not Landlord delivers a Landlord Repair Notice, prior to the
commencement of construction, Tenant shall submit to Landlord, for Landlord’s review and approval,
all plans, specifications and working drawings relating thereto, and Landlord shall select the
contractors to perform such improvement work. Landlord shall not be liable for any inconvenience
to Tenant or its visitors, or injury to Tenant’s business resulting in any way from such damage or
the repair thereof; provided however, that if such Casualty shall have damaged the Premises or
Common Areas necessary to Tenant’s occupancy, Landlord shall allow Tenant a proportionate abatement
of Rent



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during the time and to the extent the Premises are unfit for occupancy for the purposes
permitted under this Lease, and not occupied by Tenant as a result thereof; provided, further,
however, that if the damage or destruction is due to the act or omission of Tenant or any of its
agents, employees, contractors, invitees or guests, Tenant shall be responsible for any reasonable,
applicable insurance deductible (which shall be payable to Landlord upon demand) and there shall be
no rent abatement.




     11.2 Landlord’s Option to Repair. Notwithstanding the terms of Section 11.1
of this Lease, Landlord may elect not to rebuild and/or restore the Premises, Building and/or
Project, and instead terminate this Lease, by notifying Tenant in writing of such termination
within sixty (60) days after the date of discovery of the damage, such notice to include a
termination date giving Tenant sixty (60) days to vacate the Premises, but Landlord may so elect
only if the Building or Project shall be damaged by Casualty or cause, whether or not the Premises
are affected, and one or more of the following conditions is present: (i) in Landlord’s reasonable
judgment, repairs cannot reasonably be completed within one hundred eighty (180) days after the
date of discovery of the damage (when such repairs are made without the payment of overtime or
other premiums); (ii) the holder of any mortgage on the Building or Project or ground lessor with
respect to the Building or Project shall require that the insurance proceeds or any portion thereof
be used to retire the mortgage debt, or shall terminate the ground lease, as the case may be; (iii)
the damage is not fully covered by Landlord’s insurance policies; (iv) Landlord decides to rebuild
the Building or Common Areas so that they will be substantially different structurally or
architecturally; (v) the damage occurs during the last twenty four (24) months of the Lease Term;
or (vi) the Project is substantially damaged so that, in Landlord’s reasonable judgment,
substantial reconstruction of the Project will be required.



     11.3 Tenant’s Termination Right. If a portion of the Premises, Building Systems
servicing the Premises or Common Areas providing access to the Premises is damaged by Casualty such
that Tenant is prevented from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Casualty and Landlord estimates that the
damage caused thereby cannot be repaired within twelve (12) months after the date of discovery of
such damage (the “Repair Period”), then Tenant may terminate this Lease by delivering written
notice to Landlord of its election to terminate within thirty (30) days after Landlord delivers to
Tenant a good faith estimate (the “Damage Notice”) of the time needed to repair the damage caused
by such Casualty. If neither party elects to terminate this Lease following a Casualty pursuant to
the terms of this Article 11, and if Landlord does not complete the restoration of the
Premises within the greater of (a) twelve (12) months following the Casualty or (b) sixty (60) days
after the time period estimated by Landlord to repair the damage caused by such Casualty as
specified in the Damage Notice, as the same may be extended by delays caused by Tenant, its agents
or employees, Tenant may terminate this Lease by delivering written notice (“Damage Termination
Notice”) to Landlord within ten (10) days following the expiration of such 12-month or 60-day
period, as applicable (as the same may be extended as set forth above) and prior to the date upon
which Landlord substantially completes such restoration. Such termination shall be effective as of
the date specified in Tenant’s Damage Termination Notice (but not earlier than thirty (30) days nor
later than ninety (90) days after the date of such notice) as if such date were the date fixed for
the expiration of the Lease Term. If Tenant fails to timely give such Damage Termination Notice,
Tenant shall be deemed to have waived its right to terminate this Lease, time being of the essence
with respect thereto.



     11.4 Waiver of Statutory Provisions. The provisions of this Lease, including this
Article 11, constitute an express agreement between Landlord and Tenant with respect to any
and all damage to, or destruction of, all or any part of the Premises, the Building or the Project,
and any statute or regulation of the State where the Building is located with respect to any rights
or obligations concerning damage or destruction in the absence of an express agreement between the
parties, and any other statute or regulation, now or hereafter in effect, shall have no application
to this Lease or any damage or destruction to all or any part of the Premises, the Building or the
Project. The rights given Tenant under this Article 11 are in lieu of and override any
rights that Tenant may have by statute or under other applicable Laws.



ARTICLE 12

NONWAIVER




     No provision of this Lease shall be deemed waived by either party hereto unless expressly
waived in a writing signed thereby. The waiver by either party hereto of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach
of same or any other term, covenant or condition herein contained. The subsequent acceptance of
Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, regardless of Landlord’s knowledge of such preceding
breach at the time of acceptance of such Rent. No acceptance of a lesser amount than the Rent
herein stipulated 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. No receipt of monies by
Landlord from Tenant after an event of default shall in any way alter the length of the Lease Term
or of Tenant’s right of possession hereunder, or after the giving of any notice shall reinstate,
continue or extend the Lease Term or affect any notice given Tenant prior to the receipt of such
monies, it being agreed that after the service of notice or the commencement of a suit, or after
final judgment for possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or judgment.



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ARTICLE 13

CONDEMNATION




     If the whole or any part of the Project shall be taken by power of eminent domain or condemned
by any competent authority for any public or quasi-public use or purpose, or if any adjacent
property or street shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of the Premises,
Building or Project, or if Landlord shall grant a deed or other instrument in lieu of such taking
by eminent domain or condemnation, Landlord shall have the option to terminate this Lease effective
as of the date possession is required to be surrendered to the authority. If more than twenty-five
percent (25%) of the rentable square feet of the Premises is taken, or if access to the Premises is
impaired to the extent that it substantially affects operation of Tenant’s business in the
Premises, in each case for a period in excess of two hundred seventy (270) days, Tenant shall have
the option to terminate this Lease effective as of the date possession is required to be
surrendered to the authority. Tenant shall not because of such taking assert any claim against
Landlord or the authority for any compensation because of such taking and Landlord shall be
entitled to the entire award or payment in connection therewith, except that Tenant shall have the
right to file any separate claim available to Tenant for any taking of Tenant’s personal property
and fixtures belonging to Tenant and removable by Tenant upon expiration of the Lease Term pursuant
to the terms of this Lease, and for moving expenses, so long as such claims do not diminish the
award available to Landlord, its ground lessor with respect to the Building or Project or its
mortgagee, and such claim is payable separately to Tenant. All Rent shall be apportioned as of the
date of such termination. If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated. No rental abatement shall be granted
Tenant for a loss of parking spaces or for the loss of any other portion of the Common Areas,
Tenant recognizing that Tenant’s right to use parking spaces and the Common Areas in common with
Landlord’s other tenants does not vest in Tenant any leasehold or other ownership interest in any
of the parking spaces or Common Areas. Notwithstanding anything to the contrary contained in this
Article 13, in the event of a temporary taking of all or any portion of the Premises for a
period of two hundred seventy (270) days or less, then this Lease shall not terminate but the Base
Rent and the Additional Rent shall be abated for the period of such taking in proportion to the
ratio that the amount of rentable square feet of the Premises taken bears to the total rentable
square feet of the Premises. Landlord shall be entitled to receive the entire award made in
connection with any such temporary taking.



ARTICLE 14

ASSIGNMENT AND SUBLETTING




     14.1 Transfers. Tenant shall not (whether directly or indirectly or voluntarily or
involuntarily or by operation of Law or otherwise), without the prior written consent of Landlord,
assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise
transfer, this Lease or any interest hereunder, permit any assignment, or other transfer of this
Lease or any interest hereunder by operation of Law, sublet the Premises or any part thereof, amend
or modify any sublease that is consummated in accordance with the terms of this Article 14,
permit a subtenant under a sublease that is consummated in accordance with the terms of this
Article 14 to further sublease the Premises or any part thereof or to assign the
subtenant’s interest under any such sublease in whole or in part by express assignment or by
operation of Law or by other means, permit the Premises, or any portion thereof to be use for desk
space, mailing privileges or otherwise, or enter into any license or concession agreements or
otherwise permit the occupancy or use of the Premises or any part thereof by any persons other than
Tenant and its employees and contractors (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 desires Landlord’s consent to any
Transfer, Tenant shall notify Landlord in writing, which notice (the “Transfer Notice”) shall
include (i) the proposed effective date of the Transfer, which shall not be less than thirty (30)
days nor more than one hundred eighty (180) days after the date of delivery of the Transfer Notice,
(ii) a description of the portion of the Premises to be transferred (the “Subject Space”), (iii)
all of the terms of the proposed Transfer and the consideration therefor, including calculation of
the “Transfer Premium”, as that term is defined in Section 14.3 below, in connection with
such Transfer, the name and address of the proposed Transferee, and an executed copy of all
documentation effectuating the proposed Transfer, and (iv) current financial statements of the
proposed Transferee certified by an officer, partner or owner thereof, business credit and personal
references and history of the proposed Transferee and any other information required by Landlord.
Any Transfer made without Landlord’s prior written consent shall, at Landlord’s option, be null,
void and of no effect, and shall, at Landlord’s option, constitute a default by Tenant under this
Lease. Whether or not Landlord consents to any proposed Transfer, Tenant shall not be released
from any liability or obligations under this Lease and Tenant shall pay Landlord’s review and
processing fees, as well as any reasonable professional fees (including, without limitation,
attorneys’, accountants’, architects’, engineers’ and consultants’ fees) incurred by Landlord
(collectively, the “Transfer Review Fees”), within thirty (30) days after written request by
Landlord. Concurrently with delivering a Transfer Notice to Landlord, Tenant shall deliver to
Landlord an amount equal to $1,000.00, which amount constitutes an advance against the Transfer
Review Fees. Tenant shall not structure any proposed Transfer in such a way as to subvert Landlord’s consent
rights, recapture rights and/or rights to receive the “Transfer Premium” (as defined below).



     14.2 Landlord’s Consent. Landlord shall not unreasonably withhold its consent to any
proposed sublease or assignment constituting a Transfer of the Subject Space to the Transferee on
the terms specified in the Transfer Notice. Tenant shall indemnify, defend and hold harmless
Landlord from any and all Claims involving any third party or parties who claim they were damaged
by Landlord’s wrongful withholding or conditioning of Landlord’s consent.



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     14.3 Transfer Premium. If Landlord consents to a Transfer, as a condition thereto
which the parties hereby agree is reasonable, Tenant shall pay to Landlord fifty percent (50%) of
any “Transfer Premium,” as that term is defined in this Section 14.3, as and when received
by Tenant from such Transferee. “Transfer Premium” shall mean all Rent, Additional Rent or other
consideration payable by such Transferee in connection with the Transfer in excess of the Rent and
Additional Rent payable by Tenant under this Lease during the term of the Transfer on a per
rentable square foot basis if less than all of the Premises is transferred, after deducting the
reasonable expenses incurred by Tenant for (i) any free base rent reasonably provided to the
Transferee, (ii) any brokerage commissions, legal fees and architectural fees in connection with
the Transfer, and (iii) in the case of any sublease, any actual costs incurred by Tenant in
separately demising the subleased space. “Transfer Premium” shall also include, but not be limited
to, key money, bonus money or other cash consideration paid by Transferee to Tenant in connection
with such Transfer, and any payment in excess of fair market value for services rendered by Tenant
to Transferee or for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to
Transferee in connection with such Transfer. In the calculations of the Rent (as it relates to the
Transfer Premium calculated under this Section 14.3), and the rent charged by Tenant to the
Transferee (the “Transferee’s Rent”) the Rent paid during each annual period for the Subject Space
and the Transferee’s Rent shall be computed after adjusting such rent to the actual effective rent,
taking into consideration any and all leasehold concessions granted in connection therewith,
including, but not limited to, any rent credit and tenant improvement allowance. For purposes of
calculating any such effective rent all such concessions shall be amortized on a straight-line
basis over the relevant term.



     14.4 Landlord’s Option as to Recapture Space. Notwithstanding anything to the
contrary contained in this Article 14, Landlord shall have the option, by giving written
notice to Tenant (the “Recapture Notice”) within thirty (30) days after receipt of any Transfer
Notice, to recapture the Subject Space; provided, however, Tenant shall have the right to withdraw
its Transfer Notice and terminate any proposed Transfer within five (5) days following receipt of
the Recapture Notice, in which event the Recapture Notice shall be void and of no further force or
effect. Such recapture notice shall cancel and terminate this Lease with respect to the Subject
Space as of the later of (i) the date stated in the Transfer Notice as the effective date of the
proposed Transfer, and (ii) ninety (90) days following the giving of the recapture notice, until
the last day of the term of the Transfer as set forth in the Transfer Notice (or at Landlord’s
option, shall cause the Transfer to be made to Landlord or its agent, in which case the parties
shall execute the Transfer documentation promptly thereafter). In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire Premises, the Rent
reserved 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, and 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. Landlord may, at Tenant’s
expense, make such alterations as may be required or deemed necessary by Landlord to physically
separate the recaptured portion of the Premises from the balance of the Premises and to comply with
any legal requirements or insurance requirements relating to such separation.



     14.5 Effect of Transfer. No Transfer relating to this Lease or agreement entered into
with respect thereto, whether with or without Landlord’s consent, shall relieve Tenant or any
guarantor of the Lease from any liability or obligation under this Lease, including, without
limitation, in connection with the Subject Space. Landlord or its authorized representatives shall
have the right at all reasonable times to audit the books, records and papers of Tenant relating to
any Transfer, and shall have the right to make copies thereof. If the Transfer Premium respecting
any Transfer shall be found understated, Tenant shall, within ten (10) days after demand, pay the
deficiency, and if understated by more than two percent (2%), Tenant shall pay Landlord’s costs of
such audit.



     14.6 Additional Transfers. For purposes of this Lease, the term “Transfer” shall also
include (a) any change, transfer, sale, pledge or hypothecation in twenty-five percent (25%) or
more of the equity or ownership interests in or assets of Tenant, (b) the dissolution, merger,
consolidation or reorganization of Tenant, or (c) the transfer of “Control” (as defined below),
however accomplished, whether in a single transaction or in a series of unrelated or related
transactions. The term “Control” shall mean the possession of power to direct or cause the
direction of the day-to-day operations and/or the management and policy of Tenant, whether through
the ownership of voting securities, by statute or by contract.



     14.7 Permitted Transfers. Notwithstanding Section 14.1, Tenant may Transfer
all or part of its interest in this Lease or all or part of the Premises (a “Permitted Transfer”)
to the following types of entities (a “Permitted Transferee”) without the written consent of
Landlord: (a) any parent, subsidiary or affiliate corporation which controls, is controlled by or
is under common control with Tenant (collectively, an “Affiliate”); (b) any corporation, limited
partnership, limited liability partnership, limited liability company or other business entity in
which or with which Tenant, an Affiliate of Tenant, or their respective corporate successors or
assigns, is merged or consolidated, in accordance with applicable statutory provisions governing
merger and consolidation of business entities, so long as (i) Tenant’s obligations hereunder are
assumed in writing by the Permitted Transferee in form satisfactory to Landlord; and (ii) the Permitted Transferee satisfies the “Net Worth Threshold” (defined below) as of the
effective date of the Permitted Transfer; or (c) any corporation, limited partnership, limited
liability partnership, limited liability company or other business entity which acquires all or
substantially all of Tenant’ assets and/or ownership interests, if the Permitted Transferee
satisfies the Net Worth Threshold as of the effective date of the Permitted Transfer. Tenant shall
promptly notify Landlord of any such Permitted Transfer. Tenant shall remain liable for the
performance of all of the obligations of Tenant hereunder, or if Tenant no longer exists because of
a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume
in writing, the obligations of Tenant hereunder. Additionally, the Permitted Transferee shall
comply with all of the terms and conditions of this Lease. No later than ten (10) days prior to
the effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with (1) copies of
the instrument effecting any of the foregoing Transfers, (2)



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documentation establishing Tenant’s
satisfaction of the requirements set forth above applicable to any such Transfer, and (3) evidence
of insurance as required under this Lease with respect to the Permitted Transferee. The occurrence
of a Permitted Transfer shall not waive Landlord’s rights as to any subsequent Transfers. As used
herein, the term “Net Worth Threshold” shall mean the proposed Permitted Transferee has a tangible
net worth equal to or greater than Tenant as of the Date of the Lease (determined in accordance
with generally accepted accounting principles consistently applied and excluding from the
determination of total assets all assets which would be classified as intangible assets under
generally accepted accounting principles, including, without limitation, goodwill, licenses,
trademarks, trade names, copyrights and franchises), and as evidenced by financial statements
audited by a certified public accounting firm reasonably acceptable to Landlord.




     14.8 Occurrence of Default. Any Transfer hereunder shall be subordinate and subject
to the provisions of this Lease, and if this Lease shall be terminated during the term of any
Transfer, Landlord shall have the right to: (i) treat such Transfer as cancelled and repossess the
Subject Space by any lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall be in default under this Lease,
Landlord is hereby irrevocably authorized, as Tenant’s agent and attorney-in-fact, 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) until such default is
cured. Such Transferee shall rely on any representation by Landlord that Tenant is in default
hereunder, without any need for confirmation thereof by Tenant. Upon any assignment, the assignee
shall assume in writing all obligations and covenants of Tenant thereafter to be performed or
observed under this Lease. No collection or acceptance of rent by Landlord from any Transferee or
the posting or listing of any name other than that of Tenant (whether on the door or exterior wall
of the Premises, lobby directory, elevator or elsewhere) shall be deemed a waiver of any provision
of this Article 14 or the approval of any Transferee or a release of Tenant from any
obligation under this Lease, whether theretofore or thereafter accruing. In no event shall
Landlord’s enforcement of any provision of this Lease against any Transferee be deemed a waiver of
Landlord’s right to enforce any term of this Lease against Tenant or any other person. If Tenant’s
obligations hereunder have been guaranteed, Landlord’s consent to any Transfer shall not be
effective unless the guarantor also consents in writing to such Transfer.



     14.9
Transfer Taxes. Tenant shall pay any transfer taxes (and other similar charges
and fees) that any governmental authority imposes in connection with any Transfer (including,
without limitation, any such transfer taxes, charges or fees that a governmental authority imposes
in connection with Landlord’s exercising Landlord’s rights to recapture the Subject Space in
accordance with Section 14.4 above.



ARTICLE 15

SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES




     15.1 Surrender of Premises. No act or thing done by Landlord or any agent or employee
of Landlord during the Lease Term shall be deemed to constitute an acceptance by Landlord of a
surrender of the Premises unless such intent is specifically acknowledged in writing by Landlord.
The delivery of keys to the Premises to Landlord or any agent or employee of Landlord shall not
constitute a surrender of the Premises or effect a termination of this Lease, whether or not the
keys are thereafter retained by Landlord, and notwithstanding such delivery Tenant shall be
entitled to the return of such keys at any reasonable time upon request until this Lease shall have
been properly terminated. The voluntary or other surrender of this Lease by Tenant, whether
accepted by Landlord or not, or a mutual termination hereof, shall not work a merger, and at the
option of Landlord shall operate as an assignment to Landlord of all subleases or subtenancies
affecting the Premises or terminate any or all such sublessees or subtenancies.



     15.2 Removal of Tenant Property by Tenant. Upon the expiration of the Lease Term, or
upon any earlier termination of this Lease, Tenant shall, subject to the provisions of this
Article 15, quit and surrender possession of the Premises to Landlord in as good order and
condition as when Tenant took possession and as thereafter improved by Landlord and/or Tenant,
reasonable wear and tear and repairs excepted. Subject to Section 8.2 above, upon such
expiration or termination, Tenant shall, without expense to Landlord, remove or cause to be removed
from the Premises all debris and rubbish, and such items of furniture, equipment, business and
trade fixtures, free-standing cabinet work, movable partitions and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the Premises, and such
similar articles of any other persons claiming under Tenant, as Landlord may, in its sole
discretion, require to be removed. Further, on or prior to the Expiration Date, Tenant shall,
unless otherwise directed by Landlord, at Tenant’s expense, close up any slab penetrations in the
Premises. Tenant shall repair at its own expense all damage to the Premises and Building resulting
from such removal. Any of Tenant’s Property not so removed shall be deemed abandoned and Landlord
may remove and dispose of same, and repair and restore any damage caused thereby, at Tenant’s cost
and without accountability to Tenant.



ARTICLE 16

HOLDING OVER




     If Tenant holds over after the expiration of the Lease Term or earlier termination thereof,
with or without the express or implied consent of Landlord, such tenancy shall be a tenancy at
sufferance, and shall not constitute a renewal hereof or an extension for any further term, and in
such case Rent shall be payable for the initial one (1) month of such holdover tenancy at a monthly
rate equal to one hundred fifty percent (150%) of the Rent applicable during the last rental period
of the Lease Term under this Lease, and if Tenant continues to hold over with or without the
express or implied consent of Landlord, Rent for the second month of such holdover tenancy shall be
payable at a monthly rate equal to one hundred seventy five percent (175%) of the Rent applicable
during the last



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rental period of the Lease Term under this Lease, and thereafter if Tenant
continues to hold over with or without the express or implied consent of Landlord, Rent shall be
payable at a monthly rate equal to two hundred percent (200%) of the Rent applicable during the
last rental period of the Lease Term under this Lease. Such tenancy at sufferance shall be subject
to every other applicable term, covenant and agreement contained herein. For purposes of this
Article 16, a holding over shall include (a) Tenant’s remaining in the Premises after the
expiration or earlier termination of the Lease Term, and (b) Tenant’s failure to remove any
Alterations or personal property located within the Premises as required pursuant to the terms of
Sections 8.5 and 15.2, above. Nothing contained in this Article 16 shall
be construed as consent by Landlord to any holding over by Tenant, and Landlord expressly reserves
the right to require Tenant to surrender possession of the Premises to Landlord as provided in this
Lease upon the expiration or other termination of this Lease. The provisions of this Article
16 shall not be deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at Law. If Tenant fails to surrender the Premises upon the termination
or expiration of this Lease, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all loss, costs (including
reasonable attorneys’ fees) and liability resulting from such failure, including, without limiting
the generality of the foregoing, any claims made by any succeeding tenant founded upon such failure
to surrender and any consequential damages, including lost profits to Landlord resulting therefrom.




ARTICLE 17

ESTOPPEL CERTIFICATES




     Within ten (10) days following a request in writing by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord an estoppel certificate in the form as may be required by
Landlord, Lender or any prospective mortgagee or purchaser of the Project. Any such certificate
may be relied upon by any prospective mortgagee or purchaser of all or any portion of the Project.
Tenant shall execute and deliver whatever other instruments may be reasonably required for such
purposes, including reaffirmation of any guaranty. At any time during the Lease Term in
connection with any financing, re-financing or sale of the Project, Landlord may require Tenant and
any guarantor of this Lease to provide Landlord with a current financial statement and financial
statements of the two (2) years prior to the current financial statement year. Such statements
shall be prepared in accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, shall be audited by an independent certified public accountant,
otherwise, such statements shall be certified by the chief financial officer of Tenant. Failure of
Tenant to timely execute, acknowledge and deliver such estoppel certificate or other instruments
shall constitute an acceptance of the Premises and an acknowledgment by Tenant that statements
included in the estoppel certificate are true and correct, without exception.



ARTICLE 18

SUBORDINATION




     18.1 Subordination. This Lease, and all of the rights of Tenant hereunder, shall be
subject and subordinate to all present and future ground or underlying leases of the Building or
Project and to the lien of any mortgage, trust deed or other encumbrances now or hereafter in force
against the Building or Project or any part thereof, if any, and to all renewals, extensions,
modifications, consolidations and replacements thereof, and to all advances made or hereafter to be
made upon the security of such mortgages or trust deeds, unless the holders of such mortgages,
trust deeds or other encumbrances, or the lessors under such ground lease or underlying leases
(collectively, “Landlord Mortgagee”), require in writing that this Lease be superior thereto.
Tenant’s subordination to any future Landlord Mortgagee shall be subject to and conditioned upon
Tenant’s receipt of a subordination, non-disturbance and attornment agreement on such Landlord
Mortgagee’s customary form, and Tenant shall be responsible for all out-of-pocket expenses,
including Landlord Mortgagee’s costs, with respect to such subordination, non-disturbance and
attornment agreement. Alternatively, Landlord’s Mortgagee may require Tenant’s interest under this
Lease to be superior to such mortgage or deed of trust. Tenant covenants and agrees in the event
any proceedings are brought for the foreclosure of any such mortgage or deed in lieu thereof (or if
any ground lease is terminated), to attorn, without any deductions or set-offs whatsoever, to the
lienholder or purchaser or any successors thereto upon any such foreclosure sale or deed in lieu
thereof (or to the ground lessor), if so requested to do so by such purchaser or lienholder or
ground lessor, and to recognize such purchaser or lienholder or ground lessor as the lessor under
this Lease, provided such lienholder or purchaser or ground lessor shall agree to accept this Lease
and not disturb Tenant’s occupancy, so long as Tenant timely pays the rent and observes and
performs the terms, covenants and conditions of this Lease to be observed and performed by Tenant.
Landlord’s interest herein may be assigned as security at any time to any lienholder. Tenant
shall, within ten (10) days of request by Landlord and/or Landlord’s Mortgagee, execute such
further instruments or assurances as Landlord and/or Landlord’s Mortgagee may reasonably deem
necessary to evidence or confirm the subordination or superiority of this Lease to any such
mortgages, trust deeds, ground leases or underlying leases. Tenant waives the provisions of any
current or future statute, rule or law which may give or purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease and the obligations of the
Tenant hereunder in the event of any foreclosure proceeding or sale.



     18.2 Notice to Landlord’s Mortgagee. Tenant shall not seek to enforce any remedy it
may have for any default on the part of Landlord without first giving Landlord’s Mortgagee written
notice by certified mail, return receipt requested, specifying the default in reasonable detail,
and affording such Landlord’s Mortgagee (i) a reasonable opportunity to perform Landlord’s
obligations hereunder (but not less than thirty (30) days), if such default can be cured without
such Landlord’s Mortgagee taking possession of the mortgaged or leased estate, or (ii) to obtain
possession of the mortgaged or leased estate and then to cure such default of Landlord, if such
default cannot be cured without such Landlord’s Mortgagee or taking possession of the mortgaged or
leased estate.



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     18.3 Landlord’s Mortgagee’s Protection Provisions. If Landlord’s Mortgagee shall
succeed to the interest of Landlord under this Lease, Landlord’s Mortgagee shall not be: (a) liable
for any act or omission of any prior lessor (including Landlord), except to the extent that (i)
such act or omission continues after the date that the Landlord’s Mortgagee succeeds to Landlord’s
interest in the Building, and (ii) such act or omission of such prior landlord is of a nature that
the Landlord’s Mortgagee can cure by performing a service or making a repair; (b) bound by any Rent
or Additional Rent or advance rent which Tenant might have paid for more than the current month to
any prior lessor (including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; (c) bound by any security or advance rental deposit made by
Tenant which is not delivered or paid over to Landlord’s Mortgagee and with respect to which Tenant
shall look solely to Landlord for refund or reimbursement; (d) bound by any termination, amendment
or modification of this Lease made without Landlord’s Mortgagee’s consent and written approval,
except for those terminations, amendments and modifications permitted to be made by Landlord
without Landlord’s Mortgagee’s consent pursuant to the terms of the loan documents between Landlord
and Landlord’s Mortgagee; (e) subject to the defenses which Tenant might have against any prior
lessor (including Landlord); (f) subject to the offsets which Tenant might have against any prior
lessor (including Landlord) except for those offset rights which (i) are expressly provided in this
Lease, (ii) relate to periods of time following the acquisition of the Building by Landlord’s
Mortgagee, and (iii) Tenant has provided written notice to Landlord’s Mortgagee and provided
Landlord’s Mortgagee a reasonable opportunity to cure the event giving rise to such offset event;
and (g) bound by any obligation to make any payment to or on behalf of Tenant to the extent that
such obligation accrues prior to the date that the Landlord’s Mortgagee succeeds to Landlord’s
interest in the Building. Landlord’s Mortgagee shall have no liability or responsibility under or
pursuant to the terms of this Lease or otherwise after it ceases to own an interest in the Project.
Nothing in this Lease shall be construed to require Landlord’s Mortgagee to apply the proceeds of
any loan, and Tenant’s agreements set forth herein shall not be impaired on account of any
modification of the documents evidencing and securing any loan.



     18.4 Non-Disturbance Agreement. Landlord shall use reasonable efforts to obtain for
Tenant, at no cost to Landlord, a subordination, non-disturbance and attornment agreement from all
existing Landlord’s Mortgagee, in the standard form customarily employed by such Landlord’s
Mortgagee, provided that Landlord shall have no liability to Tenant, and the effectiveness of this
Lease and the subordination of this Lease to any mortgage, deed of trust or other encumbrance shall
not be affected, in the event that it is unable to obtain any such agreements. Tenant shall
reimburse Landlord, within ten (10) days after demand therefor, for Landlord’s out-of-pocket costs,
including fees charged by Landlord’s Mortgagee and its counsel and other reasonable attorney’s fees
and disbursements, incurred in connection with such efforts.



ARTICLE 19

DEFAULTS; REMEDIES




     19.1 Defaults. The occurrence of any of the following shall constitute a default
(“Default”) of this Lease by Tenant:



     (a) Any failure by Tenant to pay any Rent or any other charge required to be paid under this
Lease, or any part thereof, within five (5) days after notice that the same is due; or



     (b) Except where a specific time period is otherwise set forth for Tenant’s performance in
this Lease, in which event the failure to perform by Tenant within such time period shall be a
default by Tenant under this Section 19.1(b), any failure by Tenant to observe or perform
any other provision, covenant or condition of this Lease to be observed or performed by Tenant
where such failure continues for ten (10) days after written notice thereof from Landlord to
Tenant; provided that if the nature of such default is such that the same cannot reasonably be
cured within a ten (10) day period, Tenant shall not be deemed to be in default if it diligently
commences such cure within such period and thereafter diligently proceeds to rectify and cure such
default, but in no event exceeding a period of time in excess of ninety (90) days after written
notice thereof from Landlord to Tenant; or



     (c) To the extent permitted by Law, a general assignment by Tenant or any guarantor of this
Lease for the benefit of creditors, or the taking of any corporate action in furtherance of
bankruptcy or dissolution whether or not there exists any proceeding under an insolvency or
bankruptcy Law, or the filing by or against Tenant or any guarantor of any proceeding under an
insolvency or bankruptcy Law, unless in the case of a proceeding filed against Tenant or any
guarantor the same is dismissed within sixty (60) days, or the appointment of a trustee or receiver
to take possession of all or substantially all of the assets of Tenant or any guarantor, unless
possession is restored to Tenant or such guarantor within thirty (30) days, or any execution or
other judicially authorized seizure of all or substantially all of Tenant’s assets located upon the
Premises or of Tenant’s interest in this Lease, unless such seizure is discharged within thirty
(30) days; or



     (d) Abandonment of all or a substantial portion of the Premises by Tenant; or



     (e) The failure by Tenant to observe or perform according to the provisions of Articles 5,
14, 17 or 18 of this Lease where such failure continues for more than two (2) Business
Days (“Business Days” being defined as calendar days other than Saturdays, Sundays and Holidays)
after notice from Landlord; or



     (f) Any information furnished to Landlord by or in connection with the entry of this Lease on
behalf of Tenant or any guarantor of this Lease in connection with the entry of this Lease is
determined to have been materially false, misleading or incomplete when made.



     The notice periods provided herein are in lieu of, and not in addition to, any notice periods
provided by Law. To the extent permitted by Law, Tenant hereby waives service or notice of any
demand for payment of rent or possession or default prescribed by statute or ordinance.



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     19.2 Remedies Upon Default. Upon or at any time after the occurrence of any Default
by Tenant, Landlord shall have, in addition to any other remedies available to Landlord at Law or
in equity (all of which remedies shall be distinct, separate and cumulative), the option to pursue
any one or more of the following remedies with or without written notice or demand to Tenant except
as required hereunder, each and all of which shall be cumulative and nonexclusive, without any
notice or demand whatsoever:



     (a) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to
Landlord, and if Tenant fails to do so, to the extent permitted by applicable Law Landlord may,
without prejudice to any other remedy which it may have for possession or arrearages in rent, enter
upon and take possession of the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, without being liable for prosecution or any claim or
damages therefor; and Landlord may recover from Tenant the following:



          (i) The worth at the time of award of any unpaid Rent which has been earned at the time of
such termination; plus




          (ii) The worth at the time of award of the amount by which the unpaid Rent which would have
been earned after termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus




          (iii) The worth at the time of award of the amount by which the unpaid Rent for the balance of
the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus




          (iv) Any other amount necessary to compensate Landlord for all the detriment proximately
caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom, specifically including but not limited to,
brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any
portion thereof for a new tenant, whether for the same or a different use, and any special
concessions made to obtain a new tenant; and




          (v) At Landlord’s election, such other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by applicable Law.




     The term “rent” as used in this Section 19.2 shall be deemed to be and to mean all
sums of every nature required to be paid by Tenant pursuant to the terms of this Lease, whether to
Landlord or to others. As used in Paragraphs 19.2(a)(i) and (ii), above, the “worth at the time of
award” shall be computed by allowing interest at the rate set forth in Article 25 of this
Lease, but in no case greater than the maximum amount of such interest permitted by Law. As used
in Paragraph 19.2(a)(iii) above, the “worth at the time of award” shall be computed by discounting
such amount at the discount rate of the Federal Reserve Bank nearest the Project at the time of
award plus one percent (1%).



     (b) If Landlord does not elect to terminate this Lease on account of any Default by Tenant,
Landlord may, from time to time, without terminating this Lease, enforce all of its rights and
remedies under this Lease, including the right to recover all Rent as it becomes due.



     (c) Landlord shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies available under Sections
19.2(a) and 19.2(b), above, or any Law or other provision of this Lease), without prior
demand or notice except as required by applicable Law, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a violation or breach
of any provision hereof.



     19.3 Subleases of Tenant. Whether or not Landlord elects to terminate this Lease on
account of any Default by Tenant, as set forth in this Article 19, Landlord shall have the
right to terminate any and all subleases, licenses, concessions or other consensual arrangements
for possession entered into by Tenant and affecting the Premises or may, in Landlord’s sole
discretion, succeed to Tenant’s interest in such subleases, licenses, concessions or arrangements.
In the event of Landlord’s election to succeed to Tenant’s interest in any such subleases,
licenses, concessions or arrangements, Tenant shall, as of the date of notice by Landlord of such
election, have no further right to or interest in the rent or other consideration receivable
thereunder.



     19.4 Efforts to Relet. No re-entry or repossession, repairs, maintenance, changes,
alterations and additions, reletting, appointment of a receiver to protect Landlord’s interests
hereunder, 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, or to accept a surrender of the
Premises, nor shall same operate to release Tenant in whole or in part from any of Tenant’s
obligations hereunder, unless express written notice of such intention is sent by Landlord to Tenant. Tenant hereby irrevocably waives any right otherwise available under any Law to
redeem or reinstate this Lease.



     19.5 Recapture of Tenant Inducements. The performance by Landlord of any agreement,
concession or grant for “free rent,” waived rent, Rent abatement, a “credit fund” to be applied
against Rent otherwise payable hereunder or any grant or payment by Landlord to or for the benefit
of Tenant of any cash or other bonus, allowance or other payment or inducement or any assumption of
obligations by Landlord to or for the benefit of Tenant given or granted to or for the benefit of
Tenant as consideration for execution and delivery of this Lease by Tenant (all such agreements,
concessions, grants, payments and assumptions are collectively referred to herein as “Tenant
Inducements”) shall be continuously conditional upon Tenant’s full and complete performance of its
obligations under this Lease, as this Lease may be amended or extended. Effective immediately upon
the



16









 




occurrence of an event of default by Tenant (i) any provision of this Lease providing for
performance of a Tenant Inducement shall be automatically deemed terminated and of no further force
or effect and (ii) any Tenant Inducement previously granted, issued, paid or given to or for the
benefit of Tenant shall be immediately due and payable by Tenant to Landlord as Rent hereunder.




ARTICLE 20

COVENANT OF QUIET ENJOYMENT




     Landlord covenants that Tenant, on paying the Rent, charges for services and other payments
herein reserved and on keeping, observing and performing all the other terms, covenants,
conditions, provisions and agreements herein contained on the part of Tenant to be kept, observed
and performed, shall, during the Lease Term, peaceably and quietly have, hold and enjoy the
Premises subject to the terms, covenants, conditions, provisions and agreements hereof without
interference by any persons lawfully claiming by or through Landlord. The foregoing covenant is in
lieu of any other covenant express or implied.



ARTICLE 21

SECURITY DEPOSIT




     Concurrent with Tenant’s execution of this Lease, Tenant shall deposit with Landlord a
security deposit (the “Security Deposit”) in the amount set forth in Section 14 of the
Summary, as security for the faithful performance by Tenant of all of its obligations under this
Lease. Tenant grants Landlord a security interest in the Security Deposit. The Security Deposit
shall not be considered an advance payment of rent and is not intended to serve as liquidated
damages nor to be a measure of Landlord’s damages for any default by Tenant. The Security Deposit
may be commingled with other funds of Landlord. If Tenant defaults with respect to any provisions
of this Lease, including, but not limited to, the provisions relating to the payment of Rent, the
removal of property and the repair of resultant damage, Landlord may, without notice to Tenant, but
shall not be required to apply all or any part of the Security Deposit for the payment of any Rent,
any damages or any other sum in default and Tenant shall, upon demand therefor, restore the
Security Deposit to its original amount. Any unapplied portion of the Security Deposit shall be
returned to Tenant, or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder,
within sixty (60) days following the expiration of the Lease Term. Tenant shall not be entitled to
any interest on the Security Deposit. In the event of a sale, lease, or encumbrance of the
Building or any part of the Building, Landlord shall have the right to transfer the Security
Deposit to the purchaser, landlord, tenant, or Landlord’s Mortgagee and if the Security Deposit is
transferred, Landlord shall thereafter be relieved from any liability concerning the Security
Deposit. Additionally, Landlord’s use or application of all or any portion of the Security Deposit
shall not preclude or impair any other rights or remedies provided for under this Lease or under
applicable Law and shall not be construed as a payment of liquidated damages.



     If (a) Tenant has not previously defaulted in its obligation to pay Rent to Landlord within
the time periods set forth in this Lease and (b) no Default exists on either the date Tenant
delivers the “Reduction Notice” (as defined below) to Landlord or the date the Landlord is required
to deliver to Tenant the amount by which the Security Deposit is to be reduced pursuant to the
terms of this Section 21, then, provided that Tenant complies with the provisions of this
Section 21, on the third (3rd) anniversary of the Commencement Date, the
Security Deposit shall be reduced to Two Hundred Twenty Five Thousand Dollars ($225,000.00). The
Security Deposit shall be reduced as follows: Landlord shall, within ten (10) Business Days
following notice by Tenant to Landlord that Tenant is entitled to reduce the Security Deposit
pursuant to this Section 21, deliver to Tenant the amount by which the Security Deposit is
reduced.



     Subject to Landlord’s right to draw down the Security Deposit in accordance with this
Article 21, Landlord shall hold the Security Deposit in an account at Midwest Bank,
provided that the entire amount of the Security Amount is insured by the Federal Deposit Insurance
Corporation (“FDIC”) and the amount is in an interest bearing account. If at any time the entire
Security Deposit is not insured by the FDIC, or if Midwest Bank & Trust Co. is no longer the Tenant
under this Lease, Landlord has the right to withdraw the Security Deposit and hold such amount in
an account designated by Landlord in its sole discretion.



ARTICLE 22

SUBSTITUTION OF OTHER PREMISES




     Landlord shall have the right, in its sole discretion, upon not less than thirty (30) days
prior written notice to Tenant, to move the Office Premises to other space in the Project on or
above the twenty-seventh (27th) floor of the Building and reasonably comparable in size,
layout, finish and glass line (on the east, south and west side of the Building) to the Office
Premises (the “Substitute Premises”), and all terms hereof shall apply to the new space with equal
force. In such event, Landlord shall give Tenant prior notice and shall provide Tenant, at Landlord’s sole cost and expense, with tenant improvements reasonably
comparable in quality to those in the Office Premises. In addition, Landlord shall be obligated to
pay to Tenant an allowance (the “Relocation Allowance”) equal to the reasonable out-of-pocket
moving expenses actually incurred by Tenant to move from the Office Premises to the Substitute
Premises (including the physical move from the Office Premises to the Substitute Premises and costs
for stationery, business cards, invoices, brochures and the like if the address, facsimile or
telephone numbers of Tenant or any of its licensees are changed in any manner due to the
relocation); provided that, Tenant shall submit to Landlord a detailed description of the
type and estimated amount of such moving expenses prior to the move and Landlord shall have
consented to such expenses, which consent shall not be unreasonably withheld. Simultaneously with
such relocation to the Substitute Premises, the parties shall immediately execute an amendment to
this Lease stating the relocation of the Office Premises.



17









 





ARTICLE 23

SIGNS




     Subject to Landlord’s prior written approval, in its sole discretion, and provided all signs
are in keeping with the quality, design and style of the Building and Project, Tenant, if the
Office Premises comprise an entire floor of the Building, at its sole cost and expense, may install
identification signage anywhere in the Office Premises including in the elevator lobby of the
Office Premises, provided that such signs must not be visible from the exterior of the Building.
If other tenants occupy space on the floor on which the Office Premises is located, Tenant’s
identifying signage shall be provided by Landlord, at Tenant’s cost, and such signage shall be
comparable to that used by Landlord for other similar floors in the Building and shall comply with
Landlord’s Building standard signage program. Additionally, subject to Landlord’s prior written
approval and provided all signs are keeping with the quality, design and style of the Building and
Project, Tenant may install identification signage in the lobby of the Building in a location
acceptable to Landlord, at its sole cost and expense. Any signs, notices, logos, pictures, names
or advertisements which are installed and that have not been separately approved by Landlord may be
removed without notice by Landlord at the sole expense of Tenant. Tenant may not install any signs
on the exterior or roof of the Project or the Common Areas (other than as set forth below). Any
signs, window coverings, or blinds (even if the same are located behind the Landlord-approved
window coverings for the Building), or other items visible from the exterior of the Premises or
Building, shall be subject to the prior written approval of Landlord, in its sole discretion.



     Landlord shall use commercially reasonable efforts to assist Tenant, at Tenant’s sole cost and
expense, in obtaining from the City of Chicago the right to install Tenant’s identification signage
on the exterior of the Retail Premises above the Retail Premises store front windows facing the
exterior of the Building (“Building Signage”). If the city grants such right, the Building Signage
shall (1) consist of graphics, materials, color, design, lettering, lighting, size, illumination,
and specifications consistent with the quality and nature of the Building, (2) be subject to the
prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned
or delayed, and (3) be subject to the receipt of all required governmental permits and approvals
and shall be subject to all applicable Laws. The costs of the actual signs comprising the Building
Signage and the installation, design, construction, and any and all other costs associated with the
Building Signage, including, without limitation, the cost of removing and disposing (or covering,
as the case may be) of any existing signage in the locations to be occupied by the Building
Signage, utility charges and hook-up fees, permits, and maintenance and repairs, shall be the sole
responsibility of Tenant; provided that Landlord shall reasonably cooperate with Tenant to allow
Tenant to install, operate, maintain and repair the Building Signage. Should the Building Signage
(including any lighting demands) require repairs and/or maintenance, Landlord shall have the right
to provide notice thereof to Tenant and Tenant (except as set forth above) shall cause such repairs
and/or maintenance to commence to be performed within ten (10) days (or such shorted period of time
designated by Landlord if the condition of the Building Signage poses any threat to the safety or
well being of the Building or any persons or other property as determined by Landlord) after
receipt of such notice from Landlord, at Tenant’s sole cost and expense; provided, however, if such
repairs and/or maintenance are reasonably expected to require longer than ten (10) days to perform,
Tenant shall commence such repairs and/or maintenance within such ten (10) day period and shall
thereafter diligently prosecute such repairs and maintenance to completion at Tenant’s sole cost
and expense. Should Tenant fail to perform such repairs and/or maintenance within the periods
described in the immediately preceding sentence, Landlord shall have the right to cause such work
to be performed and to charge Tenant as Additional Rent for the cost of such work from the date of
Landlord’s payment of such actual costs to the date of Tenant’s reimbursement to Landlord. On or
before the expiration or earlier termination of this Lease, Tenant shall, at Tenant’s sole cost and
expense, remove the Building Signage from the Building, and shall cause the areas in which such
Building Signage was located to be restored to the condition existing immediately prior to the
placement of such Building Signage. If Tenant fails to timely remove such Building Signage or to
restore the areas in which such Building Signage was located, as provided in the immediately
preceding sentence, then Landlord may perform such work, and all costs reasonably incurred by
Landlord in so performing, plus interest at the “Default Rate” (defined below) from the date of
Landlord’s payment of such costs to the date of Tenant’s reimbursement to Landlord, shall be
reimbursed by Tenant to Landlord within ten (10) days after Tenant’s receipt of an invoice
therefor. The terms of this Section 23 shall survive the expiration or earlier termination
of this Lease. All of the rights contained in this Section 23 shall be personal to the
original Tenant named in this Lease.



ARTICLE 24

COMPLIANCE WITH LAW




     Tenant shall not do anything or suffer anything to be done in or about the Premises or the
Project which will in any way conflict with any Law now in force or which may hereafter be enacted
or promulgated. At its sole cost and expense, Tenant shall promptly comply with all Laws. Should any standard or
regulation now or hereafter be imposed on Landlord or Tenant by a state, federal or local
governmental body charged with establishment, regulations and enforcement of occupational, health
or safety standards for employers, employees landlords or tenants, then Tenant agrees, at its sole
cost and expense, to comply promptly with such standards or regulations. Tenant shall be
responsible, at its sole cost and expense, to make all alterations to the Premises as required to
comply with the governmental rules, regulations, requirements or standards described in this
Article 24. Any such repairs or alterations shall be made at Tenant’s expense by Tenant
(1) in compliance with Article 8 if such repairs or alterations are nonstructural and do
not affect any Building System, or (2) by Landlord if such repairs or alterations are structural or
affect any Building System. If Tenant obtains knowledge of any failure to comply with any legal
requirements applicable to the Premises, Tenant shall give Landlord prompt notice thereof. The
judgment of any court of competent jurisdiction or the admission of Tenant in any judicial action,
regardless of whether Landlord is a party thereto, that Tenant has violated any of said
governmental measures, shall be conclusive of that



18









 




fact as between Landlord and Tenant. Notwithstanding anything in this Article 24 to the contrary, Tenant shall not be
responsible for any structural changes to the “Base Building” (as defined in the Work Letter)
unless such changes are triggered by Tenant’s non-standard office improvements to the Premises
and/or unique use or manner of use of the Office Premises (i.e., for other than general office use)
or Retail Premises (i.e., for other than general branch banking use).




ARTICLE 25

LATE CHARGES




     If any installment of Rent or any other sum due from Tenant shall not be received by Landlord
or Landlord’s designee within five (5) Business Days after Notice from Landlord that said amount is
due, then Tenant shall pay to Landlord a late charge equal to five percent (5%) of the overdue
amount plus any attorneys’ fees incurred by Landlord by reason of Tenant’s failure to pay Rent
and/or other charges when due hereunder (provided, however, Landlord shall not be obligated to
provide Tenant Notice of any past due installment of Rent or other sum due from Tenant more than
one (1) time during any twelve (12) month period). The late charge shall be deemed Additional Rent
and the right to require it shall be in addition to all of Landlord’s other rights and remedies
hereunder or at Law and shall not be construed as liquidated damages or as limiting Landlord’s
remedies in any manner. In addition to the late charge described above, any Rent or other amounts
owing hereunder which are not paid within ten (10) Business Days after the date they are due shall
bear interest from the date when due until paid at a rate per annum (the “Default Rate”) equal to
the lesser of (i) twelve percent (12%) per annum, and (ii) the highest rate permitted by applicable
Law.



ARTICLE 26

LANDLORD’S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT




     26.1 Landlord’s Cure. All covenants and agreements to be kept or performed by Tenant
under this Lease shall be performed by Tenant at Tenant’s sole cost and expense and without any
reduction of Rent, except to the extent, if any, otherwise expressly provided herein. If Tenant
shall fail to perform any obligation under this Lease, and such failure shall continue in excess of
the time allowed under Section 19.1(b), above, unless a specific time period is otherwise
stated in this Lease, Landlord may, but shall not be obligated to, make any such payment or perform
any such act on Tenant’s part without waiving its rights based upon any default of Tenant and
without releasing Tenant from any obligations hereunder. Notwithstanding the foregoing, Landlord
may, but shall not be obligated to, make any such payment or perform any such act on Tenant’s part
without waiving its rights based upon any default of Tenant and without releasing Tenant from any
obligations hereunder, immediately, and without notice, in the case of emergency or if the default
(i) materially interferes with the use by any other tenant of the Building, (ii) materially
interferes with the efficient operation of the Building, (iii) results in a violation of any legal
requirement, or (iv) results or will result in a cancellation of any insurance policy maintained by
Landlord.



     26.2 Tenant’s Reimbursement. Except as may be specifically provided to the contrary
in this Lease, Tenant shall pay to Landlord, upon delivery by Landlord to Tenant of statements
therefor: (i) sums equal to expenditures reasonably made and obligations incurred by Landlord in
connection with the remedying by Landlord of Tenant’s defaults pursuant to the provisions of
Section 26.1; (ii) sums equal to all losses, costs, liabilities, damages and expenses
referred to in Article 10 of this Lease; and (iii) sums equal to all expenditures made and
obligations incurred by Landlord in collecting or attempting to collect the Rent or in enforcing or
attempting to enforce any rights of Landlord under this Lease or pursuant to Law, including,
without limitation, all legal fees and other amounts so expended. Tenant’s obligations under this
Section 26.2 shall survive the expiration or sooner termination of the Lease Term.



ARTICLE 27

ENTRY BY LANDLORD




     Landlord reserves the right at all reasonable times and upon reasonable notice (which notice
may be telephonic) to Tenant (except in the case of an emergency, in which event no notice shall be
required) to enter the Premises to (i) inspect them; (ii) show the Premises to prospective
purchasers, mortgagees, brokers, investors or tenants, or to current or prospective mortgagees,
ground or underlying lessors or insurers; (iii) post notices of nonresponsibility; or (iv) alter,
improve or repair the Premises or the Building, or for structural alterations, repairs or
improvements to the Building or the Building Systems. Landlord shall have the right to install, use
and maintain ducts, cabling, pipes and conduits in and through the Premises, provided that (a)
such ducts, cabling, pipes and conduits are concealed within or above partitioning columns, walls
or ceilings, except that if such ducts, cabling, pipes or conduits are installed in areas that are utility areas (such as storage areas,
mailrooms or mud rooms), then such ducts, cabling, pipes or conduits may also be installed on
partitioning walls, columns or ceilings, (b) such ducts, cabling, pipes and conduits do not reduce
the usable area of the Premises by more than a de minimis amount, and (c) Landlord installs such
ducts, cabling, pipes and conduits in a manner that minimizes, to the extent reasonably
practicable, any adverse effect on an Alteration theretofore performed in the Premises.
Notwithstanding anything to the contrary contained in this Article 27, Landlord may enter
the Premises at any time to (A) perform services required of Landlord, including janitorial
service; (B) to the extent permitted by applicable Law, take possession due to any breach of this
Lease in the manner provided herein; or (C) perform any covenants of Tenant which Tenant fails to
perform. Landlord may make any such entries without the abatement of Rent and may take such
reasonable steps as required to accomplish the stated purposes. Tenant hereby waives any claims
for damages or for any injuries or inconvenience to or interference with Tenant’s business, lost
profits, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of the above purposes, Landlord



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shall at all times have a key with which to
unlock all the doors in the Premises, excluding Tenant’s vaults, safes and special security areas
designated in advance by Tenant to Landlord. In an emergency, Landlord shall have the right to use
any means that Landlord may deem proper to open the doors in and to the Premises. Any entry into
the Premises by Landlord in the manner hereinbefore described shall not be deemed to be a forcible
or unlawful entry into, or a detainer of, the Premises, or an actual or constructive eviction of
Tenant from any portion of the Premises. Landlord shall use commercially reasonable efforts to
minimize interference with Tenant’s business operations in connection with any entry by Landlord
pursuant to this Article 27.




ARTICLE 28

TENANT PARKING




     Tenant shall rent from Landlord, commencing on the Commencement Date, the amount of parking
passes set forth in Section 15 of the Summary, on a monthly basis throughout the Lease Term, which
parking passes shall pertain to the Project parking facility. Tenant shall pay to Landlord for
automobile parking passes on a monthly basis an amount equal to ninety-five percent (95%) of the
prevailing rate charged from time to time at the location of such parking passes. In addition,
Tenant shall be responsible for the full amount of any taxes imposed by any governmental authority
in connection with the renting of such parking passes by Tenant or the use of the parking facility
by Tenant. Tenant’s continued right to use the parking passes is conditioned upon Tenant abiding
by all rules and regulations which are prescribed from time to time for the orderly operation and
use of the parking facility where the parking passes are located, including any sticker or other
identification system established by Landlord, Tenant’s cooperation in seeing that Tenant’s
employees and visitors also comply with such rules and regulations and Tenant not being in default
under this Lease. Tenant’s use of the Project parking facility shall be at Tenant’s sole risk and
Tenant acknowledges and agrees that Landlord shall have no liability whatsoever for damage to the
vehicles of Tenant, its employees and/or visitors, or for other personal injury or property damage
or theft relating to or connected with the parking rights granted herein or any of Tenant’s, its
employees’ and/or visitors’ use of the parking facilities. Landlord specifically reserves the
right to change the size, configuration, design, layout and all other aspects of the Project
parking facility at any time and Tenant acknowledges and agrees that Landlord may, without
incurring any liability to Tenant and without any abatement of Rent under this Lease, from time to
time, close-off or restrict access to the Project parking facility for purposes of permitting or
facilitating any such construction, alteration or improvements. Landlord may delegate its
responsibilities hereunder to a parking operator in which case such parking operator shall have all
the rights of control attributed hereby to the Landlord. The parking passes rented by Tenant
pursuant to this Article 28 are provided to Tenant solely for use by Tenant’s own personnel
and such passes may not be transferred, assigned, subleased or otherwise alienated by Tenant
without Landlord’s prior approval. Tenant may validate visitor parking by such method or methods
as the Landlord may establish, at the validation rate from time to time generally applicable to
visitor parking, at Tenant’s sole cost. Landlord shall have no obligation to monitor the use of
such parking facility, nor shall Landlord be responsible for any loss or damage to any vehicle or
other property or for any injury to any person. Tenant’s parking passes shall be used only for
parking of automobiles no larger than full size passenger automobiles, sport utility vehicles or
pick-up trucks. Tenant shall comply with all rules and regulations which may be adopted by
Landlord from time to time with respect to parking and/or the parking facilities servicing the
Project. Tenant shall not have the exclusive right to use any specific parking space. If Landlord
grants to any other tenant the exclusive right to use any particular parking space(s), Tenant shall
not use such spaces. All trucks (other than pick-up trucks) and delivery vehicles shall be (i)
parked at the loading dock of the Building, (ii) loaded and unloaded in a manner which does not
interfere with the businesses of other occupants of the Project, and (iii) permitted to remain on
the Project only so long as is reasonably necessary to complete loading and unloading. In the
event Landlord elects in its sole and absolute discretion or is required by any Law to limit or
control parking, whether by validation of parking tickets or any other method of assessment, Tenant
agrees to participate in such validation or assessment program under such reasonable rules and
regulations as are from time to time established by Landlord.



ARTICLE 29

MISCELLANEOUS PROVISIONS




     29.1 Terms; Captions. The words “Landlord” and “Tenant” as used herein shall include
the plural as well as the singular. The necessary grammatical changes required to make the
provisions hereof apply either to corporations or partnerships or individuals, men or women, as the
case may require, shall in all cases be assumed as though in each case fully expressed. The
captions of Articles and Sections are for convenience only and shall not be deemed to limit,
construe, affect or alter the meaning of such Articles and Sections.



     29.2 Binding Effect. Subject to all other provisions of this Lease, each of the
covenants, conditions and provisions of this Lease shall extend to and shall, as the case may
require, bind or inure to the benefit not only of Landlord and of Tenant, but also of their
respective heirs, personal representatives, successors or assigns, provided this clause shall not
permit any assignment by Tenant contrary to the provisions of Article 14 of this Lease.



     29.3 No Air Rights. No rights to any view or to light or air over any property,
whether belonging to Landlord or any other person, are granted to Tenant by this Lease. If at any
time any windows of the Premises are temporarily darkened or the light or view therefrom is
obstructed by reason of any repairs, improvements, maintenance or cleaning in or about the Project,
the same shall be without liability to Landlord and without any reduction or diminution of Tenant’s
obligations under this Lease.



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     29.4 Modification of Lease. Should any current or prospective mortgagee or ground
lessor for the Building or Project require a modification of this Lease, which modification will
not cause an increased cost or expense to Tenant or in any other way materially and adversely
change the rights and obligations of Tenant hereunder, then and in such event, Tenant agrees that
this Lease may be so modified and agrees to execute whatever documents are reasonably required
therefor and to deliver the same to Landlord within ten (10) days following a request therefor.



     29.5 Transfer of Landlord’s Interest. Tenant acknowledges that Landlord has the right
to transfer all or any portion of its interest in the Project or Building and in this Lease.
Tenant agrees that in the event of any such transfer, Landlord shall automatically be released from
all liability under this Lease, and Tenant agrees to look solely to such transferee for the
performance of Landlord’s obligations hereunder accruing after the date of transfer. Such
transferee shall be deemed to have fully assumed and be liable for all obligations of this Lease to
be performed by Landlord, including the return of any Security Deposit, and Tenant shall attorn to
such transferee. Tenant further acknowledges that Landlord may assign its interest in this Lease
to Landlord’s Mortgagee as additional security. Tenant agrees that such an assignment shall not
release Landlord from its obligations hereunder and that Tenant shall continue to look to Landlord
for the performance of its obligations hereunder unless and until such Landlord’s Mortgagee
succeeds to Landlord’s interest under this Lease.



     29.6 Prohibition Against Recording. Neither this Lease, nor any memorandum, affidavit
or other writing with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant.



     29.7 Landlord’s Title. Landlord’s title is and always shall be paramount to the title
of Tenant. Nothing herein contained shall empower Tenant to do any act which can, shall or may
encumber the title of Landlord.



     29.8 Relationship of Parties. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship of principal and
agent, partnership, joint venturer or any association between Landlord and Tenant.



     29.9 Application of Payments. Landlord shall have the right to apply payments
received from Tenant pursuant to this Lease, regardless of Tenant’s designation of such payments,
to satisfy any obligations of Tenant hereunder, in such order and amounts as Landlord, in its sole
discretion, may elect.



     29.10 Time of Essence. Whether or not so specified in any particular provision of
this Lease, time is of the essence with respect to the performance by Tenant of every provision of
this Lease in which time of performance by Tenant is a factor.



     29.11 Partial Invalidity. If any term, provision or condition contained in this Lease
shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application
of such term, provision or condition to persons or circumstances other than those with respect to
which it is invalid or unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the fullest extent possible
permitted by Law.



     29.12 No Warranty. In executing and delivering this Lease, Tenant has not relied on
any representations, including, but not limited to, any representation as to the amount of any item
comprising Additional Rent or the amount of the Additional Rent in the aggregate or that Landlord
is furnishing the same services to other tenants, at all, on the same level or on the same basis,
or any warranty or any statement of Landlord or any employee, broker or agent of Landlord, which is
not set forth herein or in one or more of the exhibits attached hereto.



     29.13 Landlord Exculpation. The liability of Landlord or the Landlord Parties to
Tenant for any default by Landlord under this Lease or arising in connection herewith or with
Landlord’s operation, management, leasing, repair, renovation, alteration or any other matter
relating to the Project or the Premises shall be limited solely and exclusively to an amount which
is equal to the lesser of (a) the interest of Landlord in the Building or (b) the equity interest
Landlord would have in the Building if the Building were encumbered by third-party debt in an
amount equal to eighty percent (80%) of the value of the Building (as such value is determined by
Landlord), provided that in no event shall such liability extend to any sales or insurance proceeds
received by Landlord or the Landlord Parties in connection with the Project, Building or Premises.
Neither Landlord, nor any of the Landlord Parties shall have any personal liability therefor, and
Tenant hereby expressly waives and releases such personal liability on behalf of itself and all
persons claiming by, through or under Tenant. The limitations of liability contained in this Section 29.13 shall inure to the benefit of Landlord’s and the Landlord
Parties’ present and future partners, beneficiaries, officers, directors, trustees, shareholders,
agents and employees, and their respective partners, heirs, successors and assigns. Under no
circumstances shall any present or future partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust), have any liability for
the performance of Landlord’s obligations under this Lease. Notwithstanding any contrary provision
herein, neither Landlord nor the Landlord Parties shall be liable under any circumstances for
injury or damage to, or interference with, Tenant’s business, including but not limited to, loss of
profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of
use, in each case, however occurring.



     29.14 Entire Agreement. It is understood and acknowledged that there are no oral
agreements between the parties hereto affecting this Lease and this Lease constitutes the parties’
entire agreement with respect to the leasing of the Premises and supersedes and cancels any and all
previous negotiations, arrangements,



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brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. None of the terms, covenants,
conditions or provisions of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto.




     29.15 Right to Lease. Landlord reserves the absolute right to effect such other
tenancies in the Project as Landlord in the exercise of its sole business judgment shall determine
to best promote the interests of the Building or Project. Tenant does not rely on the fact, nor
does Landlord represent, that any specific tenant or type or number of tenants shall, during the
Lease Term, occupy any space in the Building or Project.



     29.16 Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God and adverse weather, inability to obtain services, labor, or materials
or reasonable substitutes therefor, governmental actions, civil commotions, terrorism, fire or
other casualty, and other causes beyond the reasonable control of the party obligated to perform,
except with respect to the obligations imposed with regard to Rent and other charges to be paid by
Tenant pursuant to this Lease and except as to Tenant’s obligations under Articles 5 and
24 of this Lease (collectively, a “Force Majeure”), notwithstanding anything to the
contrary contained in this Lease, shall excuse the performance of such party for a period equal to
any such prevention, delay or stoppage and, therefore, if this Lease specifies a time period for
performance of an obligation of either party, that time period shall be extended by the period of
any delay in such party’s performance caused by a Force Majeure.



     29.17 Waiver of Redemption by Tenant. Tenant hereby waives, for Tenant and for all
those claiming under Tenant, any and all rights now or hereafter existing to redeem by order or
judgment of any court or by any legal process or writ, Tenant’s right of occupancy of the Premises
after any termination of this Lease.



     29.18 Notices. All notices, demands, statements, designations, approvals or other
communications (collectively, “Notices”) given or required to be given by either party to the other
hereunder or by Law shall be in writing, shall be (A) sent by United States certified or registered
mail, postage prepaid, return receipt requested (“Mail”), (B) transmitted by telecopy, if such
telecopy is promptly followed by a Notice sent by Mail, by nationally recognized overnight courier
or delivered personally, (C) delivered by a nationally recognized overnight courier, or (D)
delivered personally. Any Notice shall be sent, transmitted, or delivered, as the case may be, to
Tenant at the appropriate address set forth in Section 16 of the Summary, or to such other place as
Tenant may from time to time designate in a Notice to Landlord, or to Landlord at the addresses set
forth below, or to such other places as Landlord may from time to time designate in a Notice to
Tenant. Any Notice will be deemed given (i) three (3) days after the date it is posted if sent by
Mail, (ii) the date the telecopy is transmitted, (iii) the date the overnight courier delivery is
made or attempted to be made, or (iv) the date personal delivery is made or attempted to be made.
If Tenant is notified of the identity and address of Landlord’s Mortgagee (by assignment of rents
or otherwise), Tenant shall give to such Landlord’s mortgagee written notice of any default by
Landlord. As of the date of this Lease, any Notices to Landlord must be sent, transmitted, or
delivered, as the case may be, to the addresses listed in Section 17 of the Summary.



     29.19 Joint and Several. If there is more than one Tenant, the obligations imposed
upon Tenant under this Lease shall be joint and several.



     29.20 Authority. Tenant hereby represents and warrants to Landlord that (i) Tenant is
duly organized and validly existing in good standing under the Laws of Illinois, and possesses all
licenses and authorizations necessary to carry on its business, (ii) Tenant has full power and
authority to carry on its business, enter into this Lease and consummate the transaction
contemplated by this Lease, (iii) the individual executing and delivering this Lease on Tenant’s
behalf has been duly authorized to do so, (iv) this Lease has been duly executed and delivered by
Tenant, (v) this Lease constitutes a valid, legal, binding and enforceable obligation of Tenant
(subject to bankruptcy, insolvency or creditor rights laws generally, and principles of equity
generally), (vi) the execution, delivery and performance of this Lease by Tenant will not cause or
constitute a default under, or conflict with, the organizational documents of Tenant or any
agreement to which Tenant is a party, (vii) the execution, delivery and performance of this Lease
by Tenant will not violate any applicable Law, and (viii) all consents, approvals, authorizations,
orders or filings of or with any court or governmental agency or body, if any, required on the part
of Tenant for the execution, delivery and performance of this Lease have been obtained or made.



     29.21 Attorneys’ Fees. In the event that either Landlord or Tenant should bring suit
for the possession of the Premises, for the recovery of any sum due under this Lease, or because of
the breach of any provision of this Lease or for any other relief against the other, then all costs
and expenses, including reasonable attorneys’ fees, incurred by the prevailing party therein shall be paid by the other party, which obligation on
the part of the other party shall be deemed to have accrued on the date of the commencement of such
action and shall be enforceable whether or not the action is prosecuted to judgment.



     29.22 Governing Law; WAIVER OF TRIAL BY JURY. This Lease shall be construed and
enforced in accordance with the Laws of the State of Illinois. IN ANY ACTION OR PROCEEDING ARISING
HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I) THE JURISDICTION OF ANY COMPETENT COURT WITHIN
ILLINOIS, (II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY THE LAW OF THE STATE WHERE THE
BUILDING IS LOCATED, AND (III) IN THE INTEREST OF SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR
THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF THE



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PREMISES, AND/OR ANY CLAIM
FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. IN THE EVENT LANDLORD COMMENCES ANY
SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL RENT, TENANT SHALL NOT
INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS SUCH COUNTERCLAIM SHALL BE
MANDATORY) IN ANY SUCH PROCEEDING OR ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT
LAW.




     29.23 Submission of Lease. Submission of this instrument for examination or signature
by Tenant does not constitute an offer to lease the Premises to Tenant or reservation of, option
for or option to lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.



     29.24 Brokers. Landlord and Tenant hereby warrant to each other that they have had no
dealings with any real estate broker or agent in connection with the negotiation of this

 Lease,
excepting only the real estate brokers or agents specified in Section 18 of the Summary (the
“Brokers”), and that they know of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. Tenant agrees to indemnify and defend Landlord against
and hold Landlord harmless from any and all Claims with respect to any leasing commission or
equivalent compensation alleged to be owing on account of any dealings with any real estate broker
or agent, other than the Brokers, occurring by, through, or under Tenant. Tenant’s Broker shall be
compensated pursuant to a separate agreement between Landlord’s Broker and Tenant’s Broker.



     29.25 Independent Covenants. This Lease shall be construed as though the covenants
herein (including, without limitation, Tenant’s obligation to pay Rent) between Landlord and Tenant
are independent and not dependent and Tenant hereby expressly waives the benefit of any statute to
the contrary and agrees that if Landlord fails to perform its obligations set forth herein, Tenant
shall not be entitled to make any repairs or perform any acts hereunder at Landlord’s expense or to
any setoff of the Rent or other amounts owing hereunder against Landlord.



     29.26 Project or Building Name and Signage. Landlord shall have the right at any time
to change the name of the Project or Building and to install, affix and maintain any and all signs
on the exterior and on the interior of the Project or Building as Landlord may, in Landlord’s sole
discretion, desire. Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or for any purpose other
than as the address of the business to be conducted by Tenant in the Premises, without the prior
written consent of Landlord, which consent may be granted or withheld in Landlord’s sole
discretion.



     29.27 Counterparts. This Lease may be executed in counterparts with the same effect
as if both parties hereto had executed the same document. Both counterparts shall be construed
together and shall constitute a single lease.



     29.28 Confidentiality. Tenant acknowledges that the content of this Lease and any
related documents are confidential information. Tenant shall keep such confidential information
strictly confidential and shall not disclose such confidential information to any person or entity
other than Tenant’s financial, legal, and space planning consultants.



     29.29 Transportation Management. Tenant shall fully comply with all present or future
programs intended to manage parking, transportation or traffic in and around the Building, and in
connection therewith, Tenant shall take responsible action for the transportation planning and
management of all employees located at the Premises by working directly with Landlord, any
governmental transportation management organization or any other transportation-related committees
or entities.



     29.30 No Violation. Tenant hereby warrants and represents that neither its execution
of nor performance under this Lease shall cause Tenant to be in violation of any agreement,
instrument, contract, Law, rule or regulation by which Tenant is bound, and Tenant shall protect,
defend, indemnify and hold Landlord harmless against any Claims arising from Tenant’s breach of
this warranty and representation.



     29.31 Communications and Computer Lines. Tenant may install, maintain, replace,
remove or use any communications or computer wires and cables (collectively, the “Lines”) at the
Project in or serving the Premises, provided that (i) Tenant shall obtain Landlord’s prior written
consent, use an experienced and licensed contractor approved in writing by Landlord, and comply
with all of the other provisions of Articles 7 and 8
 of this Lease, (ii) an acceptable number of spare Lines and space for additional Lines shall
be maintained for existing and future occupants of the Project, as determined in Landlord’s
reasonable opinion, (iii) the Lines therefor (including riser cables) shall be appropriately
insulated to prevent excessive electromagnetic fields or radiation, and shall be surrounded by a
protective conduit reasonably acceptable to Landlord, (iv) any new or existing Lines servicing the
Premises shall comply with all applicable governmental Laws, (v) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove any Lines located
in or serving the Premises which are installed in violation of these provisions, or which are at
any time in violation of any Laws or represent a dangerous or potentially dangerous condition, and
Landlord further reserves the right upon the expiration or earlier termination of the Lease Term to
require that Tenant remove any Lines installed by or on behalf of Tenant and repair any damage in
connection with such removal, all at Tenant’s cost. Additionally, Tenant must use Montgomery
Technologies (or another provider approved by Landlord) in the Building risers.




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     29.32 Construction of Project and Other Improvements. It is specifically understood
and agreed that Landlord has made no representation or warranty to Tenant and has no obligation and
has made no promises to alter, remodel, improve, renovate, repair or decorate the Premises,
Building or any part thereof and that no representations respecting the condition of the Premises
or the Building have been made by Landlord to Tenant except as specifically set forth herein or in
the Work Letter, if applicable. Tenant acknowledges that Landlord may renovate, improve, alter, or
modify (collectively, the “Renovations”) portions of the Project, the Building and/or the Premises
including without limitation the parking structure, if any, Common Areas, systems and equipment,
roof, and structural portions of the same following Tenant’s occupancy of the Premises, and that
such Renovations may result in excess levels of noise, dust, obstruction of access, etc. which are
in excess of that present in a fully constructed project Tenant hereby agrees that such
Renovations and Landlord’s actions in connection with such Renovations shall in no way constitute a
constructive eviction of Tenant nor entitle Tenant to any abatement of Rent. Tenant hereby waives
any and all rent offsets or claims of constructive eviction which may arise in connection with such
construction. Landlord shall have no responsibility or for any reason be liable to Tenant for any
direct or indirect injury to or interference with Tenant’s business arising from the Renovations,
nor shall Tenant be entitled to any compensation or damages from Landlord for loss of the use of
the whole or any part of the Premises or of Tenant’s personal property or improvements resulting
from the Renovations or Landlord’s actions in connection with such Renovations, or for any
inconvenience or annoyance occasioned by such Renovations or Landlord’s actions.



     29.33 Prohibited Persons and Transactions. Tenant represents and warrants that
neither Tenant nor any of its affiliates, nor any of their respective partners, members,
shareholders or other equity owners, and none of their respective employees, officers, directors,
representatives or agents is, nor will they become, a person or entity with whom U.S. persons or
entities are restricted from doing business under regulations of the Office of Foreign Asset
Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially
Designated and Blocked Persons List) or under any statute, executive order (including the September
24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not
Transfer this Lease to, contract with or otherwise engage in any dealings or transactions or be
otherwise associated with such persons or entities.



     29.34 Limitation on Remedies. Notwithstanding anything to the contrary in this Lease,
if (i) this Lease obligates Landlord to not unreasonably withhold, condition or delay Landlord’s
consent or approval for a particular matter, (ii) Landlord withholds, delays or conditions its
consent or approval for such matter, and (iii) Tenant believes that Landlord did so unreasonably,
then Tenant’s sole remedies shall be a declaratory judgment and an injunction for the relief sought
without any monetary damages, and Tenant hereby waives all other remedies, including, without
limitation, any right at law or equity to terminate this Lease.



     29.35 Reasonable Efforts. For purposes of this Lease, “reasonable efforts” by
Landlord shall not include an obligation to employ contractors or labor at overtime or other
premium pay rates or to incur any other overtime costs or additional expenses whatsoever.



     29.36 ATM Rights. Provided that (i) this Lease shall not have been terminated, (ii)
Tenant shall not be in Default under this Lease, and (iii) Tenant shall occupy the entire Retail
Premises, Tenant shall have the exclusive right (“Tenant’s Exclusive”) to lease from Landlord,
beginning on the Retail Premises Commencement Date, certain premises for the operation of an ATM in
the west side of the lobby of the Building in a location determined by Landlord in its sole
discretion (the “ATM Premises”). Tenant’s Exclusive shall, beginning on the first day after the
second (2nd) anniversary of the Retail Premises Commencement Date, not apply to, and
Tenant shall have no right to enforce the provisions of this Section 29.36 with respect to
any tenant’s lease entered into after the Date of this Lease for (a) no less than two (2) full
floors, or (b) no less than 50,000 rentable square feet in the Building. Tenant’s Lease of the ATM
Premises shall be subject to all of the terms and provisions of this Lease, except as otherwise set
forth in this Section 29.36. Tenant shall accept the ATM Premises in its “as-is”
condition.



     The Base Rent for the ATM Premises shall be Six Hundred Dollars ($600.00) per month, with four
percent (4%) annual increases on each anniversary of the date Tenant exercises the Tenant’s
Exclusive thereafter. The Base Rent for the ATM Premises shall be paid in accordance with
Section 3.1 of this Lease.



     In the event that it is determined that this Section 29.36 is found by a court of
competent jurisdiction to violate any state or federal law or regulation or that same is
unenforceable, at the present time or any time in the future, this covenant shall be void as of the
date of such determination and of no further force and effect, and with respect to same, Tenant
hereby covenants and agrees with Landlord that it shall indemnify and hold Landlord harmless with
respect to any penalties, fines, judgments, damages or recoveries had or imposed by any party
against Landlord arising out of this Section 29.36. Tenant agrees that this Lease shall
not be adversely affected and there shall be no abatement of Base Rent for the Offices Premises or
Retail Premises or Additional Rent charge payable hereunder as a result of the unenforceability of
this covenant, it being understood and agreed that Landlord makes no representation or warranty as
to its validity or enforceability.



     Except as expressly set forth in this Section 29.36, if (i) Tenant ceases to operate
the ATM Premises, (ii) Tenant is in Default under this Lease, or (iii) Tenant is not occupying the
Retail Premises, then Landlord shall have the right to stop recognizing Tenant’s Exclusive and
Tenant’s Exclusive shall be null and void for the remainder of the term of this Lease.



     Notwithstanding any language contained in this Lease to the contrary, in the event that
Landlord enters into a lease for premises within the Building with a tenant in violation of
Tenant’s Exclusive and Landlord fails to cure



24









 







such Landlord violation within ten (10) days following the date on which Landlord receives written
Notice from Tenant specifying such Landlord violation, then Tenant shall have such rights and
remedies against Landlord as may be available hereunder, at law or in equity, other than the right
to seek lost profits or consequential damages. It is understood and agreed that in the event of
violation of Tenant’s Exclusive pursuant to this paragraph and Landlord’s failure to timely cure,
Tenant would be subject to irreparable harm and shall be authorized and entitled to obtain from any
court of competent jurisdiction temporary, preliminary and permanent injunctive relief as well as
other equitable relief without posting a bond, cash or other security, which rights and remedies
shall be cumulative and in addition to other damages or other relief sought. If the aforementioned
injunctive relief is granted to Tenant by the court, Tenant shall be entitled to recover from
Landlord any costs, expenses and attorneys fees incurred in pursuing said injunctive relief.



     The costs of the actual ATM and related equipment in the ATM Premises and the installation,
design, construction and any and all other costs associated with the ATM Premises, including,
without limitation, utility charges and hook-up fees, permits, and maintenance and repairs, shall
be the sole responsibility of Tenant. On or before the expiration or earlier termination of this
Lease, Tenant shall, at Tenant’s sole cost and expense, remove the ATM and related equipment from
the ATM Premises, and shall cause the area to be restored to the condition existing as of the Date
of this Lease. The terms of this Section 29.36 shall survive the expiration or earlier
termination of this Lease. All of the rights contained in this Section 29 shall be
personal to the original Tenant named in this Lease.



     29.37 Sound. It is specifically understood and agreed that Landlord has made no
representation or warranty to Tenant respecting the sound levels in the Premises. Tenant
acknowledges that Landlord may construct, install or permit a gymnasium or work-out facility in the
Building (the “Gym”) and that such Gym may result in excess levels of noise in the Premises.
Tenant hereby agrees that such Gym and Landlord’s actions in connection with such Gym shall in no
way constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent.
Tenant hereby waives any and all rent offsets or claims of constructive eviction which may arise in
connection with such Gym. Landlord shall have no responsibility or for any reason be liable to
Tenant for any direct or indirect injury to or interference with Tenant’s business arising from the
Gym, nor shall Tenant be entitled to any compensation or damages from Landlord for loss of the use
of the whole or any part of the Premises or of Tenant’s personal property or improvements resulting
from the Gym or Landlord’s actions in connection with the Gym, or for any inconvenience or
annoyance occasioned by the Gym or Landlord’s actions. Notwithstanding the foregoing, if, within
eighteen (18) months after the installation of the Gym, or within eighteen (18) months of a
reconfiguration of existing equipment or installation of new equipment in the Gym, Tenant provides
Notice to Landlord that the Gym is causing unreasonable levels of noise or vibration that
materially and adversely affect Tenant’s use of the Premises, then Landlord shall use commercially
reasonable efforts to minimize such unreasonable levels of noise and/or vibration; provided,
however, Landlord’s commercially reasonable efforts do not require Landlord to spend more than
Twenty Five Thousand Dollars ($25,000.00) in the aggregate. In order to control adverse sound from
free weights being dropped on the floor of the Gym, Landlord agrees not to provide or make
available free weights in the Gym over the Lease Term.



ARTICLE 30

STATE LAW PROVISIONS




     30.1 Remedies. In connection with Landlord exercising its remedy set forth in
Section 19.2.2 of this Lease, Landlord shall use reasonable efforts to relet the Premises
for the account of Tenant for such rent, for such time (which may extend beyond the Lease Term) and
such other terms as Landlord shall determine and shall not be required to accept any tenant offered
by tenant or observe any of Tenant’s instructions.



     30.2 Conflicts. To the extent of any conflicts or inconsistencies between the terms
and provisions of this Article 30 and the terms and provisions of the remainder of this
Lease, the terms and provisions of this Article 30 shall control.



ARTICLE 31

RIGHT OF FIRST OFFER




     (a) As used herein:



     “Available” means, as to any space, that such space is vacant and free of any present
or future possessory right now or hereafter existing in favor of any third party; provided, that
any space that is vacant on the date of this Lease shall not be deemed Available unless and until
such space is first leased to another tenant and then again becomes Available. Anything to the
contrary contained herein notwithstanding, Tenant’s right of first offer pursuant to this
Section 31 is subordinate to (x) any right of offer, right of first refusal, renewal right,
expansion right or similar right or option in favor of any third party existing as of the date of
this Lease and (y) Landlord’s right to renew or extend the term of any lease to another tenant,
whether or not pursuant to an option or right set forth in such lease.



     “Offer Period” means the Lease Term.



     “Offer Space” means any Available space on the thirty first (31st) floor of
the Building.




     (b) Provided (i) this Lease shall not have been terminated, (ii) Tenant shall not be in
default under this Lease, and (iii) Tenant shall occupy the entire Premises, if at any time
during the Offer Period the Offer Space either becomes, or Landlord reasonably anticipates
that within the next twelve (12) months



25









 






(but not later than the last day of the Offer Period) the Offer Space will become, Available,
Landlord shall give to Tenant notice (an “Offer Notice”) thereof, specifying (A)
Landlord’s determination of the Fair Offer Rent for such Offer Space, (B) the date or
estimated date that the Offer Space has or shall become Available and (C) such other matters
as Landlord may deem appropriate for such Offer Notice. “Fair Offer Rent” shall be
equal to an amount equal to the rate being charged to new tenants for comparable space in the
Project or, if comparable transactions do not exist in the Project, then an amount that
landlords of the comparable buildings (as determined by Landlord) have agreed to accept, and
sophisticated nonaffiliated tenants of comparable buildings have agreed to pay, in current
arms-length, nonrenewal, nonequity (i.e., not being offered equity in the building),
transactions for comparable space (in terms of condition, floor location, view and floor
height) of a comparable size, for a nonrenewal term equal to the term set forth in the Offer
Notice and commencing as of the first day of the Offer Space Inclusion Date, which annual
rent per square foot shall take into account and make adjustment for the existence, timing
and amount of any increases in rent following term commencement in the comparison
transactions, and shall at all times take into consideration and make adjustment for all
other material differences in all terms, conditions or factors applicable to the transaction
in question hereunder or applicable to one or more of the comparison transactions used to
determine the Fair Offer Rent which a sophisticated tenant or sophisticated landlord would
believe would have a material impact on a “fair market rental” determination; provided,
however, that (i) the rent for all comparison transactions shall be grossed up or adjusted to
reflect the net payment of operating expenses and taxes, (ii) the presence, amount or absence
of brokerage commissions in either the subject transaction or the comparison transactions
shall be considered, (iii) any rent abatement or other free rent of any type provided in
comparison transactions for the period of the performance of any tenant improvement work
(i.e., any “construction period”) shall be disregarded, and (iv) any tenant improvements or
allowance provided for in comparable transactions shall be taken into account, and the value,
if any, to Tenant of any existing improvements in the Premises shall be taken into account in
the calculation of the Fair Offer Rent. If in determining the Fair Offer Rent for a subject
transaction hereunder, it is determined that free rent or cash allowances (collectively,
“Concessions”) should be granted, Landlord may, at Landlord’s sole option, elect all or any
portion of the following: (A) to grant some or all of the Concessions to Tenant as free rent
or as an improvement allowance, or (B) to adjust the monthly installments of the applicable
Fair Offer Rent to be an effective rental rate which takes into consideration and deducts
from monthly rent the amortized amount of the total dollar value of such Concessions,
amortized on a straight line basis over the remainder of the Lease Term (in which case the
Concessions so amortized shall not be granted to Tenant).




     (c) Provided that on the date that Tenant exercises the Offer Space Option and on the
Offer Space Inclusion Date (i) this Lease shall not have been terminated, (ii) Tenant shall
not be in default under this Lease, and (iii) Tenant shall occupy the entire Premises, Tenant
shall have the option (the “Offer Space Option”), exercisable by notice (an
“Acceptance Notice”) given to Landlord on or before the date that is five (5)
Business Days after the giving of the Offer Notice (time being of the essence) to include the
Offer Space in the Premises. Tenant shall notify Landlord in the Acceptance Notice whether
Tenant accepts or disputes Landlord’s determination of the Fair Offer Rent, and if Tenant
disputes Landlord’s determination of the Fair Offer Rent, the Acceptance Notice shall set
forth Tenant’s determination thereof. If Tenant fails timely to object to Landlord’s
determination in the Acceptance Notice and to set forth Tenant’s determination, then Tenant
shall be deemed to have accepted Landlord’s determination.




     (d) If Tenant timely delivers the Acceptance Notice, then, on the date on which Landlord
delivers vacant possession of the Offer Space to Tenant (the “Offer Space Inclusion
Date”), the Offer Space shall become part of the Premises, upon all of the terms and
conditions set forth in this Lease, except (i) Base Rent shall be increased by the Fair Offer
Rent, (ii) Tenant’s Share shall be increased by the appropriate percentage amount, (iii)
Landlord shall not be required to perform any other work, to pay any tenant improvement
allowance or any other amount, or to render any services to make the Building or the Offer
Space ready for Tenant’s use or occupancy or to provide any abatement of Base Rent or
Additional Rent, and Tenant shall accept the Offer Space in its “as is” condition on the
Offer Space Inclusion Date and (iv) as may be otherwise set forth in the Offer Notice.




     (e) If in the Acceptance Notice Tenant disputes Landlord’s determination of Fair Offer
Rent, and Landlord and Tenant fail to agree as to the amount thereof within twenty (20) days
after the giving of the Acceptance Notice, then within thirty (30) days after Landlord’s
receipt of the Acceptance Notice, Tenant shall submit to Landlord Tenant’s determination of
the Fair Offer Rent and Landlord shall submit to Tenant Landlord’s determination of the Fair
Offer Rent and such determinations, shall be submitted to arbitration (as Tenant’s and
Landlord’s “submitted FOR,” respectively) in accordance with the following:



          Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate
broker who shall have been active over the five (5) year period ending on the date of such
appointment in the leasing of first class high-rise office buildings in the Downtown Chicago,
Illinois area, and who shall not have been employed or engaged by the appointing party during the
immediately preceding two (2) year period. The determination of the arbitrators shall be limited
solely to the issue as to whether Landlord’s or Tenant’s submitted FOR is the closest to the actual
FOR, as determined by the arbitrators, taking into account the requirements of this Section 31.
Each such arbitrator shall be appointed within forty five (45) days after Landlord’s receipt of the
Acceptance Notice.




     The two arbitrators so appointed shall within ten (10) days of the date of
the appointment of the last appointed arbitrator agree upon and appoint a third
arbitrator who shall be a real estate broker who shall have been active over
the five (5) year period ending



26









 







on the date of such appointment in the leasing of first class high-rise office
buildings in the Downtown Chicago, Illinois area and who shall not have been
employed or engaged by Landlord or Tenant during the immediately preceding two
(2) year period.




     The three arbitrators shall within thirty (30) days of the appointment of
the third arbitrator reach a decision as to whether the parties shall use
Landlord’s or Tenant’s submitted FOR and shall notify Landlord and Tenant
thereof.




     The decision of the majority of the three arbitrators shall be binding
upon Landlord and Tenant, shall be in writing and shall be non-appealable, and
counterpart copies thereof shall be delivered to Landlord and Tenant. A
judgment or order based upon such award may be entered in any court of
competent jurisdiction. In rendering their decision and award, the arbitrators
shall have no power to vary, modify or amend any provision of this Lease.




     If either Landlord or Tenant fails to appoint an arbitrator within forty
five (45) days after Landlord’s receipt of the Acceptance Notice, the
arbitrator appointed by the other shall solely render a decision as to the FOR,
notify Landlord and Tenant thereof, and such arbitrator’s decision shall be
binding upon Landlord and Tenant.




     If the two arbitrators fail to agree upon and appoint a third arbitrator, or both
parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any
arbitrator shall be dismissed and the matter to be decided shall be promptly submitted to
arbitration under the provisions of the American Arbitration Association, but subject to the
instructions set forth in this Section 31.




     The cost of arbitration shall be paid by Landlord and Tenant equally.




     If the dispute shall not have been resolved on or before the Offer Space Inclusion Date,
then pending such resolution, Tenant shall pay as annual fixed rent for the Offer Space the
Fair Offer Rent as determined by Landlord. Within twenty (20) days after the final
determination of Fair Offer Rent, an adjustment, if any, required to correct the amounts
previously paid on account thereof shall be made by the appropriate party.




     (f) If Landlord is unable to deliver possession of the Offer Space to Tenant for any
reason on or before the date on which Landlord anticipates that the Offer Space shall be
Available as set forth in the Offer Notice, the Offer Space Inclusion Date shall be the date
on which Landlord is able to so deliver possession and Landlord shall have no liability to
Tenant therefor and this Lease shall not in any way be impaired.




     (g) If Tenant fails timely to give an Acceptance Notice, then (i) Landlord may enter
into one or more leases of the Offer Space with third parties on such terms and conditions as
Landlord shall determine, the Offer Space Option shall be null and void and of no further
force and effect and Landlord shall have no further obligation to offer the Offer Space to
Tenant, and (ii) Tenant shall, upon demand by Landlord, execute an instrument confirming
Tenant’s waiver of, and extinguishing, the Offer Space Option, but the failure by Tenant to
execute any such instrument shall not affect the provisions of clause (i) above.




     (h) Promptly after the occurrence of the Offer Space Inclusion Date, Landlord and Tenant
shall confirm the occurrence thereof and the inclusion of the Offer Space in the Premises by
executing an instrument reasonably satisfactory to Landlord and Tenant; provided,
that failure by Landlord or Tenant to execute such instrument shall not affect the inclusion
of the Offer Space in the Premises in accordance with this Section 31.




     (i) Anything in this Lease to the contrary notwithstanding this Section 31 shall be null
and void and of no force or effect if (i) Original Tenant is no longer the Tenant under this
Lease, (ii) Tenant at any time fails to occupy at least 100% rentable square feet in the
Premises or (iii) Tenant shall at any time be in default under this Lease beyond any
applicable period of grace.



[Signatures on Next Page]




27









 







IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed the day and date
first above written.




	 	 	 	 	 
	 	“LANDLORD”



BROADWAY 500 WEST MONROE FEE LLC,

a Delaware limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 
	 
	 	“TENANT”





MIDWEST BANK & TRUST, CO.,

an Illinois corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 



28









 






	 	 	 	 	 



EXHIBIT
A


OUTLINE OF OFFICE AND RETAIL PREMISES









A-1









 










A-2









 








EXHIBIT
B


ADDITIONAL RENT DEFINED



1. Definitions of Key Terms Relating to Additional Rent. As used in this Exhibit
B, the following terms shall have the meanings hereinafter set forth:





     1.1
“Direct Expenses” shall mean “Operating Expenses” and “Tax Expenses.”



     1.2 “Expense Year” shall mean each calendar year in which any portion of the Lease
Term falls, through and including the calendar year in which the Lease Term expires, provided that
Landlord, upon notice to Tenant, may change the Expense Year from time to time to any other twelve
(12) month consecutive period, and, in the event of any such change, Tenant’s Share of Direct
Expenses shall be equitably adjusted for any Expense Year involved in any such change.



     1.3 “Operating Expenses” shall mean all expenses, costs and amounts of every kind and
nature which Landlord pays or accrues during any Expense Year because of or in connection with the
ownership, management, maintenance, security, repair, replacement, restoration or operation of the
Project, or any portion thereof (including allocations to the Project from Costs Pools, as provided
below). Without limiting the generality of the foregoing, Operating Expenses shall specifically
include any and all of the following: (i) the cost of supplying all utilities, the cost of
operating, repairing, maintaining, and renovating the utility, telephone, mechanical, sanitary,
storm drainage, and elevator systems, and the cost of maintenance and service contracts in
connection therewith; (ii) the cost of licenses, certificates, permits and inspections and the cost
of contesting any governmental enactments which may affect Operating Expenses, and the costs
incurred in connection with a transportation system management program or similar program; (iii)
the cost of all insurance carried by Landlord in connection with the Project and any deductible
amounts; (iv) the cost of landscaping, relamping, and all supplies, tools, equipment and materials
used in the operation, repair and maintenance of the Project, or any portion thereof; (v) costs
incurred in connection with the parking areas servicing the Project; (vi) fees and other costs,
including management fees, consulting fees, legal fees and accounting fees, in connection with the
management, operation, maintenance and repair of the Project; (vii) payments under any equipment
rental agreements and the fair rental value of any management office space; (viii) wages, salaries
and other compensation and benefits, including taxes levied thereon, of all persons engaged in the
operation, maintenance and security of the Project; (ix) payments, fees or charges under any
easement, license, operating agreement, declaration, restrictive covenant, or any instrument
pertaining to the sharing of costs by the Building or Project, or any portion thereof; (x)
operation, repair, maintenance and replacement of all systems and equipment and components thereof
of the Building; (xi) the cost of janitorial, alarm, security and other services, replacement of
wall and floor coverings, ceiling tiles and fixtures in common areas, maintenance and replacement
of curbs and walkways, repair to roofs and re-roofing; (xii) amortization (including interest on
the unamortized cost) of the cost of acquiring or the rental expense of personal property used in
the maintenance, operation and repair of the Project, or any portion thereof; (xiii) amortization
in accordance with generally accepted accounting principles of the costs of capital expenditures
and reasonable financing charges for (A) items that are primarily for the purpose of (1) reducing
or avoiding increases in Operating Expenses in Landlord’s good faith estimate, or (2) promoting the
health, safety or wellbeing of the Building and/or its occupants, and/or their contractors, agents,
invitees and guests, (B) replacing, modifying and/or adding improvements or equipment mandated by
any Governmental Requirement enacted or which take effect after the date of this Lease and any
repairs, disposals or removals necessitated thereby (including, but not limited to, the cost of
complying with Access Laws, or (C) any other cost or expense necessary to carry out Landlord’s
maintenance, repair, replacement and other obligations under this Lease; provided, however, that
any capital expenditure shall be amortized with interest over its useful life as Landlord shall
reasonably determine; (xiv) snow removal cost; and (xv) costs, fees, charges or assessments imposed
by, or resulting from any mandate imposed on Landlord by, any federal, state or local government
for fire and police protection, trash removal, community services, or other services which do not
constitute “Tax Expenses” as that term is defined in Section 1.4, below. The following costs and
expenses shall be excluded from Operating Expenses: (a) expenses relating to leasing space in the
Building (including tenant improvements, leasing and brokerage commissions and advertising
expenses); (b) legal fees and disbursements incurred for collection of tenant accounts or
negotiation of leases, or relating to disputes between Landlord and other tenants and occupants of
the Building; (c) capital items not specifically permitted by this Section 1.3; (d) Tax Expenses;
(e) costs of restoring any portion of the Project following a casualty, but only to the extent of
any amounts actually received by Landlord on account of proceeds of insurance; (f) except to the
extent specifically provided in this Section 1.3, depreciation or payments of principal and
interest on any mortgages upon the Building; (g) payments of ground rent pursuant to any ground
lease covering the Building; (h) the costs of any service or facility provided to any other tenant
or occupant in the Building which either (I) Landlord is not obligated to supply or furnish to
Tenant or (II) is supplied or furnished to Tenant pursuant to the terms of this Lease with separate
or additional charge; (i) the cost of any work performed for any other tenant or occupant in the
Building which either (I) is not performed for Tenant or (II) is performed for Tenant pursuant to
the terms of this Lease with separate or additional charge (but Landlord shall have the right to
“gross-up” as if the floor was vacant); (j) payments made by Landlord to a company or other entity
affiliated with Landlord for goods and services to the extent that such payments exceed the amounts
that would have been paid to independent third parties for goods and services of like kind in
connection with the operation, repair, cleaning, maintenance, management and security of the
Building; (k) the cost of capital improvements (except as provided in section (xiii) above); (l)
painting or decorating other than in the common areas of the Building; (m) the cost of improving or
renovating space for tenants (including Tenant) or space vacated by any tenant (including Tenant);
(n) any cash or other consideration paid by Landlord on account of, with respect to or in lieu of
the tenant work or alterations described in clause (m) above; (o) ground rent; (p) repairs
necessitated by the gross negligence or willful misconduct of Landlord; (q) costs of enforcement of
leases; (r) compensation paid to officers or executives of Landlord above the level of building



B-1









 







manager; (s) legal fees or other professional or consulting fees or space planning fees; (t)
overtime HVAC costs or electricity costs if charged separately to other tenants in the Building;
(u) amounts payable by Landlord by way of indemnity or for damages or which constitute a fine,
interest, or penalty, including interest or penalties for any late payments of operating costs; (v)
the cost of correcting defects in the initial construction of the Building; (w) costs incurred in
connection with the original construction of the Building or in connection with any major addition
in the Building, such as adding or deleting floors or Common Areas; (x) costs for which any tenant
directly contracts with local providers, costs for which the Landlord is reimbursed by any tenant
or occupant of the Building (other than reimbursement for Operating Expenses) or by insurance by
its carrier or any tenant’s carrier or by anyone else and expenses in connection with services or
other benefit which are not offered to the Tenant; (y) any bad debt loss, rent loss, or reserves
for bad debts or rent loss; (z) Landlord’s general corporate overhead and general and
administrative expenses and other costs associated with the operation of the business of the entity
which constitutes the Landlord, as the same are distinguished from the costs of operation of the
Building, including partnership or corporate accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the action’s of the tenant may be in issue), costs of
selling, syndicating, financing, mortgaging or hypothecating any of the Landlord’s interest in the
Building, and costs incurred in connection with any disputes, including but not limited to any
disputes between landlord and its employees, between Landlord and Building Management, or between
Landlord and other tenants; (aa) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Building unless such wages and benefits are
prorated to reflect time spent on operating and managing the Building vis-à-vis time spent on
matters unrelated to operating and managing the Building; (bb) costs, including permit, license and
inspection costs, incurred with respect to the installation of tenant improvements made for new
tenants in the Building or incurred in renovating or otherwise improving, decorating, painting, or
redecorating vacant space for tenants or other occupants of the Building (excluding, however, such
costs relating to any Common Areas of the Building or parking facilities); (cc) rentals and other
related expenses incurred in leasing air conditioning systems, elevators or other equipment, the
cost of which, if purchased, would be excluded from Operating Costs as a capital cost, except
equipment not affixed to the Building which is used in providing janitorial or similar services
and, further excepting from this exclusion such equipment rented or leased to remedy or ameliorate
an emergency condition in the Building; (dd) costs for purchasing, installation or replacing
artwork; (ee) all assessments and premiums which are not specifically charged to Tenant because of
what Tenant has done, which can be paid by Landlord in installments, shall be paid by Landlord in
the maximum number of installments permitted by law (except to the extent inconsistent with the
general practice of the Comparable Buildings) and shall be included as Operating Expenses in the
year in which the assessment or premium installment is actually paid; (ff) costs arising from the
gross negligence or willful misconduct of Landlord; (gg) costs arising from Landlord’s charitable
or political contributions; (hh) interest, fines, late fees, collection costs, legal fees or
penalties assessed as a result of Landlord’s failure to make payments in a timely manner or to
comply with applicable Laws, including regarding the payment of taxes, or to comply with the terms
of any lease, mortgage, deed of trust, ground lease, private restriction or other agreement; and
(ii) any cost expressly excluded from Operating Expenses elsewhere in this Lease.



     If during any or all of a portion of any Expense Year, Landlord is not furnishing any
particular work or service (the cost of which, if performed by Landlord, would be included in
Operating Expenses) to a tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed to be increased by an amount
equal to the additional Operating Expenses which would reasonably have been incurred during such
period by Landlord if it had furnished such work or service to such tenant. If the Project is not
fully occupied during all or a portion of any Expense Year, Landlord may elect to make an
appropriate adjustment to the components of Operating Expenses which vary according to the
occupancy of the Building for such year to determine the amount of Operating Expenses that would
have been incurred had the Project been ninety five percent (95%) occupied (and if an expense is
adjusted, Landlord shall highlight the amount in the annual “Statement,” as defined below); and the
amount so determined shall be deemed to have been the amount of Operating Expenses for such year.
Notwithstanding the foregoing, in no event shall Landlord gross up Tax Expenses or insurance costs
pursuant to this paragraph.



     1.4 Taxes. “Tax Expenses” shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary, (including, without limitation, real estate
taxes, general and special assessments, transit taxes, occupancy tax, leasehold taxes or taxes
based upon the receipt of rent, including gross receipts or sales taxes applicable to the receipt
of rent, unless required to be paid by Tenant, ad valorem taxes, personal property taxes imposed
upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture
and other personal property used in connection with the Project, or any portion thereof), which
shall be paid or accrued during any Expense Year (without regard to any different fiscal year used
by such governmental or municipal authority) because of or in connection with the ownership,
leasing and operation of the Project, or any portion thereof, including any allocation from Cost
Pools.



     Tax Expenses shall include, without limitation: (i) any tax on the rent, right to rent or
other income from the Project, or any portion thereof, or as against the business of leasing the
Project, or any portion thereof; (ii) any assessment, tax, fee, levy or charge in addition to, or
in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax for any services as fire protection, street,
sidewalk and road maintenance, refuse removal and for other governmental services formerly provided
without charge to property owners or occupants all whether charged or assessed by the United States
of America, the state in which the Project is located, any county, city, district, municipality or
other governmental subdivision, court or agency or quasi-governmental agency and any board, agency
or authority associated with any such governmental entity, including the fire department having
jurisdiction over the Project; (iii) any increase in assessment, tax, fee, levy or charge resulting
from any sale, refinancing or other change in ownership of the Building, the Project or any portion
thereof; (iv) any assessment, tax, fee, levy, or charge allocable to or measured by the area of the
Premises or the Rent payable hereunder, including, without limitation, any business or gross



B-2









 







income tax or excise tax with respect to the receipt of such rent, or upon or with respect to the
possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof; and (v) any assessment, tax, fee, levy or charge,
upon this transaction or any document to which Tenant is a party, creating or transferring an
interest or an estate in the Premises.



     Any costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred in
attempting to protest, reduce or minimize Tax Expenses shall be included in Tax Expenses in the
Expense Year such expenses are paid. If any Taxes paid by Landlord and previously included in Tax
Expenses are refunded, Landlord shall promptly pay Tenant an amount equal to the amount of such
refund (less the reasonable expenses incurred by Landlord in obtaining such refund) multiplied by
Tenant’s Share. If Tax Expenses for any period during the Lease Term or any extension thereof are
increased after payment thereof for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, Tenant shall pay Landlord upon
demand Tenant’s Share of any such increased Tax Expenses included by Landlord as Tax Expenses
pursuant to the terms of this Lease. Notwithstanding anything to the contrary contained in this
Section 1.4 (except as set forth in Section 1.4(i), above), there shall be excluded from Tax
Expenses (i) 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 Project), and (ii) any items included as Operating Expenses.



     1.5 “Tenant’s Share” shall mean the percentage set forth in Section 12 of the Summary
of the Lease. Tenant’s Share shall be calculated by dividing the number of square feet of rentable
area in the Premises by the number of square feet of rentable area in the Building, and expressing
such quotient in the form of a percentage.


2. Allocation of Direct Expenses. Landlord shall have the right, from time to time, to
equitably allocate some or all of the Direct Expenses for the Project among different portions or
occupants of the Project (the “Cost Pools”), in Landlord’s discretion. Such Cost Pools may
include, but shall not be limited to, the office space tenants of a building of the Project or of
the Project, the residential space of a building of the Project or of the Project, and the retail
space tenants of a building of the Project or of the Project. The Direct Expenses within each such
Cost Pool shall be allocated and charged to the tenants and/or owners within such Cost Pool in a
reasonable manner (if not provided for pursuant to separate agreement).



3. Calculation and Payment of Additional Rent. For each Expense Year ending or commencing
within the Lease Term Tenant shall pay to Landlord, in the manner set forth in Section 4, below, as
Additional Rent, an amount equal to: (a)Tenant’s Share of Operating Expenses for such Expense Year
(the “Operating Expense Amount”), and (b) Tenant’s Share of Tax Expenses for such Expense Year (the
"Tax Expense Amount,” together with Operating Expense Amount, the “Expense Amount”).



4. Statement of Actual Direct Expenses and Payment by Tenant. Landlord shall endeavor to
deliver to Tenant following the end of each Expense Year, a statement (the “Statement”) which shall
state the Operating Expenses or Taxes or both for such preceding Expense Year and which shall
indicate the amount of the Operating Expense Amount and the Tax Expense Amount, as applicable.
Upon receipt of the Statement for each Expense Year commencing or ending during the Lease Term
Tenant shall pay, with its next installment of Base Rent due, the full amount of the Expense Amount
for such Expense Year, less the amounts, if any, paid during such Expense Year as “Estimated
Expense Amount,” as that term is defined in Section 5, below. The failure of Landlord to timely
furnish the Statement for any Expense Year shall not prejudice Landlord or Tenant from enforcing
its rights under this Exhibit B. Even though the Lease Term has expired and Tenant has
vacated the Premises, when the final determination is made of Tenant’s Share of Direct Expenses for
the Expense Year in which this Lease terminates, Tenant shall promptly pay to Landlord such amount.
The provisions of this Section 4 shall survive the expiration or earlier termination of the Lease
Term. Tenant waives and releases any and all objections or claims relating to Direct Expenses for
any calendar year unless, within sixty (60) days after Landlord provides Tenant with the annual
Statement for the calendar year, Tenant provides Landlord written notice that it disputes the
Statement (which notice shall specify in detail the reasons for such dispute as to a particular
item or items). If Tenant disputes the Statement then, pending resolution of the dispute, Tenant
shall pay the rent in question to Landlord in the amount provided in the disputed Statement.



5. Statement of Estimated Direct Expenses. In addition, Landlord shall endeavor to deliver
Tenant a statement (the “Estimate Statement”) which shall set forth Landlord’s reasonable estimate
(the “Estimate”) of what the total amount of Direct Expenses for the then-current Expense Year
shall be and the estimated Expense Amount (the “Estimated Expense Amount”). The failure of
Landlord to timely furnish the Estimate Statement for any Expense Year shall not preclude Landlord
from enforcing its rights to collect any Estimated Expense Amount under this Exhibit B, nor
shall Landlord be prohibited from revising any Estimate Statement or Estimated Expense Amount
theretofore delivered to the extent necessary. Following Landlord’s service of an Estimate
Statement, Tenant shall pay monthly in advance to Landlord, together with Base Rent installments,
one-twelfth (1/12th) of the Estimate Expense Amount shown in the Estimate Statement. If
Landlord sends an Expense Statement, Tenant shall pay, with its next installment of Base Rent due,
a fraction of the Estimated Expense Amount for the then-current Expense Year shown in such Expense
Statement (reduced by any amounts Estimated Expense Amount previously paid for such Expense Year).
Such fraction shall have as its numerator the number of months which have elapsed in such current
Expense Year, including the month of such payment, and twelve (12) as its denominator. Until an
Estimate Statement is furnished for any Expense Year (which Landlord shall have the right to
deliver to Tenant at any time), Tenant shall pay monthly, with the monthly Base Rent installments,
an amount equal to one-twelfth (1/12) of the total Estimated Expense Amount set forth in the
previous Estimate Statement delivered by Landlord to Tenant.



6. Taxes and Other Charges for Which Tenant Is Directly Responsible. Tenant shall be
liable for and shall pay ten (10) days before delinquency, taxes levied against Tenant’s furniture,
fixtures, equipment and any


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other personal property located in or about the Premises. If any such taxes on Tenant’s furniture,
fixtures, equipment and any other personal property are levied against Landlord or Landlord’s
property or if the assessed value of Landlord’s property is increased by the inclusion therein of a
value placed upon such equipment, furniture, fixtures or any other personal property and if
Landlord pays the taxes based upon such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof but only under proper protest if requested by Tenant,
Tenant shall upon demand repay to Landlord the taxes so levied against Landlord or the proportion
of such taxes resulting from such increase in the assessment, as the case may be.




     If the tenant improvements in the Premises, whether installed and/or paid for by Landlord or
Tenant and whether or not affixed to the real property so as to become a part thereof, are assessed
for real property tax purposes at a valuation higher than the valuation at which tenant
improvements conforming to Landlord’s “building standard” in other space in the Building are
assessed, then the Tax Expenses levied against Landlord or the property by reason of such excess
assessed valuation shall be deemed to be taxes levied against personal property of Tenant and shall
be governed by the provisions of Section 5, above.



     Notwithstanding any contrary provision herein, Tenant shall pay prior to delinquency any (i)
rent tax or sales tax, service tax, transfer tax or value added tax, or any other applicable tax on
the rent or services herein or otherwise respecting this Lease, (ii) taxes assessed upon or with
respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion of the Project, including the Project parking
facility; or (iii) taxes assessed upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises.



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EXHIBIT
C


WORK LETTER




          THIS WORK LETTER AGREEMENT (this “Work Letter”) is attached as Exhibit “C” to that certain
Office Lease (the “Lease”) by and between Broadway 500 West Monroe Fee LLC, a Delaware limited
liability company (“Landlord”) and Midwest Bank & Trust, Co., an Illinois corporation (“Tenant”).
All capitalized terms used herein not otherwise defined herein shall have the meanings attributed
to such terms in the Lease.



SECTION 1

PREPARATION OF THE CONSTRUCTION DRAWINGS




     1.1 Selection of Tenant’s Architect and the Engineers. Tenant shall engage (a) a
qualified interior architect reasonably approved in advance by Landlord, which approval shall not
be unreasonably withheld, within three (3) Business Days of Landlord’s receipt of reasonably,
detailed information relating to such architect (“Tenant’s Architect”) to prepare the Construction
Drawings (defined below) and (b) engineering consultants reasonably approved in advance by Landlord
(the “Engineers”), which approval shall not be unreasonably withheld, to prepare all engineering
plans and drawings for the structural, mechanical, electrical, plumbing, HVAC, life safety, and
sprinkler work relating to the Tenant Improvements (defined below).



     1.2 Final Space Plan. Tenant and Tenant’s Architect shall prepare and deliver to
Landlord for Landlord’s approval four (4) copies signed by the Tenant of the final space plan for
all Tenant Improvements (defined below) in the Premises (“Final Space Plan”), which Final Space
Plan shall reflect a layout and description of all offices, rooms and other partitions, their
intended use, and the equipment to be contained therein. Landlord may request clarification or
more specific drawings for special use items not included in the Final Space Plan. Landlord shall,
within a reasonable period after Landlord receives such Final Space Plan, (i) approve the Final
Space Plan, (ii) approve the Final Space Plan subject to specified conditions to be complied with
in connection with the Final Working Drawings (defined below), or (iii) disapprove the Final Space
Plan. If Landlord disapproves the Final Space Plan, within three (3) Business Days of receipt of
such disapproval, Tenant shall make all changes thereto required to satisfy Landlord’s required
revisions and shall resubmit to Landlord for approval such revised Final Space Plan, with the
foregoing procedure to be repeated until the Final Space Plan is ultimately approved by Landlord.



     1.3 Final Working Drawings. Based upon the Final Space Plan approved by Landlord (and
any conditions of approval thereof imposed by Landlord), after Landlord’s approval of the Final
Space Plan, Tenant shall cause the Tenant’s Architect and the Engineers to complete and deliver to
Landlord for Landlord’s approval four (4) copies of complete fully coordinated architectural and
(to the extent required) structural, mechanical, electrical and plumbing working drawings and
specifications for the Tenant Improvements in a form which is sufficiently complete to allow all
subcontractors to bid on the work shown therein and to obtain all applicable Permits (defined
below) (collectively, the “Final Working Drawings”). Landlord shall, within ten (10) Business Days
after Landlord receives the Final Working Drawings, either (i) approve the Final Working Drawings,
(ii) approve the Final Working Drawings subject to specified conditions to be satisfied by Tenant
prior to submission of the same by Tenant for the Permits, or (iii) disapprove and return the same
to Tenant with the changes required to be made to the Final Working Drawings in order to correct
any problem on which Landlord’s disapproval shall be based and shall return the Final Working
Drawings to Tenant. If Landlord disapproves the Final Working Drawings, within five (5) Business
Days of receipt of such disapproval, Tenant shall make all changes thereto required to satisfy
Landlord’s required revisions and shall resubmit to Landlord such Final Working Drawings, with the
foregoing procedure to be repeated until the Final Working Drawings are ultimately approved by
Landlord (as so approved, the “Approved Working Drawings”). The Approved Working Drawings and all
parts or components thereof are sometimes referred to herein as the “Construction Drawings.”



     1.4 Changes in the Construction Drawings. No changes, modifications or alterations in
the Construction Drawings or in the Tenant Improvements contemplated thereby (a “Change”) may be
made by Tenant without the prior written consent of Landlord, provided, however, that Landlord may
withhold its consent in its sole discretion to any change which in Landlord’s judgment would
directly or indirectly delay Substantial Completion (defined below) of the Premises.



     1.5 Tenant Improvements. The term “Tenant Improvements” means all improvements,
fixtures and equipment to be permanently affixed to the Premises pursuant to this Work Letter. Any
approval or consent of Landlord hereunder with respect to any portion or component of the
Construction Drawings or the Tenant Improvements shall be granted or withheld on the basis of such
standards as Landlord shall establish in good faith from time to time.



     1.6 Changes to Base Building. If the Approved Working Drawings or any amendment
thereof or supplement thereto shall require changes to the Base Building (or Building Systems),
then Landlord shall make such changes to the Base Building (or Building Systems) and the cost
thereof will be paid by Tenant or charged against the Allowance Amount.



     1.7 MEP Drawings. To the extent that Tenant builds the Tenant Improvements on a
design-build basis, the following provisions will apply:




 









 





          (a) Preparation and Delivery. Prior to commencing any mechanical, electrical or
plumbing portion of the Tenant Improvements, Tenant shall provide to Landlord for its approval
final mechanical, electrical and plumbing drawings, prepared by a licensed mechanical, electrical
and plumbing contractor, of all mechanical, electrical and plumbing improvements that Tenant
proposes to install in the Premises; such mechanical, electrical and plumbing drawings shall
include drawings for any modifications to the mechanical, electrical, life safety and plumbing and
any other systems of the Building, and detailed plans and specifications for the construction of
the improvements called for under this Exhibit in accordance with all applicable Laws.



          (b) Approval Process. Landlord shall notify Tenant whether it approves of the
submitted mechanical, electrical and plumbing drawings within ten (10) Business Days after Tenant’s
submission thereof, which approval shall not be unreasonably withheld, conditioned or delayed. If
Landlord disapproves of such mechanical, electrical and plumbing drawings, then Landlord shall
notify Tenant thereof specifying in reasonable detail the reasons for such disapproval, in which
case Tenant shall, within ten (10) Business Days after such notice, revise such mechanical,
electrical and plumbing drawings in accordance with Landlord’s objections and submit the
mechanical, electrical and plumbing drawings to Landlord for its review and approval. Landlord
shall notify Tenant in writing whether it approves of the resubmitted mechanical, electrical and
plumbing drawings within five Business Days after its receipt thereof. This process shall be
repeated until the mechanical, electrical and plumbing drawings have been finally approved by
Landlord and Tenant.



SECTION 2

COST OF THE TENANT IMPROVEMENTS




     2.1 Allocation of Costs; Allowance Amount. Landlord shall bear all Tenant Improvement
Costs (defined below) to the extent the total Tenant Improvement Costs do not exceed an amount (the
“Allowance Amount”) equal to Nine Hundred Twenty Four Thousand Seven Hundred Twenty Eight Dollars
($56 per rentable square foot). Tenant shall bear all Tenant Improvement Costs (defined below)
(and all other costs or expenses incurred by Tenant in connection with the design and construction
of the Tenant Improvements) in excess of the Allowance Amount (“Excess Tenant Improvement Costs”)
in accordance with the provisions of this Work Letter. Notwithstanding any provision of this Work
Letter to the contrary, Landlord shall have no obligation hereunder to make any payments or
disbursements, or incur any obligation to make any payment or disbursement in connection with the
design and construction of the Tenant Improvements, in a total amount which exceeds the Allowance
Amount.



     In addition to the Allowance Amount, Landlord shall make available to Tenant a one-time space
planning allowance (the “Space Planning Allowance”) in an amount not to exceed Two Thousand Six
Hundred Forty Three and 42/100 Dollars ($2,643.42) for the cost of preparing the Final Space Plan.
The Space Planning Allowance shall be disbursed to Tenant within ten (10) Business Days after
Tenant delivers the Final Space Plan to Landlord for Landlord’s review and approval (whether or not
Landlord approves such Final Space Plan). Landlord shall have no obligation or liability in
connection with the preparation of the Final Space Plan in excess of the Space Plan Allowance.



     2.2 Payment of Excess Tenant Improvement Costs by Tenant.



          (a) Tenant shall pay, simultaneously with each payment made by Landlord pursuant to Section
4.2 hereof, a percentage of each amount to be paid to the Contractor or otherwise disbursed under
this Tenant Work Letter, which percentage shall be equal to the amount of the “Over-Allowance
Amount,” as such term is defined below, divided by the amount of the Final Costs (as defined
below). For purposes hereof, the “Over-Allowance Amount” shall be equal to the difference between
the amount of the Final Costs and the amount of the Allowance Amount (less any portion thereof
already disbursed by Landlord, or in the process of being disbursed by Landlord, on or before the
commencement of construction of the Tenant Improvements). In the event that, after the Final Costs
have been delivered by Tenant to Landlord, the costs relating to the design and construction of the
Tenant Improvements shall change, any additional costs necessary to such design and construction in
excess of the Final Costs, shall be paid by Tenant on a prorata basis with Landlord consistent with
the manner in which the initial Over-Allowance Amount is paid.



          (b) Tenant shall not be entitled to any credit against or abatement of Rent in the event the
Allowance Amount exceeds total Tenant Improvement Costs. In any event, at all times Tenant shall
pay and satisfy in full on a timely basis all obligations for payment incurred by Tenant in
connection with the design and construction of the Tenant Improvements.



      2.3 Selection of the Contractor; Construction Contract and Cost Budget.



     Tenant shall select a general contractor reasonably approved in advance by Landlord
(“Contractor”) for construction of the Tenant Improvements. Prior to Tenant’s execution of the
construction contract and general conditions with the Contractor (the
“Contract”), Tenant shall
submit the Contract to Landlord for its approval, which approval shall not be unreasonably withheld
or delayed. Prior to the commencement of the construction of the Tenant Improvements, and after
Tenant has accepted all bids for the Tenant Improvements, Tenant shall provide Landlord with a
detailed breakdown, by trade, of the Tenant Improvement Costs to be incurred or which have been
incurred in connection with the design and construction of the Tenant Improvements to be performed
by or at the direction of Tenant or the Contractor, which costs form a basis for the amount of the
Contract (the “Final Costs”).



 









 





SECTION 3

CONSTRUCTION




     3.1 Permits. Upon approval by Landlord of the Approved Working Drawings, Tenant shall
cause Tenant’s Architect and the Engineers to submit the same to the appropriate governmental
entities and otherwise apply for all applicable building and other permits and approvals
(collectively, “Permits”) necessary or required for the Contractor to commence, perform and fully
complete the construction of the Tenant Improvements (and to permit Tenant to legally occupy the
Premises) and Tenant shall cause all of the Permits to be fully issued promptly following
Landlord’s approval of the Approved Working Drawings. Neither Landlord nor any Landlord Parties
shall have any obligation or liability to Tenant if any Permit (including, without limitation, any
building permit, certificate of occupancy, or equivalent) is not timely issued to Tenant; provided,
however, at Tenant’s request, Landlord shall cooperate (at no cost to Tenant) with all reasonable
Tenant requests to execute Permit applications and similar ministerial acts.



     3.2 Tenant’s Retention of the Contractor. Tenant shall retain the Contractor selected
pursuant to Section 2.3 to construct the Tenant Improvements in accordance with the Approved
Working Drawings. Tenant’s Architect, Engineers and all subcontractors, laborers, materialmen, and
suppliers utilized by Tenant or Contractor in connection with the design and construction of the
Tenant Improvements, including but not limited to those performing HVAC or electrical work (such
subcontractors, laborers, materialmen, and suppliers, and the Contractor are sometimes collectively
referred to herein as “Tenant Agents”) must be approved in writing by Landlord, which approval
shall, subject to Sections 1.1, 2.3 and this Section 3.2, not be unreasonably withheld or delayed.
If Landlord does not approve any of Tenant’s proposed subcontractors, laborers, materialmen or
suppliers, Tenant shall submit other proposed subcontractors, laborers, materialmen or suppliers
for Landlord’s written approval. Notwithstanding, the foregoing, Landlord reserves the right to
designate the subcontractor or subcontractors to perform particular trades (or components of) the
Tenant Improvements such as fire/life safety and structural. Tenant hereby waives all claims
against Landlord, and Landlord shall have no responsibility or liability to Tenant, on account of
any nonperformance or any misconduct of any Contractor (or any subcontractor thereof) for any
reason.



     3.3 General Conditions for Tenant’s Agreements and Construction of the Tenant
Improvements.



          (a) Tenant’s and Tenant’s Agents’ construction of the Tenant Improvements shall comply with
each of the following: (i) the Tenant Improvements shall be constructed in strict accordance with
the Approved Working Drawings; (ii) Tenant’s Agents shall submit schedules of all work relating to
the Tenants Improvements to Landlord and Contractor and Contractor shall, within five (5) Business
Days of receipt thereof, inform Tenant’s Agents of any changes which are necessary thereto, and
Tenant’s Agents shall adhere to such corrected schedule; and (iii) Tenant, Contractor and each of
Tenant’s Agents shall abide by all construction rules and regulations issued from time to time by
Landlord with respect to the use of freight, loading dock and service elevators, storage of
materials, coordination of work with the contractors of other tenants, and any other matter
relevant to this Work Letter or the construction of the Tenant Improvements hereunder.



          (b) Tenant’s indemnity of Landlord as set forth in Article 10 of the Lease shall also apply
with respect to any and all loss, cost, damage, expense and liability (including without limitation
court costs and reasonable attorneys’ fees) related in any way to any act or omission of Tenant or
Tenant’s Agents, or anyone directly or indirectly employed by any of them, or in connection with
Tenant’s non-payment of any amount arising out of the design or construction of the Tenant
Improvements and/or Tenant’s disapproval of all or any portion of any request for payment submitted
by any Tenant’s Agent to Tenant. Such indemnity by Tenant, as set forth in Article 10 of the
Lease, shall also apply with respect to any and all loss, cost, damage, expense and liability
(including without limitation court costs and reasonable attorneys’ fees) related in any way to
Landlord’s performance of any ministerial acts reasonably necessary (i) to permit Tenant to
commence and/or complete the Tenant Improvements, and (ii) to enable Tenant to obtain any Permit or
the certificate of occupancy for the Premises.



          (c) Each of Tenant’s Agents shall guarantee to Tenant and for the benefit of Landlord that the
portion of the Tenant Improvements for which it is responsible shall be free from any defects in
workmanship and materials for a period of not less than one (1) year from the date of completion of
the Tenant Improvements. Each of Tenant’s Agents shall be responsible for the replacement or
repair, without additional charge, of all work done or furnished in accordance with its contract
that shall be discovered as defective within such one (1) year period. The correction of such work
shall include, without additional charge, all additional expenses and damages incurred in
connection with such removal or replacement of all or any part of the Tenant Improvements, and/or
the Building and/or common areas that may be damaged or disturbed thereby. All such warranties or
guarantees as to materials or workmanship of or with respect to the Tenant Improvements shall be
contained in the Contract and each relevant subcontract and shall be written such that such
guarantees or warranties shall inure to the benefit of both Landlord and Tenant, as their
respective interests may appear, and can be directly enforced by either. Tenant covenants to
deliver to Landlord within thirty (30) days of Landlord’s request any assignment or other
assurances which may be necessary to effect such right of direct enforcement.



     3.4 Record Set of Drawings. Within ninety (90) days after the Substantial Completion,
Tenant shall cause Tenant’s Architect to prepare and deliver to Landlord two (2) complete copies of
a “record set” of



 









 







reproducible as-built drawings and two (2) complete sets of CAD files of the as-built documents
(current version of AutoCad) for the Tenant Improvements.



     3.5 Landlord’s Work.



          (a) Landlord has constructed or will provide or perform prior to Substantial Completion of the
Tenant Improvements at its sole cost and expense and without deduction from the Allowance Amount,
the following work (“Landlord’s Work”): Landlord shall construct a multi-tenant corridor on the
thirty-first (31st) floor of the Building using Building standard materials and
finishes.



          (b) Subject to the performance of Landlord’s Work, Tenant hereby accepts the Base Building in
its present “as is” condition and with no representations or warranties as to their condition or
suitability for Tenant’s purposes, provided, however, that, prior to delivery of the Premises to
Tenant by Landlord, Landlord shall, at its sole cost and expense, repair any missing or damaged
window coverings on the interior of the exterior windows located in the Office Premises.



          (c) Notwithstanding anything else to the contrary contained in this Work Letter, in connection
with Tenant’s construction of the demising wall separating the Office Premises from the other areas
on the floor on which the Office Premises is located (“Demising Wall”), Landlord agrees to pay to
Tenant fifty percent (50%) of the reasonable cost of Tenant’s installation of such Demising Wall,
not including costs incurred for drywall and Tenant finishes on the interior side of the Demising
Wall facing the Office Premises, insulation and electrical work.



     3.6 Americans With Disabilities Act. In the event that any of the Tenant Improvements
trigger any upgrades within the Common areas located on the floor of the Building on which the
Office Premises are located, then, notwithstanding anything to the contrary contained in this Work
Letter, Landlord shall, at its sole cost and expense, perform such upgrades.



SECTION 4

DISBURSEMENT OF TENANT IMPROVEMENT ALLOWANCES.




     4.1 Tenant Improvement Costs. “Tenant Improvement Costs” means only the following:
(i) the fees of the Architect and the Engineers, (ii) all fees and costs incurred by, and the cost
of documents and materials supplied by, Landlord and Landlord’s consultants in connection with the
preparation and review of the Construction Drawings (which fees and costs shall be paid by Tenant
to Landlord within ten (10) days of Tenant’s receipt of a written invoice therefore); (iii) the
cost of any changes in or to the Base Building (or Building Systems) when such changes are required
by the Construction Drawings; (iv) the cost of any changes to the Construction Drawings or the
Tenant Improvements required by any now and hereafter existing statutes, laws, ordinances, codes,
regulations, rules, rulings, orders, decrees, directives, policies and requirements (collectively,
“Codes”); (v) all costs of (or relating to) construction of the Tenant Improvements, including,
without limitation, testing and inspection costs, trash removal costs, parking fees, after-hours
utilities usage, and contractors’ fees and general conditions; (vi) plan check, permit fees,
license fees, Title 24 fees and use taxes; (vii) the cost of installing Building Standard window
coverings in the Premises; (viii) Tenant’s costs for furniture, equipment, and trade fixtures for
the Premises, and reasonable legal expenses related to the Tenant Improvements in the Premises,
which payment(s) shall not exceed an aggregate amount equal to Sixty Seven Thousand Nine Hundred
Ninety Six and 50/100 Dollars ($67,996.50); and (ix) the supervision fee (“Supervision Fee”) which
shall be payable by Tenant to Landlord in an amount equal to one and one half percent (1.5%) of the
total “hard” construction costs of the Tenant Improvements.



     4.2 Disbursements. Landlord shall have the right to disburse the Allowance Amount
(and any Deposits deposited with Landlord by Tenant hereunder) for Tenant Improvement Costs in
such order as Landlord shall determine. In the event that (i) Tenant requests in writing (a
“Disbursement Request”) that Landlord disburse all or any portion of the Allowance Amount and the
Deposits for Tenant Improvement Costs and (ii) in Landlord’s judgment, the Allowance Amount and the
Deposits then held by Landlord are sufficient to cover the sum of (A) the Tenant Improvement Costs
directly payable by Landlord, if any, in connection with this Work Letter and (B) the amounts
desired to be so disbursed by Tenant, Landlord shall make such disbursements to Tenant pursuant to
this Section 4.2. Landlord shall not be required to make more than one such disbursement to Tenant
per calendar month and then only if on or before the twenty-fifty (25th) day of the preceding
calendar month, Tenant delivers to Landlord (i) a request for payment substantially in the form of
AIA Standard Form document G702, (ii) invoices from all of Tenant’s Agents covered by Tenant’s
Disbursement Request, (iii) executed mechanic’s lien releases from all of such Tenant’s Agents that
are entitled to lien rights, which shall comply with the appropriate provisions of applicable Law,
as determined in good faith by Landlord; and (iv) all other information reasonably requested by
Landlord. Tenant’s Disbursement Request shall be deemed Tenant’s acceptance and approval of the
work furnished and/or the materials supplied as set forth in Tenant’s payment request. Provided
that such Disbursement Request (and the work covered hereby) is in Landlord’s judgment in
compliance with the provisions of this Work Letter and that Landlord does not dispute any work
previously performed based on non-compliance of such work with the Approved Working Drawings,
substandard work or for any other reason, on or before the last day of the calendar month following
Landlord’s receipt of such Disbursement Request, Landlord shall deliver a check to Contractor in an
amount equal to the lesser of: (A) ninety percent (90%) of the amount so requested by Tenant and
(B) the balance of any remaining available portion of the Allowance Amount and Deposits held by
Landlord. Landlord’s payment of such amounts shall not be deemed Landlord’s approval or acceptance
of the work furnished or materials supplied as set forth in Tenant’s Disbursement Request. In
addition to the conditions



 









 







set forth in this Section 4.2 applicable to all disbursements set forth in any Disbursement
Request, any disbursement of any retention previously withheld by Landlord and requested by Tenant,
following completion of the Tenant Improvements, the following conditions to payment shall also be
applicable: (i) Tenant shall deliver to Landlord properly executed final mechanic’s lien releases
from all such Tenant’s Agents in compliance with applicable Law, (ii) Landlord shall determine that
no substandard work (with respect to the Tenant Improvements) exists which adversely affects the
mechanical, electrical, plumbing, heating, ventilating and air conditioning, life-safety or other
systems of the Building, the curtain wall of the Building, the structure or exterior appearance of
the Building, or any other tenant’s use of such other tenant’s leased premises in the Building,
(iii) Landlord shall have determined that all other Tenant Improvement Costs shall have been paid
in full, (iv) Landlord’s Architect and/or Landlord shall have determined that Substantial
Completion of the Tenant Improvements has occurred and (v) Tenant’s Architect shall have delivered
to Landlord a certificate, in form reasonably satisfactory to Landlord, certifying that
construction of the Tenant Improvements in the Premises have been substantially completed.
Notwithstanding anything to the contrary contained in this Work Letter, in no event shall Landlord
be obligated to fund any disbursement request in accordance with this Section 4.2 below submitted
to Landlord after June 30, 2009.



     4.3 Building Standards. Landlord has established (or may establish in the future)
building standards for items, materials and/or components to be used in the construction of the
Tenant Improvements in the Premises (“Building Standards”). The quality of all Tenant Improvements
shall be equal to or of greater quality than the quality specifications of the Building Standards,
provided, however that Landlord may, at Landlord’s option, require the Tenant Improvements to
comply with specific Building Standards. Landlord reserves the right to promulgate, establish,
modify, delete from, and make other changes to the Building Standards from time to time.



SECTION 5

SUBSTANTIAL COMPLETION




     5.1 Substantial Completion. For purposes of the Lease, “Substantial Completion” of
the Tenant Improvements for the Premises shall occur upon the “substantial completion of
construction” of the Tenant Improvements in the Premises pursuant to the Approved Working Drawings,
as evidenced by a “signoff” on the building permit card (or an equivalent approval) by an inspector
of the proper jurisdiction and as otherwise determined by Landlord’s Architect, with the exception
of any punch list items and any tenant fixtures, work-stations, built-in furniture, or equipment to
be installed by Tenant or under the supervision of the Contractor.



SECTION 6

GENERAL PROVISIONS




     6.1 Inspection by Landlord. Landlord shall have the right to inspect the Tenant
Improvements at all times, provided however, that Landlord’s failure to inspect the Tenant
Improvements shall in no event constitute a waiver of any Landlord’s rights hereunder nor shall
Landlord’s inspection of the Tenant Improvements constitute Landlord’s approval of the same. Should
Landlord disapprove any portion of the Tenant Improvements, Landlord shall notify Tenant in writing
of such disapproval and shall specify the items disapproved. Any defects or deviation in, and/or
disapproval by Landlord of, the Tenant Improvements shall be rectified by Tenant at no expense to
Landlord, provided however, that in the event Landlord determines that a defect or deviation exists
or disapproves of any matter in connection with any portion of the Tenant Improvements and such
defect, deviation or matter might affect the mechanical, electrical, plumbing, heating, ventilating
and air-conditioning or life-safety systems of the Building, the structure or exterior appearance
of the Building or any other tenant’s use of such other tenant’s leased premises, Landlord may take
such action as Landlord deems necessary, at Tenant’s expense and without incurring any liability on
Landlord’s part, to correct any such defect, deviation and/or matter, including, without
limitation, causing the cessation of performance of the construction of the Tenant Improvements
until such time as the defect, deviation and/or matter is corrected to Landlord’s satisfaction.



     6.2 Meetings. Commencing upon the execution of this Work Letter, Tenant shall hold
weekly meetings at a reasonable time, with the Architect and the Contractor regarding the progress
of the preparation of Construction Drawings and the construction of the Tenant Improvements, which
meetings shall be held at a location designated by Landlord, and Landlord and/or its agents shall
receive prior notice of, and shall have the right to attend, all such meetings, and, upon
Landlord’s request, certain of Tenant’s Agents shall attend such meetings. In addition, minutes
shall be taken at all such meetings, a copy of which minutes shall be promptly delivered to
Landlord. One such meeting each month shall include the review of Contractor’s current
Disbursement Request.



     6.3 Tenant’s Representative. Tenant has designated Rich Dale (Project Manager,
Studley, Inc.) as its sole representative with respect to the matters set forth in this Work
Letter, who, until further notice to Landlord, shall have full authority and responsibility to act
on behalf of the Tenant as required in this Work Letter.



     6.4 Landlord’s Representative. Landlord has designated Jeff Rauen as its sole
representative with respect to the matters set forth in this Work Letter who, until further notice
to Tenant, shall have full authority and responsibility to act on behalf of the Landlord as
required in this Work Letter.



     6.5 Construction Drawings. Following Tenant’s request, Landlord shall make available
to Tenant and Tenant’s Architect, reasonable access to any base building plans relating to the
Premises in Landlord’s possession; provided, however, Landlord hereby disclaims any express or
implied representation or warranty as to



 









 







the accuracy of the same. Tenant, Tenant’s Architect and the Engineers shall verify, in the field,
the dimensions and conditions as shown on the relevant portions of the base building plans, if any,
and Tenant and Tenant’s Architect and Engineers shall be solely responsible for the same, and
Landlord shall have no responsibility in connection therewith. Landlord’s review of the
Construction Drawings as set forth in this Work Letter shall be solely for the purpose of
protecting Landlord’s interests hereunder and shall not imply Landlord’s review of the same, or
obligate Landlord to review the same, for quality, design, Code compliance or other like matters,
for the benefit of Tenant, Tenant’s Architect, the Contractor or any other party, and Landlord
shall have no liability whatsoever in connection therewith and shall not be responsible for any
omissions or errors contained in the Construction Drawings. Tenant’s waiver and indemnity set
forth in Article 10 of the Lease shall specifically apply to the Construction Drawings. All
references contained herein to “Landlord’s Architect” shall refer to such architect as shall be
designated by Landlord from time to time as “Landlord’s Architect.”



     6.6 Notice of Completion; Copy of Record Set of Plans. Within ten (10) days after
completion of construction of the Tenant Improvements, Tenant shall cause a Notice of Completion to
be recorded in the office of the Recorder of the County in which the Building is located in
accordance with applicable Law, and shall furnish a copy thereof to Landlord upon such recordation.
If Tenant fails to do so, Landlord may execute and file the same on behalf of Tenant as Tenant’s
agent for such purpose, at Tenant’s sole cost and expense. At the conclusion of construction, (i)
Tenant shall cause Tenant’s Architect and the Contractor (A) to update the Approved Working
Drawings as necessary to reflect all changes made to the Approved Working Drawings during the
course of construction, (B) to certify to the best of their knowledge that the “record-set” of
mylar as-built drawings are true and correct, which certification shall survive the expiration or
termination of the Lease, and (C) to deliver to Landlord two (2) sets of copies of such record set
of drawings within ninety (90) days following completion of construction of Tenant Improvements for
the Premises, and (ii) Tenant shall deliver to Landlord the executed original permit card, plus a
copy of all warranties, guaranties, and operating manuals and information relating to the
improvements, equipment, and systems installed by Tenant or Contractor in the Premises.



     6.7 Tenant’s Agents and Construction Matters. All Tenant’s Agents, shall conduct
their activities in and around the Premises, Building and the Project in a harmonious relationship
with all other subcontractors, laborers, materialmen and suppliers at the Premises, Building and
Project. Subject to the provisions of this Work Letter, Tenant shall (a) timely pay in full all
charges of each Tenant’s Agent, (b) shall, within five (5) Business Days of Tenant’s receipt of
Landlord’s written request therefor, eliminate of record and satisfy in full all mechanics liens,
stop notices or similar liens or encumbrances on the Building or the Project asserted or filed by
any Tenant’s Agent, (c) prior to any entry into the Building by Tenant or any Tenant’s Agent,
evidence, in form satisfactory to Landlord, compliance in full with the insurance requirements set
forth in Exhibit “C-1” attached hereto as to Tenant and each such Tenant’s Agent, and (d)
indemnify, defend, protect and hold Landlord harmless from any loss, cost, damage, expense and
liability (including without limitation court costs and reasonable attorneys’ fees) asserted
against or incurred by Landlord in connection with any act or omission of Tenant or any Tenant’s
Agent in or about the Project, the Building or the Premises or otherwise related to the Premises.
Tenant shall comply in full (and shall cause each of its Tenant’s Agents to comply in full) with
the construction rules and regulations as Landlord shall adopt from time to time. Landlord may
impose, as a condition of its consent to any and all Tenant Improvements, such requirements as
Landlord in its sole discretion may deem desirable, including, but not limited to, the requirement
that Tenant utilize for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list provided and approved by Landlord and the requirement
that upon Landlord’s request, Tenant shall, at Tenant’s expense, remove such Tenant Improvements
upon the expiration or any early termination of the Lease Term. Notwithstanding the foregoing, at
the time Tenant seeks Landlord’s consent to a proposed Specialty Alteration, Tenant shall identify
in writing the proposed Specialty Alteration and Landlord shall provide Tenant a Removal Notice as
part of Landlord’s consent identifying which Specialty Alterations Landlord will require Tenant to
remove upon the expiration or early termination of this Lease. Tenant shall only be obligated to
remove from the Premises at the expiration or early termination of this Lease (i) such Specialty
Alterations so identified by Landlord in the Removal Notice(s), and (ii) all telecommunications and
data wiring installed by or on behalf of Tenant.



     6.8 Time of the Essence in This Work Letter. Unless otherwise indicated, all
references herein to a “number of days” shall mean and refer to calendar days. In all instances
where Tenant is required to approve or deliver an item, if no written notice of approval is given
or the item is not delivered within the stated time period, at Landlord’s sole option, at the end
of such period the item shall automatically be deemed approved or delivered by Tenant and the next
succeeding time period shall commence. Except where specific time periods are specified herein,
all references to a “reasonable period” contained in this Work Letter shall mean a reasonable
amount of time to respond to the request or submission in question, taking into consideration all
of the circumstances reasonably related to the amount of time required, assuming reasonable
diligence; provided, however, in no case shall such period ever be less than five (5) Business
Days.



     6.9 Tenant’s Lease Default. Notwithstanding any provision to the contrary contained
in this Lease, if a default by Tenant occurs under the Lease, or a default by Tenant under this
Work Letter, has occurred at any time on or before the Substantial Completion of the Premises, then
(i) in addition to all other rights and remedies granted to Landlord pursuant to the Lease,
Landlord shall have the right to withhold payment of all or any portion of the Allowance Amount
and/or Landlord may cause Contractor to cease the construction of the Tenant Improvements (in which
case, Tenant shall be responsible for any delay in or increase in the cost of the Substantial
Completion of the Tenant Improvements caused by such work stoppage), and (ii) all other obligations
of Landlord under the terms of this Work Letter shall be forgiven until such time as such default
is cured pursuant to the terms of the Lease.



 









 





     6.10 Labor Disputes. Tenant shall (i) construct, or cause the Contractor to construct,
all Tenant Improvements, and (ii) perform all of its obligations under this Work Letter, in such a
manner as to avoid any labor dispute that causes or is likely to cause stoppage or impairment of
work, deliveries or any other services in the Project. If there shall be any such stoppage or
impairment as the result of any such labor dispute or potential labor dispute, Tenant shall
immediately undertake such action as may be necessary to eliminate such dispute or potential
dispute, including, without limitation, (a) removing all disputants from the job site until such
time as the labor dispute no longer exists, (b) seeking a temporary restraining order and other
injunctive relief with regard to illegal union activities or a breach of contract between Tenant
and Tenant’s contractor, and (c) filing appropriate unfair labor practice charges.



 









 





EXHIBIT C-1




INSURANCE REQUIREMENTS




     1 General Coverages. All of Tenant’s Agents shall carry worker’s compensation
insurance covering all of their respective employees, and shall also carry public liability
insurance, including property damage, all with limits, in form and with companies as are required
to be carried by Tenant as set forth in Article 10 of this Lease.



     2 Special Coverages. The Tenant Improvements shall be insured by Tenant pursuant to
Article 10 of the Lease immediately upon completion thereof. Tenant shall carry “Builder’s All
Risk” insurance in an amount approved by Landlord covering the construction of the Tenant
Improvements, and such other insurance as Landlord may require, it being understood and agreed that
the Tenant Improvements shall be insured by Tenant pursuant to Article 10 of the Lease immediately
upon completion thereof. Such insurance shall be in amounts and shall include such extended
coverage endorsements as may be reasonably required by Landlord including, but not limited to, the
requirement that all of Tenant’s Agents shall carry excess liability and Products and Completed
Operation Coverage insurance, each in amounts no less than $500,000 per incident, $1,000,000 in
aggregate, and in form and with companies as are required to be carried by Tenant as set forth in
Article 10 of the Lease. All of Tenant’s Agents shall carry excess liability and Products and
Completed Operation Coverage insurance, each in amounts not less than $500,000 per incident,
$1,000,000 in aggregate, and in form and with companies as are required to be carried by Tenant as
set forth in Article 10 of the Lease.



     3 General Terms. Certificates for all insurance carried pursuant to this Exhibit C-1
shall be delivered to Landlord before any entry into the Project by Tenant or any Tenant’s Agent,
including, without limitation Contractor. All such policies of insurance must contain a provision
that the company writing said policy will give Landlord thirty (30) days prior written notice of
any cancellation or lapse of the effective date or any reduction in the amounts of such insurance.
In the event that the Tenant Improvements are damaged by any cause during the course of the
construction thereof, Tenant shall immediately repair the same at Tenant’s sole cost and expense.
Tenant’s Agents shall maintain all of the foregoing insurance coverage in force until the Tenant
Improvements are fully completed and accepted by Landlord, except for any Products and Completed
Operation Coverage insurance required by Landlord, which is to be maintained for ten (10) years
following completion of the work and acceptance by Landlord and Tenant. All policies carried under
this Exhibit C-1 shall insure Landlord and Tenant, as their interests may appear, as well as
Contractor and Tenant’s Agents. All insurance, except Workers’ Compensation, maintained by
Tenant’s Agents shall preclude subrogation claims by the insurer against anyone insured thereunder.
Such insurance shall provide that it is primary insurance as respects the Landlord and that any
other insurance maintained by Landlord is excess and noncontributing with the insurance required
hereunder. The requirements of the foregoing insurance shall not derogate from the provisions for
indemnification of Landlord by Tenant contained in this Work Letter. Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some alternate form of security
satisfactory to Landlord in an amount sufficient to ensure the lien-free completion of the Tenant
Improvements and naming Landlord as a co-obligee.



 









 





EXHIBIT D

RULES AND REGULATIONS




     Tenant shall faithfully observe and comply with the following Rules and Regulations. Landlord
shall not be responsible to Tenant for the nonperformance of any of said Rules and Regulations by
or otherwise with respect to the acts or omissions of any other tenants or occupants of the
Project. In the event of any conflict between the Rules and Regulations and the other provisions
of this Lease, the latter shall control.



     1. Tenant shall not alter any lock or install any new or additional locks or bolts on any
doors or windows of the Premises without obtaining Landlord’s prior written consent. Tenant shall
bear the cost of any lock changes or repairs required by Tenant. Two keys will be furnished by
Landlord for the Premises, and any additional keys required by Tenant must be obtained from
Landlord at a reasonable cost to be established by Landlord. Upon the termination of this Lease,
Tenant shall restore to Landlord all keys of stores, offices, and toilet rooms, either furnished
to, or otherwise procured by, Tenant and in the event of the loss of keys so furnished, Tenant
shall pay to Landlord the cost of replacing same or of changing the lock or locks opened by such
lost key if Landlord shall deem it necessary to make such changes.



     2. All doors opening to public corridors shall be kept closed at all times except for normal
ingress and egress to the Premises.



     3. Landlord reserves the right to close and keep locked all entrance and exit doors of the
Building during such hours as are customary for comparable buildings in the county where the
Project is located. Tenant, its employees and agents must be sure that the doors to the Building
are securely closed and locked when leaving the Premises if it is after the normal hours of
business for the Building. Any tenant, its employees, agents or any other persons entering or
leaving the Building at any time when it is so locked, or any time when it is considered to be
after normal business hours for the Building, may be required to sign the Building register.
Access to the Building may be refused unless the person seeking access has proper identification or
has a previously arranged pass for access to the Building. Landlord will furnish passes to persons
for whom Tenant requests same in writing. Tenant shall be responsible for all persons for whom
Tenant requests passes and shall be liable to Landlord for all acts of such persons. The Landlord
and his agents shall in no case be liable for damages for any error with regard to the admission to
or exclusion from the Building of any person. In case of invasion, mob, riot, public excitement,
or other commotion, Landlord reserves the right to prevent access to the Building or the Project
during the continuance thereof by any means it deems appropriate for the safety and protection of
life and property.



     4. No furniture, freight or equipment of any kind shall be brought into the Building without
prior notice to Landlord. All moving activity into or out of the Building shall be scheduled with
Landlord and done only at such time and in such manner as Landlord designates. Landlord shall have
the right to prescribe the weight, size and position of all safes and other heavy property brought
into the Building and also the times and manner of moving the same in and out of the Building.
Safes and other heavy objects shall, if considered necessary by Landlord, stand on supports of such
thickness as is necessary to properly distribute the weight. Landlord will not be responsible for
loss of or damage to any such safe or property in any case. Any damage to any part of the
Building, its contents, occupants or visitors by moving or maintaining any such safe or other
property shall be the sole responsibility and expense of Tenant. Notwithstanding the foregoing,
Landlord shall not charge Tenant any fees for use of the freight elevator during Business Hours.



     5. No furniture, packages, supplies, equipment or merchandise will be received in the Building
or carried up or down in the elevators, except between such hours, in such specific elevator and by
such personnel as shall be designated by Landlord. Notwithstanding the foregoing, Landlord shall
not charge Tenant any fees for use of the freight elevator during Business Hours.



     6. The requirements of Tenant will be attended to only upon application at the management
office for the Project or at such office location designated by Landlord. Employees of Landlord
shall not perform any work or do anything outside their regular duties unless under special
instructions from Landlord.



     7. No sign, advertisement, notice or handbill shall be exhibited, distributed, painted or
affixed by Tenant on any part of the Premises or the Building without the prior written consent of
the Landlord. Tenant shall not disturb, solicit, peddle, or canvass any occupant of the Project
and shall cooperate with Landlord and its agents of Landlord to prevent same.



     8. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose
other than that for which they were constructed, and no foreign substance of any kind whatsoever
shall be thrown therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose servants, employees, agents,
visitors or licensees shall have caused same.



     9. Tenant shall not overload the floor of the Premises, nor mark, drive nails or screws, or
drill into the partitions, woodwork or drywall or in any way deface the Premises or any part
thereof without Landlord’s prior written consent.



     10. Except for vending machines intended for the sole use of Tenant’s employees and invitees,
no vending machine or machines other than fractional horsepower office machines shall be installed,
maintained or operated upon the Premises without the written consent of Landlord.



     11. Tenant shall not use or keep in or on the Premises, the Building, or the Project any
kerosene, gasoline, explosive material, corrosive material, material capable of emitting toxic
fumes, or other inflammable or combustible fluid chemical, substitute or material. Tenant shall
provide material safety data sheets for any Hazardous Substance used or kept on the Premises.



 









 





     12. Tenant shall not without the prior written consent of Landlord use any method of heating
or air conditioning other than that supplied by Landlord.



     13. Tenant shall not use, keep or permit to be used or kept, any foul or noxious gas or
substance in or on the Premises, or permit or allow the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Project by reason of noise, odors,
or vibrations, or interfere with other tenants or those having business therein, whether by the use
of any musical instrument, radio, phonograph, or in any other way. Tenant shall not throw anything
out of doors, windows or skylights or down passageways.



     14. Tenant shall not bring into or keep within the Project, the Building or the Premises any
animals, birds, aquariums, or, except in areas designated by Landlord, bicycles or other vehicles.



     15. No cooking shall be done or permitted on the Premises, nor shall the Premises be used for
the storage of merchandise, for lodging or for any improper, objectionable or immoral purposes.
Notwithstanding the foregoing, Underwriters’ laboratory-approved equipment and microwave ovens may
be used in the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors, provided that such use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and regulations.



     16. The Premises shall not be used for manufacturing or for the storage of merchandise except
as such storage may be incidental to the use of the Premises provided for in Section 5.1 of the
Lease. Tenant shall not occupy or permit any portion of the Premises to be occupied as an office
for a messenger-type operation or dispatch office, public stenographer or typist, or for the
manufacture or sale of liquor, narcotics, or tobacco in any form, or as a medical office, or as a
barber or manicure shop, or as an employment bureau without the express prior written consent of
Landlord. Tenant shall not engage or pay any employees on the Premises except those actually
working for such tenant on the Premises nor advertise for laborers giving an address at the
Premises.



     17. Landlord reserves the right to exclude or expel from the Project any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of these Rules and Regulations.



     18. Tenant, its employees and agents shall not loiter in or on the entrances, corridors,
sidewalks, lobbies, courts, halls, stairways, elevators, vestibules or any Common Areas for the
purpose of smoking tobacco products or for any other purpose, nor in any way obstruct such areas,
and shall use them only as a means of ingress and egress for the Premises.



     19. Tenant shall not waste electricity, water or air conditioning and agrees to cooperate
fully with Landlord to ensure the most effective operation of the Building’s heating and air
conditioning system, and shall refrain from attempting to adjust any controls. Tenant shall
participate in recycling programs undertaken by Landlord.



     20. Tenant shall comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency.



     21. Any persons employed by Tenant to do janitorial work shall be subject to the prior written
approval of Landlord, and while in the Building and outside of the Premises, shall be subject to
and under the control and direction of the Building manager (but not as an agent or servant of such
manager or of Landlord), and Tenant shall be responsible for all acts of such persons.



     22. No awnings or other projection shall be attached to the outside walls of the Building
without the prior written consent of Landlord, and no curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or door of the Premises other than
Landlord standard window covering. All electrical ceiling fixtures hung in the Premises or spaces
along the perimeter of the Building must be fluorescent and/or of a quality, type, design and a
warm white bulb color approved in advance in writing by Landlord. Neither the interior nor
exterior of any windows shall be coated or otherwise sunscreened without the prior written consent
of Landlord. Tenant shall be responsible for any damage to the window film on the exterior windows
of the Premises and shall promptly repair any such damage at Tenant’s sole cost and expense.
Tenant shall keep its window coverings closed during any period of the day when the sun is shining
directly on the windows of the Premises. Prior to leaving the Premises for the day, Tenant shall
draw or lower window coverings and extinguish all lights. Tenant shall abide by Landlord’s
regulations concerning the opening and closing of window coverings which are attached to the
windows in the Premises, if any, which have a view of any interior portion of the Building or
Building Common Areas.



     23. The sashes, sash doors, skylights, windows, and doors that reflect or admit light and air
into the halls, passageways or other public places in the Building shall not be covered or
obstructed by Tenant, nor shall any bottles, parcels or other articles be placed on the
windowsills.



     24. Tenant must comply with requests by the Landlord concerning the informing of their
employees of items of importance to the Landlord.



     25. Tenant must comply with all applicable “NO-SMOKING” and sorting of recyclable waste or
similar ordinances. If Tenant is required under the ordinance to adopt a written smoking policy, a
copy of said policy shall be on file in the office of the Building.



     26. Landlord shall provide security service for the benefit of the Building and/or the Project
consistent with the level of service provided by Landlord as of the date of the Lease. Tenant
acknowledges and agrees that Landlord has no obligation to provide security for the Premises.
Tenant hereby assumes all responsibility for the protection of Tenant and its officers, partners,
contractors, subcontractors, consultants, licensees, agents, concessionaires, subtenants, servants,
employees, customers, guests, invitees or visitors, and the property thereof,



 









 







from acts of third parties, including keeping doors locked and other means of entry to the Premises
closed, whether or not Landlord, at its option, elects to provide security protection for the
Project or any portion thereof. Tenant further assumes the risk that any safety and security
devices, services and programs which Landlord elects, in its sole discretion, to provide may not be
effective, or may malfunction or be circumvented by an unauthorized third party, and Tenant shall,
in addition to its other insurance obligations under this Lease, obtain its own insurance coverage
to the extent Tenant desires protection against losses related to such occurrences. Tenant shall
cooperate in any reasonable safety or security program developed by Landlord or required by law.



     27. All office equipment of any electrical or mechanical nature shall be placed by Tenant in
the Premises in settings approved by Landlord, to absorb or prevent any vibration, noise and
annoyance.



     28. Tenant shall not use in any space or in the public halls of the Building, any hand trucks
except those equipped with rubber tires and rubber side guards.



     29. No auction, liquidation, fire sale, going-out-of-business or bankruptcy sale shall be
conducted in the Premises without the prior written consent of Landlord.



     30. No tenant shall use or permit the use of any portion of the Premises for living quarters,
sleeping apartments or lodging rooms.



     31. Tenant shall not purchase spring water, ice, towels, janitorial or maintenance or other
similar services from any company or persons not approved by Landlord. Landlord shall approve a
sufficient number of sources of such services to provide Tenant with a reasonable selection, but
only in such instances and to such extent as Landlord in its judgment shall consider consistent
with the security and proper operation of the Building.



     32. Tenant shall install and maintain, at Tenant’s sole cost and expense, an adequate, visibly
marked and properly operational fire extinguisher next to any duplicating or photocopying machines
or similar heat producing equipment, which may or may not contain combustible material, in the
Premises.



     Landlord reserves the right at any time to change or rescind any one or more of these Rules
and Regulations, or to make such other and further reasonable Rules and Regulations as in
Landlord’s judgment may from time to time be necessary for the management, safety, care and
cleanliness of the Premises, Building, the Common Areas and the Project, and for the preservation
of good order therein, as well as for the convenience of other occupants and tenants therein.
Landlord may waive any one or more of these Rules and Regulations for the benefit of any particular
tenants, but no such waiver by Landlord shall be construed as a waiver of such Rules and
Regulations in favor of any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules or Regulations against any or all tenants of the Project. Landlord shall not have any
obligation to enforce the Rules and Regulations or the terms of any other lease against any other
tenant, and Landlord shall not be liable to Tenant for violation thereof by any other tenant.
Tenant shall be deemed to have read these Rules and Regulations and to have agreed to abide by them
as a condition of its occupancy of the Premises.



 









 





EXHIBIT
E


EXTENSION OPTION




     1. Grant of Option. Landlord grants to the Tenant originally named on the Lease (the
“Original Tenant”) one (1) option (the “Extension Option”) to extend the Lease Term as to the
entire Premises for a period of sixty (60) months (the “Extension Term”), commencing on the first
day following the expiration of the Lease Term (“Extension Term Commencement Date”). The option to
extend shall be exercisable only by notice delivered by Tenant to Landlord as provided in
Section 3. Upon the approved exercise of the option to extend (provided that Tenant is not
in default at any time prior to the Extension Term) the Lease Term shall be extended for a period
of sixty (60) months. In the event that Tenant fails to timely and appropriately exercise its
option to extend in accordance with the terms of this Section 1, then the option to extend
shall automatically terminate and shall be of no further force or effect.



     2. Option Terms. The Extension Term shall be upon the same terms and conditions as
are provided for in this Lease, as then amended, except that (a) there shall be no further options
to extend the Term following the Extension Term, (b) Tenant shall not be entitled to any credit
against Rent or any other rent concession or rent allowance or abatement of Rent, except as
specifically provided in this Section 2, (c) the annual Base Rent for the Extension Term
shall be as provided in Section 4, and (d) Landlord shall not be obligated to perform any
improvement work within the Premises or provide Tenant any improvement allowance. The Extension
Option shall be personal to the Original Tenant and any Permitted Transferee.



     3. Exercise of Option. The Extension Option shall be exercised by the Original
Tenant, if at all, only in the following manner: The Extension Option may be exercised only by
Tenant giving written notice of exercise (the “Extension Notice”) to Landlord on or before the date
that is not less than nine (9) months but not more than fifteen (15) months prior to the expiration
of the initial Lease Term (time being of the essence).



     4. Base Rent. The annual Base Rent per annum payable for the Premises during the
Extension Term (the “Extension Base Rent”) shall be equal to (a) the rentable square feet of the
Premises then subject to this Lease, multiplied by (b) the yearly FMRR (defined below) of the
Premises as of the first day (an “Adjustment Date”) of the Extension Term, as determined in
accordance with this Section 4.



     5. Definition of FMRR. The “FMRR” of the Premises for the Extension Term shall be
equal to an amount equal to the rate per rentable square foot being charged to new tenants for
comparable space in the Project or, if comparable transactions do not exist in the Project, then an
amount that landlords of comparable buildings have agreed to accept, and sophisticated
nonaffiliated tenants of comparable buildings have agreed to pay, in current arms-length,
nonrenewal, nonequity (i.e., not being offered equity in the building), transactions for comparable
space (in terms of condition, floor location, view and floor height) of a comparable size, for a
nonrenewal term equal to the Extension Term and commencing as of the first day of the Extension
Term, which annual rent per square foot shall take into account and make adjustment for the
existence, timing and amount of any increases in rent following term commencement in the comparison
transactions, and shall at all times take into consideration and make adjustment for all other
material differences in all terms, conditions or factors applicable to the transaction in question
hereunder or applicable to one or more of the comparison transactions used to determine the FMRR
which a sophisticated tenant or sophisticated landlord would believe would have a material impact
on a “fair market rental” determination; provided, however, that (i) all comparable transactions
should be adjusted to simulate a net rent structure, wherein the tenant is responsible for the
payment of all property operating expenses and taxes in a manner consistent with this Lease, (ii)
the presence, amount or absence of brokerage commissions in either the subject transaction or the
comparison transactions shall be considered, (iii) any rent abatement or other free rent of any
type provided in comparison transactions for the period of the performance of any tenant
improvement work (i.e., any “construction period”) shall be disregarded, and (iv) any tenant
improvements or allowance provided for in comparable transactions shall be taken into account, and
the value, if any, to Tenant of any existing improvements in the Premises shall be taken into
account in the calculation of the FMRR. If in determining the FMRR for a subject transaction
hereunder, it is determined that free rent or cash allowances (collectively, “Concessions”) should
be granted, Landlord may, at Landlord’s sole option, elect all or any portion of the following:
(A) to grant some or all of the Concessions to Tenant as free rent or as an improvement allowance,
or (B) to adjust the monthly installments of the applicable Extension Term Annual Base Rent to be
an effective rental rate which takes into consideration and deducts from monthly rent the amortized
amount of the total dollar value of such Concessions, amortized on a straight line basis over the
applicable Extension Term (in which case the Concessions so amortized shall not be granted to
Tenant).



     6. Procedure for Determining the FMRR. If Tenant has timely given the Extension
Notice with respect to the Extension Option, Landlord shall within thirty (30) days thereafter
deliver to Tenant a written notice of Landlord’s determination of what the FMRR would be during the
applicable Extension Term (“Landlord’s Extension Rent Notice”). Within ten (10) Business Days
after Tenant’s receipt of Landlord’s Extension Rent Notice, Tenant shall give Landlord a written
notice (“Tenant’s Extension Response Notice”) electing either (i) to accept the FMRR set forth in
Landlord’s Extension Rent Notice, in which case the FMRR shall be the FMRR set forth in Landlord’s
Extension Rent Notice, or (ii) to not accept Landlord’s determination of the FMRR, in which case
Landlord and Tenant shall endeavor to agree upon the FMRR on or before the date that is ten (10)
days after Landlord’s receipt of Tenant’s Extension Response Notice (the “Outside Agreement Date”).
If Landlord and Tenant are unable to agree upon the FMRR by the Outside Agreement Date, then the
FMRR shall be determined by arbitration pursuant to below. If Tenant fails to deliver Tenant’s
Extension Response Notice within the ten (10) business-day period following its receipt of
Landlord’s Extension Rent Notice, Tenant shall conclusively be deemed to have accepted Landlord’s
determination of the FMRR as set forth in Landlord’s Extension Rent Notice.



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     If Landlord and Tenant shall fail to agree upon the FMRR by the Outside Agreement Date, then,
within ten (10) days thereafter, Tenant shall submit to Landlord Tenant’s determination of the FMRR
and Landlord shall submit to Tenant Landlord’s determination of FMRR, and such determinations shall
be submitted to arbitration (as Tenant’s and Landlord’s “submitted FMRR,” respectively) in
accordance with the following:



          (a) Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real
estate broker who shall have been active over the five (5) year period ending on the date of such
appointment in the leasing of commercial properties in the Downtown Chicago, Illinois area, and who
shall not have been employed or engaged by the appointing party during the immediately preceding
two (2) year period. The determination of the arbitrators shall be limited solely to the issue as
to whether Landlord’s or Tenant’s submitted FMRR is the closest to the actual FMRR, as determined
by the arbitrators, taking into account the requirements of this Section 6. Each such
arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date.



          (b) The two arbitrators so appointed shall within ten (10) days of the date of the appointment
of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be a real
estate broker who shall have been active over the five (5) year period ending on the date of such
appointment in the leasing of commercial properties in the Downtown Chicago, Illinois area and who
shall not have been employed or engaged by Landlord or Tenant during the immediately preceding two
(2) year period.



          (c) The three arbitrators shall within thirty (30) days of the appointment of the third
arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted
FMRR and shall notify Landlord and Tenant thereof.



          (d) The decision of the majority of the three arbitrators shall be binding upon Landlord and
Tenant, shall be in writing and shall be non-appealable, and counterpart copies thereof shall be
delivered to Landlord and Tenant. A judgment or order based upon such award may be entered in any
court of competent jurisdiction. In rendering their decision and award, the arbitrators shall have
no power to vary, modify or amend any provision of this Lease. If either Landlord or Tenant fails
to appoint an arbitrator within fifteen (15) days after the applicable Outside Agreement Date, the
arbitrator appointed by the other shall solely render a decision as to the FMRR, notify Landlord
and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.



          (e) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties
fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall
be dismissed and the matter to be decided shall be promptly submitted to arbitration under the
provisions of the American Arbitration Association, but subject to the instructions set forth in
this Section 6.



          (f) The cost of arbitration shall be paid by Landlord and Tenant equally.



     7. Conditions to Exercise of Extension Option. Notwithstanding any provision of this
Exhibit E  to the contrary, at the election of Landlord, any attempted exercise by Tenant
of the Extension Option shall be invalid and ineffective if, on the date of such attempted
exercise, Tenant is in default under this Lease following the expiration of all applicable notice
and cure periods, and any exercise of the applicable Extension Option shall be deemed null and void
and of no force and effect, at the election of Landlord, if (i) on the commencement of the
applicable Extension Term, Tenant is in default under this Lease following the expiration of all
applicable notice and cure periods, or (ii) there has previously been an Event of Default under
this Lease more than two (2) times in any twelve (12) month period. Additionally, Tenant’s
Extension Option shall terminate if (a) this Lease or Tenant’s right to possession of the Premises
is terminated, (b) Tenant assigns any of its interest in this Lease or sublets seventy five percent
(75%) or more of the Office Premises, other than to a Permitted Transferee, or, Tenant sublets any
portion of the Retail Premises, other than to a Permitted Transferee, or (c) Tenant fails to timely
exercise its Extension Option, time being of the essence with respect to Tenant’s exercise thereof.




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