BY AND BETWEEN
CITYGATE CENTRE I LLC
a Delaware limited liability company
CALAMOS HOLDINGS LLC,
a Delaware limited liability company
2135 CityGate Lane
Dated: November 16, 2007
TABLE OF CONTENTS
EXHIBITS AND RIDERS
The following Exhibits and Riders are attached hereto and by this reference made a part of this Lease:
THIS LEASE AGREEMENT dated as of November 16, 2007 (“this Lease ”) is made and entered into by and between CityGate Centre I LLC, a Delaware limited liability company (the “ Landlord ”) and Calamos Holdings LLC, a Delaware limited liability company (the “ Tenant ”), upon all the terms set forth in this Lease and in all Exhibits and Riders hereto, to each and all of which terms Landlord and Tenant hereby mutually agree, and in consideration of Ten Dollars ($10.00) and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and of the rents, agreements and benefits flowing between the parties hereto, as follows:
ARTICLE 1 — BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS
Section 1.1 Definitions : Each reference in this Lease to information and definitions contained in the Basic Lease Information and Certain Definitions and each use of the terms capitalized and defined in this Section 1.1 shall be deemed to refer to, and shall have the respective meaning set forth in, this Section 1.1 .
ARTICLE 2 — PREMISES AND QUIET ENJOYMENT
Section 2.1 Conveyance : Landlord hereby leases the Premises to Tenant, and Tenant hereby rents and hires the Premises from Landlord, for the Term. During the Term, Tenant shall have the non-exclusive right to use, in common with others and in accordance with the Rules and Regulations (as set forth in Rider No. 1 of the Lease), the Common Areas (as defined in Article 27 of this Lease). Tenant shall be subject to the terms, conditions and provisions of any and all ground leases, deeds to secure debt, mortgages, restrictive covenants, easements and other encumbrances now or hereafter affecting the Premises or the Project (“ Encumbrances ”). Notwithstanding the foregoing to the contrary, Tenant shall only be subject to the Encumbrances to the extent the Encumbrances do not materially diminish Tenant’s rights or increase Tenant’s obligations hereunder, or prohibit Tenant from using the Premises for Tenant’s Permitted Uses.
Section 2.2 Quiet Enjoyment : Provided that Tenant fully and timely performs all the terms of this Lease on Tenant’s part to be performed, including payment by Tenant of all Rent, Tenant shall have, hold and enjoy the Premises during the Term without hindrance or disturbance from or by Landlord; subject, however, to all of the terms, conditions and provisions of any and all Encumbrances.
ARTICLE 3 — TERM; COMMENCEMENT DATE; DELIVERY AND ACCEPTANCE OF
PREMISES AND OPTIONS TO EXTEND AND EXPAND
Section 3.1 Commencement Date : The Commencement Date shall be November 16, 2007. Landlord acknowledges that Tenant has had the right to enter the Premises for the purpose of constructing the Leasehold Improvements beginning on August 13, 2007.
Section 3.2 Commencement Notice : By written instrument substantially in the form of Exhibit E attached hereto, Landlord shall notify Tenant of the Commencement Date and all other matters stated therein. Such Commencement Notice shall be conclusive and binding on Tenant as to all matters set forth therein, unless within ten (10) Business Days (as such term is defined in Article 27 of this Lease) following delivery of such Commencement Notice, Tenant contests any of the matters contained therein by notifying Landlord in writing of Tenant’s objections.
Section 3.3 Acceptance of Premises : Occupancy of the Premises or any portion thereof by Tenant or anyone claiming through or under Tenant shall be conclusive evidence that Tenant and all parties claiming through or under Tenant (a) have accepted the Premises or such portion as suitable for the purposes for which the Premises are leased hereunder and the needs of Tenant, (b) have waived any
defects in the Premises and the Project, and (c) have acknowledged that the Premises are acceptable in their “as is” condition, with no further obligation on the part of the Landlord. To Landlord’s knowledge, the Land, Building and Premises are in compliance with all applicable codes and laws, including, without limitation, building codes, fire codes and the Americans with Disabilities Act.
Section 3.4 Tenant Options to Extend the Term : If (i) this Lease is in full force and effect without any uncured defaults of Tenant after expiration of all applicable notice and cure periods, then Tenant shall have the right to extend the Term by two (2) successive periods of five (5) years each upon the terms and conditions set forth in this Lease, except for Base Rent, which shall be the fair market rent as determined pursuant to Section 3.6 below. Each option to extend is referred to as an “ Extension Option ”; the first is referred to as the “ First Extension Option ” and the second is referred to as the “ Second Extension Option .” In no event whatsoever shall this Lease ever be construed so as to afford Tenant more than two (2) Extension Options, or any other renewal rights not expressly set forth in this Article 3 .
Section 3.5 Conditions to Exercising Extension Options : In order to exercise an Extension Option, Tenant (i) there shall not be an Event of Default then in existence under this Lease, (ii) shall have neither assigned the Lease nor sublet all or any portion of the Premises, and (iii) shall deliver notice of such exercise to Landlord not later than one (1) year prior to the expiration date of the Initial Term or the extended Term, as applicable. Tenant may exercise the Second Extension Option, however, only if it previously exercised the First Extension Option and the Term has not earlier been terminated. During the extended Term, the provisions of this Lease shall remain in full force and effect.
Section 3.6 Determination of Fair Market Rent : Within thirty (30) days of Landlord’s receipt of a Renewal Notice, Landlord shall deliver to Tenant a statement of the fair market rent for such renewal period (the “ FMR Notice ”). The fair market rent contained in the FMR Notice shall reflect the arms length fair market annual rental rate per rentable square foot under renewal leases and amendments entered into on or about the date on which the FMR Notice is delivered for space comparable to the Premises in the Building and office buildings comparable to the Building in the “East-West Corridor” area of suburban Chicago, Illinois. The determination of such fair market rent shall take into consideration any material economic differences between the terms of this Lease and any comparison lease or amendment, such as rent abatements, construction costs and other concessions and the manner, if any, in which the landlord under any such lease is reimbursed for operating expenses and taxes. In the event Tenant does not agree Landlord’s determination of fair market rent and the parties have not otherwise agreed in writing to a different fair market rent, then Tenant may deliver to Landlord a notice disputing Landlord’s determination of fair market rent within fifteen (15) days after receipt of Landlord’s FMR Notice (a “ Rejection Notice ”). If Tenant fails to provide Landlord with such Rejection Notice within said fifteen (15) day period, Tenant shall be deemed to have accepted the fair market rent contained in the FMR Notice. If Tenant properly and timely delivers such Rejection Notice to Landlord, Landlord and Tenant shall work in good faith to determine the fair market rent for the applicable renewal period. If Landlord and Tenant are unable to agree upon the fair market rent within thirty (30) days of Landlord’s receipt of the Rejection Notice, Tenant’s Extension Options shall be deemed null and void and of no force or effect. Upon Tenant’s acceptance of the fair market rent contained in the FMR Notice, or the parties’ good faith agreement on fair market rent, as provided above, Landlord and Tenant shall enter into an amendment of this Lease, which amendment shall reflect the new Base Rent, Expiration Date and any other appropriate modifications.
Section 3.7 Tenant’s Option to Expand the Premises . Subject to the rights of other tenants in the Building, if this Lease is in full force and effect, and provided no Events of Default have occurred and are continuing, Tenant shall have the right to expand the Premises to include the Expansion Premises as such Expansion Premises are described on Exhibit A-2 attached hereto (the “ Expansion Option ”). If any
such other tenant has exercised its option to lease all or a portion of the Expansion Premises, Tenant’s right to expand into the Expansion Premises shall be null and void. If any such other tenant has declined to exercise its expansion rights by May 1, 2008, Landlord shall give notice to Tenant of the availability of the Expansion Premises and Tenant. In order to exercise the Expansion Option, Tenant shall deliver notice of such exercise to Landlord not later than 5:00 pm Chicago time, on May 10, 2008. If Tenant timely exercises its Expansion Option, (i) such expansion shall be subject to the terms and conditions of this Lease, including, without limitation, the Right of First Offer, Landlord’s Contribution, Termination Right, First Extension Option and Second Extension Option, and (ii) the parties hereto shall enter into an amendment of this Lease for the purpose of increasing the Premises to include the Expansion Premises and specifying Rent, Tenant’s Share, and Landlord’s Contribution to the Leasehold Improvements within the Expansion Space. The Expansion Premises shall be deemed a part of the Premises commencing on December 1, 2008 and the rent commencement date for the Expansion Premises shall be June 1, 2009.
Section 3.8 Termination Right : Notwithstanding anything to the contrary contained herein, Tenant shall have the one time right to terminate this Lease (the “ Termination Option ”) either (i) as of March 31, 2013, if the Expansion Option is not exercised by the Tenant, or (ii) as of November 30, 2013 if the Expansion Option is exercised by the Tenant (each, as applicable, the “ Early Termination Date ”); which Termination Option may be exercised only if Tenant delivers to Landlord written notice (the “ Termination Notice ”) of its decision to exercise this early Termination Option on or before the date that is twelve (12) months prior to the applicabe Early Termination Date. If Tenant elects to exercise this one time Termination Option, Tenant shall pay to the Landlord a termination payment equal to (i) the then unamortized Landlord Contribution to the Leasehold Improvements (calculated on a straightline basis using a nine percent (9%) annual interest rate over a ninrty (90) month term), plus (ii) unamortized brokerage commissions (calculated on a straightline basis using a nine percent (9%) annual interest rate over a ninety (90) month term), plus (iii) three (3) months of Rent as of the applicable Early Termination Date (collectively, the “ Termination Payment ”). One half of the Termination Payment shall be due with the Termination Notice and the other half of the Termination Payment shall be due upon the applicable Early Termination Date.
ARTICLE 4 — RENT
Section 4.1 Base Rent : Tenant shall pay to Landlord, without notice, demand, offset or deduction, in lawful money of the United States of America, at Landlord’s Address for Payment, or at such other place as Landlord shall designate in writing from time to time: (a) the Base Rent as set forth in Exhibit C attached hereto, in equal monthly installments, in advance, on the first day of each calendar month during the Term, and (b) the Additional Rent, at the respective times required hereunder. Provided no Event of Default has occurrred or is continuing hereunder, Tenant shall be entitled to a six (6) month abatement of Rent (the “ Abated Rent ”) (as set forth on Exhibit C attached hereto), such that the Rent shall commence on the Rent Commencement Date. At any time, if an Event of Default shall occur and be continuing hereunder, all Abated Rent shall immediately become due and payable. If either the Commencement Date or the Expiration Date falls on a date other than the first day of a calendar month, the Rent due for such fractional month shall be prorated on a per diem basis between Landlord and Tenant so as to charge Tenant only for the portion of such fractional month falling within the Term.
Section 4.2 Charges and Interest on Late Payments : All installments of Rent which are not paid within five (5) days after their due date shall be subject to a late charge of five percent (5%) of the amount of the late payment and shall further bear interest until paid at a rate per annum (the “ Interest Rate ”) equal to the greater of twelve percent (12%) or two percent (2%) above the prime rate of interest from time to time published by the Wall Street Journal, or any successor thereof; provided, however, that, if at the time such interest is sought to be imposed the rate of interest exceeds the maximum rate
permitted under federal law or under the laws of the State of Illinois, the rate of interest on such past due installments of Rent shall be the maximum rate of interest then permitted by applicable law.
ARTICLE 5 — ADDITIONAL RENT
Section 5.1 Operating Expense Payments : Beginning on the Rent Commencement Date, on the first day of each calendar month during the Term, Tenant shall pay to Landlord, as Additional Rent, an amount of money equal to Tenant’s Share of Operating Costs (“ Tenant’s Operating Costs Payment ”), for each year or fractional year during the Term, such amount to be calculated and paid as follows:
A. Within sixty (60) days following the Commencement Date, and on the first day of January of each year during the Term thereafter, or as soon thereafter as is practicable, Landlord shall furnish Tenant with a statement (“ Landlord’s Operating Costs Estimate ”) setting forth Landlord’s reasonable estimate of Operating Costs as defined in Section 5.2 and as adjusted pursuant to Section 5.3 for the forthcoming year and Tenant’s Operating Costs Payment for such year, as adjusted pursuant to Section 5.3 . On the first day of each calendar month during such year, Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant’s Operating Costs Payment as estimated on Landlord’s Operating Costs Estimate. If during any calendar year actual Operating Costs exceed Landlord’s Operating Costs Estimate for such calendar year, Landlord may send Tenant a revised Landlord’s Operating Costs Estimate, and, upon receipt thereof, Tenant shall thereafter make monthly payments as set forth in the revised Landlord’s Operating Cost Estimate. If for any reason Landlord has not provided Tenant with Landlord’s Operating Costs Estimate on the first day of January of any year during the Term, then until the first day of the calendar month following the month in which Tenant is given Landlord’s Operating Costs Estimate, Tenant shall continue to pay to Landlord on the first day of each calendar month the sum, if any, payable by Tenant under this Section 5.1 for the month of December of the preceding year.
B. On the last day of March of each year during the Term (beginning on the last day of March of the first year following the year in which the Commencement Date occurs), or as soon thereafter as is practicable, Landlord shall furnish Tenant with a statement of the actual Operating Costs as adjusted pursuant to Section 5.3 , for the preceding year. Within thirty (30) days after Landlord’s giving of such statement, Tenant shall make a lump sum payment to Landlord in the amount, if any, by which Tenant’s Operating Costs Payment for such preceding year as shown on such Landlord’s statement, exceeds the aggregate of the monthly installments of Tenant’s Operating Costs Payments paid during such preceding year. If Tenant’s Operating Costs Payment, as shown on such Landlord’s statement, is less than the aggregate of the monthly installments of Tenant’s Operating Costs Payment actually paid by Tenant during such preceding year, then Landlord shall apply such amount to the next accruing monthly installment(s) of Rent due from Tenant until fully credited to Tenant (or if there is no further installment of Tenant’s Operating Costs Payment due by Tenant, then Landlord shall remit such overpayment directly to Tenant).
C. If the Term ends on a date other than the last day of December, the actual Operating Costs for the year in which the Expiration Date occurs, shall be prorated so that Tenant shall pay that portion of Tenant’s Operating Costs Payment for such year represented by a fraction, the numerator of which shall be the number of days during such fractional year falling within the Term, and the denominator of which is 365 (or 366, in the case of a leap year). The provisions of this Section 5.1 shall survive the Expiration Date or any sooner termination provided for in this Lease.
Section 5.2 Definition of Operating Expenses : For purposes of this Lease, the term “ Operating Costs ” shall specifically include and exclude the following:
A. The term “ Operating Costs ” shall mean any and all expenses, costs and disbursements of every kind which Landlord pays, incurs or becomes obligated to pay in connection with the operation, management, repair and maintenance of all or any portion of the Project. All Operating Costs shall be determined according to generally accepted accounting principles which shall be consistently applied. Operating Costs include, without limitation, the following: (a) Reasonable wages, salaries, benefits, association dues and other fees and costs of all personnel associations or entities engaged in the operation, repair, maintenance, management, or safekeeping of the Project or the Common Areas, including, without limitation, taxes, insurance, and benefits relating thereto and the reasonable costs of all supplies and materials (including work clothes and uniforms) used in the operation, repair, maintenance and security of the Common Areas and the Project (all such amounts to be prorated among properties pursuant to applicable Encumbrances, including, without limitation the CityGate Centre declarations and restrictive covenants, to the extent such personnel, entities, supplies or materials are also engaged in the operation, repair, maintenance or security of any property other than the Building); (b) Cost of performance by Landlord’s personnel of, or of all service agreements for, maintenance, janitorial services, access control, alarm service, window cleaning, elevator maintenance and landscaping for the Project, including, without limitation, the cost of repairs and replacements required in connection with the maintenance of the parking garage on the Land and the rental of personal property and equipment used by Landlord’s personnel and others in the maintenance and repair of the Project; (c) Cost of utilities for the Project not specifically billed to other tenants of the Building, including water, sewer, gas, fuel and Common Area power, electricity, lighting and air-conditioning, heating and ventilating subject to Section 5.3 ; with Tenant to separately pay the utility service costs for the Premises as provided in Section 7.2 herein, (d) Cost of all insurance, including casualty and liability insurance applicable to the Project and to Landlord’s equipment, fixtures and personal property used in connection therewith, business interruption or rent insurance against such perils as are commonly insured against by prudent landlords, such other insurance as may be required by any lessor or mortgagee of Landlord, and such other insurance which Landlord considers reasonably necessary in the operation of the Project, together with all appraisal and consultants’ fees in connection with such insurance (but only to the extent used in connection with an attempted reduction in insurance costs), and, with respect to any claim under such insurance, the amount of any deductible; (e) All Taxes (as hereinafter defined); (f) Reasonable legal and accounting costs incurred by Landlord or paid by Landlord to third parties (exclusive of legal fees with respect to disputes with individual tenants, negotiations of tenant leases, or with respect to the ownership rather than the operation of the Project), appraisal fees, consulting fees, all other professional fees and disbursements and all association dues; (g) Cost of non-capitalized repairs and general maintenance for the Project (excluding repairs and general maintenance paid by proceeds of insurance or by Tenant, other tenants of the Project or other third parties); (h) Amortization of the cost of improvements or equipment which are capital in nature and which (i) are for the purpose of reducing Operating Costs for the Project, up to the amount saved as a result of the installation thereof, as reasonably estimated by Landlord, or (ii) enhance the Project for the general benefit of tenants or occupants thereof, or (iii) are required by any governmental authority (unless such requirement was in effect and/or required prior to the Commencement Date), or (iv) replace any Building equipment needed to operate the Project at the same quality levels as prior to the replacement. All such costs, including interest thereon, shall be amortized on a straight-line basis over the useful life of the capital investment items (as reasonably determined by Landlord), but in no event beyond the reasonable useful life of the Project as a first class office project; (i) the Project management office rent or rental value of the Project management office and any conference rooms of the Building made available by Landlord for common use by tenants of the Building, provided that the same shall not be above market rental rates; and (j) a management fee (whether or not Landlord engages a manager for the Project or manages the Project with Landlord’s personnel) and all items reimbursable to the Project manager, if any, pursuant to any management contract for the Project. The management fee shall be four percent (4%) of the annual Rent required hereunder.
B. For purposes hereof, the term “ Taxes ” shall mean, all taxes, assessments, and other governmental charges, applicable to or assessed against the Project or any portion thereof, or applicable to or assessed against Landlord’s personal property used in connection therewith, whether federal, state, county, or municipal and whether assessed by taxing districts or authorities presently taxing the Project or the operation thereof or by other taxing authorities subsequently created, or otherwise, and any other taxes and assessments attributable to or assessed against all or any part of the Project or its operation; including any reasonable expenses, including fees and disbursements of attorneys, tax consultants, arbitrators, appraisers, experts and other witnesses, incurred by Landlord in contesting any taxes or the assessed valuation of all or any part of the Project. Tenant acknowledges that Taxes “for” a given calendar year are those Taxes which accrue and are assessed for the Project in such calendar year even if paid in a later year. If at any time during the Term there shall be levied, assessed, or imposed on Landlord or all or any part of the Project by any governmental entity any general or special ad valorem or other charge or tax directly upon rents received under leases, or if any fee, tax, assessment, or other charge is imposed which is measured by or based, in whole or in part, upon such rents, or if any charge or tax is made based directly or indirectly upon the transactions represented by leases or the occupancy or use of the Project or any portion thereof, such taxes, fees, assessments or other charges shall be deemed to be Taxes. Notwithstanding the foregoing, any (A) franchise, corporation, income, inheritance or net profits tax, unless substituted for real estate taxes or imposed as additional charges in connection with the ownership of the Project, which may be assessed against Landlord or the Project or both, (B) transfer taxes assessed against Landlord or the Project or both, (C) penalties or interest on any late payments of Landlord and, (D) personal property taxes of Tenant or other tenants in the Project shall be excluded from Taxes. If any or all of the Taxes paid hereunder are by law permitted to be paid in installments, notwithstanding how Landlord pays the same, then, for purposes of calculating Operating Costs, such Taxes shall be deemed to have been divided and paid in the maximum number of installments permitted by law, and there shall be included in Operating Costs for each year only such installments as are required by law to be paid within such year, together with interest thereon and on future such installments as provided by law.
C. “ Operating Costs ” shall not include (a) specific costs for any capital repairs, replacements or improvements, except as provided above; (b) expenses for which Landlord is reimbursed or indemnified (either by an insurer, condemner, tenant, warrantor or otherwise) to the extent of funds received by Landlord; (c) expenses incurred in leasing or procuring tenants (including lease commissions, advertising expenses, promotional expenses and expenses of renovating space for tenants); (d) payments for rented equipment, the cost of which would constitute a capital expenditure not permitted pursuant to the foregoing if the equipment were purchased; (e) interest or amortization payments on any mortgages; (f) net basic rents under ground leases; (g) costs representing an amount paid to an affiliate of Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (h) costs specially billed to and paid by specific tenants; (i) salaries and benefits of employees of Landlord and its affiliates above the grade of group manager; (j) fines, penalties or costs resulting solely from Landlord’s default hereunder; (k) legal fees or other professional and consulting fees paid in connection with other tenant leases or the financing or refinancing of the Building; (l) organizational expenses associated with the creation and operation of the entity which constitutes Landlord; (m) cost of repairs or other work occasioned by the exercise of right of eminent domain; (n) depreciation (except as specifically set forth in Section 5.2(A)(h) above); (o) fines, penalties or costs incurred due to violation by Landlord or any tenant of the terms and conditions of any lease; (p) expenses in connection with services or other benefits of a type which Tenant is not entitled to receive under the Lease but which are provided to another tenant or occupant; (q) any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord. There shall be no duplication of costs or reimbursements.
Section 5.3 Gross Up : If the Building is not fully occupied (meaning one-hundred percent (100%) of the Rentable Area of the Building) during any full or fractional year of the Term, components of the actual Operating Costs which vary with the level of occupancy shall be adjusted for such year to an amount which Landlord estimates would have been incurred in Landlord’s reasonable judgment had the Building been ninety five percent (95%) occupied.
ARTICLE 6 — INTENTIONALLY DELETED
ARTICLE 7 — SERVICES OF LANDLORD
Section 7.1 Landlord Services : During the Term, Landlord shall furnish Tenant with the following services: (a) hot and cold water in Building bathrooms and chilled water in Building drinking fountains, if any; (b) use of the Building Systems, such as then existing feeders and risers, to obtain electrical power from the utility supplier sufficient for lighting the Premises and powering office equipment consuming up to seven (7) watts per square foot of Rentable Area of the Premises; (c) heating, ventilating or air-conditioning, as appropriate, to the Premises and the Common Areas of the Project, during Business Hours at such temperatures and in such amounts as customarily and seasonally provided to tenants occupying comparable space in first-class office buildings in the surrounding area; (d) electric lighting for the Common Areas of the Project; (e) passenger elevator service, in common with others, for access to and from the Premises twenty-four (24) hours per day, seven (7) day per week; provided, however, that Landlord shall have the right to limit the number of (but not cease to operate all) elevators to be operated after Business Hours and on Saturdays, Sundays and Holidays; (f) janitorial cleaning services in accordance with the janitorial specifications attached hereto as Exhibit F ; (g) facilities for Tenant’s loading, unloading, delivery and pick-up activities, including access thereto during Business Hours, subject to the Rules and Regulations, the type of facilities, and other limitations of such loading facilities; and (h) replacement, as necessary, of all Building standard lamps and ballasts in Building standard light fixtures within the Premises, with Tenant to pay for all bulbs and ballasts and to purchase such bulbs and ballasts solely from Landlord. All services referred to in this Section 7.1 shall be provided by Landlord and paid for by Tenant as part of Tenant’s Operating Costs Payment. At no time shall use of electricity in the Premises exceed the capacity of existing feeders and risers to or wiring in the Premises. Any risers or wiring to meet Tenant’s excess electrical requirements shall, upon Tenant’s written request, be installed by Landlord, at Tenant’s sole cost, if, in Landlord’s reasonable judgment, the same are necessary and shall not (i) cause permanent damage or injury to the Project, the Building or the Premises, (ii) cause or create a dangerous or hazardous condition, (iii) entail excessive or unreasonable alterations, repairs or expenses or (iv) interfere with or disturb other tenants or occupants of the Building.
Section 7.2 Additional Services : If Tenant requires services, including cleaning services, routinely supplied by Landlord for hours or days in addition to the hours and days specified in Section 7.1 , Landlord shall make reasonable efforts to provide such additional service after reasonable prior request therefor from Tenant, and Tenant shall reimburse Landlord for the cost of such additional service; provided however, that, if any other tenants in the Building served by the equipment providing such additional service to the Premises request that Landlord concurrently provide such service to such other tenants, the cost of Landlord’s providing such additional and concurrent service shall be prorated among all of the tenants requesting such service on the basis of the amount of space used by such tenants or the amount of additional service used by such tenants. Landlord shall have no obligation to provide any additional service to Tenant at any time Tenant is in default under this Lease after applicable notice and cure periods unless Tenant pays to Landlord, in advance, the cost of such additional service. If any machinery or equipment which generates abnormal heat or otherwise creates unusual demands on the air-conditioning or heating system serving the Premises is used in the Premises and if Tenant has not, within five (5) Business Days after demand from Landlord, taken such steps, at Tenant’s expense, as shall be
necessary to cease such adverse affect on the air-conditioning or heating system, Landlord shall have the right to install supplemental air-conditioning or heating units in the Premises, and the full cost of such supplemental units (including the cost of acquisition, installation, operation, use and maintenance thereof) shall be paid by Tenant to Landlord in advance or on demand as Additional Rent.
Section 7.3 Utilities : Landlord shall be responsible for making all necessary arrangements with the public utility or alternative utility service suppliers (“ Suppliers ”) supplying electric or other utility services reasonably necessary for the operation of the Building to the Building for Tenant’s use on the Commencement Date. All costs thereof shall be Operating Costs hereunder. Tenant shall cooperate with Landlord and Suppliers at all times and, as reasonably necessary, shall allow Landlord and the Suppliers reasonable access to the lines, feeders, risers, wiring, pipes, meters and any other machinery within the Premises provided Landlord provides Tenant reasonable notice prior to such entry except in the event of an emergency when no such notice shall be required. Tenant shall be subject to the rules and regulations of the Suppliers of such services and the rules and regulations of any municipal or other governmental authority regulating the business of providing such services. Notwithstanding the foregoing, Landlord may elect not to to supply or contract for the supply of such utility services to the Building, by giving Tenant sixty (60) days notice of same and Tenant shall make all necessary arrangements with the Suppliers supplying electric, gas, telephone, cable or other utility services to the Premises. The Tenant hereby acknowledges and agrees that it has read and understands the notice attached hereto as Exhibit H regarding the Landlord’s agreement with the City of Naperville relating to electricity infrastructure charges applicable to the Project.
Section 7.4 Disruption of Services : Landlord shall in no way be liable or responsible for any loss, damage, or expense that Tenant may sustain or incur by reason of any change, failure, interference, disruption, or defect in the supply or character of the utility services furnished to the Premises, or if the quantity or character of the utility services supplied by the Suppliers is no longer available or suitable for Tenant’s requirements, and no such change, failure, defect, unavailability, or unsuitability shall constitute an actual or constructive eviction, in whole or in part, will entitle Tenant to any abatement or diminution of Rent or relieve Tenant from any of its obligations under this Lease. Should any malfunction of any systems or facilities occur within the Building or should maintenance or alterations of such systems or facilities become necessary, Landlord shall repair the same promptly and with reasonable diligence, and except as otherwise specifically provided herein, Tenant shall have no claim for rebate, abatement of Rent, or damages because of malfunctions or any such interruptions in service. Notwithstanding the foregoing, in the event there is failure, delay or interruption of utility services due to any event covered by rent loss insurance which is not caused by Tenant or its agents, employees, representative, contractors, sublessees, licensors or invitees and which causes the Premises (or any portion thereof) to be untenantable or prohibits access to the Premises, and as a result of either occurrence, Tenant in fact ceases to use the Premises (or any portion thereof) for a period in excess of five (5) consecutive Business Days, then commencing on the sixth (6 th ) consecutive Business Day of such untenantability and non-use, Rent payable by Tenant for the untenantable portion of the Premises shall be abated until the earliest to occur of (a) the date such failure, delay or interruption is remedied, (b) the date the Premises are again tenantable or (c) the date Tenant resumes use of the Premises.
ARTICLE 8 — ASSIGNMENT AND SUBLETTING
Section 8.1 Consent Required : Neither Tenant nor its legal representatives or successors in interest shall, by operation of law or otherwise, assign, mortgage, pledge, encumber or otherwise transfer this Lease or any part hereof, or the interest of Tenant under this Lease, or in any sublease or the rent thereunder without Landlord’s prior consent, which consent may not be unreasonably withheld or delayed. The Premises or any part thereof shall not be sublet, occupied or used for any purpose by anyone other than Tenant, without Tenant’s obtaining in each instance the prior written consent of
Landlord, which consent, subject to the provisions of Section 8.3 below, shall not be unreasonably withheld or delayed. Tenant shall not modify, extend, or amend a sublease previously consented to by Landlord without obtaining Landlord’s prior written consent thereto, which consent, subject to the provisions of Section 8.3 below, shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Landlord’s consent shall not be required for indirect ownership transfers or for Tenant’s subletting or assignment of the Lease to a parent, subsidiary or affiliate of the Tenant, provided that such affiliate subtenant or assignee has the same or greater net worth as the Tenant at the time of the transfer (a “ Permitted Transfer ”).
Section 8.2 Definition of Assignment : An assignment of this Lease shall be deemed to have occurred (a) if in a single transaction or in a series of transactions more than 50% in interest in Tenant, any guarantor of this Lease, or any subtenant (whether stock, partnership interest, membership interest or otherwise) is transferred, diluted, reduced, or otherwise affected with the result that the present holder or owners of Tenant, such guarantor, or such subtenant have less than a 50% interest in Tenant, such guarantor or such subtenant, or (b) if Tenant’s obligations under this Lease are taken over or assumed in consideration of Tenant leasing space in another building. The transfer of the outstanding capital stock of any corporate Tenant, guarantor or subtenant through the “over-the-counter” market or any recognized national securities exchange (other than by persons owning 5% or more of the voting calculation of such 50% interest of clause (a) above) shall not be included in the calculation of such 50% interest in clause (a) above.
Section 8.3 Approval Requests : If Tenant should desire to assign this Lease or sublet the Premises (or any part thereof), Tenant shall give Landlord written notice no later than thirty (30) days in advance of the proposed effective date of any proposed assignment or sublease, specifying (a) the name, current address, and business of the proposed assignee or sublessee, (b) the amount and location of the space within the Premises proposed to be so subleased, (c) the proposed effective date and duration of the assignment or subletting, and (d) the proposed rent or consideration to be paid to Tenant by such assignee or sublessee. Tenant shall promptly supply Landlord with financial statements and other information as Landlord may reasonably request to evaluate the proposed assignment or sublease. Landlord shall have thirty (30) days following receipt of such notice and other information requested by Landlord within which to notify Tenant in writing that Landlord elects: (i) to permit Tenant to assign or sublet such space; provided, however, that, fifty percent (50%) of any proceeds due and owing to Tenant in excess of Tenant’s Rent hereunder from such Subtenant shall be considered Additional Rent owed by Tenant to Landlord (less brokerage commissions, attorneys’ fees and other disbursements reasonably incurred by Tenant for such assignment and subletting if acceptable evidence of such disbursements is delivered to Landlord), and shall be paid by Tenant to Landlord, in the case of excess rent, in the same manner that Tenant pays Base Rent and, in the case of any other consideration, within ten (10) Business Days after receipt thereof by Tenant; or (ii) to refuse the requested consent of Tenant’s assignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Premises. The parties agree that Landlord may reasonably refuse to consent to a subletting if the proposed subtenant is not financially creditworthy, is a governmental authority or agency, an organization or person enjoying sovereign or diplomatic immunity, a medical or dental practice, for storing goods or equipment rather than general office use, or a user that will attract a volume, frequency or type of visitor or employee to the Building which is not consistent with the standards of a high quality office building or that will impose an excessive demand on or use of the facilities or services of the Building, is a prospective tenant to whom Landlord has offered to lease space in the Project; provided, however, that the foregoing are merely examples of reasons for which Landlord may withhold its approval and shall not be deemed exclusive of any permitted reasons for reasonably withholding approval, whether similar or dissimilar to the foregoing examples. It shall also be reasonable for Landlord to refuse to consent to any assignment or subletting if (i) an Event of Default by Tenant then exists under this Lease beyond applicable notice and cure periods, or (ii) such assignment or subletting would cause a default under any other agreement binding upon the
Landlord, including without limitation, another lease in the Building or any Encumbrance, or (iii) any portion of the Building or Premises would likely become subject to additional or different laws as a consequence of the proposed subletting or assignment. If Landlord should fail to notify Tenant in writing of such election within the aforesaid thirty (30) day period, Tenant may send Landlord a second notice specifying that failure by Landlord to respond within thirty (30) days constitutes deemed consent by Landlord. If Landlord should fail to notify Tenant in writing of its election within five (5) days after receipt of such second notice, Landlord shall be deemed to have consented to the proposed action. Whether or not Landlord approves of a proposed assignment or sublet, Tenant agrees to reimburse Landlord as Additional Rent for reasonable and customary legal fees and any other reasonable out-of-pocket costs incurred by Landlord in connection with any proposed assignment or subletting. Tenant shall deliver to Landlord copies of all documents executed in connection with any permitted assignment or subletting, which documents shall be in form and substance reasonably satisfactory to Landlord and which shall require any assignee or subtenant to assume performance of all terms of this Lease to be performed by Tenant. No acceptance by Landlord of any Rent or any other sum of money from any assignee, sublessee or other category of transferee shall be deemed to constitute Landlord’s consent to any assignment, sublease, or transfer. Unless otherwise specifically agreed to in writing by Landlord, no such assignment or sublease shall release Tenant from any of its obligations under this Lease.
Section 8.4 Bankruptcy : Tenant acknowledges that this Lease is a lease of nonresidential real property and therefore agrees that Tenant, as the debtor in possession, or the trustee for Tenant (collectively the “ Trustee ”) in any proceeding under Title 11 of the United State Bankruptcy Code relating to Bankruptcy, as amended (the “ Bankruptcy Code ”), shall not seek or request any extension of time to assume or reject this Lease or to perform any obligations of this Lease which arise from or after the order of relief. The Trustee shall provide the Landlord with thirty (30) days advance written notice of any rejection or abandonment of this Lease. The Trustee shall have the right to assume or assign Tenant’s rights and obligations under this Lease only if the Trustee and such assignee: (a) promptly cures or provides adequate assurance that the Trustee will promptly cure any default under the Lease; (b) compensates or provides adequate assurance that the Trustee will promptly compensate Landlord for any actual pecuniary loss incurred by Landlord as a result of Tenant’s default under this Lease; (c) provides adequate assurance of future performance under the Lease; and (d) provides Landlord with at least thirty (30) days’ advance written notice of such assumption. All payments of Rent required of Tenant under this Lease, whether or not expressly denominated as such in this Lease, shall constitute rent for the purposes of Title 11 of the Bankruptcy Code. No acceptance by Landlord of Rent or any other payments from the Trustee, receiver, assignee, person or other entity shall be construed as the Landlord’s waiver of the need to obtain Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest in this Lease without such consent.
Section 8.5 Assignment by Landlord : The term “Landlord,” as used in this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only the owner or owners, at the time in question, of the fee title to, or a lessee’s interest in a ground lease of, the Land or the Building. In the event of any transfer, assignment or other conveyance or transfers of any such title or interest, Landlord herein named (and in case of any subsequent transfers or conveyances of any such title or interest, the then grantor) shall be automatically freed and relieved from and after the date of such transfer, assignment or conveyance of all liability as respects the performance of any covenants or obligations on the part of Landlord contained in this Lease arising after the date of such transfer and, without further agreement, the transferee of such title or interest shall be deemed to have assumed and agreed to observe and perform any and all obligations of Landlord hereunder, during its ownership of the Project. Landlord may transfer its interest in the Project, or portions thereof on interest therein, with notice to Tenant and such transfer or subsequent transfer shall not be deemed a violation on Landlord’s part of any of the terms of this Lease; provided, however, upon such transfer Landlord shall remain liable to Tenant with respect to the obligations of Landlord set forth in the Lease which arose prior
to the effective date of the transfer unless said obligations were expressly assumed by the transferee at the time of the transfer.
ARTICLE 9 — REPAIRS
Section 9.1 Non-Structural Repairs : Tenant shall perform all maintenance and make all repairs and replacements to the Premises (including the Leasehold Improvements), other than (i) repairs and replacements necessitated by the willful misconduct or negligence of Landlord or its agents, employees, contractors, invitees or licensees to the extent the cost thereof is not collectible under Tenant’s insurance, or, if Tenant is not carrying all of the insurance described in Section 14.1 , to the extent such cost would not be covered by the insurance described in Section 14.1 , if the same were in effect, (ii) maintenance, repairs and replacements to the Building Systems located within the Premises; and (iii) repairs required to provide the services of Landlord described under Article 7 above. Tenant shall also make all repairs and replacements necessitated by damage to the Project (including the Building structure and the Central systems of the Building within the Premises) caused by Tenant or its agents, contractors, invitees and licensees but only to the extent the cost thereof is not collectible under Landlord’s insurance, or, if Landlord is not carrying all of the insurance described in Section 14.2 , to the extent that such cost would not be covered by the insurance described in Section 14.2 if the same were in effect. Amounts payable by Tenant pursuant to this Section 9.1 shall be payable within thirty (30) days after receipt of an invoice therefor from Landlord. Landlord has no obligation and has made no promise to maintain, alter, remodel, improve, repair, decorate, or paint the Premises or any part thereof, except as specifically set forth in this Lease. In no event shall Landlord have any obligation to maintain, repair or replace any furniture, furnishings, fixtures or personal property of Tenant. To the extent Tenant has not made a repair required hereunder within ten (10) Business Days of receipt of Landlord’s notice that such repair is required, Landlord shall have the right to enter the Premises with reasonable notice and make any such repair, the cost of which shall be charged to Tenant as Additional Rent hereunder.
Section 9.2 Structural Repairs : Subject to the provisions of Section 15 hereinbelow, Landlord shall maintain and make all necessary repairs to the foundations, roof, exterior walls, and structural elements of the Building, the electrical, plumbing, heating, ventilation and air-conditioning systems comprising the Building Systems and the Common Areas of the Building, except that the cost of performing any of said maintenance or repairs, whether to the Premises or to the Building, caused by the negligence of Tenant, its employees, agents, servants, licensees, subtenants, contractors or invitees, shall be paid by Tenant.
ARTICLE 10 — ALTERATIONS
Section 10.1 Landlord Consent Required : Tenant shall not at any time during the Term make any alterations, including Specialty Alterations (as defined below) to the Premises, the total cost of which exceeds $10,000, without first obtaining Landlord’s written consent thereto, which consent of Landlord shall not be unreasonably withheld or delayed; provided, however, that Landlord shall not be deemed unreasonable by refusing to consent to any alterations which are visible from the exterior of the Building or the Project, which will or are likely to cause any weakening of any part of the structure of the Premises, the Building or the Project or which will or are likely to cause damage or disruption to the Building Systems or which are prohibited by any underlying ground lease or mortgage. “ Specialty Alterations ” are defined as alterations consisting of kitchens, executive bathrooms, raised computer floors, computer, telephone and telecommunications wiring and cabling in the Premises and Building, computer installations, supplemental air conditioning systems, safe deposit boxes, vaults, libraries or file rooms requiring reinforcement of floors, internal staircases, conveyors and other alterations of a similar character which Landlord designates as Specialty Alterations by written notice delivered to Tenant when Landlord approves Tenant’s plans containing such alterations. Should Tenant desire to make any
alterations to the Premises, Tenant shall submit all plans and specifications for such proposed alterations to Landlord for Landlord’s review before Tenant allows any such work to commence, and Landlord shall promptly approve or disapprove such plans and specifications for any of the reasons set forth in this Section 10.1 or for any other reason reasonably deemed sufficient by Landlord. Tenant shall select and use only contractors, subcontractors or other repair personnel which have been approved by Landlord; provided, however, if the alteration affects the Building Systems then Tenant must use the contractors, subcontractors or other repair personnel from those listed on Landlord’s approved list maintained by Landlord in the Project management office. Upon Tenant’s receipt of written approval from Landlord and any required approval of any mortgagee or lessor of Landlord, and upon Tenant’s payment to Landlord of the reasonable out of pocket costs incurred by Landlord for such review and approval (including a reasonable fee for the actual time spent by employees of Landlord), Tenant shall have the right to proceed with the construction of all approved alterations, but only so long as such alterations are in strict compliance with the plans and specifications so approved by Landlord and with the provisions of this Article 10 . All alterations shall be made at Tenant’s sole cost and expense. If Tenant elects to have Landlord perform an alteration, Tenant shall pay Landlord all costs incurred in connection therewith. If Tenant’s contractor performs such work, there shall be a fee of five percent (5%) of the actual costs of such work for Landlord’s agent or manager in supervising and coordinating such work and to cover overhead. In no event, however, shall anyone other than Landlord or Landlord’s employees or representatives perform work to be done which affects the Building Systems.
Section 10.2 Construction Covenants : All construction, alterations, including Specialty Alterations, and repair work done by or for Tenant pursuant to any provision of this Lease shall (a) be performed in such a manner as to maintain harmonious labor relations; (b) not adversely affect the safety of the Project, the Building or the Premises or the systems thereof and not affect the Building Systems of the Building; (c) comply with all building, safety, fire, plumbing, electrical, and other codes and governmental and insurance requirements; (d) not result in any usage in excess of building standard water, electricity, gas, or other utilities or of heating, ventilating or air-conditioning (either during or after such work) unless prior written arrangements satisfactory to Landlord are made with respect thereto; (e) be completed promptly and in a good and workmanlike manner; and (f) not disturb Landlord or other tenants in the Building. After completion of any alterations to the Premises, Tenant will deliver to Landlord a copy of “as built” plans and specifications depicting and describing such alterations.
Section 10.3 Removal of Improvements : Upon expiration or earlier termination of this Lease, all leasehold improvements, alterations, including Specialty Alterations, and other physical additions made to or installed by or for Tenant in the Premises shall be and remain Landlord’s property (except for Tenant’s movable fixtures, telephone and other equipment, computer systems, trade fixtures, furniture, furnishings and other items of personal property which are removable without damage to the Premises or the Building (“ Tenant’s Property ”)) and shall not be removed without Landlord’s written consent. Notwithstanding the foregoing, Landlord shall have the right to condition its approval of any alteration to the Premises upon Tenant’s removal of all or a portion of such improvements prior to the end of the Term of this Lease. Tenant agrees to remove, at its sole cost and expense, all of Tenant’s Property, and, if directed at the time Landlord approves same (in response to Tenant’s written request to do so upon submittal to Landlord of the plans for such alterations for approval) or if otherwise permitted to do so by Landlord in writing, all, or any part of, the leasehold improvements, alterations, including Specialty Alterations, and other physical additions made by Tenant to the Premises, on or before the Expiration Date or any earlier date of termination of this Lease. Tenant shall repair (which shall include closing up any slab penetrations in the Premises in a good and workmanlike manner), or promptly reimburse Landlord for the cost of repairing, closing any such slab penetrations and all damage done to the Premises or the Building by such removal. Tenant shall notify Landlord of its intention to effect the closing of any such slab penetrations at least 30 days prior to commencing such closings. Any leasehold improvements, alterations, including Specialty Alterations, or physical additions made by Tenant which Landlord does
not direct or permit Tenant to remove at any time during or at the end of the Term shall become the property of Landlord at the end of the Term without any payment to Tenant. If Tenant fails to remove any of Tenant’s Property by the Expiration Date or any sooner date of termination of the Lease or, if Tenant fails to remove any leasehold improvements, alterations, including Specialty Alterations, and other physical additions made by Tenant to the Premises which Landlord has in writing directed Tenant to remove, Landlord shall have the right, on the tenth (10th) day after Landlord’s delivery of written notice to Tenant to deem such property abandoned by Tenant and to remove, store, sell, discard or otherwise deal with or dispose of such abandoned property in a commercially reasonable manner. Tenant shall be liable for all costs of such disposition of Tenant’s abandoned property, and Landlord shall have no liability to Tenant in any respect regarding such property of Tenant. The provisions of this Section 10.3 shall survive the expiration or any earlier termination of this Lease.
ARTICLE 11 — LIENS
Section 11.1 Prohibition of Liens : Tenant shall keep the Project, the Building and the Premises and Landlord’s interest therein free from any liens arising from any work performed, materials furnished, or obligations incurred by, or on behalf of Tenant. Notice is hereby given that neither Landlord nor any mortgagee or lessor of Landlord shall be liable for any labor or materials furnished to Tenant. If any lien is filed for such work or materials, such lien shall encumber only Tenant’s interest in leasehold improvements on the Premises. Within ten (10) days after Tenant learns of the filing of any such lien, Tenant shall notify Landlord of such lien and shall either discharge and cancel such lien of record or post a bond sufficient under the laws of the State of Illinois to cover the amount of the lien claim plus any penalties, interest, attorneys’ fees, court costs, and other legal expenses in connection with such lien. If Tenant fails to so discharge or bond such lien within ten (10) calendar days after written demand from Landlord, Landlord shall have the right, at Landlord’s option, to pay the full amount of such lien without inquiry into the validity thereof, and Landlord shall be promptly reimbursed by Tenant, as Additional Rent, for all amounts so paid by Landlord, including expenses, interest, and reasonable attorneys’ fees.
ARTICLE 12 — USE AND COMPLIANCE WITH LAWS
Section 12.1 Use : The Premises shall be used only for the uses specifically set forth in Section 1.1 and for no other purposes whatsoever. Tenant shall use and maintain the Premises in a clean, careful, safe, lawful and proper manner and shall not allow within the Premises, any offensive noise, odor, conduct or private or public nuisance or permit Tenant’s employees, agents, licensees or invitees to create a public or private nuisance or act in a disorderly manner within the Building or in the Project. Any statement as to the particular nature of the business to be conducted by Tenant in the Premises and uses to be made thereof by Tenant as set forth in Section 1.1 hereof shall not constitute a representation or warranty by Landlord that such business or uses are lawful or permissible under any certificate of occupancy for the Premises or the Building or are otherwise permitted by law.
Section 12.2 Complaince with Law : Tenant shall, at Tenant’s sole expense, (a) comply with all laws, orders, ordinances, and regulations of federal, state, county, and municipal authorities having jurisdiction over the Premises, (b) comply with any directive, order, Encumbrance or citation made pursuant to law by any public officer requiring abatement of any nuisance or which imposes upon Landlord or Tenant any duty or obligation arising from Tenant’s occupancy or use of the Premises or from conditions which have been created by or at the request or insistence of Tenant, or required by reason of a breach of any of Tenant’s obligations hereunder or by or through other fault of Tenant, including, without limitation, the Westings Corporate Community Association covenants and guidelines and the CityGate Centre Association covenants and guidelines, (c) comply with all insurance requirements applicable to the Premises, and (d) indemnify and hold Landlord harmless from any loss, cost, claim or expense which Landlord incurs or suffers by reason of Tenant’s failure to comply with its
obligations under clauses (a), (b) or (c) above. If Tenant receives notice of any such directive, order citation or of any violation of any law, order, ordinance, regulation or any insurance requirement, Tenant shall promptly notify Landlord in writing of such alleged violation and furnish Landlord with a copy of such notice.
Section 12.3 Hazardous Substances : Except for Hazardous Substances (as hereinafter defined) which are a part of or contained in customary office supplies and/or equipment, and then only if used, stored and disposed of in accordance with the manufacturer’s instructions and all applicable laws, codes, regulations, orders and ordinances; Tenant shall not, nor shall Tenant permit any third party, to use, store, generate, treat, release or dispose at, on or under the Premises, Building or Land, any Hazardous Substance, and any such action shall constitute a default under this Lease. Tenant shall indemnify, defend and hold Landlord, any managing agents and leasing agents of the Building, and their respective agents, partners, officers, directors and employees, harmless from all damages, costs, losses, expenses (including, but not limited to, attorneys’ fees, consulting fees and engineers’ fees) arising from or attributable to any breach by Tenant of the covenants contained in this Section 12.3 . Tenant’s indemnification obligations hereunder shall survive the termination or expiration of this Lease. As used herein, the term “ Hazardous Substance ” shall mean any substance, material, waste, gas or particulate matter which is regulated by any local governmental authority, the State of Illinois, or the United States Government, including, but not limited to (i) any material or substance which is defined or designated as a “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” or “restricted hazardous waste” under any provision of Illinois or federal law; (ii) oil or petroleum; (iii) asbestos and asbestos-containing materials; (iv) polychlorinated biphenyls; and (v) radioactive material.
ARTICLE 13 — DEFAULT AND REMEDIES
Section 13.1 Events of Default : The occurrence of any one or more of the following events shall constitute an “ Event of Default ” of Tenant under this Lease: (a) if Tenant fails to pay any Rent hereunder and such failure continues for three (3) Business Days after Tenant receives written notice of such failure; (b) if Tenant permits to be done anything which creates a lien upon the Premises and fails to discharge or bond such lien after a thirty (30) day cure period, or post such security with Landlord as is required by Article 11 ; (c) if Tenant violates the provisions of Article 8 by attempting to make an unpermitted assignment or sublease; (d) if Tenant fails to maintain in force all policies of insurance required by this Lease and such failure shall continue for more than ten (10) days after Landlord gives Tenant notice of such failure; (e) if any petition is filed by or against Tenant or any guarantor of this Lease under any present or future section or chapter of the Bankruptcy Code, or under any similar law or statute of the United States or any state thereof (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of commencement), or if any order for relief shall be entered against Tenant or any guarantor of this Lease in any such proceedings; (f) if Tenant or any guarantor of this Lease becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors; (g) if a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the assets of Tenant or of any guarantor of this Lease, which appointment is not vacated within sixty (60) days following the date of such appointment; or (h) if Tenant fails to perform or observe any other terms of this Lease and such failure shall continue for more than thirty (30) days after Landlord gives Tenant written notice of such failure, unless such failure cannot be reasonably cured in said thirty (30) day period, in which case it shall not be considered an Event of Default as long as Tenant commences said cure within the thirty (30) day period and diligently and continuously pursues and completes the same; provided, however, that in any event such extended cure period shall not exceed ninety (90) days). Notwithstanding anything contained herein to the contrary, if Tenant’s failure to perform or observe any terms of this Lease involves an emergency, a hazardous situation or threatens life or safety then Tenant shall cure said default immediately upon becoming aware of said failure.
Section 13.2 Remedies : Upon the occurrence of any Event of Default, Landlord shall have the right, at Landlord’s option, to elect to do any one or more of the following without further notice or demand to Tenant: (a) terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and, if Tenant fails to so surrender, Landlord shall have the right, without notice or demand, to enter upon and take possession of the Premises and to expel or remove Tenant and its effects without being liable for prosecution or any claim for damages therefor; and Tenant shall, and hereby agrees to, indemnify Landlord for all loss and damage which Landlord suffers by reason of such termination, including damages in an amount equal to the total of (1) the costs of recovering the Premises and all other expenses incurred by Landlord in connection with Tenant’s default; (2) the unpaid Rent earned as of the date of termination, plus interest at the Interest Rate; (3) the total Rent which Landlord would have received under this Lease for the remainder of the Term, but discounted to the then present value at a rate of eight percent (8%) per annum, minus the fair market rental value on a net basis of the balance of the Term as of the time of such default, discounted to the then present value at a rate of eight percent (8%) per annum (but in no event shall the result thereof be less than zero for the purposes of this Section); and (4) all other sums of money and damages owing by Tenant to Landlord; or (b) enter upon and take possession of the Premises without terminating this Lease and without being liable to prosecution or any claim for damages therefor, and, if Landlord elects, relet the Premises on such terms as Landlord deems advisable, in which event Tenant shall pay to Landlord on demand the cost of repossession, renovating, repairing and altering the Premises for a new tenant or tenants and any deficiency between the Rent payable hereunder and the rent paid under such reletting; provided, however, that Tenant shall not be entitled to any excess payments received by Landlord from such reletting. Landlord’s failure to relet the Premises shall not release or affect Tenant’s liability for Rent or for damages; or (c) enter the Premises without terminating this Lease and without being liable for prosecution or any claim for damages therefor and maintain the Premises and repair or replace any damage thereto or do anything for which Tenant is responsible hereunder. Tenant shall reimburse Landlord immediately upon demand for any reasonable expenses which Landlord incurs in thus effecting Tenant’s compliance under this Lease, and Landlord shall not be liable to Tenant for any damages with respect thereto.
Section 13.3 No Implied Acceptance of Surrender : No agreement to accept a surrender of the Premises and no act or omission by Landlord or Landlord’s agents during the Term shall constitute an acceptance or surrender of the Premises unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant. No provision of this Lease shall be construed as an obligation upon Landlord to mitigate Landlord’s damages under the Lease, except to the extent required by applicable law.
Section 13.4 No Waiver : No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing and signed by Landlord. Landlord’s acceptance of Rent following an Event of Default hereunder shall not be construed as a waiver of such Event of Default. No custom or practice which may grow up between the parties in connection with the terms of this Lease shall be construed to waive or lessen Landlord’s right to insist upon strict performance of the terms of this Lease, without a written notice thereof to Tenant from Landlord.
Section 13.5 Rights Cumulative : The rights granted to Landlord in this Article 13 shall be cumulative of every other right or remedy provided in this Lease or which Landlord may otherwise have at law or in equity or by statute, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to Landlord by reason of any Event of Default under this Lease. Tenant agrees to pay to Landlord all costs and expenses incurred by Landlord in connection with an Event
of Default and the enforcement of this Lease, including all attorneys’ fees incurred in connection with the collection of any sums due hereunder or the enforcement of any right or remedy of Landlord.
ARTICLE 14 — INSURANCE
Section 14.1 Tenant Insurance Requirements : Tenant, at its sole expense, shall obtain and keep in force during the Term the following insurance: (a) “All Risk” insurance insuring the Leasehold Improvements, Tenant’s interest in the Premises and all property located in the Premises, including Tenant’s Property, Specialty Alterations, supplies, leasehold improvements and alterations (collectively, “ Tenant’s Premises Property ”), in an amount equal to the full replacement value, it being understood that no lack or inadequacy of insurance by Tenant shall in any event make Landlord subject to any claim by virtue of any theft of or loss or damage to any uninsured or inadequately insured property; (b) Business Interruption insurance in an amount that will reimburse Tenant for direct or indirect loss of earnings attributable to all perils insured against under this Section 14.1 or attributable to the prevention of access to the Premises by civil authority; and sufficient to reimburse Tenant for Rent in the event of a casualty to, or temporary taking of, the Building or the Premises; (c) Commercial General Public Liability insurance including personal injury, bodily injury, broad form property damage, products and completed operations liability, contractual liability, coverage to include contractors and subcontractors, with a cross liability clause and a severability of interests clause, in limits not less than $3,000,000.00, inclusive, per occurrence; (d) Workers’ Compensation, in form and amount as required by applicable law, including Employer’s Liability insurance of not less than $1,000,000.00; and (e) if Tenant performs any repairs or alterations in the Premises, during the period such repairs or alterations are being performed, Builder’s Risk insurance on an “All Risk” basis (including collapse) on a completed value (non-reporting) form for full replacement value covering all work incorporated in the Building and all materials and equipment in or about the Premises; and (f) any other form or forms of insurance or any changes or endorsements to the insurance required herein as Landlord, or any mortgagee or lessor of Landlord, may reasonably require, from time to time, in form or in amount; provided that such additional insurance requirements shall be consistent with the requirements imposed on other tenants at the Building who are similar in size to Tenant and who use their premises for similar uses. Tenant shall have the right to include the insurance required by this Section 14.1 under Tenant’s policies of “blanket insurance,” provided that no other loss which may also be insured by such blanket insurance shall affect the insurance coverages required hereby and further provided that Tenant delivers to Landlord a certificate specifically stating that such coverages apply to Landlord, the Premises and the Project. All such policies of insurance and certificates thereof shall name Tenant as named insured thereunder and shall name Landlord and all mortgagees and lessors of Landlord of which Tenant has been notified, as additional insureds, all as their respective interest may appear. All such policies or certificates shall be issued by insurers reasonably acceptable to Landlord and in form reasonably satisfactory to Landlord. Tenant shall deliver to Landlord certificates by the Commencement Date and, with respect to renewals of such policies, not later than ten (10) days prior to the end of the expiring term of coverage. All policies of insurance shall be primary and Tenant shall not carry any separate or additional insurance concurrent in form or requiring contribution in the event of any loss or damage with any insurance maintained by Landlord. All such policies and certificates shall contain an agreement by the insurers that the policies will not be invalidated as they affect the interests of Landlord and Landlord’s mortgagees by reason of any breach or violation of warranties, representations, declarations or conditions contained in the policies and that the insurers shall notify Landlord and any mortgagee or lessor of Landlord in writing, by Registered U.S. mail, return receipt requested, not less than thirty (30) days before any material reduction in coverage, cancellation, including cancellation for nonpayment of premium (10 day notice) or other termination thereof and shall include a clause or endorsement denying the insurer any rights of subrogation against Landlord. Landlord represents that prior to execution of this Lease, Landlord has reviewed and approved Tenant’s form of insurance for the Premises as required by this Section. The foregoing representation shall not affect Landlord’s rights under Subsection 14.1(f) above.
Section 14.2 Landlord Insurance Requirements : Landlord shall insure the Building against damage with casualty and commercial general public liability insurance, all in such amounts and with such deductible as Landlord reasonably deems appropriate provided such coverages and amounts shall be consistent with insurance maintained by other landlords in similar office buildings in the Naperville, Illinois area. Such insurance shall include “All Risk” property insurance on the Project (exclusive of leasehold improvements) against damages or loss in an amount equal to the full replacement value. Notwithstanding any contribution by Tenant to the cost of insurance premiums, as provided hereinabove, Landlord shall not be required to carry insurance of any kind on Tenant’s Premises Property, and Tenant hereby agrees that Tenant shall have no right to receive any proceeds from any insurance policies carried by Landlord.
Section 14.3 Negative Covenant : Tenant shall not conduct or knowingly permit to be conducted in the Premises any activity, or place any equipment in or about the Premises or the Building, which will invalidate the insurance coverage in effect or increase the rate of “All Risk” property insurance or other insurance on the Premises or the Building, and Tenant shall comply with all requirements and regulations of Landlord’s casualty and liability insurer. If any invalidation of coverage or increase in the rate of property insurance or other insurance occurs or is threatened by any insurance company due to any act or omission by Tenant, or its agents, employees, representatives, or contractors, such statement or threat shall be conclusive evidence that the increase in such rate is due to such act of Tenant or the contents or equipment in or about the Premises, and, as a result thereof, Tenant shall be liable for such increase and shall be considered Additional Rent payable with the next monthly installment of Base Rent due under this Lease. Notwithstanding the foregoing, if the insurer is threatening invalidation of coverage or an increase in rate, Landlord shall deliver written notice of such threatened invalidation or increase in rate to Tenant promptly upon Landlord becoming aware of same and Tenant shall immediately cease all actions which form the basis of the threatened invalidation or increase in coverage. In no event shall Tenant introduce or permit to be kept on the Premises or brought into the Building any dangerous, noxious, radioactive or explosive substance.
Section 14.4 Waiver of Subrogation : Landlord and Tenant each hereby waive any right of subrogation and right of recovery or cause of action for injury or loss (i) to the extent that such injury or loss is covered by fire, extended coverage, “All Risk” or similar policies covering real property or personal property (or which would have been covered if Tenant or Landlord, as the case may be, was carrying the insurance required by this Lease) and (ii) including death or disease to respective employees of either as covered by Workers’ Compensation (or would have been covered if Tenant or Landlord, as the case may be, was carrying the insurance required by this Lease). Said waivers shall be in addition to, and not in limitation or derogation or, any other waiver or release contained in this Lease. Written notice of the terms of the above mutual waivers shall be given to the insurance carriers of Landlord and Tenant if necessary to ensure the enforcement of said