OFFICE SPACE LEASE
by and between
NATIONAL OFFICE PARTNERS LIMITED PARTNERSHIP
as Landlord,
and
NEW CENTURY MORTGAGE CORPORATION,
as Tenant
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
SCHEDULE .................................................................. 1
1. DEMISE AND TERM ....................................................... 3
2. RENT .................................................................. 3
A. Definitions ....................................................... 3
B. Components of Rent ................................................ 5
C. Payment of Rent ................................................... 6
D. Allocation of Rent Abatement for Tax Purposes ..................... 8
3. USE ................................................................... 8
4. CONDITION OF PREMISES ................................................. 8
5. BUILDING SERVICES ..................................................... 8
A. Basic Services .................................................... 8
B. Electricity ....................................................... 9
C. Telephones ........................................................ 9
D. Additional Services ............................................... 9
E. Failure or Delay in Furnishing Services ........................... 10
6. RULES AND REGULATIONS ................................................. 10
7. CERTAIN RIGHTS RESERVED TO LANDLORD ................................... 10
8. MAINTENANCE AND REPAIRS ............................................... 11
9. ALTERATIONS ........................................................... 11
A. Requirements ...................................................... 11
B. Liens ............................................................. 12
10. INDEMNIFICATION AND INSURANCE ......................................... 13
A. Damage or Injury .................................................. 13
B. Insurance Coverages and Amounts ................................... 13
C. Insurance Requirements ............................................ 14
D. Waiver of Subrogation ............................................. 14
E. Landlord's Insurance .............................................. 15
11. FIRE OR OTHER CASUALTY ................................................ 15
A. Destruction of the Building ....................................... 15
B. Destruction of the Premises ....................................... 15
C. Repair by Tenant .................................................. 17
D. Untenantability ................................................... 17
i
E. Shell and Core .................................................... 17
12. CONDEMNATION .......................................................... 17
13. ASSIGNMENT AND SUBLETTING.............................................. 18
A. Landlord's Consent ................................................ 18
B. Standards for Consent ............................................. 18
C. Recapture ......................................................... 19
14. SURRENDER ............................................................. 20
15. DEFAULTS AND REMEDIES ................................................. 20
A. Default ........................................................... 20
B. Right of Re-Entry ................................................. 20
C. Termination of Right to Possession ................................ 21
D. Termination of Lease .............................................. 21
E. Other Remedies .................................................... 21
F. Bankruptcy ........................................................ 21
G. Waivers of Jury Trial and Certain Damages ......................... 22
H. Venue ............................................................. 22
16. HOLDING OVER .......................................................... 22
17. [intentionally omitted] ............................................... 22
18. [intentionally omitted] ............................................... 22
19. ESTOPPEL CERTIFICATE .................................................. 22
20. SUBORDINATION ......................................................... 23
21. QUIET ENJOYMENT ....................................................... 24
22. BROKER ................................................................ 24
23. NOTICES ............................................................... 24
24. MISCELLANEOUS ......................................................... 25
A. Successors and Assigns ............................................ 25
B. Entire Agreement .................................................. 25
C. Time of Essence ................................................... 25
D. Execution and Delivery ............................................ 25
E. Severability ...................................................... 25
F. Governing Law ..................................................... 25
G. Attorneys' Fees ................................................... 25
▇. ▇▇▇▇▇ in Possession ............................................... 25
I. Joint and Several Liability ....................................... 26
ii
J. Force Majeure ..................................................... 26
K. Captions .......................................................... 26
L. No Waiver ......................................................... 26
M. Hazardous Materials ............................................... 26
N. Parking ........................................................... 27
O. Limitation of Liability ........................................... 28
25. RIGHT OF REFUSAL ...................................................... 28
A. Landlord's Refusal Notice ......................................... 28
B. Tenant's Exercise ................................................. 29
C. Conditions ........................................................ 29
D. Delivery of Possession ............................................ 29
E. Terms ............................................................. 30
F. Confirmation ...................................................... 30
26. RIGHT OF FIRST OFFER .................................................. 30
27. RIGHT TO TERMINATE .................................................... 30
28. RIGHT TO EXTEND ....................................................... 31
A. Option Period ..................................................... 31
B. Market Rate of Base Rent .......................................... 31
C. Arbitration ....................................................... 32
Exhibits:
A. Floor Plan
B. Workletter
C. Rules and Regulations
D. Refusal Space
E. First Offer Space
iii
Exhibit 10.11
OFFICE SPACE LEASE
THIS OFFICE SPACE LEASE ("Lease") is made as of the _______ day of
________________, 2002, between NATIONAL OFFICE PARTNERS LIMITED PARTNERSHIP
("Landlord"), and NEW CENTURY MORTGAGE CORPORATION, a California corporation
("Tenant"), for space in the building commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (such building, together with the land upon which it is
situated and related common areas, including sidewalks, parking areas and
landscaped areas, being herein referred to as the "Building"). The Building is
situated in a development commonly known as "The Chancellory" (the
"Development") as more fully described in the Declaration (as hereinafter
defined). The following schedule (the "Schedule") sets forth certain basic terms
of this Lease:
SCHEDULE
1. Premises - Suite Number: Suite 1200, as depicted on Exhibit A attached hereto
2. Commencement Date: the earlier to occur of (a) the date Tenant first occupies the Premises
for the conduct of business or (b) the date the Work (as defined in the
Workletter attached hereto as Exhibit B (the "Workletter") is
substantially complete (as defined in the Workletter).
Rent Commencement Date: the date that is eight (8) months following the Commencement Date
3. Expiration Date: the date that is the day before the 5th anniversary of the Rent
Commencement Date; provided, however, that if said date is not the last
day of a calendar month, then the Expiration Date shall be the last day
of the calendar month in which such date occurs.
4. Rentable Square Feet of the Premises: 23,416 square feet
5. Rentable Square Feet of the Building: 525,422 square feet
E-1
6. Base Rent:
----------------------------------------------------------------------------
Monthly Annual
Period Base Rent Base Rent
----------------------------------------------------------------------------
From the Commencement Date to the day $0 $0
before the Rent Commencement Date
----------------------------------------------------------------------------
from the Rent Commencement Date to the day $46,344.17 N/A
before the 1st anniversary of the
Commencement Date
----------------------------------------------------------------------------
from the 1st anniversary of the $47,319.83 $567,838.00
Commencement Date to the day before the 2nd
anniversary of the Commencement Date
----------------------------------------------------------------------------
from the 2nd anniversary of the $48,295.50 $579,546.00
Commencement Date to the day before the 3rd
anniversary of the Commencement Date
----------------------------------------------------------------------------
from the 3rd anniversary of the $49,271.17 $591,254.00
Commencement Date to the day before the 4th
anniversary of the Commencement Date
----------------------------------------------------------------------------
from the 4th anniversary of the $50,246.83 $602,962.00
Commencement Date to the day before the 5th
anniversary of the Commencement Date
----------------------------------------------------------------------------
from the 5th anniversary of the $51,222.50 $614,670.00
Commencement Date to the Expiration Date
----------------------------------------------------------------------------
7. Tenant's Proportionate Share: 4.457%
8. [intentionally omitted]
9. Base Year: the calendar year 2002
10. [intentionally omitted]
E-2
11. Broker(s): ▇▇▇▇▇ Interests Limited Partnership
and ▇▇▇▇▇▇▇ & Wakefield
12. [intentionally omitted]
13. Exhibits:
A. Floor Plan
B. Workletter
C. Rules and Regulations
D. Refusal Space
E. First Offer Space
1. DEMISE AND TERM. Landlord leases to Tenant and Tenant leases from
Landlord the premises (the "Premises") described in Item 1 of the Schedule and
shown on the plan attached hereto as Exhibit A, subject to the covenants and
conditions set forth in this Lease, for a term (the "Term") commencing on the
date (the "Commencement Date") described in Item 2 of the Schedule and expiring
on the date (the "Expiration Date") described in Item 3 of the Schedule, unless
terminated earlier as otherwise provided in this Lease.
2. RENT
A. Definitions. For purposes of this Lease, the following terms shall
have the following meanings:
(i) "Base Year" shall mean the year set forth in Item 9 of the
Schedule.
(ii) [intentionally omitted]
(iii)[intentionally omitted]
(iv) "Expenses" shall mean any and all expenses, costs and
disbursements (other than Taxes) of any kind and nature whatsoever
incurred by Landlord in connection with the ownership, leasing,
management, maintenance, operation and repair of the Building
(including, without limitation, the costs of maintaining and repairing
parking lots, parking structures and easements, property management
fees, increased interest costs as specified below, salaries, fringe
benefits and related costs, insurance costs of every kind and nature,
heating and air conditioning costs, common area utility costs, sewer
and water charges, the costs of routine repairs, maintenance and
decorating and the Building's share of costs and expenses of the
Development) which Landlord shall pay or become obligated to pay in
respect of a calendar year (regardless of when such Expenses were
incurred), except the following: (i) costs of alterations of tenants'
premises; (ii) costs of capital improvements and costs of curing
construction defects; (iii) depreciation; (iv) interest and principal
payments on mortgages, any rental payments on any ground lease (except
for rental payments which constitute
E-3
reimbursement for Taxes and Expenses) and other debt costs; (v) real
estate brokers' leasing commissions or compensation; (vi) any cost or
expenditure (or portion thereof) for which Landlord is reimbursed,
whether by insurance proceeds, condemnation award, warranty payments
or otherwise, (vii) cost of any service furnished to any other
occupant of the Building which Landlord does not make available to
Tenant hereunder; (viii) cost of correcting any violations of
applicable governmental laws and regulations (including applicable
requirements of the Americans with Disabilities Act and including Laws
(as defined in Section 24.M(iv) below)) in existence as of the date of
this Lease; (ix) costs incurred in connection with the sale,
financing, refinancing, mortgaging, selling or change of ownership of
the Building, including brokerage commissions, attorneys' and
accountants' fees, closing costs, title insurance premium, transfer
taxes and interest charges; (x) wages, salaries and benefits for
off-site employees, except to the extent such employees provide
services benefiting all occupants of the Building and such costs of
off-site employees are competitive and consistent with costs that
would be incurred if such services were provided by third party
unrelated entities; (xi) cost and expenses, including legal and
accounting fees, associated with the operation of the business of the
entity which is the Landlord, such as those associated with internal
accounting and legal matters and the sale or mortgage of the Building;
(xii) attorneys' fees, costs, disbursements and other expenses
incurred in enforcing the provisions of any lease for space in the
Building (except for reasonable attorneys' fees in connection with
enforcing rules and regulations) or attorneys' fees, costs,
disbursements and other expenses incurred in connection with
negotiations or disputes with management agents, purchasers or
mortgagees of the Building; (xiii) allowances, concessions and other
costs and expenses incurred in completing, fixturing, furnishing,
renovating or otherwise improving, decorating or redecorating leasable
space for tenants (including Tenant), prospective tenants or other
occupants or prospective occupants of the Building, or vacant,
leasable space in the Building; (xiv) costs, fines, interest,
penalties, legal fees or costs of litigation incurred due to late
payments of taxes, utility bills and other expenses; (xv) all amounts
which would otherwise be included in Expenses which are paid to any
affiliate or subsidiary of Landlord, or any representative, employee
or agent of same, to the extent the costs of such services exceed the
competitive rates for similar services of comparable quality rendered
by persons or entities of similar skill, competence and experience;
and (xvi) expenses directly resulting from the gross negligence or
willful misconduct of Landlord or Landlord's authorized agents, other
than the costs of minor repairs equivalent to those normally
undertaken by Landlord whether or not resulting from such gross
negligence or willful misconduct. Notwithstanding anything contained
herein to the contrary, depreciation of any capital improvements made
after the date of this Lease which are primarily intended in good
faith to reduce Expenses or which are required under any governmental
laws, regulations, or ordinances which were not applicable to the
Building at the time it was constructed, shall be included in
Expenses. The cost of such capital improvements shall be amortized
over the useful life of such
E-4
improvement as reasonably determined by Landlord, with interest on the
undepreciated cost of any such improvement (at the prevailing
construction loan rate available to Landlord on the date the cost of
such improvement was incurred). If Landlord elects to self insure,
insure with a deductible in excess of $1,000 or obtain insurance
coverage in which the premium fluctuates in proportion to losses
incurred, then Landlord shall estimate the amount of premium that
Landlord would have been required to pay to obtain insurance coverage
(or insurance coverage without such provision) with a recognized
carrier and such estimated amount shall be deemed to be an Expenses.
Landlord may, in a reasonable manner, allocate insurance premiums for
so-called "blanket" insurance policies which insure other properties
as well as the Building and said allocated amount shall be deemed to
be an Expenses.
(v) "Rent" shall mean Base Rent, Adjustment Rent and any other
sums or charges due by Tenant hereunder.
(vi) "Taxes" shall mean all taxes, assessments and fees levied
upon the Building, the property of Landlord located therein or the
rents collected therefrom, by any governmental entity based upon the
ownership, leasing, renting or operation of the Building, including
all costs and expenses of protesting any such taxes, assessments or
fees. Taxes shall not include any net income, capital stock,
succession, transfer, franchise, gift, estate or inheritance taxes;
provided, however, if at any time during the Term, a tax or excise on
income is levied or assessed by any governmental entity, in lieu of or
as a substitute for, in whole or in part, real estate taxes or other
ad valorem taxes, such tax shall constitute and be included in Taxes.
For the purpose of determining Taxes for any given year, the amount to
be included for such year shall be Taxes which are assessed or become
a lien during such year rather than Taxes which are due for payment or
paid during such year.
(vii) "Tenant's Proportionate Share" shall mean the percentage
set forth in Item 7 of the Schedule which has been determined by
dividing the Rentable Square Feet of the Premises by the Rentable
Square Feet of the Building. Landlord and Tenant agree that the
Rentable Square Feet of the Premises and the Rentable Square Feet of
the Building set forth in Items 4 and 5, respectively, of the Schedule
shall not be modified as a result of any remeasurement of the Premises
or Building and shall only be modified, and accordingly, Tenant's
Proportionate Share shall only be modified, in the event of a physical
change in the square footage of the Premises or Building, for example
if resulting from a fire or other casualty or condemnation.
B. Components of Rent. Tenant agrees to pay the following amounts to
Landlord at the office of the Building or at such other place as Landlord
designates:
(i) Base rent ("Base Rent") to be paid in monthly installments in
the amount set forth in Item 6 of the Schedule in advance on or before
the first day of
E-5
each month of the Term, without demand, except that Tenant shall pay
the first month's Base Rent upon execution of this Lease.
(ii) Adjustment rent ("Adjustment Rent") in an amount equal to
Tenant's Proportionate Share of (a) Expenses for any calendar year
which exceed Expenses for the Base Year and (b) Taxes for any calendar
year which exceed Taxes for the Base Year. Prior to each calendar
year, or as soon as reasonably possible (but in any event within one
hundred twenty (120) days after the end of the calendar year),
Landlord shall estimate and notify Tenant of the amount of Adjustment
Rent due for such year, and Tenant shall pay Landlord one-twelfth of
such estimate on the first day of each month during such year. Such
estimate may be revised by Landlord whenever it obtains information
relevant to making such estimate more accurate. After the end of each
calendar year (but in any event within one hundred and eighty (180)
days after the end of the calendar year), Landlord shall deliver to
Tenant a reasonable detailed report setting forth the actual Expenses
and Taxes for such calendar year and a statement of the amount of
Adjustment Rent that Tenant has paid and is payable for such year.
Tenant acknowledges that actual Taxes for a calendar year may not be
determined until after actual Expenses for such calendar year are
determined. Accordingly, Tenant acknowledges that Landlord may report
the actual Expenses and actual Taxes for a calendar year separately.
Within thirty (30) days after receipt of such report or reports,
Tenant shall pay to Landlord the amount of Adjustment Rent due for
such calendar year minus any payments of Adjustment Rent made by
Tenant for such year, it being acknowledged by Tenant that if Landlord
separately reports actual Expenses and actual Taxes for a calendar
year, Landlord may reasonably allocate Adjustment Rent paid by Tenant
for such calendar year between Expenses and Taxes for such calendar
year. If Tenant's estimated payments of Adjustment Rent exceed the
amount due Landlord for such calendar year, Landlord shall apply such
excess as a credit against Tenant's other obligations under this Lease
or promptly refund such excess to Tenant if the Term has already
expired, provided Tenant is not then in default hereunder, in either
case without interest to Tenant. Notwithstanding anything contained
herein to the contrary, Tenant shall not be responsible for the
payment of Adjustment Rent until the first (1st) anniversary of the
Commencement Date.
C. Payment of Rent. The following provisions shall govern the payment
of Rent: (i) if this Lease commences or ends on a day other than the first
day or last day of a calendar year, respectively, the Rent for the year in
which this Lease so begins or ends shall be prorated and the monthly
installments shall be adjusted accordingly; (ii) all Rent shall be paid to
Landlord without offset or deduction, and the covenant to pay Rent shall be
independent of every other covenant in this Lease; (iii) if during all or
any portion of any year (including the Base Year) the Building is not fully
rented and occupied, Landlord shall make an appropriate adjustment of
variable Expenses for such year to determine the Expenses that would have
been paid or incurred by Landlord had the Building been fully rented and
occupied for the entire year and the amount so determined shall be deemed
to have been the Expenses for such year; (iv) any sum due from Tenant
E-6
to Landlord which is not paid when due shall bear interest from the date
due until the date paid at the annual rate of two percentage (2%) points
above the rate then most recently announced by Bank One as its corporate
base lending rate, from time to time in effect, but in no event higher than
the maximum rate permitted by law (the "Default Rate"); and, in addition,
Tenant shall pay Landlord a late charge for any Rent payment which is paid
more than five (5) business days after its due date equal to five percent
(5%) of such payment; (v) if changes are made to this Lease or the Building
changing the number of square feet contained in the Premises or in the
Building, Landlord shall make an appropriate adjustment to Tenant's
Proportionate Share; (vi) Tenant shall have the right to take exception to
any item in any such statement of Adjustment Rent by written notice given
to Landlord within sixty (60) days after receipt of such statement and
unless Tenant shall take such written exception within said sixty (60) day
period, such statement shall be considered final and accepted by Tenant. If
Tenant timely takes such written exception to any such statement, then
Tenant shall have the right to cause employees of Tenant or a reputable
independent certified public accounting firm whose compensation shall not
be contingent upon or correspond to the financial impact of such review to
inspect Landlord's accounting records relative to Expenses and Taxes during
normal business hours at any time within sixty (60) days following the date
of such written exception. If after such inspection by Tenant's employees
or third party accounting firm Tenant still disputes any such item in the
statement of Adjustment Rent, then Landlord and Tenant shall in good faith
attempt to resolve such dispute within thirty (30) days after the
expiration of said sixty (60) day inspection period. If such dispute is not
resolved between Landlord and Tenant within said thirty (30) day period,
then either party may, during the thirty (30) day period next following
expiration of said initial thirty (30) day period, refer such disputed item
or items to a reputable independent certified public accounting firm
reasonably mutually selected by Landlord and Tenant for determination, and
the determination of such accountant shall be final, conclusive and binding
upon Landlord and Tenant and Landlord and Tenant shall readjust the payment
of Adjustment Rent for the subject year based upon such determination.
During the initial sixty (60) day period and the following thirty (30) day
period in which Landlord and Tenant are attempting to resolve any such
dispute, Tenant's employees shall have the right to examine Landlord's
books and records relative to Expenses and Taxes as provided above. Tenant
agrees to pay all costs involved in such determination, unless it is
determined that Landlord's original calculation of the amount of Adjustment
Rent was overstated by more than five percent (5%), in which event Landlord
shall pay all costs of such audit; (vii) in the event of the termination of
this Lease prior to the determination of any Adjustment Rent, Tenant's
agreement to pay any such sums and Landlord's obligation to refund any such
sums (provided Tenant is not in default hereunder) shall survive the
termination of this Lease; (viii) no adjustment to the Rent by virtue of
the operation of the rent adjustment provisions in this Lease shall result
in the payment by Tenant in any year of less than the Base Rent shown on
the Schedule; (ix) Landlord may at any time change the fiscal year of the
Building; (x) each amount owed to Landlord under this Lease for which the
date of payment is not expressly fixed shall be due on the same date as the
Rent listed on the statement showing such amount is due; and (xi) if
Landlord fails to give Tenant an estimate of Adjustment Rent prior to the
beginning of any calendar year,
E-7
Tenant shall continue to pay Adjustment Rent at the rate for the previous
calendar year until Landlord delivers such estimate, at which time Tenant
shall pay retroactively the increased amount for all previous months of
such calendar year.
D. Allocation of Rent Abatement for Tax Purposes. Landlord and Tenant
agree that no portion of the Base Rent paid by Tenant during the portion of
the term of this Lease occurring after the expiration of any period during
which such rent was abated shall be allocated, for income tax purposes, nor
is such rent intended by the parties to be allocable, for income tax
purposes, to any abatement period.
3. USE. Tenant agrees that it shall occupy and use the Premises only as
non-governmental business offices and for no other purposes. Tenant shall, at
its own cost and expense, comply with all federal, state and municipal laws,
ordinances, rules and regulations issued by any governmental authority and all
covenants, conditions and restrictions of record which relate to the condition,
use or occupancy of the Premises, including, without limitation, that certain
recorded Declaration of Easements, Covenants and Restrictions for ▇▇▇▇▇▇▇▇ Lake
Property Owner's Association dated May 14, 1980 recorded with the DuPage County
Recorder on May 15, 1980, as Document No. R80-28590, as amended (the
"Declaration"); provided, however, that Tenant shall not be obligated to
undertake any capital improvements in connection with such compliance.
4. CONDITION OF PREMISES. Tenant's taking possession of the Premises shall
be conclusive evidence that the Premises were in good order and satisfactory
condition when Tenant took possession, subject, however, to latent defects in
structural and base Building systems which are not ascertainable from an
inspection of the Premises, provided that Tenant provides written notice to
Landlord specifying in reasonable detail any such latent defects within six (6)
months after delivery of possession of the Premises to Tenant and subject to
punchlist items as provided in the Workletter. No agreement of Landlord to
alter, remodel, decorate, clean or improve the Premises or the Building (or to
provide Tenant with any credit or allowance for the same), and no representation
regarding the condition of the Premises or the Building, have been made by or on
behalf of Landlord or relied upon by Tenant, except as stated in this Lease or
the Workletter attached hereto as Exhibit B.
5. BUILDING SERVICES.
A. Basic Services. Landlord shall furnish the following services: (i)
heating, ventilating and air conditioning to provide a temperature
condition consistent, in Landlord's reasonable judgment, with temperature
conditions typically provided in other similar class office buildings in
the Itasca/Schaumburg, Illinois, area, daily from 8:00 A.M. to 6:00 P.M.
(Saturday from 8:00 A.M. to 12:00 Noon), Sundays and holidays (i.e., being
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day, Christmas Day and any other day recognized as a holiday by the service
unions representing workers providing services to the Building or
customarily designated as a holiday by landlords operating similar class
office buildings in the Itasca/Schaumburg, Illinois, area) excepted; (ii)
water for drinking, and, subject to Landlord's approval, water at Tenant's
expense for any private restrooms and office kitchen requested by Tenant;
E-8
(iii) men's and women's restrooms at locations designated by Landlord, in
common with other tenants of the Building; (iv) janitor service in the
Premises and common areas of the Building consistent with cleaning services
provided in similar class office buildings in the Itasca/Schaumburg,
Illinois, area; (v) maintenance of exterior common areas of the Building,
including snow removal as necessary and maintenance of the landscaped
areas; and (vi) elevator service in common with Landlord and other tenants
of the Building. Subject to emergencies and Building security rules and
regulations, Tenant shall have access to the Premises 24 hours per day 7
days per week.
B. Electricity. The Premises shall be separately metered for
electrical use. Electricity shall be distributed to the Premises either by
the electric utility company serving the Building or, at Landlord's option,
by Landlord, and Landlord shall permit Landlord's wire and conduits, to the
extent available, suitable and safely capable, to be used for such
distribution. If and so long as Landlord is distributing electricity to the
Premises, Tenant shall obtain all of its electricity from Landlord and
shall pay all of Landlord's charges, which charges shall be based on meter
readings, but which charges shall in no event be greater than the existing
applicable bundled service rates as approved by the Illinois Commerce
Commission, or any successor regulatory body. If the electric utility
company is distributing electricity to the Premises, Tenant at its cost
shall make all necessary arrangements with the electric utility company for
metering and paying for electric current furnished to the Premises. All
electricity used during the performance of janitor service, or the making
of any alterations or repairs in the Premises, or the operation of any
special air conditioning systems serving the Premises shall be paid for by
Tenant.
C. Telephones. Tenant shall arrange for telephone service directly
with one or more of the public telephone companies servicing the Building
and shall be solely responsible for paying for such telephone service. If
Landlord acquires ownership of the telephone cables in the Building at any
time, Landlord shall permit Tenant to connect to such cables on such terms
and conditions as Landlord may reasonably prescribe and any charges for use
of the cables shall be reasonable and consistent with charges for similar
systems and their use in the relevant market area. In no event does
Landlord make any representation or warranty with respect to telephone
service in the Building and Landlord shall have no liability with respect
thereto.
D. Additional Services. Landlord shall not be obligated to furnish any
services other than those stated above. If Landlord elects to furnish
services requested by Tenant in addition to those stated above (including
services at times other than those stated above), Tenant shall pay one
hundred fifteen percent (115%) of Landlord's actual cost to furnish such
services. Notwithstanding the foregoing, with respect to heating,
ventilating, air condition ("HVAC") after normal business hours (as set
forth in Section 5.A. above), Tenant shall pay to Landlord Landlord's then
standard Building charges for such after-hours HVAC. The current Building
standard charge for after-hours HVAC is $75.00 per hour for the Premises.
Any increases in such standard charge shall relate to and reasonably be
intended to recover Landlord's costs and expenses, which may include
depreciation of capital equipment, incurred in connection with providing
such after-hours
E-9
HVAC. If Tenant shall fail to make any such payment, Landlord may, without
notice to Tenant and in addition to all other remedies available to
Landlord, discontinue any additional services. No discontinuance of any
such service shall result in any liability of Landlord to Tenant or be
considered as an eviction or a disturbance of Tenant's use of the Premises.
In addition, if Tenant's concentration of personnel or equipment adversely
affects the temperature or humidity in the Premises or the Building, and
Tenant does not correct such adverse affect (by reducing the concentration
of personnel or equipment or installing supplemental heating, ventilating
and air conditioning units as hereinafter provided) after written notice
from Landlord, Landlord may install supplementary air conditioning units in
the Premises, and Tenant shall pay one hundred fifteen percent (115%) of
the cost of installation, operation and maintenance thereof.
E. Failure or Delay in Furnishing Services. Tenant agrees that
Landlord shall not be liable for damages for failure or delay in furnishing
any service stated above if such failure or delay is caused, in whole or in
part, by any one or more of the events stated in Section 24.J. below, nor
shall any such failure or delay be considered to be an eviction or
disturbance of Tenant's use of the Premises, or relieve Tenant from its
obligation to pay any Rent when due or from any other obligations of Tenant
under this Lease. Notwithstanding the foregoing, in the event any such
failure or delay in furnishing any services described in Sections 5.A, 5.B
and 5.C above is caused by the negligence or willful misconduct of Landlord
and if such failure or delay causes the Premises to be untenantable, and as
a result thereof Tenant in fact ceases to use the Premises for a period in
excess of five (5) consecutive days, then commencing on the sixth (6th)
consecutive day of such untenantability and non-use, Base Rent and
Adjustment Rent payable by Tenant shall be abated until the earliest to
occur of (i) the date such failure or delay is remedied, (ii) the date the
Premises are again tenantable or (iii) the date Tenant resumes use of the
Premises.
6. RULES AND REGULATIONS. Tenant shall observe and comply, and shall cause
its subtenants, assignees, invitees, employees, contractors and agents to
observe and comply, with the Rules and Regulations listed on Exhibit C attached
hereto and with such reasonable modifications and additions thereto as Landlord
may make from time to time. Landlord shall not be liable for failure of any
person to obey the Rules and Regulations. Landlord shall not be obligated to
enforce the Rules and Regulations against any person, and the failure of
Landlord to enforce any such Rules and Regulations shall not constitute a waiver
thereof or relieve Tenant from compliance therewith, provided, however, that
Landlord shall not discriminate against Tenant in the promulgation or
enforcement of such Rules and Regulations. Notwithstanding anything contained
herein to the contrary, in the event of any conflict between the Rules and
Regulations, and any modifications or additions thereto, and the terms and
conditions of this Lease, the terms and conditions of this Lease shall control.
7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, each of which Landlord may exercise without notice to Tenant and without
liability to Tenant, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of rent
or any other claim: (a) to change the name or street
E-10
address of the Building or the suite number of the Premises; (b) to install,
affix and maintain any and all signs on the exterior or interior of the
Building; (c) to make repairs, decorations, alterations, additions or
improvements, whether structural or otherwise, in and about the Building, and
for such purposes to enter upon the Premises, temporarily close doors, corridors
and other areas of the Building and interrupt or temporarily suspend services or
use of common areas, and Tenant agrees to pay Landlord for overtime and similar
expenses incurred if such work is done other than during ordinary business hours
at Tenant's request; (d) to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises; (e) to grant to any
person or to reserve unto itself the exclusive right to conduct any business or
render any service in the Building; (f) to show or inspect the Premises at
reasonable times and, if vacated or abandoned, to prepare the Premises for
reoccupancy; (g) to install, use and maintain in and through the Premises pipes,
conduits, wires and ducts serving the Building, provided that such installation,
use and maintenance does not unreasonably interfere with Tenant's use of the
Premises and are installed behind finished surfaces reasonably consistent with
existing finishes in the Premises; (h) to take any other action which Landlord
deems reasonable in connection with the operation, maintenance, marketing or
preservation of the Building; and (i) to approve the weight, size and location
of safes or other heavy equipment or articles, which articles may be moved in,
about or out of the Building or Premises only at such times and in such manner
as Landlord shall direct, at Tenant's sole risk and responsibility.
8. MAINTENANCE AND REPAIRS. Tenant, at its expense, shall maintain and keep
the Premises in good order and repair at all times during the Term. Landlord
shall perform any maintenance or make any repairs to the Building (which
includes the roof, structural components and the Building common areas and
common Building systems such as the heating, ventilating and air conditioning
and electrical and plumbing systems whether located in the Premises or elsewhere
in the Building) or Premises as Landlord shall desire or deem necessary for the
safety, operation or preservation of the Building, or as Landlord may be
required or requested to do by the order or decree of any court or by any other
proper authority. If any such maintenance or repairs to the Premises are
required as a result of the negligence or willful misconduct of Tenant or its
employees, contractors or agents, or breach of this Lease by Tenant or its
employees, contractors or agents, and if Tenant does not perform such required
maintenance or repair promptly after notice from Landlord, then Tenant shall
reimburse Landlord for any such maintenance or repairs of the Premises.
9. ALTERATIONS.
A. Requirements. Tenant shall not make any replacement, alteration,
improvement or addition to or removal from the Premises (collectively an
"alteration") without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant
may perform an alteration to the interior of the Premises without
Landlord's prior written consent provided such alteration (or the
performance thereof) does not (i) affect the mechanical, electrical, HVAC,
life safety, or other Building operating systems, (ii) affect the
structural components of the Building or require penetration of the floor
or ceiling of the Premises, (iii) involve the use or disturbance of any
Hazardous Material (as hereinafter defined) or (iv) cost more than
$20,000.00 in any one instance, and further provided that Tenant gives
Landlord prior
E-11
written notice of such alteration and further provided that such alteration
(and the performance thereof) shall otherwise be in compliance with the
provisions of this Article 9 (except for the requirement of Landlord's
consent.
If Tenant proposes to make any alteration, Tenant shall, prior to
commencing such alteration, submit to Landlord for prior written approval:
(i) detailed plans and specifications; (ii) the names, addresses and copies
of contracts for all contractors; (iii) all necessary permits evidencing
compliance with all applicable governmental rules, regulations and
requirements; (iv) certificates of insurance in form and amounts required
by Landlord, naming Landlord, its managing agent and any other parties
designated by Landlord as additional insureds; and (v) all other documents
and information as Landlord may reasonably request in connection with such
alteration. Tenant agrees to reimburse Landlord for all out-of-pocket costs
and expenses incurred by Landlord in connection with the review and
supervision of the alteration. Neither approval of the plans and
specifications nor supervision of the alteration by Landlord shall
constitute a representation or warranty by Landlord as to the accuracy,
adequacy, sufficiency or propriety of such plans and specifications or the
quality of workmanship or the compliance of such alteration with applicable
law. Tenant shall pay the entire cost of the alteration and, if requested
by Landlord after reasonable review by Landlord of Tenant's then existing
creditworthiness, shall deposit with Landlord, prior to the commencement of
the alteration, security for the payment and completion of the alteration
in form and amount required by Landlord. Each alteration shall be performed
in a good and workmanlike manner, in accordance with the plans and
specifications approved by Landlord, and shall meet or exceed the standards
for construction and quality of materials established by Landlord for the
Building. In addition, each alteration shall be performed in compliance
with all applicable governmental and insurance company laws, regulations
and requirements. Each alteration shall be performed by Landlord or under
Landlord's supervision, and in harmony with Landlord's employees,
contractors and other tenants. Each alteration, whether temporary or
permanent in character, made by Landlord or Tenant in or upon the Premises
(excepting only Tenant's furniture, equipment and trade fixtures) shall
become Landlord's property and shall remain upon the Premises at the
expiration or termination of this Lease without compensation to Tenant;
provided, however, that Landlord shall have the right to require Tenant to
remove such alteration at Tenant's sole cost and expense in accordance with
the provisions of Section 14 of this Lease, which required removal must be
specified by Landlord when Landlord consents to Tenant's requested
alterations; provided further, however, that Tenant shall not be required
to remove the initial Work installed by Landlord in the Premises pursuant
to the Workletter.
B. Liens. Upon completion of any alteration, Tenant shall promptly
furnish Landlord with sworn owner's and contractors' 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 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) days thereafter have such lien
released of record or deliver to Landlord a bond in form, amount, and
issued by a surety
E-12
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.
10. INDEMNIFICATION AND INSURANCE.
A. Damage or Injury. Landlord shall not be liable to Tenant, and
Tenant hereby waives all claims against Landlord, for any damage to or loss
or theft of any property or for any bodily or personal injury, illness or
death of any person in, on or about the Premises or the Building arising at
any time and from any cause whatsoever, except to the extent caused by the
negligence or willful misconduct of Landlord. Tenant shall indemnify and
defend Landlord against and hold Landlord harmless from all claims,
demands, liabilities, damages, losses, costs and expenses, including
reasonable attorneys' fees and disbursements, arising from or related to
any use or occupancy of the Premises, or any condition of the Premises, or
any default in the performance of Tenant's obligations under this Lease, or
any damage to any property (including property of employees and invitees of
Tenant) or any bodily or personal injury, illness or death of any person
(including employees and invitees of Tenant) occurring in, on or about the
Premises or any part hereof arising at any time and from any cause
whatsoever (except to the extent caused by the negligence or willful
misconduct of Landlord) or occurring in, on or about any part of the
Building other than the Premises when such damage, bodily or personal
injury, illness or death is caused by any act or omission of Tenant or its
agents, officers, employees, contractors, invitees or licensees. This
Section 10.A. shall survive the termination of this Lease with respect to
any damage, bodily or personal injury, illness or death occurring prior to
such termination.
B. Insurance Coverages and Amounts. Tenant shall, at all times during
the term of this Lease and at Tenant's sole cost and expense, obtain and
keep in force the insurance coverages and amounts set forth in this Section
10.B. Tenant shall maintain commercial general liability insurance,
including contractual liability, broad form property damage liability, fire
legal liability, premises and completed operations, and medical payments,
with limits not less than one million dollars ($1,000,000) per occurrence
and aggregate, insuring against claims for bodily injury, personal injury
and property damage arising from the use, occupancy or maintenance of the
Premises and the Building. The policy shall contain an exception to any
pollution exclusion which insures damage or injury arising out of heat,
smoke or fumes from a hostile fire. Any general aggregate shall apply on a
per location basis. Tenant shall maintain business auto liability insurance
with limits not less than one million dollars ($1,000,000) per accident
covering owned, hired and non-owned vehicles used by Tenant. Tenant shall
maintain umbrella excess liability insurance on a following form basis in
excess of the required commercial general liability, business auto and
employers liability insurance with limits not less than five million
dollars ($5,000,000) per occurrence and aggregate. Tenant shall maintain
workers' compensation insurance for all of its employees in statutory
limits in
E-13
the state in which the Building is located and employers liability
insurance which affords not less than five hundred thousand dollars
($500,000) for each coverage. Tenant shall maintain all risk property
insurance for all personal property of Tenant and all alterations,
additions, improvements, fixtures and equipment located in the Premises in
an amount not less than the full replacement cost, which shall include
business income and extra expense coverage with limits not less than one
hundred percent (100%) of gross revenues for a period of twelve (12)
months. If required by Landlord, Tenant shall maintain boiler and machinery
insurance against loss or damage from an accident from the equipment in the
Premises in an amount determined by Landlord and plate glass insurance
coverage against breakage of plate glass in the Premises. Any deductibles
selected by Tenant shall be the sole responsibility of Tenant.
C. Insurance Requirements. All insurance and all renewals thereof
shall be issued by companies with a rating of at least "A-" "VIII" or
better in the current edition of Best's Insurance Reports and be licensed
to do and doing business in the state in which the Building is located.
Each policy shall expressly provide that the policy shall not be canceled
or materially altered (i.e., altered in a manner which caused Tenant to not
comply with the insurance requirements of this Lease) without thirty (30)
days' prior written notice to Landlord and shall remain in effect
notwithstanding any such cancellation or alteration until such notice shall
have been given to Landlord and such period of thirty (30) days shall have
expired. All liability insurance (except employers liability) shall name
Landlord and any other parties designated by Landlord (including any
investment manager, asset manager or property manager) as an additional
insured, shall be primary and noncontributing with any insurance which may
be carried by Landlord, shall afford coverage for all claims based on any
act, omission, event or condition that occurred or arose (or the onset of
which occurred or arose) during the policy period, and shall expressly
provide that Landlord, although named as an insured, shall nevertheless be
entitled to recover under the policy for any loss, injury or damage to
Landlord. All property insurance shall name Landlord as loss payee as
respects Landlord's interest in any improvements and betterments. Tenant
shall deliver certificates of insurance, acceptable to Landlord, to
Landlord at least ten (10) days before the Commencement Date and at least
ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant
or Landlord or both of them, and Tenant shall pay to Landlord on written
demand, as additional rent, all premiums paid by Landlord.
D. Waiver of Subrogation. Each party hereto hereby waives all claims
for recovery from the other party for any loss or damage to any of its
property insured under valid and collectible insurance policies to the
extent of any recovery collectible under such insurance or with respect to
which a party has elected to self-insure, subject to the limitation that
this waiver shall apply only when it is either permitted or, by the use of
such good faith efforts, could have been so permitted by the applicable
policy of insurance. Tenant and Landlord shall each cause its fire and
extended coverage policy to include a provision or endorsement by which the
insurer expressly waives all rights of
E-14
subrogation which such insurers might have had against Landlord and Tenant
respectively.
E. Landlord's Insurance. Landlord shall, during the term of this
Lease, procure and maintain such property and liability insurance with
respect to the core and shell (as hereafter defined) of the Building as is
from time to time customarily maintained by owners of similar office
buildings in the Itasca/Schaumburg, Illinois area. Landlord may provide
such coverages through blanket policies of insurance or through programs of
self-insurance.
11. FIRE OR OTHER CASUALTY.
A. Destruction of the Building. If the Building should be
substantially destroyed (which, as used herein, means destruction or damage
to at least 25% of the Building) by fire or other casualty, either party
hereto may, at its option, terminate this Lease by giving written notice
thereof to the other party within thirty (30) days of such casualty. In
such event, Rent shall be apportioned to and shall cease as of the date of
such casualty. If neither party exercises this option, then the shell and
core (as hereinafter defined) of the Building (including any elements
thereof within the Premises) shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as they were prior
to the casualty.
B. Destruction of the Premises. If the Premises are damaged, in whole
or in part, by fire or other casualty, but the Building is not
substantially destroyed as provided above, then the parties hereto shall
have the following options:
(i) If, in Landlord's reasonable judgment, the shell and core
elements of the Building within the Premises (the "Premises shell and
core") cannot be reconstructed or restored within one hundred eighty
(180) days of such casualty to substantially the same condition as
they were in prior to such casualty, Landlord may terminate this Lease
by written notice given to Tenant within thirty (30) days of the
casualty. If, in Landlord's reasonable judgment, the Premises shell
and core cannot be reconstructed or restored within one hundred eighty
(180) days of such casualty to substantially the same condition as
they were in prior to such casualty, but nonetheless Landlord does not
so elect to terminate this Lease, then Landlord shall notify Tenant,
within thirty (30) days after the casualty, of the amount of time
necessary, as reasonably estimated by Landlord, to reconstruct or
restore the Premises shell and core. After receipt of such notice from
Landlord, Tenant may elect to terminate this Lease. This election
shall be made by Tenant by giving written notice to Landlord within
fifteen (15) days after the date of Landlord's notice. If neither
party terminates this Lease pursuant to the foregoing, Landlord shall
proceed to reconstruct and restore the Premises shell and core to
substantially the same condition as they were in prior to the
casualty. In such event this Lease shall continue in full force and
effect to the balance of the term, upon the same terms, conditions and
covenants as are contained herein; provided, however, that Rent shall
be abated in the proportion which the
E-15
approximate area of the untenantable (as hereinafter defined) portion
of the Premises bears to the total area in the Premises, from the date
of the casualty until substantial completion of the reconstruction of
the Premises shell and core.
Notwithstanding the above, if the casualty occurs during the last
twelve (12) months of the term of this Lease, either party hereto
shall have the right to terminate this Lease as of the date of the
casualty, which right shall be exercised by written notice to be given
by either party to the other party within thirty (30) days therefrom.
If this right is exercised, Rent shall be apportioned to and shall
cease as of the date of the casualty. After a casualty occurs during
the last twelve (12) months of the term of the Lease, Tenant may not
exercise any renewal options without first obtaining Landlord's
written consent.
Additionally, notwithstanding anything contained herein to the
contrary, Landlord shall have no duty to repair or restore if the
damage is due to an uninsurable casualty, or if insurance proceeds are
insufficient to pay for such repair or restoration, or if the holder
of any mortgage, deed of trust or similar instrument applies proceeds
of insurance to reduce its loan balance and the remaining proceeds, if
any, available to Landlord are not sufficient to pay for such repair
or restoration.
(ii) If, in Landlord's reasonable judgment, the Premises shell
and core are able to be restored within one hundred eighty (180) days
of such casualty to substantially the same condition as they were
prior to such casualty, Landlord shall so notify Tenant within thirty
(30) days of the casualty, and Landlord shall then proceed to
reconstruct and restore the damaged portion of the Premises shell and
core, at Landlord's expense, to substantially the same condition as it
was prior to the casualty, Rent shall be abated in the proportion
which the approximate area of the untenantable portion bears to the
total area in the Premises from the date of the casualty until
substantial completion of the reconstruction repairs, and this Lease
shall continue in full force and effect for the balance of the term,
upon the same terms, conditions and covenants as are contained herein.
(iii) If Landlord undertakes reconstruction or restoration of the
Premises shell and core pursuant to subparagraph (i) or (ii) above,
Landlord shall use reasonable diligence in completing such
reconstruction repairs, but if Landlord fails to substantially
complete the same within two hundred and forty (240) days from the
date of the casualty (except however, if under subparagraph (i) above
Landlord notified Tenant that it would take longer than one hundred
eighty (180) days to reconstruct or restore the Premises shell and
core, but Tenant nonetheless elected not to terminate the Lease but
require Landlord to reconstruct or restore the Premises shell and
core, then the foregoing two hundred and forty (240) day period shall
be extended to the time period set forth in Landlord's notice plus
sixty (60) days), except as a result of any of the occurrences set
forth in Section 24.J. below, Tenant may, at its option, terminate
this Lease upon giving
E-16
Landlord written notice to that effect, whereupon both parties shall
be released from all further obligations and liability hereunder.
C. Repair by Tenant. After substantial completion of the
reconstruction repairs by Landlord, Tenant shall, in accordance with
Section 9, proceed with reasonable promptness to repair and restore
all of Tenant's alterations and all other alterations, additions and
improvements in the Premises, to as near the condition which existed
prior to the fire or other casualty as is reasonably possible. Tenant
agrees and acknowledges that Landlord shall be entitled to the
proceeds of any insurance coverage carried by Tenant relating to
improvements and betterments to the Premises, to the extent Landlord
is obligated under this Section 11 to repair or restore damage to
those items covered by such insurance or if this Lease terminates.
D. Untenantability. As used in this Section 11, the term
"untenantable" means reasonably incapable of being occupied for its
intended use due to damage to the Premises or Building.
Notwithstanding anything contained to the contrary in this Section 11,
neither the Premises nor any portion of the Premises shall be deemed
untenantable if Landlord is not required to repair or restore same (or
if Landlord is required to repair or restore same, then following such
time as Landlord has substantially completed the repair and
restoration work required to be performed by Landlord under this
Section 11), or if Tenant continues to actually occupy the subject
portion of the Premises for the conduct of business.
E. Shell and Core. The term "shell and core" shall mean and refer
to structural elements of the Building, including the roof, foundation
and exterior walls and common base Building mechanical, electrical and
plumbing systems, including any elements thereof located within the
Premises, and specifically excludes any work related to tenant
improvements constructed by or for Tenant or other tenants or
installed within the Premises or within any other tenant's premises.
12. CONDEMNATION. If the Premises or the Building is rendered untenantable
by reason of a condemnation (or by a deed given in lieu thereof), then either
party may terminate this Lease by giving written notice of termination to the
other party within thirty (30) days after such condemnation, in which event this
Lease shall terminate effective as of the date of such condemnation. If this
Lease so terminates, Rent shall be paid through and apportioned as of the date
of such condemnation. If such condemnation does not render the Premises or the
Building untenantable, this Lease shall continue in effect and Landlord shall
promptly restore the portion not condemned to the extent reasonably possible to
the condition existing prior to the condemnation. In such event, however,
Landlord shall not be required to expend an amount in excess of the proceeds
received by Landlord from the condemning authority. Landlord reserves all rights
to compensation for any condemnation. Tenant hereby assigns to Landlord any
right Tenant may have to such compensation, and Tenant shall make no claim
against Landlord or the condemning authority for compensation for termination of
Tenant's leasehold interest under this Lease or interference with Tenant's
business; provided however, that so long as Landlord's award is not reduced or
otherwise adversely affected, Tenant may make a separate claim for the
unamortized costs of any leasehold improvements installed in the Premises by
Tenant at
E-17
Tenant's cost and expense as well as moving and relocation expenses and for any
property of Tenant taken in such condemnation or deed given in lieu thereof.
13. ASSIGNMENT AND SUBLETTING.
A. Landlord's Consent. Tenant shall not, without the prior written
consent of Landlord: (i) assign, convey, mortgage or otherwise transfer
this Lease or any interest hereunder, or sublease the Premises, or any part
thereof, whether voluntarily or by operation of law; or (ii) permit the use
of the Premises by any person other than Tenant and its employees. Any such
transfer, sublease or use described in the preceding sentence (a
"Transfer") occurring without the prior written consent of Landlord shall
be void and of no effect. Landlord's consent to any Transfer shall not
constitute a waiver of Landlord's right to withhold its consent to any
future Transfer. Landlord's consent to any Transfer or acceptance of rent
from any party other than Tenant shall not release Tenant from any covenant
or obligation under this Lease. Landlord may require as a condition to its
consent to any assignment of this Lease that the assignee execute an
instrument in which such assignee assumes the obligations of Tenant
hereunder. For the purposes of this paragraph, the transfer (whether direct
or indirect) of all or a majority of the capital stock in a corporate
Tenant (other than the shares of the capital stock of a corporate Tenant
whose stock is publicly traded) or the merger, consolidation or
reorganization of such Tenant, the transfer of all or any general
partnership interest in any partnership Tenant and any change in the
manager of any limited liability company Tenant shall be considered a
Transfer.
The foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a nationally recognized security exchange.
Tenant may assign its entire interest under this Lease or sublet the
Premises to any entity controlling or controlled by or under common control
with Tenant (which would include an entity which is wholly owned by Tenant,
which wholly owns Tenant or which is wholly owned by the entity which
wholly owns Tenant) or to any successor to Tenant by purchase, merger,
consolidation or reorganization (hereinafter, collectively, referred to as
"Permitted Transfer") without the consent of Landlord, provided: (1) Tenant
is not in default under this Lease beyond applicable notice and cure
periods; and (2) if the proposed Permitted Transfer is an assignment or
sublease to a successor to Tenant by purchase, merger, consolidation or
reorganization, such proposed transferee shall have a net worth which is
sufficient in Landlord's commercially reasonable judgment to meet the
obligations of the Tenant under this Lease. Tenant shall give Landlord
reasonable prior notice of any such Permitted Transfer. In addition to not
requiring Landlord's consent as provided above, the provisions of Section
13.C. below regarding recapture and sharing of profits shall not be
applicable to a Permitted Transfer.
B. Standards for Consent. If Tenant desires the consent of Landlord to
a Transfer, Tenant shall submit to Landlord, at least twenty (20) days
prior to the proposed effective date of the Transfer, a written notice
which includes such information as Landlord may require about the proposed
Transfer and the transferee, which shall include, without limitation, the
identity of the proposed transferee, audited financial
E-18
information regarding the proposed transferee, information regarding the
business of the proposed transferee, a reasonably detailed description of
the terms and conditions of proposed Transfer and a copy of the proposed
assignment or sublease, together with a non-refundable processing fee in
the amount of five hundred dollars ($500.00). If Landlord does not
terminate this Lease, in whole or in part, pursuant to Section 13.C,
Landlord shall not unreasonably withhold its consent to any assignment or
sublease, which consent or lack thereof shall be provided within twenty
(20) days of receipt of Tenant's notice and all required information and
materials. Landlord shall not be deemed to have unreasonably withheld its
consent if, in the judgment of Landlord: (i) the transferee is of a
character or engaged in a business which is not in keeping with the
standards or criteria used by Landlord in leasing the Building; (ii) the
financial condition of the transferee is such that it may not be able to
perform its obligations in connection with this Lease; (iii) the transferee
is a tenant of or actively negotiating for space in the Building or in any
other building in the Development owned by Landlord or a related entity;
(iv) the transferee is a governmental unit; (v) Tenant is in Default under
this Lease; or (vi) in the judgment of Landlord, such a Transfer would
violate any term, condition, covenant or agreement of the Landlord
involving the Building or the Development or any other tenant's lease
within it. The foregoing is not intended as an exhaustive list of
reasonable reasons for Landlord to withheld its consent. If Landlord
wrongfully withholds its consent to any Transfer, Tenant's sole and
exclusive remedy therefor shall be to seek specific performance of
Landlord's obligation to consent to such Transfer. If Landlord consents to
such Transfer, prior to the effective date of such Transfer, Tenant shall
deliver an executed original of the assignment or sublease (which shall be
in the form submitted to Landlord with Tenant's notice) and, if required by
Landlord, Tenant shall execute Landlord's consent form acknowledging
agreement to the terms and conditions of Landlord's consent.
C. Recapture. If Tenant assigns this Lease or subleases more than 50%
of the Premises, then Landlord shall have the right to terminate this Lease
as to that portion of the Premises covered by a Transfer. Landlord may
exercise such right to terminate by giving notice to Tenant at any time
within thirty (30) days after the date on which Tenant has furnished to
Landlord all of the items required under Section 13.B. If Landlord
exercises such right to terminate, Landlord shall be entitled to recover
possession of, and Tenant shall surrender such portion of, the Premises
(with appropriate demising partitions erected at the expense of Tenant) on
the later of (i) the effective date of the proposed Transfer, or (ii) sixty
(60) days after the date of Landlord's notice of termination. If Landlord
exercises such right to terminate, Landlord shall have the right to enter
into a lease with the proposed transferee without incurring any liability
to Tenant on account thereof. If Landlord consents to any Transfer, Tenant
shall pay to Landlord 50% of all rent and other consideration received by
Tenant in excess of the Rent paid by Tenant hereunder for the portion of
the Premises so transferred, after Tenant has recovered all reasonable
expenses incurred by Tenant for the Transfer ("Transfer Costs"). Transfer
Costs shall include (i) any improvement allowance or other economic
concessions (space planning allowance, moving expenses, etc.) paid by
Tenant to a transferee in connection with such Transfer; (ii) any brokerage
commissions incurred by Tenant in connection with the Transfer; (iii)
reasonable attorneys' and other professional fees incurred by
E-19
Tenant in connection with the Transfer; (iv) any lease takeover incurred by
Tenant in connection with the Transfer; and (v) out-of-pocket costs of
advertising the space subject to the Transfer. Such rent shall be paid as
and when received by Tenant. In addition, Tenant shall pay to Landlord any
reasonable attorneys' or other fees and expenses incurred by Landlord in
connection with any proposed Transfer, whether or not Landlord consents to
such Transfer, but in no event more than $1,000.00 per requested Transfer.
14. SURRENDER. Upon termination of the Term or Tenant's right to possession
of the Premises, Tenant shall return the Premises to Landlord in good order and
condition, ordinary wear and damage by fire or other casualty excepted. If
Landlord requires Tenant to remove any alterations pursuant to Section 9, then
such removal shall be done in a good and workmanlike manner, and upon such
removal Tenant shall restore the Premises to its condition prior to the
installation of such alterations. If Tenant does not remove such alterations
after request to do so by Landlord, Landlord may remove the same and restore the
Premises, and Tenant shall pay the cost of such removal and restoration to
Landlord upon demand. Tenant shall also remove its furniture, equipment, trade
fixtures and all other items of personal property from the Premises prior to
termination of the Term or Tenant's right to possession of the Premises. If
Tenant does not remove such items, Tenant shall be conclusively presumed to have
conveyed the same to Landlord without further payment or credit by Landlord to
Tenant, or at Landlord's sole option such items shall be deemed abandoned, in
which event Landlord may cause such items to be removed and disposed of at
Tenant's expense, which shall be 120% of Landlord's actual cost of removal,
without notice to Tenant and without obligation to compensate Tenant.
15. DEFAULTS AND REMEDIES.
A. Default. The occurrence of any of the following shall constitute a
default (a "Default") by Tenant under this Lease: (i) Tenant fails to pay
any Rent when due and such failure is not cured within five (5) business
days after written notice from Landlord (which notice may be in the form of
a Landlord statutory five (5) day notice); (ii) Tenant fails to perform any
other provision of this Lease and such failure is not cured within thirty
(30) days (or immediately if the failure involves a hazardous condition)
after written notice from Landlord; provided, however, that if Tenant's
failure cannot reasonably be cured within said thirty (30) days period,
Tenant shall be allowed additional time (not to exceed an additional sixty
(60) days) as is reasonably necessary to cure such failure so long as
Tenant commences to cure the failure within said initial thirty (30) days
and thereafter diligently pursues a course of action that will cure the
failure; (iii) the leasehold interest of Tenant is levied upon or attached
under process of law; (iv) Tenant abandons or vacates the Premises without
notice to Landlord; or (v) any voluntary or involuntary proceedings are
filed by or against Tenant or any guarantor of this Lease under any
bankruptcy, insolvency or similar laws and, in the case of any involuntary
proceedings, are not dismissed within thirty (30) days after filing.
B. Right of Re-Entry. Upon the occurrence of a Default, Landlord may
elect to terminate this Lease or, without terminating this Lease, terminate
Tenant's right to possession of the Premises. Upon any such termination,
Tenant shall immediately surrender and vacate the Premises and deliver
possession thereof to Landlord. Tenant
E-20
grants to Landlord the right to enter and repossess the Premises, with due
process of law, and to expel Tenant and any others who may be occupying the
Premises and to remove any and all property therefrom, with due process of
law, without being deemed in any manner guilty of trespass and without
relinquishing Landlord's rights to Rent or any other right given to
Landlord hereunder or by operation of law.
C. Termination of Right to Possession. If Landlord terminates Tenant's
right to possession of the Premises without terminating this Lease,
Landlord may relet the Premises or any part thereof. In such case, Landlord
shall use reasonable efforts to relet the Premises on such terms as
Landlord shall reasonably deem appropriate; provided, however, Landlord may
first lease Landlord's other available space and shall not be required to
accept any tenant offered by Tenant or to observe any instructions given by
Tenant about such reletting. Tenant shall reimburse Landlord for the costs
and expenses of reletting the Premises including, but not limited to, all
brokerage, advertising, legal, alteration, redecorating, repairs and other
expenses incurred to secure a new tenant for the Premises. In addition, if
the consideration collected by Landlord upon any such reletting, after
payment of the expenses of reletting the Premises which have not been
reimbursed by Tenant, is insufficient to pay monthly the full amount of the
Rent, Tenant shall pay to Landlord the amount of each monthly deficiency as
it becomes due. If such consideration is greater than the amount necessary
to pay the full amount of the Rent, the full amount of such excess shall be
retained by Landlord and shall in no event be payable to Tenant.
D. Termination of Lease. If Landlord terminates this Lease, Landlord
may recover from Tenant and Tenant shall pay to Landlord, on demand, as and
for liquidated and final damages, an accelerated lump sum amount equal to
the amount by which Landlord's estimate of the aggregate amount of Rent
owing from the date of such termination through the Expiration Date plus
Landlord's estimate of the aggregate expenses of reletting the Premises,
exceeds Landlord's estimate of the fair rental value of the Premises for
the same period (after deducting from such fair rental value the time
needed to relet the Premises and the amount of concessions which would
normally be given to a new tenant) both discounted to present value at the
rate of five percent (5%) per annum.
E. Other Remedies. Landlord may, but shall not be obligated to,
perform any obligation of Tenant under this Lease, and, if Landlord so
elects, all costs and expenses paid by Landlord in performing such
obligation, together with interest at the Default Rate, shall be reimbursed
by Tenant to Landlord on demand. Any and all remedies set forth in this
Lease: (i) shall be in addition to any and all other remedies Landlord may
have at law or in equity; (ii) shall be cumulative; and (iii) may be
pursued successively or concurrently as Landlord may elect. The exercise of
any remedy by Landlord shall not be deemed an election of remedies or
preclude Landlord from exercising any other remedies in the future.
F. Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee
shall not have the right to assume or assign this Lease unless the trustee
complies with all
E-21
requirements of the United States Bankruptcy Code, and Landlord expressly
reserves all of its rights, claims and remedies thereunder.
G. Waivers of Jury Trial and Certain Damages. Except as specifically
provided in Section 16 below, Landlord and Tenant each hereby expressly,
irrevocably, fully and forever releases, waives and relinquishes any and
all right to trial by jury and any and all right to receive punitive,
exemplary and consequential damages from the other (or any past, present or
future board member, trustee, director, officer, employee, agent,
representative or advisor of the other) in any claim, demand, action, suit,
proceeding or cause of action in which Landlord and Tenant are parties,
which in any way (directly or indirectly) arises out of, results from or
relates to any of the following, in each case whether now existing or
hereafter arising and whether based on contract or tort or any other legal
basis: this Lease; any past, present or future act, omission, conduct or
activity with respect to this Lease; any transaction, event or occurrence
contemplated by this Lease; the performance of any obligation or the
exercise of any right under this Lease; or the enforcement of this Lease.
Landlord and Tenant reserve the right to recover actual or compensatory
damages, with interest, attorneys' fees, costs and expenses as provided in
this Lease, for any breach of this Lease.
H. Venue. If either Landlord or Tenant desires to bring an action
against the other in connection with this Lease, such action shall be
brought in the federal courts located in Chicago, Illinois, or state courts
located in DuPage County, Illinois. Landlord and Tenant consent to the
jurisdiction of such courts and waive any right to have such action
transferred from such courts on the grounds of improper venue or
inconvenient forum.
16. HOLDING OVER. If Tenant retains possession of the Premises after the
expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall pay Rent during such holding over at 150% (increasing to
200% after the first thirty (30) days of any such holding over) times the rate
in effect immediately preceding such holding over computed on a monthly basis
for each month or partial month that Tenant remains in possession. Tenant shall
also pay, indemnify and defend Landlord from and against all claims and damages,
consequential (provided, however, that Tenant shall not be responsible for
consequential damages if the holdover is for less than thirty (30) days) as well
as direct, sustained by reason of Tenant's holding over. The provisions of this
section do not waive Landlord's right of re-entry or right to regain possession
by actions at law or in equity or any other rights hereunder, and any receipt of
payment by Landlord shall not be deemed a consent by Landlord to Tenant's
remaining in possession or be construed as creating or renewing any lease or
right of tenancy between Landlord and Tenant.
17. [intentionally omitted]
18. [intentionally omitted]
19. ESTOPPEL CERTIFICATE. Tenant agrees that, from time to time upon not
less than fifteen (15) business days' prior request by Landlord, Tenant shall
execute and deliver
E-22
to Landlord a written certificate certifying: (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications, a description
of such modifications and that this Lease as modified is in full force and
effect); (ii) the dates to which Rent has been paid; (iii) that Tenant is in
possession of the Premises, if that is the case; (iv) that Landlord is not in
default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); (vi) that
the Premises have been completed in accordance with the terms and provisions
hereof or the Workletter, that Tenant has accepted the Premises and the
condition thereof and of all improvements thereto and has no claims against
Landlord or any other party with respect thereto; and (vii) such additional
matters as may be requested by Landlord, it being agreed that such certificate
may be relied upon by any prospective purchaser, mortgagee, or other person
having or acquiring an interest in the Building. If Tenant fails to execute and
deliver the estoppel certificate within the time period required hereunder,
Tenant shall be irrevocably deemed to have agreed that the statements contained
therein are true and correct.
20. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (i) any ground or underlying lease of the Building,
now or hereafter existing, and all amendments, renewals and modifications to any
such lease, and (ii) the lien of any mortgage or trust deed now or hereafter
encumbering fee title to the Building and/or the leasehold estate under any such
lease, unless such ground lease or ground lessor, or mortgage or mortgagee,
expressly provides or elects that the Lease shall be superior to such lease or
mortgage; provided, however, that so long as Tenant is not Default under the
terms and conditions of this Lease, Tenant's possession of the Premises and
rights hereunder shall not be disturbed in the event of any foreclosure of such
mortgage or termination of such ground lease. Landlord represents and warrants
to Tenant that as of the date hereof, there are no existing ground or underlying
leases of the Building or mortgage or trust deeds encumbering the Building. If
any such mortgage or trust deed is foreclosed, or if any such lease is
terminated, upon request of the mortgagee, holder or lessor, as the case may be,
Tenant will attorn to the purchaser at the foreclosure sale or to the lessor
under such lease, as the case may be. The foregoing provisions are declared to
be self-operative and no further instruments shall be required to effect such
subordination and/or attornment; provided, however, that Tenant agrees upon
request by any such mortgagee, holder, lessor or purchaser at foreclosure, to
execute and deliver such subordination and/or attornment instruments as may be
required by such person to confirm such subordination and/or attornment, or any
other documents required to evidence superiority of the ground lease or
mortgage, should ground lessor or mortgagee elect such superiority; provided,
however, that any such subordination and/or attornment instrument shall include
the agreement of such ground lessor or mortgagee to the effect that so long as
Tenant is not in Default under the terms and conditions of this Lease, Tenant's
possession of the Premises and rights hereunder shall not be disturbed in the
event of any foreclosure of such mortgage or termination of such ground lease.
If Tenant fails to execute and deliver any such instrument or document within
ten (10) business days after request, and does not cure such failure within five
(5) business days after a second notice from Landlord, then Tenant shall be in
Default hereunder with no additional notice or cure periods.
E-23
21. QUIET ENJOYMENT. As long as no Default exists, Tenant shall peacefully
and quietly have and enjoy the Premises for the Term, free from interference by
Landlord, subject, however, to the provisions of this Lease. The loss or
reduction of Tenant's light, air or view will not be deemed a disturbance of
Tenant's occupancy of the Premises nor will it affect Tenant's obligations under
this Lease or create any liability of Landlord to Tenant.
22. BROKER. Tenant represents to Landlord that Tenant has dealt only with
the broker(s) set forth in Item 11 of the Schedule (collectively, the "Broker")
in connection with this Lease and that, insofar as Tenant knows, no other broker
negotiated this Lease or is entitled to any commission in connection herewith.
Tenant agrees to indemnify, defend and hold Landlord and Landlord's partners and
its and their agents harmless from and against any claims for a fee or
commission made by any broker, other than the Broker, claiming to have acted by
or on behalf of Tenant in connection with this Lease. Landlord agrees to pay the
Broker a commission in accordance with a separate agreement between Landlord and
the Broker.
23. NOTICES. All notices and demands to be given by one party to the other
party under this Lease shall be given in writing, mailed or delivered to
Landlord or Tenant, as the case may be, at the following address:
If to Landlord: National Office Partners Limited Partnership
c/▇ ▇▇▇▇▇ National Office Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ Interests Limited Partnership
Three First National Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
and
Hines
Property Management ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
If to Tenant: New Century Mortgage Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Department
With a copy to: New Century Mortgage Corporation
One ▇▇▇▇▇▇ Place, Suite 1200
E-24
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Office Manager
or at such other address as either party may hereafter designate. Notices shall
be delivered by hand or by United States certified or registered mail, postage
prepaid, return receipt requested, or by a nationally recognized overnight air
courier service. Notices shall be considered to have been given upon the earlier
to occur of actual receipt or two (2) business days after posting in the United
States mail.
24. MISCELLANEOUS.
A. Successors and Assigns. Subject to Section 13 of this Lease, each
provision of this Lease shall extend to, bind and inure to the benefit of
Landlord and Tenant and their respective legal representatives, successors
and assigns, and all references herein to Landlord and Tenant shall be
deemed to include all such parties.
B. Entire Agreement. This Lease, and the riders and exhibits, if any,
attached hereto which are hereby made a part of this Lease, represent the
complete agreement between Landlord and Tenant, and Landlord has made no
representations or warranties except as expressly set forth in this Lease.
No modification or amendment of or waiver under this Lease shall be binding
upon Landlord or Tenant unless in writing signed by Landlord and Tenant.
C. Time of Essence. Time is of the essence of this Lease and each and
all of its provisions.
D. Execution and Delivery. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of
space or an option for lease, and it is not effective until execution and
delivery by both Landlord and Tenant. Execution and delivery of this Lease
by Tenant to Landlord shall constitute an irrevocable offer by Tenant to
lease the Premises on the terms and conditions set forth herein, which
offer may not be revoked for thirty (30) days after such delivery.
E. Severability. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provisions.
F. Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Illinois.
G. Attorneys' Fees. In any action or proceeding hereunder, the
prevailing party shall be entitled to recover from the other party the
prevailing party's reasonable costs and expenses in such action or
proceeding, including reasonable attorneys' fees, costs and expenses.
▇. ▇▇▇▇▇ in Possession. In no event shall Landlord be liable to Tenant
if Landlord is unable to deliver possession of the Premises to Tenant on
the Commencement Date for causes outside Landlord's reasonable control.
Notwithstanding
E-25
anything contained herein to the contrary, if Landlord is unable to deliver
possession of the Premises to Tenant by with 180 days after full execution
of the Lease for any reason other than Tenant caused delays, then Tenant
shall have the right, as its sole and exclusive remedy, to terminate this
Lease by written notice given to Landlord within five (5) days after
expiration of said 180 day period.
I. Joint and Several Liability. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease.
J. Force Majeure. Landlord shall not be in default hereunder and
Tenant shall not be excused from performing any of its obligations
hereunder if Landlord is prevented from performing any of its obligations
hereunder due to any accident, breakage, strike, shortage of materials,
acts of God or other causes beyond Landlord's reasonable control.
K. Captions. The headings and titles in this Lease are for convenience
only and shall have no effect upon the construction or interpretation of
this Lease.
L. No Waiver. No receipt of money by Landlord from Tenant after
termination of this Lease or after the service of any notice or after the
commencing of any suit or after final judgment for possession of the
Premises shall renew, reinstate, continue or extend the Term or affect any
such notice or suit. No waiver of any default of Tenant shall be implied
from any omission by Landlord to take any action on account of such default
if such default persists or be repeated, and no express waiver shall affect
any default other than the default specified in the express waiver and then
only for the time and to the extent therein stated.
M. Hazardous Materials.
(i) Tenant shall not cause or permit any Hazardous Material (as
defined in Section 24.M(iii) below) to be brought, kept or used in or
about the Building by Tenant, its agents, employees, contractors or
invitees. Tenant hereby indemnifies Landlord from and against any
breach by Tenant of the obligations stated in the preceding sentence,
and agrees to defend and hold Landlord harmless from and against any
and all loss, damage, cost and/or expenses (including, without
limitation, diminution in value of the Building, damages for the loss
or restriction on use of rentable or usable space or of any amenity of
the Building, damages arising from any adverse impact on marketing of
space in the Building, and fees, and expert fees) which arise during
or after the term of this Lease as a result of such breach. This
indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions
or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision
because of Hazardous Material present in the soil or ground water on
or under the Building which results from such a breach. Without
limiting the foregoing, if the presence
E-26
of any Hazardous Material in the Building caused or permitted by
Tenant results in any contamination of the Building, Tenant shall
promptly take all actions at its sole expense as are necessary to
return the Building to the condition existing prior to the
introduction of such Hazardous Material to the Building; provided that
Landlord's approval of such actions, and the contractors to be used by
Tenant in connection therewith, shall first be obtained.
(ii) It shall not be unreasonable for Landlord to withhold its
consent to any proposed transfer, assignment or subletting of the
Premises if (a) the proposed transferee's anticipated use of the
Premises involves the generation, storage, use, treatment or disposal
of Hazardous Material; (b) the proposed transferee has been required
by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Material contaminating a
property if the contamination resulted from such transferee's actions
or use of the property in questions; or (c) the proposed transferee is
subject to an enforcement order issued by any governmental authority
in connection with the use, disposal or storage of a Hazardous
Material.
(iii) As used herein, the term "Hazardous Material" means any
hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority or the United States
Government. The term "Hazardous Material" includes, without
limitation, any material or substance which is (a) defined as a
"hazardous waste," "extremely hazardous waste," or "restricted hazards
waste" or similar term under the law of the jurisdiction where the
property is located or (b) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33
U.S.C.ss.1317), (c) defined as a "hazardous waste" pursuant to Section
1004 of the Federal Resource Conservation and Recovery Act, 42
U.S.C.ss.6901 et seq. (45 U.S.C.ss.6903), or (d) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42
U.S.C.ss.9601 et seq. (42 U.S.C.ss.9601).
(iv) As used herein, the term "Laws" means any applicable
federal, state or local laws, ordinances or regulations relating to
any Hazardous Material affecting the Building, including, without
limitation, the laws, ordinances, and regulations referred to in
Section 24.M(iii) above.
(v) Landlord and its employees, representatives and agent shall
have access to the Building during reasonable hours and upon
reasonable notice to Tenant in order to conduct periodic environmental
inspections and tests of Hazardous Waste contamination of the
Building.
N. Parking. So long as Tenant is not in Default under its obligation
to pay the monthly fee therefore as provided below and this Lease is in
full force and effect, Tenant complies with the rules and regulations
applicable thereto and Tenant has not assigned this Lease or subleased all
or any portion of the Premises, Tenant shall be
E-27
entitled to up to ten (10) parking access cards for the restricted parking
portion of the Building's parking area. Tenant may, at any time during the
Term hereof, elect to use less than all ten (10) of the available parking
access cards, in which event the number of parking access cards made
available to Tenant shall be reduced to the number requested by Tenant and
Landlord shall have no further obligation to provide such additional
parking access cards to Tenant; provided, however, that if Tenant elects to
use less than all of the ten (10) available parking access cards, Landlord
shall make the unused access cards available to Tenant again upon Tenant's
request so long as there is sufficient capacity, in Landlord's reasonable
judgment, for such additional use of the reserved parking areas. Tenant
shall pay Landlord, as additional Rent payable at the same time and in the
same manner as monthly installments of Base Rent payable hereunder, the sum
of $50.00 per month per access card. Upon the request of Landlord, Tenant
shall execute a Building standard agreement for use of such parking access
cards. In addition to such use of the restricted parking area, Tenant and
its employees and visitors shall have the non-exclusive right to use four
(4) parking spaces per 1,000 rentable square feet of the space in the
Premises (rounded to the nearest whole number) in the unrestricted portion
of the Building's parking area on a first come, first served basis at no
additional charge to Tenant.
O. Limitation of Liability. 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 Landlord's interest in the Building. Tenant acknowledges
and agrees, for itself and its successors and assigns, that no trustee,
director, officer, employee or agent of Landlord shall be personally liable
for any of the terms, covenants or obligations of Landlord hereunder, and
Tenant shall look solely to Landlord's interest in the Building for the
collection of any judgment (or enforcement of any other judicial process)
requiring the payment of money by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed or performed
by Landlord and no other property or assets of Landlord shall be subject to
levy, execution or other enforcement procedures for the satisfaction of any
obligation by Tenant or its successors or assigns.
25. RIGHT OF REFUSAL. Subject and subordinate to all rights of the then
existing tenants Landlord hereby grants Tenant the option to lease, upon the
terms and conditions hereinafter set forth, each portion of the space depicted
on Exhibit D hereto (the "Refusal Space").
A. Landlord's Refusal Notice. If prior to the 1st anniversary of the
Commencement Date Landlord receives a bona fide written counterproposal
from a third party tenant (the "Prospective Tenant") outlining the
pertinent terms of lease of all or any portion of the Refusal Space
acceptable to Landlord, then Landlord shall notify Tenant in writing (a
"Landlord's Refusal Notice") setting forth (i) the location, (ii) the
availability date (a "Refusal Space Commencement Date"), (iii) the term,
(iv) the rentable square feet, (v) the rental rate and (vi) all other
economic terms upon which Landlord is prepared to lease such portion of the
Refusal Space to the Prospective Tenant.
E-28
B. Tenant's Exercise. Tenant's right to lease the portion of the
Refusal Space described in a Landlord's Refusal Notice upon the terms and
conditions set forth therein shall be exercisable by written notice from
Tenant to Landlord given not less than five (5) business days after the
giving of Landlord's Refusal Notice, time being of the essence. If Tenant
exercises its option with respect to such portion of the Refusal Space,
such exercise shall be irrevocable and such space shall be rented in the
condition contemplated by the applicable Landlord's Refusal Notice. If
Tenant fails to notify Landlord in writing that it will lease the
designated Refusal Space within the prescribed five (5) business day
period, Tenant's rights hereunder as to such portion of the Refusal Space
described in said Landlord's Refusal Notice shall terminate, and Landlord
shall have no further obligation hereunder with respect to such portion of
the Refusal Space; except that if Landlord, within six (6) months after the
date of Landlord's Refusal Notice, does not enter into a lease of such
portion of the Refusal Space under terms and at a rental which are
materially the same as those set forth in the applicable Landlord's Refusal
Notice, then Tenant's rights under this Section to lease such portion of
the Refusal Space shall not terminate but shall continue in full force and
effect; provided, however, said six (6) month period shall be extended for
as long as Landlord is pursuing negotiations diligently with a Prospective
Tenant. Tenant may not elect to lease less than the entire area for less
than the entire term described in Landlord's Refusal Notice. Tenant shall
have no further right to lease the Refusal Space under this Section 25
after the 1st anniversary of the Commencement Date.
C. Conditions. Tenant may only exercise its option to lease a portion
of the Refusal Space, and an exercise thereof shall be only effective, if
at the time of Tenant's exercise of the option and on the applicable
Refusal Space Commencement Date, this Lease is in full force and effect and
there are no events or circumstances which, with the giving of notice or
the passage of time, or both, could constitute a default by Tenant under
this Lease, and inasmuch as this option is intended only for the benefit of
the original Tenant named in this Lease, the entire Premises are occupied
by the original Tenant named herein and the Tenant has neither assigned
this Lease nor sublet any portion of the Premises, other than a Permitted
Transfer. Without limitation of the foregoing, no sublessee or assignee
shall be entitled to exercise any right or option hereunder, and no
exercise of any right or option hereunder by the original Tenant named
herein shall be effective in the event said Tenant assigns this Lease or
subleases all or part of the Premises prior to the applicable Refusal Space
Commencement Date.
D. Delivery of Possession. In the event Landlord is unable to deliver
to Tenant possession of any portion of the Refusal Space on or before the
applicable Refusal Space Commencement Date for any reason whatsoever,
Landlord shall not be subject to any liability for such failure to deliver
possession. Such failure to deliver possession shall not affect either the
validity of this Lease or the obligations of either Landlord or Tenant
hereunder or be construed to extend the expiration of the Term of this
Lease either as to such portion of the Refusal Space or the balance of the
Premises; provided, however, that under such circumstances, rent shall not
commence as to such portion of the Refusal Space until Landlord does so
deliver possession to Tenant.
E-29
E. Terms. If Tenant has validly exercised its right to lease a portion
of the Refusal Space, then effective as of the Refusal Space Commencement
Date such portion of the Refusal Space shall be included in the Premises,
subject to all of the terms, conditions and provisions of the Lease, except
as may otherwise be provided in the Landlord's Refusal Notice.
F. Confirmation. If Tenant has validly exercised its right to lease
any Refusal Space, then, within thirty (30) days after the request by
either party, Landlord and Tenant shall enter into a written amendment of
this Lease confirming the terms, conditions and provisions applicable to
such portion of the Refusal Space as set forth in Landlord's Refusal
Notice.
26. RIGHT OF FIRST OFFER. Subject to the provisions hereinafter set forth
and subject and subordinate to any and all rights of any other tenant or
occupant of the Building (including, without limitation, the extension or
renewal of any lease of the First Offer Space by the then existing tenant or
occupant thereof), and provided Tenant has not exercised its termination option
under Section 27 below, Landlord hereby grants to Tenant the right to lease, on
the terms and conditions hereinafter set forth, the space in the Building
identified on Exhibit E attached hereto (the "First Offer Space"), if such space
becomes available for leasing after the 1st anniversary of the Commencement Date
and prior to the 3rd anniversary of the Commencement Date (the "Offer Period").
If, during the Offer Period, Landlord gives Tenant notice that the First Offer
Space, or a portion thereof, is available for leasing, then if, within ten (10)
business days after the delivery of such notice, Tenant shall give Landlord
written notice that Tenant elects to negotiate a lease of the First Offer Space,
or applicable portion thereof, Landlord shall not offer such space for rent to a
third party for at least fifteen (15) business days after Tenant gives Landlord
notice of its desire to negotiate a lease for the First Offer Space, or
applicable portion thereof. Tenant may only lease the entire, but not less than
the entire First Offer Space, or applicable offered portion thereof, if it
becomes available for leasing. If Tenant gives Landlord notice that it does not
elect to negotiate a lease for such First Offer Space, or applicable portion
thereof, or if, within fifteen (15) business days following Landlord's receipt
of notice that Tenant desires to negotiate a lease for the First Offer Space, or
applicable portion thereof, the parties shall fail to agree on the terms of a
lease therefor, Landlord may lease such space to a third party on such terms and
conditions as Landlord may desire.
27. RIGHT TO TERMINATE. Tenant shall have the option, to be exercised as
hereinafter provided, to terminate the term of this Lease effective as of the
3rd anniversary of the Rent Commencement Date (the "Termination Date"). Such
option shall be exercised, if at all, time being of the essence, by written
notice given by Tenant to Landlord ("Termination Notice") no later than the 2nd
anniversary of the Rent Commencement Date, and subject to payment by Tenant to
Landlord of an amount equal to 12 times the monthly installment of Rent,
including Base Rent and then applicable Adjustment Rent, payable for the last
full calendar month immediately prior to the Termination Date (the "Termination
Fee"). One-half (1/2) of the Termination Fee shall be paid simultaneously with
the giving of the Termination Notice and the balance shall be paid no later than
sixty (60) days prior to the Termination Date. Tenant may not, unless Landlord
otherwise agrees, exercise its option to terminate this Lease pursuant to this
Section 27 at any time at which a Default by Tenant exists under this Lease, and
no such
E-30
termination shall be effective if such Default exists unless Landlord otherwise
agrees. Any notice of exercise of Tenant's option to terminate the term of this
Lease pursuant to this Section 27 shall be irrevocable by Tenant once given. If
Tenant so exercises its option to terminate the term of this Lease and pays to
Landlord the Termination Fee as above provided, then effective as of the
Termination Date, this Lease shall be deemed to have expired by lapse of time,
and Tenant shall return the Premises to Landlord on the Termination Date in
accordance with the requirements of this Lease. All obligations of Tenant which
accrue under this Lease on or before the Termination Date shall survive such
termination.
28. RIGHT TO EXTEND.
A. Option Period. Provided that the Lease is then in full force and
effect, that Tenant is not then in default under the Lease, and that Tenant
is then occupying 50% or more of the Premises having been leased to the
Tenant in the Building, Landlord hereby grants to Tenant an option to
extend the term of the Lease, on the same terms and conditions set forth in
the Lease, except that Tenant shall have no further right to extend and
except as set forth below, for one (1) additional five (5) year term (the
"Option Period"). Tenant's right to exercise its option to extend shall be
conditioned upon Landlord's receipt, no later than nine (9) months prior to
the Expiration Date of Tenant's then current certified financial statements
showing that Tenant has a net worth which is sufficient in Landlord's
reasonable judgement to meet the obligations of Tenant under this Lease
during such Option Period. The option to extend shall be exercised, if at
all, by written notice ("Option Notice") to Landlord given not later than
nine (9) months prior to the Expiration Date, time being of the essence.
Once the Option Notice is given, Tenant's exercise of such option shall be
irrevocable. If the option hereby granted is not so exercised, Tenant shall
have no further right to extend the term of this Lease. The Base Rent
during the Option Period shall be the Market Rate of Base Rent (as
hereinafter defined). Landlord shall have no obligation to make
improvements, decorations, repairs, alterations or additions to the
Premises as a condition to Tenant's obligation to pay rent for the Option
Period.
B. Market Rate of Base Rent. As used in this Lease, the term "Market
Rate of Base Rent" shall mean the then prevailing annual rental rate per
square foot of rentable area of space in the Itasca/Schaumburg, Illinois,
market area, comparable in area and location to the space for which the
Market Rate of Base Rent is being determined and being leased for a
duration comparable to the period for which such space is to be leased for
periods commencing on or about the commencement of the term of such space.
The Market Rate of Base Rent shall be determined by taking into
consideration comparable fact situations in comparable buildings in the
Itasca/Schaumburg, Illinois, market area. In determining the Market Rate of
Base Rent, the following shall be taken into consideration: use, location
and floor level within the applicable building, the tenant improvements
already in the space for which the Market Rate of Base Rent is being
determined, taking into account the age and condition of any such existing
tenant improvements, the location, quality, age and reputation of the
building, the definition of rentable area or net rentable area, as the case
may be, with respect to which such rental rates are computed, leasehold
improvements being provided (if any), rental concessions,
E-31
abatements or other monetary inducements (if any), the term of the lease
under consideration and the extent of services provided thereunder,
applicable distinctions between "gross" leases and "net" leases, base year
figures (if any) for escalation purposes and other adjustments (including
by way of indexes) to base rental (if any); and may take into consideration
any other relevant term or condition in making such evaluation.
C. Arbitration. Landlord shall notify Tenant of Landlord's
determination of the Market Rate of Base Rent within thirty (30) days after
receipt of Tenant's Option Notice. If Tenant disagrees with Landlord's
determination of the Market Rate of Base Rent, Tenant shall notify Landlord
of such disagreement within ten (10) days after receipt of Landlord's
determination of the Market Rate of Base Rent. If Tenant fails to so notify
Landlord of Tenant's disagreement within the required time period,
Landlord's determination of the Market Rate of Base Rent shall be binding
on Tenant. If Tenant so notifies Landlord that Landlord's determination of
the Market Rate of Base Rent is not acceptable to Tenant, Landlord and
Tenant shall, during the thirty (30) day period after Tenant's notice,
attempt to agree on the Market Rate of Base Rent. If Landlord and Tenant
are unable to agree, Tenant shall either (i) accept Landlord's
determination of the Market Rate of Base Rent or (ii) submit the
determination to binding arbitration as provided below. If Tenant fails to
so notify Landlord of Tenant's election under the preceding sentence within
said thirty (30) day period, Tenant shall be deemed to have accepted
Landlord's determination. If Tenant elects to submit to arbitration the
determination of the Market Rate of Base Rent, Landlord and Tenant shall
select an expert within fifteen (15) days after Tenant's election to
arbitrate. If Landlord and Tenant are unable to agree upon an expert within
said fifteen (15) day period, then Landlord and Tenant shall each select an
expert within five (5) days after the expiration of said fifteen (15) day
period. Each such expert shall be actively engaged in and have a minimum of
ten (10) years experience in leasing similar office real estate and be
familiar with similar office buildings in Itasca/Schaumburg, Illinois,
area. If two (2) experts are so selected, then both experts so selected
shall within fifteen (15) days after their selection select a third expert
who shall be a MAI appraiser who shall be actively engaged in and have a
minimum of ten (10) years experience in appraising or leasing similar
office real estate and shall be familiar with similar office buildings in
the Itasca/Schaumburg, Illinois, area. After selection of the expert or
experts, as the case may be, each of Landlord and Tenant shall submit to
the expert or experts their respective determination of the Market Rate of
Base Rent. The expert or experts, as the case may be, so selected shall
within fifteen (15) days after selection determine which of Landlord's or
Tenant's determination reflects, in such expert or experts, as the case may
be, opinion the Market Rate of Base Rent. The expert or experts, as the
case may be, shall only be permitted to select either Landlord or Tenant's
determination and shall not be permitted to determine a different Market
Rate of Base Rent. The determination of the Market Rate of Base Rent by
such expert or experts shall be binding upon Landlord and Tenant. If one
(1) expert is selected, Landlord and Tenant shall share equally the costs
of such expert. If three (3) experts are selected, Landlord and Tenant
shall each pay for the services of its expert and shall share equally the
costs of the third expert.
E-32
IN WITNESS WHEREOF, the parties hereto have executed this Lease in a manner
sufficient to bind them as of the day and year first above written.
LANDLORD:
NATIONAL OFFICE PARTNERS
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: ▇▇▇▇▇ NATIONAL OFFICE PARTNERS
LIMITED PARTNERSHIP, a Texas limited
partnership, its general partner
By: Hines Fund Management, L.L.C., a Delaware
limited liability company, its general partner
By: ▇▇▇▇▇ Interests Limited Partnership, a Delaware
limited partnership, sole member
By: ▇▇▇▇▇ Holdings, Inc., a Texas corporation,
its general partner
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Executive Vice President
TENANT:
NEW CENTURY MORTGAGE CORPORATION,
a California corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------------
Name:
------------------------------
Its: VP Corp Services
-------------------------------
E-33