Exhibit 99.1
Form of the ground lease between the Company and Advocate Health and Hospitals
Corporation relating to 7 of the 8 properties acquired.
GROUND LEASE
between
ADVOCATE HEALTH AND HOSPITALS CORPORATION,
an Illinois not for profit corporation
as Landlord,
and
GLR-MEDICAL PROPERTIES ONE, LLC ,
a Delaware limited liability company
as Tenant
Premises: Good Xxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxx
Dated as of October 1, 2002
TABLE OF CONTENTS
ARTICLE PAGE
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ARTICLE 1 DEFINITIONS.................................................................................1
ARTICLE 2 PREMISES AND TERM OF LEASE; EASEMENTS AND MAINTENANCE OF COMMON AREAS......................6
ARTICLE 3 RENT.......................................................................................10
ARTICLE 4 IMPOSITIONS................................................................................12
ARTICLE 5 DEPOSITS FOR IMPOSITIONS...................................................................15
ARTICLE 6 LATE CHARGES...............................................................................16
ARTICLE 7 INSURANCE..................................................................................17
ARTICLE 8 USE OF CASUALTY INSURANCE PROCEEDS.........................................................20
ARTICLE 9 CONDEMNATION...............................................................................24
ARTICLE 10 ASSIGNMENT, SUBLETTING AND MORTGAGES......................................................27
ARTICLE 11 REPAIRS...................................................................................34
ARTICLE 12 CHANGES, ALTERATIONS AND ADDITIONS........................................................34
ARTICLE 13 REQUIREMENTS OF PUBLIC AUTHORITIES AND OF INSURANCE UNDERWRITERS AND POLICIES.............35
ARTICLE 14 EQUIPMENT.................................................................................36
ARTICLE 15 DISCHARGE OF LIENS; BONDS.................................................................37
ARTICLE 16 NO REPRESENTATIONS........................................................................38
ARTICLE 17 LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC.............................................38
ARTICLE 18 INDEMNIFICATION...........................................................................39
ARTICLE 19 RIGHT OF INSPECTION.......................................................................41
ARTICLE 20 LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS............................................42
ARTICLE 21 NO ABATEMENT OF RENTAL....................................................................43
ARTICLE 22 PERMITTED USE: NO UNLAWFUL OCCUPANCY; OPERATION OF THE PREMISES..........................43
ARTICLE 23 EVENTS OF DEFAULT AND REMEDIES............................................................47
ARTICLE 24 NOTICES...................................................................................55
ARTICLE 25 SUBORDINATION; ATTORNMENT.................................................................56
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ARTICLE PAGE
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ARTICLE 26 HAZARDOUS SUBSTANCES......................................................................58
ARTICLE 27 EXCAVATIONS AND SHORING...................................................................63
ARTICLE 28 CERTIFICATES BY LANDLORD AND TENANT.......................................................64
ARTICLE 29 CONSENTS AND APPROVALS....................................................................64
ARTICLE 30 SURRENDER AT END OF TERM..................................................................65
ARTICLE 31 ENTIRE AGREEMENT..........................................................................67
ARTICLE 32 QUIET ENJOYMENT...........................................................................67
ARTICLE 33 SEVERABILITY..............................................................................67
ARTICLE 34 RECORDING OF LEASE........................................................................67
ARTICLE 35 EXCULPATION...............................................................................67
ARTICLE 36 MISCELLANEOUS.............................................................................68
EXHIBIT A DESCRIPTION OF THE LAND
EXHIBIT B DESCRIPTION OF THE HOSPITAL PROPERTY
EXHIBIT C PERMITTED ENCUMBRANCES
EXHIBIT D BASE RENT
EXHIBIT E SITE PLAN
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GROUND LEASE
THIS GROUND LEASE (the "Lease") is made as of the 1st day of October,
2002, between ADVOCATE HEALTH AND HOSPITALS CORPORATION ("Landlord"), a not for
profit corporation existing under the laws of the State of Illinois, having an
office at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, and GLR-MEDICAL
PROPERTIES ONE, LLC ("Tenant"), a limited liability company existing under the
laws of the State of Delaware, having an office at c/o
Great Lakes REIT, 000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
It is hereby mutually covenanted and agreed by and between the parties
hereto that this Lease (hereinafter defined) is made upon the terms, covenants
and conditions hereinafter set forth.
ARTICLE 1
DEFINITIONS
The terms defined in this Article 1, for all purposes of this Lease, shall
have the following meanings:
1.1 "Additional Rent" shall have the meaning provided in Section 3.2.
1.2 "Affiliate" means with respect to any specified Person, any other
Person which, directly or indirectly, through one or more intermediaries,
Controls or is Controlled by or is under common Control with such Person.
1.3 "Base Rent" shall have the meaning provided in Section 3.1.
1.4 "BOMA Standards" shall mean those standards adopted from time to time
by the Building Owners and Managers Association International.
1.5 "Buildings" shall mean the office building(s), Equipment and other
improvements and appurtenances of every kind and description now located on the
Land, and any and all alterations and replacements thereof, additions thereto
and substitutions therefor hereafter erected, constructed or placed on or about
the Land.
1.6 "Business Day" shall mean any day, which is not a Saturday, Sunday, or
a day observed as a holiday by either the State of Illinois or the United States
government.
1.7 "Capital Improvement" shall have the meaning provided in Section 12.1.
1.8 "City" shall mean the city, village or town in which the Premises
(hereinafter defined) are located.
1.9 "Claim" shall have the meaning provided in Section 26.1(a).
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1.10 "Commencement Date" shall mean the date of commencement of the Term
(hereinafter defined) as set forth in Article 2.
1.11 "Condemnation Fraction" shall have the meaning provided in Section
9.1(b).
1.12 "Control" with respect to any Person, including the correlative
meanings of the terms "controlled by" and "under common control with" shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such person, whether through the
ownership of voting securities or partnership or membership interests, by
contract or otherwise.
1.13 "Construction Agreements" shall mean agreements for construction,
Restoration, Capital Improvement, rehabilitation, alteration, extension or
repair performed pursuant to this Lease.
1.14 "Default" shall mean any condition or event, which constitutes or,
after the giving of notice or the passage of time or both, would constitute an
Event of Default (hereinafter defined).
1.15 "Deficiency" shall have the meaning provided in Section 23.4(c).
1.16 "Depositary" shall mean first any Fee Mortgagee who would qualify as
an Institutional Lender, and then any Institutional Mortgagee having an office
in Illinois. If no Fee Mortgagee or Institutional Mortgagee meeting the
aforementioned requirements shall exist, then "Depositary" shall mean any Person
(hereinafter defined) who qualifies as an Institutional Lender and who is
designated from time to time by Landlord to serve as Depositary pursuant to this
Lease.
1.17 "Environmental Law" shall have the meaning provided in Section
26.1(b).
1.18 "Equipment" shall mean any and all fixtures, equipment and machinery
of every kind and nature whatsoever now or hereafter affixed or attached to the
Buildings, or now or hereafter used or procured for use in connection with the
operation, use or occupancy thereof, and the appurtenances thereof, but
excluding therefrom all trade fixtures and articles of personal property title
to which is vested in the tenants under any leases of space therein or in
contractors engaged in maintaining the Premises.
1.19 "Event of Default" shall have the meaning provided in Section 23.1.
1.20 "Expiration Date" shall mean the date of the expiration of the Term
as set forth in Article 2.
1.21 "Fee Mortgage" shall mean any mortgage or trust deed which now or
hereafter is a lien on the entire fee simple title to the Land or the Premises,
or any part thereof, as the same may be renewed, modified, amended, extended,
consolidated or coordinated from time to time.
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1.22 "Fee Mortgagee" shall mean the holder of a Fee Mortgage, including,
without limitation, an Institutional Mortgagee (as hereinafter defined).
1.23 "Governmental Authority (Authorities)" shall mean the United States
of America, the State of Illinois, County of Lake and City, and any agency,
authority, department, commission, board, bureau, instrumentality or political
subdivision of any of the foregoing, now existing or hereafter created, having
jurisdiction over the Premises or any portion thereof.
1.24 "Hazardous Materials" shall have the meaning provided in Section
26.1(c).
1.25 "Hospital" shall mean Good Shepherd Hospital.
1.26 "Hospital Property" shall mean the parcel of real estate, exclusive
of the Land and Buildings, legally described on Exhibit B attached hereto and
made a part hereof, together with the improvements located thereon, including
the Hospital.
1.27 "Impositions" shall have the meaning provided in Section 4.1.
1.28 "Indemnified Party" shall have the meaning provided in Section 18.1.
1.29 "Institutional Lender" shall mean a savings bank, a savings and loan
association, a commercial bank or trust company (whether acting individually or
in a fiduciary capacity), a pension or retirement fund, an accredited college or
university, an insurance company organized and existing under the laws of the
United States or any state thereof, a real estate investment trust existing in
compliance with Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended, or any combination of Institutional Lenders.
1.30 "Institutional Mortgagee" shall mean an Institutional Lender which is
a mortgagee under a Leasehold Mortgage (hereinafter defined) or a Fee Mortgage.
1.31 "Insurance Policies" shall mean any and all insurance policies, which
Tenant is required to procure and maintain pursuant to this Lease.
1.32 "Interest Rate" shall mean the corporate rate of interest as
announced from time to time by Bank One, N.A. (Chicago), or such successor or
alternate financial institution as Landlord may reasonably designate, plus two
percent (2%), not to exceed the highest rate of interest permitted by law.
1.33 "Land" shall mean the parcel of real estate legally described on
Exhibit A attached hereto and made a part hereof.
1.34 "Landlord," on the date as of which this Lease is made, shall mean
Advocate Health and Hospitals Corporation, an Illinois not-for-profit
corporation ("Advocate"), but thereafter, "Landlord" shall mean only the holder
of the landlord's interest in the Land at the time in question, so that if
Advocate or any successor to its interest hereunder ceases to have
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any interest in the Land as the result of a sale or sales or transfer or
transfers of the landlord's interest in the Land, then the landlord under this
Lease at the time of such sale or sales or transfer or transfers shall be and
hereby is entirely freed and relieved of all agreements, covenants and
obligations of Landlord hereunder to be performed on or after the date of such
sale or transfer, and it shall be deemed and construed without further agreement
between the parties or their successors in interest and the Person who then
acquires or owns the landlord's interest in the Land, including, without
limitation, the purchaser or transferee in any such sale or transfer, that such
Person has assumed and agreed to carry out, any and all agreements, covenants
and obligations of Landlord hereunder accruing on or after the date of the
aforesaid sale or transfer.
1.35 "Lease" shall mean this Ground Lease and all amendments,
modifications, extensions and renewals hereof and exhibits attached hereto.
1.36 "Lease Year" shall mean each consecutive 12 month period during the
Term, the first Lease Year commencing on the Commencement Date and expiring at
midnight of the day preceding the first anniversary of the Commencement Date,
and each successive consecutive 12 month period thereafter.
1.37 "Leasehold Mortgage" shall mean a mortgage or deed of trust,
including, without limitation, any modification, amendment, spreader,
consolidation or renewal thereof, which constitutes a lien on Tenant's interest
in this Lease and the leasehold interest created hereby, provided such mortgage
is held by (i) an Institutional Lender or its assignee, or (ii) a Person
formerly constituting Tenant, if such mortgage is made to such Person in
connection with a permitted assignment by it of its interest in the Lease.
1.38 "Leasehold Mortgagee" shall mean the mortgagee under a Leasehold
Mortgage, including, without limitation, an Institutional Mortgagee.
1.39 "Liability Insurance" shall have the meaning provided in Section
7.1(a)(ii).
1.40 "Manage" shall have the meaning provided in Section 26.1(d).
1.41 "Medical Campus" shall have the meaning provided in Section 2.1.
1.42 "Net Replacement Cost" shall mean the actual replacement cost of the
Buildings (excluding foundation and excavation costs, but including the cost of
debris removal and of replacing all Equipment appurtenant to, located in or used
in connection with the Building) without physical depreciation.
1.43 "Nondisturbance Agreement" shall have the meaning provided in Section
25.1.
1.44 "Notice" shall have the meaning provided in Section 24.1.
1.45 "Permitted Encumbrances" shall mean the items set forth in Exhibit C
attached hereto and made a part hereof.
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1.46 "Person" shall mean and include an individual, corporation,
partnership, joint venture, estate, trust, unincorporated association or any
federal, state, county or municipal government or any bureau, department,
authority or agency thereof.
1.47 "Premises" shall have the meaning provided in Article 2.
1.48 "Release" or "Released" shall have the meaning provided in Section
26.1(e).
1.49 "Rental" shall have the meaning provided in Section 3.3.
1.50 "Requirements" shall have the meaning provided in Section 13.1.
1.51 "Response" or "Respond" shall have the meaning provided in Section
26.1(f).
1.52 "Restoration" shall have the meaning provided in Section 8.1.
1.53 "Restoration Funds" shall have the meaning provided in Section 8.2.
1.54 "Restore" shall have the meaning provided in Section 8.1.
1.55 "Significant Portion" shall have the meaning provided in Section
9.1(e).
1.56 "Space Tenant" shall have the meaning provided in Section 10.4.
1.57 "Space Lease" shall have the meaning provided in Section 10.4.
1.58 "Tenant" shall mean GLR-Medical Properties One, LLC, provided,
however, that whenever this Lease and the leasehold estate hereby created shall
be assigned or transferred in accordance with the terms of and in the manner
specifically permitted by this Lease, then, from and after the date of such
assignment or transfer and until the next permitted assignment or transfer, the
term "Tenant" shall mean the permitted assignee or transferee, except that the
assignor shall continue to remain liable with respect to any obligations or
liabilities of Tenant hereunder which arose or accrued prior to the date of such
assignment.
1.59 "Term" shall mean the term of this Lease as set forth in Article 2
hereof.
1.60 "Unavoidable Delays" shall mean delays incurred by Tenant due to
strikes, lockouts, acts of God, enemy action, acts of terrorism, civil
commotion, governmental restrictions or preemption, fire or other casualty,
adverse weather conditions, energy rationing or other causes beyond the
reasonable control of Tenant (not including Tenant's insolvency, bankruptcy or
financial condition or financial difficulties or problems or any action by
Tenant or any Affiliate of Tenant).
1.61 "Zoning Laws" shall mean the zoning laws of the City, as the same may
be amended from time to time.
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ARTICLE 2
PREMISES AND TERM OF LEASE;
EASEMENTS AND MAINTENANCE OF COMMON AREAS
2.1 Landlord does hereby demise and lease to Tenant, and Tenant does
hereby lease, hire and take from Landlord, the Land and all necessary easements
and appurtenances in Landlord's adjacent land, highways, roads and streets
(whether public or private) reasonably required for the installation of
utilities and for parking areas, driveways and approaches to and from abutting
streets for the use and benefit of the Land (the foregoing being referred to,
together with the Buildings which have been conveyed by Landlord to Tenant
concurrently with the execution and delivery of this Lease, collectively as the
"Premises"), subject to the Permitted Encumbrances. The parties acknowledge that
the Premises, together with the Hospital Property, forms a part of a medical
campus (the "Medical Campus").
Tenant shall have and hold the Premises for a term of 75 years (the
"Term") commencing on October 1, 2002 (the "Commencement Date") and expiring at
midnight of the day immediately preceding the 75th anniversary of the
Commencement Date or on such earlier date upon which this Lease may be
terminated as hereinafter provided (the "Expiration Date").
2.2
(a) Landlord hereby grants to Tenant a non-exclusive easement,
appurtenant to the Land, to use all of those portions of the Hospital
Property designated as common areas, parking areas and driveways on the
Site Plan attached hereto as Exhibit E, for vehicular and pedestrian
ingress/egress and parking purposes during the entire Term of this Lease,
for the benefit of Tenant, its invitees, licensees, assigns, subtenants
and patrons, in common with all other tenants of the Medical Campus.
Landlord shall have the right to locate, relocate, modify, add to or
construct any parking areas and driveways or other facilities now or
hereafter installed or erected on the Hospital Property and to designate
in Landlord's reasonable judgment any such parking areas on the Hospital
Property to be reserved for the exclusive use of Landlord and its
invitees, licensees, employees, tenants and patrons; provided, however,
that no such location, relocation, modification, addition or construction
shall unreasonably interfere with or diminish access to the Land provided
for in this Lease or otherwise impair the exercise by Tenant of the rights
conferred to Tenant. In addition, Landlord shall have the right from time
to time to temporarily close or obstruct any portions of such easements if
and to the extent necessary to perform maintenance, repair, restoration
and excavation thereof or in the case of an emergency. Landlord will take
reasonable steps in connection with exercising such rights to minimize any
disruption to or interference with Tenant's (or any subtenant's or other
occupant's) use of the Premises, and Landlord shall not take any measures
which will have a material and adverse impact on access to the Premises
without Tenant's consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
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(b) Landlord hereby grants to Tenant non-exclusive easements,
appurtenant to the Land, to use portions of the Hospital Property as may
reasonably be required now or in the future by Tenant for the
installation, maintenance and repair of all utilities, including without
limitation, telephone, sewer, detention/retention and other stormwater
management facilities, water, gas and electric utilities and related
facilities. If any of these utilities are supplied, installed or otherwise
controlled by Landlord, Landlord grants Tenant, its successors and
assigns, the right to use coupled with its easement, such utilities and
related facilities; and Landlord covenants and agrees to maintain the
utility lines in good condition and repair for Tenant.
(c) Tenant hereby grants to Landlord exclusive easements to use such
portions of the Buildings as may be necessary from time to time to
install, maintain, display and repair signs, subject to the reasonable
approval of Tenant. Tenant covenants that it shall not at any time during
the Term install or display or caused to be installed or displayed any
signage on the exterior of the Buildings without obtaining the prior
written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed.
(d) During the Term, and except for Tenant's repair and maintenance
obligations with respect to the Premises described in the Lease, Landlord
shall maintain, repair and replace, as necessary, or cause to be
maintained, repaired and replaced, as necessary, in accordance with
standards not less than the standards by which the Medical Campus was
maintained as of the Commencement Date, the parking areas, access drives,
walkways, bridges, vestibules, landscaped areas, any onsite and off-site
retention and detention areas serving the Medical Campus and other common
areas improvements in the Medical Campus, if any, including any of the
foregoing that may be located on the Land, and Tenant hereby grants to
Landlord non-exclusive easements to use portions of the Land and Buildings
as may reasonably be required now or in the future by Landlord for the
installation, maintenance, repair and replacement of any such parking
areas, access drives and retention and detention areas, as well as any
telecommunications, security and other facilities to be provided in the
Buildings. Landlord will provide reasonable advance notice to Tenant prior
to any such installation, maintenance, repairs or replacements and
Landlord will take reasonable steps in connection with exercising such
rights to minimize any disruption to, or interference with, Tenant's (or
any subtenant's or other occupant's) use of the Premises, and Landlord
shall not take any measures which will have a material and adverse impact
on access to the Premises without Tenant's consent, which consent shall
not be unreasonably withheld, conditioned or delayed.
(e) During the Term of this Lease, Landlord shall have the right to
enact reasonable rules for all tenants concerning the conduct and
operation of the common areas, provided the same do not violate this
Lease.
(f) Notwithstanding the above or anything in this Lease to the
contrary, Tenant shall have no obligation (except to pay the Maintenance
Expenses) or liability whatsoever in connection with the
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ownership, maintenance or management of the parking areas, the access
drives, walkways, bridges, vestibules, landscaped areas, retention areas
and other common areas, if any, involved, including any of the foregoing
that may be located on the Land, and that Landlord shall manage, operate,
maintain, repair and replace, in accordance with standards not less than
the standards by which the common areas were maintained as of the
Commencement Date, the parking areas, the access drives, walkways,
bridges, vestibules, landscaped areas, retention areas and other common
areas or cause such to be done on its behalf, and that Landlord, or its
nominee, shall provide and maintain, at its cost and expense, during the
Term an insurance policy or policies in accordance with the terms of the
Lease and as may be customary for the owners of similar first-class
medical office campuses. Landlord will provide reasonable advance notice
to Tenant prior to any such installation, maintenance, repairs or
replacements and Landlord will take reasonable steps in connection with
exercising such rights to minimize any disruption to, or interference
with, Tenant's (or any subtenant's or other occupant's) use of the
Premises, and Landlord shall not take any measures which will have a
material and adverse impact on access to the Premises without Tenant's
consent, which consent shall not be unreasonably withheld, conditioned or
delayed.
(g) Tenant agrees to pay a proportionate share of the Maintenance
Expense for the Medical Campus. The "Maintenance Expense" shall be defined
to be those costs and expenses paid by Landlord as determined below. The
proportionate share shall be determined by taking the ratio of the total
area of the Buildings to the total area of all buildings on the Medical
Campus (as the same are calculated in accordance with BOMA Standards,
including, but not limited to, the Hospital, as the same may be adjusted
from time to time.
(h) The "Maintenance Expense" shall be limited to Landlord's costs
and expenses for the Medical Campus actually paid by Landlord and
reasonably and equitably attributable to: (i) the operating, maintaining,
repairing, policing and cleaning of the parking areas, access drives and
other common areas and common improvements, if any, in the Medical Campus
as provided in the preceding Section and (ii) if the Land and the balance
of the Medical Campus are separately assessed, the Impositions (exclusive
of interest and penalties for late payment) on the land making up the
common areas improvements of the Medical Campus. Landlord and Tenant
acknowledge and agree that, as of the Commencement Date, Tenant's
proportionate share of the Maintenance Expense is 21.64%.
(i) The "Maintenance Expense" shall EXCLUDE any and all costs or
expenses associated with: (i) any capital improvements including, but not
limited to, any costs associated with the renovation or expansion of the
Medical Campus, (ii) structural repairs and repairs or replacements made
necessary by Landlord's non-compliance with governing codes, by-laws,
regulations and ordinances, (iii) remediation of hazardous substances and
soil and ground water contamination of any type, (iv) replacement costs of
any item to the extent that the depreciation or amortization of any such
item has been, or is, reflected in the total costs and expenses of the
maintenance, operation and repair of the common areas, (v) depreciation,
(vi) interest and
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principal payments of mortgage and other debts of Landlord, (vii) the cost
of repairs or other work to the extent Landlord is reimbursed by insurance
or condemnation proceeds or otherwise, (viii) costs incurred in connection
with the sale, financing or refinancing of all or any portion of the
Medical Campus, (ix) fines, interest and penalties incurred due to the
late payment of Maintenance Expenses, (x) organizational expenses
associated with the creation and operation of the entity which constitutes
Landlord, (xi) payments for rented equipment, the cost of which would
constitute a capital expenditure if the equipment were purchased, (xii)
costs of correcting violations of law, (xiii) salaries or fringe benefits
of (A) employees above the grade of property manager, general manager or
facilities manager and (B) employees whose time is not spent directly and
solely in the operation of the Medical Campus, provided that if any
employee performs services in connection with the Medical Campus and other
buildings, costs associated with such employee may be proportionately
included in Maintenance Expenses based on the percentage of time such
employee spends in connection with the operation, maintenance and
management of the Medical Campus, and (xiv) structural repairs or
resurfacing of any parking areas or parking decks.
(j) Landlord shall deduct in each calendar year from the Maintenance
Expenses, any revenues derived from the common areas (such as parking
fees), any amounts recovered by it from insurers of damage claims relating
to the common areas and any amounts recovered from third parties, other
than insurers, on account of any such claims for damages to common areas.
(k) As part of the Maintenance Expense, Landlord shall be entitled
to charge to Tenant its proportionate share of the actual wages reasonably
paid by Landlord to employees and independent contractors in connection
with the administration and supervision of the services provided by
Landlord pursuant to this Section 2.2.
(l) Tenant's proportionate share of the Maintenance Expense for a
calendar year shall be paid commencing on the Commencement Date in equal
monthly installments on the first day of each calendar month. The amount
of Tenant's share of the Maintenance Expense in any given year shall be
calculated on the basis of Tenant's proportionate share of the Maintenance
Expense actually expended by Landlord during the preceding calendar year
as reasonably determined by Landlord. At the conclusion of each calendar
year, Landlord shall determine the actual amount of Tenant's proportionate
share of the Maintenance Expense for the previous calendar year, based on
amounts actually expended by Landlord in the preceding calendar year. Any
refund payable to Tenant or any deficiency payable to Landlord for any
given year (based on the difference between, on the one hand, the
ESTIMATED amount of Tenant's proportionate share of the Maintenance
Expense and what, on the other hand, SHOULD HAVE been paid by Tenant based
on the actual amount of Tenant's proportionate share of the Maintenance
Expense for said year as calculated by Landlord) shall be made up in the
first month after the calculation for the prior year is provided to
Tenant. If the Commencement Date is other than the first day of the month,
the first such installment and the last such installment shall be further
adjusted for the proportionate fraction of the whole month. Tenant
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shall have the right to review all of Landlord's bills, invoices and
records concerning Maintenance Expenses. Any such review shall be
conducted at Landlord's offices following not less than ten days prior
written notice. Any undercharge or overcharge shall be paid, credited or
refunded, as applicable, promptly after such determination. Unless Tenant,
by written notice to Landlord, shall take exception to any item in any
annual statement of Maintenance Expenses within 180 days after the
furnishing of said statement, such statement shall be conclusively binding
upon Tenant. Any amount shown by such statement to be due to Landlord
whether or not written exception is taken to such statement, shall be paid
by Tenant, as provided in this Section 2.2, without prejudice to any such
written exception.
(m) Tenant hereby grants to Landlord a license to maintain a
hospital volunteer's desk at a location in the lobby of the Building that
is mutually acceptable to Landlord and Tenant, provided that Landlord
continues to man such volunteer's desk on a regular and frequent schedule
mutually acceptable to Landlord and Tenant. Landlord shall not be charged
any fee for the use of such lobby space.
(n) Landlord hereby grants to Tenant a license to use the dumpster
or compactor at the Hospital or on the Hospital Property, as the case may
be, provided that to the extent Tenant so uses such dumpster or compactor,
Tenant shall reimburse Landlord a reasonable proportionate share of such
cost, to the extent not previously included in Maintenance Expenses.
(o) To the extent Landlord provides security services to the
Premises, Landlord shall maintain, repair and replace, as necessary, or
cause to be maintained, repaired and replaced, as necessary, all security
cameras and related equipment serving the Premises, the Medical Campus and
other common area improvements in the Medical Campus, if any, and Tenant
hereby grants to Landlord non-exclusive licenses to use portions of the
Land and Buildings as may reasonably be required now or in the future by
Landlord for the installation, maintenance, repair and replacement of any
such security cameras and related equipment. Landlord will provide
reasonable advance notice to Tenant prior to any such installation,
maintenance, repairs or replacements and Landlord will take reasonable
steps in connection with exercising such rights to minimize any disruption
to, or interference with, Tenant's (or any subtenant's or other
occupant's) use of the Premises. All costs related to such security
services shall be included in Maintenance Expenses.
(p) Landlord hereby grants to Tenant a license to use the loading
dock and loading area at the Hospital or on the Hospital Property, as the
case may be, to the extent necessary for the delivery of items to be used
at the Premises by Tenant or other occupants of the Premises.
ARTICLE 3
RENT
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3.1 Tenant shall pay to Landlord, without offset or deduction and without
notice or demand, the sums set forth on Exhibit D (collectively, "Base Rent"),
payable in advance on the first day of each calendar month of the Term in equal
monthly installments (unless any such date is not a Business Day, in which case
payment shall be due on the next succeeding Business Day), for the period
commencing on the Commencement Date and continuing thereafter throughout the
Term. The first installment of Base Rent shall be due and payable on the
Commencement Date hereof. Base Rent shall be paid in lawful money of the United
States to Landlord at the office of Landlord set forth above or at such other
place as Landlord shall direct from time to time by written notice to Tenant.
3.2 Tenant shall also pay and discharge as additional rent (the
"Additional Rent") all other amounts, liabilities and obligations of whatsoever
nature relating to the Premises, including, without limitation, any amounts
arising under any operating easement, or other similar agreements affecting the
Premises or any adjoining property thereto, and all interest and penalties that
may accrue thereon in the event of Tenant's failure to pay such amounts when
due, and all damages, costs and expenses which Landlord may incur by reason of
any Default of Tenant or failure on Tenant's part to comply with any of the
terms of this Lease, all of which Tenant hereby agrees to pay within 30 days
after demand. Upon any failure on the part of Tenant to pay any of the
Additional Rent, Landlord shall have the same legal, equitable and contractual
rights, powers and remedies provided either in this Lease or by statute or by
common law or otherwise as are available to Landlord in the case of nonpayment
of Base Rent.
3.3 This Lease shall be deemed and construed to be a fully "net lease" and
Tenant shall pay to Landlord, absolutely net throughout the Term, all Base Rent
and Additional Rent (collectively, "Rental"), free of any charges, assessments,
impositions or deductions of any kind and without abatement, deduction or setoff
whatsoever in the manner set out above for payment of Base Rent, and under no
circumstances or conditions, whether now existing or hereafter arising, or
whether beyond the present contemplation of the parties, shall Landlord be
expected or required to make any payment of any kind whatsoever relating to the
Premises or be under any other obligation or liability hereunder or otherwise,
except as herein otherwise expressly set forth. Except for debt service on any
indebtedness of Landlord, Tenant shall pay all costs, expenses and charges of
every kind and nature relating to the Premises which may arise or become due or
payable prior to, during or after (but attributable to a period falling within)
the Term, including all costs, expenses and charges related to all recorded or
unrecorded agreements, easements, declarations, restrictions or other matters
affecting the title to the Premises, and Tenant hereby agrees to indemnify
Landlord against and hold Landlord harmless from the same. Except as otherwise
specifically provided in this Lease, Tenant's obligation to pay Rental hereunder
shall not terminate prior to the Expiration Date, notwithstanding the exercise
by Landlord of any or all of its rights under Article 23 hereof or otherwise,
and all the obligations of Tenant hereunder shall be absolute and shall not be
affected for any reason whatsoever, including, without limitation, by any damage
to or destruction of the Premises or any part thereof, any taking of the
Premises or any part thereof or interest therein by condemnation or otherwise,
any prohibition, limitation, restriction or prevention of Tenant's use,
occupancy or enjoyment of the Premises or any part thereof, or any interference
with such use, occupancy or enjoyment by any person or for any
11
reason, any matter affecting title to the Premises, any default by Landlord
hereunder, the impossibility, impracticability or illegality of performance by
Landlord, Tenant or both, any action of any governmental authority, Tenant's
acquisition of ownership of all or part of the Premises (unless this Lease shall
be terminated by a writing signed by all persons, including any Fee Mortgagee,
having an interest in the Premises), any breach of warranty or
misrepresentation, or any other cause whether similar to or dissimilar from the
foregoing and whether or not Tenant shall have notice or knowledge thereof and
whether or not such cause shall now be foreseeable. The parties intend that the
obligations of Tenant under this Lease shall be separate and independent
covenants and agreements and shall continue unaffected unless such obligations
have been modified or terminated pursuant to an express provision of this Lease.
3.4 Except as may otherwise be provided in this Lease, Tenant hereby
waives all right (i) to terminate this Lease, or (ii) to surrender this Lease,
or (iii) to any abatement, deferment, reduction, setoff, counterclaim or defense
with respect to any Rental payable hereunder. Tenant shall remain obligated
under this Lease in accordance with its terms and, except as may otherwise be
provided in this Lease, Tenant hereby waives any and all rights now or hereafter
conferred by statute or otherwise to modify or to avoid strict compliance with
its obligations under this Lease. Notwithstanding any such statute or otherwise,
Tenant shall be bound by all the terms and provisions contained in this Lease.
ARTICLE 4
IMPOSITIONS
4.1 To the extent provided by Landlord, Tenant shall pay or cause to be
paid, in a timely manner and as hereinafter provided, all of the following
items, if any, as may be attributable to the Premises (except to the extent
already included in Maintenance Expenses) ("Impositions"): (a) real property
taxes and assessments (including any real property taxes assessed against the
Hospital Property as a result of Tenant's use thereof,) (b) personal property
taxes; (c) occupancy and rent taxes; (d) water, water meter and sewer rents,
rates and charges; (e) vault charges; (f) levies; (g) license and permit fees;
(h) service charges, with respect to security services, police protection, fire
protection, street and highway maintenance, construction and lighting,
sanitation and water supply, if any; (i) gross receipts, excise or similar taxes
(i.e., taxes customarily based upon gross income or receipts which fail to take
into account deductions relating to the Premises) imposed or levied upon,
assessed against or measured by Base Rent or other Rental payable hereunder, but
only to the extent that such taxes would be payable if the Premises were the
only property of Landlord; (j) all excise, sales, value added, use and similar
taxes; (k) charges for utilities, communications and other services rendered or
used in or about the Premises; (l) payments in lieu of each of the foregoing,
whether or not expressly so designated; (m) fines, penalties and other similar
or like governmental charges applicable to any of the foregoing and any interest
or costs with respect thereto; and (n) any and all other federal, state, county
and municipal governmental and quasi-governmental levies, fees, rents,
assessments or taxes and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of every kind and nature whatsoever, and
any interest or costs with respect thereto, which at any time during, prior to
or after (but
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attributable to a period falling within) the Term are (1) assessed, levied,
confirmed, imposed upon, or would grow or become due and payable out of or in
respect of, or would be charged with respect to, the Premises or any document to
which Tenant is a party creating or transferring an interest or estate in the
Premises, the use and occupancy thereof by Tenant, or this transaction, and/or
(2) encumbrances or liens on (i) the Premises; (ii) any vault, passageway or
space in or under the sidewalks or streets in front of or adjoining the
Premises; (iii) any other appurtenances of the Premises; (iv) any personal
property, Equipment or other facility used in the operation thereof; or (v) the
Rental (or any portion thereof) payable by Tenant hereunder. Each such
Imposition, or installment thereof, during the Term shall be paid before the
last day the same may be paid without fine, penalty, interest or additional
cost; provided, however, that if, by law, any Imposition may at the option of
the taxpayer be paid in installments (whether or not interest shall accrue on
the unpaid balance of such Imposition), Tenant may exercise the option to pay
the same in such installments and shall be responsible for the payment of such
installments only, provided that all such installment payments relating to
periods prior to the date definitely fixed for the expiration of the Term are
required to be made prior to the Expiration Date.
4.2 Tenant, from time to time upon request of Landlord, shall furnish to
Landlord, within the earlier of (i) 30 days after the date when an Imposition is
due and payable under this Lease, or (ii) 30 days after the date when an
official receipt of the appropriate imposing authority is received, such
official receipt or, if no such receipt has been received by Tenant, other
evidence reasonably satisfactory to Landlord evidencing the payment of the
Imposition.
4.3 (a) Except as provided in subparagraph (b) hereinbelow, nothing
contained in this Article 4 shall require Tenant to pay municipal, state
or federal income, inheritance, estate, succession, capital levy, stamp,
excess profit, revenue or gift taxes of Landlord, or any corporate
franchise tax imposed upon Landlord.
(b) If at any time during the Term, a tax or excise on Rental or the
right to receive rents or other tax, however described, is levied or
assessed against Landlord as a substitute in whole or in part for any
Impositions theretofore payable by Tenant, Tenant shall pay and discharge
such tax or excise on Rental or other tax before interest or penalties
accrue, and the same shall be deemed to be an Imposition levied against
the Premises.
4.4 Any Imposition imposed against the Premises relating to a fiscal
period of the imposing authority, a part of which period is included within the
Term and a part of which is included in a period of time after the date
definitely fixed in Article 2 hereof for the expiration of the Term (whether or
not such Imposition shall be assessed, levied, confirmed, imposed upon or in
respect of or become a lien upon the Premises, or shall become payable, during
the Term) shall be apportioned between Landlord and Tenant as of such date
definitely fixed for the expiration of the Term, so that Tenant shall pay that
portion of such Imposition which that part of such fiscal period included in the
period of time before such date definitely fixed for the expiration of the Term
bears to the entirety of such fiscal period, and Landlord shall pay the
remainder thereof.
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4.5 Tenant shall have the right to contest the amount or validity, in
whole or in part, of any Imposition by appropriate proceedings diligently
conducted in good faith, but only after payment of such Imposition, unless such
payment would operate as a bar to such contest, in which event, notwithstanding
the provisions of Section 4.1 hereof, payment of such Imposition shall be
postponed if and only as long as:
(a) neither the Premises nor any part thereof would, by reason of
such postponement or deferment, be, in the reasonable judgment of
Landlord, in danger of being forfeited, lost or adversely affected;
(b) such contest shall not subject Landlord or any Fee Mortgagee to
the risk of any criminal or civil liability;
(c) such contest shall not cause Landlord to be in default under any
Fee Mortgage;
(d) such contest shall not, in the reasonable judgment of Landlord,
result in any Imposition being increased; and
(e) Tenant shall have deposited in an interest bearing account
with, at Landlord's option, either Landlord or a Depositary, either
pursuant to Article 5 or simultaneously with such contest, cash or other
security determined by Landlord in the amount so contested and unpaid,
together with all interest and penalties in connection therewith and all
charges that may be assessed against or become a charge on the Premises
or any part thereof in such proceedings.
Upon the termination of such proceedings, it shall be the obligation of
Tenant to pay the amount of such Imposition or part thereof as finally
determined in such proceedings, the payment of which may have been deferred
during the prosecution of such proceedings, together with any costs, fees
(including attorneys' fees and disbursements), interest, penalties or other
liabilities in connection therewith, and upon such payment, Landlord or
Depositary, as the case may be, shall return, with any interest accrued thereon,
any amount deposited with it in respect of such Imposition as aforesaid,
provided, however, that Landlord or Depositary, as the case may be, if requested
by Tenant, shall disburse said moneys on deposit with it directly to the
imposing authority to whom such Imposition is payable. If, at any time during
the continuance of such proceedings, Landlord shall reasonably deem the amount
deposited as aforesaid insufficient, Tenant, upon demand, shall make an
additional deposit of such additional sums or other acceptable security as
Landlord may request, and upon failure of Tenant to do so, the amount
theretofore deposited may, at the option of Landlord, be applied by Landlord or
Depositary, as the case may be, to the payment, removal and discharge of such
Imposition and the interest and penalties in connection therewith and any
reasonable costs, fees (including reasonable attorneys' fees and disbursements)
or other liability accruing in any such proceedings, and the balance, if any,
shall be returned to Tenant or the deficiency, if any, shall be paid by Tenant
on demand.
4.6 Subject to the provisions of Section 4.5, Tenant shall have the right
to seek a reduction in the assessed valuation of the Premises for real property
tax purposes and to prosecute any action or proceeding in connection therewith.
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4.7 Landlord shall not be required to join in any proceedings referred to
in Sections 4.5 or 4.6 hereof unless the provisions of any law, rule or
regulation at the time in effect shall require that such proceedings be brought
by and/or in the name of Landlord, in which event, Landlord shall join and
cooperate in such proceedings or permit the same to be brought in its name but
shall not be liable for the payment of any costs or expenses in connection with
any such proceedings, and Tenant shall reimburse and indemnify Landlord for any
and all costs or expenses which Landlord may sustain or incur in connection with
any such proceedings.
4.8 Any certificate, advice or xxxx of the appropriate official designated
by law to make or issue the same or to receive payment of any Imposition
asserting nonpayment of such Imposition shall be PRIMA FACIE evidence that such
Imposition is due and unpaid at the time of the making or issuance of such
certificate, advice or xxxx.
ARTICLE 5
DEPOSITS FOR IMPOSITIONS
5.1 (a) In order to assure the payment of all Impositions, Tenant shall
deposit in an interest bearing account with Depositary on the first day of
each and every month during the Term, an amount equal to one-twelfth
(1/12th) of the annual Impositions then in effect, as reasonably estimated
by Landlord. If, at any time, the monies so deposited by Tenant shall be
insufficient to pay in full the next installment of Impositions then due,
Tenant shall immediately deposit the amount of the insufficiency with
Depositary to enable Depositary to pay each installment of Impositions at
least 30 days prior to the due date thereof. Notwithstanding the
foregoing, if any Fee Mortgagee or Leasehold Mortgagee requires the
deposit by Tenant of amounts to be used to pay Impositions, then Landlord
may elect, by delivering written notice thereof to Tenant, to waive the
requirement that Tenant make deposits under this Section 5.1(a), which
waiver shall be effective during the period in which Tenant is required to
make said deposits with the particular mortgagee in question.
(b) Depositary shall hold the deposited moneys in a special account
bearing interest for the benefit of Tenant for the purpose of paying the
charges for which such amounts have been deposited as they become due, and
Depositary shall apply the deposited moneys for such purpose not later
than the last day on which any such charges may be paid without penalty,
fine or interest.
(c) If, at any time, the amount of any Imposition is increased or
Landlord receives information that an Imposition will be increased and the
monthly deposits then being made by Tenant under this Article would be
insufficient to pay such Imposition at least 30 days prior to the due date
thereof, the monthly deposits shall thereupon be increased and Tenant
shall, on Landlord's demand, deposit immediately with Depositary
sufficient moneys for the payment of the increased Imposition. Thereafter,
the monthly payments shall be adjusted so that Depositary shall receive
from Tenant sufficient moneys to pay each Imposition at least 30 days
prior to the due date of such Imposition.
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(d) For the purpose of determining whether Depositary has on hand
sufficient moneys to pay any particular Imposition at least 30 days prior
to the due date thereof, deposits for each category of Imposition shall be
treated separately. Depositary shall not be obligated to use moneys
deposited for the payment of an item not yet due and payable for the
payment of an item that is due and payable.
(e) Notwithstanding the foregoing, (i) deposited moneys may be held
by Depositary in a single bank account, and (ii) Depositary shall, at
Landlord's option and direction, use moneys so deposited to make any
payment required under this Lease following the occurrence of any Default.
(f) If this Lease shall be terminated by reason of any Event of
Default, all deposited moneys under this Article then held by Depositary
shall be paid to and applied by Landlord in payment of any and all sums
due under this Lease, in such order as Landlord shall determine in its
sole discretion, and Tenant shall promptly pay the resulting deficiency.
(g) Tenant shall apply any interest paid on moneys deposited
pursuant to this Article pursuant to the foregoing provisions against
amounts thereafter becoming due and payable.
5.2 In the event of a sale or transfer by Landlord of its interest in the
Premises, Landlord shall transfer to the person who owns or acquires such
interest in the Premises or is the transferee of Landlord's interest under this
Lease, all of Landlord's rights with respect to the deposits made pursuant to
Section 5.1, subject to the provisions thereof. Upon such transfer and notice
thereof to Tenant, the transferor shall be deemed to be released from all
liability with respect thereto and Tenant shall look solely to the transferee
with respect thereto, and the provisions hereof shall apply to each successive
transfer of the landlord's rights with respect to the deposits.
5.3 Notwithstanding anything to the contrary contained in this Article 5,
in no event shall Tenant be required to make the deposits with Depositary during
any periods that Tenant is not in Default; provided, however, Tenant shall
promptly upon receipt pay or cause said Impositions to be paid and thereafter
deliver to Landlord paid receipts or other documentation evidencing payment
thereof. Notwithstanding anything to the contrary contained in this Section 5.3,
if a Leasehold Mortgagee has commenced a foreclosure action and either a
receiver appointed by a court of competent jurisdiction or such Leasehold
Mortgagee has been appointed mortgagee in possession, no deposits for
Impositions shall be required provided said Leasehold Mortgagee delivers to
Landlord evidence that any and all outstanding Impositions have been paid.
ARTICLE 6
LATE CHARGES
If payment of Base Rent, Impositions or other Rental shall become overdue
beyond the due date thereof pursuant to this Lease (or if no such due date is
set forth in this Lease, then such due date for purposes of this
16
Article 6 shall be deemed to be the date 30 days after the date upon which
demand 'herefore is made), a late charge on the sums so overdue equal to the
Interest Rate for the period from the due date to the date of actual payment,
shall become due and payable to Landlord as liquidated damages for the
administrative costs and expenses incurred by Landlord by reason of Tenant's
failure to make prompt payment, and the late charges shall be payable by Tenant
on demand. No failure by Landlord to insist upon the strict performance by
Tenant of its obligations to pay late charges shall constitute a waiver by
Landlord of its right to enforce the provisions of this Article 6 in any
instance thereafter occurring. The provisions of this Article 6 shall not be
construed in any way to extend the grace periods or notice periods provided for
in Article 23.
ARTICLE 7
INSURANCE
7.1 (a) Tenant shall:
(i) keep the Buildings insured against direct physical loss or
damage under a Special Causes of Loss form ("Casualty Insurance"),
including, without limitation, coverage for loss or damage by water,
flood and subsidence with such sublimits as are reasonably required
by Landlord, and excluding from such coverage normal settling only,
and including war risks when and to the extent obtainable from the
United States government or an agency thereof;
(ii) provide and keep in force commercial general liability
insurance ("Liability Insurance") against liability for bodily
injury and death and property damage, such Liability Insurance to be
in such amount as may from time to time be reasonably required by
Landlord, but not less than $5,000,000.00 general aggregate for
bodily injury, death and property damage, and shall include the
Premises; and
(iii) provide and keep in force workers' compensation
providing statutory benefits for all persons employed by Tenant at
or in connection with the Premises.
(b) Whenever, under the terms of this Lease, Tenant is required to
maintain insurance, Landlord shall be an additional insured in all such
insurance policies. If the Premises shall be subject to any Fee Mortgage,
the commercial general liability insurance shall, if required by such Fee
Mortgage, name the Fee Mortgagee as an additional insured, and all other
insurance provided hereunder shall name the Fee Mortgagee as an additional
insured under a standard "noncontributory mortgagee" endorsement or its
equivalent.
7.2 (a) The loss under all policies required by any provision of this
Lease insuring against damage to the Buildings by fire or other casualty
shall be payable to Tenant, or as otherwise provided in Article 8 below.
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(b) All Insurance Policies shall be in such form and shall be issued
by such responsible companies licensed and authorized to do business in
the State of Illinois as are reasonably acceptable to Landlord. All such
companies shall have a Best rating of not less than "A-". Tenant will
furnish a certificate of insurance to Landlord listing Landlord as an
additional insured/loss payee. All policies referred to in this Lease
shall be procured, or caused to be procured, by Tenant, at no expense to
Landlord, and for periods of not less than one year. A photocopy of each
such policy, certified by the insurer to be a true copy thereof, shall be
delivered to Landlord immediately upon receipt from the insurance company
or companies (and Tenant shall use diligent efforts to procure such
certified copies), except that if any insurance carried by Tenant is
effected by one or more blanket policies, then with respect to such
insurance, certified abstracted policies relating to the Premises shall be
so delivered to Landlord. In addition thereto, on the Commencement Date
hereof, if such certified copies or certified abstracted policies, as the
case may be, have not yet been procured from the insurance company or
companies, Tenant shall deliver to Landlord certificates of the insurance
required hereunder together with paid receipts therefor. Certified copies,
or certified abstracted policies in the case of blanket policies, of new
or renewal policies replacing any policies expiring during the Term shall
be delivered as aforesaid at least 30 days before the date of expiration,
together with proof satisfactory to Landlord that the full premiums have
been paid for at least the first year of the term of such policies. During
the term of such policies, at least 30 days before each anniversary of the
effective date of the policy, Tenant shall deliver to Landlord proof
satisfactory to Landlord that the full premiums have been paid for at
least the next year of the term of the policy. Premiums on policies shall
not be financed in any manner whereby the lender, on default or otherwise,
shall have the right or privilege of surrendering or canceling or
requesting the surrender or cancellation of the policies, provided,
however, that premiums may be paid in such installments as are permitted
pursuant to the provisions of the applicable policy so long as payment by
installments will not allow the insurer thereunder to cancel said policy.
(c) Tenant and Landlord shall cooperate in connection with the
collection of any insurance moneys that may be due in the event of loss,
and Tenant and Landlord shall execute and deliver such proofs of loss and
other instruments which may be required for the purpose of obtaining the
recovery of any such insurance moneys.
(d) Tenant shall not violate or permit to be violated any of the
conditions or provisions of any of the Insurance Policies, and Tenant
shall so perform and satisfy or cause to be performed and satisfied the
requirements of the companies writing such policies so that at all times
companies of good standing, satisfactory to Landlord (as provided in
Section 7.2(a) hereof), shall be willing to write and continue such
insurance.
(e) Each Insurance Policy and each certificate or memorandum
therefor issued by the insurer shall contain (i) a provision that no act
or omission of Tenant shall affect or limit the obligation of the insurer
to pay Landlord or any Fee Mortgagee or Leasehold Mortgagee the
18
amount of any loss sustained, (ii) an agreement by the insurer that such
policy shall not be cancelled or modified without at least 30 days' prior
written notice to Landlord and each Fee Mortgagee and Leasehold Mortgagee,
and (iii) a waiver of subrogation by the insurer of any right to recover
the amount of any loss resulting from the negligence of Landlord or its
agents, employees or licensees.
(f) Each certificate of insurance shall contain a provision whereby
the policy shall not be cancelled or modified without at least 30 days
notice to Landlord and to each Fee or Leasehold Mortgagee.
(g) Landlord shall not be limited in the proof of any damages which
Landlord may claim against Tenant arising out of or by reason of Tenant's
failure to provide and keep in force insurance, as aforesaid, to the
amount of the insurance premium or premiums not paid or incurred by Tenant
and which would have been payable under such insurance, but Landlord shall
also be entitled to recover as damages for such breach the uninsured
amount of any loss, to the extent of any deficiency in the insurance
required by the provisions of this Lease, and damages, costs and expenses
of suit suffered or incurred by reason of damage to, or destruction of,
the Premises occurring during any period when Tenant shall have failed or
neglected to provide insurance as aforesaid.
(h) Each of Landlord and Tenant hereby waives any and every claim
for recovery from the other for any and all loss or damage to the Land or
the Buildings or to the contents thereof, whether such loss or damage is
due to the negligence of Landlord or Tenant or their respective agents or
employees, which loss or damage is insured pursuant to this Lease by valid
and collectible insurance policies and then only to the extent of the
proceeds collected or collectible under such insurance policies; provided,
however, that the foregoing waiver shall not be operative in any case
where the effect thereof is to invalidate any insurance coverage of the
waiving party or increase the cost of such insurance coverage; provided
further, that Landlord and Tenant each agree to give written notice of the
terms of this mutual waiver to each insurance company which has issued, or
in the future may issue, policies of physical damage to it, and to have
said insurance policies properly endorsed to prevent the invalidation of
said insurance coverage by reason of said waiver and provided further that
such insurance company waives all rights of subrogation which it might
have against Landlord or Tenant, as the case may be.
7.3 Tenant shall deposit with Depositary on the first day of each and
every month during the Term, an amount equal to one-twelfth (1/12th) of the
annual insurance premiums required to be carried by Tenant hereunder, as
reasonably estimated by Landlord. Notwithstanding the foregoing, if any Fee
Mortgagee or Leasehold Mortgagee requires the deposit by Tenant of amounts to be
used to pay such insurance premiums, then Landlord shall elect, by delivering
written notice thereof to Tenant, to waive the requirement that Tenant make
deposits under this Section 7.3. If at any time the insurance premiums shall be
increased or Landlord receives information that the insurance premiums will be
increased, and the monthly deposits being paid by Tenant under this Article
would be insufficient to pay such insurance premiums, at least 30 days prior to
the due date, the monthly deposits shall thereupon be increased and Tenant
shall, on Landlord's written demand,
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deposit immediately with Depositary sufficient moneys for the payment of the
increased insurance premiums. Thereafter, the monthly deposits shall be adjusted
so that Depositary shall receive from Tenant sufficient moneys to pay the
insurance premiums at least 30 days before the insurance premiums become due and
payable.
7.4 The insurance required by this Lease, at the option of Tenant, may be
effected by blanket and/or umbrella policies issued to Tenant covering the
Premises and other properties owned or leased by Tenant, provided that the
policies otherwise comply with the provisions of this Lease and allocate to the
Premises the specified coverage.
7.5 Notwithstanding anything to the contrary contained in this Article 7,
in no event shall Tenant be required to make the deposits with Depositary during
any periods that Tenant is not in Default. In addition, no such deposits shall
be required if a Leasehold Mortgagee has commenced a foreclosure action and
either a receiver has been appointed by a court of competent jurisdiction or the
Leasehold Mortgagee has been appointed as mortgagee in possession, provided said
Leasehold Mortgagee delivers to Landlord evidence that the insurance premiums
required under this Article 7 have been paid current.
ARTICLE 8
USE OF CASUALTY INSURANCE PROCEEDS
8.1 If all or any part of the Buildings shall be destroyed or damaged in
whole or in part by fire or other casualty (whether or not insured) of any kind
or nature, ordinary or extraordinary, foreseen or unforeseen, Tenant shall give
Landlord immediate notice thereof (except with respect to partial damage the
reasonably estimated cost of repair of which shall be less than $100,000.00)
and, except as may otherwise be provided in this Lease, Tenant, whether or not
such damage or destruction shall have been insured or insurable, and whether or
not insurance proceeds, if any, shall be sufficient for the purpose, and whether
or not the Leasehold Mortgagee shall permit such insurance proceeds to be used
for such repairs, alterations, restorations, replacements and rebuilding
(collectively, "Restoration"), with reasonable diligence (subject to Unavoidable
Delays) shall repair, alter, restore, replace and rebuild (collectively,
"Restore") the same, at least to the extent of the value and as nearly as
practicable to the character of the Buildings existing immediately prior to such
occurrence. If Tenant shall fail or neglect to Restore with reasonable diligence
(subject to Unavoidable Delays) the Building(s) or the portion thereof damaged
or destroyed, or, having so commenced such Restoration, shall fail to complete
the same with reasonable diligence (subject to Unavoidable Delays) in accordance
with the terms of this Lease, Landlord may, upon reasonable notice to Tenant and
Tenant's continuing failure or neglect to Restore as aforesaid, complete such
Restoration at Tenant's expense. Upon Landlord's election to so complete the
Restoration, Tenant immediately shall pay to Landlord all insurance proceeds
which shall have been received by Tenant, minus those amounts, if any, which
Tenant shall have applied to the Restoration, and if such sums are insufficient
to complete the Restoration, Tenant, on demand, shall pay the deficiency to
Landlord. Each Restoration shall be done in accordance with the provisions of
this Lease.
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8.2 Subject to the provisions of Section 8.3, Depositary shall pay over to
Tenant (or its designated contractor or subcontractor) from time to time, upon
the following terms, any moneys which may be received by Depositary from
insurance provided by Tenant (other than rent insurance) (collectively, the
"Restoration Funds"); provided, however, that Depositary, before paying such
moneys over to Tenant, shall be entitled to reimburse itself and Landlord
therefrom to the extent, if any, of the expenses paid or incurred by Depositary
or Landlord in the collection of such moneys. Depositary shall pay to Tenant (or
its designated contractor or subcontractor) the Restoration Funds for the
purpose of Restoration to be made by Tenant to Restore the Buildings to a value
which shall be not less than the value prior to such fire or other casualty.
Such Restoration shall be done in accordance with, and subject to, the
provisions of Article 13, including, without limitation, the maintenance of the
insurance coverage referred to in Section 12.1(d). Prior to the making of any
Restoration (except with respect to partial damage the reasonably estimated cost
of Restoration of which shall be less than $100,000.00), Tenant shall furnish
Landlord with an estimate of the cost of such Restoration, prepared by a
licensed professional engineer or registered architect approved by Landlord,
which approval shall not be unreasonably withheld or delayed. The Restoration
Funds shall be paid to Tenant from time to time thereafter in installments as
the Restoration progresses upon application to be submitted from time to time by
Tenant to Depositary and Landlord showing the cost of work, labor, services,
materials, fixtures and equipment incorporated in the Restoration, or
incorporated therein since the last previous application, and paid for by Tenant
or then due and owing. Subject to contests permitted under Section 15.2 hereof,
if any vendors', mechanics', laborers', or materialmen's lien is filed against
the Premises or any part thereof, Tenant shall not be entitled to receive any
further installment until such lien is satisfied or otherwise discharged. The
amount of any installment to be paid to Tenant (or its designated contractor or
subcontractor) shall be such proportion of the total Restoration Funds as the
cost of work, labor, services, materials, fixtures and equipment theretofore
incorporated by Tenant into the Restoration bears to the total estimated cost of
the Restoration by Tenant, less (a) all payments heretofore made to Tenant out
of the Restoration Funds, and (b) ten percent (10%) of the amount so determined.
Upon completion of and payment for the Restoration by Tenant, the balance of the
Restoration Funds shall be paid over to Tenant, subject to the rights of any
Leasehold Mortgagee named as an insured. If the estimated cost of any
Restoration is equal to or greater than $100,000 and exceeds the insurance
proceeds received by Depositary, then, prior to the commencement of such
Restoration or thereafter if at any time it is determined by Landlord that the
cost to complete the Restoration exceeds the unapplied portion of such insurance
proceeds, Tenant shall from time to time immediately deposit with Depositary a
bond, cash, irrevocable letter of credit or other security reasonably
satisfactory to Landlord in the amount of such excess, to be held and applied by
Depositary in accordance with the provisions of Section 8.2, as security for the
completion of the work, free of public improvement, vendors', mechanics',
laborers' or materialmen's statutory or other similar liens. If Landlord makes
the Restoration at Tenant's expense, as provided in Section 8.1, then, as
provided above with respect to Tenant, Depositary shall pay over the Restoration
Funds to Landlord, from time to time, upon Landlord's application accompanied by
a certificate containing the statements required under clauses (i), (ii) and
(iii) of Section 8.3(a), to the extent not previously paid to Tenant pursuant to
this Section 8.2, and Tenant shall
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pay to Depositary, on demand, any sums which Landlord certifies to be an
estimate of the amount necessary to complete the Restoration, less the
undisbursed Restoration Funds.
8.3 The following shall be conditions precedent to each payment made to
Tenant as provided in Section 8.2 above:
(a) There shall be submitted to Depositary and Landlord the
certificate of the engineer or architect referred to in Section 8.2 hereof
stating (i) that the sum then requested to be withdrawn either has been
paid by Tenant or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other Persons (whose names and
addresses shall be stated) who have rendered or furnished work, labor,
services, materials, fixtures or equipment for the work and giving a brief
description of such work, labor, services, materials, fixtures or
equipment and the principal subdivisions or categories thereof and the
several amounts so paid or due to each of said Persons in respect thereof,
and stating in reasonable detail the progress of the Restoration up to the
date of said certificate; (ii) that no part of such expenditures has been
or is being made the basis, in any previous or then pending request, for
the withdrawal of insurance money or has been made out of the proceeds of
insurance received by Tenant; (iii) that the sum then requested does not
exceed ninety percent (90%) of the cost of the work, labor, services,
materials, fixtures and equipment described in the certificate; (iv) that
the balance of the Restoration Funds held by Depositary will be
sufficient, upon completion of the Restoration, to pay for the same in
full, and stating in reasonable detail an estimate of the cost of such
completion; and (v) appropriate sworn statements and lien waivers (which
comply with the mechanics' lien laws of the State of Illinois) from all
Persons receiving payment under such draw;
(b) There shall be furnished to Depositary a date-down endorsement,
or a similar certificate of a title insurance company reasonably
satisfactory to Depositary, showing that there are no vendors',
mechanics', laborers' or materialmen's or other liens affecting the
Premises or any part thereof in connection with work done, authorized or
incurred at or relating to the Premises which had not been discharged of
record, except such as will be discharged upon payment of the amount then
requested to be withdrawn; and
(c) At the time of making such payment, there is no Default on the
part of Tenant under this Lease.
8.4 Except as may otherwise be provided in this Lease, this Lease shall
not terminate, be forfeited or be affected in any manner, nor shall there be any
reduction or abatement of the Rental payable hereunder, by reason of damage to
or total, substantial or partial destruction of the Buildings or any part
thereof or by reason of the untenantability of the same or any part thereof, for
or due to any reason or cause whatsoever, and Tenant, notwithstanding any law or
statute present or future, waives any and all rights to quit or surrender the
Premises or any part thereof; and Tenant's obligations hereunder, including,
without limitation, the payment of Rental hereunder, shall continue as though
the Buildings had not been damaged
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or destroyed and without abatement, suspension, diminution or reduction of any
kind.
8.5 If during the Term, 50% or more of the Hospital Property (as
determined by the ratio of the total area in square feet of the portion of the
buildings on the Hospital Property so destroyed or damaged to the total area of
the buildings on the Hospital Property in square feet calculated in accordance
with BOMA Standards) is destroyed or damaged by fire or other casualty and if,
after a period of 180 days following such damage or destruction the portion of
the Hospital Property so destroyed or damaged has not been substantially
repaired and restored (the "Restoration Period") and as a result (a) the portion
so damaged or destroyed materially and adversely affects the exercise by Tenant
of the rights conferred to Tenant under this Lease or (b) results in a material
adverse impact on Tenant's ability to lease space in the Building, then Tenant
shall have the right to compel Landlord to repurchase the Premises and terminate
this Lease as provided herein in the following manner: If Tenant is not then in
default under the terms of this Lease, Tenant may deliver a sale agreement
concerning the Premises (the "Sale Agreement") during the 60-day period
commencing upon the expiration of the Restoration Period to Landlord specifying:
(i) a closing date occurring not less than 60 nor more than 90 days after the
delivery of such Sale Agreement (the "Closing Date") and this Lease shall
continue in full force and effect until the Closing Date; (ii) the sale price,
which shall be equal to the net book value of the Premises (i.e. taking account
of accumulated depreciation) as of the Closing Date as reflected in Tenant's
books (which shall be determined in accordance with generally accepted
accounting principles consistently applied) (the "Sale Price") and (iii)
containing other customary provisions in standard form real estate sale and
purchase agreements. Upon a sale of the Premises pursuant to this Section and
the payment to Tenant of the Sale Price, Tenant shall convey the Premises to
Landlord or its designee. If the Premises or any part thereof shall be purchased
by Landlord pursuant to any provision of this Lease, Tenant shall transfer and
convey to Landlord or its designee title in the same condition as existed on the
Commencement Date except for real estate taxes not then due. Landlord shall
accept such title subject only to any Space Leases and such other exceptions
relating to the Premises arising pursuant to the terms of this Lease and to all
applicable laws, regulations and ordinances, and free of any Leasehold Mortgage
and all other mortgages, liens and encumbrances which shall have been created by
or resulted from acts or failures to act of Tenant. On the Closing Date,
Landlord shall pay to Tenant, at any place within the United States of America
designated by Tenant, the applicable Sale Price, and Tenant shall deliver to
Landlord a special warranty deed conveying title to the Premises, together with
such instruments as shall be necessary to transfer to Landlord or its designee
any other property then required to be transferred by Tenant pursuant to this
Lease. Tenant and Landlord shall pay in accordance with local custom as of the
Closing Date all charges incident to such conveyance and transfer, including
counsel fees, escrow fees, recording fees, title insurance premiums and all
applicable federal, state and local taxes which may be incurred or imposed by
reason of such conveyance and transfer. Upon the completion of such sale, this
Lease and all obligations hereunder shall terminate, except with respect to any
obligations and liabilities of either party which are expressly intended to
survive termination pursuant to the Lease.
As used in this Section and elsewhere in this Lease, Tenant's net book
23
value of the Premises shall be calculated by using the allocated purchase price
of the Premises as of the date hereof, and depreciating such amount on a
straight line basis over 40 years. Subsequent improvements to the Premises
(e.g., roofs, parking lots, HVAC, interior renovations of lobbies and rest
rooms, and tenant improvements) will be depreciated over the estimated useful
life of the improvements (generally 20 years for roof, 10 years for HVAC and
five years for interior renovations). Tenant improvements will be depreciated
over the life of the tenant's lease.
8.6 Notwithstanding anything to the contrary contained in this Article 8,
Tenant, upon notice given to Landlord within 90 days following damage or
destruction to the Buildings as contemplated by Section 8.1 of this Lease, may
elect not to restore the Buildings in connection with any such damage or
destruction thereto the reasonably estimated cost of repair of which shall be
$100,000.00 or more, in which event this Lease and the Term shall terminate and
expire on the date said notice is received by Landlord and the Rental payable by
Tenant hereunder shall be apportioned as of the date of such termination;
provided, however, such termination shall not be effective unless the notice is
accompanied by an unconditional written consent to such termination executed by
any and all Leasehold Mortgagee(s).
8.7 Notwithstanding anything to the contrary contained in this Article 8,
in no event shall Tenant be required to make the deposits with Depositary during
any periods that Tenant is not in Default.
ARTICLE 9
CONDEMNATION
9.1 (a) If, at any time during the Term, the whole or any Significant
Portion of the Premises shall be taken for any public or quasi-public
purpose by any lawful power or authority by the exercise of the right of
condemnation or eminent domain or by agreement among Landlord, then Tenant
and those authorized to exercise such right, at Tenant's option, may elect
to terminate this Lease and the Term shall terminate and expire on the
date of such taking and the Rental payable by Tenant hereunder shall be
apportioned as of the date of such taking. If Tenant chooses to exercise
the option to cancel this Lease provided for herein, it shall notify
Landlord within 60 days after the date that Tenant receives notice of such
taking. The cancellation shall be effective as of the date of taking but,
in all events, after Landlord receives the amounts set forth in Section
9.1(b); and provided further that no termination shall be effective unless
accompanied by an unconditional written consent thereto executed by any
and all Leasehold Mortgagee(s).
(b) If the whole or any Significant Portion of the Premises shall be
taken or condemned and Tenant elects to cancel this Lease as provided for
in Section 9.1(a) hereof, subject to the rights of any Fee Mortgagee (i)
there shall first be paid to Landlord the entire award for, or
attributable to the value of, that part of the Land taken, the Land to be
valued as if unimproved and encumbered by this Lease, any mortgage, trust
deed or otherwise; (ii) Landlord shall then receive compensation for the
value of the Buildings in an amount determined by multiplying the balance
of the award by the Condemnation Fraction; and
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(iii) subject to the rights of any Leasehold Mortgagees, Tenant shall
receive any remaining balance of the award.
The "Condemnation Fraction" shall mean a fraction, the numerator of which
shall be the number of years (or fractions thereof) that this Lease shall have
been in effect, and the denominator of which shall be 75.
(c) Each of the parties shall execute and deliver any and all
documents that may be reasonably required in order to facilitate
collection by them of such awards in accordance with the provisions of
this Article 9.
(d) For purposes of this Article 9, the "date of taking" shall be
deemed to be the earlier of (i) the date on which actual possession of the
whole or substantially all of the Premises or a part thereof, as the case
may be, is acquired by any lawful power or authority pursuant to the
provisions of applicable federal or state law, or (ii) the date on which
title to the Premises or the aforesaid portion thereof shall have vested
in any lawful power or authority pursuant to the provisions of the
applicable federal or state law.
(e) For purposes of this Article 9 a "Significant Portion" of the
Premises shall be deemed to mean such portion of the Premises as, when so
taken, would leave remaining a balance of the Premises which, due either
to the area so taken or the location of the part so taken in relation to
the part not so taken, would not in Landlord's reasonable estimation,
under economic conditions, market conditions, applicable zoning laws or
building regulations then existing or prevailing, readily accommodate a
new building or buildings (or restored Buildings) of a nature similar (in
color, style, architecture, floor plans, facade, shape, height,
configuration, landscaping and overall aesthetic sense) to the Buildings
existing at the date of such taking and after performance of all
covenants, agreements, terms and provisions herein and by law required to
be performed and paid by Tenant.
If Tenant elects not to exercise the option to cancel this Lease pursuant
to Section 9.1(a) hereof or if less than a Significant Portion of the Premises
are so taken, this Lease and the Term shall continue without abatement of the
Rental or diminution of any of Tenant's obligations hereunder. Tenant, whether
or not the award shall be sufficient for such purpose, shall proceed with
reasonable diligence (subject to Unavoidable Delays) to Restore any remaining
part of the Premises not so taken to complete, rentable, self-contained
architectural units in as good condition and repair and of at least the same
value as prior to the taking. If Tenant elects not to exercise the option to
cancel this Lease pursuant to Section 9.1(a) hereof or if less than a
Significant Portion of the Premises are so taken, the award or awards for such
taking, less the cost of the determination of the amount thereof, shall be paid
to Depositary if the cost of Restoration is equal to $100,000.00 or more, or to
Tenant if such cost is less than $100,000.00. Subject to the provisions and
limitations in this Article 9, Depositary shall make available to Tenant as much
of that portion of the award actually received and held by Depositary, if any,
less all reasonable expenses paid or incurred by Depositary and Landlord in the
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condemnation proceedings, as may be necessary to pay the cost of Restoration of
the part of the Buildings remaining in accordance with Article 8. Such
Restoration, the estimated cost thereof, the payments to Tenant on account of
the cost thereof, Landlord's right to perform the same and Tenant's obligation
with respect to condemnation proceeds held by it, shall be done, determined,
made and governed in accordance with and subject to the provisions of Articles 8
and 13. Payments to Tenant as aforesaid shall be disbursed in the manner set
forth in Article 8. Any balance of the award held by Depositary after completion
of the Restoration shall be paid to Tenant.
9.2 If the estimated cost of any Restoration required by the terms of this
Article 9 exceeds the net condemnation award received by Depositary, as
determined in the manner set forth in Section 9.1, then, prior to the
commencement of such Restoration or thereafter if it is determined by Landlord
that the cost to complete the Restoration exceeds the unapplied portion of such
award, Tenant shall from time to time immediately deposit with Depositary a
bond, cash, irrevocable letter of credit or other security reasonably
satisfactory to Landlord in the amount of such excess, to be held and applied by
Depositary in accordance with the provisions of Section 9.1, as security for the
completion of the work, free of public improvement, vendors', mechanics',
laborers' or materialmen's statutory or other similar liens.
9.3 If there is more than one Leasehold Mortgage, Landlord shall recognize
the Leasehold Mortgagee whose Leasehold Mortgage is senior in lien as the
Leasehold Mortgagee having priority as to the rights of a Leasehold Mortgagee
under this Article 9.
9.4 Landlord may not enter into, settle or compromise any taking or other
governmental action that creates a right to compensation in Tenant as provided
in this Article 9 without the prior consent of Tenant.
9.5 If, during the Term, 50% or more of the Hospital Property (as
determined by the ratio of the total area in square feet of the portion of the
buildings on the Hospital Property so taken to the total area of the Hospital
Property in square feet calculated in accordance with BOMA Standards) is taken
and if, as a result of such taking, (a) the portion so taken materially and
adversely affects the exercise by Tenant of the rights conferred to Tenant under
this Lease or (b) results in a material adverse impact on Tenant's ability to
lease space in the Building, then Tenant shall have the right to compel Landlord
to repurchase the Premises and terminate this Lease as provided herein in the
following manner: If Tenant is not then in default under the terms of this
Lease, Tenant may deliver a Sale Agreement concerning the Premises to Landlord
during the 60-day period following the taking specifying the Closing Date and
the Sale Price, and this Lease shall continue in full force and effect until the
Closing Date. Upon a sale of the Premises pursuant to this Section and the
payment to Tenant of the Sale Price, Tenant shall convey the Premises to
Landlord or its designee. If the Premises or any part thereof shall be purchased
by Landlord pursuant to any provision of this Lease, Tenant shall transfer and
convey to Landlord or its designee title in the same condition as existed on the
Commencement Date except for real estate taxes not then due. Landlord shall
accept such title subject only to any Space Leases and other exceptions relating
to the Premises arising pursuant to the terms of this Lease and to all
applicable
26
laws, regulations and ordinances, and free of any Leasehold Mortgage and all
other mortgages, liens and encumbrances which shall have been created by or
resulted from acts or failures to act of Tenant. On the Closing Date, Landlord
shall pay to Tenant, at any place within the United States of America designated
by Tenant, the applicable Sale Price, and Tenant shall deliver to Landlord a
special warranty deed conveying title to the Premises, together with such
instruments as shall be necessary to transfer to Landlord or its designee any
other property then required to be transferred by Tenant pursuant to this Lease.
Tenant and Landlord shall pay in accordance with local custom as of the Closing
Date all charges incident to such conveyance and transfer, including counsel
fees, escrow fees, recording fees, title insurance premiums and all applicable
federal, state and local taxes which may be incurred or imposed by reason of
such conveyance and transfer. Upon the completion of such sale, this Lease and
all obligations hereunder shall terminate, except with respect to any
obligations and liabilities of either party which are expressly intended to
survive termination pursuant to the Lease.
9.6 Notwithstanding anything to the contrary contained in this Article 9,
in no event shall Tenant be required to make the deposits with Depositary during
any periods that Tenant is not in Default.
ARTICLE 10
ASSIGNMENT, SUBLETTING AND MORTGAGES
10.1 (a) Except as provided in Section 10.1(c) and Article 22 of this
Lease, Tenant shall not assign or sublet its interest in the Lease, or any
part thereof, without the written consent of Landlord, which consent shall
not be unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing sentence, Tenant shall have the right, without Landlord's
consent, to assign the Lease to (i) an Affiliate of Tenant, (ii) a lender
as security for a Leasehold Mortgage; (iii) to a purchaser with experience
in owning medical office properties similar to the Premises, having a good
business reputation and being willing to cause the Building(s) to be
managed by an experienced property management company, which purchaser is
acquiring Tenant's interest hereunder from a Leasehold Mortgagee or its
title-holding nominee who has previously acquired its tenant's interest
hereunder pursuant to Section 10.14 of this Lease; and (iv) in connection
with a merger, consolidation or other corporate reorganization of Tenant,
including the sale of all or a major portion of its assets, to the entity
emerging from such process owning a major portion of such assets;
provided, however, in no such event shall any such assignment under this
Section 10.1(a) be permitted unless Tenant provides to Landlord evidence
of compliance with Section 22.2 of this Lease.
(b) If Landlord's consent to an assignment is required and Landlord
consents to such assignment, subject to the terms and conditions of
Section 22 of this Lease, Landlord shall be given 30 days advance notice
of the effective date of such assignment and there shall be delivered to
Landlord (i) an executed counterpart of the instrument(s) of assignment
(in recordable form) of this Lease containing, INTER ALIA, the name and
address of the assignee; (ii) an
27
executed instrument of the assumption by said assignee of Tenant's
obligations under this Lease first arising or accruing on or after the
effective date of the assignment, such assumption to be in form and
substance reasonably satisfactory to Landlord; (iii) in the case of a
corporate assignee, an affidavit of the assignee or the principal officer
thereof, setting forth the names and addresses of all directors and
officers of the assignee; and (iv) in the case of a partnership or limited
liability company assignee, an affidavit of the assignee, or general
partner or managing member thereof, setting forth the names and addresses
of all general partners and managing members having interests in the
assignee.
(c) Anything contained in this Lease to the contrary
notwithstanding, Tenant, without the consent of Landlord, shall have the
right at any time to (i) enter into Space Leases (subject to Article 22 of
this Lease) and (ii) assign any and all Space Leases of the Premises as an
entirety to any Leasehold Mortgagee as collateral security for the
obligations of Tenant under a Leasehold Mortgage made in accordance with
this Article 10.
10.2 No assignment of this Lease or subletting of the Premises shall have
any validity except upon compliance with the provisions of this Article 10 and
Article 22.
10.3 Any consent by Landlord under Section 10.1(a) above shall apply only
to the specific transaction thereby authorized and shall not relieve Tenant from
the requirement of obtaining any prior consent of Landlord which may be required
under this Article 10 to any further sale or assignment of this Lease or
transfer of stock or subletting of the Premises as an entirety or substantially
as an entirety.
10.4 Tenant shall cause the subtenants, operators, licensees,
concessionaires and other occupants of the Buildings (collectively, "Space
Tenants") to comply with their obligations under their Space Leases, and/or
occupancy, operating, license or concession agreements and all amendments
thereto (collectively, "Space Leases"), and Tenant shall enforce with
commercially reasonable diligence, subject to Unavoidable Delays, all of its
rights as the landlord thereunder in accordance with the terms of each of the
Space Leases.
10.5 The fact that a violation or breach of any of the terms, provisions
or conditions of this Lease results from or is caused by an act or omission by
any of the Space Tenants (excluding Landlord or any Affiliate of Landlord) shall
not relieve Tenant of Tenant's obligation to cure the same.
10.6 Subject in all events to the rights of a Leasehold Mortgagee,
Landlord, after an Event of Default, may collect rent and all other sums due
under Space Leases and apply the net amount collected to the Rental payable by
Tenant hereunder, but no such collection shall be, or be deemed to be, a waiver
of any agreement, term, covenant or condition of this Lease or the acceptance by
Landlord of any Space Tenants as Tenant hereunder or a release of Tenant from
performance by Tenant of its obligations under this Lease.
10.7 To secure the prompt and full payment by Tenant of the Rental and the
faithful performance by Tenant of all the other terms and conditions
28
herein contained on its part to be kept and performed, Tenant hereby assigns,
transfers and sets over unto Landlord, subject to (i) Leasehold Mortgages; (ii)
any collateral assignments of Space Leases made in connection with the Leasehold
Mortgages, as long as this Lease shall be in effect; and (iii) the conditions
hereinafter set forth, all of Tenant's right, title and interest in and to all
Space Leases, and hereby confers upon Landlord, its agents and representatives a
right of entry in, and sufficient possession of, the Premises to permit and
insure the collection by Landlord of the Rentals and other sums payable under
the Space Leases, and the exercise of the right of entry and qualified
possession by Landlord shall not constitute an eviction of Tenant from the
Premises or any portion thereof; provided, however, that such assignment shall
become operative and effective only if (a) an Event of Default shall occur; (b)
this Lease and the Term shall be cancelled or terminated pursuant to the terms,
covenants and conditions hereof; or (c) there occurs repossession under a
sheriff's notice or other judgment, order or decree of a court of competent
jurisdiction, and then only as to such of the Space Leases that Landlord may
elect.
10.8 Not later than 30 days following the end of each calendar year during
the Term, Tenant shall deliver to Landlord a schedule of all Space Leases
affecting the Premises. The schedule of Space Leases shall include the names of
all Space Tenants, a description of the space sublet, expiration dates, rentals,
pass-throughs, options, special provisions and any such additional information
that Landlord may reasonably request. Tenant shall furnish Landlord with true
copies of all Space Leases promptly after execution.
10.9 All Space Leases shall be in writing and provide that (a) they are
subject and subordinate to this Lease; (b) the Space Tenants will not pay rent
or other sums under the Space Leases with Tenant for more than one month in
advance; and (c) at Landlord's option on the termination of this Lease pursuant
to Article 23, the Space Tenants will attorn to, or enter into a direct Space
Lease on identical terms with, Landlord for the balance of the unexpired term of
the Space Lease.
10.10 (a) Landlord, for the benefit of any bona fide Space Tenant (for
purposes of this Section, "bona fide" shall mean that such Space Tenant
will pay fair market Rental), upon the request of Tenant, shall recognize
the Space Tenant as the direct tenant of Landlord upon the termination of
this Lease pursuant to any of the provisions of Article 23 if each
Leasehold Mortgagee shall have agreed in writing substantially to the
effect that it will not join the Space Tenant as a party defendant in any
foreclosure action or proceeding which may be instituted or taken by the
Leasehold Mortgagee, nor evict the Space Tenant from the portion of the
Premises demised to it, except by reason of the Space Tenant's default
under its Space Lease, nor affect any of Space Tenant's rights under its
Space Lease, by reason of any default under its Leasehold Mortgage;
provided, however, that at the time of the termination of this Lease (x)
no Default exists under the Space Tenant's Space Lease which would then
permit the landlord thereunder to terminate the Space Lease or to exercise
any dispossession remedy provided for therein, and (y) the Space Tenant
delivers to Landlord an instrument confirming the agreement of the Space
Tenant to attorn to Landlord and to recognize Landlord as the Space
Tenant's landlord under
29
the Space Lease, which instrument shall provide that neither Landlord nor
anyone claiming by, through or under Landlord shall be:
(1) liable for any act or omission of any prior landlord under the
Space Lease (including, without limitation, the then landlord);
(2) subject to any offsets, claims or defenses which the Space
Tenant may have against any prior landlord (including, without
limitation, the then landlord);
(3) bound by any payment of rent which the Space Tenant might have
made for more than one month in advance to any prior landlord under
the Space Lease (including, without limitation, the then landlord);
(4) bound by any covenant to undertake or complete any construction
of the Premises or any portion thereof demised by said Space Lease;
or
(5) bound by any obligation to make any payment to the Space Tenant.
(b) If a Space Tenant entitled to such recognition shall so request,
Landlord shall execute and deliver an agreement, in form and substance
reasonably satisfactory to Landlord, Tenant and such Space Tenant,
confirming that, subject to the provisions of clauses (x) and (y) of
Section 10.10(a), such Space Tenant is entitled to such recognition.
10.11 Landlord's interest in this Lease, as the same may be modified,
amended or renewed, shall not be subject or subordinate to (a) any Leasehold
Mortgage now or hereafter placed upon Tenant's interest in this Lease, or (b)
any other liens or encumbrances hereafter affecting Tenant's interest in this
Lease.
10.12 No Leasehold Mortgage shall be valid or of any force or effect
unless and until (a) a true copy of the original of each instrument creating and
effecting such Leasehold Mortgage, certified by the Leasehold Mortgagee to be a
true copy of such instrument, and written notice containing the name and post
office address of the Leasehold Mortgagee shall have been delivered to Landlord,
and (b) the Leasehold Mortgage shall contain in substance the following
provisions:
(i) This mortgage is executed upon the condition that no
purchaser at any foreclosure sale (or purchaser by deed-in-lieu of
foreclosure) shall acquire any right, title or interest in or to the
lease hereby mortgaged, unless the purchaser, or the person, firm,
corporation or other entity to whom or to which such purchaser's
right has been assigned, in the instrument transferring to such
purchaser or to such assignee the interest of tenant under the lease
hereby mortgaged, shall assume and agree to perform all of the
terms, covenants and conditions of that lease thereafter to be
observed or performed on the part of such tenant, that no further or
additional mortgage or assignment
30
of the lease hereby mortgaged shall be made except in accordance
with the provisions contained in Article 10 of that lease, and that
a duplicate original of said instrument containing such assumption
agreement, duly executed and acknowledged by such purchaser or such
assignee and in recordable form, is delivered to landlord under the
hereby mortgaged lease immediately after the consummation of such
sale, or, in any event, prior to taking possession of the premises
demised thereby.
(ii) In the event of foreclosure, the mortgagee shall not
name, in such foreclosure action or otherwise, and in any event
shall not disturb the possession or right to possession (except for
default) of, any Space Tenant of the tenant under the lease hereby
mortgaged who are bona fide Space Tenants under Section 10.10(a) of
such lease and are not Affiliates of Tenant.
(iii) This mortgage and all rights of the mortgagee hereunder
are, without the necessity for the execution of any further
documents, subject and subordinate to the rights of the landlord
under the lease hereby mortgaged, as said lease may have been
previously modified, amended or renewed with the consent of the
mortgagor or its predecessors in interest, or may hereafter be
modified, amended or renewed with the consent of the mortgagee.
Nevertheless, the holder of this mortgage agrees from time to time
upon request and without charge to execute, acknowledge and deliver
any instruments reasonably requested by the landlord under the lease
to evidence the foregoing subordination.
10.13 (a) If Tenant shall mortgage this Lease in compliance with the
provisions of Sections 10.11 and 10.12, Landlord shall give to each
Leasehold Mortgagee, at the address of such Leasehold Mortgagee set forth
in the notice mentioned in Section 10.12 hereof, and otherwise in the
manner provided by Article 24, a copy of each notice of Default by Tenant
at the same time as and whenever any such notice of Default shall
thereafter be given by Landlord to Tenant, and no such notice of Default
by Landlord shall be deemed to have been duly given to Tenant unless and
until a copy thereof shall have been so given to each Leasehold Mortgagee.
Each Leasehold Mortgagee (i) shall thereupon have a period of ten days
more in the case of a Default in the payment of Base Rent or other Rental
and 20 days more in the case of any other Default, after such notice is
given to Leasehold Mortgagee, for remedying the Default or causing the
same to be remedied or causing action to remedy a Default mentioned in
Section 23.1(c) to be commenced than is given Tenant after such notice is
given to it; and (ii) shall, within such period and otherwise as herein
provided, have the right to remedy such Default, cause the same to be
remedied or cause action to remedy a Default mentioned in Section 23.1(c)
to be commenced. Landlord shall accept performance by a Leasehold
Mortgagee of any covenant, condition or agreement on Tenant's part to be
performed hereunder with the same force and effect as though performed by
Tenant, so long as such performance is made in accordance with the terms
and provisions of this Lease.
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(b) Notwithstanding the provisions of Section 10.13(a) hereof, no
Default by Tenant or Event of Default shall be deemed to exist as long as
a Leasehold Mortgagee, in good faith, (i) shall have commenced or caused
to be commenced to cure promptly the Default or Event of Default and
continuously prosecutes or causes to be prosecuted the same to completion
with reasonable diligence and continuity, subject to Unavoidable Delays,
which for the purposes of this Section 10.13(b) shall include causes
beyond the control of Tenant; or (ii) if possession of the Premises or any
part thereof is required in order to cure the Default or Event of Default,
shall have notified Landlord of its intention to institute foreclosure
proceedings to obtain possession directly or through a receiver, and
thereafter within 30 days after the giving of such notice commences such
foreclosure proceedings, prosecutes such proceedings with reasonable
diligence and continuity (subject to Unavoidable Delays) and, upon
obtaining such possession, commences promptly to cure the Default or Event
of Default and prosecutes the same to completion with reasonable diligence
and continuity (subject to Unavoidable Delays); provided that the
Leasehold Mortgagee shall have delivered to Landlord, in writing, its
agreement to take the action described in clause (i) or (ii) herein and
shall have assumed the obligation to cure the Default or Event of Default,
and that during the period in which such action is being taken (and any
foreclosure proceedings are pending), all of the other obligations of
Tenant under this Lease are being duly performed (including, without
limitation, payment of all Rental due hereunder) within any applicable
grace periods. Notwithstanding anything herein to the contrary, a
Leasehold Mortgagee shall have no obligation to cure any Default of
Tenant's under Sections 23.1(d)-(g) of this Lease. However, at any time
after the delivery of the aforementioned agreement, the Leasehold
Mortgagee may notify Landlord, in writing, that it has relinquished
possession of the Premises or that it will not institute foreclosure
proceedings or, if such proceedings have been commenced, that it has
discontinued them, and, in such event, the Leasehold Mortgagee shall have
no further liability under such agreement from and after the date it
delivers such notice to Landlord (except for any obligations assumed by
the Leasehold Mortgagee and accruing prior to the date it delivers such
notice), and, thereupon, Landlord shall have the unrestricted right to
terminate this Lease and to take any other action it deems appropriate by
reason of any Default by Tenant, and upon any such termination the
provisions of Section 10.13 shall apply. Anything contained in this
Section 10.13(b) to the contrary notwithstanding, the provisions of this
Section 10.13(b) shall not apply in the case of a Leasehold Mortgagee
which is not an Institutional Lender unless such Leasehold Mortgagee shall
provide Landlord with security for the performance of the assumed
obligation in amount and form reasonably satisfactory to Landlord during
the period that such Leasehold Mortgagee is taking the required action to
cure the Default or Event of Default.
(c) From and after the date upon which Landlord receives the notice
mentioned in Section 10.12(a), it shall not modify or amend this Lease in
any material respect or cancel or terminate this Lease other than as
provided herein without the prior written consent of the Leasehold
Mortgagee which gave such notice.
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(d) Except as provided in Section 10.13(b), no Leasehold Mortgagee
shall become liable under the provisions of this Lease unless and until
such time as it becomes the owner of the leasehold estate created hereby.
10.14 (a) In case of termination of this Lease by reason of any Event of
Default or for any other reason, Landlord, subject to the provisions of
Section 10.13(a) hereof, shall give prompt notice thereof to each Leasehold
Mortgagee under a Leasehold Mortgage made in compliance with the provisions
of Sections 10.11 and 10.12, which notice shall be given at the address of
such Leasehold Mortgagee set forth in the notice mentioned in Section 10.12
hereof. Landlord, on written request of such Leasehold Mortgagee made any
time within 30 days after the giving of such notice by Landlord, shall
execute and deliver a new lease of the Premises to the Leasehold Mortgagee,
or its designee or nominee, for the remainder of the Term, upon all the
covenants, conditions, limitations and agreements herein contained; provided
that the Leasehold Mortgagee shall pay to Landlord, simultaneously with the
delivery of such new lease, all unpaid Rental due under this Lease up to and
including the date of the commencement of the term of such new lease and all
expenses, including, without limitation, attorneys' fees and disbursements
and court costs, incurred by Landlord in connection with the Default by
Tenant, the termination of this Lease and the preparation of the new lease.
(b) Any such new lease and the leasehold estate thereby created,
subject to the same conditions contained in this Lease, shall continue to
maintain the same priority as this Lease with regard to any Leasehold
Mortgage or Fee Mortgage or any other lien, charge or encumbrance whether
or not the same shall then be in existence.
(c) Upon the execution and delivery of a new lease under this
Section 10.14, all Space Leases that theretofore may have been assigned to
Landlord thereupon shall be assigned and transferred, without recourse, by
Landlord to the tenant named in such new lease. Between the date of
termination of this Lease and the date of execution and delivery of the
new lease, if a Leasehold Mortgagee shall have requested such new lease as
provided in paragraph (a) of this Section 10.14, Landlord shall not enter
into any new Space Leases, cancel or modify any then-existing Space Leases
or accept any cancellation, termination or surrender thereof (unless such
termination shall be effected as a matter of law on the termination of
this Lease) without the written consent of the Leasehold Mortgagee, except
as permitted in the Space Leases.
(d) Anything contained in this Section 10.14 to the contrary
notwithstanding, a Leasehold Mortgagee shall have no obligation to cure
any Default of Tenant under Sections 23.1(d)-(h) of this Lease.
10.15 If there is more than one Leasehold Mortgage, Landlord shall
recognize only the Leasehold Mortgagee whose Leasehold Mortgage is senior in
lien as the Leasehold Mortgagee entitled to the rights afforded by Sections
10.12, 10.13 and 10.14.
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ARTICLE 11
REPAIRS
11.1 Tenant shall take good care of the Premises, including, without
limiting the generality of the foregoing, all Equipment, roofs, foundations and
appurtenances thereto, all vaults and all water, sewer and gas connections,
pipes and mains which service the Premises (to the extent located on the Land)
and which neither City nor a utility company is obligated to repair and
maintain, and shall put, keep and maintain the Buildings in good and safe order
and working condition, and make all repairs therein and thereon, interior and
exterior, structural and nonstructural, ordinary and extraordinary, foreseen and
unforeseen, necessary to keep the same in good and safe order and working
condition and to comply with all applicable Requirements, howsoever the
necessity or desirability therefor may occur, and whether or not necessitated by
wear and tear, obsolescence or defects, latent or otherwise. The necessity and
adequacy of repairs made shall be measured by standards, which are appropriate
for City buildings of similar age, construction and use. Tenant shall not commit
or suffer, and shall use all reasonable precaution to prevent, waste, damage or
injury to the Premises. When used in this Lease, the term "repairs" shall
include all alterations, additions, installations, replacements, removals,
renewals and restorations. All repairs made by Tenant shall be at least equal in
quality and class to the original work and shall be made in compliance with all
Requirements, as then in force.
11.2 Landlord agrees to maintain the Hospital Property in good condition
and repair at all times during the Term in accordance with standards not less
than the standards by which the Hospital Property was maintained as of the
Commencement Date. Except as otherwise provided in this Lease, Landlord shall
not be required to furnish any services, utilities or facilities whatsoever to
the Premises, nor shall Landlord have any duty or obligation to make any
alteration, change, improvement, replacement, restoration or repair to the
Buildings or any other improvement presently or hereafter located on the Land.
Tenant assumes the full and sole responsibility for the condition, operation,
repair, alteration, improvement, replacement, maintenance and management of the
Premises.
ARTICLE 12
CHANGES, ALTERATIONS AND ADDITIONS
1.1 Tenant shall not demolish, replace or materially alter the Buildings,
or any part thereof, or make any addition thereto, whether voluntarily or in
connection with a repair or Restoration required by this Lease (collectively,
"Capital Improvement"), without the consent of Landlord (which consent shall not
be unreasonably withheld, conditioned or delayed), if the cost of such Capital
Improvement (i) exceeds $100,000 or (ii) if, in the reasonable judgment of
Landlord and Tenant, the Capital Improvement will adversely affect (a) the
structural integrity or physical appearance of the Buildings, (b) the provision
of services, including utilities, to the Buildings or (c) any common areas of
the Buildings visible from the exterior thereof. If either subparagraph (i) or
(ii) above is applicable, Tenant shall submit to Landlord a written request
along with detailed plans and specifications in form and content reasonably
acceptable to Landlord and
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shall not proceed to construct such Capital Improvement until the consent of
Landlord is obtained (which consent shall be deemed to have been given if
Landlord does not transmit its disapproval to the construction of the proposed
Capital Improvement within ten days of Tenant's request therefor; provided,
however, that such consent, if requested, shall contain a conspicuous statement
to the effect that said consent shall be deemed given if no response is received
within said ten-day period). In addition, Tenant shall comply with the following
requirements:
(a) Each Capital Improvement shall be made with reasonable diligence
(subject to Unavoidable Delays) and in a good and workmanlike manner and
in compliance with all applicable permits and authorizations and the
Requirements. No Capital Improvement shall impair the safety or structural
integrity of the Buildings.
(b) The cost of each Capital Improvement shall be paid in cash or
its equivalent, so that the Premises and the assets of Landlord shall
(subject to the provisions of Section 16.2) at all times be free of liens
for work, services, labor and materials supplied or claimed to have been
supplied to the Premises. No such Capital Improvement shall be commenced
until Landlord, in its reasonable discretion, has determined that Tenant
has the financial capability to cause said Capital Improvement to be
completed in accordance with this Lease.
(c) Capital Improvement shall be undertaken until Tenant shall have
procured and paid for, insofar as the same may be required from time to
time, all permits and authorizations of all Governmental Authorities for
such Capital Improvement. Landlord shall not unreasonably refuse to join
in the application for such permit or authorization, provided it is made
without cost, liability, obligation or expense to Landlord. Copies of all
required permits and authorizations, certified to be true copies thereof
by Tenant, shall be delivered to Landlord prior to the commencement of any
Capital Improvement.
(d) Each Capital Improvement shall be deemed to have been
substantially completed when Tenant shall furnish Landlord with (i) a
certificate from a licensed professional engineer or registered architect
certifying that such Capital Improvement has been completed substantially
in accordance with the final plans therefor; (ii) a true copy, if
available, of the Certificates of Occupancy for such Capital Improvement;
and (iii) a complete set of as-built drawings and a survey (if applicable)
of such Capital Improvement.
(e) Notwithstanding anything to the contrary contained in this
Article 12, Landlord's consent shall not be required for any Capital
Improvement undertaken by a Space Tenant in connection with a Space Lease
if the Capital Improvement does not adversely affect (a) the structural
integrity or physical appearance of the Buildings, (b) the provision of
services, including utilities, to the Buildings or (c) any common areas of
the Buildings visible from the exterior thereof.
ARTICLE 13
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REQUIREMENTS OF PUBLIC AUTHORITIES AND
OF INSURANCE UNDERWRITERS AND POLICIES
13.1 Tenant shall promptly comply with any and all applicable present and
future laws, rules, orders, ordinances, directives, authorities regulations,
statutes, requirements, codes, orders, permits and authorizations, without
regard to the nature of the work required to be done or other Governmental
Authorities now existing or hereafter created, of any and all of their
departments, agencies, authorities and bureaus and of any applicable fire-rating
bureau or other body exercising similar functions (collectively, "Requirements")
affecting the Premises or, to the extent included in the Premises, any sidewalk
comprising a part or in front thereof and/or any vault in or under the same, or
requiring the removal of any encroachment, or affecting the maintenance, use or
occupation of the Premises, whether or not the same involve or require any
structural changes or additions in or to the Premises, and without regard to
whether or not such changes or additions are required on account of any
particular use to which the Premises or any part thereof may be put. Tenant also
shall comply with any and all provisions and requirements of any document of
record or casualty, liability or other insurance policy required to be carried
by Tenant under the provisions of this Lease.
13.2 Tenant shall have the right to contest the validity of any
Requirement or the application thereof. During such contest, compliance with any
such contested Requirement may be deferred by Tenant upon the condition that,
before instituting any such proceedings, Tenant shall furnish to Landlord a
surety company bond or a cash deposit in any amount satisfactory to Landlord or
other security satisfactory to Landlord, securing compliance with the contested
Requirement and payment of all interest, penalties, fines, fees and expenses in
connection therewith. Any such proceedings instituted by Tenant shall begin as
soon as is reasonably possible after the issuance of any such contested matters
and shall be prosecuted to final adjudication with reasonable dispatch.
Notwithstanding the foregoing, Tenant promptly shall comply with any such
Requirement, and compliance shall not be deferred if, (i) in Landlord's
reasonable estimation, at any time the Premises, or any part thereof, shall be
in danger of being forfeited, lost, adversely affected or impaired; (ii) such
noncompliance shall cause Landlord to be in default under any Fee Mortgage; or
(iii) Landlord shall be in danger of being subject to criminal and/or civil
liability or penalty by reason of noncompliance therewith. Landlord shall
cooperate with Tenant in any such contest to such extent as Tenant may
reasonably request, it being understood, however, that Landlord shall not be
subject to any liability for the payment of any costs or expenses in connection
with any proceedings brought by Tenant.
ARTICLE 14
EQUIPMENT
14.1 During the last ten years of the Term, Tenant shall not have the
right, power or authority to, and shall not, remove any Equipment from the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed, unless such Equipment is promptly replaced
by Equipment of at least equal utility and value without regard for
depreciation. Tenant, however, without Landlord's consent, may remove Equipment
at any time and from time to time for repairs, cleaning or other
36
servicing, provided that Tenant shall return or reinstall same to or in the
Premises with reasonable diligence.
14.2 Tenant shall keep all Equipment in good order and repair and shall
replace the same when necessary with items of at least equal utility and value
as of the date such Equipment was originally installed at the Premises.
ARTICLE 15
DISCHARGE OF LIENS; BONDS
15.1 Except for any Leasehold Mortgage, Space Leases or assignment of
leases and/or rents or any security interests in Equipment collateral to a
Leasehold Mortgage, Tenant shall not create or cause to be created any lien,
encumbrance or charge upon Tenant's leasehold estate in the Premises or any part
thereof or upon the income therefrom. Tenant shall not create or cause to be
created any lien, encumbrance or charge upon any assets of Landlord or upon the
estate, rights or interest of Landlord in the Premises or any part thereof.
15.2 If any mechanics', laborers' or materialmen's or any other lien,
charge or encumbrance at any time shall be filed against the Premises or any
part thereof, or against any assets of Landlord, then Tenant, within 30 days
after actual notice of the filing thereof, or such shorter period as may be
required by statute or by any Leasehold Mortgagee or Fee Mortgagee, shall cause
the same to be discharged of record by payment, deposit, bond, order of a court
of competent jurisdiction or otherwise. If Tenant shall fail to cause such lien
to be discharged of record within the period aforesaid, and if such lien shall
continue for an additional ten days after notice by Landlord to Tenant, then, in
addition to any other right or remedy, Landlord may, but shall not be obligated
to, discharge the same of record, or Landlord shall be entitled, if Landlord so
elects, to compel the prosecution of an action for the foreclosure of such lien
by the lienholder and to pay the amount of the judgment in favor of the
lienholder with interest, costs and allowances. Any amount so paid by Landlord,
including all costs and expenses incurred by Landlord in connection therewith,
together with interest thereon at the Interest Rate, from the respective dates
of Landlord's making of the payment or incurring of the costs and expenses,
shall constitute Rental payable by Tenant under this Lease and shall be paid by
Tenant to Landlord on demand. Notwithstanding the foregoing provisions of this
Section 15.2, Tenant shall not be required to discharge of record any such lien
if Tenant is in good faith contesting the same and has furnished a cash deposit,
an irrevocable letter of credit or a surety bond or other such security
reasonably satisfactory to Landlord in an amount sufficient to pay 150% of such
lien along with all interest and penalties thereon.
15.3 Nothing in this Lease contained shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or materialman
for the performance of any labor or the furnishing of any materials for any
specific improvement, alteration to or repair of the Premises or any part
thereof, nor as giving Tenant any right, power or authority to contract for or
permit the rendering of any services or the furnishing of materials that would
give rise to the filing of any lien
37
against the Premises or any part thereof or any assets of Landlord. Notice is
hereby given, and Tenant shall cause all Construction Agreements to provide
that, to the extent enforceable under applicable law, Landlord shall not be
liable for any work performed or to be performed at the Premises for Tenant or
any Space Tenant or for any materials furnished or to be furnished at the
Premises for any of the foregoing, and that no mechanics' or other lien for such
work or materials shall attach to or affect the estate or interest of Landlord
in and to the Premises or any part thereof, or any assets of Landlord.
15.4 Tenant shall have no power to do any act or make any contract, which
may create or be the foundation for any lien, charge, mortgage or other
encumbrance upon the estate or assets of Landlord or of any interest of Landlord
in the Premises.
ARTICLE 16
NO REPRESENTATIONS
16.1 TENANT ACKNOWLEDGES THAT TENANT IS FULLY FAMILIAR WITH THE PREMISES,
THE PHYSICAL CONDITION THEREOF AND THE ITEMS SET FORTH IN EXHIBIT C. TENANT
ACCEPTS THE PREMISES IN THE EXISTING CONDITION AND STATE OF REPAIR IN AN
"AS-IS," "WHERE-IS" CONDITION, WITH ALL FAULTS, AND, EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS LEASE, NO REPRESENTATIONS, STATEMENTS OR WARRANTIES,
WRITTEN OR ORAL, EXPRESS OR IMPLIED, HAVE BEEN MADE BY OR ON BEHALF OF LANDLORD
IN RESPECT OF THE PREMISES, THE STATUS OF TITLE THEREOF, THE PHYSICAL CONDITION
THEREOF, THE ZONING OR OTHER LAWS, REGULATIONS, RULES AND ORDERS APPLICABLE
THERETO, ANY IMPOSITIONS OR THE USE THAT MAY BE MADE OF THE PREMISES, THAT
TENANT HAS RELIED ON NO SUCH REPRESENTATIONS, STATEMENTS OR WARRANTIES, AND THAT
LANDLORD SHALL IN NO EVENT WHATSOEVER BE LIABLE FOR ANY LATENT OR PATENT DEFECTS
IN THE PREMISES.
16.2 Landlord will deliver possession of the Premises on the Commencement
Date subject to any tenancies set forth in Exhibit C.
ARTICLE 17
LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC.
17.1 Landlord shall not in any event whatsoever be liable for any injury
or damage to Tenant or to any other Person happening in, on or about the
Premises and its appurtenances, nor for any injury or damage to the Premises or
to any property belonging to Tenant or any other Person which may be caused by
any fire or breakage or by any other cause whatsoever or by the use, misuse or
abuse of the Buildings (including, but not limited to, any of the common areas
within the Building, Equipment, elevators, hatches, openings, installations,
stairways, hallways or other common facilities) or the streets or sidewalk area
within the Premises or which may arise from any other cause whatsoever, unless
caused by the wilful misconduct of Landlord, its officers, agents, employees or
licensees.
17.2 Landlord shall not be liable to Tenant or to any other Person for any
failure of water supply, gas, telephone, electric current or other utility
service, nor for any injury or damage to any property of Tenant or of any other
Person or to the Premises caused by or resulting from gasoline,
38
oil, steam, gas or electricity or hurricane, tornado, flood, wind or similar
storms or disturbances, or water, rain, sleet, ice or snow which may leak or
flow from the street, sewer, gas mains or subsurface area or from any part of
the Premises, or leakage of gasoline or oil from pipes, storage tanks,
appliances, sewers or plumbing works therein, or from any other place or from
any other cause, nor for interference with light or other incorporeal
hereditaments by anybody, or caused by any public or quasi-public work, unless
any of the foregoing results from the wilful misconduct of Landlord, its
officers, agents, employees or licensees.
ARTICLE 18
INDEMNIFICATION
18.1 Tenant shall not do or permit any act or thing to be done upon the
Premises which may subject Landlord to any liability or responsibility for
injury, damage to Persons or property, or to any liability by reason of any
violation of law or of any Requirement, and shall exercise such control over the
Premises so as to fully protect Landlord against any such liability. Tenant
shall, except with respect to Landlord's negligence or wilful misconduct,
indemnify, defend and save Landlord and any agent, beneficiary, contractor,
director, employee, lessor, mortgagee, officer, parent, partner, shareholder and
trustee of Landlord (each a "Tenant Indemnified Party") harmless from and
against any and all liabilities, suits, obligations, fines, damages, penalties,
claims, costs, charges and expenses, including, without limitation, engineers',
architects' and reasonable attorneys' fees, court costs and disbursements, which
may be imposed upon or incurred by or asserted against any Tenant Indemnified
Party by any Person (other than a Tenant Indemnified Party) by reason of any of
the following occurring during or after (but attributable to a period of time
falling within) the Term:
(a) any work or thing done in, on or about the Premises or any part
thereof;
(b) any use, nonuse, possession, occupation, alteration, repair,
condition, operation, maintenance or management of the Premises or any
part thereof or of any sidewalk, curb or vault adjacent thereto;
(c) any accident, injury (including death at any time resulting
therefrom) or damage to any Person or property occurring in, on or about
the Premises or any part thereof or in, on or about any sidewalk, curb or
vault adjacent thereto;
(d) any failure on the part of Tenant to pay Rental or to perform or
comply with any of the covenants, agreements, terms or conditions
contained in this Lease on Tenant's part to be performed or complied with;
(e) any lien or claim which may be alleged to have arisen against or
on the Premises, or any lien or claim which may be alleged to have arisen
out of this Lease and created or permitted to be created by Tenant against
any assets of Landlord under the laws of the State of
39
Illinois or of any other Governmental Authority, or any liability which
may be asserted against Landlord with respect thereto;
(f) any failure on the part of Tenant to keep, observe and perform
any of the terms, covenants, agreements, provisions, conditions or
limitations contained in the Construction Agreements, Space Leases or
other contracts and agreements affecting the Premises on Tenant's part to
be kept, observed or performed; and
(g) any contest permitted pursuant to the provisions of Articles 4,
13 and 15 hereof.
18.2 Landlord shall not do or permit any act or thing to be done upon the
Hospital Property which may subject Tenant to any liability or responsibility
for injury, damage to Persons or property, or to any liability by reason of any
violation of law or of any Requirement, and shall exercise such control over the
Hospital Property so as to fully protect Tenant against any such liability.
Landlord shall, except with respect to Tenant's negligence or wilful misconduct,
indemnify, defend and save Tenant and any agent, beneficiary, contractor,
director, employee, lessor, mortgagee, officer, parent, partner, shareholder and
trustee of Landlord (each a "Landlord Indemnified Party") harmless from and
against any and all liabilities, suits, obligations, fines, damages, penalties,
claims, costs, charges and expenses, including, without limitation, engineers',
architects' and reasonable attorneys' fees, court costs and disbursements, which
may be imposed upon or incurred by or asserted against any Landlord Indemnified
Party by any Person (other than a Landlord Indemnified Party) by reason of any
of the following occurring during or after (but attributable to a period of time
falling within) the Term:
(a) any work or thing done in, on or about the Hospital Property or
any part thereof;
(b) any use, nonuse, possession, occupation, alteration, repair,
condition, operation, maintenance or management of the Hospital Property
or any part thereof or of any sidewalk, curb or vault adjacent thereto;
(c) any accident, injury (including death at any time resulting
therefrom) or damage to any Person or property occurring in, on or about
the Hospital Property or any part thereof or in, on or about any sidewalk,
curb or vault adjacent thereto;
(d) any failure on the part of Landlord to perform or comply with
any of the covenants, agreements, terms or conditions contained in this
Lease on Landlord's part to be performed or complied with;
(e) any lien or claim which may be alleged to have arisen against or
on the Hospital Property, or any lien or claim which may be alleged to
have arisen out of this Lease and created or permitted to be created by
Landlord against any assets of Tenant under the laws of the State of
Illinois or of any other Governmental Authority, or any liability which
may be asserted against Tenant with respect thereto; and
40
(f) any failure on the part of Landlord to keep, observe and perform
any of the terms, covenants, agreements, provisions, conditions or
limitations contained in any contracts and agreements affecting the
Premises on Landlord's part to be kept, observed or performed.
18.3 The obligations of the parties under this Article 18 shall not be
affected in any way by the absence in any case of covering insurance or by the
failure or refusal of any insurance carrier to perform any obligation on its
part under insurance policies affecting the Premises, the Hospital Property or
any part thereof.
18.4 If any claim, action or proceeding is made or brought against any
Tenant Indemnified Party or Landlord Indemnified Party against which either is
indemnified pursuant to Sections 18.1 and 18.2 hereof, then, upon demand,
Landlord or Tenant, as applicable, shall resist or defend such claim, action or
proceedings in its name, if necessary, by the attorneys for the applicable
party's insurance carrier (if such claim, action or proceeding is covered by
insurance), otherwise by such attorneys as such party shall approve, which
approval shall not be unreasonably withheld or delayed. The foregoing
notwithstanding, either party may engage its own attorneys to defend it or to
assist in its defense, and the other party shall pay the reasonable fees and
disbursements of such attorneys.
18.5 The provisions of this Article 18 shall survive the Expiration Date
with respect to any liability, suit, obligation, fine, damage, penalty, claim,
cost, charge or expense arising out of or in connection with any matter which is
the subject of indemnification under this Article 18.
ARTICLE 19
RIGHT OF INSPECTION
19.1 Tenant shall permit Landlord and Landlord's agents or representatives
to enter the Premises at all reasonable times (subject to the reasonable
requirements of Space Tenants) for the purpose of (a) inspecting the Premises;
(b) performing Landlord's obligations or enforcing Landlord's rights hereunder;
(c) determining whether or not Tenant is in compliance with its obligations
hereunder; and (d) in the case of an emergency (i.e., a condition presenting
imminent danger to the health or safety of Persons or to property), or following
an Event of Default, making any necessary repairs to the Premises and performing
any work therein, provided that in the case of an emergency Landlord shall make
a reasonable attempt to communicate with Tenant to alert Tenant to the necessary
repair.
19.2 Nothing in this Article 19 or elsewhere in this Lease shall imply any
duty upon the part of Landlord to do any work, and performance of any work by
Landlord shall not constitute a waiver of Tenant's default in failing to perform
the same. Landlord, during the progress of any such work, may keep and store at
the Premises, subject to the reasonable requirements of any Space Tenant, all
necessary materials, tools, supplies and equipment. Landlord shall not be liable
for inconvenience, annoyance, disturbance, loss of business or other damage of
Tenant or any Space Tenant by reason of making such repairs or the performance
of any such work or on account of bringing
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materials, tools, supplies and equipment into the Premises during the course
thereof and the obligations of Tenant under this Lease shall not be affected
thereby. To the extent that Landlord undertakes such work or repairs and such
work or repairs shall require interruption of any services to or access of any
Space Tenant or the entry into any space covered by a Space Lease, such work or
repairs shall be commenced and completed with reasonable diligence, subject to
Unavoidable Delays, and in such a manner as not to unreasonably interfere with
the conduct of business in such space.
ARTICLE 20
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
20.1 If Tenant at any time shall fail to pay any Imposition in accordance
with the provisions hereof, or to take out, pay any insurance premiums for,
maintain or deliver any of the insurance policies in the manner provided for
herein, or shall fail to pay any Rental hereunder as and when due, or to keep,
observe or perform any covenant or any other act on its part required to be made
or performed hereunder, or then at any time after furnishing not less than 30
days' prior notice to Tenant of any Event of Default (or, in the case of an
emergency or an Event of Default which, in Landlord's reasonable judgment, is
likely to cause a forfeiture of Landlord's interest in the Premises, upon not
less than five days' prior notice to Tenant), Landlord, without waiving or
releasing Tenant from any obligation of Tenant contained in this Lease or
waiving or releasing any rights of Landlord hereunder, at law or in equity, may
(but shall be under no obligation to) pay any Imposition, insurance premium,
item of Rental or any other sums, costs, expenses, charges, payments or deposits
payable by Tenant hereunder, or perform any other act on Tenant's part required
to be made or performed as provided in this Lease, and may enter upon the
Premises for such purpose and take all such action thereon as may be necessary
therefor.
20.2 All sums paid by Landlord and all costs and expenses incurred by
Landlord in connection with the performance of any such obligation, together
with interest thereon at the Interest Rate from the respective dates of
Landlord's making of each such payment or incurring of each such sum, cost,
liability, expense, charge, payment or deposit until the date of actual
repayment to Landlord, shall be paid by Tenant to Landlord on demand as Rental.
Any payment or performance by Landlord pursuant to the foregoing provisions of
this Article 20 shall not be nor be deemed to be a waiver or release of breach
or default of Tenant with respect thereto or of the right of Landlord to
terminate this Lease, institute summary proceedings and/or take such other
action as may be permissible hereunder, at law or in equity if an Event of
Default by Tenant shall have occurred. Landlord shall not be limited in the
proof of any damages which Landlord may claim against Tenant arising out of or
by reason of Tenant's failure to provide and keep insurance in force as
aforesaid to the amount of the insurance premium or premiums not paid, but
Landlord also shall be entitled to recover, as damages for such breach, the
uninsured amount of any loss and damage and the costs and expenses of suit,
including, without limitation, reasonable attorneys' fees and disbursements,
suffered or incurred by reason of damage to or destruction of the Premises or
any part thereof, which damage or destruction was required to be insured against
hereunder.
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ARTICLE 21
NO ABATEMENT OF RENTAL
Except as may be otherwise expressly provided herein, there shall be no
abatement, diminution or reduction of Rental payable by Tenant hereunder or of
the other obligations of Tenant hereunder under any circumstances. The parties
intend that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements and shall continue unaffected unless such
obligations shall have been modified or terminated pursuant to an express
provision of this Lease.
ARTICLE 22
PERMITTED USE: NO UNLAWFUL
OCCUPANCY; OPERATION OF THE PREMISES
22.1 Subject to the provisions of this Lease, including Section 10 hereof,
Tenant and any Space Tenants shall be permitted to occupy the Premises for
medical office uses only and for no other use or purpose (the "Permitted Use").
Except for any Space Tenants existing as of the date hereof, no part of the
Premises shall be leased by Tenant to any individual who is not on the medical
staff of the Hospital, or to any entity whose majority ownership interest is
held by owners, shareholders, partners or members that are not on the medical
staff of the Hospital (the "Restricted Tenants"). Notwithstanding the previous
two sentences, Tenant may enter into Space Leases with Space Tenants for uses
which are not Permitted Uses and with Restricted Tenants, so long as the
aggregate rentable square footage leased to such tenants is not more than five
percent (5%) of the rentable square footage of the Buildings (the "Restriction
Threshold") as reasonably calculated by Landlord in accordance with BOMA
Standards; provided, however, if the occupancy rate (that being the percentage
determined by dividing the rentable square footage leased to Space Tenants by
rentable square footage of the Building) in the Building is less than 90%, then
the Restriction Threshold shall increase one percentage point for every two
percentage points that the occupancy rate is below 90%. For example purposes
only, if the occupancy rate is 84%, then the Restriction Threshold shall be
increased to eight percent (8%).
22.2 Tenant covenants that it shall all times provide management services
for the Premises throughout the Term in a professional and competent manner.
22.3 Tenant shall not use or occupy the Premises or any part thereof or,
to the best knowledge of Tenant, permit or suffer the Premises or any part
thereof to be used or occupied for any unlawful business, use or purpose or in
such manner as to constitute in law or in equity a nuisance of any kind (public
or private), or for any use which might adversely affect the reputation of
Landlord or for any dangerous or noxious trade or business or for any purpose or
in any way in violation of applicable laws for the Premises in effect from time
to time during the Term or of any Requirement, or which may make void or
voidable any insurance then in force on the Premises. Tenant shall take,
immediately upon the discovery of any such prohibited use, all necessary steps,
legal, equitable and otherwise, to
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compel the discontinuance of such use, and Tenant shall exercise all of its
rights and remedies against any Space Tenants guilty of such use.
22.4 Tenant shall not use or occupy the Premises or any part thereof, or
knowingly permit or suffer the Premises or any part thereof to be used or
occupied for a "Competitive Activity" (as hereinafter defined); provided
however, that this restriction on Competitive Activities shall not apply to
existing Space Tenants (including extensions, renewals, expansions,
contractions, amendments or other modifications to such Space Tenant's leases)
that are not currently performing such Competitive Activities and to the extent
that such Space Tenant's leases do not contain similar provisions restricting
Competitive Activities. For purposes of this Section 22.4, a "Competitive
Activity" shall mean (but without limitation) the use of the Premises for the
carrying out of the following medical and medical-related activities and
procedures: (a) computerized tomography; (b) magnetic resonance imaging; (c) any
procedure involving the administration of a radio pharmaceutical for diagnosis;
(d) nuclear medicine; (e) any procedure requiring anesthesia which must be
administered by an anesthesiologist or certified registered nurse or other
trained anesthetist (excluding procedures performed by dentists, oral surgeons
and dermatologists); (f) mammography; (g) DEXA; (h) stress testing; (i) 2-D
Echo; (j) stress echo; (k) nuclear cardiology; (l) cardiac rehabilitation; (m)
coronary artery scanning; and (n) cytogenetics. In addition to the foregoing,
Landlord shall have the right at any time and from time to time to identify
additional activities and procedures then being conducted by Landlord in a
written notice to Tenant (a "Supplemental Notice") and any such activities or
procedures so identified to Tenant shall thereafter become Competitive
Activities and shall be prohibited in all future Space Leases entered into after
the delivery of the Supplemental Notice as provided in this Section 22.4;
provided that such additional activities and procedures contained in the
Supplemental Notice are not commonly performed in medical office suites at the
time of such Supplemental Notice. Such additional Competitive Activities
described in the Supplemental Notice shall not apply to existing Space Tenants
(including extensions, renewals, expansions, contractions, amendments or other
modifications to such Space Tenant's leases) that are not currently performing
such additional Competitive Activities and to the extent that such Space
Tenant's leases do not contain similar provisions restricting such additional
Competitive Activities. Notwithstanding anything to the contrary contained in
this Article 22, Landlord shall have the sole and exclusive right to consent to
the use of any part of the Premises for a Competitive Activity, and in
considering whether to permit in a given circumstance a waiver from the
prohibition on Competitive Activities as contemplated hereby, Landlord agrees to
consider (among other relevant factors) (i) occupancy rates, (ii) professional
standards and whether such Competitive Activity is, based on custom and practice
in the industry, a procedure that is routinely performed in medical office
suites for the relevant medical practice, and (iii) the compatibility of the
proposed Competitive Activity with typical medical office uses in other medical
office buildings; provided however consenting in any one instance shall not
otherwise constitute a waiver of the requirements of this Article 22. Landlord's
consent shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding anything to the contrary contained in this Lease, Tenant
shall not be in violation of this Section 22.4 unless and until: (a) Tenant has
actual knowledge of such unpermitted Competitive Activity, or
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Tenant receives from Landlord a written notice (a "Violation Notice") that (i)
describes in reasonably sufficient detail the Competitive Activity that is
occurring in the Building in violation of the terms of this Section 22.4, (ii)
identifies the Space Tenant that is so violating the terms of this Section 22.4,
and (iii) demands that Tenant commence a forcible detainer action against such
Space Tenant; and (b) Tenant fails to send to such violating Space Tenant a
notice of default under its Space Lease within thirty (30) days after (i)
receipt of the Violation Notice, or (ii) Tenant's receipt of actual knowledge of
such unpermitted Competitive Activity; and (c) Tenant so files a forcible
detainer action against such Space Tenant. Provided that Tenant files such
forcible detainer action against such Space Tenant and uses its good faith
efforts to obtain an order for possession, Tenant's failure to obtain an order
for possession against such Space Tenant shall not result in a default by Tenant
of this Lease. Landlord agrees to cooperate with Tenant in the forcible detainer
action, and Landlord shall indemnify and hold Tenant harmless against any and
all reasonable costs, expenses, fines, awards, liabilities, or judgments
(including reasonable attorney's fees and court costs) incurred by Tenant in
connection with the enforcement of the terms of this Section 22.4 and the
forcible detainer action.
22.5 Tenant shall not suffer or permit the Premises or any portion thereof
to be used by the public without restriction or in such manner as might
reasonably tend to impair title to the Premises or any portion thereof, or in
such manner as might reasonably make possible a claim or claims of adverse usage
or adverse possession by the public, as such, or of implied dedication of the
Premises or any portion thereof.
22.6 If any portion of the Premises shall become available for subletting
or if Tenant becomes aware that any such space shall become available for
subletting (the "First Offer Space"), the following procedure shall apply:
(a) Tenant shall immediately notify Landlord in writing (the "Space
Lease Notice") of the availability of the First Offer Space and the terms
and conditions upon which it proposes to sublease the First Offer Space.
Landlord shall have the right to lease for itself or to identify a Space
Tenant ("Landlord's Designated Space Tenant") to lease the First Offer
Space as hereinafter provided (the "First Offer Right").
(b) If within 20 days after receipt of the Space Lease Notice (the
"Space Lease Acceptance Notice Period") Landlord notifies Tenant in
writing (the "Space Lease Acceptance Notice") that it elects to exercise
the aforesaid First Offer Right upon such terms and conditions set forth
in the Space Lease Notice, then Landlord (or Landlord's Designated Space
Tenant) and Tenant shall execute a Space Lease in a mutually satisfactory
form within 30 days after Tenant's receipt of the Space Lease Acceptance
Notice sent by Landlord (the "Space Lease Execution Period"), but in no
event shall a delay in the full execution of such Space Lease nullify
Landlord's exercise of the First Offer Right. If Landlord does not deliver
said Space Lease Acceptance Notice during the Space Lease Acceptance
Notice Period or notifies Tenant that Landlord elects not to sublease the
First Offer Space, then, except as hereinafter provided in this Section
22.6(b) and subject to the terms
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of this Lease including, but not limited to, Sections 22.1 and 22.4
hereof, Tenant shall have the right to sublease the First Offer Space to
any other party ("Tenant's Designated Space Tenant") upon the same terms
and conditions as set forth in the Space Lease Notice.
(c) If Tenant and any Tenant Designated Space Tenant do not execute
a Space Lease within 120 after delivery of the Space Lease Notice
substantially in accordance with the terms of the Space Lease Notice,
Landlord shall thereafter again have a First Offer Right and any other
attendant rights as described in this Section 22.6 with respect to the
subleasing of the First Offer Space. Further, if Tenant substantially
modifies the basic business terms of the Space Lease from those set forth
in the Space Lease Notice, then Tenant shall thereafter deliver a new
Space Lease Notice with respect to the First Offer Space and Landlord
shall thereafter again have a First Offer Right with respect to the First
Offer Space, all in accordance with the terms hereof.
(d) Notwithstanding anything to the contrary contained in this
Section 22.6, in lieu of delivering the Space Lease Acceptance Notice or
electing to itself sublease the First Offer Space or cause Landlord's
Designated Space Tenant to sublease from Tenant the First Offer Space as
provided above, Landlord shall have the right in its sole and exclusive
judgment to exercise the First Offer Right at any time prior to the date
which is 10 days following Landlord's receipt of Tenant's identification
of the Tenant's Designated Space Tenant; provided, however, in such event
Landlord shall be responsible for the financial obligations only contained
in the Space Lease Notice pertaining to the First Offer Space until such
time as either (i) Landlord consents to Tenant's Designated Space Tenant
or a Space Tenant thereafter designated by Tenant or (ii) locates an
alternate Space Tenant willing to assume the terms and conditions
contained in the Space Lease Notice.
In addition to complying with the notice provisions of Section 24.1(b) of
this Lease, a copy of any notices given by Tenant to Landlord under this
Article 22 shall also be sent to Landlord at the Hospital and marked
"Attention: Chief Executive".
22.7 If, prior to the seventh (7th) anniversary of the Commencement Date,
the Hospital ceases to be used as an acute care hospital for a continuous period
of 60 days (the "Hospital Cessation Period") and if, as a result, the exercise
by Tenant of the rights conferred to Tenant under this Lease are materially and
adversely affected, or (b) the prospects of leasing the Building to individuals
on the medical staff of the Hospital are materially and adversely affected, then
Tenant shall have the right to compel Landlord to repurchase the Premises and
terminate this Lease as provided herein in the following manner: If Tenant is
not in default under the terms of this Lease and provided the Hospital has not
during the Hospital Cessation Period resumed operations as an acute care
hospital, Tenant may deliver a Sale Agreement concerning the Premises to
Landlord during the 60-day period commencing upon the expiration of any Hospital
Cessation Period specifying the Closing Date and the Sale Price, and this Lease
shall continue in full force and effect until the Closing Date. Upon a sale of
the Premises pursuant this Section and the payment to Tenant of the Sale Price,
Tenant
46
shall convey the Premises to Landlord or its designee. If the Premises or any
part thereof shall be purchased by Landlord pursuant to any provision of this
Lease, Tenant shall transfer and convey to Landlord or its designee title in the
same condition as existed on the Commencement Date except for real estate taxes
not then due. Landlord shall accept such title subject only to any Space Leases
and other exceptions relating to the Premises arising pursuant to the terms of
this Lease and to all applicable laws, regulations and ordinances, and free of
any Leasehold Mortgage and all other mortgages, liens and encumbrances which
shall have been created by or resulted from acts or failures to act of Tenant.
On the Closing Date, Landlord shall pay to Tenant, at any place within the
United States of America designated by Tenant, the applicable Sale Price, and
Tenant shall deliver to Landlord a special warranty deed conveying title to the
Premises, together with such instruments as shall be necessary to transfer to
Landlord or its designee any other property then required to be transferred by
Tenant pursuant to this Lease. Tenant and Landlord shall pay in accordance with
local custom as of the Closing Date all charges incident to such conveyance and
transfer, including counsel fees, escrow fees, recording fees, title insurance
premiums and all applicable federal, state and local taxes which may be incurred
or imposed by reason of such conveyance and transfer. Upon the completion of
such sale, this Lease and all obligations hereunder shall terminate, except with
respect to any obligations and liabilities of either party which are expressly
intended to survive termination pursuant to the Lease.
22.8 Landlord agrees that, with respect to all of the buildings located on
the Hospital Property as of the Commencement Date, Landlord shall not, after the
date on which less than 80% of the rentable square footage at the Premises is
leased (the "Occupancy Threshold") and thereafter for as long as the Occupancy
Threshold is not met, convert to physician office space more than 20,000
additional square feet of space as reasonably calculated by Landlord in
accordance with BOMA Standards for rental as physician office space uses;
provided, however, the foregoing limitation shall not be deemed to apply to any
such space in any such building which is leased for medical office uses to
tenants who are Affiliates of Landlord.
22.9 Within 30 days after Tenant's request, Landlord, to the extent and in
whatever form available, shall deliver to Tenant the most current year-end
financial statements, which statements shall have been reviewed or audited by an
independent certified public accountant, as well as income statements of the
Hospital in the form produced for Landlord's internal reporting (which may or
may not be audited by an independent certified public accountant). Tenant shall
use all reasonable efforts to keep the details of said financial statements
strictly confidential, except as may be required in connection with any transfer
of the Premises, financing or as may be required by any Leasehold Mortgagee.
22.10 Within 15 days after Tenant's request from time to time, Landlord
shall deliver to Tenant a true and correct list of all individuals on the
medical staff of the Hospital.
ARTICLE 23
EVENTS OF DEFAULT AND REMEDIES
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23.1 Each of the following events shall be an "Event of Default" by Tenant
hereunder:
(a) if Tenant shall fail to pay any installment of Base Rent within
ten days after notice thereof from Landlord that such amount is past due;
(b) if Tenant shall fail to make any other payment of Rental (other
than Base Rent) required to be paid by Tenant hereunder within 20 days
after notice thereof from Landlord to Tenant that such amount is past due;
(c) if Tenant shall fail to observe or perform one or more of the
other material terms, conditions, covenants or agreements of this Lease
and such failure shall not be cured by Tenant within 30 days after written
notice thereof by Landlord to Tenant specifying such failure (unless such
failure requires work to be performed, acts to be done or conditions to be
removed which cannot either by their nature or by reason of Unavoidable
Delays reasonably be performed, done or removed, as the case may be,
within such 30 day period, in which case no Default shall be deemed to
exist as long as Tenant shall have commenced curing the same within such
30 day period and shall continuously prosecute the same to completion with
reasonable diligence, subject to Unavoidable Delays);
(d) to the extent permitted by law, if Tenant shall admit, in
writing, that it is unable to pay its debts as such debts become due;
(e) to the extent permitted by law, if Tenant shall make an
assignment for the benefit of creditors;
(f) to the extent permitted by law, if Tenant shall file a voluntary
petition under Title 11 of the United States Bankruptcy Code, as amended
from time to time, or if such petition is filed against Tenant and an
order for relief is entered, or if Tenant shall file any petition or
answer seeking, consenting to or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under the present or any future federal Bankruptcy Code or
any other present or future applicable federal, state or other statute or
law, or shall seek or consent to or acquiesce to or suffer the appointment
of any trustee, receiver, custodian, assignee, sequestrator, liquidator or
other similar official of Tenant, or of all or any substantial part of its
properties or of the Premises or any interest therein of Tenant, or if
Tenant shall take any corporate (or partnership) action in furtherance of
any action described in Sections 23.1(d), (e) or (f) hereof (provided,
however, Tenant shall not be deemed to have committed an Event of Default
pursuant to this Section 23.1(f) if a Leasehold Mortgagee is curing any
other Default pursuant to the second sentence of Section 10.13(a) hereof);
(g) to the extent permitted by law, if within 60 days after the
commencement of any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under the present or any future federal
48
bankruptcy code or any other present or future applicable federal, state
or other statute or law, such proceeding shall not have been dismissed; or
if, within 120 days after the appointment, without the consent or
acquiescence of Tenant, of any trustee, receiver, custodian, assignee,
sequestrator, liquidator or other similar official of Tenant or of all or
any substantial part of its properties or of the Premises or any interest
therein of Tenant, such appointment shall not have been vacated or stayed
on appeal or otherwise, or if, within 120 days after the expiration of any
such stay, such appointment shall not have been vacated; or
(h) if a levy under execution or attachment shall be made against
Tenant or its interest in the Premises or any part thereof and such
execution or attachment shall not be vacated or removed by court order,
bonding or otherwise within a period of 60 days.
23.2 If an Event of Default shall occur, Landlord may elect to proceed by
appropriate judicial proceedings, either at law or in equity, to enforce the
performance or observance by Tenant of the applicable provisions of this Lease
and/or to recover damages for breach thereof.
23.3 (a) If any Event of Default described in Sections 23.1(c) through (h)
shall occur and Landlord, at any time thereafter, at its option, gives
notice to Tenant stating that this Lease and the Term shall expire and
terminate on the date specified in such notice, which date shall not be
less than the applicable time period provided in Sections 23.1(c)-(h), and
if, on the date specified therein, Tenant shall have failed to cure the
Default which was the basis for the Event of Default, then, subject to the
right on the part of any Leasehold Mortgagee to enter into a new lease of
the Premises as provided in Section 10.14 of this Lease, this Lease and
the Term and all rights of Tenant under this Lease shall expire and
terminate as if the date specified in the notice given pursuant to this
Section 23.3 were the date herein definitely fixed for the expiration of
the Term, and Tenant immediately shall quit and surrender the Premises and
the provisions of Article 30 shall apply, but Tenant shall remain liable
as hereinafter provided. Anything contained herein to the contrary
notwithstanding, if such termination shall be stayed by order of any court
having jurisdiction over any proceeding described in Section 23.1(f) or
23.1(g) hereof, or by federal or state statute, following the expiration
of any such stay, or if the trustee appointed in any such proceeding,
Tenant or Tenant as debtor-in-possession shall fail to assume Tenant's
obligations under this Lease within the period prescribed therefor by law
or within 120 days after entry of the order for relief or as may be
allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of
Landlord's right, title and interest in and to the Premises or adequate
assurance of the complete and continuous future performance of Tenant's
obligations under this Lease as provided in Section 23.15 hereof, then
Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election,
to terminate this Lease on five days' notice to Tenant, Tenant as
debtor-in-possession or said trustee, and upon the expiration of said five
day period this Lease shall cease and expire as aforesaid, and Tenant,
Tenant as debtor-in-possession or said
49
trustee, as the case may be, shall immediately quit and surrender the
Premises as aforesaid. Notwithstanding anything in this Article 23 or in
this Lease to the contrary, in the event of a Tenant Default, Landlord
agrees to use reasonable efforts to mitigate damages.
(b) If an Event of Default described in Sections 23.1(a) or (b)
shall occur, or this Lease shall be terminated as provided in Section
23.3(a), Landlord, without notice, may dispossess Tenant by summary
proceedings or otherwise and the provisions of Article 30 shall apply.
23.4 If this Lease shall be terminated as provided in Section 23.3(a)
hereof and/or Tenant shall be dispossessed by summary proceedings or otherwise
as provided in Section 23.3(b) hereof:
(a) Tenant shall pay to Landlord all Rental payable by Tenant under
this Lease to the date upon which this Lease and the Term shall have
expired and come to an end or to the date of reentry upon the Premises by
Landlord, as the case may be;
(b) Landlord may repair and alter the Premises in such manner as
Landlord may deem necessary or advisable without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability,
and/or let or relet the Premises or any part thereof for the whole or any
part of the remainder of the Term or for a longer period in Landlord's
name or as agent of Tenant, and out of any rent and other sums collected
or received as a result of such reletting Landlord shall: (i) first, pay
to itself the cost and expense of terminating this Lease, re-entering,
retaking, repossessing and repairing and/or altering the Premises, or any
part thereof, and the cost and expense of removing all Persons and
property therefrom, including in such costs reasonable brokerage
commissions, legal expenses and attorneys' fees, court costs and
disbursements; (ii) second, pay to itself the cost and expense sustained
in securing any new tenants and other occupants, including in such costs
reasonable brokerage commissions, legal expenses and attorneys' fees,
court costs and disbursements and other expenses of preparing the Premises
for reletting, and, if Landlord shall maintain and operate the Premises,
the cost and expense of operating and maintaining the Premises; and (iii)
third, pay to itself any balance remaining on account of the liability of
Tenant to Landlord. To the extent permitted by law, Landlord in no way
shall be responsible or liable for any failure to relet the Premises or
any part thereof or for any failure to collect any rent due on any such
reletting, and no such failure to relet or collect rent shall operate to
relieve Tenant of any liability under this Lease or to otherwise affect
any such liability;
(c) Tenant shall be liable for and shall pay to Landlord, as
damages, any deficiency (herein referred to as "Deficiency") between the
Rental reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term and the net amount, if any,
of rents collected under any such reletting effected pursuant to the
provisions of Section 23.4(b) for any part of such period (first deducting
from the rents collected under any such reletting all of the payments to
Landlord described in Section 24.3(b) hereof); any such
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Deficiency shall be paid in installments by Tenant on the days specified
in this Lease for payment of installments of Rental, and Landlord shall be
entitled to recover from Tenant each Deficiency installment as the same
shall arise, and no suit to collect the amount of the Deficiency for any
installment period shall prejudice Landlord's right to collect the
Deficiency for any subsequent installment period by a similar proceeding;
and
(d) whether or not Landlord shall have collected any Deficiency
installments as aforesaid, Landlord shall be entitled to recover from
Tenant, at any time, and Tenant shall pay to Landlord, upon Landlord's
demand, in lieu of any further Deficiencies, as and for liquidated damages
(it being agreed that it would be impracticable or extremely difficult to
fix the actual damage) and not as a penalty or forfeiture, a sum equal to
the amount by which the Rental reserved in this Lease for the period which
otherwise would have constituted the unexpired portion of the Term exceeds
the then fair and reasonable rental value of the Premises for the same
period, both discounted to present worth at a rate of six percent (6%),
less the aggregate amount of Deficiencies theretofore collected by
Landlord pursuant to the provisions to Section 23.4(c) for the same
period; it being agreed that before presentation of proof of such
liquidated damages to any court, commission or tribunal, if the Premises
or any substantial part thereof shall have been relet by Landlord for the
period which otherwise would have constituted the unexpired portion of the
Term, or any part thereof, the amount of rent reserved upon such reletting
shall be deemed, PRIMA FACIE, to be the fair and reasonable rental value
for the part or the whole of the Premises so relet during the term of the
reletting.
23.5 No termination of this Lease pursuant to Section 23.3(a) or (b)
hereof, and no taking possession of and/or reletting the Premises, or any part
thereof, pursuant to Sections 23.3(b) and 23.4(b), shall relieve Tenant of its
liabilities and obligations hereunder, except as specifically provided herein,
all of which shall survive such expiration, termination, repossession or
reletting except as otherwise specifically provided.
23.6 To the extent not prohibited by law, Tenant hereby waives and
releases all rights now or hereafter conferred by statute or otherwise which
would have the effect of limiting or modifying any of the provisions of this
Article 23. Tenant shall execute, acknowledge and deliver any instruments which
Landlord may request, whether before or after the occurrence of an Event of
Default, evidencing such waiver or release.
23.7 The Rental payable by Tenant hereunder and each and every installment
thereof, and all reasonable costs (including attorneys' fees, court costs and
disbursements) and other expenses which may be incurred by Landlord in enforcing
the provisions of this Lease or on account of any delinquency of Tenant in
carrying out the provisions of this Lease shall be and hereby are declared to
constitute a valid lien in favor of Landlord upon the interest of Tenant in this
Lease and in the Premises.
23.8 Suit or suits for the recovery of damages, or for a sum equal to any
installment or installments of Rental payable hereunder or any Deficiencies or
other sums payable by Tenant to Landlord pursuant to this
51
Article 23, may be brought by Landlord at any time and from time to time at
Landlord's election, and nothing herein contained shall be deemed to require
Landlord to await the date whereon this Lease or the Term would have expired had
there been no Event of Default by Tenant and termination.
23.9 Nothing contained in this Article 23 shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding an amount
equal to the maximum allowed by a statute or rule of law governing such
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount shall be greater than, equal to or less than the amount of
the damages referred to in any of the preceding Sections of this Article 23.
23.10 No receipt of moneys by Landlord from Tenant after the termination
of this Lease, or after the giving of any notice of the termination of this
Lease (unless such receipt cures the Event of Default which was the basis for
the notice), shall reinstate, continue or extend the Term or affect any notice
theretofore given to Tenant, or operate as a waiver of the right of Landlord to
enforce the payment of Rental payable by Tenant hereunder or thereafter falling
due, or operate as a waiver of the right of Landlord to recover possession of
the Premises by proper remedy, except as herein otherwise expressly provided, it
being agreed that after the service of notice to terminate this Lease or the
commencement of any suit or summary proceedings, or after a final order or
judgment for the possession of the Premises, or any part thereof or interest
therein, Landlord may demand, receive and collect any moneys due or thereafter
falling due without in any manner affecting such notice, proceeding, order, suit
or judgment, all such moneys collected being deemed payments on account of the
use and occupancy of the Premises or, at the election of Landlord, on account of
Tenant's liability hereunder.
23.11 Except as otherwise expressly provided herein or as prohibited by
applicable law, Tenant hereby expressly waives the service of any notice of
intention to re-enter or other notices provided for in any statute, or of the
institution of legal proceedings to that end, and Tenant, for and on behalf of
itself and all persons claiming through or under Tenant, also waives any and all
right of redemption provided by any law or statute now in force or hereafter
enacted or otherwise, or to restore the operation of this Lease in case Tenant
shall be dispossessed by a judgment or by warrant of any court or judge or in
case of reentry or repossession by Landlord or in case of any expiration or
termination of this Lease, and Landlord and Tenant waive and shall waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, or any claim of injury or damage. The
terms "enter," "re-enter," "entry" or "reentry," as used in this Lease, are not
restricted to their technical legal meaning.
23.12 No failure by either party to insist upon the strict performance by
the other party of any covenant, agreement, term or condition of this Lease or
to exercise any right or remedy consequent upon a breach thereof, and no payment
or acceptance of full or partial Rental during the continuance of any such
breach, shall constitute a waiver of any such breach or of such covenant,
agreement, term or condition. No covenant, agreement, term or
52
condition of this Lease to be performed or completed with by either party, and
no breach thereof, shall be waived, altered or modified except by a written
instrument executed by the other party. No waiver of any breach shall affect or
alter this Lease, but each and every covenant, agreement, term and condition of
this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
23.13 In the event of any breach or threatened breach by either party of
any of the covenants, agreements, terms or conditions contained in this Lease,
the other party shall be entitled to enjoin such breach or threatened breach and
shall have the right to invoke any rights and remedies allowed at law or in
equity or by statute or otherwise, as though reentry, summary proceedings and
other remedies were not provided for in this Lease.
23.14 Each right and remedy of Landlord and Tenant provided for in this
Lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by a party of any of one or more of the rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by such party of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
23.15 If an order for relief is entered or if a stay of proceeding or
other acts becomes effective in favor of Tenant or Tenant's interest in this
Lease, in any proceeding which is commenced by or against Tenant under the
present or any future applicable federal Bankruptcy Code or any other present or
future applicable federal, state or other statute or law, Landlord shall be
entitled to invoke any and all rights and remedies available to it under such
bankruptcy code, statute, law or this Lease, including, without limitation, such
rights and remedies as may be necessary to adequately protect Landlord's right,
title and interest in and to the Premises or any part thereof and/or adequately
assure the complete and continuous future performance of Tenant's obligations
under this Lease. Adequate protection of Landlord's right, title and interest in
and to the Premises, and adequate assurance of the complete and continuous
future performance of Tenant's obligations under this Lease shall include,
without limitation, the following requirements:
(i) that Tenant shall duly and timely comply with all of its
obligations under this Lease;
(ii) that Tenant shall pay to Landlord, on the first day of each
month occurring subsequent to the entry of such order, or on the effective
date of such stay, a sum equal to the amount by which the Premises
diminished in value during the immediately preceding monthly period, but
in no event an amount which is less than the aggregate Rental payable for
such monthly period;
(iii) that Tenant shall continue to use the Premises in the manner
required by this Lease;
(iv) that Landlord shall be permitted to supervise the performance
of Tenant's obligations under this Lease;
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(v) that Tenant shall hire such security personnel as may be
necessary to insure the adequate protection and security of the Premises;
(vi) that Tenant shall pay to Landlord on the date of entry of such
order or the effective date of such stay, as partial adequate protection
against future diminution in value of the Premises and adequate assurance
of the complete and continuous future performance of Tenant's obligations
under this Lease, a security deposit in an amount acceptable to Landlord,
but in no event less than the Rental payable hereunder for the
then-current lease year;
(vii) that Tenant has and will continue to have unencumbered assets
after the payment of all secured obligations and administrative expenses
to assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease;
(viii) that Landlord shall be granted a security interest acceptable
to Landlord in property of Tenant to secure the performance of Tenant's
obligations under this Lease; and
(ix) that if Tenant's trustee, Tenant or Tenant as
debtor-in-possession assumes this Lease and proposes to assign the same
(pursuant to Title 11 U.S.C. 365, as the same may be amended) to any
Person who shall have made a bona fide offer to accept an assignment of
this Lease on terms acceptable to the trustee, Tenant or Tenant as
debtor-in-possession, then notice of such proposed assignment, setting
forth (a) the name and address of such Person; (b) all of the terms and
conditions of such offer; and (c) the adequate assurance to be provided
Landlord to assure such Person's future performance under the Lease,
including, without limitation, the assurances referred to in Title 11
U.S.C. 365(b)-(d) (as they may be amended), shall be given to Landlord by
the trustee, Tenant or Tenant as debtor-in-possession no later than 20
days after receipt by the trustee, Tenant or Tenant as
debtor-in-possession of such offer, but in any event no later than 15 days
prior to the date that the trustee, Tenant or Tenant as
debtor-in-possession shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior right and option,
to be exercised by notice to the trustee, Tenant or Tenant as
debtor-in-possession prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer
made by such Person, less any brokerage commissions and other expenses
which may be payable out of the consideration to be paid by such Person
for the assignment of this Lease.
23.16 If this Lease shall terminate as a result of or while there exists
an Event of Default, any funds (including the interest, if any, accrued thereon)
then held by Depositary in which Tenant has an interest may be applied by
Landlord to any damages payable by Tenant (whether provided for herein or by law
or in equity or otherwise) as a result of such termination or Event of Default,
and the balance remaining, if any, shall be paid to
54
Tenant, subject to the rights of Leasehold Mortgagees, if Tenant would be
entitled to receive same but for such termination or Event of Default.
23.17 Nothing contained in this Article 23 shall be deemed to modify the
provisions of Section 10.12, 10.13 or 10.14 hereof.
23.18 If Landlord fails to pay any amounts due to Tenant under this Lease
and shall not cure such failure within ten business days following Tenant's
written notice to Landlord (and to any Fee Mortgagee of which Tenant shall have
been notified in writing) or if Landlord fails to keep or perform any of its
obligations under this Lease and shall not cure such failure within 30 days
following Tenant's written notice to Landlord (and to any Fee Mortgagee of which
Tenant shall have been notified in writing), Landlord shall be in default under
this Lease; provided, however, if the failure is of a nature that it cannot be
cured within 30 days, Landlord shall not be in default so long as Landlord
commences the cure within such 30 day period and diligently and continuously
pursues the cure to completion as soon as reasonably possible. Upon the
occurrence of any default by Landlord in the payment of money due to Tenant
under this Lease which default remains uncured for the period described in the
preceding sentence, Tenant may offset the amount due, plus interest based on the
Interest Rate. In the event of any default by Landlord in any of its
non-monetary obligations under this Lease, Tenant may pursue any of the
following remedies: (i) take any and all action reasonably necessary to cure
Landlord's default and offset the costs reasonably incurred by Tenant to effect
such cure, subject to the provisions set forth below; (ii) if and only if
Tenant's use of a substantial portion of the Premises for normal business
operations has been materially and adversely affected as a direct result of
Landlord's default, Tenant may terminate this Lease; provided, however, Tenant
may not exercise this termination right until after the 30 day cure period
provided to Landlord above has expired and any Fee Mortgagee of which Tenant
shall have been notified in writing shall have been afforded the opportunity to
remedy such default by Landlord in accordance with the terms and conditions of
Section 25.5 hereof; or (iii) subject to Section 25.5 hereof, pursue any other
remedies available to Tenant, at law or in equity. Tenant may offset the costs
reasonably incurred by Tenant to effect such cure against the next installments
of Rent.
ARTICLE 24
NOTICES
24.1 Whenever it is provided in this Lease that a notice, demand, request,
consent, approval or other communication (each of which is herein referred to as
a "Notice") shall or may be given to or served upon either of the parties by the
other, and whenever either of the parties shall desire to give or serve upon the
other any Notice with respect hereto or the Premises, each such Notice shall be
in writing and, any law or statute to the contrary notwithstanding, shall not be
effective for any purpose unless given or served as follows:
(a) if given by Landlord, by a nationally recognized overnight
courier service, personal delivery or by mailing the same to Tenant by
certified or registered mail, postage prepaid, return receipt requested,
addressed to Tenant at
Great Lakes REIT, 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxx 00000 (Attn: President) with a copy to
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Great Lakes REIT, 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000
(Attn: General Counsel) and/or to such other address(es) and attorneys as
Tenant may from time to time designate by Notice given to Landlord in the
manner set forth below, except that at no time shall Landlord be required
to give, in the aggregate, more than four Notices or copies thereof (not
including the notice set forth in Section 24.3); and
(b) if given by Tenant, by a nationally recognized overnight courier
service, personal delivery or by mailing the same to Landlord by certified
or registered mail, postage prepaid, return receipt requested, addressed
to Landlord at Advocate Health and Hospitals Corporation, 0000 Xxxxxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000 (Attn.: H. Xxxxx Xxxxxxxx, Assistant
General Counsel and Xxxxxxx X. Xxxxx, Vice President) with a copy thereof
to Xxxxx Xxxxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000 (Attn.: Xxxx X. Xxxx and Xxxxxxx X. Xxxxxxxx) and/or to such other
address(es) and attorneys as Landlord may from time to time designate by
Notice given to Tenant in the manner set forth above.
24.2 Every Notice shall be deemed to have been given or served upon
receipt or refusal of receipt if delivered personally, if delivered by a
nationally recognized overnight courier service, one Business Day after deposit
with same, or if mailed, on the second Business Day after the same shall have
been deposited in the United States mails in the manner aforesaid.
24.3 If requested in writing by the holder of any Leasehold Mortgage
(which request shall be made in the manner provided in Section 24.1 and shall
specify an address to which Notices shall be given), any Notice to a party shall
also be given contemporaneously to such holder in the manner herein specified.
Notwithstanding any other provision of this Lease, Landlord shall be under no
obligation to give any Notice of any kind to the holder of any mortgage unless
such holder has made the request referred to in this Section 24.3.
ARTICLE 25
SUBORDINATION; ATTORNMENT
25.1 Provided that any Fee Mortgagee shall execute and deliver to and in
favor of Tenant (and any Leasehold Mortgagee) an agreement to the effect that,
if there shall be a foreclosure of such Fee Mortgage, such Fee Mortgagee will
not make Tenant a party defendant to such foreclosure (unless required by
applicable law to do so), nor in any other way foreclose Tenant from its rights,
evict Tenant, disturb Tenant's possession under this Lease, or terminate or
disturb Tenant's leasehold estate or rights hereunder (any such agreement, or
any agreement of similar import, from a Fee Mortgagee being hereinafter called a
"Nondisturbance Agreement"), this Lease shall be subject and subordinate to each
and every Fee Mortgage which may now or hereafter affect the Premises, or any
portion thereof, and to all renewals, extensions, supplements, amendments,
modifications, consolidations and replacements thereof or thereto, substitutions
therefor, and advances made thereunder, with respect to which Fee Mortgage,
Tenant shall have received a Nondisturbance Agreement. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord reasonably
56
may request. Tenant shall not do or omit to do anything that Tenant is obligated
to do under the terms of this Lease so as to cause Landlord to be in default
under any Fee Mortgage.
25.2 If any Fee Mortgagee, or any of its successors or assigns, or any
other person claiming by or through any such Fee Mortgagee or by or through any
foreclosure proceeding of any such Fee Mortgage, shall succeed to the rights of
Landlord under this Lease, Tenant shall attorn to and recognize such successor
as Tenant's landlord under this Lease, and Tenant shall promptly execute and
deliver at any time any instrument that may be necessary to evidence such
attornment. Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between Tenant and such successor Landlord, upon and
subject to all of the then executory terms, covenants and conditions of this
Lease. The provisions of this Section shall be self-operative, and no instrument
of any such attornment shall be required or needed by the holders of any such
Fee Mortgage. In confirmation of any such attornment Tenant shall, at Landlord's
request or at the request of any such Fee Mortgagee, promptly execute and
deliver such further instruments as may be reasonably required by any such Fee
Mortgagee.
25.3 Any Nondisturbance Agreement shall be made on the condition that
neither the Fee Mortgagee, nor anyone claiming by, through or under such Fee
Mortgagee, shall be:
(a) liable for any act or omission of any prior Landlord (including,
without limitation, the then defaulting Landlord, except for any
continuing defaults);
(b) subject to any defenses or offsets that Tenant may have against
any prior Landlord (including, without limitation, the then defaulting
Landlord);
(c) bound by any payment of Rental which Tenant might have paid for
more than the current month to any prior Landlord (including, without
limitation, the then defaulting Landlord);
(d) bound by any covenant to make any payment to Tenant which was
required to be made prior to the time such Fee Mortgagee succeeded to any
prior Landlord's interest;
(e) bound by any obligation to perform any work or to make
improvements to the Premises or any portion thereof; or
(f) accountable for any moneys deposited with any prior Landlord,
except to the extent such moneys are actually received by such Fee
Mortgagee.
25.4 If required by the Fee Mortgagee, Tenant promptly shall join in any
Nondisturbance Agreement to indicate its concurrence with the provisions thereof
and its agreement, in the event of a foreclosure of such Fee Mortgage, to attorn
to such Fee Mortgagee as Tenant's landlord hereunder. Tenant promptly shall
accept, execute and deliver any Nondisturbance Agreement proposed by any such
Fee Mortgagee, which conforms with the provisions of this Article 25.
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25.5 Landlord represents to Tenant that there are no Fee Mortgagees as of
the Commencement Date. Tenant hereby agrees to give to any Fee Mortgagee of
which Tenant has been notified and provided said Fee Mortgagee's address copies
of all notices of default by Landlord under this Lease at the same time and in
the same manner as and whenever Tenant shall give any such notice of default to
Landlord, and no such notice of default shall be deemed given to Landlord
hereunder unless and until a copy of such notice shall have been so delivered to
such Fee Mortgagee. Such Fee Mortgagee shall have the right to remedy any
default of Landlord under this Lease, or to cause any default of Landlord under
this Lease to be remedied, and, for such purpose, Tenant hereby grants such Fee
Mortgagee such additional period of time as may be reasonable to enable such Fee
Mortgagee to remedy, or cause to be remedied, any such default in addition to
the period given to Landlord for remedying, or causing to be remedied, any such
default. Tenant shall accept performance by such Fee Mortgagee of any term,
covenant, condition or agreement to be performed by Landlord under this Lease
with the same force and effect as though performed by Landlord. No default under
this Lease shall exist or shall be deemed to exist (i) as long as such Fee
Mortgagee, in good faith, shall have commenced to cure such default and shall be
prosecuting the same to completion with reasonable diligence, subject to
Unavoidable Delays, or (ii) if possession of the Premises is required in order
to cure such default, or if such default is not susceptible of being cured by
such Fee Mortgagee, as long as such Fee Mortgagee, in good faith, shall have
notified Tenant that such Fee Mortgagee intends to institute proceedings under
the Fee Mortgage to acquire possession of the Premises, and, thereafter, as long
as such proceedings shall have been instituted and shall be prosecuted with
reasonable diligence. In the event of the termination of this Lease by reason of
Landlord's default hereunder, upon such Fee Mortgagee's written request, given
within 30 days after any such termination, Tenant, within 15 days after receipt
of such request, shall execute and deliver to such Fee Mortgagee or its designee
or nominee a new lease of the Premises for the remainder of the Term of the
Lease upon all of the terms, covenants and conditions of this Lease. Neither
such Fee Mortgagee nor its designee or nominee shall become liable under this
Lease unless and until such Fee Mortgagee or its designee or nominee becomes,
and then only for so long as such Fee Mortgagee or its designee or nominee
remains, the fee owner of the Premises. Such Fee Mortgagee shall have the right,
without Tenant's consent, to foreclose the Fee Mortgage or to accept a deed in
lieu of foreclosure of such Fee Mortgage.
25.6 If the estate of Landlord and the estate of Tenant in the Premises
shall ever be held by the same person, the estate created by and pursuant to
this Lease shall not be merged with any superior estate or other interest in the
Premises.
ARTICLE 26
HAZARDOUS SUBSTANCES
26.1 (a) "Claim" shall mean and include any demand, cause of action,
proceeding or suit and the results thereof (i) for damages (actual or
punitive), losses, injuries to person or property, damages to natural
resources, fines, penalties, expenses, liabilities, interest, contribution
or settlement (including, without limitation, attorneys' fees, court costs
and disbursements), (ii) for the costs of
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site investigations, feasibility studies, information requests, health or
risk assessments, or Response actions, and (iii) for enforcing insurance,
contribution, or indemnification agreements.
(b) "Environmental Law" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules relating to
environmental quality, health, safety, contamination and clean-up,
including, without limitation, the Clean Air Act, 42 U.S.C. Section 7401
ET SEQ.; the Clean Water Act, 33 U.S.C. Section 1251 ET SEQ., and the
Water Quality Act of 1987; the Federal Insecticide, Fungicide, and
Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 ET SEQ.; the Marine
Protection, Research, and Sanctuaries Act, 33 U.S.C. Section 1401 ET SEQ.;
the National Environmental Policy Act, 42 U.S.C. Section 4321 ET SEQ.; the
Noise Control Act, 42 U.S.C. Section 4901 ET SEQ.; the Occupational Safety
and Health Act, 29 U.S.C. Section 651 ET SEQ.; the Resource Conservation
and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 ET SEQ., as amended by
the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water
Act, 42 U.S.C. Section 300f ET SEQ.; the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section
9601 ET SEQ., as amended by the Superfund Amendments and Reauthorization
Act, the Emergency Planning and Community Right-to-Know Act, and Radon Gas
and Indoor Air Quality Research Act; the Toxic Substances Control Act
("TSCA"), 15 U.S.C. Section 2601 ET SEQ.; the Atomic Energy Act, 42 U.S.C.
Section 2011 ET SEQ., and the Nuclear Waste Policy Act of 1982, 42 U.S.C.
Section 10101 ET SEQ.; and the Environmental Protection Act of Illinois
("IEPA"), 415 ILCS 5/1 ET SEQ., and state superlien and environmental
clean-up statutes, with implementing regulations and guidelines.
Environmental Laws shall also include all state, regional, county,
municipal and other local laws, regulations and ordinances insofar as they
are equivalent or similar to the federal laws recited above or purport to
regulate Hazardous Materials.
(c) "Hazardous Materials" shall mean and include the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product, or constituent regulated under CERCLA; oil
and petroleum products and natural gas, natural gas liquids, liquefied
natural gas and synthetic gas usable for fuel; pesticides regulated under
the FIFRA; asbestos and asbestos-containing materials, PCBs and other
substances regulated under the TSCA; source material, special nuclear
material, by-product material and any other radioactive materials or
radioactive wastes, however produced, regulated under the Atomic Energy
Act or the Nuclear Waste Policy Act; chemicals subject to the OSHA Hazard
Communication Standard, 29 C.F.R. Sections 1910.1200 ET SEQ.; industrial
process and pollution control wastes whether or not hazardous within the
meaning of RCRA and any other hazardous substance, pollutant or
contaminant regulated under any other Environmental Law.
(d) "Manage" means to generate, manufacture, process, treat, store,
use, re-use, refine, recycle, reclaim, blend or burn for energy recovery,
incinerate, accumulate speculatively, transport, transfer, dispose of or
abandon Hazardous Materials.
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(e) "Release" or "Released" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, presence, dumping, migration from adjacent
property or disposing of Hazardous Materials into the environment, as
"environment" is defined in CERCLA.
(f) "Response" or "Respond" shall mean action taken in compliance
with Environmental Laws to correct, remove, remediate, cleanup, prevent,
mitigate, monitor, evaluate, investigate, assess or xxxxx the Release of a
Hazardous Material.
26.2 Tenant covenants that Tenant shall (a) at its own cost comply with
all Environmental Laws; (b) not Manage any Hazardous Materials on the Premises
in violation of any Environmental Law, nor conduct nor authorize the same,
including installation of any underground storage tanks, without prior written
disclosure to and approval of Landlord; (c) not take any action that would
subject the Premises to permit requirements under RCRA for storage, treatment or
disposal of Hazardous Materials; (d) not discharge Hazardous Materials into
drains or sewers in violation of any Environmental Laws; (e) not suffer, cause
or allow the Release of any Hazardous Materials on, to or from the Premises in
violation of any Environmental Laws; (f) keep the Premises free from Hazardous
Materials in violation of any Environmental Laws; and (g) at its own cost
arrange for the lawful transportation and off-site disposal of all Hazardous
Materials that it generates in violation of any Environmental Laws.
Notwithstanding the foregoing, (i) Tenant may handle, store, use or dispose of
products containing small quantities of Hazardous Materials (such as aerosol
cans containing insecticides, toner for copiers, paints, paint remover and the
like) to the extent customary and necessary for the use of the Premises for
general office purposes so long as the same is done in accordance with
Environmental Laws, and (ii) Tenant may permit Space Tenants to maintain such
quantities of Hazardous Materials to the extent customary and necessary for the
use of the Premises for medical office purposes so long as the same is done in
accordance with any Environmental Laws.
26.3 During the Term, Tenant shall promptly provide Landlord with copies
of all summons, citations, directives, information inquiries or requests,
notices of potential responsibility, notices of violation or deficiency, orders
or decrees, Claims, complaints, investigations, judgments, letters, notices of
environmental liens or response actions in progress, and other communications,
written or oral, actual or threatened, from the United States Environmental
Protection Agency, Occupational Safety and Health Administration, Illinois
Environmental Protection Agency or other federal, state or local agency or
authority or any other entity or individual, concerning (a) any Release of a
Hazardous Material on, to or from the Premises; (b) the imposition of any lien
on the Premises; or (c) any alleged violation of or responsibility under
Environmental Laws. Upon reasonable advance notice to Tenant, Landlord and
Landlord's employees shall have the right to enter the Premises and conduct
appropriate inspections or tests in order to determine Tenant's compliance with
Environmental Laws. Landlord will take reasonable steps in connection with
exercising such rights to minimize any disruption to, or interference with,
Tenant's (or any subtenant's or other occupant's) use of the Premises, and
Landlord shall not take any measures which will have a material and adverse
impact on access to the Premises.
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26.4 Upon written request by Landlord, Tenant shall provide Landlord with
the results of appropriate reports and tests, with transportation and disposal
contracts for Hazardous Materials, with any permits issued under Environmental
Laws and with any other applicable documents to demonstrate that Tenant complies
with all Environmental Laws relating to the Premises. If Landlord has a good
faith reason to believe the Premises is in violation of any Environmental Law,
Landlord shall have the right from time to time, in its reasonable discretion,
to require Tenant to perform (at Tenant's expense) an environmental audit and,
if deemed necessary by Landlord, an environmental risk assessment (each of which
must be satisfactory to Landlord) of the Premises, hazardous waste management
practices and/or hazardous waste disposal sites used by Tenant. Said audit
and/or risk assessment must be by an environmental consultant satisfactory to
Landlord, in its reasonable discretion. Should Tenant fail to undertake and seek
diligently to perform said environmental audit or risk assessment within 60 days
after Landlord's request, Landlord shall have the right but not the obligation
to retain an environmental consultant to perform said environmental audit or
risk assessment. All costs and expenses reasonably incurred by Landlord in the
exercise of such rights shall be payable by Tenant upon demand,.
26.5 If Tenant's Management of Hazardous Materials at the Premises (a)
gives rise to liability or to a Claim under any Environmental Law, (b) causes a
significant public health effect, or (c) creates a nuisance, Tenant shall
promptly take all applicable action in Response. Landlord (or any Fee Mortgagee
or any Leasehold Mortgagee if so permitted by applicable loan documents) shall
have the right, but not the obligation, after providing Tenant with notice and a
reasonable opportunity to cure, to enter onto the Premises or to take such other
actions as it deems necessary or advisable to perform any and all Response
action(s). All costs and expenses reasonably incurred by Landlord in the
exercise of any such rights shall be payable by Tenant upon demand. Landlord
will take reasonable steps in connection with exercising such rights to minimize
any disruption to, or interference with, Tenant's (or any subtenant's or other
occupant's) use of, or access to, the Premises.
26.6 Tenant shall indemnify, defend and hold harmless Landlord, its
beneficiaries, any Fee Mortgagee, any Leasehold Mortgagee, any managing agents
and leasing agents of the Premises, and their respective agents, partners,
officers, directors and employees from all Claims suffered or incurred by any of
the foregoing arising from or attributable to (a) any breach by Tenant of any of
its warranties, representations or covenants in this Section; (b) noncompliance
of the Premises or Tenant with any Environmental Laws; (c) any actual or alleged
illness, disability, injury, or death of any person in any manner arising out of
or allegedly arisen out of exposure to Hazardous Materials or other substances
or conditions present at the Premises, regardless of when any such illness,
disability, injury, or death shall have occurred or been incurred or manifested
itself; and (d) Hazardous Materials Managed or Released by Tenant or otherwise
located or Released upon the Premises. If any Claims or other assertion of
liability shall be made against Landlord for which Landlord is entitled to
indemnity hereunder, Landlord shall notify Tenant of such Claim or assertion of
liability and thereupon Tenant shall, at its sole cost and expense, assume the
defense of such Claim or assertion of liability and continue such defense at all
times thereafter until completion. Tenant's obligations hereunder shall not
apply to any Claim or assertion of liability that is due to the
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acts of Landlord or its officers, employees, agents or licensees. Tenant's
obligations hereunder shall survive the termination or expiration of this Lease.
26.7 TENANT ACKNOWLEDGES THAT THE PREMISES ARE BEING LEASED IN THEIR
PRESENT "AS IS" CONDITION. TENANT HEREBY REPRESENTS AND WARRANTS TO LANDLORD
THAT TENANT HAS ALREADY PERFORMED AN ENVIRONMENTAL AUDIT OF THE PREMISES AND IS
AWARE OF ANY HAZARDOUS MATERIALS ON THE PREMISES, AND EXCEPT AS SET FORTH BELOW
IN SECTION 26.8, TENANT SHALL ASSUME FULL RESPONSIBILITY FOR THE CLEANUP THEREOF
PURSUANT TO THIS SECTION. EXCEPT AS SET FORTH BELOW IN SECTION 26.8, TENANT
FURTHER ACKNOWLEDGES THAT LANDLORD HAS MADE NO REPRESENTATION WHATSOEVER
REGARDING HAZARDOUS MATERIALS ON OR ABOUT THE PREMISES.
26.8 Landlord represents to Tenant that, only with respect to the Land and
to the best knowledge of Landlord, except as disclosed in that certain Phase I
Environmental Site Assessment Report prepared by GSG Environmental, Inc. dated
June 3, 2002, (i) Landlord has received no notice that there are Hazardous
Materials on the Land, (ii) Landlord has complied with all Environmental Laws,
and (iii) Landlord has not suffered, caused or allowed the Release of any
Hazardous Materials in violation of Environmental Laws on, to or from the Land.
Landlord shall indemnify, defend and hold harmless Tenant, its beneficiaries and
any Leasehold Mortgagee and their respective agents, partners, officers,
directors and employees from all Claims suffered or incurred by any of the
foregoing arising from or attributable to (a) any breach by Landlord of any of
its warranties, representations or covenants in this Section 26.8; (b)
noncompliance of the Land or Landlord with any Environmental Laws prior to the
Commencement Date; (c) any actual or alleged illness, disability, injury, or
death of any person in any manner arising out of or allegedly arisen out of
exposure to Hazardous Materials or other substances or conditions present on the
Land prior to the Commencement Date; and (d) Hazardous Materials Managed or
Released by Landlord or otherwise located or Released upon the Land in violation
of Environmental Laws prior to the Commencement Date. If Claims or other
assertion of liability shall be made against Tenant for which Tenant is entitled
to indemnity hereunder, Tenant shall notify Landlord of such Claim or assertion
of liability and thereupon Landlord shall, at its sole cost and expense (and
upon approval of Tenant, not to be unreasonably withheld, conditioned or
delayed), assume the defense of such Claim or assertion of liability and
continue such defense at all times thereafter until completion. Landlord's
obligations hereunder shall survive the termination or expiration of this Lease.
26.9 With respect to the Hospital Property, Landlord covenants that
Landlord shall (a) at its own cost comply with all Environmental Laws; (b) not
Manage any Hazardous Materials on the Hospital Property in violation of any
Environmental Law, nor conduct nor authorize the same; (c) not discharge
Hazardous Materials into drains or sewers in violation of any Environmental
Laws; (d) not suffer, cause or allow the Release of any Hazardous Materials on,
to or from the Hospital Property in violation of any Environmental Laws; (f)
keep the Hospital Property free from Hazardous Materials in violation of any
Environmental Laws; and (g) at its own cost arrange for the lawful
transportation and off-site disposal of all Hazardous Materials that it
generates in violation of any Environmental Laws. Notwithstanding the foregoing,
Landlord may handle, store, use, dispose or maintain such quantities of
Hazardous Materials to the extent customary and
62
necessary for the use of the Hospital Property as an acute care hospital. If
Landlord's Management of Hazardous Materials at the Hospital (i) gives rise to
liability or to a Claim under any Environmental Law, (ii) causes a significant
public health effect, or (iii) creates a nuisance, Landlord shall promptly take
all applicable action in Response. Landlord shall indemnify, defend and hold
harmless Tenant, any Leasehold Mortgagee, any managing agents and leasing agents
of the Premises, and their respective agents, partners, officers, directors and
employees from all Claims suffered or incurred by any of the foregoing arising
from or attributable to (A) any breach by Landlord of any of its warranties,
representations or covenants in this Article 26; (B) noncompliance of the
Hospital Property or Landlord with any Environmental Laws; (C) any actual or
alleged illness, disability, injury, or death of any person in any manner
arising out of or allegedly arisen out of exposure to Hazardous Materials or
other substances or conditions present at the Hospital Property, regardless of
when any such illness, disability, injury, or death shall have occurred or been
incurred or manifested itself; and (D) Hazardous Materials Managed or Released
by Landlord or otherwise located or Released upon the Hospital Property. In the
event any Claims or other assertion of liability shall be made against Tenant
for which Tenant is entitled to indemnity hereunder, Tenant shall notify
Landlord of such Claim or assertion of liability and thereupon Landlord shall,
at its sole cost and expense, assume the defense of such Claim or assertion of
liability and continue such defense at all times thereafter until completion.
Landlord's obligations hereunder shall not apply to any Claim or assertion of
liability that is due to the acts of Tenant or its officers, employees, agents,
licensees or Space Tenants. Landlord's obligations hereunder shall survive the
termination or expiration of this Lease.
ARTICLE 27
EXCAVATIONS AND SHORING
27.1 If any excavation or other building operation shall be about to be
made or shall be made on any adjoining premises or streets, Tenant shall permit
the owner or lessee of such adjoining premises and their respective
representatives to enter the Premises and to shore the foundations and walls
thereof and to do any other act or thing necessary for the safety or
preservation of the Premises, provided reasonable measures may be taken by
Tenant or required by Tenant to be taken by Landlord or the owner or lessee of
such adjoining premises and their respective representatives to minimize the
extent of the impact on and the length of interruption at the Premises. Landlord
shall not be liable for any inconvenience, annoyance, disturbance, loss of
business or other damage arising therefrom and Tenant's obligations hereunder
shall not be affected thereby.
27.2 If any adjoining building or structure encroaches upon the Premises
as of the Commencement Date, no claim or demand or objection of any kind shall
be made by Tenant against Landlord by reason of any such encroachment; and no
claim for abatement of Rental and of other charges which may become due under
this Lease shall be made by reason of any such encroachment or acts of or in
connection with the removal thereof, and the rights, liabilities and obligations
of the parties hereto shall be the same as if there were no such encroachment,
and in any legal proceedings relating
63
thereto the Premises may properly and without prejudice be described according
to the description hereinbefore contained without reference to any such
encroachments. Landlord shall cooperate with Tenant in any proceedings brought
by Tenant to remove any such encroachments, provided that the same shall be
without cost, liability or expense to Landlord.
ARTICLE 28
CERTIFICATES BY LANDLORD AND TENANT
28.1 At any time and from time to time upon not less than ten days' prior
written notice by Landlord, Tenant shall execute, acknowledge and deliver to
Landlord or any other party specified by Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same, as modified, is in full force and
effect and stating the modifications) and the date to which each obligation
constituting the Rental has been paid, and stating whether or not to the best
knowledge of Tenant (a) there is a continuing default by Landlord in the
performance or observance of any covenant, agreement or condition contained in
this Lease to be performed or observed by Landlord, or (b) there shall have
occurred any event which, with the giving of notice or passage of time or both,
would become such a default and, if so, specifying each such default or
occurrence of which Tenant may have knowledge and stating such other factual
matters as may be reasonably requested by Landlord. Such statement may be relied
upon by any Fee Mortgagee or prospective successor to Landlord's interest in
this Lease.
28.2 At any time and from time to time upon not less than ten days' prior
notice by Tenant, Landlord shall execute, acknowledge and deliver to Tenant or
any other party specified by Tenant a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same, as modified, is in full force and effect and
stating the modifications) and the date to which each obligation constituting
the Rental has been paid, and stating whether or not to the best knowledge of
Landlord (a) there is a continuing Default or Event of Default and, if so,
specifying each such Default and Event of Default, or (b) there shall have
occurred any event which, with the giving of notice or passage of time or both,
would become such a Default or Event of Default of which the signer may have
knowledge and stating such other factual matters as may be reasonably requested
by Tenant. Such statement may be relied upon by any then existing or prospective
Leasehold Mortgagee, Space Tenant, assignee or purchaser of all or a portion of
Tenant's interest in this Lease.
ARTICLE 29
CONSENTS AND APPROVALS
29.1 (a) All consents and approvals which may be given under this Lease
shall, as a condition of their effectiveness, be in writing. The granting
of any consent or approval by a party to perform any act requiring consent
or approval under the terms of this Lease, or the failure on the part of a
party to object to any such action taken without the required consent or
approval, shall not be deemed a waiver by the party whose consent was
required of its right to require such consent or approval for any further
similar act, and each party hereby
64
expressly covenants and warrants that as to all matters requiring the
other party's consent or approval under the terms of this Lease, the party
requiring the consent or approval shall secure such consent or approval
for each and every happening of the event requiring such consent or
approval and shall not claim any waiver on the part of the other party of
the requirement to secure such consent or approval.
(b) If, pursuant to the terms of this Lease, any consent or approval
by Landlord or Tenant is not to be unreasonably withheld or delayed or is
subject to a specified standard, then (i) unless expressly provided
otherwise in this Lease, if the party who is to give its consent or
approval shall not have notified the other party within ten days after
receiving such other party's request (which request shall contain (a)
sufficient detailed information so as to enable the party who is to give
its consent or approval the ability to make a fully informed decision with
respect to such consent or approval, and (b) a conspicuous statement to
the effect that such party's failure to respond within ten days from the
receipt of such request shall be deemed consent or approval hereunder) for
a consent or approval that such consent or approval is granted or denied,
and if the latter, the reasons in reasonable detail therefor, such consent
or approval shall be deemed granted.
(c) Unless otherwise expressly set forth herein to the contrary, any
matter or thing which is required under this Lease to be done
"satisfactorily" or to the "satisfaction" of a party need only be done
"reasonably satisfactorily" or to the "reasonable satisfaction" of that
party.
ARTICLE 30
SURRENDER AT END OF TERM
30.1 Tenant shall, on the last day of the Term or upon the earlier
termination of the Term, quit and surrender to Landlord the Premises vacant,
free of all equipment, furniture and other personal property and in good order
and condition, reasonable wear and tear, casualty and condemnation excepted, and
free and clear of all lettings, occupancies, liens and encumbrances other than
those, if any, existing at the date hereof, created by Landlord or which
lettings and occupancies by their express terms and conditions extend beyond the
Expiration Date and to which Landlord shall have consented and agreed, pursuant
to this Lease or in writing, without any payment or allowance whatsoever by
Landlord. Tenant hereby waives any notice now or hereafter required by law with
respect to vacating the Premises on any such termination date. Tenant's
obligation to observe and perform this covenant shall survive the expiration or
earlier termination of the Term.
30.2 Except as otherwise provided in Article 23 of this Lease, upon the
expiration of the Term, all Rental and other items payable by Tenant under this
Lease shall be apportioned to the date of termination.
30.3 Tenant acknowledges that possession of the Premises must be
surrendered to Landlord at the expiration or earlier termination of the Term. If
Tenant's holdover exceeds 90 days, Tenant agrees to indemnify, defend and save
Landlord harmless from and against any and all costs, expenses, claims,
65
loss or liability resulting from the failure or delay by Tenant in so
surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such failure or delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to
surrender possession of the Premises timely as aforesaid will be extremely
substantial, will exceed the amount of the Base Rent and Additional Rent
theretofore payable hereunder and will be impossible to measure accurately.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord upon the expiration or earlier termination of the Term, then Tenant
shall pay to Landlord, as liquidated damages for each month and for each portion
of any month during which Tenant holds over at the Premises after the expiration
or sooner termination of the Term, in addition to any sums payable pursuant to
the foregoing indemnity, a sum equal to 120% of the aggregate of the Base Rent
and Additional Rent which was payable under this Lease with respect to the last
month of the Term. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the expiration or earlier termination of
the Term. If Tenant holds over in possession after the expiration or termination
of the Term, such holding over shall not be deemed to extend the Term or renew
this Lease, but the tenancy thereafter shall continue as a tenancy from month to
month upon the terms and conditions of this Lease at the Base Rent and
Additional Rent as herein increased. This provision shall survive the expiration
or earlier termination of this Lease.
30.4 On the last day of the Term or upon any earlier termination of the
Lease or upon reentry by Landlord upon the Premises pursuant to Article 23
hereof, fee simple title to the Buildings and all fixtures and improvements
therein, to the extent not theretofore vested in Landlord pursuant to the terms
of this Lease, shall revert to Landlord without the necessity of any further
action by either party hereunder, provided, however, that upon Landlord's
request, Tenant shall execute and deliver to Landlord (in recordable form) all
documents necessary to evidence such conveyance, including, without limitation,
a quitclaim deed and xxxx of sale. Tenant shall deliver to Landlord Tenant's
executed counterparts of all Space Leases, any service and maintenance contracts
that are in Tenant's possession and are then affecting the Premises, true and
complete maintenance records for the Premises, all original licenses and permits
then pertaining to the Premises and all assignable warranties and guarantees
then in effect which Tenant has received in connection with any work or services
performed or Equipment installed in the Buildings, together with a duly-executed
assignment of any of the foregoing to Landlord, all financial reports,
documents, books and records whatsoever relating to the Premises.
30.5 On the last day of the Term or upon any earlier termination of this
Lease or upon a re-enter by Landlord upon the Premises pursuant to Article 23
hereof, Tenant, at its sole cost and expense, shall remove from the Premises on
or prior to such expiration, termination or reentry all personal property
situated thereon which is not owned by Landlord, and shall repair any damage
caused by such removal. Any property not so removed shall become the property of
Landlord, and Landlord may cause such property to be removed from the Premises
and disposed of, but the cost of any such removal and disposition and of
repairing any damage caused by such removal shall be borne by Tenant.
66
ARTICLE 31
ENTIRE AGREEMENT
All understandings and agreements, oral or written, heretofore made
between the parties hereto are merged in this Lease, which alone fully and
completely expresses the agreement between Landlord (and its beneficiary, if
any, and their agent(s)) and Tenant.
ARTICLE 32
QUIET ENJOYMENT
If and as long as Tenant shall faithfully perform the agreements, terms,
covenants and conditions hereof, Tenant shall and may (subject, however, to the
provisions, reservations, terms and conditions of this Lease) peaceably and
quietly have, hold and enjoy the Premises for the Term hereby granted without
molestation or disturbance by or from Landlord or any Person claiming through or
under Landlord and free of any encumbrance created or suffered by Landlord,
except from encumbrances created or suffered by Tenant and the Permitted
Encumbrances. This covenant shall be construed as running with the Land to and
against subsequent owners and successors in interest and is not, nor shall it
operate or be construed as, a personal covenant of Landlord, except to the
extent of Landlord's interest in the Premises and only so long as such interest
shall continue, and thereafter this covenant shall be binding upon such
subsequent owners and successors in interest of Landlord's interest under this
Lease, to the extent of their respective interests, as and when they shall
acquire the same, and only so long as they shall retain such interest.
ARTICLE 33
SEVERABILITY
The invalidity of any provision of this Lease shall not impair or affect
in any manner the validity, enforceability or effect of the rest of this Lease.
ARTICLE 34
RECORDING OF LEASE
Landlord and Tenant agree to execute, acknowledge and deliver a memorandum
of this Lease and, when applicable, shall execute, acknowledge and deliver a
copy of any modification of this Lease, in proper form for recordation. If an
Event of Default occurs hereunder and, as a result thereof, this Lease is
terminated, Landlord may execute a statement to be recorded in the appropriate
land records terminating such memorandum.
ARTICLE 35
EXCULPATION
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Except as provided in the next immediately succeeding sentence, Landlord
acknowledges and agrees that the liability of Tenant under this Lease shall be
limited to its interest in the Premises and any judgments rendered against
Tenant shall be satisfied out of the proceeds of sale of its interest in the
Premises and no personal judgment shall lie against Tenant upon extinguishment
of its rights in the Premises and any judgment so rendered shall not give rise
to any right of execution or levy against Tenant's assets. Notwithstanding the
foregoing, Tenant shall be personally liable for any Default or Event of Default
under this Lease relating to fraud, misapplication of insurance proceeds,
misapplication of condemnation proceeds or the matters set forth in Article 26
hereof. The provisions of this Section shall inure to Tenant's successors and
assigns. The foregoing provisions are not designed to relieve Tenant from the
performance of any of Tenant's obligation's under this Lease, but only to limit
the personal liability of Tenant in case of recovery of a judgment against
Tenant, except as provided otherwise herein. The foregoing shall not be deemed
to limit Landlord's rights to obtain injunctive relief or specific performance.
ARTICLE 36
MISCELLANEOUS
36.1 The captions of this Lease are for convenience of reference only and
in no way define, limit or describe the scope or intent of this Lease or in any
way affect this Lease.
36.2 The Table of Contents is for the purpose of convenience of reference
only and is not to be deemed or construed in any way as part of this Lease or as
supplemental thereto or amendatory thereof.
36.3 The use herein of the neuter pronoun in any reference to Landlord or
Tenant shall be deemed to include any individual Landlord or Tenant, and the use
herein of the words "successors and assigns" of Landlord or Tenant shall be
deemed to include the heirs, legal representative and permitted assigns of any
individual Landlord or Tenant.
36.4 Tenant shall pay any and all charges of Depositary in connection with
any services rendered by Depositary pursuant to the provisions of this Lease.
36.5 If more than one entity is named as or becomes Landlord or Tenant
hereunder, the other party may require the signatures of all such entities in
connection with any notice to be given or action to be taken by that party
hereunder. If more than one entity is named as or becomes Landlord or Tenant
hereunder, each such entity shall be fully jointly and severally liable for all
of that party's obligations hereunder. Any notice by a party to any entity named
as the other party shall be sufficient and shall have the same force and effect
as through given to all entities named as such other party.
36.6 Each of the parties represents and warrants to the other that it has
not dealt with any broker, finder or like entity in connection with this Lease
transaction other than CB Xxxxxxx Xxxxx, Inc. ("Broker"), whose commission shall
be paid by Landlord and each party shall defend, indemnify
68
and hold the other party harmless from and against any and all claims for
brokerage fees or other commissions which may at any time be asserted against
the indemnified party founded upon a claim that the aforesaid representation and
warranty of the indemnifying party is untrue, together with any and all losses,
damages, costs and expenses (including reasonable attorneys' fees, court costs
and disbursements) relating to such claims or arising therefrom or incurred by
the indemnified party in connection with the enforcement of this indemnification
provision. If any claim is made by any broker (other than Broker) who shall
claim to have acted or dealt with Tenant in connection with this transaction,
Tenant will pay the brokerage commission, fee or other compensation to which
such broker is entitled.
36.7 This Lease may not be changed, modified or terminated orally, but
only by a written instrument of change, modification or termination executed by
the party against whom enforcement of any change, modification or termination is
sought.
36.8 This Lease shall be governed by and construed in accordance with the
laws of the State of Illinois.
36.9 The agreements, terms, covenants and conditions herein shall be
binding upon, and shall inure to the benefit of, Landlord and Tenant and their
respective successors and (except as otherwise provided herein) assigns.
36.10 All references in this Lease to "Articles" or "Sections" shall refer
to the designated Article(s) or Section(s), as the case may be, of this Lease.
36.11 All references in this Lease to "licensed professional engineer" or
"registered architect" shall mean a professional engineer or architect who is
licensed or registered, as the case may be, by the State of Illinois.
36.12 Unless specifically provided otherwise herein, any undertaking
either required or permitted hereunder by either Landlord or Tenant shall
include the obligation to pay for such undertaking.
36.13 This Lease shall not be construed to create a partnership or joint
venture between the parties, it being the intention of the parties only to
create a landlord and tenant relationship.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Ground Lease as
of the day and year first written above.
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LANDLORD: TENANT:
ADVOCATE HEALTH AND HOSPITALS CORPORATION, an GLR-MEDICAL PROPERTIES ONE, LLC, a Delaware
Illinois not-for-profit corporation limited liability company
By:
GREAT LAKES REIT, L.P., a
By: Delaware limited partnership, its Managing
----------------------------------------------- Member
Name:
----------------------------------------
Title:
----------------------------------------
By:
GREAT LAKES REIT, a
Maryland Real Estate Investment
Trust, its General Partner
By: ____________________
Xxxxxxx X. Xxxxx
Chief Investment Officer
70
STATE OF ______________ )
)
COUNTY OF ____________ )
I, _____________________, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that _________________, personally known to
me to be the _________________________ of Advocate Health and Hospitals
Corporation, an Illinois not for profit corporation, whose name is subscribed to
the within instrument, appeared before me this day in person and acknowledged
that as such ________________, he/she signed and delivered the said instrument
as __________________ of said corporation, as his/her free and voluntary act,
and as the free and voluntary act and deed of Advocate Health and Hospitals
Corporation, an Illinois not for profit corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal, this ____ day of ___________,
2002.
________________________
Notary Public
My commission expires:______________________
STATE OF ______________ )
)
COUNTY OF ____________ )
I, _____________________, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Xxxxxxx X. Xxxxx, personally known to me
to be the Chief Investment Officer of
Great Lakes REIT, a Maryland Real Estate
Investment Trust, the general partner of
Great Lakes REIT, L.P., a Delaware
limited partnership, the managing member of GLR-Medical Properties One, LLC, a
Delaware limited liability company, whose name is subscribed to the within
instrument, appeared before me this day in person and acknowledged that as such
chief investment officer, he/she signed and delivered the said instrument as
chief investment officer of said company for the uses and purposes therein set
forth.
GIVEN under my hand and notarial seal, this ____ day of ___________,
2002.
Notary Public
My commission expires: _____________________
EXHIBIT A
DESCRIPTION OF THE LAND
THAT PART OF THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 43
NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE WEST HALF OF THE NORTHWEST QUARTER OF
SAID SECTION 22; THENCE SOUTH 00(Degree)48'42" WEST 392.23 FEET ALONG THE EAST
LINE OF SAID WEST HALF; THENCE NORTH 89(Degree)59'05" WEST 319.19 FEET; THENCE
SOUTH 00(Degree)00'55" WEST 340.88 FEET TO XXX XXXXX XX XXXXXXXXX; XXXXXX XXXXX
00(Xxxxxx)00'00" EAST 47.89 FEET; THENCE NORTH 42(Degree)09'32" EAST 13.28 FEET;
THENCE SOUTH 47(Degree)50'28" EAST 88.41 FEET; THENCE SOUTH 42(Degree)09'32"
WEST 106.04 FEET; THENCE NORTH 47(Degree)50'28" WEST 34.32 FEET; THENCE SOUTH
42(Degree)09'32" WEST 92.59 FEET; THENCE SOUTH 47(Degree)50'28" EAST 34.41 FEET;
THENCE SOUTH 42(Degree)09'32" WEST 54.08 FEET; THENCE NORTH 47(Degree)50'28"
WEST 48.03 FEET; THENCE SOUTH 42(Degree)09'32" WEST 13.35 FEET; THENCE NORTH
47(Degree)50'28" WEST 28.20 FEET; THENCE SOUTH 42(Degree)16'43" WEST 26.46 FEET;
THENCE SOUTH 55(Degree)43'29" EAST 71.56 FEET; THENCE SOUTH 34(Degree)16'31"
WEST 107.47 FEET; THENCE NORTH 55(Degree)43'29" WEST 53.85 FEET; THENCE SOUTH
22(Degree)55'49" WEST 39.78 FEET; THENCE SOUTH 78(Degree)27'34" EAST 53.89 FEET;
THENCE SOUTH 11(Degree)32'26" WEST 108.75 FEET; THENCE NORTH 78(Degree)27'34"
WEST 164.05 FEET; THENCE NORTH 11(Degree)32'26" EAST 108.75 FEET; THENCE SOUTH
78(Degree)27'34" EAST 97.73 FEET; THENCE NORTH 22(Degree)55'49" EAST 44.68 FEET;
THENCE NORTH 55(Degree)43'29" WEST 97.73 FEET; THENCE NORTH 34(Degree)16'31"
EAST 107.47 FEET; THENCE SOUTH 55(Degree)43'29" EAST 81.99 FEET; THENCE NORTH
42(Degree)16'43" EAST 29.97 FEET; THENCE NORTH 47(Degree)50'28" WEST 49.76 FEET;
THENCE NORTH 42(Degree)09'32" EAST 106.04 FEET; THENCE SOUTH 47(Degree)50'28"
EAST 38.04 FEET; THENCE NORTH 42(Degree)09'32" EAST 92.60 FEET; THENCE NORTH
47(Degree)50'28" WEST 38.08 FEET; THENCE NORTH 42(Degree)09'32" EAST 54.05 FEET
TO THE POINT OF BEGINNING, ALL IN LAKE COUNTY, ILLINOIS.
AND
THAT PART OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 43 NORTH, RANGE 9
EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: COMMENCING AT THE
NORTHEAST CORNER OF THE WEST HALF OF THE NORTHWEST QUARTER OF SAID SECTION 22;
THENCE SOUTH 00(Degree)48'42" WEST 392.23 FEET ALONG THE EAST LINE OF SAID WEST
HALF; THENCE NORTH 89(Degree)59'05" WEST 22.36 FEET; THENCE SOUTH
00(Degree)00'55" WEST 389.10 FEET TO THE POINT OF BEGINNING; THENCE NORTH
85(Degree)56'37" EAST 40.77 FEET; THENCE SOUTH 04(Degree)03'23" EAST 46.70 FEET;
THENCE NORTH 85(Degree)56'37" EAST 90.50 FEET; THENCE SOUTH 04(Degree)03'23"
EAST 95.46 FEET; THENCE SOUTH 85(Degree)56'37" WEST 172.56 FEET; THENCE NORTH
04(Degree)03'23" WEST 9.92 FEET; THENCE SOUTH 85(Degree)56'37" WEST 18.28 FEET;
THENCE NORTH 04(Degree)03'23" WEST 7.89 FEET; THENCE SOUTH 85(Degree)56'37" WEST
18.01 FEET; THENCE NORTH 04(Degree)03'23" WEST 23.02 FEET; THENCE NORTH
40(Degree)56'37" EAST 51.31 FEET; THENCE NORTH 04(Degree)03'23" WEST 9.16 FEET;
THENCE NORTH 85(Degree)56'37" EAST 35.16 FEET; THENCE NORTH 04(Degree)03'23"
WEST 13.07 FEET; THENCE NORTH 85(Degree)56'37" EAST 6.13 FEET; THENCE NORTH
04(Degree)03'23" WEST 42.81 FEET TO THE POINT OF BEGINNING, ALL IN LAKE COUNTY,
ILLINOIS. PIN: Parts of PINs 00-00-000-000, 00-00-000-000, 00-00-000-000 and
00-00-000-000 Address: 000 Xxxx Xxxxxxx 00, Xxxxxxxxxx, Xxxxxxxx
1
EXHIBIT B
DESCRIPTION OF THE HOSPITAL PROPERTY
PARCEL 1: THE SOUTH EAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 43
NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN LAKE COUNTY, ILLINOIS.
PARCEL 2: THAT PART OF THE EAST 1/2 OF THE NORTHWEST 1/4 OF SECTION 22, TOWNSHIP
43 NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF THE
HIGHWAY, KNOWN AS STATE ROUTE NO. 22, BEING DESCRIBED AS FOLLOWS: COMMENCING AT
THE NORTHEAST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION
22; THENCE RUNNING SOUTH ON THE HALF SECTION LINE TO THE SAID HIGHWAY RUNNING
EAST AND WEST; THENCE WESTERLY ALONG THE HIGHWAY TO THE HALF QUARTER SECTION
LINE; THENCE NORTH ON SAID HALF QUARTER SECTION LINE TO THE SECTION LINE: THENCE
EAST ON THE SECTION LINE TO THE POINT OF BEGINNING, IN LAKE COUNTY, ILLINOIS.
PARCEL 3: THE WEST 1/2 OF THE NORTHWEST 1/4 OF SAID SECTION 22, TOWNSHIP 43
NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, (EXCEPT THEREFROM THE
FOLLOWING DESCRIBED PORTION OF SAID PREMISES: BEGINNING AT A POINT ON THE WEST
LINE OF SAID SECTION 22 AT THE XXXXXXXXXXXX XX XXX XXXXXX XXXX XX XXXXX XXXX XX.
00; THENCE SOUTHEASTERLY ALONG SAID CENTER LINE A DISTANCE OF 387.6 FEET; THENCE
NORTH 3 DEGREES 18 MINUTES EAST A DISTANCE OF 684.5 FEET; THENCE SOUTH 85
DEGREES 44 MINUTES EAST A DISTANCE OF 166.8 FEET; THENCE NORTH 28 DEGREES 45
MINUTES EAST A DISTANCE OF 729.4 FEET; THENCE EASTERLY AND PARALLEL WITH THE
NORTH LINE OF SAID SECTION 22 TO THE EAST LINE OF THE WEST HALF OF THE NORTHWEST
1/4 OF SAID SECTION 22; THENCE NORTHERLY ALONG THE EAST LINE OF THE WEST 1/2 OF
THE NORTHWEST 1/4 OF SAID SECTION 22 TO THE NORTHEAST CORNER OF THE WEST 1/2 OF
THE NORTHWEST 1/4 OF SAID SECTION 22; THENCE WESTERLY ALONG THE NORTH LINE OF
SAID SECTION 22 TO THE NORTHWEST CORNER OF SAID SECTION 22; THENCE SOUTHERLY
ALONG THE WEST LINE OF SAID SECTION 22, TO THE POINT OF BEGINNING) (EXCLUDING
THAT PART OF THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 43
NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE WEST HALF OF THE NORTHWEST QUARTER OF
SAID SECTION 22; THENCE SOUTH 00(Degree)48'42" WEST 392.23 FEET ALONG THE EAST
LINE OF SAID WEST HALF; THENCE NORTH 89(Degree)59'05" WEST 319.19 FEET; THENCE
SOUTH 00(Degree)00'55" WEST 340.88 FEET TO XXX XXXXX XX XXXXXXXXX; XXXXXX XXXXX
00(Xxxxxx)00'00" EAST 47.89 FEET; THENCE NORTH 42(Degree)09'32" EAST 13.28 FEET;
THENCE SOUTH 47(Degree)50'28" EAST 88.41 FEET; THENCE SOUTH 42(Degree)09'32"
WEST 106.04 FEET; THENCE NORTH 47(Degree)50'28" WEST 34.32 FEET; THENCE SOUTH
42(Degree)09'32" WEST 92.59 FEET; THENCE SOUTH 47(Degree)50'28" EAST 34.41 FEET;
THENCE SOUTH 42(Degree)09'32" WEST 54.08 FEET; THENCE NORTH 47(Degree)50'28"
WEST 48.03 FEET; THENCE SOUTH 42(Degree)09'32" WEST 13.35 FEET; THENCE NORTH
47(Degree)50'28" WEST 28.20 FEET; THENCE SOUTH 42(Degree)16'43" WEST 26.46 FEET;
THENCE SOUTH 55(Degree)43'29" EAST 71.56 FEET; THENCE SOUTH 34(Degree)16'31"
WEST 107.47 FEET; THENCE NORTH 55(Degree)43'29" WEST 53.85 FEET; THENCE SOUTH
22(Degree)55'49" WEST 39.78 FEET; THENCE SOUTH 78(Degree)27'34" EAST 53.89 FEET;
THENCE SOUTH 11(Degree)32'26" WEST 108.75 FEET; THENCE NORTH 78(Degree)27'34"
WEST 164.05 FEET; THENCE NORTH 11(Degree)32'26" EAST 108.75 FEET; THENCE SOUTH
78(Degree)27'34" EAST 97.73 FEET; THENCE NORTH 22(Degree)55'49" EAST 44.68 FEET;
THENCE NORTH 55(Degree)43'29" WEST 97.73 FEET; THENCE NORTH 34(Degree)16'31"
EAST 107.47 FEET; THENCE SOUTH 55(Degree)43'29" EAST 81.99 FEET; THENCE NORTH
42(Degree)16'43" EAST 29.97 FEET; THENCE NORTH 47(Degree)50'28" WEST 49.76 FEET;
THENCE NORTH 42(Degree)09'32" EAST 106.04 FEET; THENCE SOUTH 47(Degree)50'28"
EAST 38.04 FEET; THENCE NORTH 42(Degree)09'32" EAST 92.60 FEET; THENCE NORTH
47(Degree)50'28" WEST 38.08 FEET; THENCE NORTH 42(Degree)09'32" EAST 54.05 FEET
TO THE POINT OF BEGINNING;AND EXCLUDING THAT PART OF THE NORTHWEST QUARTER OF
SECTION 22, TOWNSHIP 43 NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN
1
DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE WEST HALF OF THE
NORTHWEST QUARTER OF SAID SECTION 22; THENCE SOUTH 00(Degree)48'42" WEST 392.23
FEET ALONG THE EAST LINE OF SAID WEST HALF; THENCE NORTH 89(Degree)59'05" WEST
22.36 FEET; THENCE SOUTH 00(Degree)00'55" WEST 389.10 FEET TO THE POINT OF
BEGINNING; THENCE NORTH 85(Degree)56'37" EAST 40.77 FEET; THENCE SOUTH
04(Degree)03'23" EAST 46.70 FEET; THENCE NORTH 85(Degree)56'37" EAST 90.50 FEET;
THENCE SOUTH 04(Degree)03'23" EAST 95.46 FEET; THENCE SOUTH 85(Degree)56'37"
WEST 172.56 FEET; THENCE NORTH 04(Degree)03'23" WEST 9.92 FEET; THENCE SOUTH
85(Degree)56'37" WEST 18.28 FEET; THENCE NORTH 04(Degree)03'23" WEST 7.89 FEET;
THENCE SOUTH 85(Degree)56'37" WEST 18.01 FEET; THENCE NORTH 04(Degree)03'23"
WEST 23.02 FEET; THENCE NORTH 40(Degree)56'37" EAST 51.31 FEET; THENCE NORTH
04(Degree)03'23" WEST 9.16 FEET; THENCE NORTH 85(Degree)56'37" EAST 35.16 FEET;
THENCE NORTH 04(Degree)03'23" WEST 13.07 FEET; THENCE NORTH 85(Degree)56'37"
EAST 6.13 FEET; THENCE NORTH 04(Degree)03'23" WEST 42.81 FEET TO THE POINT OF
BEGINNING), ALL IN LAKE COUNTY, ILLINOIS.
PIN: Parts of PINs 00-00-000-000, 00-00-000-000, 00-00-000-000
and 00-00-000-000
2
EXHIBIT C
PERMITTED ENCUMBRANCES
A. All title exceptions shown on Schedule B-2 to Loan Policy No. 000664197
issued by Chicago Title Insurance Company.
B. Zoning laws, ordinances and regulations, building codes, regulations
and rules and other governmental laws, regulations, rules and orders affecting
the Premises.
C. Recorded or unrecorded Space Leases or other agreements for occupancy
of the Premises.
1
EXHIBIT D
BASE RENT
Attach Rent Schedule
EXHIBIT E
