-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Uh8DRgNBnaFLSrDEdgotgteRc3OkPTg1vDSXFZJvZ1pOnv73alc6VtCq2arPH+zD 8Zw6nmU705HQpDvGCO0NOg== 0000912057-02-038679.txt : 20021015 0000912057-02-038679.hdr.sgml : 20021014 20021015163652 ACCESSION NUMBER: 0000912057-02-038679 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20021001 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20021015 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GREAT LAKES REIT CENTRAL INDEX KEY: 0001063393 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 364238056 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14307 FILM NUMBER: 02789443 BUSINESS ADDRESS: STREET 1: 823 COMMERCE DRIVE STREET 2: STE 300 CITY: OAK BROOK STATE: IL ZIP: 60523 BUSINESS PHONE: 6303682900 MAIL ADDRESS: STREET 1: 823 COMMERCE DR STREET 2: STE 300 CITY: OAK BROOK STATE: IL ZIP: 60523 FORMER COMPANY: FORMER CONFORMED NAME: GREAT LAKES MERGER TRUST DATE OF NAME CHANGE: 19980604 8-K 1 a2091295z8-k.htm 8-K
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

October 1, 2002
Date of report (Date of earliest event reported)

Great Lakes REIT
(Exact name of Registrant as specified in Charter)

Commission file number: 1-14307

Maryland (State or other jurisdiction of incorporation or organization)				36-4238056 (I.R.S. Employer identification no.)
823 Commerce Drive, Suite 300, Oak Brook, IL 60523 (Address of principal executive offices, including zip code)
(630) 368-2900 (Registrant's telephone number, including area code)

Item 2. Acquisition or Disposition of Assets.

On October 1, 2002, Great Lakes REIT, through Great Lakes REIT, L.P. and a newly formed subsidiary, GLR-Medical Properties One, LLC, a Delaware limited liability company (collectively, the "Company"), completed the purchase of eight medical office buildings in the metropolitan Chicago market for approximately $59.6 million. The properties were acquired from Advocate Health and Hospitals Corporation, a Chicago-area health care services provider not affiliated with the Company.

The eight medical office buildings, seven of which are subject to 75-year ground leases, total 459,000 square feet and range in size from 50,000 to 130,000 square feet.

Funds for the purchase came from funds held in trust for the completion of a 1031 tax-free exchange transaction and from a $36 million one-year bridge loan from Bank One, NA. The interest rate on the bridge loan floats at LIBOR plus 1.85% for the first six months and at LIBOR plus 2.5% for the second six months. The bridge loan may be pre-paid any time prior to its due date without penalty.

Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.

(a) Financial Statements of Business Acquired. The Company will file the financial statements related to the acquired properties within the prescribed time period as permitted by paragraph (a)(4) of Item 7 of Form 8-K.

(b) Pro Forma Financial Information. The Company will file the pro forma financial information related to the acquired properties within the prescribed time period as permitted by paragraph (b)(2) of Item 7 of Form 8-K.

Exhibit No.		Description
99.1		Form of the ground lease between the Company and Advocate Health and Hospitals Corporation relating to 7 of the 8 properties acquired.
99.2		Bridge Loan Agreement between the Company and Bank One, NA, dated as of October 1, 2002.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

	GREAT LAKES REIT
	By:	/s/ RICHARD L. RASLEY
	Name:	Richard L. Rasley
	Title:	Executive Vice President and Secretary
Date: October 15, 2002

EXHIBIT INDEX

Exhibit No.		Description
99.1		Form of the ground lease between the Company and Advocate Health and Hospitals Corporation relating to 7 of the 8 properties acquired.
99.2		Bridge Loan Agreement between the Company and Bank One, NA, dated as of October 1, 2002.

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Item 2. Acquisition or Disposition of Assets.

Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.

SIGNATURE
EXHIBIT INDEX
EX-99.1 3 a2091295zex-99_1.txt EX-99.1 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 Shepherd Medical Office Building, Barrington, Illinois Dated as of October 1, 2002 TABLE OF CONTENTS

~~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~~

ii 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 2025 Windsor Drive, Oak Brook, Illinois 60523, 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, 823 Commerce Drive, Suite 300, Oak Brook, Illinois 60523. 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). 1 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. 2 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 3 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. 4 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. 5 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. 6 (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 7 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 8 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 9 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 10 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 12 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. 13 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. 14 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 bill 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 bill. 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. 15 (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. 17 (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, 19 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. 20 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 21 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 22 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 24 (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 25 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. 31 (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. 32 (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. 33 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 34 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 35 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 41 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. 42 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 43 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 44 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 45 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 47 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 50 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; 53 (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, 823 Commerce Drive, Suite 300, Oak Brook, Illinois 60523 (Attn: President) with a copy to 55 Great Lakes REIT, 823 Commerce Drive, Suite 300, Oak Brook, Illinois 60523 (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, 2025 Windsor Drive, Oak Brook, Illinois 60523 (Attn.: H. James Slinkman, Assistant General Counsel and Deborah J. Rohde, Vice President) with a copy thereof to Piper Rudnick, 203 North LaSalle Street, Suite 1800, Chicago, Illinois 60601 (Attn.: Mark J. Nora and Richard F. Klawiter) 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. 57 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 58 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. 59 (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 abate 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. 60 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 61 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 bill 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 67 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 Richard Ellis, 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. 69 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: ____________________ Raymond M. Braun 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 Raymond M. Braun, 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 THE POINT OF BEGINNING; THENCE SOUTH 47(Degree)50'28" 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 13-22-100-009, 13-22-100-012, 13-22-100-013 and 13-22-100-002 Address: 450 West Highway 22, Barrington, Illinois 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 INTERSECTION OF THE CENTER LINE OF STATE ROAD NO. 22; 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 THE POINT OF BEGINNING; THENCE SOUTH 47(Degree)50'28" 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 13-22-100-009, 13-22-100-012, 13-22-100-013 and 13-22-100-002 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 EX-99.2 4 a2091295zex-99_2.txt EX-99.2 Exhibit 99.2 Bridge Loan Agreement Between the Company and Bank One, NA dated as of October 1, 2002 LOAN AGREEMENT DATED AS OF OCTOBER 1, 2002 AMONG GLR-MEDICAL PROPERTIES ONE, LLC, AS BORROWER, THE LENDERS, and BANK ONE, NA, AS AGENT TABLE OF CONTENTS
ARTICLE PAGE - ------- ---- ARTICLE I DEFINITIONS................................................................................... 1 ARTICLE II THE LOANS.....................................................................................12 2.1 Agreement to Lend and Borrow..................................................................12 2.2 Evidence of Indebtedness......................................................................12 2.3 Types of Portions.............................................................................12 2.4 Commitment Fees...............................................................................12 2.5 Minimum Amount of Each Portion and Maximum Number of Portions.................................13 2.6 Optional Principal Payments...................................................................13 2.7 Method of Selecting Types and Interest Periods for Portions on Closing Date...................13 2.8 Conversion and Continuation of Outstanding Portions...........................................13 2.9 Changes in Interest Rate, etc.................................................................14 2.10 Rates Applicable After Default................................................................14 2.11 Method of Payment.............................................................................14 2.12 Evidence of Indebtedness......................................................................15 2.13 Telephonic Notices............................................................................15 2.14 Interest Payment Dates; Interest and Fee Basis................................................15 2.15 Notification of Interest Rates and Prepayments................................................16 2.16 Lending Installations.........................................................................16 2.17 Non-Receipt of Funds by the Agent.............................................................16 2.18 Usury.........................................................................................16 2.19 Late Charges..................................................................................17 2.20 Closing Costs and Expenses....................................................................17 ARTICLE III YIELD PROTECTION; TAXES.......................................................................17 3.1 Yield Protection..............................................................................17 i 3.2 Changes in Capital Adequacy Regulations.......................................................18 3.3 Availability of Types of Portions.............................................................18 3.4 Funding Indemnification.......................................................................19 3.5 Taxes.........................................................................................19 3.6 Lender Statements; Survival of Indemnity......................................................20 ARTICLE IV CONDITIONS PRECEDENT TO CLOSING...............................................................20 4.1 Appraisals and Remargining....................................................................20 4.2 Conditions Precedent to Closing...............................................................21 4.3 General Conditions............................................................................21 4.4 Representations and Warranties................................................................25 4.5 No Defaults...................................................................................26 ARTICLE V REPRESENTATIONS AND WARRANTIES...................................................................26 5.1 Existence and Standing........................................................................26 5.2 Authorization and Validity....................................................................26 5.3 No Conflict; Government Consent...............................................................26 5.4 Financial Statements..........................................................................27 5.5 Material Adverse Change.......................................................................27 5.6 Taxes.........................................................................................27 5.7 Litigation and Contingent Obligations.........................................................27 5.8 ERISA.........................................................................................28 5.9 Accuracy of Information.......................................................................28 5.10 Material Agreements...........................................................................28 5.11 Compliance With Laws..........................................................................28 5.12 Environmental Matters.........................................................................29 5.13 Financing Statements..........................................................................29 5.14 Title.........................................................................................29 5.15 Ground Leases.................................................................................30 ii 5.16 Investment Company Act........................................................................30 5.17 Public Utility Holding Company Act............................................................30 5.18 Tenant Leases.................................................................................30 5.19 Utilities; Authorities........................................................................30 5.20 Physical Condition............................................................................31 5.21 Management....................................................................................31 5.22 Condemnation..................................................................................31 ARTICLE VI COVENANTS.....................................................................................31 6.1 Financial Reporting...........................................................................31 6.2 Maintenance of Minimum DSCR...................................................................31 6.3 Use of Proceeds...............................................................................31 6.4 Notice of Default.............................................................................32 6.5 Conduct of Business...........................................................................32 6.6 Taxes.........................................................................................32 6.7 Insurance.....................................................................................32 6.8 Compliance with Laws..........................................................................32 6.9 Maintenance of Collateral Properties..........................................................32 6.10 Inspection....................................................................................32 6.11 Indebtedness..................................................................................32 6.12 Merger ....................................................................................33 6.13 Investments and Acquisitions ................................................................33 6.14 Liens.........................................................................................33 6.15 Affiliates....................................................................................33 6.16 Ground Leases and Tenant Leases...............................................................33 6.17 Sale, Encumbrance and Leasing of Collateral Properties........................................34 6.18 Restrictions Affecting Borrower...............................................................34 iii 6.19 Use of Income.................................................................................35 6.20 Additional Documents..........................................................................35 ARTICLE VII DEFAULTS......................................................................................35 ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................................37 8.1 Acceleration..................................................................................37 8.2 Amendments....................................................................................37 8.3 Preservation of Rights........................................................................38 ARTICLE IX GENERAL PROVISIONS............................................................................38 9.1 Survival of Representations...................................................................38 9.2 Governmental Regulation.......................................................................38 9.3 Headings......................................................................................38 9.4 Entire Agreement..............................................................................38 9.5 Several Obligations; Benefits of this Agreement...............................................38 9.6 Expenses; Indemnification.....................................................................38 9.7 Numbers of Documents..........................................................................39 9.8 Accounting....................................................................................39 9.9 Severability of Provisions....................................................................39 9.10 Nonliability of Lenders.......................................................................40 9.11 Confidentiality...............................................................................40 9.12 Nonreliance...................................................................................40 9.13 Disclosure....................................................................................40 ARTICLE X THE AGENT.....................................................................................40 10.1 Appointment; Nature of Relationship...........................................................40 10.2 Powers........................................................................................41 10.3 General Immunity..............................................................................41 10.4 No Responsibility for Loans, Recitals, etc....................................................41 10.5 Action on Instructions of Lenders.............................................................42 iv 10.6 Employment of Agents and Counsel..............................................................42 10.7 Reliance on Documents; Counsel................................................................42 10.8 Agent's Reimbursement and Indemnification.....................................................42 10.9 Notice of Default.............................................................................43 10.10 Rights as a Lender............................................................................43 10.11 Lender Credit Decision........................................................................43 10.12 Successor Agent...............................................................................43 10.13 Delegation to Affiliates......................................................................44 10.14 Collateral Property Releases..................................................................44 ARTICLE XI SETOFF; RATABLE PAYMENTS......................................................................44 11.1 Setoff........................................................................................44 11.2 Ratable Payments..............................................................................44 ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.............................................45 12.1 Successors and Assigns........................................................................45 12.2 Participations................................................................................45 12.3 Assignments...................................................................................46 12.4 Dissemination of Information ................................................................47 12.5 Tax Treatment.................................................................................47 ARTICLE XIII NOTICES.......................................................................................47 13.1 Notices.......................................................................................47 13.2 Change of Address.............................................................................47 ARTICLE XIV COUNTERPARTS..................................................................................47 ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................................49 15.1 CHOICE OF LAW.................................................................................49 15.2 CONSENT TO JURISDICTION.......................................................................49 15.3 WAIVER OF JURY TRIAL..........................................................................49
v LOAN AGREEMENT This Loan Agreement is dated as of the 1st day of October, 2002 and is among Borrower (as hereinafter defined), the Lenders (as hereinafter defined) and Bank One, NA, a national banking association, having its principal office in Chicago, Illinois, as Agent. The parties hereto agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below: "Acquisition" means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Borrower (i) acquires any going business or all or substantially all of the assets of any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company. "Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise. "Agent" means Bank One in its capacity as contractual representative of the Lenders pursuant to Article X, and not in its individual capacity as a Lender, and any successor Agent appointed pursuant to Article X. "Agreement" means this Loan Agreement, as it may be amended or modified and in effect from time to time. "Agreement Accounting Principles" means generally accepted accounting principles as in effect from time to time. "Alternate Base Rate" means, for any day, an annual rate of interest equal to the higher of (i) the Prime Rate for such day, and (ii) the sum of the Federal Funds Effective Rate for such day, plus 1/2% per annum. "Applicable Laws" means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions applicable to Borrower, the Guarantors or any one or more of the Collateral Properties. "Applicable Margin" means, with respect to (i) Floating Rate Portions, an annual rate of interest equal to (x) one quarter of one percent (1/4%) during the period commencing on the Closing Date and ending on the six-month anniversary thereof, and thereafter so long as the Permanent Loan Condition has been and remains satisfied, and (y) unless the Permanent Loan Condition has been and remains satisfied, one percent (1%) during the period commencing on the day following the six-month anniversary of the Closing Date and ending on the Maturity Date, and (b) with respect to Eurodollar Portions, an annual rate of interest equal to (x) one and eighty-five one hundredths percent (1.85%) during the period commencing on the Closing Date and ending on the six-month anniversary thereof, and thereafter so long as the Permanent Loan Condition has been and remains satisfied, and (y) unless the Permanent Loan Condition has been and remains satisfied, two and one half percent (2.5%) during the period commencing on the day following the six-month anniversary of the Closing Date and ending on the Maturity Date. "Appraisals" are defined in Section 4.3. "Appraised Value" means the "as is" dollar value of the Collateral Properties as established by Agent based upon its review of the Appraisals. "Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. "Article" means an article of this Agreement unless another document is specifically referenced. "Assignment of Rents and Leases" means the collateral assignments of all rents and Tenant Leases arising out of or covering all or any portion of the Collateral Properties executed by Borrower in favor of Agent, as agent for the Lenders , securing the Obligations, as such assignments of rents and leases may be amended, modified, supplemented, renewed or restated from time to time. "Authorized Officer" means any authorized officer of Great Lakes REIT, designated as such in the resolutions delivered to Agent prior to the Closing Date of Borrower, acting singly. "Bank One" means Bank One, NA, a national banking association, having its principal office in Chicago, Illinois, in its individual capacity, and its successors. "Borrower" means GLR-Medical Properties One, LLC, a Delaware limited liability company, and its successors and assigns. "Business Day" means (i) with respect to any payment or rate selection of Eurodollar Portions, a day (other than a Saturday or Sunday) on which banks generally are open in Chicago and New York City for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Chicago for the conduct of substantially all of their commercial 2 lending activities and interbank wire transfers can be made on the Fedwire system. "Cash Equivalent Investments" means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts maintained in the ordinary course of business, and (iv) certificates of deposit issued by and time deposits with commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000; PROVIDED in each case that the same provides for payment of both principal and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest. "Change in Control" means (i) Great Lakes LP shall cease to own, free and clear of all Liens or other encumbrances, at least 55% of the membership interests in Borrower, (ii) Great Lakes LP shall cease to be the sole manager of Borrower or shall cease to have the sole and exclusive right to make all decisions regarding the operation of Borrower and the Collateral Properties, or (iii) Great Lakes REIT shall cease to be the sole general partner of Great Lakes LP. "Christ Property" shall mean the land located in Oak Lawn, Illinois and legally described in Exhibit A-1 attached hereto and made a part hereof, together with all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon and all rights and easements appurtenant thereto. "Closing Date" shall mean the date upon which the proceeds of the Loans are disbursed by the Lenders to Borrower pursuant to the terms and provisions of this Agreement. "Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. "Collateral Documents" means, collectively, the Fee Mortgage, the Leasehold Mortgage, the Assignment of Rents and Leases, the Guaranty, the Security Agreement, the Environmental Indemnity and all other documents delivered by Borrower or the Guarantors to Agent or the Lenders and securing the Obligations. "Collateral Properties" mean the Naperville Property, the Good Samaritan Property, the South Suburban Property, the Christ Property, the Good Shepherd Property and the Trinity Property, collectively. "Contingent Obligation" of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or the obligations of any such Person as general partner of a partnership with respect to the liabilities of the partnership. 3 "Conversion/Continuation Notice" is defined in Section 2.8. "Controlled Group" means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or the Guarantors, are treated as a single employer under Section 414 of the Code. "Debt Service" means an amount determined by Agent to be equal to the principal and interest payments that would be due and payable during the first twelve (12) months of the term of a loan in an amount equal to the then outstanding principal balance of the Loans, bearing interest at an annual rate equal to the greatest of (i) seven and one-quarter percent (7 1/4%), (ii) 230 basis points plus the annual rate being paid by ten-year United States Treasury Notes at the time of such determination, (iii) the Eurodollar Rate (using an Interest Period that results in the highest Eurodollar Rate) in effect as of the date of such determination, or (iv) the Floating Rate in effect as of the date of such determination. "Default" means an event described in Article VII. "DSCR" means the ratio, expressed as a percentage, of Net Operating Income to Debt Service. "Environmental Indemnity" means the Environmental Indemnity Agreement dated as of the date hereof executed by Borrower and the Guarantors, jointly and severally, in favor of Agent, as agent for the Lenders, as said agreement may be amended, modified, supplement, renewed or restated from time to time. "Environmental Laws" means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (i) the protection of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder. "Eurodollar Portion" means a Portion which, except as otherwise provided in Section 2.10, bears interest at the applicable Eurodollar Rate. "Eurodollar Base Rate" means, with respect to a Eurodollar Portion for the relevant Interest Period, the applicable British Bankers' Association LIBOR rate for deposits in U.S. dollars as reported by any generally recognized financial information service as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, PROVIDED that, if no such British Bankers' Association LIBOR rate is available to the Agent, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the 4 rate determined by the Agent to be the rate at which Bank One or one of its Affiliate banks offers to place deposits in U.S. dollars with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of Bank One's relevant Eurodollar Loan and having a maturity equal to such Interest Period. "Eurodollar Rate" means, with respect to a Eurodollar Portion for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the Applicable Margin, changing as and when the Applicable Margin changes during any Interest Period. "Excluded Taxes" means, in the case of each Lender or applicable Lending Installation and the Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Agent is incorporated or organized or (ii) the jurisdiction in which the Agent's or such Lender's principal executive office or such Lender's applicable Lending Installation is located. "Federal Funds Effective Rate" means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago time) on such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion. "Fee Mortgage" means the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing executed by Borrower in favor of Agent, as agent for the Lenders, creating a first mortgage lien on the Naperville Property, including all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon, and all rights and easements appurtenant thereto, securing the Obligations, as said mortgage may be amended, modified, supplemented, renewed or restated from time to time. "Floating Rate" means, for any day, a rate per annum equal to (i) the Alternate Base Rate for such day, plus (ii) the Applicable Margin, in each case changing when and as the Alternate Base Rate and the Applicable Margin change. "Floating Rate Portion" means a Portion which, except as otherwise provided in Section 2.10, bears interest at the Floating Rate. "Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business. 5 "Good Samaritan Property" shall mean the land located in Downers Grove, Illinois and legally described in Exhibit A-2 attached hereto and made a part hereof, together with all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon and all rights and easements appurtenant thereto. "Good Shepherd Property" shall mean the land located in Barrington, Illinois and legally described in Exhibit A-3 attached hereto and made a part hereof, together with all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon and all rights and easements appurtenant thereto. "Great Lakes L.P." means Great Lakes REIT, LP, a Delaware limited partnership. "Great Lakes REIT" means Great Lakes REIT, a Maryland real estate investment trust. "Ground Lessor" means Advocate Health and Hospitals Corporation, an Illinois not for profit corporation, or any successor landlord under the Ground Leases. "Ground Leases" means those certain five Ground Leases between Ground Lessor, as landlord, and Borrower, as tenant, creating leasehold estates in the real estate comprising the Good Samaritan Property, the South Suburban Property, the Christ Property, the Good Shepherd Property and the Trinity Property, respectively. "Guarantors" means Great Lakes LP and Great Lakes REIT, their respective successors and assigns, jointly. "Guaranty" means that certain Guaranty dated as of the date hereof executed by the Guarantors, jointly and severally, in favor of the Agent, for the benefit of the Lenders, as said guaranty may be amended, modified, supplemented, renewed or restated from time to time. "Hazardous Materials" shall mean and include any and all hazardous, toxic or dangerous substances, wastes and materials and other pollutants and contaminants as defined or described in any or all applicable federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or decrees now or hereafter regulating, relating to or imposing liability or standards of conduct with respect to environmental matters, including, without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. Section 9601 ET SEQ.), the Hazardous Materials Transportation Act (49 U.S.C Section 1801 ET SEQ.), the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Solid and Hazardous Waste Amendments of 1984 (42 U.S.C. Section 6901 ET SEQ.), the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 and the Water Quality Act of 1987 (33 U.S.C Section 1251 ET SEQ.), the Toxic Substances Control Act of 1976 (15 U.S.C Section 2601 ET seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C Section 11001 ET SEQ.), the Clear Air Act of 1966, as amended (42 U.S.C Section 7401 ET SEQ.), the National Environmental Policy Act of 1970 (42 U.S.C. 6 Section 4321 ET SEQ.), the Rivers and Harbours Act of 1899 (33 U.S.C Section 401 ET SEQ.), the Endangered Species Act of 1973, as amended (16 U.S.C Section 1531 ET SEQ.), the Safe Drinking Water Act of 1974, as amended (42 U.S.C Section 300(f) ET SEQ.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C Section 651 ET SEQ.) and all rules, regulations and guidance documents promulgated or published thereunder, all as amended or hereinafter amended. Without intending to limit the scope or breadth of the foregoing definition, the term Hazardous Materials shall include asbestos, urea formaldehyde, polychlorinated biphenyls, crude oil, radioactive materials and underground storage tanks. "Indebtedness" of a Person means such Person's (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person's business payable on terms customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) obligations of such Person to purchase securities or other Property arising out of or in connection with the sale of the same or substantially similar securities or Property, (vi) any other obligation for borrowed money or other financial accommodation which in accordance with Agreement Accounting Principles would be shown as a liability on the consolidated balance sheet of such Person. "Initial Notice" is defined in Section 2.7. "Interest Period" means, with respect to a Eurodollar Portion, a period of one, two or three months commencing on a Business Day selected by Borrower pursuant to this Agreement. Such Interest Period shall end on the day which corresponds numerically to such date one, two or three months thereafter, PROVIDED, HOWEVER, that if there is no such numerically corresponding day in such next, second or third succeeding month, such Interest Period shall end on the last Business Day of such next, second or third succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, PROVIDED, HOWEVER, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day. "Investment" of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person; any deposit accounts and certificate of deposit owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by such Person. "Leasehold Mortgage" shall mean the Fee and Leasehold Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing executed by Borrower in favor of Agent, as agent for the Lenders, creating a first lien on the leasehold estates created under the Ground Leases and a 7 first lien on all buildings, fixtures and other improvements now or hereafter owned by Borrower and situated thereon, and all rights and easements appurtenant thereto, securing the Obligations, as said mortgage may be amended, modified, supplemented, renewed or restated from time to time. "Lenders" means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns. "Lending Installation" means, with respect to a Lender or the Agent, the office, branch, subsidiary or affiliate of such Lender or the Agent listed on the signature pages hereof or on a Schedule or otherwise selected by such Lender or the Agent pursuant to Section 2.15. "Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, capitalized lease or other title retention agreement). "Loan" means, with respect to a Lender, such Lender's loan made pursuant to Article II. "Loan Documents" means this Agreement, the Notes and the Collateral Documents. "Loan-to-Value Ratio" means the ratio, expressed as a percentage, of (a) the outstanding principal balance of the Loans, to (b) the Appraised Value. "Material Adverse Effect" means a material adverse effect on (i) the business, Property, condition (financial or otherwise), results of operations, or prospects of Borrower or the Guarantors, as applicable, taken as a whole, (ii) the ability of Borrower or the Guarantors, as applicable, to perform their respective obligations under the Loan Documents to which they are a party, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Agent or the Lenders thereunder. "Maturity Date" means October 1, 2003. "Maximum Aggregate Amount" means Loans in the aggregate principal amount of $36,000,000, as said amount may be reduced as provided in Section 4.1 or 6.2. "Multiemployer Plan" means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrower or any member of the Controlled Group is a party to which more than one employer is obligated to make contributions. "Naperville Property" means the land located in Naperville, Illinois and legally described in Exhibit A-4 attached hereto and made a part hereof, together with all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon, and all rights and easements appurtenant thereto. 8 "Net Operating Income" for any Collateral Property means (a) the product of four (4), multiplied by the sum of (i) all rental income (including minimum rent, escalation and expense reimburse payments) actually received by Borrower during the Quarter immediately preceding such determination from Tenants that were in occupancy of their demised premises during the entire Quarter and are not in default under their Tenant Leases (excluding Tenant's security deposits and rent paid during such Quarter by any Tenant for more than 3 months of rental obligations), plus (ii) the pro forma rent payable for three calendar months by any Tenant in occupancy for less than the entire Quarter that is not in default under its Tenant Lease, less (b) the product of the amount described in (a) above, multiplied by the greater of 5% or the actual vacancy rate for such Collateral Property less (c) the annualized sum of all accrued operating expenses, ground rent payments, real estate taxes and other disbursements for such Quarter, or if such Collateral Property is not stabilized, the "stabilized" annual amount of such operating expenses, real estate taxes and other expenses as used in the most recent Appraisal of such Collateral Property, but excluding: (1) non-cash expenses, such as depreciation and amortization costs, (2) state and federal income taxes, (3) the non-current portion of capital expenditures determined in accordance with the Agreement Accounting Principles, and (4) debt service payable on the Loans, less (d) to the extent any tenant concessions remain in effect with respect to any Tenant Lease in the Collateral Property, the product of twelve (12), multiplied by the amount of such concessions, divided by the remaining number of months of the term of the applicable Tenant Lease. "Non-U.S. Lender" is defined in Section 3.5(iv). "Notes" shall mean the Promissory Notes made by Borrower to each Lender in the principal amount of such Lender's Loan, as said notes may be amended, modified, supplemented, renewed or restated from time to time. "Obligations" means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Agent or any indemnified party arising under the Loan Documents. "Other Taxes" is defined in Section 3.5(ii). "Participants" is defined in Section 12.2.1. "Payment Date" means the 1st day of each calendar month. "PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto. "Permanent Loan Condition" means the satisfaction of all the following: (a) the issuance to Borrower by an institutional lender acceptable to Agent in its reasonable discretion and the acceptance by Borrower of a loan commitment, the form and substance of which shall have been approved by Agent in the exercise of its reasonable discretion, for a permanent loan in a net amount (after the payment of all commitment fees and other closing costs relating to said permanent loan) sufficient to repay the outstanding 9 principal balance of the Loans prior to the Maturity Date, (b) the payment by Borrower of all commitment fees and deposits then due under said loan commitment, and (c) the absence of any default or termination under said loan commitment. "Permitted Exceptions" means the exceptions to the title to the Collateral Properties listed in Exhibits C-1 through C-6 attached hereto and made a part hereof. "Person" means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof. "Plan" means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which Borrower or any member of the Controlled Group may have any liability. "Portion" means a portion of the outstanding principal balance of the Loans, designated on the Closing Date or converted or continued as herein provided. "Prime Rate" means a rate per annum equal to the prime rate of interest announced from time to time by Bank One or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes. "Property" of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person. "Purchasers" is defined in Section 12.3. "Quarter" means a calendar quarter. "Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System. "Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System. "Reportable Event" means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event, PROVIDED, HOWEVER, that a failure to 10 meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code. "Required Lenders" means Lenders in the aggregate having at least a majority of the outstanding Loans. "Reserve Requirement" means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on Eurocurrency liabilities. "Section" means a numbered Section of this Agreement, unless another document is specifically referenced. "Security Agreement" means a security agreement dated as of the date hereof executed by Borrower in favor of Agent, for the benefit of Lenders, encumbering all personal property owned by Borrower and located on or used in connection with the Collateral Properties, as said agreement may be amended, modified, supplemented, renewed or restated from time to time. "Single Employer Plan" means a Plan maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group. "South Suburban Property" shall mean the land located in Hazel Crest, Illinois and legally described in Exhibit A-5 attached hereto and made a part hereof, together with all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon and all rights and easements appurtenant thereto. "Standard Lease Form" means the standard form lease for the leasing/subleasing of space in the Collateral Properties, as approved by Agent as of the date hereof. "Taxes" means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but EXCLUDING Excluded Taxes and Other Taxes. "Tenant Leases" means Leases (with respect to the Naperville Property) and subleases (with respect to the other Collateral Properties) entered into by Borrower or in which the landlord's interest thereunder has been assigned to Borrower. "Tenants" means the tenants or subtenants, as applicable, under the Tenant Leases. "Title Company" means Chicago Title Insurance Company. "Title Policies" means the title policies issued to Agent pursuant to Section 4.3. "Transferee" is defined in Section 12.4. 11 "Trinity Property" shall mean the land located in Chicago, Illinois and legally described in Exhibit A-6 attached hereto and made a part hereof, together with all buildings, fixtures and other improvements, now or hereafter owned or acquired by Borrower and situated thereon and all rights and easements appurtenant thereto. "Type" means, with respect to any Portion, its nature as a Floating Rate Portion or a Eurodollar Portion. "Unfunded Liabilities" means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans using PBGC actuarial assumptions for single employer plan terminations. "Unmatured Default" means an event or condition which but for the lapse of time or the giving of notice, or both, would constitute a Default. The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. ARTICLE II THE LOANS 2.1 AGREEMENT TO LEND AND BORROW. Subject to the terms, provisions and conditions contained in this Agreement and in reliance upon the representations and warranties set forth herein, each Lender severally agrees to lend to Borrower the amount set forth opposite such Lender's signature below and Borrower agrees to borrow from the Lenders the amount of such Loans. Borrower shall not be entitled to reborrow portions of the Loans once repaid or prepaid. 2.2 EVIDENCE OF INDEBTEDNESS. The Loans are and shall be evidenced by the Notes and shall bear interest calculated and payable as provided below. The outstanding principal balance of the Loans, together with all accrued and unpaid interest thereon and all other amounts due and payable by Borrower to Lenders under this Agreement, the Notes and the other Loan Documents shall be due and payable in full on the Maturity Date. 2.3 TYPES OF PORTIONS. The Loans may consist of Floating Rate Portions or Eurodollar Portions, or a combination thereof, selected by the Borrower in accordance with Sections 2.7 and 2.8. 2.4 COMMITMENT FEES. On the Closing Date, Borrower agrees to pay to the Agent for the account of each Lender a non-refundable commitment fee in the amount of $100,000. In addition to the foregoing, in the event that the Loans have not been fully repaid on or before the six-month anniversary of the Closing Date and the Permanent Loan Condition has not been satisfied on or prior to such six-month anniversary or does not remain satisfied, Borrower shall pay to Agent for the account of each Lender an additional non-refundable commitment fee in the amount of $50,000 on the later to occur of the six-month anniversary of the Closing Date or five (5) days after demand 12 from Agent following the occurrence of any event resulting in the Permanent Loan Condition no longer being satisfied. 2.5 MINIMUM AMOUNT OF EACH PORTION AND MAXIMUM NUMBER OF PORTIONS. Each Eurodollar Portion shall be in the minimum amount of $500,000. No more than five (5) Portions shall exist at any one time. 2.6 OPTIONAL PRINCIPAL PAYMENTS. Subject to the last sentence of this Section 2.6, Borrower may from time to time pay, without penalty or premium, all outstanding Floating Rate Portions upon one Business Days' prior notice to the Agent. Subject to the last sentence of this Section 2.6, the Borrower may from time to time pay, subject to the payment of any funding indemnification amounts required by Section 3.4 but without penalty or premium, all outstanding Eurodollar Portions, or, in a minimum aggregate amount of $1,000,000 or any integral multiple of $100,000 in excess thereof, any portion of the outstanding Eurodollar Portions upon three Business Days' prior notice to the Agent. Notwithstanding anything contained herein to the contrary, unless the outstanding principal balance of the Loans are repaid in full, the outstanding principal balance of the Loans shall at all times equal or exceed $15,000,000. 2.7 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR PORTIONS ON CLOSING DATE. Borrower shall select the Type of Portion and, in the case of each Eurodollar Portion, the Interest Period applicable thereto from time to time. Borrower shall give the Agent irrevocable notice (an "Initial Notice") not later than 12:00 p.m. (Chicago time) at least one Business Day before the Closing Date with respect to each Floating Rate Portion and three Business Days before the Closing Date with respect to each Eurodollar Portion, specifying: (i) the aggregate amount of such Portion, (ii) the Type of Portion selected, and (iii) in the case of each Eurodollar Portion, the duration of the Interest Period applicable thereto. 2.8 CONVERSION AND CONTINUATION OF OUTSTANDING PORTIONS. Floating Rate Portions shall continue as Floating Rate Portions unless and until such Floating Rate Portions are converted into Eurodollar Portions pursuant to this Section 2.6 or are repaid in accordance with Section 2.8 . Each Eurodollar Portion shall continue as a Eurodollar Portion until the end of the then applicable Interest Period therefor, at which time such Eurodollar Portion shall be automatically converted into a Floating Rate Portion unless (x) such Eurodollar Portion is or was repaid in accordance with Section 2.6 or (y) Borrower shall have given the Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurodollar Portion continue as a Eurodollar Portion for the same or another Interest Period. Subject to the terms of Section 2.5, Borrower may elect from time to time to convert all or any part of a Floating Rate Portion into a Eurodollar Portion. Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion of a Floating Rate Portion into a Eurodollar Portion or continuation of a Eurodollar Portion not 13 later than 12:00 p.m. (Chicago time) at least three Business Days prior to the date of the requested conversion or continuation, specifying: (i) the requested date, which shall be a Business Day, of such conversion or continuation, (ii) the aggregate amount and Type of the Portion which is to be converted or continued, and (iii) the amount of such Portion which is to be converted into or continued as a Eurodollar Portion and the duration of the Interest Period applicable thereto. 2.9 CHANGES IN INTEREST RATE, ETC. Each Floating Rate Portion shall bear interest on the outstanding principal amount thereof for each day from and including the date such Portion is designated or is automatically converted from a Eurodollar Portion into a Floating Rate Portion pursuant to Section 2.8, to but excluding the date it is paid or is converted into a Eurodollar Portion pursuant to Section 2.8 hereof, at a rate per annum equal to the Floating Rate for such day. Changes in the rate of interest on any Portion maintained as a Floating Rate Portion will take effect simultaneously with each change in the Alternate Base Rate or the Applicable Margin. Each Eurodollar Portion shall bear interest on the outstanding principal amount thereof for each day from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined by the Agent as applicable to such Eurodollar Portion based upon the Borrower's selections under Sections 2.7 and 2.8, any changes in the Applicable Margin and otherwise in accordance with the terms hereof. No Interest Period may end after the Maturity Date. 2.10 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the contrary contained in Section 2.7, 2.8 or 2.9, during the continuance of a Default or Unmatured Default the Required Lenders may, at their option, by notice to Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Portion may be made as, converted into or continued as a Eurodollar Portion. During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that the outstanding principal balance of the Loans (whether theretofore consisting of one or more Eurodollar Portions or Floating Rate Portions) shall thereafter bear interest at a rate per annum equal to the Alternative Base Rate in effect from time to time, plus 6%, PROVIDED that, during the continuance of a Default under Section 7.4 or 7.5, the default interest rate set forth herein shall be applicable to the Loan without any election or action on the part of the Agent or any Lender. 2.11 METHOD OF PAYMENT. All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Agent at the Agent's address specified pursuant to Article XIII, or at any other Lending Installation of the Agent specified in writing by the Agent to the Borrower, by noon (local time) on the date when 14 due and shall be applied ratably by the Agent among the Lenders. Each payment delivered to the Agent for the account of any Lender shall be delivered promptly by the Agent to such Lender in the same type of funds that the Agent received at its address specified pursuant to Article XIII or at any Lending Installation specified in a notice received by the Agent from such Lender. The Agent is hereby authorized to charge any accounts of the Borrower maintained with Bank One for each payment of principal, interest and fees as the same become due hereunder. 2.12 EVIDENCE OF INDEBTEDNESS. (i) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loan made by such Lender to Borrower, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. (iv) The Agent shall also maintain accounts in which it will record (a) the amount of each Loan made hereunder, the Type thereof and the Interest Period with respect thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and (c) the amount of any sum received by the Agent hereunder from the Borrower and each Lender's share thereof. (v) The entries maintained in the accounts maintained pursuant to paragraphs (i) and (ii) above shall be PRIMA FACIE evidence of the existence and amounts of the Obligations therein recorded; PROVIDED, HOWEVER, that the failure of the Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms. 2.13 TELEPHONIC NOTICES. The Borrower hereby authorizes the Lenders and the Agent to convert or continue Portions, effect selections of Types of Portions and to transfer funds based on telephonic notices made by any person or persons the Agent or any Lender in good faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow the Initial Notice and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to deliver promptly to the Agent a written confirmation, if such confirmation is requested by the Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Agent and the Lenders, the records of the Agent and the Lenders shall govern absent manifest error. 2.14 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued on each Portion shall be payable on each Payment Date, commencing with the first such Payment Date to occur after the Closing Date, on any date on which a Portion is prepaid, whether due to acceleration or otherwise, and on the Maturity Date. Notwithstanding the foregoing, interest accrued on that portion of the outstanding principal amount of any Floating Rate Portion converted into a Eurodollar Portion on a day other than a Payment Date shall 15 be payable on the date of conversion. Interest shall be calculated for actual days elapsed on the basis of a 360-day year. Interest shall be payable for the day a Portion is established but not for the day of any payment on the amount paid if payment is received prior to noon (local time) at the place of payment. If any payment of principal of or interest on a Portion shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment. 2.15 NOTIFICATION OF INTEREST RATES AND PREPAYMENTS. Promptly after receipt thereof, the Agent will notify each Lender of the contents of the Initial Notice, any Conversion/Continuation Notice and any repayment notice received by it hereunder. The Agent will notify each Lender of the interest rate applicable to each Eurodollar Portion promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate. 2.16 LENDING INSTALLATIONS. Each Lender may book its Loans at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Loans and any Notes issued hereunder shall be deemed held by each Lender for the benefit of any such Lending Installation. Each Lender may, by written notice to the Agent and the Borrower in accordance with Article XIII, designate replacement or additional Lending Installations for whose account Loan payments are to be made. 2.17 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower notifies the Agent prior to the date on which it is scheduled to make payment to the Agent of a payment of principal, interest or fees to the Agent for the account of the Lenders, that it does not intend to make such payment, the Agent may assume that such payment has been made. The Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If the Borrower has not in fact made such payment to the Agent, the recipient of such payment shall, on demand by the Agent, repay to the Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at a rate per annum equal to in the case of payment by the Borrower, the interest rate applicable to the relevant Loan. 2.18 USURY. All agreements herein are expressly limited so that in no contingency or event whatsoever, whether by reason of the disbursement of the proceeds of the Loans, the acceleration of the maturity of the unpaid principal balance of the Loans, or otherwise, shall the amount paid or agreed to be paid to the Lenders for the use, forbearance or detention of the money to be advanced under the Loan exceed the highest lawful rate permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment of any provision of this Agreement or any of the other Loan Documents, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable to the Loan, then, IPSO FACTO, the obligation to be fulfilled shall be reduced to the limit of such validity; 16 and if, from any circumstance, any Lender shall ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of such Lender's portion of the unpaid principal balance due on the Loan and not to the payment of interest. 2.19 LATE CHARGES. If any payment of interest or principal is not received by Agent within five (5) days after the date such payment is due, then at the option of the Agent, in addition to the remedies conferred upon Agent pursuant to this Agreement and the other Loan Documents, a late charge of five percent (5%) of the amount of the regularly scheduled payment or $25.00, whichever is greater, will be added to the delinquent amount to compensate Agent for the expense of handling the delinquency for any payment past due in excess of ten (10) days, regardless of any notice and cure periods. Such Late Charge is an administrative charge that will be 100% retained by Agent and not paid to the Lenders. 2.20 CLOSING COSTS AND EXPENSES. In addition to the commitment fees payable as provided in Section 2.4 above, Borrower shall pay, on or prior to the Closing Date, all closing costs and other fees and expenses incurred by Agent in connection with the Loan (including Appraisal fees, title insurance premiums, escrow fees, recording fees, out of pocket syndication expenses and attorneys' fees and expenses), and other expenses as provided herein. Borrower hereby acknowledges and agrees that the commitment fees do not include payment of any such costs, fees or expenses. ARTICLE III YIELD PROTECTION; TAXES 3.1 YIELD PROTECTION. If, on or after the date of this Agreement, the adoption of any law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (i) subjects any Lender or any applicable Lending Installation to any Taxes, or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender in respect of its Eurodollar Portions, or (ii) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Portions), or 17 (iii) imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining its Eurodollar Portions or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with its Eurodollar Portions, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of Eurodollar Portions held or interest received by it, by an amount deemed material by such Lender, and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation of making or maintaining its Eurodollar Portions or to reduce the return received by such Lender or applicable Lending Installation in connection with such Eurodollar Portions, then, within 15 days of demand by such Lender, the Borrower shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received. 3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines the amount of capital required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender is increased as a result of a Change (as hereinafter defined), then, within 15 days of demand by such Lender, the Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender determines is attributable to this Agreement or its Loans (after taking into account such Lender's policies as to capital adequacy). "Change" means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines (as hereinafter defined), or (ii) any adoption of or change in any other law, governmental or quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the date of this Agreement which affects the amount of capital required or expected to be maintained by any Lender or any Lending Installation or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled "International Convergence of Capital Measurements and Capital Standards," including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement. 3.3 AVAILABILITY OF TYPES OF PORTIONS. If any Lender determines that maintenance of Eurodollar Portions at a suitable Lending Installation would violate any applicable law, rule, regulation, or directive, whether or not having the force of law, or if the Required Lenders determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Portions are not available, or (ii) the interest rate applicable to Eurodollar Portions does not accurately reflect the cost of making or maintaining Eurodollar Portions, then the Agent shall suspend the availability of Eurodollar Portions and require any affected Eurodollar Portions to be repaid or converted to Floating Rate Portions. 18 3.4 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Portion occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Portion. 3.5 TAXES. (i) All payments by the Borrower to or for the account of any Lender or the Agent hereunder or under any Note shall be made free and clear of and without deduction for any and all Taxes. If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Agent, (a) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.5) such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay the full amount deducted to the relevant authority in accordance with applicable law and (d) the Borrower shall furnish to the Agent the original copy of a receipt evidencing payment thereof within 30 days after such payment is made. (ii) In addition, the Borrower hereby agrees to pay any present or future stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any Note or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note ("Other Taxes"). (iii) The Borrower hereby agrees to indemnify the Agent and each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by the Agent or such Lender as a result of any Loans made by it hereunder, or otherwise in connection with its participation in this Agreement and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. Payments due under this indemnification shall be made within 30 days of the date the Agent or such Lender makes demand therefor pursuant to Section 3.6. (iv) Each Lender that is not incorporated under the laws of the United States of America or a state thereof (each a "Non-U.S. Lender") agrees that it will, not more than ten Business Days after the date of this Agreement, (i) deliver to the Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, and (ii) deliver to the Agent a United States 19 Internal Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to an exemption from United States backup withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and the Agent (x) renewals or additional copies of such form (or any successor form) on or before the date that such form expires or becomes obsolete, and (y) after the occurrence of any event requiring a change in the most recent forms so delivered by it, such additional forms or amendments thereto as may be reasonably requested by the Borrower or the Agent. All forms or amendments described in the preceding sentence shall certify that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, UNLESS an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form or amendment with respect to it and such Lender advises the Borrower and the Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. (v) For any period during which a Non-U.S. Lender has failed to provide the Borrower with an appropriate form pursuant to clause (iv), above (unless such failure is due to a change in treaty, law or regulation, or any change in the interpretation or administration thereof by any governmental authority, occurring subsequent to the date on which a form originally was required to be provided), such Non-U.S. Lender shall not be entitled to indemnification under this Section 3.5 with respect to Taxes imposed by the United States; PROVIDED that, should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of withholding tax become subject to Taxes because of its failure to deliver a form required under clause (iv), above, the Borrower shall take such steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to recover such Taxes. (vi) Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement or any Note pursuant to the law of any relevant jurisdiction or any treaty shall deliver to the Borrower (with a copy to the Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate. (vii) If the U.S. Internal Revenue Service or any other governmental authority of the United States or any other country or any political subdivision thereof asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Agent of a change in circumstances which rendered its 20 exemption from withholding ineffective, or for any other reason), such Lender shall indemnify the Agent fully for all amounts paid, directly or indirectly, by the Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including taxes imposed by any jurisdiction on amounts payable to the Agent under this subsection, together with all costs and expenses related thereto (including attorneys fees and time charges of attorneys for the Agent, which attorneys may be employees of the Agent). The obligations of the Lenders under this Section 3.5(vii) shall survive the payment of the Obligations and termination of this Agreement. 3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Eurodollar Portions to reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar Portions under Section 3.3, so long as such designation is not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Eurodollar Portion shall be calculated as though each Lender funded its Eurodollar Portion through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Eurodollar Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be payable on demand after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement. ARTICLE IV CONDITIONS PRECEDENT TO CLOSING 4.1 APPRAISALS AND REMARGINING. (a) As a condition precedent to disbursement of the Loans, Agent shall have determined that the Loan-to-Value Ratio shall not be more than 60%. If for any reason the Loan-to-Value Ratio exceeds 60%, Lenders shall have the right to reduce the Maximum Aggregate Amount to an amount at which the Loan-to-Value Ratio will not exceed 60%. (b) If prior to the Closing Date, the Appraisals have not been completed and approved by Agent, Lenders may nonetheless, in their sole and absolute discretion, proceed to make the Loans in the Maximum Aggregate Amount, provided that if the completed and approved Appraisals disclose that the Loan-to-Value Ratio exceeds 60%, Borrower shall, within ten (10days after written demand from Agent, make a principal payment to Agent in the amount by which the outstanding 21 principal balance of the Loans exceeds the amount of Loans that would be necessary such that the Loan-to-Value Ratio would not exceed 60%. 4.2 CONDITIONS PRECEDENT TO CLOSING. The Lenders' obligation to make the Loans and to perform the remainder of their obligations under this Agreement are subject to the Lenders' and the Agent's satisfaction of the conditions contained herein in this Article IV. 4.3 GENERAL CONDITIONS. Borrower shall have delivered each of the following items to the Agent for approval and Agent shall have approved the same: (a) The Loan Documents; (b) Three copies of a plat of survey of each Collateral Property (collectively, the "Surveys") prepared and certified by a registered surveyor licensed in Illinois in compliance with the minimum detail requirements most recently established by ALTA/ACSM (for a Class A Survey), including, without limitation: the boundaries and legal descriptions of the land comprising each Collateral Property; the location of all existing buildings, parking areas and other improvements on such land; the area of such land in square feet and acres (to the nearest one one-hundredth of an acre); the location of all set-back lines, rights-of-way, easements and public utilities located on such land; the location of all abutting roadways, streets, and alleys; the location of utility services and storm drain and sewer facilities; and showing any encroachments by improvements on such land over easements or adjoining property and showing any encroachments from adjoining property onto such land. The Surveys shall be as of a current date and shall be certified in favor of Agent and the Title Company. All matters shown on the Surveys must be acceptable to Agent. (c ) Evidence that the following insurance coverages are in effect with respect to the Collateral Properties and in forms satisfactory to Agent: (i) Policies of insurance evidencing bodily injury, death or property damage liability coverages in amounts not less than $2,000,000 (combined single limit), and an excess/umbrella liability coverage in an amount not less than $10,000,000 shall be in effect with respect to Borrower. Such policies must be written on an occurrence basis so as to provide blanket contractual liability, broad form property damage coverage, and coverage for products and completed operations; (ii) "Special Cause of Loss" insurance on the buildings and other improvements constituting the Collateral Properties in amounts equal to the replacement cost of such buildings, but not less than $36,000,000; (iii) If applicable, evidence of worker's compensation insurance coverage satisfactory to Agent; 22 (iv) If the Collateral Properties, or any part thereof, lie within a "special flood hazard area" as designated on maps prepared by the Department of Housing and Urban Development, a National Flood Insurance Association standard flood insurance policy, plus insurance from a private insurance carrier if necessary, for the duration of the Loans in the amount of the full insurable value of the Collateral Properties; and (v) Such other insurance as Agent may reasonably require, which may include, without limitation, errors and omissions insurance with respect to the contractors, architects and engineers, rent abatement and/or business loss insurance. All insurance policies shall (v) be issued by an insurance company having a rating of "A" VII or better by A.M. Best Co., in Best's Rating Guide, (w) name Agent as an additional insured on all liability insurance and as mortgagee and loss payee on all casualty insurance, (x) provide that Agent is to receive thirty (30) days written notice prior to non-renewal or cancellation, (y) be evidenced by a certificate of insurance to be held by Agent, and (z)be in form and amounts reasonably acceptable to Agent. (d) Fee and Leasehold Loan Policies of Title Insurance issued by the Title Company in the full amount of the Loan insuring that (x) the Fee Mortgage will be a first lien upon the fee simple title to the Naperville Property, and (y) the Leasehold Mortgage will be a first lien upon the leasehold interests under the Ground Leases and fee simple title to the buildings comprising the Collateral Properties subject to the Ground Leases, subject to no liens, claims, exceptions or encumbrances except the Permitted Exceptions and containing the following endorsements: (i) ALTA Broad Form 3.1 Zoning Endorsement, including parking and deleting the standard marketability exclusion; (ii) Comprehensive Endorsement No. 1; (iii) Vehicular Access Endorsement; (iv) Survey/Legal Description Endorsement; and (v) Such additional endorsements as may be reasonably required by Agent based upon its review of the Title Policies and Surveys; (e) Copies of all recorded documents described in the Title Policies; (f) A copy of the operating agreement creating Borrower, certified by the manager of Borrower as being a true and correct copy and as otherwise unmodified and in full force and effect, a certified copy of the Certificate of Formation of Borrower, including all amendments thereto, a current Certificate of Good Standing for Borrower 23 from its state of organization and the State of Illinois, a certificate from the manager of Borrower providing that no certificate of dissolution has been filed, an incumbency certificate showing specimen signatures for all of the managers of Borrower executing any Loan Documents and, if necessary, certified copies of resolutions from the members or managers of Borrower authorizing execution and delivery of the Loan Documents. (g) A copy of the partnership agreement creating Great Lakes LP, certified by the general partner of Great Lakes LP as being a true and correct copy and as otherwise unmodified and in full force and effect, a certified copy of the certificate of limited partnership (and amendments thereto) of Great Lakes LP and a current Certificate of Good Standing for Great Lakes LP from its state of organization and from the State of Illinois; (h) A certified copy of the Articles of Organization, Trust Agreement and By-Laws of Great Lakes REIT, including all amendments thereto, a certified copy of the Certificate of Organization (and amendments thereto) of Great Lakes REIT, a current Certificate of Good Standing for Great Lakes REIT from its state of organization and from the State of Illinois, and an incumbency certificate showing specimen signatures for all officers of Great Lakes REIT executing the Loan Documents, and certified copies of director resolutions authorizing execution and delivery of the Loan Documents; (i) Opinion letter from counsel for Borrower and the Guarantors in a form satisfactory to Agent; (j) Evidence that (i) no portion of the Collateral Properties on which buildings or other improvements is located in an area designated by the Secretary of Housing and Urban Development as having special flood hazards; or if any portion of the Project is so located, evidence that flood insurance is in effect; and (ii) no portion of the Collateral Properties is located in a federally, state or locally designated wetland or other type of government protected area. (k) A written report ("Environmental Report") prepared at Borrower's sole cost and expense by an independent professional environmental consultant approved by Agent in its sole and absolute discretion. The Environmental Report shall be subject to Agent's approval in its sole and absolute discretion. If the Environmental Report reveals contamination or conditions warranting further investigation in order to establish baseline data, Agent may require, in its sole and absolute discretion, an additional written report (also referred to herein as the "Environmental Report") based on additional testing and investigation in order to define the source and extent of the contamination or to establish baseline data, as well as to provide relevant detailed information on the area's geological and hydrogeological conditions. Any additional Environmental Report prepared pursuant to this requirement shall be subject to Agent's approval, in its sole and absolute discretion. 24 (l) Certified copies of the Standard Lease Form, all Tenant Leases then in effect or out for signature that Agent may request, and a rent roll (collectively, "Rent Rolls") certified by an Authorized Officer with respect to each Collateral Property. In addition, Borrower shall deliver to Lender estoppel certificates and subordination non-disturbance and attornment agreements from such Tenants as Agent may require. Borrower shall deposit all security deposits required under Tenant Leases with Agent in an account in Borrower's name, which account shall be pledged to Agent pursuant to the Assignment of Rents and Leases; provided, however, that such security deposits may only be applied in accordance with the terms and conditions of the Leases. (m) Appraisals (collectively, "Appraisals") acceptable to the Agent, prepared by an independent appraiser engaged directly by the Agent, of each Collateral Property, which appraisals satisfy the requirements of the Financial Institutions Reform, Recovery and Enforcement Act, as amended, and the regulations promulgated thereunder, and which shall evidence compliance with the supervisory loan-to-value limits set forth in the Federal Deposit Insurance Corporation Improvement Act of 1991, as amended, and the regulations promulgated thereunder, if applicable. (o) Certified copies of the Ground Leases, Memoranda of Ground Leases and the Rights of First Refusal and Covenants Not to Compete, together with a Recognition Agreement from the Ground Lessor. (p) Financial statements, including a balance sheet, cash flow statement and profit and loss statement for each Guarantor for the most recent calendar year. (q) Financial statements for the Collateral Properties for the last three calendar years and an interim financial statement for the current year, reflecting the operations of the Collateral Properties. (r) A physical inspection report of the Collateral Properties prepared by an architectural firm engaged by Agent. (s) Copies of all federal, state and local governmental permits, licenses and other approvals required for the operation of the Collateral Properties. (t) Such other items or documents as Agent may reasonably require. 4.4 REPRESENTATIONS AND WARRANTIES. The representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects. 25 4.5 NO DEFAULTS. No Defaults or Unmatured Default shall exist under this Agreement or any of the other Loan Documents. ARTICLE V REPRESENTATIONS AND WARRANTIES Borrower represents and warrants to the Lenders that: 5.1 EXISTENCE AND STANDING. Borrower is a limited liability company duly and properly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted. Great Lakes LP is a limited partnership duly and properly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted. Great Lakes REIT is a trust duly and properly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which its business is conducted 5.2 AUTHORIZATION AND VALIDITY. Borrower has the power and authority and legal right to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by Borrower of the Loan Documents to which it is a party and the performance of its obligations thereunder have been duly authorized by proper limited liability company action, and the Loan Documents to which Borrower is a party constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, equity, insolvency or similar laws affecting the enforcement of creditors' rights generally. The Guarantors have the power and authority and legal right to execute and deliver the Loan Documents to which they are a party and to perform their obligations thereunder. The execution and delivery by the Guarantors of the Loan Documents to which they are a party and the performance of their obligations thereunder have been duly authorized by proper partnership and corporate action, as applicable, and the Loan Documents to which the Guarantors are a party constitute legal, valid and binding obligations of the Guarantors enforceable against the Guarantors in accordance with their terms, except as enforceability may be limited by bankruptcy, equity, insolvency or similar laws affecting the enforcement of creditors' rights generally. 5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery by Borrower or either Guarantor of the Loan Documents to which each is a party, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will (a) violate (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on Borrower or either Guarantor, or (ii) Borrower's or either Guarantor's operating agreement, partnership agreement, trust agreement, by-laws, articles of organization or formation, or certificate of limited partnership, as the case may be, or (iii) the provisions of any indenture, instrument or agreement to which Borrower or either Guarantor is a party or is subject, or by which it, or its Property, is bound, or (b) conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of 26 any Lien in, of or on the Property of Borrower or either Guarantor pursuant to the terms of any such indenture, instrument or agreement. No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, which has not been obtained by Borrower or either Guarantor, is required to be obtained by Borrower or either Guarantor in connection with the execution and delivery of the Loan Documents, the borrowings under this Agreement, the payment and performance by the Borrower of the Obligations, the payment and performance by Guarantors of their obligations under the Guaranty and the Environmental Indemnity or the legality, validity, binding effect or enforceability of any of the Loan Documents. 5.4 FINANCIAL STATEMENTS. All financial statements submitted to Lender relating to Borrower, the Guarantors and the Collateral Properties are true, complete and correct, and have been prepared in accordance with general accounting principles consistently applied and fairly present the financial condition of the Person or Property to which they pertain and the other information therein described and do not contain any untrue statement of a material fact or omit to state a fact material to the financial statement submitted or this Agreement. Borrower and each Guarantor are solvent and able to pay their respective debts as such debts become due, and they have capital sufficient to carry on their respective present businesses and transactions and all businesses and transactions in which they are about to engage. None of Borrower or any Guarantor (i) is bankrupt or insolvent, (ii) has made an assignment for the benefit of its or his creditors, (iii) has had a trustee or receiver appointed, (iv) has had any bankruptcy, reorganization or insolvency proceedings instituted by or against it or him, or (v) shall be rendered insolvent by its execution, delivery or performance of this Agreement or the Loan Documents or by the transactions contemplated hereunder and thereunder. 5.5 MATERIAL ADVERSE CHANGE. Since August 1, 2002, there has been no change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower, the Guarantors or the Collateral Properties which could reasonably be expected to have a Material Adverse Effect. 5.6 TAXES. The Guarantors have filed all United States federal tax returns and all other tax returns which are required to be filed and have paid all taxes due pursuant to said returns or pursuant to any assessment received by the Guarantors, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with Agreement Accounting Principles and as to which no Lien exists. No tax liens have been filed and no claims are being asserted with respect to any such taxes. The charges, accruals and reserves on the books of the Guarantors in respect of any taxes or other governmental charges are adequate. Borrower qualifies for partnership tax treatment under United States federal tax law. 5.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or affecting Borrower, either Guarantor or any of the Collateral Properties which could 27 reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of the Loans. Other than any liability incident to any litigation, arbitration or proceeding which could not reasonably be expected to have a Material Adverse Effect, the Borrower and the Guarantors have no material contingent obligations not provided for or disclosed in the financial statements referred to in Section 5.4. 5.8 ERISA. There are no Unfunded Liabilities of any Single Employer Plans. None of the Borrower, either Guarantor or any other member of the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal liability to Multiemployer Plans. Each Plan complies in all material respects with all Applicable Laws, no Reportable Event has occurred with respect to any Plan, none of the Borrower, either Guarantor or any other member of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan. Borrower is not an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which iS subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the making of Loans hereunder gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code. 5.9 ACCURACY OF INFORMATION. No information, exhibit or report furnished by Borrower or the Guarantors to the Agent or to any Lender in connection with the negotiation of or compliance with the Loan Documents contains any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading. 5.10 MATERIAL AGREEMENTS. Neither the Borrower nor either Guarantor is a party to any agreement or instrument or subject to any charter or other limited liability, company, partnership, trust restriction which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor either Guarantor is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any agreement to which it is a party, which default could reasonably be expected to have a Material Adverse Effect, or (ii) any agreement or instrument evidencing or governing Indebtedness in excess of $10,000,000. 5.11 COMPLIANCE WITH LAWS. The Collateral Properties and the use, occupancy and operation thereof for their existing purposes do not violate the Ground Leases or any Applicable Laws (including without limitation, those relating to environmental protection, water use, zoning, building, fire, health or safety or the Americans with Disabilities Act), any contractual arrangements with third parties or any covenants, conditions, easements, rights of way or restrictions of record. None of Borrower, any Guarantor or any agent thereof has received any notice, written or otherwise, alleging any such violation, which violation has not previously been cured. The Collateral Properties are in full compliance and conformity with all zoning requirements, including without limitation, those relating to setbacks, height, parking, floor area ratio, fire lanes and percentage of land coverage. No right to any off-site facilities is necessary to insure compliance by the Collateral Properties with all environmental protection, 28 public highway, water use, zoning, building, fire, health, safety or similar statutes, laws, ordinances, codes, rules, regulations, orders and decrees. There has not been committed by or on behalf of Borrower, or to Borrower's knowledge, any other Person in occupancy of or involved with the operation of use of any of the Collateral Properties, any act or omission affording the Federal Government or any state or local government the right of forfeiture against any of the Collateral Properties or any portion thereof or any monies paid in performance of its obligations under any of the Loan Documents. Borrower does not have any outstanding Indebtedness other than the Loans. 5.12 ENVIRONMENTAL MATTERS. Neither Borrower nor either Guarantor has received any notice to the effect that its operations are not in material compliance with any of the requirements of applicable Environmental Laws or are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could reasonably be expected to have a Material Adverse Effect. Except as described in the Environmental Report, no Hazardous Materials have been generated, released, stored or deposited over, beneath or on the Collateral Properties or in any structure located on the Collateral Properties. To the best of Borrower's knowledge and except as described in the Environmental Report, no Hazardous Materials have been used or will be used in the construction of all or any portion of the Collateral Properties, nor, has any part of the Collateral Properties been used for or as a land fill, the result of which could impose any liability against Borrower, Agent, Lenders or the Collateral Properties under any Applicable Law or regulation. Borrower covenants that it shall indemnify, hold harmless and defend Agent, for the benefit of the Lenders, from any and all claims, losses, damages, response costs and expenses (collectively, "Claims") arising out of or in any way relating to the past, present or future presence, removal or disposal of any Hazardous Materials over, beneath, in or on the Collateral Properties regardless of whether such presence, removal or disposal constitutes a breach of the representations, warranties, covenants and agreements set forth in this Sections, including, but not limited to: (a) claims of third parties (including governmental agencies) for damages, penalties, response costs, injunctive or other relief; (b) costs of removal and restoration, including fees of attorneys and experts and costs of reporting the existence of any Hazardous Materials to any governmental agency; and (c) any and all expenses or obligations incurred at, before and after any trial or appeal therefrom, including without limitation, reasonable attorneys' fees, witness fees, deposition costs, photocopying charges and other expenses, all of which shall be paid by Borrower when incurred. 5.13 FINANCING STATEMENTS. There are no UCC financing statements in effect other than those to be filed and/or recorded by Agent which name Borrower as debtor and pertain to any rights in any of the Collateral Properties. 5.14 TITLE. As of the date hereof, Borrower owns fee simple title to the Naperville Property, free and clear of all liens, claims and encumbrances, except the Permitted Exceptions. As of the date hereof, Borrower owns a leasehold estate in the Collateral Properties that are subject to the Ground Leases and fee simple title to the buildings and other properties comprising said Collateral Properties that are subject to the 29 Ground Leases, free and clear of all liens, claims and encumbrances, except the Permitted Exceptions. 5.15 GROUND LEASES. Borrower has delivered to Agent true, complete and correct copies of the Ground Leases. The Ground Leases are in full force and effect, unamended, and no default exists thereunder by any party thereto. 5.16 INVESTMENT COMPANY ACT. Neither Borrower nor either Guarantor is an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. 5.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower nor either Guarantor is a "holding company" or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended. 5.18 TENANT LEASES. To the best of Borrower's knowledge, Borrower has delivered to Lender true, complete and correct copies of the Tenant Leases. To the best of Borrower's knowledge, (i) the Tenant Leases are in full force and effect, unamended and no default exists thereunder by any party thereto, except as shown in the Rent Rolls, and (ii) the Rent Rolls are true and correct and all material respect as of the date thereof. To the best of Borrower's knowledge and except as indicated in the Rent Rolls, (i) no Tenant has any extension, renewal or termination options, (ii) no security deposits are being held by Borrower, (iii) all work to be performed to date by the landlord under the Tenant Leases has substantially performed, all contributions to be made to date by the landlord to the Tenants thereunder have been made and all other conditions to each such Tenant's obligations thereunder required to be satisfied to date, other than ordinary ongoing obligations of a landlord, have been satisfied or waived by the applicable Tenant, (iv) no Tenant or any other Party has any option, right of first refusal or similar preferential right to purchase or lease all or any portion of the Collateral Properties or to require Borrower to perform or finance any tenant improvements or material or alterations to the Collateral Properties, and (v) no Tenant has any rights to require Borrower to perform additional work, make additional contributions to such Tenant or satisfy other conditions to such Tenant's obligations thereunder, other than ordinary, ongoing obligations of a landlord. To the best of Borrower's knowledge and except as indicated in the Rent Rolls, no rent (exclusive of any security deposits) under any Tenant Lease has been paid more than thirty (30) days in advance of its due date and no payments of rent under any Tenant Lease or more than thirty (30) days delinquent. 5.19 UTILITIES; AUTHORITIES. All utilities and municipal services required for use, operation and occupancy of the Collateral Properties (including, without limitation, water, storm sewer, sanitary sewer and drainage, electric, gas, cable services and telephone facilities) are available for use at the boundaries of the respective Collateral Properties (or in the streets adjoining the respective Collateral Properties), and all requirements for the use of and connection to such utilities and municipal services have been fulfilled. All building, zoning, safety, health, fire, water district, sewerage, access (including curb cuts and highway access) and environmental protection agency permits and other licenses and approvals 30 which are required for the use, occupancy and operation of the Collateral Properties as medical office buildings have been obtained by or furnished to Borrower and are in full force and effect. 5.20 PHYSICAL CONDITION. Except for matters set forth in the written inspection reports delivered by Borrower to Agent, the Collateral Properties (including sidewalks, store drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, irrogation systems and structural components) are in good condition, order and repair in all material respect. 5.21 MANAGEMENT. No property management agreements are in effect with respect to the Collateral Properties. 5.22 CONDEMNATION. No condemnation has been commenced, or to Borrower's knowledge, is contemplated as of the date hereof with respect to all or any portion of the Collateral Properties or for the relocation of roadways providing access to any of the Collateral Properties. ARTICLE VI COVENANTS During the term of this Agreement, unless the Required Lenders shall otherwise consent in writing: 6.1 FINANCIAL REPORTING. The Borrower will maintain a system of accounting established and administered in accordance with the Agreement Accounting Principles, and shall furnish to the Agent: (i) Within 45 days after the close of each calendar quarter, quarterly operating statements for the Collateral Properties, including a balance sheet, statement of income and expense and rent roll, all in form, scope and detail satisfactory to agent and certified by an Authorized Representative; and (ii) Within 90 days after the end of each calendar year, annual audited financial statements for Borrower and the Collateral Properties certified by an Authorized Representative, together with an unqualified accountant's opinion in a form satisfactory to agent. 6.2 MAINTENANCE OF MINIMUM DSCR. During each Quarter, commencing with the calendar quarter ending December 31, 2002, the DSCR (measured with respect to the Quarter then ended) for the Collateral Properties shall equal or exceed 1.50 to 1.0. If Agent determines that the DSCR does not equal or exceed 1.50 to 1.0, Agent shall so notify Borrower and within ten (10) days after delivery of such notice, Borrower shall pay to Agent, to be applied ratably among the Loans, an amount of principal following which the DSCR shall equal 1.50 to 1.0. 6.3 USE OF PROCEEDS. Borrower will use the proceeds of the Loans to acquire the Collateral Properties. Borrower will not use any of the proceeds 31 of the Loans to purchase or carry any "margin stock" (as defined in Regulation U) or to acquire any Property other than the Collateral Properties. 6.4 NOTICE OF DEFAULT. Borrower will give prompt notice in writing to the Agent of the occurrence of any Default or Unmatured Default and of any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect, including without limitation, copies of any notices of default received from the Ground Lessor or any Tenants. 6.5 CONDUCT OF BUSINESS. Borrower will carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and do all things necessary to remain duly organized, validly existing and in good standing as a limited liability company in its jurisdiction of incorporation or organization, as the case may be, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted. 6.6 TAXES. Borrower will timely file complete and correct United States federal and applicable foreign, state and local tax returns required by law and pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with Agreement Accounting Principles. Borrower will qualify for partnership tax treatment under United States federal tax law. 6.7 INSURANCE. Borrower will maintain all insurance policies required pursuant to Section 4.3 above, and the Borrower will furnish to Agent upon request full information as to the insurance carried. 6.8 COMPLIANCE WITH LAWS. Borrower will, and will cause each Collateral Property to, comply with all Applicable Laws, including, without limitation, all Environmental Laws. 6.9 MAINTENANCE OF COLLATERAL PROPERTIES. Borrower will do all things necessary to maintain, preserve, protect and keep the Collateral Properties in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements so that the business carried on in connection therewith may be properly conducted at all times. 6.10 INSPECTION. Borrower will permit the Agent and the Lenders, by their respective representatives and agents, at reasonable times and upon prior reasonable notice, to inspect any of the Collateral Properties and the books and financial records of Borrower and each Guarantor relating thereto and to the Loan Documents, to examine and make copies of the books of accounts and other financial records of Borrower and each Guarantor, and to discuss the affairs, finances and accounts of Borrower and each Guarantor with, and to be advised as to the same by, their respective officers at such reasonable times and intervals as the Agent or any Lender may designate. 6.11 INDEBTEDNESS. Borrower will not create, incur or suffer to exist any Indebtedness, except: 32 (i) The Loans; and (ii) Trade payables incurred in the ordinary course of business which shall not at any one time exceed the aggregate sum of $100,000. 6.12 MERGER. Borrower will not merge or consolidate with or into any other Person. 6.13 INVESTMENTS AND ACQUISITIONS. Borrower will not make or suffer to exist any Investments (including without limitation, loans and advances to, and other Investments in, Affiliates), or commitments therefor or to become or remain a partner in any partnership or joint venture, or to make any Acquisition of any Person, except Cash Equivalent Investments. 6.14 LIENS. Borrower will not create, incur, or suffer to exist any Lien in, of or on any of the Collateral Properties, except: (i) Liens for taxes, assessments or governmental charges or levies on its Property if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with Agreement Accounting Principles shall have been set aside on its books; (ii) Mechanics' liens which are being contested in good faith by appropriate proceedings for which the conditions contained in the Mortgage or the Leasehold Mortgage applicable to such contest have been satisfied; (iii) Liens constituting Permitted Exceptions and (iv) Liens in favor of the Agent, for the benefit of the Lenders, granted pursuant to any Collateral Document. 6.15 AFFILIATES. Borrower will not enter into any transaction (including, without limitation, the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate except in the ordinary course of business and pursuant to the reasonable requirements of Borrower's business and upon fair and reasonable terms no less favorable to Borrower than Borrower would obtain in a comparable arms-length transaction, provided that any continuing agreement with an Affiliate must be terminable, without payment or penalty, upon not less than thirty days' prior written notice 6.16 GROUND LEASES AND TENANT LEASES. Borrower will promptly perform when due all of its obligations, and liabilities under the Ground Leases and Tenant Leases. Borrower will not amend or terminate any Ground Lease without the prior written consent of Agent. Borrower shall promptly give to Agent notice of the occurrence of any event which does or would with the passage of time or the giving of notice, or both, constitute an Event of Default under any Ground Lease. 33 6.17 SALE, ENCUMBRANCE AND LEASING OF COLLATERAL PROPERTIES. Borrower shall not, without Lender's prior written consent, suffer, permit or enter into any agreement for any sale, lease, transfer, or in any way encumber or dispose of or grant or suffer any security or other assignment (collateral or otherwise) of or in all or any portion of the Collateral Properties. Any consent given by Lender or deemed to have been given by Lender, or any waiver of default under this Section 6.17, shall not constitute a consent to, or waiver of any right, remedy or power of Lender under any subsequent default hereunder. Notwithstanding the foregoing, Borrower may, execute Tenant Leases, provided, however, that such Tenant Leases are on the Standard Lease Form and are otherwise permitted by the terms and provisions of the Assignment of Rents and Leases. In addition, Borrower shall have the right to sell or refinance any Collateral Property, provided that each of the following conditions is satisfied: (a) No Default or Unmatured Default exists at the time of the closing of the sale or refinancing; (b) Concurrently with the closing of the sale or refinancing, Borrower shall cause to be paid to Agent, for the benefit of Lenders (and following receipt of such amount, Agent shall cause a partial release of the Collateral Documents covering such Collateral Property to be delivered to Borrower), but subject to the restriction contained in (c) below, an amount equal to the greatest of: (i) 115% of the Maximum Aggregate Amount allocated to the Collateral Property being sold or refinanced (determined on a per square foot basis for all office buildings located on the Collateral Properties); (ii) 100% of the proceeds realized from such sale or refinancing, net of customary and reasonable closing costs, title charges, escrow fees and commissions payable to persons that are not Affiliates of Borrower or any Guarantor, all of which amounts shall be reasonably acceptable to Agent; (iii) an amount necessary to reduce the outstanding principal balance of the Loans such that the DSCR (based upon the reduced outstanding principal balance of the Loans) is equal to 1.6 to 1.0; or (iv) an amount necessary to reduce the outstanding principal balance of the Loans such that the ratio of the reduced outstanding principal balance of the Loans to the "Direct Cap Rate Value" is equal to or less than 50%. For purposes hereof, the "Direct Cap Rate Value" shall be equal to the Net Operating Income of the remaining Collateral Properties for the most recently ended Quarter capitalized on the basis of the weighted average capitalization rates for such Collateral Properties contained in the most recent Appraisals of such Collateral Properties; and (c ) Following any such sale or refinancing of a Collateral Property, the outstanding principle balance of the Loans shall not be less than $15,000,000. 6.18 RESTRICTIONS AFFECTING BORROWER. Borrower covenants and agrees that, without the prior written consent of Lender, there shall not occur: (i) any amendment or modification of the Certificate of Formation or Operating Agreement establishing or governing Borrower; (ii) the release or discharge of Great Lakes LP as Borrower's sole manager; or (iii) the admission of any new manager of Borrower. At all times prior to the 34 repayment of the Loan, (A) Great Lakes LP shall be the sole manager of Borrower and together with a future member to be owned by Tenants, shall be the sole members of Borrower, (B) neither Great Lakes LP nor any such future member shall sell, assign, transfer, pledge, encumber or dispose of all or any of its respective membership interests in Borrower, including the right to receive income or distributions from Borrower, (C) Great Lakes LP shall own not less than 55% of the membership interests in Borrower, free and clear of all liens, claims, encumbrances and rights of third parties, (D) Borrower shall not make or permit any distributions of cash flow or cash proceeds to any member of Borrower or any member, partner, subpartner, shareholder, officer, director or affiliate of any member of Borrower following the occurrence of any Unmatured Default or Default. 6.19 USE OF INCOME. Borrower shall cause all rents and other income and receipts realized and received by Borrower from and in connection with the Collateral Properties to be used first for the purpose of paying interest on the Loans and then for the actual costs and expenses incurred by Borrower in connection with the ownership, operation, management and repair of the Collateral Properties, including without limitation, operating expenses, real estate taxes and insurance premiums. 6.20 ADDITIONAL DOCUMENTS. Borrower shall not execute or record any document pertaining to, affecting or running with all or any portion of the Collateral Properties, without the prior written approval of Agent of the form and substance of such documents. ARTICLE VII DEFAULTS The occurrence of any one or more of the following events shall constitute a Default: 7.1 Any representation or warranty made or deemed made by or on behalf of the Borrower or any Guarantor to the Lenders or the Agent under or in connection with this Agreement, any Loan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false on the date as of which made. 7.2 Nonpayment of principal of the Loans when due, or nonpayment of interest upon the Loans or of any commitment fee or other obligations under any of the Loan Documents within five (5) days after written notice from Agent. 7.3 The breach by the Borrower (other than a breach which constitutes a Default under another section of this Article VII) of any of the terms or provisions of this Agreement which is not remedied within thirty days after written notice from the Agent or any Lender, provided, that if such breach by its nature can be cured, then so long as the continued operation and safety of the Collateral Properties, and the priority, validity and enforceability of the liens created by the Collateral Documents and the value of the Collateral Properties are not impaired, threatened or jeopardized, Borrower shall have an additional period of not to exceed 60 days after receipt of such written notice from Agent or any Lender to cure such breach, so long as 35 Borrower commences to cure such breach during the initial 30 day period and diligently and in good faith continues attempting to effect such cure. 7.4 Borrower or either Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.4 or (vi) fail to contest in good faith any appointment or proceeding described in Section 7.5. 7.5 Without the application, approval or consent of Borrower or either Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Guarantor of any substantial portion of its Property, or a proceeding described in Section 7.4(iv) shall be instituted against the Borrower or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 30 consecutive days. 7.6 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any material portion of the Property of the Borrower or any Guarantor. 7.7 Borrower or either Guarantor shall fail within 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $100,000 in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not stayed on appeal or otherwise being appropriately contested in good faith. 7.8 A breach of any of the covenants contained in Sections 6.14, 6.17 or 6.18 or the occurrence of any Change in Control. 7.9 The failure of Guarantor to comply with any of the financial or other covenants contained in Section 8 of the Guaranty. 7.10 The occurrence of any "Default" or "Event of Default" under any Loan or Credit Agreement between Bank One, as agent or individually, and either or both of the Guarantors. 7.11 Borrower shall (i) be the subject of any proceeding or investigation pertaining to the release by the Borrower, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described 36 in clause (i) or clause (ii), could reasonably be expected to have a Material Adverse Effect. 7.12 The occurrence of any "Event of Default", as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided. 7.13 Any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of any Collateral Document, or any Collateral Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or the Borrower shall fail to comply with any of the terms or provisions of any Collateral Document. 7.14 The occurrence of an "Event of Default" under any Ground Lease, regardless of whether or not such Event of Default is cured by Agent or any Lender. ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 8.1 ACCELERATION. If any Default described in Section 7.4 or 7.5 occurs with respect to Borrower or either Guarantor, the Obligations shall immediately become due and payable without any election or action on the part of the Agent or any Lender. If any other Default occurs, the Required Lenders (or the Agent with the consent of the Required Lenders) may declare the Obligations to be due and payable, whereupon the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrower hereby expressly waives. 8.2 AMENDMENTS. Subject to the provisions of this Section 8.2, the Required Lenders (or the Agent with the consent in writing of the Required Lenders) and the Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders or the Borrower hereunder or waiving any Default hereunder; PROVIDED, HOWEVER, that no such supplemental agreement shall, without the consent of all of the Lenders: (i) Extend the Maturity Date or forgive all or any portion of the principal amount thereof, or reduce the rate or extend the time of payment of interest or fees thereon; (ii) Reduce the percentage specified in the definition of Required Lenders; or (iii) Amend this Section 8.2. No amendment of any provision of this Agreement relating to the Agent shall be effective without the written consent of the Agent. 37 8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by Agent or the Lenders required pursuant to Section 8.2, and then only to the extent in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Agent and the Lenders until the Obligations have been paid in full. ARTICLE IX GENERAL PROVISIONS 9.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of the Borrower contained in this Agreement shall survive the making of the Loans herein contemplated. 9.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation. 9.3 HEADINGS. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents. 9.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and understanding among the Borrower, the Agent and the Lenders and supersede all prior agreements and understandings among the Borrower, the Agent and the Lenders relating to the subject matter thereof. 9.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns. 9.6 EXPENSES; INDEMNIFICATION. (i) The Borrower shall reimburse the Agent for any costs, internal charges and out-of-pocket expenses (including reasonable attorneys' fees and time charges of attorneys for the Agent) paid or incurred by the Agent in connection with the preparation, negotiation, execution, delivery, syndication, distribution (including, without limitation, via the internet), review, amendment, modification, and administration of the Loan Documents. The Borrower also 38 agrees to reimburse the Agent and the Lenders for any costs, internal charges and out-of-pocket expenses (including attorneys' fees and time charges of attorneys for the Agent and the Lenders, which attorneys may be employees of the Agent or the Lenders) paid or incurred by the Agent or any Lender in connection with the collection and enforcement of the Loan Documents. Borrower acknowledges that from time to time Bank One may prepare and may distribute to the Lenders (but shall have no obligation or duty to prepare or to distribute to the Lenders) certain audit reports (the "Reports") pertaining to the Borrower's assets for internal use by Bank One from information furnished to it by or on behalf of the Borrower, after Bank One has exercised its rights of inspection pursuant to this Agreement. (ii) Borrower hereby further agrees to indemnify the Agent, each Lender, their respective Affiliates, and each of their directors, officers and employees against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all expenses of litigation or preparation therefor whether or not the Agent, any Lender or any Affiliate is a party thereto) which any of them may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder except to the extent that they are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the party seeking indemnification. The obligations of the Borrower under this Section 9.6 shall survive the termination of this Agreement. 9.7 NUMBERS OF DOCUMENTS. All statements, notices, closing documents, and requests hereunder shall be furnished to the Agent with sufficient counterparts so that the Agent may furnish one to each of the Lenders. 9.8 ACCOUNTING. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with Agreement Accounting Principles. 9.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable. 39 9.10 NONLIABILITY OF LENDERS. The relationship between the Borrower on the one hand and the Lenders and the Agent on the other hand shall be solely that of borrower and lender. Neither the Agent nor any Lender shall have any fiduciary responsibilities to the Borrower. Neither the Agent nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower's business or operations. The Borrower agrees that neither the Agent, nor any Lender shall have liability to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. Neither the Agent nor any Lender shall have any liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, any special, indirect, consequential or punitive damages suffered by the Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby. 9.11 CONFIDENTIALITY. Each Lender agrees to hold any confidential information which it may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure (i) to its Affiliates and to other Lenders and their respective Affiliates, (ii) to legal counsel, accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory officials, (iv) to any Person as requested pursuant to or as required by law, regulation, or legal process, (v) to any Person in connection with any legal proceeding to which such Lender is a party, (vi) to such Lender's direct or indirect contractual counterparties in swap agreements or to legal counsel, accountants and other professional advisors to such counterparties, (vii) permitted by Section 12.4 and (viii) to rating agencies if requested or required by such agencies in connection with a rating relating to the Advances hereunder. 9.12 NONRELIANCE. Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) for the repayment of the Loans provided for herein. 9.13 DISCLOSURE. The Borrower and each Lender hereby acknowledge and agree that Bank One and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with the Borrower and its Affiliates. ARTICLE X THE AGENT 10.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, is hereby appointed by each of the Lenders as its contractual representative (herein referred to as the "Agent") hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes the Agent to act as the contractual representative of such Lender with the rights and duties 40 expressly set forth herein and in the other Loan Documents. The Agent agrees to act as such contractual representative upon the express conditions contained in this Article X. Notwithstanding the use of the defined term "Agent," it is expressly understood and agreed that the Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement or any other Loan Document and that the Agent is merely acting as the contractual representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders' contractual representative, the Agent (i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a "representative" of the Lenders within the meaning of the term "secured party" as defined in the Illinois Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim against the Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender hereby waives. 10.2 POWERS. The Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Agent. 10.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Person. 10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document, including, without limitation, any agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article IV, except receipt of items required to be delivered solely to the Agent; (d) the existence or possible existence of any Default or Unmatured Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith; (f) the value, sufficiency, creation, perfection or priority of any Lien in any collateral security; or (g) the financial condition of the Borrower or either Guarantor of any of the Obligations or of any of the Borrower's or any such Guarantor's respective subsidiaries. The Agent shall have no duty to disclose to the Lenders information that is not required to be furnished by the Borrower to the Agent at such time, but is voluntarily furnished by the Borrower to the Agent (either in its capacity as Agent or in its individual capacity). 41 10.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Loan Document unless it shall be requested in writing to do so by the Required Lenders. The Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action. 10.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its duties as Agent hereunder and under any other Loan Document by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Agent and the Lenders and all matters pertaining to the Agent's duties hereunder and under any other Loan Document. 10.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel may be employees of the Agent. 10.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to reimburse and indemnify the Agent ratably in proportion to their respective Loans outstanding (i) for any amounts not reimbursed by the Borrower for which the Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other expenses incurred by the Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including, without limitation, for any expenses incurred by the Agent in connection with any dispute between the Agent and any Lender or between two or more of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby (including, without limitation, for any such amounts incurred by or asserted against the Agent in connection with any dispute between the Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents, PROVIDED that (i) no Lender shall be liable for any of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Agent and (ii) any indemnification required pursuant to Section 3.5(vii) shall, notwithstanding 42 the provisions of this Section 10.8, be paid by the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders under this Section 10.8 shall survive payment of the Obligations and termination of this Agreement. 10.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the Agent has received written notice from a Lender or the Borrower referring to this Agreement describing such Default or Unmatured Default and stating that such notice is a "notice of default". In the event that the Agent receives such a notice, the Agent shall give prompt notice thereof to the Lenders. 10.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent shall have the same rights and powers hereunder and under any other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise the same as though it were not the Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a Lender, unless the context otherwise indicates, include the Agent in its individual capacity. The Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or either Guarantor in which the Borrower or such Guarantor is not restricted hereby from engaging with any other Person. The Agent, in its individual capacity, is not obligated to remain a Lender. 10.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on the financial statements prepared by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents. 10.12 SUCCESSOR AGENT. The Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower, such resignation to be effective upon the appointment of a successor Agent or, if no successor Agent has been appointed, forty-five days after the retiring Agent gives notice of its intention to resign. The Agent may be removed at any time with or without cause by written notice received by the Agent from the Required Lenders, such removal to be effective on the date specified by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint, on behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent shall have been so appointed by the Required Lenders within thirty days after the resigning Agent's giving notice of its intention to resign, then the resigning Agent may appoint, on behalf of the Borrower and the Lenders, a successor Agent. Notwithstanding the previous sentence, the Agent may at any time without the consent of the Borrower or any Lender, appoint any of its Affiliates which is a commercial bank as a successor Agent hereunder. If the Agent has resigned or been removed and no successor Agent has been appointed, the Lenders may perform 43 all the duties of the Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all other purposes shall deal directly with the Lenders. No successor Agent shall be deemed to be appointed hereunder until such successor Agent has accepted the appointment. Any such successor Agent shall be a commercial bank having capital and retained earnings of at least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning or removed Agent. Upon the effectiveness of the resignation or removal of the Agent, the resigning or removed Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents. After the effectiveness of the resignation or removal of an Agent, the provisions of this Article X shall continue in effect for the benefit of such Agent in respect of any actions taken or omitted to be taken by it while it was acting as the Agent hereunder and under the other Loan Documents. In the event that there is a successor to the Agent by merger, or the Agent assigns its duties and obligations to an Affiliate pursuant to this Section 10.12, then the term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate or other analogous rate of the new Agent. 10.13 DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that the Agent may delegate any of its duties under this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Agent is entitled under Articles IX and X. 10.14 COLLATERAL PROPERTY RELEASES. The Lenders hereby empower and authorize the Agent to execute and deliver to the Borrower on their behalf any agreements, documents or instruments as shall be necessary or appropriate to effect any releases of a Property Collateral which shall be permitted by the terms hereof or of any other Loan Document or which shall otherwise have been approved by the Required Lenders. ARTICLE XI SETOFF; RATABLE PAYMENTS 11.1 SETOFF. In addition to, and without limitation of, any rights of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Default occurs, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender or any Affiliate of any Lender to or for the credit or account of the Borrower may be offset and applied toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part thereof, shall then be due. 11.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has payment made to it upon its Loans (other than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a 44 portion of the Loans held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of Loans. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to their Loans. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made. ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 12.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns permitted hereby, except that (i) the Borrower shall not have the right to assign its rights or obligations under the Loan Documents without the prior written consent of each Lender, (ii) any assignment by any Lender must be made in compliance with Section 12.3, and (iii) any transfer by Participation must be made in compliance with Section 12.2. Any attempted assignment or transfer by any party not made in compliance with this Section 12.1 shall be null and void, unless such attempted assignment or transfer is treated as a participation in accordance with Section 12.3.2. The parties to this Agreement acknowledge that clause (ii) of this Section 12.1 relates only to absolute assignments and this Section 12.1 does not prohibit assignments creating security interests, including, without limitation, (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; PROVIDED, HOWEVER, that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 12.3. The Agent may treat the Person which made any Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 12.3; PROVIDED, HOWEVER, that the Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan. 12.2 PARTICIPATIONS. 12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may at any time sell to one or more banks or other entities ("Participants") participating interests in the Loan owing to such Lender, any Note held 45 by such Lender or any other interest of such Lender under the Loan Documents. In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the owner of its Loan and the holder of any Note issued to it in evidence thereof for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under the Loan Documents. 12.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan in which such Participant has an interest which would require consent of all of the Lenders pursuant to the terms of Section 8.2 or of any other Loan Document. 12.2.3 BENEFIT OF CERTAIN PROVISIONS. The Borrower agrees that each Participant shall be deemed to have the right of setoff provided in Section 11.1 in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, PROVIDED that each Lender shall retain the right of setoff provided in Section 11.1 with respect to the amount of participating interests sold to each Participant. The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section 11.1, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with Section 11.2 as if each Participant were a Lender. The Borrower further agrees that each Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.3, PROVIDED that (i) a Participant shall not be entitled to receive any greater payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the participating interest to such Participant would have received had it retained such interest for its own account, unless the sale of such interest to such Participant is made with the prior written consent of the Borrower, and (ii) any Participant not incorporated under the laws of the United States of America or any State thereof agrees to comply with the provisions of Section 3.5 to the same extent as if it were a Lender. 12.3 ASSIGNMENTS. 12.3.1 PERMITTED ASSIGNMENTS. Any Lender may at any time assign to one or more banks or other entities ("Purchasers") all or any part of its rights and obligations under the Loan Documents. Such assignment shall be substantially in the form of Exhibit B or in such other form as may be agreed to by the parties thereto. Each such assignment with respect to a Purchaser which is not a Lender or an 46 Affiliate of a Lender or an Approved Fund shall either be in an amount equal to the entire applicable Commitment and Loans of the assigning Lender or (unless each of the Borrower and the Agent otherwise consents) be in an aggregate amount not less than $5,000,000. 12.3.2 CONSENTS. The consent of the Agent shall be required prior to an assignment becoming effective unless the Purchaser is a Lender, an Affiliate of a Lender or an Approved Fund. Any consent required under this Section 12.3.2 shall not be unreasonably withheld or delayed. 12.3.3 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of an assignment, together with any consents required by Sections 12.3.1 and 12.3.2, and (ii) payment of a $3,500 fee to the Agent for processing such assignment (unless such fee is waived by the Agent), such assignment shall become effective on the effective date specified in such assignment. The assignment shall contain a representation by the Purchaser to the effect that none of the consideration used to make the purchase of the Commitment and Loans under the applicable assignment agreement constitutes "plan assets" as defined under ERISA and that the rights and interests of the Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Lender party to this Agreement and any other Loan Document executed by or on behalf of the Lenders and shall have all the rights and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party thereto, and the transferor Lender shall be released with respect to the Commitment and Loans assigned to such Purchaser without any further consent or action by the Borrower, the Lenders or the Agent. In the case of an assignment covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a Lender hereunder but shall continue to be entitled to the benefits of, and subject to, those provisions of this Agreement and the other Loan Documents which survive payment of the Obligations and termination of the applicable agreement. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 12.3 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.2. Upon the consummation of any assignment to a Purchaser pursuant to this Section 12.3.3, the transferor Lender, the Agent and the Borrower shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in each case in principal amounts reflecting their respective Commitments, as adjusted pursuant to such assignment. 12.3.4 REGISTER. The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in Chicago, Illinois a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans 47 owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. 12.4 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Lender's possession concerning the creditworthiness of the Borrower and its Subsidiaries, including without limitation any information contained in any Reports; PROVIDED that each Transferee and prospective Transferee agrees to be bound by Section 9.11 of this Agreement. 12.5 TAX TREATMENT. If any interest in any Loan Document is transferred to any Transferee which is not incorporated under the laws of the United States or any State thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 3.5(iv). ARTICLE XIII NOTICES 13.1 NOTICES. Except as otherwise permitted with respect to Continuation/Conversion Notices, all notices, requests and other communications to any party hereunder shall be in writing (including electronic transmission, facsimile transmission or similar writing) and shall be given to such party: (x) in the case of the Borrower or the Agent, at its address or facsimile number set forth on the signature pages hereof, (y) in the case of any Lender, at its address or facsimile number set forth below its signature hereto or (z) in the case of any party, at such other address or facsimile number as such party may hereafter specify for the purpose by notice to the Agent and the Borrower in accordance with the provisions of this Section 13.1. Each such notice, request or other communication shall be effective (i) if given by facsimile transmission, when transmitted to the facsimile number specified in this Section and confirmation of receipt is received, or (ii) if given by any other means, when delivered (or, in the case of electronic transmission, received) at the address specified in this Section; PROVIDED that notices to the Agent under Article II shall not be effective until received. 13.2 CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto. ARTICLE XIV COUNTERPARTS 48 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when it has been executed by the Borrower, the Agent and the Lenders and each party has notified the Agent by facsimile transmission or telephone that it has taken such action. ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. 15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS. 15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER. 49 IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed this Agreement as of the date first above written. BORROWER: GLR-MEDICAL PROPERTIES ONE, LLC, a Delaware limited liability company By: Great Lakes REIT, L.P., a Delaware limited partnership Its: Managing Member/Manager By: Great Lakes REIT, a Maryland real estate investment trust Its: General Partner By:________________________________ Name: James Hicks Title: Treasurer Address: c/o Great Lakes REIT 823 Commerce Drive, Suite 300 Oak Brook, Illinois 60523 Attention: James Hicks Telephone: (630) 368-2900 Fax: (630) 368-2929 With copies to: Seyfarth Shaw 55 East Monroe Street, Suite 4200 Chicago, Illinois 60603 Attn: Andrew Lampert, Esq. Telephone: (312) 346-8000 Fax: (312) 269-8869 Great Lakes REIT 823 Commerce Drive, Suite 300 Oak Brook, Illinois 60523 Attn: Adam E. Berman, Esq. Telephone: (630) 368-2900 Fax: (630) 368-2929 50 LOAN AMOUNT LENDER AND AGENT: $36,000,000 BANK ONE, NA, individually and as Agent By:____________________________________ Name:__________________________________ Title:_________________________________ Address: 1 Bank One Plaza Chicago, Illinois 60670 Attention: James L. Imbeau Telephone: (312) 732-4583 Fax: (312) 732-5939 With a copy to: PIPER RUDNICK 203 North LaSalle Street, Suite 1800 Chicago, Illinois 60601 Attn: Merle Teitelbaum Cowin, Esq. Telephone: (312) 368-4089 Fax: (312) 630-7419 51 EXHIBIT A-1 Legal Description of Christ Property THAT PART OF THE SOUTHWEST QUARTER OF SECTION 3, TOWNSHIP 37 NORTH, RANGE 13, EAST OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF A LINE DRAWN 40.00 FEET WEST OF AND PARALEL WITH THE EAST LINE OF SAID SOUTHWEST QUARTER WITH A LINE DRAWN 50.00 FEET NORTH OF AND PARALLEL WITH THE SOUTH LINE OF SAID SOUTHWEST QUARTER; THENCE WEST 222.83 FEET ALONG A LINE 50.00 FEET NORTH OF AND PARALLEL WITH THE SOUTH LINE OF SAID SOUTHWEST QUARTER, BEING ALSO THE NORTH LINE OF WEST 95TH STREET IN ACCORDANCE WITH PLAT OF DEDICATION RECORDED MAY 27, 1958 AS DOCUMENT NO. 17219540; THENCE NORTH 177.05 FEET ALONG A LINE FORMING AN ANGLE OF 89 DEGREES 54 MINUTES 37 SECONDS AS MEASURED FROM EAST TO NORTH WITH SAID NORTH LINE OF 95TH STREET; THENCE EAST 24.70 FEET PARALLEL WITH SAID NORTH OF WEST 95TH STREET; THENCE NORTH 72.34 FEET PARALLEL WITH THE EAST LINE OF SAID SOUTHWEST QUARTER; THENCE EAST 197.28 FEET PARALLEL WITH SAID NORTH LINE OF WEST 95TH STREET TO THE WEST LINE OF SOUTH KOSTNER AVENUE, BEING A LINE 40.00 FEET WEST OF THE EAST LINE OF SAID SOUTHWEST QUARTER IN ACCORDANCE WITH THE AFORESAID PLAT OF DEDICATION; THENCE SOUTH 249.39 FEET ALONG THE WEST LINE OF SOUTH KOSTNER AVENUE TO THE HEREIN ABOVE DESCRIBED POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS. PIN: 24-03-318-017 COMMONLY KNOWN AS: CHRIST HOSPITAL, 4400 WEST 95TH STREET, OAK LAWN, ILLINOIS A-1-1 EXHIBIT A-2 Legal Description of Good Samaritan Property THAT PART OF LOT "A" OF EVANGELICAL HOSPITAL ASSOCIATION ASSESSMENT PLAT NO. 2 IN THE SOUTHWEST 1/4 OF SECTION 32, TOWNSHIP 39 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, RECORDED AS DOCUMENT NUMBER R77-108464, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT "A"; THENCE SOUTH 08 DEGREES 30 MINUTES 00 SECONDS EAST ALONG THE EASTERLY LINE OF SAID LOT "A", A DISTANCE OF 2117.29 FEET; THENCE NORTH 88 DEGREES 48 MINUTES 52 SECONDS WEST, 438.33 FEET FOR A POINT OF BEGINNING; THENCE SOUTH 01 DEGREES 11 MINUTES 08 SECONDS WEST, 161.38 FEET; THENCE SOUTH 46 DEGREES 16 MINUTES 08 SECONDS WEST, 157.62 FEET; THENCE NORTH 88 DEGREES 41 MINUTES 12 SECONDS WEST, 96.73 FEET; THENCE NORTH 01 DEGREES 18 MINUTES 48 SECONDS EAST, 34.97 FEET; THENCE NORTH 44 DEGREES 23 MINUTES 52 SECONDS EAST, 110.72 FEET; THENCE NORTH 00 DEGREES 29 MINUTES 47 SECONDS EAST, 68.11 FEET; THENCE NORTH 88 DEGREES 57 MINUTES 45 SECONDS WEST, 68.73 FEET; THENCE NORTH 01 DEGREES 18 MINUTES 48 SECONDS EAST, 111.37 FEET; THENCE SOUTH 88 DEGREES 48 MINUTES 52 SECONDS EAST, 95.12 FEET; THENCE SOUTH 01 DEGREES 11 MINUTES 08 SECONDS WEST, 22.50 FEET; THENCE SOUTH 88 DEGREES 48 MINUTES 52 SECONDS EAST, 106.64 FEET TO THE POINT OF BEGINNING, IN DU PAGE COUNTY, ILLINOIS. PIN: 06-32-306-028 COMMONLY KNOWN AS: GOOD SAMARITAN HOSPITAL, 3825 HIGHLAND AVENUE, DOWNERS GROVE, ILLINOIS. A-2-1 EXHIBIT A-3 Legal Description of Good Shepherd Property PARCEL 1: THAT PART OF THE WEST 1/2 OF THE NORTHWEST 1/4 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 1/2 OF THE NORTHWEST 1/4 OF SAID SECTION 22; THENCE SOUTH 00 DEGREES 48 MINUTES 42 SECONDS WEST, 392.23 FEET ALONG THE EAST LINE OF SAID WEST 1/2; THENCE NORTH 89 DEGREES 59 MINUTES 05 SECONDS WEST 319.19 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 55 SECONDS WEST, 340.88 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 47 DEGREES 50 MINUTES 28 SECONDS EAST, 47.89 FEET; THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST, 13.28 FEET; THENCE SOUTH 47 DEGREES 50 MINUTES 28 SECONDS EAST 88.41 FEET; THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST, 106.04 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST 34.32 FEET; THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST 92.59 FEET; THENCE SOUTH 47 DEGREES 50 MINUTES 28 SECONDS EAST, 34.41 FEET; THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST, 54.08 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST 48.03 FEET; THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST, 13.35 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST 28.20 FEET; THENCE SOUTH 42 DEGREES 16 MINUTES 43 SECONDS WEST, 26.46 FEET; THENCE SOUTH 55 DEGREES 43 MINUTES 29 SECONDS EAST, 71.56 FEET; THENCE SOUTH 34 DEGREES 16 MINUTES 31 SECONDS WEST, 107.47 FEET; THENCE NORTH 55 DEGREES 43 MINUTES 29 SECONDS WEST, 53.85 FEET; THENCE SOUTH 22 DEGREES 55 MINUTES 49 SECONDS WEST, 39.78 FEET; THENCE SOUTH 78 DEGREES 27 MINUTES 34 SECONDS EAST, 53.89 FEET; THENCE SOUTH 11 DEGREES 32 MINUTES 26 SECONDS WEST, 108.75 FEET; THENCE NORTH 78 DEGREES 27 MINUTES 34 SECONDS WEST 164.05 FEET; THENCE NORTH 11 DEGREES 32 MINUTES 26 SECONDS EAST, 108.75 FEET; THENCE SOUTH 78 DEGREES 27 MINUTES 34 SECONDS EAST, 97.73 FEET; THENCE NORTH 22 DEGREES 55 MINUTES 49 SECONDS EAST, 44.68 FEET; THENCE NORTH 55 DEGREES 43 MINUTES 29 SECONDS WEST, 97.73 FEET; THENCE NORTH 34 DEGREES 16 MINUTES 31 SECONDS EAST, 107.47 FEET; THENCE SOUTH 55 DEGREES 43 MINUTES 29 SECONDS EAST, 81.99 FEET; THENCE NORTH 42 DEGREES 16 MINUTES 43 SECONDS EAST, 27.97 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST, 49.76 FEET; THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST, 106.04 FEET; THENCE SOUTH 47 DEGREES 50 MINUTES 28 SECONDS EAST, 38.04 FEET; THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST, 92.60 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST, 38.08 FEET; THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST, 54.05 FEET TO THE POINT OF BEGINNING, ALL IN LAKE COUNTY, ILLINOIS. PARCEL 2: THAT PART OF THE NORTHWEST 1/4 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 1/2 OF THE NORTHWEST 1/4 OF SAID SECTION 22; THENCE SOUTH 00 DEGREES 48 MINUTES 42 SECONDS WEST, 392.23 FEET ALONG THE EAST LINE OF SAID WEST 1/2; THENCE NORTH 89 DEGREES 59 MINUTES 05 SECONDS WEST, 22.36 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 55 SECONDS WEST, 389.10 FEET TO THE POINT OF BEGINNING; THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS EAST, 40.77 FEET; THENCE SOUTH 04 DEGREES 03 MINUTES 23 SECONDS EAST 46.70 FEET; THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS EAST 90.50 FEET; THENCE SOUTH 04 DEGREES 03 MINUTES 23 SECONDS EAST, 95.46 FEET; THENCE SOUTH 85 DEGREES 56 MINUTES 37 SECONDS WEST, 172.56 FEET; THENCE NORTH 04 DEGREEES 03 MINUTES 23 SECONDS WEST, 9.92 FEET; THENCE SOUTH 85 DEGREES 56 MINUTES 37 SECONDS WEST 18.28 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST, 7.89 FEET; THENCE SOUTH 85 DEGREES 56 MINUTES 37 SECONDS WEST 18.01 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST 23.02 FEET; THENCE NORTH A-3-1 40 DEGREES 56 MINUTES 37 SECONDS EAST 51.31 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST 9.16 FEET; THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS EAST 35.16 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST 13.07 FEET; THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS EAST 6.13 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST 42.81 FEET TO THE POINT OF BEGINNING, ALL IN LAKE COUNTY, ILLINOIS. PIN: 13-22-100-009 (AFFECTS PARCEL 1) 13-22-100-012 (AFFECTS PARCEL 1) 13-22-100-013 (AFFECTS PARCEL 1) 13-22-100-002 (AFFECTS PARCEL 2) COMMONLY KNOWN AS: GOOD SHEPHERD HOSPITAL, 450 W. HIGHWAY 22, BARRINGTON, ILLINOIS A-3-2 EXHIBIT A-4 Legal Description of Naperville Property PARCEL 1: LOT 1 IN COPPERFIELD SQUARE, BEING A SUBDIVISION IN THE SOUTHEAST 1/4 OF SECTION 7 AND THE SOUTHWEST 1/4 OF SECTION 8, TOWNSHIP 38 NORTH, RANGE 10, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED JANUARY 26, 1993 AS DOCUMENT R93-016376, IN DUPAGE COUNTY, ILLINOIS. PARCEL 2: LOT 1 IN COPPERFIELD VILLAGE UNIT 1, BEING A SUBDIVISION OF PART OF THE SOUTHWEST 1/4 OF SECTION 8, TOWNSHIP 38 NORTH, RANGE 10 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED OCTOBER 28, 1988 AS DOCUMENT R88-123217, IN DUPAGE COUNTY, ILLINOIS. P.I.N. 08-07-407-015 (AFFECTS PARCEL 1) 08-08-314-018 (AFFECTS PARCEL 1) 08-08-314-001 (AFFECTS PARCEL 2) COMMONLY KNOWN AS: 1020 EAST OGDEN AVENUE, NAPERVILLE, ILLINOIS. A-4-1 EXHIBIT A-5 Legal Description of South Suburban Property THAT PART OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 35, TOWNSHIP 36 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 35; THENCE NORTH 00(DEGREES) 00' 00" EAST 264.10 FEET ALONG THE SAID EAST LINE OF SAID NORTHEAST QUARTER; THENCE NORTH 89(DEGREES) 51' 20" WEST 616.18 FEET TO THE POINT OF BEGINNING; THENCE NORTH 89(DEGREES) 51' 20" WEST 31.81 FEET; THENCE SOUTH 00(DEGREES) 08' 40" WEST 8.75 FEET; THENCE NORTH 89(DEGREES) 51' 20" WEST 24.90 FEET; THENCE NORTH 00(DEGREES) 08' 40" EAST 8.65 FEET; THENCE NORTH 89(DEGREES) 51' 20" WEST 32.09 FEET; THENCE NORTH 00(DEGREES) 08' 40" EAST 83.96 FEET; THENCE NORTH 89(DEGREES) 51' 20" WEST 16.10 FEET; THENCE NORTH 00(DEGREES) 08' 40" EAST 27.76 FEET; THENCE NORTH 89(DEGREES) 51' 20" WEST 16.30 FEET; THENCE NORTH 00(DEGREES) 08' 40" EAST 60.91 FEET; THENCE SOUTH 89(DEGREES) 51' 20" EAST 89.06 FEET; THENCE SOUTH 00(DEGREES) 08' 40" WEST 27.92 FEET; THENCE SOUTH 89(DEGREES) 51' 20" EAST 15.84 FEET; THENCE SOUTH 00(DEGREES) 08' 40" WEST 28.05 FEET; THENCE SOUTH 89(DEGREES) 51' 20" EAST 16.30 FEET; THENCE SOUTH 00(DEGREES) 08' 40" WEST 116.56 FEET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS. PIN: 28-35-202-004 (AFFECTS PARCEL IN QUESTION AND OTHER PROPERTY). COMMONLY KNOWN AS: SOUTH SUBURBAN HOSPITAL, 17850 SOUTH KEDZIE AVENUE, HAZEL CREST, ILLINOIS A-5-1 EXHIBIT A-6 Legal Description of Trinity Property THAT PART OF LOTS 1 THROUGH 10, ALL INCLUSIVE, IN BLOCK 19 IN S.E. GROSS' CALUMET HEIGHTS ADDITION TO SOUTH CHICAGO, BEING A SUBDIVISION OF THE SOUTHEAST QUARTER OF SECTION 1, TOWNSHIP 37 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, BEING DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1 IN BLOCK 19 ON THE WEST LINE OF OGLESBY AVENUE, THENCE SOUTH 00(DEGREES) 39' 09" EAST 65.05 FEET ALONG SAID WEST LINE OF OGLESBY AVENUE AND THE EAST LINE OF SAID LOT 1; THENCE SOUTH 89(DEGREES) 41' 24" WEST 78.22 FEET; THENCE SOUTH 00(DEGREES) 38' 16" EAST 14.00 FEET; THENCE SOUTH 89(DEGREES) 41' 24" WEST 13.00 FEET; THENCE NORTH 00(DEGREES) 38' 16" WEST 14.00 FEET; THENCE SOUTH 89(DEGREES) 41' 24" WEST 97.77 FEET; THENCE SOUTH 00(DEGREES) 38' 16" EAST 12.00 FEET; THENCE SOUTH 89(DEGREES) 41' 24" WEST 11.29 FEET; THENCE SOUTH 00(DEGREES) 38' 16" EAST 47.95 FEET TO THE NORTH LINE OF AN EAST-WEST 16-FOOT PUBLIC ALLEY IN SAID BLOCK 19; THENCE SOUTH 89(DEGREES) 41' 24" WEST 66.31 FEET ALONG THE NORTH LINE OF SAID PUBLIC ALLEY IN BLOCK 19 TO THE SOUTHWEST CORNER OF SAID LOT 10 IN BLOCK 19 ON THE EAST LINE OF CRANDON AVENUE; THENCE NORTH 00(DEGREES) 38' 16" WEST 125.00 FEET ALONG SAID EAST LINE OF CRANDON AVENUE AND THE WEST LINE OF SAID LOT 10 IN BLOCK 19 TO THE NORTHWEST CORNER OF SAID LOT 10 ON THE SOUTH LINE OF 93RD STREET; THENCE NORTH 89(DEGREES) 41' 24" EAST 266.43 FEET ALONG THE NORTH LINE OF SAID BLOCK 19 AND THE SOUTH LINE OF 93RD STREET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS. P.I.N. 25-01-423-004 25-01-423-010 25-01-423-061 25-10-423-062-8001 25-10-423-062-8002 COMMONLY KNOWN AS: TRINITY HOSPITAL, 2315 EAST 93RD STREET, CHICAGO, ILLINOIS. A-6-1 EXHIBIT B ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption (the "ASSIGNMENT AND ASSUMPTION") is dated as of the Effective Date set forth below and is entered into by and between [INSERT NAME OF ASSIGNOR] (the "ASSIGNOR") and [INSERT NAME OF ASSIGNEE] (the "ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement identified below (as amended, the "LOAN AGREEMENT"), receipt of a copy of which is hereby acknowledged by the Assignee. The Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by the Agent as contemplated below, the interest in and to all of the Assignor's rights and obligations in its capacity as a Lender under the Loan Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor's outstanding rights and obligations under the respective facilities identified below (including without limitation any letters of credit, guaranties and swingline loans included in such facilities and, to the extent permitted to be assigned under applicable law, all claims (including without limitation contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity), suits, causes of action and any other right of the Assignor against any Person whether known or unknown arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby) (the "ASSIGNED INTEREST"). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. 1. Assignor: ----------------------------------------------------- 2. Assignee: ----------------------------------------------------- [and is an Affiliate/Approved Fund of [IDENTIFY LENDER](1) 3. Borrower(s): ----------------------------------------------------- 4. Agent: ----------------------------------------------------- , as the agent under the Credit Agreement. 5. Loan Agreement: The Loan Agreement dated as of _______________ among - ------------- (1) Select as applicable. B-1-1 [NAME OF BORROWER(S)], the Lenders party thereto, [NAME OF AGENT], as Agent, and the other agents party thereto. 6. Assigned Interest:
Aggregate Amount Amount of of Commitment/Loans Percentage Facility Assigned Commitment/Loans Assigned* Assigned of for all Lenders* Commitment/Loans(2) - ------------------------------- ---------------------------- ---------------------------- ---------------------------- ____________(3) $ $ _______% ____________ $ $ _______% ____________ $ $ _______%
7. Trade Date: (4) _____________________________________________ Effective Date: ____________________, 20__ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE AGENT.] The terms set forth in this Assignment and Assumption are hereby agreed to: ASSIGNOR [NAME OF ASSIGNOR] By: -------------------------------------------------- Title: ASSIGNEE [NAME OF ASSIGNEE] By: -------------------------------------------------- Title: [Consented to and] Accepted: [NAME OF AGENT], as Agent By: ----------------------------------------- Title: [Consented to:] * Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. (2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. (3) Fill in the appropriate terminology for the types of facilities under the Loan Agreement that are being assigned under this Assignment (e.g. "Revolving Credit Commitment," "Term Loan Commitment,", etc.) (4) Insert if satisfaction of minimum amounts is to be determined as of the Trade Date. B-1-2 [NAME OF RELEVANT PARTY] By: -------------------------------------------------- Title: B-1-3 ANNEX 1 TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. REPRESENTATIONS AND WARRANTIES. 1.1 ASSIGNOR. The Assignor represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby. Neither the Assignor nor any of its officers, directors, employees, agents or attorneys shall be responsible for (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency, perfection, priority, collectibility, or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, (iv) the performance or observance by the Borrower, any of its Affiliates or any other Person of any of their respective obligations under any Loan Documents, (v) inspecting any of the property, books or records of the Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action taken or omitted to be taken in connection with the Loans or the Loan Documents. 1.2. ASSIGNEE. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iii) agrees that its payment instructions and notice instructions are as set forth in Schedule 1 to this Assignment and Assumption, (iv) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are "plan assets" as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be "plan assets" under ERISA, (v) agrees to indemnify and hold the Assignor harmless against all losses, costs and expenses (including, without limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor in connection with or arising in any manner from the Assignee's non-performance of the obligations assumed under this Assignment and Assumption, (vi) it has received a copy of the Loan Agreement, together with copies of financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (vii) attached as Schedule 1 to this Assignment and Assumption is any documentation required to be delivered by the Assignee with respect to its tax status pursuant to the terms of the Loan Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. 2. PAYMENTS. The Assignee shall pay the Assignor, on the Effective Date, the amount agreed to by the Assignor and the Assignee. From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. 3. GENERAL PROVISIONS. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of Illinois. 2 EXHIBIT C-1 PERMITTED EXCEPTIONS FOR CHRIST PROPERTY 1. Real Estate Taxes not yet due and payable. 2. Building line(s) as contained in the Deed recorded as Document No. 16178707, affecting the South 25 feet of the land. 3. Building setback along the North line of the South 75 feet of the land as contained in the Deed from Weigel to Evangelical Hospital Association of Chicago recorded March 18, 1955 as Document No. 16178708. 4. Existing unrecorded leases and all rights thereunder of the lessees and of any person or party claiming by, through or under the lessees, as tenants only under the leases with no rights of first refusal or options to purchaser. C-1-1 EXHIBIT C-2 PERMITTED EXCEPTIONS FOR GOOD SAMARITAN PROPERTY 1. Real Estate Taxes not yet due and payable. 2. Existing unrecorded and all rights thereunder of the lessees and of any person or party claiming by, through or under the lessees, as tenants only with no options to purchase or rights of first refusal. 3. Terms, provisions and conditions contained in Agreement for Enforcement of Fire Lane Restrictions on Private Property recorded September 2, 1998 as Document Number R98-181921 made by Village of Downers Grove and Advocate Health and Hospitals Corporation d/b/a Good Samaritan Hospital-Advocate concerning enforcement of fire lane restrictions on the property located at 3815-25 Highland Avenue, Downers Grove, Illinois. (Affects land and other property) 4. Grant of Easements as set forth on Plat of Easement recorded February 14, 1980 as Document R80-09949, made by the Peace Memorial Manor of the Evangelical Hospital Association, according to the terms of Lease and Easement Agreement recorded November 5, 1979 as Document R79-99911, the location of said easements being more particularly described therein. 5. Easement in favor of the Illinois Bell Telephone Company, its successors and assigns, to install, operate and maintain all equipment necessary for the purpose of serving the land and other property, together with the right of access to said equipment, and the provisions relating thereto contained in the grant recorded/filed as Document No. 843878, affecting the property which he owns or in which he has any interest in the Southwest 1/4 of said Section 32. C-2-1 EXHIBIT C-3 PERMITTED EXCEPTIONS FOR GOOD SHEPHERD PROPERTY 1. Real Estate Taxes not yet due or payable. 2. Rights of Way for drainage tiles, ditches, feeders, laterals and underground pipes, if any. 3. Covenants, conditions and restrictions, (but omitting any such covenant or restriction based on race, color, religion, sex, handicap, familial status or national origin unless and only to the extent that said covenant (A) is exempt under Chapter 42, Section 3607 of the United States Code or (B) relates to handicap but does not discriminate against handicapped persons), contained in the three deeds from the Quaker Oats Company, a corporation of New Jersey, to Evangelical Hospital Association, a non-profit corporation of Illinois, one a Quit Claim Deed, one a Special Warranty Deed, dated August 27, 1973 and recorded September 6, 1973 as Documents 1633403 and 1633404, and the third a Special Warranty Deed dated March 21, 1973 and recorded April 5, 1973 as Document 1607691, as follows: the real estate hereinbefore described shall not be subdivided into lots or parcels of less than two acres each; nor shall conveyance or transfer be made, or the property utilized for any but single family residences. The foregoing notwithstanding, the Grantee may utilize or cause to be utilized, all or any portion of said real estate for a hospital and hospital related purposes which shall include housing for hospital staff and employees. Note: said instrument contains no provision for a forfeiture of or reversion of title in case of breach of condition. Modification Agreement recorded June 22, 1999 as Document 04374571, wherein the above restrictions were modified to now allow the land to be subdivided into parcels of lots not less than 1 acre each. 4. Perpetual Easement for the purpose of drainage, carrying off water and maintaining a tile drain together with right to make necessary repairs over the land herein as disclosed by Agreement dated January 23, 1945 and recorded February 21, 1945 as Document 557903 from the Quaker Oats Company, a New Jersey corporation, to Isabel F. Bates. Said easement grant includes the right to relocate the drain if such relocation is necessary or convenient. (Affects all) 5. Right of the Commonwealth Edison Company and the Illinois Bell Telephone Company, their respective successors and assigns, to an easement to construct, operate, maintain, etc., wires, cables, etc., over a ten foot wide strip of land, five feet on either side of the center line of a tract described in the instrument creating such easement, dated April 5, 1984 and recorded April 30, 1984 as Document 2279997 and re-recorded February 5, 1985 as Document 2336877. 6. Right of the Natural Gas Pipeline Company to construct and operate a 20 inch gas main across a 37 1/2 foot wide strip of land, as disclosed by instrument recorded August 18, 1951 as Document 735806, located on the plat attached thereto. 7. Various easements for the benefit of a portion of the land over the remainder of the land and over a portion of the land for the benefit of C-3-1 the remainder of the land more specifically described in the instrument creating said easements as granted by document recorded as Document 2352060 and the terms and provisions therein contained. 8. Right of Commonwealth Edison Company and Illinois Bell Telephone Company, their successors and assigns, to construct and maintain their facilities over a 950 foot by 12 foot parcel adjoining the Southerly right of way line of Route 22 as granted by instrument recorded September 10, 1985 as Document 2382668. (Affects Parcel 1) 9. Attention is directed to ordinances by the County of Lake one recorded as Document 2037978, and others recorded from time to time, relating to the payment of certain charges as a condition precedent to permission to tap into a sewer or water system. 10. Terms and provisions of Sanitary Sewer Service Agreement dated January 20, 1993 and recorded February 1, 1993 as Document 3280492, as amended by instrument recorded March 31, 1993 as Document 3307357, by and between Good Shepard Hospital of Evangelical Hospitals Corporation and the Village of Fox Lake. 11. 10 foot easement for electric utility services in favor of the Commonwealth Edison Company, and its respective successors and assigns, to install, operate and maintain all equipment necessary for the purpose of serving the land and other property, together with the right of access to said equipment, and the provisions relating thereto contained in the easement plat recorded November 6, 1995 as Document No. 3744836, affecting that portion of Parcels 2 and 3 as located and depicted thereon. 12. 10 foot easement for natural gas utility services in favor of Northern Illinois Gas Company and its respective successors and assigns, to install, operate and maintain all equipment necessary for the purpose of serving the land and other property, together with the right of access to said equipment, and the provisions relating thereto contained in the easement plat recorded November 6, 1995 as Document No. 3744837, affecting that portion of Parcels 2 and 3 as located and depicted thereon. 13. The land is included in plats of survey recorded November 9, 1998 as Documents 04236536 and 04236537. 14. Existing unrecorded leases and all rights thereunder of the lessees and of any person or party claiming by, through or under the lessees, as tenants only with no rights of first refusal and no options to purchase. C-3-2 EXHIBIT C-4 PERMITTED EXCEPTIONS FOR NAPERVILLE PROPERTY 1. Real Estate Taxes not yet due or payable. 2. Terms and provisions contained in Covenant to Maintain Storm Water Detention Facility recorded December 31, 1991 as Document R91-175797. (Affects Parcel 2) 3. Building line as shown on Plat of Naper Terrace recorded April 17, 1957 as Document No. 839229 and Certificate of Correction recorded as Document 845450, as follows: 35 feet on the Southeasterly lines of Lot 21 and 22; 35 feet on the East lines of Lots 23 and 24. (Affects that part of the land falling in Naper Terrace) (Affects Parcel 1) 4. Building line as shown on the Plat of Copperfield Village Unit 1, aforesaid, as follows: 25 feet along the Northeasterly curved line of Lot 1. (Affects Parcel 2) 5. Easement for Public Utilities across the South 10 feet, as shown on Plat of P. A. G. Naperville, Inc., - Sundberg Resubdivision, aforesaid. (Affects that part of the land falling in Lot 1 in P. A. G. Naperville, Inc. Sundberg Resubdivision recorded as Document R61-01081) (Affects Parcel 1) 6. Grant recorded December 19, 1969 as Document R69-53627, made by W. R. Grace and Company, to the City of Naperville, a municipal corporation, of an easement for the construction and maintenance of mains and necessary appurtenances thereto, on, over, under and across the Northwesterly 10 feet immediately contiguous and adjacent to the Southeasterly right of way line of Ogden Avenue, as now existing, of the land. (Affects that part of the land falling in Lot 1 in P. A. G. Naperville, Inc. Sundberg Resubdivision recorded as Document R61-01081) (Affects Parcel 1) 7. Easement in favor of Northern Illinois Gas Company, and its/their respective successors and assigns, to install, operate and maintain all equipment necessary for the purpose of serving the land and other property, together with the right of access to said equipment, and the provisions relating thereto contained in the Grant recorded/filed as Document No. R89-133047. (Affects Parcel 1) 8. Rights of the Public, the State of Illinois and the Municipality in and to that Northeasterly part of the land dedicated as Dickens Avenue by the Plat of Copperfield Square Subdivision recorded as Document R93-016376. (Affects Parcel 1) 9. Public Sidewalk Easement granted to the City of Naperville by the Plat of Copperfield Square Subdivision recorded January 26, 1993 as Document R93-016376, affecting the Northwesterly corner of Parcel 1 (30 feet on the Northwesterly line and 8 feet on the Southwesterly line of the land). (Affects Parcel 1) 10. Public Utility and Drainage Easement granted to the City of Naperville, the Illinois Bell Telephone Company, and Northern Illinois Gas Company, by the Plat of Copperfield Square Subdivision recorded January 26, C-4-1 1993 as Document R93-016376, as follows: 15 to 23 feet on the Southeasterly line of Parcel 1, 5 to 24 feet on the Southwesterly line of Parcel 1. (Affects Parcel 1) 11. All of Lot 1 is designated as a public utility and drainage easement. (Affects Parcel 2) 12. Existing unrecorded leases and all rights thereunder of the lessees and of any person or party claiming by, through or under the lessees, as tenants only with no rights of first refusal or options to purchase. C-4-2 EXHIBIT C-5 PERMITTED EXCEPTIONS FOR SOUTH SUBURBAN PROPERTY 1. Real Estate Taxes not yet due or payable. 2. Existing unrecorded leases and all rights thereunder of the lessees and of any person or party claiming by, through or under the lessees, as tenants only with no options to purchase. 3. Rights of Way for drainage tiles, ditches, feeders, laterals and underground pipes, if any. C-5-1 EXHIBIT C-6 PERMITTED EXCEPTIONS FOR TRINITY PROPERTY 1. Real Estate Taxes not yet due and payable. 2. Existing unrecorded leases and all rights thereunder of the lessees and of any person or party claiming by, through or under the lessees as tenants only with no rights of first refusal or options to purchase. C-5-2 ~~-----END PRIVACY-ENHANCED MESSAGE-----~~