exv10w5






Exhibit 10.5




OFFICE LEASE AGREEMENT




BETWEEN




YPI
PARK CENTRAL PROPERTIES, L.P.




(“LANDLORD”)




AND




NYTEX PETROLEUM, LLC




(“TENANT”)




FOUR FOREST PLAZA




DALLAS, TEXAS




 









 





OFFICE LEASE AGREEMENT




     THIS OFFICE LEASE AGREEMENT (the “Lease”) is made and entered into as of the 27TH
day of March, 2006, by and between YPI PARK CENTRAL PROPERTIES, L.P., a Delaware limited partnership
(“Landlord”) and NYTEX PETROLEUM, LLC a(n) Texas (“Tenant”). The following exhibits and
attachments are incorporated into and made a part of the Lease: Exhibit A (Outline and Location
of Premises), Exhibit B (Expenses and Taxes), Exhibit C (Work Letter, if required), Exhibit D
(Commencement Letter), Exhibit E (Building Rules and Regulations), and Exhibit F (Additional
Provisions, if required).



1. Basic Lease Information.




     1.01 “Building” shall mean the building located at 12222 Merit Drive, Dallas, Texas, 75251,
commonly known as Four Forest Plaza. “Rentable Square Footage of the Building” is deemed to be
394,324 square feet.



     1.02 “Premises” shall mean the area shown on Exhibit A to this Lease. The Premises is located
on the 18th floor(s) and known as suite(s) 1850. If the Premises include one or more floors in
their entirety, all corridors and restroom facilities located on such full floor(s) shall be
considered part of the Premises. The “Rentable Square Footage of the Premises” is deemed to be
2,415 square feet. Landlord and Tenant stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are correct.



     1.03 “Base Rent”:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Annual Rate	 	Monthly
	 	 	Period or Months of Term	 	Per Square Foot	 	Base Rent
	4/06-7/06	 	1-3
	 	$	0.00	 	 	$	0.00	 
	8/06-7/07	 	3-14
	 	$	16.50	 	 	$	3,320.63	 
	8/07-7/08	 	15-26
	 	$	17.00	 	 	$	3,421.25	 
	8/08-7/09	 	27-38
	 	$	17.50	 	 	$	3,521.88	 
	8/09-7/10	 	39-50
	 	$	18.00	 	 	$	3,622.50	 
	8/10-7/11	 	51-63
	 	$	18.50	 	 	$	3,723.13	 






     1.04 “Tenant’s Pro Rata Share”: 0.6124%.



     1.05 “Base Year” for Taxes (defined in Exhibit B): 2006; “Base Year” for Expenses (defined in
Exhibit B): 2006.



     1.06 “Term”: A period of 63 months and 0 days. Subject to Section 3, the Term shall commence
on April 1, 2006, (the “Commencement Date”) and, unless terminated early in accordance with this
Lease, end on June 30, 2011 (the “Termination Date”).



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     1.07 “Allowance(s)”: ($0.00 per rentable square foot), the Worklist is more particularly
described in the Work Letter attached hereto as Exhibit C.



     1.08 “Security Deposit”: $3,723.13, as more fully described in Section 6.



     1.09 “Guarantor(s)”: None. Concurrent with Tenant’s execution and delivery of this Lease,
Tenant shall cause each Guarantor, if any, to execute and deliver a guaranty in favor of Landlord
on a form reasonably approved by Landlord.



     1.10 “Broker(s)”: Trammell Crow Company.



     1.11 “Permitted Use”: General office use and no other use or purpose.



     1.12 “Notice Address(es)”:




	 	 	 	 	 
	Landlord:

	 	Tenant:
	 	 
	YPI Park Central Properties, L.P.
	 	 	 	 
	 

	 	 	 	 
	c/o Younan Properties, Inc.
	 	 	 	 
	 

	 	 	 	 
	5959 Topanga Canyon Boulevard, Suite 200
	 	 	 	 
	 

	 	 	 	 
	Woodland Hills, California 91367
	 	 	 	 
	 

	 	 	 	 
	Attn: Asset Manager
	 	 	 	 






     1.13 “Business Day(s)” are Monday through Friday of each week, exclusive of New Year’s Day,
Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day
(“Holidays”). Landlord may designate additional Holidays that are commonly recognized by other
office buildings in the area where the Building is located. “Building Service Hours” are 8:00 a.m.
to 6:00 p.m. on Business Days and 8:00 a.m. to 1:00 p.m. on Saturdays, excluding Holidays.



     1.14 “Landlord Work” means the work, if any, that Landlord is obligated to perform in the
Premises pursuant to a separate agreement (the “Work Letter”), if any, attached to this Lease as
Exhibit C.



     1.15 “Property” means the Building and the parcel(s) of land on which it is located and, at
Landlord’s discretion, the parking facilities and other improvements, if any, serving the Building
and the parcel(s) of land on which they are located.



2. Lease Grant.




     The Premises are hereby leased to Tenant from Landlord, together with the right to use any
portions of the Property that are designated by Landlord for the common use of tenants and others
(the “Common Areas”).




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3. Adjustment of Commencement Date; Possession.




     3.01 If Landlord is required to perform Landlord Work prior to the Commencement Date: (a)
the date set forth in Section 1.06 as the Commencement Date shall instead be defined as the
“Target Commencement Date”; (b) the actual Commencement Date shall be the date on which
the Landlord Work is Substantially Complete (defined below); and (c) the Termination Date will
the last day of the Term as determined based upon the actual Commencement Date. Landlord’s
failure to Substantially Complete the Landlord Work by the Target Commencement Date shall
not be a default by Landlord or otherwise render Landlord liable for damages. Promptly after
the determination of the Commencement Date, Landlord and Tenant shall enter into
a commencement letter agreement in the form attached as Exhibit D. If the Termination Date
does not fall on the last day of a calendar month, Landlord and Tenant may elect to adjust the
Termination Date to the last day of the calendar month in which Termination Date occurs by the
mutual execution of a commencement letter agreement setting forth such adjusted date. The
Landlord Work shall be deemed to be “Substantially Complete” on the date that all Landlord
Work has been performed, other than any details of construction, mechanical adjustment or any
other similar matter, the non-completion of which does not materially interfere with Tenant’s
use of the Premises. If Landlord is delayed in the performance of the Landlord Work as a result of
the acts or omissions of Tenant, the Tenant Related Parties (defined in Section 13) or their
respective contractors or vendors, including, without limitation, changes requested by Tenant to approved
plans, Tenant’s failure to comply with any of its obligations under this Lease, or the
specification of any materials or equipment with long lead times (a “Tenant Delay”), the Landlord Work shall
be deemed to be Substantially Complete on the date that Landlord could reasonably have been
expected to Substantially Complete the Landlord Work absent any Tenant Delay.



     3.02 Subject to Landlord’s obligation, if any, to perform Landlord Work, the Premises are
accepted by Tenant in “as is” condition and configuration without any representations or
warranties by Landlord. By taking possession of the Premises, Tenant agrees that the Premises
are in good order and satisfactory condition. Landlord shall not be liable for a failure to
deliver possession of the Premises or any other space due to the holdover or unlawful possession of
such space by another party, however Landlord shall use reasonable efforts to obtain possession of
the space. The commencement date for the space, in such event, shall be postponed until the date
Landlord delivers possession of the Premises to Tenant free from occupancy by any party. If
Tenant takes possession of the Premises before the Commencement Date, such possession shall
be subject to the terms and conditions of this Lease and Tenant shall pay Rent (defined in
Section 4.01) to Landlord for each day of possession before the Commencement Date. However, except
for the cost of services requested by Tenant (e.g. freight elevator usage), Tenant shall not
be required to pay Rent for any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the Premises for the sole purpose
of performing improvements or installing furniture, equipment or other personal property.



4. Rent.




     4.01 Tenant shall pay Landlord, without any setoff or deduction, unless expressly set forth
in this Lease, all Base Rent and Additional Rent due for the Term (collectively referred to as




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“Rent”). “Additional Rent” means all sums (exclusive of Base Rent) that Tenant is required to pay
Landlord under this Lease. Tenant shall pay and be liable for all rental, sales and use taxes (but
excluding income taxes), if any, imposed upon or measured by Rent. Base Rent and recurring monthly
charges of Additional Rent shall be due and payable in advance on the first day of each calendar
month without notice or demand, provided that the installment of Base Rent for the first full
calendar month of the Term, and the first monthly installment of Additional Rent for Expenses and
Taxes, shall be payable upon the execution of this Lease by Tenant. All other items of Rent shall
be due and payable by Tenant on or before 30 days after billing by Landlord. Rent shall be made
payable to the entity, and sent to the address, Landlord designates and shall be made by good and
sufficient check or by other means acceptable to Landlord. Tenant shall pay Landlord an
administration fee equal to 5% of all past due Rent, provided that Tenant shall be entitled to a
grace period of 5 days for the first 2 late payments of Rent in a calendar year. In addition, past
due Rent shall accrue interest at 12% per annum. Landlord’s acceptance of less than the correct
amount of Rent shall be considered a payment on account of the earliest Rent due. Rent for any
partial month during the Term shall be prorated. No endorsement or statement on a check or letter
accompanying payment shall be considered an accord and satisfaction. Tenant’s covenant to pay Rent
is independent of every other covenant in this Lease.




     4.02 Tenant shall pay Tenant’s Pro Rata Share of Taxes and Expenses in accordance Exhibit B
of this Lease.



5. Compliance with Laws; Use.




     The Premises shall be used for the Permitted Use and for no other use whatsoever. Tenant
shall comply with all statutes, codes, ordinances, orders, rules and regulations of any municipal
or governmental entity whether in effect now or later, including the Americans with Disabilities
Act (“Law(s)”), regarding the operation of Tenant’s business and the use, condition, configuration
and occupancy of the Premises. In addition, Tenant shall, at its sole cost and expense, promptly
comply with any Laws that relate to the “Base Building” (defined below), but only to the extent
such obligations are triggered by Tenant’s use of the Premises, other than for general office use,
or Alterations or improvements in the Premises performed or requested by Tenant. “Base Building”
shall include the structural portions of the Building, the public restrooms and the Building
mechanical, electrical and plumbing systems and equipment located in the internal core of the
Building on the floor or floors on which the Premises are located. Tenant shall promptly provide
Landlord with copies of any notices it receives regarding an alleged violation of Law. Tenant
shall comply with the rules and regulations of the Building attached as Exhibit E and such other
reasonable rules and regulations adopted by Landlord from time to time, including rules and
regulations for the performance of Alterations (defined in Section 9).



6. Security Deposit.




     The Security Deposit shall be delivered to Landlord upon the execution of this Lease by Tenant
and held by Landlord without liability for interest (unless required by Law) as security for the
performance of Tenant’s obligations. The Security Deposit is not an advance payment of




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Rent or a measure of damages. Landlord may use all or a portion of the Security Deposit to satisfy
past due Rent or to cure any Default (defined in Section 18) by Tenant. If Landlord uses any
portion of the Security Deposit, Tenant shall, within 5 days after demand, restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of the Security
Deposit to Tenant within 45 days after the later to occur of: (a) determination of the final Rent
due from Tenant; or (b) the later to occur of the Termination Date or the date Tenant surrenders
the Premises to Landlord in compliance with Section 25. Landlord may assign the Security Deposit
to a successor or transferee and, following the assignment, Landlord shall have no further
liability for the return of the Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts.




7. Building Services.




     7.01 Landlord shall furnish Tenant with the following services: (a) water for use in the Base
Building lavatories; (b) customary heat and air conditioning in season during Building Service
Hours. Tenant shall have the right to receive HVAC service during hours other than Building
Service Hours by paying Landlord’s then standard charge for additional HVAC service and
providing such prior notice as is reasonably specified by Landlord; (c) standard janitorial
service on Business Days; (d) Elevator service; (e) Electricity in accordance with the terms and
conditions in Section 7.02; and (f) such other services as Landlord reasonably determines are
necessary or appropriate for the Property.



     7.02 Use of Electrical Services by Tenant.




	 	A.	 	Tenant shall pay Landlord as Additional Rent Tenant’s Pro Rata Share of
Electrical Costs (defined below) for each applicable calendar year or portion thereof
during the Term. Before the Commencement Date and January 1 of each calendar year, or
as soon thereafter as practical, Landlord shall make a good faith estimate of
Electrical Costs for the applicable calendar year and Tenant’s Pro Rata Share. On or
before the first day of each month during the calendar year, Tenant shall pay Landlord,
as Additional Rent, a monthly installment equal to one-twelfth of Tenant’s Pro Rata
Share of Landlord’s estimate of Electrical Costs. Landlord shall have the right from
time to time to revise the estimate of Electrical Costs for the year and provide Tenant
with a revised statement, and the amount Tenant shall pay each following month shall be
based upon the revised estimate. If Landlord does not provide Tenant with an estimate
of the Electrical Costs by January 1 of a calendar year, Tenant shall continue to pay
monthly based on the previous year’s estimate until Landlord provides Tenant with the
new estimate. Upon receipt of the new estimate, an adjustment shall be made for any
month during the current year for which Tenant paid monthly installments of Additional
Rent based on the previous year’s estimate. Tenant shall pay Landlord the amount of any
underpayment within 30 days after demand. Any overpayment shall, at Landlord’s option,
be refunded to Tenant or credited against the installment of Additional Rent next due.
Amounts paid by Tenant based on any estimate shall be subject to






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	 	 	 	adjustment pursuant to the immediately following paragraph when actual Electrical Costs
are determined for the calendar year.
	 
	 	 	 	Following the end of each calendar year, Landlord shall furnish Tenant with a statement of
actual Electrical Costs for the previous calendar year. If the amount of estimated
Electrical Costs paid by Tenant for the prior year is greater than Tenant’s Pro Rata Share
of actual Electrical Costs for the prior year, Landlord shall apply the overpayment
against Additional Rent next due or becoming due, provided that if the Term expires before
the determination of the overpayment, Landlord shall refund the overpayment to Tenant
after first deducting the amount of Rent due. Likewise, Tenant shall pay Landlord, within
30 days after demand, any underpayment for the prior year, whether or not the Lease has
terminated prior to receipt by Tenant of a statement for the underpayment. This clause
shall survive the expiration or earlier termination of the Lease.
	 
	 	B.	 	“Electrical Costs” means: (i) charges paid by Landlord for electricity; and (ii)
costs incurred in connection with an energy management program for the Building
or Property, including costs incurred for the replacement of lights and ballasts and
the purchase and installation of sensors and other energy saving equipment. If the
Building is not at least 95% occupied during any calendar year or if Landlord is
not supplying electrical services to at least 95% of the total Rentable Square
Footage of the Building at any time during a calendar year, Electrical Costs shall
be determined as if the Building had been 95% occupied and Landlord had been
supplying electrical services to 95% of the Rentable Square Footage of the
Building during that calendar year. Electrical Costs shall be adjusted as follows:
(a) amounts received by Landlord as reimbursement for above standard electrical
consumption shall be deducted from Electrical Costs, and (b) the cost of
electricity incurred to provide overtime HVAC to specific tenants (as reasonably
estimated by Landlord) shall be deducted from Electrical Costs. Landlord shall
have the exclusive right to select any company providing electrical service to the
Premises, to aggregate the electrical service for the Building and Premises with
other buildings, to purchase electricity through a broker and/or buyers group and
to change the providers and manner of purchasing electricity.
	 
	 	C.	 	Tenant’s use of electrical service shall not exceed, either in voltage, rated capacity,
use beyond Business Service Hours or overall load, that which Landlord
reasonably deems to be standard for the Building. If Tenant requests permission
to consume excess electrical service, Landlord may refuse to consent or may
condition consent upon conditions that Landlord reasonably elects (including,
without limitation, the installation of utility service upgrades, meters, submeters,
air handlers or cooling units), and the additional usage (to the extent permitted by
Law), installation and maintenance cost shall be paid for by Tenant. Landlord
shall have the right to separately submeter electrical usage for the Premises or to
measure electrical usage by survey or other methods that Landlord, in its
reasonable judgment, deems appropriate.





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     7.03 Landlord’s failure to furnish, or any interruption, diminishment or termination of
services due to the application of Laws, the failure of any equipment, the performance of repairs,
improvements or alterations, utility interruptions or the occurrence of an event of Force Majeure
(defined in Section 26.03) (collectively a “Service Failure”) shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or agreement. However, if the Premises,
or a material portion of the Premises, are made untenantable for a period in excess of 5
consecutive Business Days as a result of a Service Failure that is reasonably within the control of
Landlord to correct, then Tenant, as its sole remedy, shall be entitled to receive an abatement of
Rent payable hereunder during the period beginning on the 6th consecutive Business Day
of the Service Failure and ending on the day the service has been restored. If the entire Premises
have not been rendered untenantable by the Service Failure, the amount of abatement shall be
equitably prorated.



8. Leasehold Improvements.




     All improvements in and to the Premises, including any Alterations (collectively, “Leasehold
Improvements”) shall remain upon the Premises at the end of the Term without compensation to
Tenant. Landlord, however, by written notice to Tenant at least 30 days prior to the Termination
Date, may require Tenant, at its expense, to remove (a) any Cable (defined in Section 9.01)
installed by or for the benefit of Tenant, and (b) any Landlord Work or Alterations that, in
Landlord’s reasonable judgment, are of a nature that would require removal and repair costs that
are materially in excess of the removal and repair costs associated with standard office
improvements (collectively referred to as “Required Removables”). Required Removables shall
include, without limitation, internal stairways, raised floors, personal baths and showers,
vaults, rolling file systems and structural alterations and modifications. The designated Required
Removables shall be removed by Tenant before the Termination Date. Tenant shall repair damage
caused by the installation or removal of Required Removables. If Tenant fails to perform its
obligations in a timely manner, Landlord may perform such work at Tenant’s expense. Tenant, at the
time it requests approval for a proposed Alteration, may request in writing that Landlord advise
Tenant whether the Alteration or any portion of the Alteration is a Required Removable. Within 10
days after receipt of Tenant’s request, Landlord shall advise Tenant in writing as to which
portions of the Alteration are Required Removables.



9. Repairs and Alterations.




     9.01 Tenant shall periodically inspect the Premises to identify any conditions that are
dangerous or in need of maintenance or repair. Tenant shall promptly provide Landlord with notice
of any such conditions. Tenant shall, at its sole cost and expense, perform all maintenance and
repairs to the Premises that are not Landlord’s express responsibility under this Lease, and keep
the Premises in good condition and repair, reasonable wear and tear excepted. Tenant’s repair and
maintenance obligations include, without limitation, repairs to: (a) floor covering; (b) interior
partitions; (c) doors; (d) the interior side of demising walls; (e) electronic, phone and data
cabling and related equipment that is installed by or for the exclusive benefit of Tenant




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(collectively, “Cable”); (f) supplemental air conditioning units, kitchens, including hot water
heaters, plumbing, and similar facilities exclusively serving Tenant; and (g) Alterations. To the
extent Landlord is not reimbursed by insurance proceeds, Tenant shall reimburse Landlord for the
cost of repairing damage to the Building caused by the acts of Tenant, Tenant Related Parties and
their respective contractors and vendors. If Tenant fails to make any repairs to the Premises for
more than 15 days after notice from Landlord (although notice shall not be required in an
emergency), Landlord may make the repairs, and Tenant shall pay the reasonable cost of the
repairs, together with an administrative charge in an amount equal to 10% of the cost of the
repairs.




     9.02 Landlord shall keep and maintain in good repair and working order and perform
maintenance upon the: (a) structural elements of the Building; (b) mechanical (including
HVAC),
electrical, plumbing and fire/life safety systems serving the Building in general; (c) Common
Areas; (d) roof of the Building; (e) exterior windows of the Building; and (f) elevators
serving
the Building. Landlord shall promptly make repairs for which Landlord is responsible.



     9.03 Tenant shall not make alterations, repairs, additions or improvements or install any
Cable (collectively referred to as “Alterations”) without first obtaining the written consent
of
Landlord in each instance, which consent shall not be unreasonably withheld or delayed.
However, Landlord’s consent shall not be required for any Alteration that satisfies all of the
following criteria (a “Cosmetic Alteration”): (a) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (b) is not visible from the exterior
of the
Premises or Building; (c) will not affect the Base Building; and (d) does not require work to
be
performed inside the walls or above the ceiling of the Premises. Cosmetic Alterations shall
be
subject to all the other provisions of this Section 9.03. Prior to starting work, Tenant
shall
furnish Landlord with plans and specifications; names of contractors reasonably acceptable to
Landlord (provided that Landlord may designate specific contractors with respect to Base
Building); required permits and approvals; evidence of contractor’s and subcontractor’s
insurance
in amounts reasonably required by Landlord and naming Landlord as an additional insured; and
any security for performance in amounts reasonably required by Landlord. Changes to the plans
and specifications must also be submitted to Landlord for its approval. Alterations shall be
constructed in a good and workmanlike manner using materials of a quality reasonably approved
by Landlord. Tenant shall reimburse Landlord for any sums paid by Landlord for third party
examination of Tenant’s plans for non-Cosmetic Alterations. In addition, Tenant shall pay
Landlord a fee for Landlord’s oversight and coordination of any non-Cosmetic Alterations equal
to 10% of the cost of the Alterations. Upon completion, Tenant shall furnish “as-built” plans
for
non-Cosmetic Alterations, completion affidavits and full and final waivers of lien. Landlord’s
approval of an Alteration shall not be deemed a representation by Landlord that the Alteration
complies with Law.



10. Entry by Landlord.




     Landlord may enter the Premises to inspect, show or clean the Premises or to perform or
facilitate the performance of repairs, alterations or additions to the Premises or any portion of
the Building. Except in emergencies or to provide Building services, Landlord shall provide Tenant




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with reasonable prior verbal notice of entry and shall use reasonable efforts to minimize any
interference with Tenant’s use of the Premises. If reasonably necessary, Landlord may temporarily
close all or a portion of the Premises to perform repairs, alterations and additions. However,
except in emergencies, Landlord will not close the Premises if the work can reasonably be
completed on weekends and after Building Service Hours. Entry by Landlord shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.




11. Assignment and Subletting.




     11.01 Except in connection with a Permitted Transfer (defined in Section 11.04), Tenant shall
not assign, sublease, transfer or encumber any interest in this Lease or allow any third party to
use any portion of the Premises (collectively or individually, a “Transfer”) without the prior
written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed if Landlord does not exercise its recapture rights under Section 11.02. If the entity which
controls the voting shares/rights of Tenant changes at any time, such change of ownership or
control shall constitute a Transfer unless Tenant is an entity whose outstanding stock is listed on
a recognized securities exchange or if at least 80% of its voting stock is owned by another entity,
the voting stock of which is so listed. Any attempted Transfer in violation of this Section is
voidable by Landlord. In no event shall any Transfer, including a Permitted Transfer, release
or relieve Tenant from any obligation under this Lease.



     11.02 Tenant shall provide Landlord with financial statements for the proposed transferee, a
fully executed copy of the proposed assignment, sublease or other Transfer documentation and such
other information as Landlord may reasonably request. Within 15 Business Days after receipt of the
required information and documentation, Landlord shall either: (a) consent to the Transfer by
execution of a consent agreement in a form reasonably designated by Landlord; (b) reasonably refuse
to consent to the Transfer in writing; or (c) in the event of an assignment of this Lease or
subletting of more than 20% of the Rentable Area of the Premises for more than 50% of the remaining
Term (excluding unexercised options), recapture the portion of the Premises that Tenant is
proposing to Transfer. If Landlord exercises its right to recapture, this Lease shall
automatically be amended (or terminated if the entire Premises is being assigned or sublet) to
delete the applicable portion of the Premises effective on the proposed effective date of the
Transfer. Tenant shall pay Landlord a review fee of $1,500.00 for Landlord’s review of any
Permitted Transfer or requested Transfer.



     11.03 Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives
as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the
Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of the
excess within 30 days after Tenant’s receipt of the excess. Tenant may deduct from the excess, on a
straight-line basis, all reasonable and customary expenses directly incurred by Tenant attributable
to the Transfer. If Tenant is in Default, Landlord may require that all sublease payments be made
directly to Landlord, in which case Tenant shall receive a credit against Rent in the amount of
Tenant’s share of payments received by Landlord.



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     11.04 Tenant may assign this Lease to a successor to Tenant by purchase, merger, consolidation
or reorganization (an “Ownership Change”) or assign this Lease or sublet all or a portion of the
Premises to an Affiliate without the consent of Landlord, provided that all of the following
conditions are satisfied (a “Permitted Transfer”): (a) Tenant is not in Default; (b) in the event
of an Ownership Change, Tenant’s successor shall own substantially all of the assets of Tenant and
have a net worth which is at least equal to Tenant’s net worth as of the day prior to the proposed
Ownership Change; (c) the Permitted Use does not allow the Premises to be used for retail purposes;
and (d) Tenant shall give Landlord written notice at least 15 Business Days prior to the effective
date of the Permitted Transfer. Tenant’s notice to Landlord shall include information and
documentation evidencing the Permitted Transfer and showing that each of the above conditions has
been satisfied. If requested by Landlord, Tenant’s successor shall sign a commercially reasonable
form of assumption agreement. “Affiliate” shall mean an entity controlled by, controlling or under
common control with Tenant.



12. Liens.




     Tenant shall not permit mechanics’ or other liens to be placed upon the Property, Premises or
Tenant’s leasehold interest in connection with any work or service done or purportedly done by or
for the benefit of Tenant or its transferees. Tenant shall give Landlord notice at least 15 days
prior to the commencement of any work in the Premises to afford Landlord the opportunity, where
applicable, to post and record notices of non-responsibility. Tenant, within 10 days of notice
from Landlord, shall fully discharge any lien by settlement, by bonding or by insuring over the
lien in the manner prescribed by the applicable lien Law. If Tenant fails to do so, Landlord may
bond, insure over or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord, including, without limitation, reasonable attorneys’ fees.



13. Indemnity and Waiver of Claims.




     13.01 Tenant shall indemnify, defend and hold Landlord and its trustees, members, principals,
beneficiaries, partners, officers, directors, employees, Mortgagees (defined in Section 23) and
agents (the “Landlord Related Parties”) harmless from and against any and all claims, liability,
loss, cost or expense (including reasonable attorneys’ fees) arising out of or in connection with
(i) any injury or damage to any person or property occurring in, on or about the Premises or any
part thereof or the Building or Common Area, if such injury or damage is caused in part or in
whole by any act or omission by Tenant, its agents, contractors, employees, or invitees or (ii)
any breach or default in the performance of any obligation on Tenant’s part to be performed under
this Lease. If any action or proceeding is brought against Landlord or any of the Landlord Related
Parties by reason of any such claim, upon notice from Landlord, Tenant shall defend the same at
Tenant’s expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in,
upon or about the Premises from any cause, EVEN IF SUCH DAMAGE OR INJURY RESULTS FROM THE
NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF LANDLORD OR LANDLORD RELATED
PARTIES, and Tenant hereby waives all claims with respect thereto against Landlord. The foregoing
provisions shall survive the termination of this Lease.



10









 





     13.02 If the Premises, the Building, or the Common Areas, or any part thereof, is damaged by
fire or other cause against which Tenant is required to carry insurance pursuant to this Lease,
Landlord shall not be liable to Tenant for any loss, cost or expense arising out of or in
connection with such damage. Tenant hereby releases Landlord, its directors, officers,
shareholders, partners, employees, agents and representatives, from any liability, claim or action
arising out of or in connection with such damage. Furthermore, Tenant shall pursuant to Section 14
maintain insurance against loss, injury, or damage which may be sustained by the person, goods,
wares, merchandise or property of Tenant, its agents, contractors, employees, invitees or
customers, or any other person in or about the Premises, caused by or resulting from fire, steam,
electricity, gas, water, or rain, which may leak or flow from or into any part of the Premises or
the Building, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures of the same, whether such damage
or injury results from conditions arising within the Premises or other portions of the Building, or
from other sources, and Landlord shall not be liable therefor, EVEN IF SUCH DAMAGE OR INJURY
RESULTS FROM THE NEGLIGENCE OF LANDLORD OR LANDLORD RELATED PARTIES, unless caused by gross
negligence or willful misconduct of Landlord or Landlord Related Parties, and in that event only to
the extent not covered by the insurance which Tenant is required to carry pursuant to this Lease.
Landlord shall not be liable to Tenant for any damages arising out of or in connection with any act
or omission of any other tenant of the Premises or for losses due to theft or burglary or other
wrongful acts of third parties.



14. Insurance.




     Tenant
shall maintain the following insurance (“Tenant’s Insurance”): (a) Commercial General
Liability Insurance applicable to the Premises and its appurtenances providing, on an occurrence
basis, a minimum combined single limit of $3,000,000.00; (b) Property/Business Interruption
Insurance written on an All Risk or Special Form, with coverage for broad form water damage
including earthquake sprinkler leakage, at replacement cost value and with a replacement cost
endorsement covering all of Tenant’s business and trade fixtures, equipment, movable partitions,
furniture, merchandise and other personal property within the Premises (“Tenant’s Property”); (c)
Workers’ Compensation Insurance in amounts required by Law; and (d) Employers Liability Coverage
of at least $1,000,000.00 per occurrence. Any company writing Tenant’s Insurance shall have an
A.M. Best rating of not less than A-VIII. All Commercial General Liability Insurance policies
shall name as additional insureds Landlord (or its successors and assignees), the managing agent
for the Building (or any successor), and their respective members, principals, beneficiaries,
partners, officers, directors, employees, and agents, and other designees of Landlord and its
successors as the interest of such designees shall appear. All policies of Tenant’s Insurance
shall contain endorsements that the insurer(s) shall give Landlord and its designees at least 30
days’ advance written notice of any cancellation, termination, material change or lapse of
insurance. Tenant shall provide Landlord with a certificate of insurance evidencing Tenant’s
Insurance prior to the earlier to occur of the Commencement Date or the date Tenant is provided
with possession of the Premises, and thereafter as necessary to assure that Landlord always has
current certificates evidencing Tenant’s Insurance. So long as the same is available at
commercially reasonable rates, Landlord shall



11









 





maintain so called All Risk or Special Form property insurance on the Building at replacement cost
value as reasonably estimated by Landlord.



15. Subrogation.




     Notwithstanding anything to the contrary set forth herein, Landlord and Tenant hereby waive
and shall cause their respective insurance carriers to waive any and all rights of recovery,
claims, actions or causes of action against the other for any loss or damage with respect to
Tenant’s Property, Leasehold Improvements, the Building, the Premises, or any contents thereof,
INCLUDING RIGHTS, CLAIMS, ACTIONS AND CAUSES OF ACTION BASED ON NEGLIGENCE, which loss or damage is
(or would have been, had the insurance required by this Lease been carried) covered by insurance.
Landlord and Tenant shall give each insurance company which issues policies of insurance, with
respect to the items covered by this waiver, written notice of the terms of this mutual waiver, and
shall have such insurance policies properly endorsed, if necessary, to prevent the invalidation of
any of the coverage provided by such insurance policies by reason of such mutual waiver. For the
purpose of the foregoing waiver, the amount of any deductible applicable to any loss or damage
shall be deemed covered by, and recoverable by the insured under the insurance policy to which such
deductible relates.



16. Casualty Damage.




     16.01 If all or any portion of the Premises becomes untenantable by fire or other casualty to
the Premises (collectively a “Casualty”), Landlord, with reasonable promptness, shall cause a
general contractor selected by Landlord to provide Landlord and Tenant with a written estimate of
the amount of time required using standard working methods to Substantially Complete the repair and
restoration of the Premises and any Common Areas necessary to provide access to the Premises
(“Completion Estimate”). If the Completion Estimate indicates that the Premises or any Common
Areas necessary to provide access to the Premises cannot be made tenantable within 270 days from
the date the repair is started, then either party shall have the right to terminate this Lease upon
written notice to the other within 10 days after receipt of the Completion Estimate. Tenant,
however, shall not have the right to terminate this Lease if the Casualty was caused by the
negligence or intentional misconduct of Tenant or any Tenant Related Parties. In addition,
Landlord, by notice to Tenant within 90 days after the date of the Casualty, shall have the right
to terminate this Lease if: (1) the Premises have been materially damaged and there is less than 2
years of the Term remaining on the date of the Casualty; (2) any Mortgagee requires that the
insurance proceeds be applied to the payment of the mortgage debt; or (3) a material uninsured loss
to the Building occurs.



     16.02 If this Lease is not terminated, Landlord shall commence and proceed with reasonable
diligence to repair and restore the Building, Common Areas and the Leasehold Improvements (excluding
any Alterations that were performed by Tenant in violation of this Lease). Such restoration shall
be to substantially the same condition that existed prior to the Casualty, except for modifications
required by Law or any other modifications to the Common Areas deemed desirable by Landlord.
However, in no event shall Landlord be required to spend more than the insurance proceeds received
by Landlord. Landlord shall not be liable for any inconvenience to



12









 




Tenant, or injury to Tenant’s business resulting in any way from the Casualty or the repair
thereof. Provided that Tenant is not in Default, during any period of time that all or a material
portion of the Premises is rendered untenantable as a result of a Casualty, the Rent shall abate
for the portion of the Premises that is untenantable and not used by Tenant.




17. Condemnation




     Either party may terminate this Lease if any material part of the Premises is taken or
condemned for any public or quasi-public use under Law, by eminent domain or private purchase in
lieu thereof (a “Taking”). Landlord shall also have the right to terminate this Lease if there is a
Taking of any portion of the Building or Property which would have a material adverse effect on
Landlord’s ability to profitably operate the remainder of the Building. The terminating party shall
provide written notice of termination to the other party within 45 days after it first receives
notice of the Taking. The termination shall be effective on the date the physical taking occurs. If
this Lease is not terminated, Base Rent and Tenant’s Pro Rata Share shall be appropriately adjusted
to account for any reduction in the square footage of the Building or Premises. All compensation
awarded for a Taking shall be the property of Landlord. The right to receive compensation or
proceeds are expressly waived by Tenant, however, Tenant may file a separate claim for Tenant’s
Property and Tenant’s reasonable relocation expenses, provided the filing of the claim does not
diminish the amount of Landlord’s award. If only a part of the Premises is subject to a Taking and
this Lease is not terminated, Landlord, with reasonable diligence, will restore the remaining
portion of the Premises as nearly as practicable to the condition immediately prior to the Taking.



18. Events of Default.




     Each of the following occurrences shall be a “Default”: (a) Tenant’s failure to pay any
portion of Rent when due, if the failure continues for 3 days after written notice to Tenant
(“Monetary Default”); (b) Tenant’s failure (other than a Monetary Default) to comply with any
term, provision, condition or covenant of this Lease, if the failure is not cured within 10 days
after written notice to Tenant provided, however, if Tenant’s failure to comply cannot reasonably
be cured within 10 days, Tenant shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as Tenant begins the cure within 10 days and
diligently pursues the cure to completion; (c) Tenant or any Guarantor becomes insolvent, makes a
transfer in fraud of creditors, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts when due or forfeits or loses its right to conduct
business; (d) the leasehold estate is taken by process or operation of Law; (e) in the case of any
ground floor or retail Tenant, Tenant does not take possession of or abandons or vacates all or
any portion of the Premises; or (f) Tenant is in default beyond any notice and cure period under
any other lease or agreement with Landlord at the Building or Property. If Landlord provides
Tenant with notice of Tenant’s failure to comply with any specific provision of this Lease on 3
separate occasions during any 12 month period, Tenant’s subsequent violation of such provision
shall, at Landlord’s option, be an incurable Default by Tenant. All notices sent under this
Section shall be in satisfaction of, and not in addition to, notice required by Law.



13









 





19. Remedies.




     19.01 Upon Default, Landlord shall have the following rights and remedies, in addition to
those allowed by law or equity, any one or more of which may be exercised without further notice
to or demand upon Tenant and which may be pursued successively or cumulatively as Landlord may
elect:




	 	A.	 	Landlord may re-enter the Premises and attempt to cure any default of Tenant,
in which event Tenant shall, upon demand, reimburse Landlord as Additional Rent for all
reasonable costs and expenses which Landlord incurs to cure such default;
	 
	 	B.	 	Landlord may terminate this Lease by giving to Tenant notice of Landlord’s election to do so, in which event the Term shall end, and all right, title and
interest of Tenant hereunder shall expire, on the date stated in such notice;
	 
	 	C.	 	Landlord may terminate the right of Tenant to possession of the Premises
without terminating this Lease by giving notice to Tenant that Tenant’s right to
possession shall end on the date stated in such notice, whereupon the right of Tenant
to possession of the Premises or any part thereof shall cease on the date stated in
such notice; and
	 
	 	D.	 	Landlord may enforce the provisions of this Lease by a suit or suits in equity
or at law for the specific performance of any covenant or agreement contained herein,
or for the enforcement of any other appropriate legal or equitable remedy, including
recovery of all moneys due or to become due from Tenant under any of the provisions of
this Lease.




Landlord shall not be required to serve Tenant with any notices or demands as a prerequisite to
its exercise of any of its rights or remedies under this Lease, other than those notices and
demands specifically required under this Lease. In order to regain possession of the Premises and
to deny Tenant access thereto, Landlord or its agent may, at the expense and liability of the
Tenant, alter or change any or all looks or other security devices controlling access to the
Premises without posting or giving notice of any kind to Tenant and Landlord shall have no
obligation to provide Tenant a key to new locks installed in the Premises or grant Tenant access
to the Premises. Tenant shall not be entitled to recover possession of the Premises, terminate
this Lease, or recover any actual, incidental, consequential, punitive, statutory or other damages
or award of attorneys’ fees, by reason of Landlord’s alteration or change of any lock or other
security device and the resulting exclusion from the Premises of the Tenant or Tenant’s agents,
servants, employees, customers, licensees, invitees or any other persons from the Premises.
Landlord may, without notice, remove and either dispose of or store, at Tenant’s expense, any
property belonging to Tenant that remains in the Premises after Landlord has regained possession
thereof. Tenant acknowledges that the provisions of this subparagraph of this Lease supersede the
Texas Property Code and Tenant further warrants and represents that it hereby knowingly waives any
rights it may have thereunder. TENANT EXPRESSLY WAIVES THE SERVICE OF ANY STATUTORY DEMAND OR
NOTICE WHICH IS A PREREQUISITE TO





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LANDLORD’S COMMENCEMENT OF EVICTION PROCEEDINGS AGAINST TENANT, INCLUDING THE DEMANDS AND NOTICES
SPECIFIED IN ANY APPLICABLE STATE STATUTE OR CASE LAW. TENANT KNOWINGLY AND VOLUNTARILY WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY LAWSUIT BROUGHT BY LANDLORD TO RECOVER POSSESSION OF THE PREMISES
FOLLOWING LANDLORD’S TERMINATION OF THIS LEASE OR THE RIGHT OF TENANT TO POSSESSION OF THE
PREMISES PURSUANT TO THE TERMS OF THIS LEASE AND ON ANY CLAIM FOR DELINQUENT RENT WHICH LANDLORD
MAY JOIN IN ITS LAWSUIT TO RECOVER POSSESSION. LANDLORD IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THE FOREGOING WAIVER.




     19.02 If Landlord exercises either of the remedies provided in Sections 19.01(B) or 19.01(C),
Tenant shall surrender possession and vacate the Premises and immediately deliver possession
thereof to Landlord, and Landlord may re-enter and take complete and peaceful possession of the
Premises, with process of law, and Landlord may remove all occupants and property therefrom, using
such force as may be necessary to the extent allowed by law, without being deemed guilty in any
manner of trespass, eviction or forcible entry and detainer and without relinquishing Landlord’s
right to Rent or any other right given to Landlord hereunder or by operation of law.



     19.03 If Landlord terminates the right of Tenant to possession of the Premises without
terminating this Lease, Landlord shall have the right to immediate recovery of all amounts then due
hereunder. Such termination of possession shall not release Tenant, in whole or in part, from
Tenant’s obligation to pay Rent hereunder for the full Term, and Landlord shall have the right,
from time to time, to recover from Tenant, and Tenant shall remain liable for, all Rent accruing as
it becomes due under this Lease during the period from the date of such notice of termination of
possession to the stated end of the Term. In any such case, Landlord shall make reasonable
efforts, in accordance with Section 19.05 hereof, to relet the Premises. In attempting to relet the
Premises, Landlord may make repairs, alterations and additions in or to the Premises and redecorate
the same to the extent reasonably deemed by Landlord necessary or desirable, and Tenant upon demand
shall pay the reasonable cost of all of the foregoing together with Landlord’s reasonable expenses
of reletting. The rents from any such reletting shall be applied first to the payment of the
expenses of reentry, redecoration, repair and alterations and the expenses of reletting (including
reasonable attorneys’ fees and brokers’ fees and commissions) and second to the payment of Rent
herein provided to be paid by Tenant. Any excess or residue shall operate only as an offsetting
credit against the amount of Rent due and owing as the same thereafter becomes due and payable
hereunder.



     19.04 If this Lease is terminated by Landlord, Landlord shall be entitled to recover from
Tenant all Rent accrued and unpaid for the period up to and including such termination date, as
well as all other additional sums payable by Tenant, or for which Tenant is liable or for which
Tenant has agreed to indemnify Landlord, which may be then owing and unpaid, and all reasonable
costs and expenses, including court costs and reasonable attorneys’ fees incurred by Landlord in
the enforcement of its rights and remedies hereunder. In addition, Landlord shall be



15









 




entitled to recover as damages for loss of the bargain and not as a penalty (1) the unamortized
portion of any concessions offered by Landlord to Tenant in connection with this Lease, including
without limitation Landlord’s contribution to the cost of tenant improvements, if any, installed by
either Landlord or Tenant pursuant to this Lease or any work letter in connection with this Lease,
(2) the aggregate sum which at the time of such termination represents the excess, if any, of the
present value of the aggregate Rent which would have been payable after the termination date had
this Lease not been terminated, including, without limitation, the amount projected by Landlord to
represent Additional Rent for the remainder of the Term, over the then present value of the then
aggregate fair rent value of the Premises for the balance of the Term, such present worth to be
computed in each case on the basis of a 10% per annum discount from the respective dates upon which
such Rent would have been payable hereunder had this Lease not been terminated, and (3) any damages
in addition thereto, including without limitation reasonable attorneys’ fees and court costs, which
Landlord sustains as a result of the breach of any of the covenants of this Lease other than for
the payment of Rent.




     19.05 Landlord shall use commercially reasonable efforts to mitigate any damages resulting from
a Default by Tenant under this Lease. Landlord’s obligation to mitigate damages after a Default
by Tenant under this Lease shall be satisfied in full if Landlord undertakes to lease the Premises
to another tenant (a “Substitute Tenant”) in accordance with the following criteria: (1) Landlord
shall have no obligation to solicit or entertain negotiations with any other prospective tenants
for the Premises until Landlord obtains full and complete possession of the Premises including,
without limitation, the final and unappealable legal right to relet the Premises free of any claim
of Tenant; (2) Landlord shall not be obligated to lease or show the Premises, on a priority basis,
or offer the Premises to a prospective tenant when other premises in the Building suitable for that
prospective tenant’s use are (or soon will be) available; (3) Landlord shall not be obligated to
lease the Premises to a Substitute Tenant for a rent less than the current fair market rent then
prevailing for similar uses in comparable buildings in the same market area as the Building, nor
shall Landlord be obligated to enter into a new lease under other terms and conditions that are
unacceptable to Landlord under Landlord’s then current leasing policies for comparable space in the
Building; (4) Landlord shall not be obligated to enter into a lease with a Substitute Tenant whose
use would: (i) violate any restriction, covenant, or requirement contained in the lease of another
tenant of the Building; (ii) adversely affect the reputation of the Building; or (iii) be
incompatible with the operation of the Building; and (5) Landlord shall not be obligated to enter
into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable
opinion, sufficient financial resources to operate the Premises in a first class manner and to
fulfill all of the obligations in connection with the lease thereof as and when the same become
due.



     19.06 The receipt by Landlord of less than the full Rent due shall not be construed to be other
than a payment on account of Rent then due, nor shall any statement on Tenant’s check or any letter
accompanying Tenant’s check be deemed an accord and satisfaction, and Landlord may accept such
payment without prejudice to Landlord’s right to recover the balance of the Rent due or to pursue
any other remedies provided in this Lease. The acceptance by Landlord of Rent hereunder shall not
be construed to be a waiver of any breach by Tenant of any term, covenant or condition of this
Lease. No act or omission by Landlord or its employees or agents during the



16









 




term of this Lease shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such a surrender shall be valid unless in writing and signed by Landlord.




     19.07 In the event of any litigation between Tenant and Landlord to enforce or interpret any
provision of this Lease or to enforce any right of either party hereto, the unsuccessful party to
such litigation shall pay to the successful party all costs and expenses, including reasonable
attorney’s fees, incurred therein.



     19.08 All property of Tenant removed from the Premises by Landlord pursuant to any provision
of this Lease or applicable law may be handled, removed or stored by Landlord at the cost and
expense of Tenant, and Landlord shall not be responsible in any event for the value, preservation
or safekeeping thereof. Tenant shall pay Landlord for all expenses incurred by Landlord with
respect to such removal and storage so long as the same is in Landlord’s possession or under
Landlord’s control. All such property not removed from the Premises or retaken from storage by
Tenant within 30 days after the end of the Term or termination of Tenant’s right to possession of
the Premises, however terminated, at Landlord’s option, shall be conclusively deemed to have been
conveyed by Tenant to Landlord by bill of sale with general warranty of title without further
payment or credit by Landlord to Tenant.



20. Limitation of Liability.




     NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD
(AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE INTEREST OF LANDLORD IN
THE PROPERTY, OR (B) THE EQUITY INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY WERE
ENCUMBERED BY THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY. TENANT
SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY
SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY
LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR
ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT
BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD
MORTGAGES (DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.



21. Relocation.




     Landlord, at its expense, at any time before or during the Term, may relocate Tenant from the
Premises to space of reasonably comparable size and utility (“Relocation Space”) within the
Building or adjacent buildings within the same project upon 60 days’ prior written notice to
Tenant. From and after the date of the relocation, the Base Rent and Tenant’s Pro Rata Share



17









 




shall be adjusted based on the rentable square footage of the Relocation Space. Landlord shall pay
Tenant’s reasonable costs of relocation, including all costs for moving Tenant’s furniture,
equipment, supplies and other personal property, as well as the cost of printing and distributing
change of address notices to Tenant’s customers and one month’s supply of stationery showing the
new address.




22. Holding Over.




     If Tenant fails to surrender all or any part of the Premises at the termination of this Lease,
occupancy of the Premises after termination shall be that of a tenancy at sufferance. Tenant’s
occupancy shall be subject to all the terms and provisions of this Lease, and Tenant shall pay an
amount (on a per month basis without reduction for partial months during the holdover) equal to
150% of the sum of the Base Rent and Additional Rent due for the period immediately preceding the
holdover. No holdover by Tenant or payment by Tenant after the termination of this Lease shall be
construed to extend the Term or prevent Landlord from immediate recovery of possession of the
Premises by summary proceedings or otherwise. If Landlord is unable to deliver possession of the
Premises to a new tenant or to perform improvements for a new tenant as a result of Tenant’s
holdover and Tenant fails to vacate the Premises within 15 days after notice from Landlord, Tenant
shall be liable for all damages that Landlord suffers from the holdover.



23. Subordination to Mortgages; Estoppel Certificate.




     Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust,
ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building or
the Property, and to renewals, modifications, refinancings and extensions thereof (collectively
referred to as a “Mortgage”). The party having the benefit of a Mortgage shall be referred to as a
“Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall
execute a commercially reasonable subordination agreement in favor of the Mortgagee. As an
alternative, a Mortgagee shall have the right at any time to subordinate its Mortgage to this
Lease. Upon request, Tenant, without charge, shall attorn to any successor to Landlord’s interest
in this Lease. Landlord and Tenant shall each, within 10 days after receipt of a written request
from the other, execute and deliver a commercially reasonable estoppel certificate to those
parties as are reasonably requested by the other (including a Mortgagee or prospective purchaser).
Without limitation, such estoppel certificate may include a certification as to the status of this
Lease, the existence of any defaults and the amount of Rent that is due and payable.



24. Notice.




     All demands, approvals, consents or notices (collectively referred to as a “notice”) shall be
in writing and delivered by hand or sent by registered or certified mail with return receipt
requested or sent by overnight or same day courier service at the party’s respective Notice
Address(es) set forth in Section 1. Each notice shall be deemed to have been received on the
earlier to occur of actual delivery or the date on which delivery is refused, or, if Tenant has
vacated the Premises or any other Notice Address of Tenant without providing a new Notice Address,
3 days after notice



18









 




is deposited in the U.S. mail or with a courier service in the manner described above. Either party
may, at any time, change its Notice Address (other than to a post office box address) by giving the
other party written notice of the new address.




25. Surrender of Premises.




     At the termination of this Lease or Tenant’s right of possession, Tenant shall remove
Tenant’s Property from the Premises, and quit and surrender the Premises to Landlord, broom clean,
and in good order, condition and repair, ordinary wear and tear and damage which Landlord is
obligated to repair hereunder excepted. If Tenant fails to remove any of Tenant’s Property within
2 days after termination of this Lease or Tenant’s right to possession, Landlord, at Tenant’s sole
cost and expense, shall be entitled (but not obligated) to remove and store Tenant’s Property.
Landlord shall not be responsible for the value, preservation or safekeeping of Tenant’s Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges incurred. If Tenant fails
to remove Tenant’s Property from the Premises or storage, within 30 days after notice, Landlord
may deem all or any part of Tenant’s Property to be abandoned and title to Tenant’s Property shall
vest in Landlord.



26. Miscellaneous.




     26.01 This Lease shall be interpreted and enforced in accordance with the Laws of the state or
commonwealth in which the Building is located and Landlord and Tenant hereby irrevocably consent to
the jurisdiction and proper venue of such state or commonwealth. If any term or provision of this
Lease shall to any extent be void or unenforceable, the remainder of this Lease shall not be
affected. If there is more than one Tenant or if Tenant is comprised of more than one party or
entity, the obligations imposed upon Tenant shall be joint and several obligations of all the
parties and entities, and requests or demands from any one person or entity comprising Tenant shall
be deemed to have been made by all such persons or entities. Notices to any one person or entity
shall be deemed to have been given to all persons and entities. Tenant represents and warrants to
Landlord that each individual executing this Lease on behalf of Tenant is authorized to do so on
behalf of Tenant and that Tenant is not, and the entities or individuals constituting Tenant or
which may own or control Tenant or which may be owned or controlled by Tenant are not, among the
individuals or entities identified on any list compiled pursuant to Executive Order 13224 for the
purpose of identifying suspected terrorists.



     26.02 If either party institutes a suit against the other for violation of or to enforce any
covenant, term or condition of this Lease, the prevailing party shall be entitled to all of its
costs and expenses, including, without limitation, reasonable attorneys’ fees. Landlord and
Tenant hereby waive any right to trial by jury in any proceeding based upon a breach of this Lease.
Either party’s failure to declare a default immediately upon its occurrence, or delay in taking
action for a default, shall not constitute a waiver of the default, nor shall it constitute an
estoppel.



     26.03 Whenever a period of time is prescribed for the taking of an action by Landlord or Tenant
(other than the payment of the Security Deposit or Rent), the period of time for the performance of
such action shall be extended by the number of days that the performance is



19









 




actually delayed due to strikes, acts of God, shortages of labor or materials, war, terrorist
acts, civil disturbances and other causes beyond the reasonable control of the performing party
(“Force Majeure”).




     26.04 Landlord shall have the right to transfer and assign, in whole or in part, all of its
rights and obligations under this Lease and in the Building and Property. Upon transfer Landlord
shall be released from any further obligations hereunder and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such obligations, provided that, any
successor pursuant to a voluntary, third party transfer (but not as part of an involuntary transfer
resulting from a foreclosure or deed in lieu thereof) shall have assumed Landlord’s obligations
under this Lease.



     26.05 Landlord has delivered a copy of this Lease to Tenant for Tenant’s review only and the
delivery of it does not constitute an offer to Tenant or an option. Tenant represents that it has
dealt directly with and only with the Broker as a broker in connection with this Lease. Tenant
shall indemnify and hold Landlord and the Landlord Related Parties harmless from all claims of any
other brokers claiming to have represented Tenant in connection with this Lease. Landlord shall
indemnify and hold Tenant and the Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this Lease.



     26.06 Time is of the essence with respect to Tenant’s exercise of any expansion, renewal or
extension rights granted to Tenant. The expiration of the Term, whether by lapse of time,
termination or otherwise, shall not relieve either party of any obligations which accrued prior to
or which may continue to accrue after the expiration or termination of this Lease.



     26.07 Tenant may peacefully have, hold and enjoy the Premises, subject to the terms of this
Lease, provided Tenant pays the Rent and fully performs all of its covenants and agreements. This
covenant shall be binding upon Landlord and its successors only during its or their respective
periods of ownership of the Building.



     26.08 This Lease does not grant any rights to light or air over or about the Building. Landlord
excepts and reserves exclusively to itself any and all rights not specifically granted to Tenant
under this Lease. This Lease constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings related to the Premises, including all lease proposals,
letters of intent and other documents. Neither party is relying upon any warranty, statement or
representation not contained in this Lease. This Lease may be modified only by a written agreement
signed by an authorized representative of Landlord and Tenant.



     26.09 Landlord and Tenant agree that each provision of the Lease for determining charges,
amounts and Additional Rent payments by Tenant (including without limitation, Section 4 of this
Lease and Exhibit B to this Lease) is commercially reasonable, and as to each such charge or
amount, constitutes a “method by which the charge is to be computed” for purposes of Section 93.012
(Assessment of Charges) of the Texas Property Code, as such section now exists or as it may be
hereafter amended or succeeded.



20









 





     26.10 TENANT HEREBY WAIVES ALL RIGHTS TO PROTEST THE APPRAISED VALUE OF THE PROPERTY OR TO
APPEAL THE SAME AND ALL RIGHTS TO RECEIVE NOTICES OF REAPPRAISALS AS SET FORTH IN SECTIONS 41.413
AND 42.015 OF THE TEXAS TAX CODE.



     26.11 TENANT HEREBY WAIVES ALL ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES —
CONSUMER PROTECTION ACT, SECTION 17.41 ET. SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT
GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF TENANT’S
OWN SELECTION, TENANT VOLUNTARILY CONSENTS TO THIS WAIVER.



[Signature page follows.]





21









 








     Landlord and Tenant have executed this Lease as of the day and
year first above written.



	 	 	 	 	 
	 	LANDLORD:



YPI PARK CENTRAL PROPERTIES, L.P., a Delaware limited partnership



	 
	 	By:  	YPI Park Central GP, LLC,

a Delaware limited liability company,
 its
General Partner


	 
	 	By:  	/s/ Larry Blankenship
 	 
	 	 	Name:  	Larry Blankenship 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	TENANT:



NYTEX PETROLEUM, LLC, a(n)

 	 
	 	By:  	/s/ Michael Galvis
 	 
	 	 	Name:  	Michael Galvis 	 
	 	 	Title:  	President 	 
	 




22











 





EXHIBIT A




OUTLINE AND LOCATION OF PREMISES









A-1









 








EXHIBIT B




EXPENSES AND TAXES




1. Payments.




     1.01 Tenant shall pay Tenant’s Pro Rata Share of the amount, if any, by which Expenses
(defined below) for each calendar year during the Term exceed Expenses for the Base Year (the
“Expense Excess”) and also the amount, if any, by which Taxes (defined below) for each calendar
year during the Term exceed Taxes for the Base Year (the “Tax Excess”). If Expenses or Taxes in any
calendar year decrease below the amount of Expenses or Taxes for the Base Year, Tenant’s Pro Rata
Share of Expenses or Taxes, as the case may be, for that calendar year shall be $0. Landlord shall
provide Tenant with a good faith estimate of the Expense Excess and of the Tax Excess for each
calendar year during the Term. On or before the first day of each month, Tenant shall pay to
Landlord a monthly installment equal to one-twelfth of Tenant’s Pro Rata Share of Landlord’s
estimate of both the Expense Excess and Tax Excess. After its receipt of the revised estimate,
Tenant’s monthly payments shall be based upon the revised estimate. If Landlord does not provide
Tenant with an estimate of the Expense Excess or the Tax Excess by January 1 of a calendar year,
Tenant shall continue to pay monthly installments based on the previous year’s estimate(s) until
Landlord provides Tenant with the new estimate.



     1.02 As soon as is practical following the end of each calendar year, Landlord shall furnish
Tenant with a statement of the actual Expenses and Expense Excess and the actual Taxes and Tax
Excess for the prior calendar year. If the estimated Expense Excess or estimated Tax Excess for the
prior calendar year is more than the actual Expense Excess or actual Tax Excess, as the case may
be, for the prior calendar year, Landlord shall either provide Tenant with a refund or apply any
overpayment by Tenant against Additional Rent due or next becoming due, provided if the Term
expires before the determination of the overpayment, Landlord shall refund any overpayment to
Tenant after first deducting the amount of Rent due. If the estimated Expense Excess or estimated
Tax Excess for the prior calendar year is less than the actual Expense Excess or actual Tax Excess,
as the case may be, for such prior year, Tenant shall pay Landlord, within 30 days after its
receipt of the statement of Expenses or Taxes, any underpayment for the prior calendar year.



2. Expenses.




     2.01 “Expenses” means all costs and expenses incurred in each calendar year in connection
with operating, maintaining, repairing, and managing the Building and the Property. Expenses
include, without limitation: (a) all labor and labor related costs; (b) management fees; (c) the
cost of equipping, staffing and operating an on-site and/or off-site management office for the
Building, provided if the management office services one or more other buildings or properties,
the shared costs and expenses of equipping, staffing and operating such management office(s) shall
be equitably prorated and apportioned between the Building and the other buildings or properties;
(d) accounting costs; (e) the cost of services; (f) rental and purchase cost of parts,




B-1









 







supplies, tools and equipment; (g) insurance premiums and deductibles; (h) electricity, gas and
other utility costs (excluding Electrical Costs); and (i) the amortized cost of capital
improvements (as distinguished from replacement parts or components installed in the ordinary
course of business) made subsequent to the Base Year which are: (1) performed primarily to reduce
current or future operating expense costs, upgrade Building security or otherwise improve the
operating efficiency of the Property; or (2) required to comply with any Laws that are enacted, or
first interpreted to apply to the Property, after the date of this Lease. The cost of capital
improvements shall be amortized by Landlord over the lesser of the Payback Period (defined below)
or the useful life of the capital improvement as reasonably determined by Landlord. “Payback
Period” means the reasonably estimated period of time that it takes for the cost savings resulting
from a capital improvement to equal the total cost of the capital improvement. Landlord, by itself
or through an affiliate, shall have the right to directly perform, provide and be compensated for
any services under this Lease. If Landlord incurs Expenses for the Building or Property together
with one or more other buildings or properties, whether pursuant to a reciprocal easement
agreement, common area agreement or otherwise, the shared costs and expenses shall be equitably
prorated and apportioned between the Building and Property and the other buildings or properties.




     2.02 Expenses shall not include: the cost of capital improvements (except as set forth above);
depreciation; principal payments of mortgage and other non-operating debts of Landlord; the cost of
repairs or other work to the extent Landlord is reimbursed by insurance or condemnation proceeds;
costs in connection with leasing space in the Building, including brokerage commissions; lease
concessions, rental abatements and construction allowances granted to specific tenants; costs
incurred in connection with the sale, financing or refinancing of the Building; fines, interest and
penalties incurred due to the late payment of Taxes or Expenses; organizational expenses associated
with the creation and operation of the entity which constitutes Landlord; or any penalties or
damages that Landlord pays to Tenant under this Lease or to other tenants in the Building under
their respective leases.



     2.03 If at any time during a calendar year the Building is not at least 95% occupied or
Landlord is not supplying services to at least 95% of the total Rentable Square Footage of the
Building, Expenses shall, at Landlord’s option, be determined as if the Building had been 95%
occupied and Landlord had been supplying services to 95% of the Rentable Square Footage of the
Building. If Expenses for a calendar year are determined as provided in the prior sentence,
Expenses for the Base Year shall also be determined in such manner.


3. “Taxes” shall mean: (a) all real property taxes and other assessments on the Building and/or
Property, including, but not limited to, gross receipts taxes, assessments for special improvement
districts and building improvement districts, governmental charges, fees and assessments for
police, fire, traffic mitigation or other governmental service of purported benefit to the
Property, taxes and assessments levied in substitution or supplementation in whole or in part of
any such taxes and assessments and the Property’s share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or similar agreement as to the
Property; (b) all personal property taxes for property that is owned by Landlord and used in
connection with the operation, maintenance and repair of the Property; and (c) all costs and fees
incurred in





B-2









 







connection with seeking reductions in any tax liabilities described in (a) and (b), including,
without limitation, any costs incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income, capital levy, transfer,
capital stock, gift, estate or inheritance tax. If a change in Taxes is obtained for any year of
the Term during which Tenant paid Tenant’s Pro Rata Share of any Tax Excess, then Taxes for that
year will be retroactively adjusted and Landlord shall provide Tenant with a credit, if any, based
on the adjustment. Likewise, if a change is obtained for Taxes for the Base Year, Taxes for the
Base Year shall be restated and the Tax Excess for all subsequent years shall be recomputed.
Tenant shall pay Landlord the amount of Tenant’s Pro Rata Share of any such increase in the Tax
Excess within 30 days after Tenant’s receipt of a statement from Landlord.



4. Audit Rights. Tenant, within 60 days after receiving Landlord’s statement of Expenses, may give
Landlord written notice (“Review Notice”) that Tenant intends to review Landlord’s records of the
Expenses for the calendar year to which the statement applies. Within a reasonable time after
receipt of the Review Notice, Landlord shall make all pertinent records available for inspection
that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a
location other than the management office for the Building, Tenant may either inspect the records
at such other location or pay for the reasonable cost of copying and shipping the records. If
Tenant retains an agent to review Landlord’s records, the agent must be with a CPA firm licensed to
do business in the state where the Property is located and shall not be compensated on a
contingency fee basis. Tenant shall be solely responsible for all costs, expenses and fees incurred
for the audit. Within 90 days after the records are made available to Tenant, Tenant shall have the
right to give Landlord written notice (an “Objection Notice”) stating in reasonable detail any
objection to Landlord’s statement of Expenses for that year. If Tenant fails to give Landlord an
Objection Notice within the 90 day period or fails to provide Landlord with a Review Notice within
the 60 day period described above, Tenant shall be deemed to have approved Landlord’s statement of
Expenses and shall be barred from raising any claims regarding the Expenses for that year. The
records obtained by Tenant shall be treated as confidential. In no event shall Tenant be permitted
to examine Landlord’s records or to dispute any statement of Expenses unless Tenant has paid and
continues to pay all Rent when due.





B-3












 





EXHIBIT C




WORK LETTER





	1.	 	Landlord shall perform improvements to the Premises in accordance with the work list
attached hereto as Attachment #1 (the “Worklist”), so long as no default shall occur
under the Lease. The improvements to be performed by Landlord in accordance with the
Worklist are hereinafter referred to as the “Landlord Work.” Landlord shall enter into a
direct contract for the Landlord Work with a general contractor selected by Landlord. In
addition, Landlord shall have the right to select and approve of any subcontractors used in
connection with the Landlord Work.
	 
	2.	 	If Tenant shall request any changes to Landlord Work (“Change Orders”) that are
approved by Landlord, Landlord shall have any necessary revisions to the plans for the
Landlord Work prepared at Tenant’s sole cost and expense, and Tenant shall reimburse
Landlord upon demand for the cost of preparing any such revisions. In addition,
Landlord shall notify Tenant in writing of Landlord’s estimate of the cost of completing
the work set forth in the Change Orders (“Excess Cost”). Landlord reserves the right to
require Tenant to pay to Landlord the amount of the estimated Excess Cost before
continuing with the Landlord Work, and any delay in the completion of the Landlord
Work due to a delay by Tenant in making such payment shall be deemed a Tenant Delay
for the purposes of the Lease. If Tenant fails to pay the amount so demanded by Landlord
within 2 Business Days after such demand, Landlord reserves the right to withdraw its
approval of the applicable Change Order and to proceed with Landlord Work without
regard to any changes encompassed by such Change Order. Furthermore, if upon
completion of Landlord Work, Landlord determines that the Excess Cost in connection
with Change Orders exceeds the amount of Excess Cost theretofore paid by Tenant to
Landlord, Tenant shall, within 2 Business Days after Landlord’s demand, pay the balance
of the Excess Cost to Landlord. Any delay in the completion of Landlord Work caused
by Change Orders shall be deemed a Tenant Delay pursuant to the Lease.
	 
	3.	 	This Work Letter shall not be deemed applicable to any additional space added to the
original Premises at any time or from time to time, whether by any options under the
Lease or otherwise, or to any portion of the original Premises or any additions to the
Premises in the event of a renewal or extension of the original Term, whether by any
options under the Lease or otherwise, unless expressly so provided in the Lease or any
written amendment or supplement to the Lease. All capitalized terms used in this Work
Letter but not defined herein shall have the same meanings ascribed to such terms in the
Lease.





C-1









 





ATTACHMENT #1




WORKLIST



1. Repaint the portions of the Premises that are currently painted.



2. Re-carpet the Premises using building standard carpet.





C-2









 








EXHIBIT D




COMMENCEMENT LETTER

(EXAMPLE)





	Date	 	 


	 
	Tenant	 	 


	 
	Address	 	 


	 
	 	 	 








	Re: 	 	Commencement Letter with respect to that certain Lease dated as of the _____ day of
                    , ___, by and between YPI Park Central Properties, L.P., a Delaware
limited partnership, as Landlord, and                                                             , a
                                                            , as Tenant, for _____
rentable square feet on the
_____ floor of the Building located at                                                             
                    .






	Dear	 	                                         :





     In accordance with the terms and conditions of the above referenced Lease, Tenant accepts
possession of the Premises and agrees:




	 	1.	 	The Commencement Date of the Lease is                                         ;
	 
	 	2.	 	The Termination Date of the Lease is                                                             .





     Please acknowledge your acceptance of possession and agreement to the terms set forth above
by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2
fully executed counterparts to my attention.



	 	 	 	 	 
	Sincerely,
 	 	 
	 	 	 
	
 	 	 
	Authorized Signatory 	 	 
	 
	Agreed and Accepted:
 	 	 
	 	 	 



	 	 	 	 	 
	Tenant:	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 	Date:  	 	 	 




D-1









 








EXHIBIT E




BUILDING RULES AND REGULATIONS





     The following rules and regulations shall apply, where applicable, to the Premises, the
Building, the parking facilities (if any), the Property and the appurtenances. In the event of a
conflict between the following rules and regulations and the remainder of the terms of the Lease,
the remainder of the terms of the Lease shall control. Capitalized terms have the same meaning as
defined in the Lease.




	1.	 	Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to
and from the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or
thrown in those areas. At no time shall Tenant permit Tenant’s employees to loiter in
Common Areas or elsewhere about the Building or Property.
	 
	2.	 	Plumbing fixtures and appliances shall be used only for the purposes for which designed
and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in
the fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its
agents, employees or invitees shall be paid for by Tenant and Landlord shall not be
responsible for the damage.
	 
	3.	 	No signs, advertisements or notices shall be painted or affixed to windows, doors or other
parts of the Building, except those of such color, size, style and in such places as are
first
approved in writing by Landlord. All tenant identification and suite numbers at the
entrance to the Premises shall be installed by Landlord, at Tenant’s cost and expense,
using the standard graphics for the Building. Except in connection with the hanging of
lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into
any part of the Premises or Building except by the Building maintenance personnel
without Landlord’s prior approval, which approval shall not be unreasonably withheld.
	 
	4.	 	Landlord may provide and maintain in the first floor (main lobby) of the Building an
alphabetical directory board or other directory device listing tenants and no other
directory shall be permitted unless previously consented to by Landlord in writing.
	 
	5.	 	Tenant shall not place any lock(s) on any door in the Premises or Building without
Landlord’s prior written consent, which consent shall not be unreasonably withheld, and
Landlord shall have the right at all times to retain and use keys or other access codes or
devices to all locks within and into the Premises. A reasonable number of keys to the
locks on the entry doors in the Premises shall be furnished by Landlord to Tenant at
Tenant’s cost and Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of the Lease.
	 
	6.	 	All contractors, contractor’s representatives and installation technicians performing work
in the Building shall be subject to Landlord’s prior approval, which approval shall not be





E-1









 






	 	 	unreasonably withheld, and shall be required to comply with Landlord’s standard rules,
regulations, policies and procedures, which may be revised from time to time.
	 
	7.	 	Movement in or out of the Building of furniture or office equipment, or dispatch or
receipt by Tenant of merchandise or materials requiring the use of elevators, stairways,
lobby areas or loading dock areas, shall be restricted to hours reasonably designated by
Landlord. Tenant shall obtain Landlord’s prior approval by providing a detailed listing of
the activity, which approval shall not be unreasonably withheld. If approved by Landlord,
the activity shall be under the supervision of Landlord and performed in the manner
required by Landlord. Tenant shall assume all risk for damage to articles moved and
injury to any persons resulting from the activity. If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or in connection with
the activity, Tenant shall be solely liable for any resulting damage, loss or injury.
	 
	8.	 	Landlord shall have the right to approve the weight, size, or location of heavy equipment
or articles in and about the Premises, which approval shall not be unreasonably withheld.
Damage to the Building by the installation, maintenance, operation, existence or removal
of Tenant’s Property shall be repaired at Tenant’s sole expense.
	 
	9.	 	Corridor doors, when not in use, shall be kept closed.
	 
	10.	 	Tenant shall not: (1) make or permit any improper, objectionable or unpleasant noises or
odors in the Building, or otherwise interfere in any way with other tenants or persons
having business with them; (2) solicit business or distribute or cause to be distributed, in
any portion of the Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in Landlord’s sole opinion,
constitute a nuisance.
	 
	11.	 	No animals, except those assisting handicapped persons, shall be brought into the
Building or kept in or about the Premises.
	 
	12.	 	No inflammable, explosive or dangerous fluids or substances shall be used or kept by
Tenant in the Premises, Building or about the Property, except for those substances as are
typically found in similar premises used for general office purposes and are being used by
Tenant in a safe manner and in accordance with all applicable Laws. Tenant shall not,
without Landlord’s prior written consent, use, store, install, spill, remove, release or
dispose of, within or about the Premises or any other portion of the Property, any
asbestos-containing materials or any solid, liquid or gaseous material now
or
subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section
9601 et seq. or any other applicable environmental Law which may now or later be in
effect. Tenant shall comply with all Laws pertaining to and governing the use of these
materials by Tenant and shall remain solely liable for the costs of abatement and removal.
	 
	13.	 	Tenant shall not use or occupy the Premises in any manner or for any purpose which
might injure the reputation or impair the present or future value of the Premises or the





E-2









 






	 	 	Building. Tenant shall not use, or permit any part of the Premises to be used for lodging,
sleeping or for any illegal purpose.
	 
	14.	 	Tenant shall not take any action which would violate Landlord’s labor contracts or which
would cause a work stoppage, picketing, labor disruption or dispute or interfere with
Landlord’s or any other tenant’s or occupant’s business or with the rights and privileges of
any person lawfully in the Building (“Labor Disruption”). Tenant shall take the actions
necessary to resolve the Labor Disruption, and shall have pickets removed and, at the
request of Landlord, immediately terminate any work in the Premises that gave rise to the
Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant
shall have no claim for damages against Landlord or any of the Landlord Related Parties
nor shall the Commencement Date of the Term be extended as a result of the above
actions.
	 
	15.	 	Tenant shall not install, operate or maintain in the Premises or in any other area of the
Building, electrical equipment that would overload the electrical system beyond its
capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant
shall not furnish cooling or heating to the Premises, including, without limitation, the use
of electric or gas heating devices, without Landlord’s prior written consent. Tenant shall
not use more than its proportionate share of telephone lines and other telecommunication
facilities available to service the Building.
	 
	16.	 	Tenant shall not operate or permit to be operated a coin or token operated vending
machine or similar device (including, without limitation, telephones, lockers, toilets,
scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes
and other goods), except for machines for the exclusive use of Tenant’s employees and
invitees.
	 
	17.	 	Bicycles and other vehicles are not permitted inside the Building or on the walkways
outside the Building, except in areas designated by Landlord.
	 
	18.	 	Landlord may from time to time adopt systems and procedures for the security and safety
of the Building and Property, its occupants, entry, use and contents. Tenant, its agents,
employees, contractors, guests and invitees shall comply with Landlord’s systems and
procedures.
	 
	19.	 	Landlord shall have the right to prohibit the use of the name of the Building or any other
publicity by Tenant that in Landlord’s sole opinion may impair the reputation of the
Building or its desirability. Upon written notice from Landlord, Tenant shall refrain from
and discontinue such publicity immediately.
	 
	20.	 	Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or
permit smoking in the Common Areas, unless a portion of the Common Areas have been
declared a designated smoking area by Landlord, nor shall the above parties allow smoke
from the Premises to emanate into the Common Areas or any other part of the Building.





E-3









 






	 	 	Landlord shall have the right to designate the Building (including the Premises) as a
non-smoking building.
	 
	21.	 	Landlord shall have the right to designate and approve standard window coverings for the
Premises and to establish rules to assure that the Building presents a uniform exterior
appearance. Tenant shall ensure, to the extent reasonably practicable, that window
coverings are closed on windows in the Premises while they are exposed to the direct rays
of the sun.
	 
	22.	 	Deliveries to and from the Premises shall be made only at the times in the areas and
through the entrances and exits reasonably designated by Landlord. Tenant shall not
make deliveries to or from the Premises in a manner that might interfere with the use by
any other tenant of its premises or of the Common Areas, any pedestrian use, or any use
which is inconsistent with good business practice.
	 
	23.	 	The work of cleaning personnel shall not be hindered by Tenant after 5:30 p.m., and
cleaning work may be done at any time when the offices are vacant. Windows, doors and
fixtures may be cleaned at any time. Tenant shall provide adequate waste and rubbish
receptacles to prevent unreasonable hardship to the cleaning service.






E-4









 








EXHIBIT F




ADDITIONAL PROVISIONS





	I.	 	PARKING.






	 	A.	 	Landlord shall make available to Tenant, provided Tenant is not in default
under
this Lease, throughout the Term Seven (7) parking permits (the “Permits”) to
allow access to the parking garage located at the Property (the “Building
Garage”) which is used in connection with the operation of the Building. Of said
Seven (7) Permits granted to Tenant, each shall be standard unreserved. In
consideration therefor, Tenant will pay to Landlord as Additional Rent and with
each installment of Base Rent due under the Lease, the Parking Charge
(hereinafter defined) hereinafter provided. The Permits shall only be valid
between the hours of 5:00 a.m. and 11:00 p.m. daily and between the hours of
5:00 a.m. and 11:00 p.m. on Saturdays, Sundays, and Holidays. Except with
respect to any limited reserved parking that Landlord may establish and for which
Landlord may increase the Parking Charge, all tenant parking in the Building
Garage will be on a non-reserved, first-come, first-serve basis. Landlord may
elect to establish parking zones in the Building Garage and if Landlord so elects,
the Permits may be issued to specifically identified vehicles and the Parking
Charge may relate to specified zone(s) as determined by Landlord. If Landlord
implements a system whereby only specifically identified vehicles are granted
Permits, other vehicles shall not be permitted to use the Building Garage without
the Landlord’s prior written consent. Landlord reserves the right upon written
notice posted in the Building Garage, to change the parking system for the
Building Garage to provide special requirements for weekend, holiday or after
hours usage and to temporarily close the Building Garage, or portions thereof to
make such repairs or alterations as Landlord may deem appropriate.
	 
	 	B.	 	In consideration for the Permits, Tenant covenants and agrees to pay to
Landlord
during the Term, as Additional Rent thereunder, a parking charge (the “Parking
Charge”) equal to the sum of $0.00 per month for each Permit issued to Tenant,
and such Parking Charge shall be paid monthly in advance as hereinabove
provided. A pro rata portion of such Parking Charge shall be payable for the
(i) first partial calendar month of the Lease Term in the event the Commencement
Date occurs on a date other than the first day of a calendar month, and (ii) for the
last partial calendar month of the Lease Term in the event the term hereof expires
on a date other than the last day of a calendar month. Tenant’s obligation to pay
the Parking Charge shall be considered an obligation to pay Rent for all purposes
thereunder and shall be secured in like manner as is Tenant’s obligation to pay
Rent. Default in the payment of such Parking Charge shall be deemed to be a
default in the payment of Rent. As additional consideration for the aforesaid
Permits, Tenant hereby waives on behalf of itself all claims, whether based on





F-1









 






	 	 	 	negligence or other grounds, against Landlord, its agents and employees arising out of any
loss or damage to automobiles or other property while located in the Building Garage, or
arising out of any personal injuries sustained in connection with the use of said Building
Garage. Notwithstanding anything in this Section of the Lease to the contrary, so long as
Tenant is not in Default under this Lease, Tenant shall be entitled to an abatement of
Parking Charges for the Permits in the amount of $0.00 per month for the full Term of the
Lease, beginning with the Commencement Date (the “Parking Charge Abatement Period”). The
total amount of Parking Charges for the Permits abated during the Parking Charge Abatement
Period shall equal $0.00 (the “Abated Parking Charges”). If Tenant Defaults at any time
during the Term, and any extension thereof, and Tenant fails to cure such Default within
any applicable cure period under the Lease, all Abated Parking Charges shall immediately
become due and payable, and all future rights of Tenant to the Abated Parking Charges shall
be null and void and of no further force or effect. The payment by Tenant of the Abated
Parking Charges in the event of a Default shall not limit or affect any of Landlord’s other
rights, pursuant to this Lease or at law or in equity. During the Parking Charge Abatement
Period, only Parking Charges for the Permits shall be abated, and all Base Rent, Additional
Rent and other costs and charges specified in this Lease shall remain as due and payable
pursuant to the provisions of this Lease.
	 
	 	C.	 	The failure to timely pay the Parking Charge specified above, or to comply with the rules
and regulations governing the use of the Building Garage, including but not limited to the
rules establishing time limits on the use of said Permits, shall entitle Landlord, in
addition to any other remedies provided hereunder, to terminate the Permits and tow any
vehicles which are in violation of said rules and regulations from the Building Garage at the
sole cost and expense of Tenant and without liability for damages resulting therefrom.






F-2