Exhibit 10.33


INDUSTRIAL LEASE


1. BASIC PROVISIONS


	
  1.1

  	
  Date:

  	
  September 24, 1999

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Landlord:

  	
  HARDY COMMERCE CENTER, L.L.C., an

  
	
   

  	
   

  	
  Arizona limited liability company

  
	
   

  	
   

  	
   

  
	
  1.3

  	
  Landlord’s Address:

  	
  Hardy Commerce Center, L.L.C.

  
	
   

  	
   

  	
  c/o Victoria Properties, Inc.

  
	
   

  	
   

  	
  549 South 48th Street, Suite 108

  
	
   

  	
   

  	
  Tempe, Arizona 85281

  
	
   

  	
   

  	
  Attention:  Ken
  Matheson

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mark Dioguardi, Esq.

  
	
   

  	
   

  	
  Tiffany & Bosco, P.A.

  
	
   

  	
   

  	
  1850 N. Central, Suite 500

  
	
   

  	
   

  	
  Phoenix, Arizona 85004

  
	
   

  	
   

  	
   

  
	
  1.4

  	
  Tenant:

  	
  Prism Arizona Operations, LLC, a Delaware limited

  
	
   

  	
   

  	
  liability company

  
	
   

  	
   

  	
   

  
	
  1.5

  	
  Tenant’s Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)           Prior
  to Commencement

  	
  11 Beach Street. 2nd Floor

  
	
   

  	
                  Date:

  	
  New York, New York 10013

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)           Subsequent
  to

  	
   

  
	
   

  	
                  Commencement
  Date:

  	
  Desert Vista Commerce Center

  
	
   

  	
   

  	
  7810-7890 South Hardy Drive

  
	
   

  	
   

  	
  Tempe, Arizona 85284

  
	
   

  	
   

  	
   

  
	
  1.6

  	
  Property: 

  	
  The approximate 98,464
  square foot industrial/office facility located at 7810-7890 South Hardy Drive
  in Tempe, Maricopa County, Arizona, depicted on the Site Plan attached hereto
  as Exhibit “A” and incorporated herein by this reference, together
  with the buildings now or hereafter situated thereon, the landscaping,
  parking facilities and all other improvements and appurtenances thereto.

  
	
   

  	
   

  	
   

  
	
  1.7

  	
  Building:

  	
  That certain
  industrial/office building known as Desert Vista Commerce Center (Building B)
  located at 7850 South Hardy Drive, Suite to be established, Tempe, Maricopa
  County, Arizona 85284, and situated on the Property.

  
	
   

  	
   

  	
   

  
	
  1.8

  	
  Leased Premises:

  	
  Approximately 5,067
  rentable square feet of space located on the 1st floor of the Building and
  commonly known as Suite to be established, as outlined on the Floor Plan
  attached hereto as Exhibit “B”.

  
	
   

  	
   

  	
   

  
	
  1.9

  	
  Permitted Use:

  	
  Telecommunication transmissions, switch operation

  
	
   

  	
   

  	
  and general office administration.

  



 



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  1.10

  	
  Lease Term:

  	
  Ten (10) years

  
	
   

  	
   

  	
   

  
	
  1.11

  	
  Scheduled Commencement Date

  Expiration Date:

  	
  Scheduled Commencement Dale is six (6) full months
  after full execution of the lease. Expiration Date to be One hundred twenty
  (120) full months after the Commencement Date.

  
	
   

  	
   

  	
   

  
	
  1.12

  	
  Annual Basic Rent:

  	
  Year

  	
   

  	
  Rent Detail
  Annual (PSF)*

  	
   

  
	
   

  	
   

  	
  1

  	
   

  	
  $10.20 NNN

  	
   

  
	
   

  	
   

  	
  2-3

  	
   

  	
  $10.80 NNN

  	
   

  
	
   

  	
   

  	
  4

  	
   

  	
  $11.40 NNN

  	
   

  
	
   

  	
   

  	
  5-6

  	
   

  	
  $11.76 NNN

  	
   

  
	
   

  	
   

  	
  7-8

  	
   

  	
  $12.12 NNN

  	
   

  
	
   

  	
   

  	
  9-10

  	
   

  	
  $12.72 NNN

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  * Excludes applicable rental tax

  
	
   

  	
   

  	
   

  
	
  1.13

  	
  Security Deposit:

  	
  Subject to review of financials, security shall
  waived.

  
	
   

  	
   

  	
   

  
	
  1.14

  	
  Building Hours:

  	
  24 hours - seven (7) days a week

  
	
   

  	
   

  	
   

  
	
  1.15

  	
  Parking Spaces:

  	
  Up to eight (8) unreserved spaces and zero (0)

  
	
   

  	
   

  	
  covered reserved spaces.

  
	
   

  	
   

  	
   

  
	
  1.16

  	
  Parking Charge:

  	
  N/A

  
	
   

  	
   

  	
   

  
	
  1.17

  	
  Guarantors:

  	
  Prism Communication Services, Inc., a

  
	
   

  	
   

  	
  Corporation

  
	
   

  	
   

  	
   

  
	
  1.18

  	
  Broker:

  	
  Insignia/ESG 

  Staubach

  
	
   

  	
   

  	
   

  
	
  1.19

  	
  Exhibits:

  	
  A = Site Plan 

  B = Floor Plan 

  C = Memorandum of Commencement Date 

  D = Reserved Covered Parking License 

  E = Work Letter 

  F = Rules and Regulations 

  G = Guaranty of Lease

  
	
   

  	
   

  	
   

  
	
  1.20

  	
  Riders:

  	
   

  



 


2. LEASED PREMISES;
ADJUSTMENTS


2.1     Leased
Premises. Landlord hereby leases to Tenant, and Tenant hereby leases and
accepts from Landlord, the Leased Premises, upon the terms and conditions set
forth in this Lease and any modifications, supplements or addenda hereto (the “Lease”),
including the Basic Provisions of Article 1 which are incorporated
herein by this reference, together with the nonexclusive right to use, in
common with Landlord and others, the Building Common Areas (defined below). For
the purposes of this Lease, the term “Building Common Areas” means
common hallways, corridors, walkways and footpaths, foyers and lobbies, parking
lots, driveways, landscaped areas, and such other areas within or adjacent to
the Building which are subject to or are designed or intended solely for the
common enjoyment, use and/or benefits of the tenants of the Property.


2.2.     Adjustments.
The Annual Basic Rent at the Commencement Date (as hereinafter defined) is
based on the Leased Premises containing the rentable square footage set forth
in Article



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1.8 above. If the actual rentable
square footage of the Leased Premises is more or less than the square footage
set forth in Article 1.8 above (to be computed, at Landlord’s or Tenant’s
option, after completion of the Leased Premises, by an architect designated by
Landlord and licensed to practice in the State of Arizona), the Annual Basic
Rent shall be increased or decreased in accordance with the rental rate set
forth in Article 1.12 above. Tenant and Landlord agree that for purposes
of this lease the rentable square feet is as defined in Article 1.8 or
adjusted per Article 2.2. For the purpose of this Lease, Landlord and
Tenant agree that the RU ratio shall be 1.0455.


3. LEASE TERM,
COMMENCEMENT DATE


3.1     Lease
Term. The Lease Term shall begin on the Commencement Date and shall be for
the period set forth in Article 1.10 above, plus any period of less than
one (1) month between the Commencement Date and the first day of the next
succeeding calendar month, unless sooner terminated in accordance with the
further provisions of this Lease.


3.2     Commencement
Date. The Commencement Date shall mean the earlier of (a) the date of
substantial completion of Tenant’s improvements; i.e., Tenant has completed
construction of the Tenant’s improvements in accordance with Tenant’s final
plans and specification and all permits for lawful occupancy issued or (b) six
(6) months after the landlord made the leased Premises available to Tenant for
construction. Landlord shall make the premises available to the Tenant for
Construction of the Tenant Improvements within five (5) days of full execution
of the lease (the “Scheduled Date”).


3.3     Memorandum
of Commencement Date. Landlord and Tenant shall, within ten (10) days after
the Commencement Date, execute a declaration in the form of Exhibit “C”
attached hereto specifying the Commencement Date.


3.4     Delay
in Commencement Date. In the event Landlord shall be unable, for any
reason, to deliver possession of the Leased Premises to Tenant on the Scheduled
Date, Landlord shall not be liable for any loss or damage occasioned thereby,
nor shall such inability affect the validity of this Lease or the obligations
of Tenant. In such event, Tenant shall not be obligated to pay Annual Basic
Rent or Additional Rent until the Commencement Date. In the event Landlord
shall not have delivered possession of the Leased Premises to Tenant as of the
Scheduled Date then the Commencement Date as defined in Article 3.2 will be
extended by an equal number of days that the Leased Premises were delayed in
being available to Tenant up to a maximum of Thirty (30) days, and if such
failure to deliver possession was (a) caused solely by the fault or neglect of
Landlord, and (b) not caused by any fault or neglect of Tenant or due to
additional time required to plan for and install other work for Tenant beyond
the amount of time which would have been required if only building standard
improvements had been installed, then, as its sole and exclusive remedy for
Landlord’s failure to deliver possession of the Leased Premises in a timely
manner, Tenant shall have the right to terminate this Lease by delivering written
notice of termination to Landlord at any time within thirty (30) days after the
expiration of such thirty (30) day period. Such termination shall be effective
thirty (30) days after receipt by Landlord of Tenant’s notice of termination
unless Landlord shall, prior to the expiration of such thirty (30) day period,
deliver possession of the Leased Premises to Tenant. In addition, if the
Commencement Date does not occur within twelve (12) months after the Date of
this Lease as set forth in Article 1.1, other than as a result of the
breach or default by Landlord. Landlord may elect, by delivering written notice
to Tenant, to terminate this Lease, which termination shall be effective upon
delivery of written notice of such termination by Landlord to Tenant. Upon a
termination of this Lease pursuant to the provisions of this Article 3.4,
the parties shall have no further obligations or liabilities, to the other and
Landlord shall promptly return any monies previously deposited or paid by
Tenant.


4. SECURITY DEPOSIT


Tenant shall pay to
Landlord, upon the execution of this Lease, the Security Deposit set forth in Article
1.13 above as security for the performance by Tenant of its obligations
under this Lease, which amount shall be returned to Tenant after the expiration
or earlier termination of this Lease, provided that Tenant shall have fully
performed all of its obligations contained in this Lease. The



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Security Deposit, at the election of Landlord, may be
retained by Landlord as and for its full damages or may be applied in reduction
of any loss and/or damage sustained by Landlord by reason of the occurrence of
any breach, nonperformance or default by Tenant under this Lease without the
waiver of any other right or remedy available to Landlord at law, in equity or
under the terms of this Lease. If any portion of the Security Deposit is so
used or applied, Tenant shall, within five (5) days alter written notice from
Landlord, deposit with Landlord immediately available funds in an amount
sufficient to restore the Security Deposit to its original amount, and Tenant’s
failure to do so shall be a breach of this Lease. Tenant acknowledges and
agrees that in the event Tenant shall file a voluntary petition pursuant to the
Bankruptcy Code or any successor thereto, or if an involuntary petition is
filed against Tenant pursuant to the Bankruptcy Code or any successor thereto,
then Landlord may apply the Security Deposit towards those obligations of
Tenant to Landlord which accrued prior to the filing of such petition. Tenant
acknowledges further that the Security Deposit may be commingled with Landlord’s
other funds and that Landlord shall be entitled to retain any interest earnings
thereon. In the event of termination of Landlord’s interest in this Lease,
Landlord shall transfer the Security Deposit to Landlord’s successor in
interest, whereupon Landlord shall be released from liability by Tenant for the
return of such deposit or the accounting therefore.


5. RENT; RENT TAX;
ADDITIONAL RENT


5.1     Payment
of Rent. Tenant shall pay to Landlord the Annual Basic Rent set forth in Article
1.12 above, subject to adjustment as provided herein. The Annual Basic Rent
shall be paid in equal monthly installments, on or before the first day of each
and every calendar month during the Lease Term, in advance, without notice or
demand and without abatement, deduction or set-off. If the Commencement Date is
other than the first day of a calendar month, the payment for the partial month
following the Commencement Date shall be prorated and shall be payable on the
first day of the first full calendar month of the Lease Term. The Annual Basic
Rent for the first full month of the Lease Term shall be paid upon the
execution of this Lease. All payments requiring proration shall be prorated on
the basis of a thirty (30) day month. In addition, all payments to be made
under this Lease shall be paid in lawful money of the United States of America
to Landlord or its agent at the address set forth in Article 1.3 above,
or to such other person or at such other place as Landlord may from time to
time designate in writing.


5.2     Rent
Tax. In addition to the Annual Basic Rent and Additional Rent, Tenant shall
pay to Landlord, together with the monthly installments of Annual Basic Rent
and payments of Additional Rent, an amount equal to any governmental taxes,
including, without limitation, any sales, rental, occupancy, excise, use or
transactional privilege taxes assessed or levied upon Landlord with respect to
any and all amounts paid by Tenant to Landlord hereunder, as well as all taxes
assessed or imposed upon Landlord’s gross receipts or gross income from leasing
the Leased Premises to Tenant, including, without limitation, transaction
privilege taxes, education excise taxes, any tax now or hereafter imposed by
the City of Tempe, the State of Arizona, any other governmental body, and any
taxes assessed or imposed in lieu of or in substitution of any of the foregoing
taxes. Such taxes shall not, however, include any franchise, gift, estate,
inheritance, conveyance, transfer or net income tax assessed against Landlord.


5.3     Additional
Rent. In addition to Annual Basic Rent, all other amounts to be paid by
Tenant to Landlord pursuant to this Lease (including amounts to be paid by
Tenant pursuant to Article 6 below [and
parking charges to be paid by Tenant pursuant to Exhibit “D”],
if any, shall be deemed to be Additional Rent, whether or not designated as
such, and shall be due and payable within five (5) days after receipt by Tenant
of Landlord’s statement or together with the next succeeding installment of
Basic Rent, whichever shall first occur. Landlord shall have the same remedies
for the failure to pay Additional Rent as for the nonpayment of Basic Rent.


6. OPERATING COSTS


6.1     Tenant’s
Obligation for Costs. The Annual Basic Rent does not include amounts
attributable to Tenant’s share of Taxes (defined below) or the cost of the use,
management, repair, service, insurance, condition, operation and maintenance of
the Building and the Property. Tenant shall pay to Landlord, in addition to the
Annual Basic Rent, in accordance wilh the further provisions



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of this Article 6, an amount per rentable square foot
of the Leased Premises equal to the total Operating Costs (as hereinafter
defined) multiplied by Tenant’s Pro Rata Share set forth in Article 6.7.


6.2     Landlord’s
Estimate. Landlord shall furnish Tenant an estimate of Tenant’s Pro Rata
Share of the Operating Costs for each calendar year commencing with the
Commencement Date. In addition, Landlord may, from time to time, furnish Tenant
a revised estimate of Operating Costs should Landlord anticipate any increase
in Operating Costs from that set forth in a prior estimate. Commencing with the
first month to which an estimate applies, Tenant shall pay, in addition to the
monthly installments of Annual Basic Rent, an amount equal to one-twelfth
(1/12th) of Landlord’s estimate of Tenant’s Pro Rata Share of the Property’s
annual Operating Costs. Within sixty (60) days after the expiration of each
calendar year or such longer period of time as may be necessary to compile such
statement, Landlord shall deliver to Tenant a statement of the actual Operating
Costs for such calendar year. If the actual Operating Costs for such calendar
year are more or less than the estimated Operating Costs, a proper adjustment
shall be made. Any excess amounts paid by Tenant shall be refunded to Tenant
with such statement or, at Landlord’s option, may be applied to any amounts
then payable by Tenant to Landlord or to the next maturing monthly installment
of Annual Basic Rent of Additional Rent. Any deficiency between the estimated
and actual Pro Rata Share of Operating Costs shall be paid by Tenant to
Landlord concurrently with the monthly installment of Annual Basic Rent next
due. Any amount owing for a fractional calendar year in the first or final year
of the Lease Term shall be prorated.


6.3     Operating
Costs - Defined. Tenant shall pay to Landlord during the term hereof, in
additional to the annual basic rent Tenant’s Share (as specified in Article
6.7) of all Operating Costs, as hereinafter defined, during each calendar
year of the term of this Lease, in accordance with the following provisions:


(a)     For
the purposes of this Lease, “Operating Costs” shall mean all costs and expenses
accrued, paid or incurred by Landlord, or on Landlord’s behalf, in accordance
with generally accepted accounting principles, in respect of the use,
management, repair, service, insurance, condition, operation and maintenance of
the Building and the Property, including but not limited to the following:


(i)          The
operation, repair and maintenance, in neat, clean, good order and condition, of
the following:


(aa)     The
Common Areas, including parking areas, loading and unloading areas, trash
areas, roadways, sidewalks, walkways, parkways, driveways, landscaped areas,
striping, bumpers, irrigation systems, Common Area lighting facilities, fences
and gates, elevators and roof,


(bb)     Exterior
signs and any tenant directories.


(cc)     Fire
detection and sprinkler systems.


(ii)         The
cost of water, gas, electricity, telephone and any other utilities required to
service the Common Areas.


(iii)        Trash
disposal, property management fees, security services and the costs of any
environmental inspections.


(iv)       Reserves
set aside for maintenance and repair of Common Areas.


(v)        Taxes
(as defined in Article 6.5) to be paid by Landlord for the Building and
the Common Areas under Article 6 hereof.


(vi)       The
cost of the premiums for the insurance policies maintained by Landlord under Article
9 hereof.


(vii)      Any
deductible portion of an insured loss concerning the Building or the Common
Areas.


(viii)     Any
other services to be provided by Landlord that are stated elsewhere in this
Lease to be a Common Area Operating Expense.


(b)     Any
Operating Costs and Taxes that are specifically attributable to the Building or
to any other building in the Property or to the operation, repair and
maintenance thereof, shall be allocated entirely to the Building or to such
other building. However, any Operating Costs



 5
 









and Taxes that are not specifically attributable to
the Building or to any other buildings or to the operation, repair and
maintenance thereof, shall be equitably allocated by Landlord to all buildings
in the Property.


(c)     The
inclusion of the improvements, facilities and services set forth in Article
6.3(a) shall not be deemed to impose an obligation upon Landlord to either
have said improvements or facilities or to provide those services unless the
Project already has the same, Landlord already provides the services, or
Landlord has agreed elsewhere in this Lease to provide the same or some of
them.


6.4     Operating
Costs - Exclusions. Excluded from Operating Costs shall be the following:
(a) depreciation, except to the extent expressly included pursuant to Article
6.3 above; (b) interest on and amortization of debts, except to the extent
expressly included pursuant to Article 6.3 above; (c) leasehold
improvements, including redecorating made for tenants of the Building; (d) brokerage
commissions and advertising expenses for procuring tenants for the Building or
the Property; (e) refinancing costs; (f) the cost of any repair, replacement or
addition which would be required to be capitalized under general accepted
accounting principles, except to the extent expressly included pursuant to Article
6.3 above; and (g) the cost of any item included in Operating Costs under Article
6.3 above to the extent that such cost is reimbursed or paid directly by an
insurance company, condemnor, a tenant of the Building or any other party.


6.5     Taxes
- Defined. For the purposes of this Lease, “Taxes” shall mean and
include all real property taxes general and special assessments, assessments
under any covenants, conditions and restrictions encumbering the Property,
foreseen as well as unforeseen, which are levied or assessed upon or with
respect to the Property, any improvements, fixtures, equipment and other
property of Landlord, located on the Property and used in connection with the
operation of all or any portion of the Property, as well as any tax, surcharge
or assessment which shall be levied or assessed in addition to or in lieu of
such real or personal property taxes and assessments. Taxes shall also include
any expenses incurred by Landlord in contesting the amount or validity of any
real or personal property taxes and assessments. Taxes shall not, however,
include any franchise, gift, estate, inheritance, conveyance, transfer or
income tax assessed against Landlord. The Taxes shall also include any tax,
fee, levy, assessment or charge, or any increase therein, imposed by reason of
events occurring, or changes in Applicable Law taking effect, during the term
of this Lease, including but not limited to a change in the ownership of the Property
or in the improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not contemplated by
the Parties. In calculating Taxes for any calendar year, the Taxes for any real
estate tax year shall be included in the calculation of Taxes for such calendar
year based upon the number of days which such calendar year and tax year have
in common.


6.6     No
Waiver. The failure by Landlord to furnish Tenant with a statement of
Operating Costs shall not constitute a waiver by Landlord of its right to
require Tenant to pay excess Operating Costs per rentable square foot.


6.7     Tenant’s
Pro Rata Share Defined. Tenant’s Pro Rata Share shall mean the ratio that
the gross leasable floor area of the Leased Premises bears to the total gross
leasable floor area of all completed buildings on the Property. Tenants Pro
Rata share is defined as 5.15%.


6.8     Landlord
shall supply a reconciliation statement of the operating expenses for the prior
year on or before April 1 of each year with Tenant having the right to audit
the statement and Landlord to pay the cost of the audit if the audit is in
error by more than five percent (5%).


7. CONDITION, REPAIRS
AND ALTERATIONS


7.1     Alterations
and Improvements. Tenant may place partitions and fixtures and may make
improvements and other alterations to the interior of the Leased Premises at
Tenant’s expense, provided, however, that prior to commencing any such work,
Tenant shall first obtain the written consent of Landlord to the proposed work,
including the plans, specifications, the proposed architect



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and/or contractor(s) for such alterations and/or
improvements and the materials used in connection with such alterations,
including, without limitation, paint, carpeting, wall or window coverings and
the use of carpet glues and other chemicals for installation of such materials,
such consent not to be unreasonably withheld. At least ten (10) days prior to
the commencement of any construction in the Leased Premises, Tenant shall
deliver to Landlord copies of the plans and specifications for the contemplated
work and shall identify the contractor(s) selected by Tenant to perform such
work. Landlord may require that the work be done by Landlord’s own employees,
its construction contractors, or under Landlord’s direction, but at the expense
of Tenant, and Landlord may, as a condition to consenting to such work, require
that Tenant provide security adequate in Landlord’s judgment so that the
improvements or other alterations to the Leased Premises will be completed in a
good, workmanlike and lien free manner. Landlord may also require that any work
done to the interior of the Leased Premises be subject to the supervision of
Landlord or its designee, and Tenant shall pay to Landlord, upon completion of
such work, a supervision fee in an amount equal to zero percent (0%) of the
cost of such work. All such improvements or alterations must conform to and be
in substantial accordance in quality and appearance with the quality and
appearance of improvements in a first-class, Class A, institutional grade
office building. All such improvements shall be the property of Landlord. In
the event Landlord consents to the use by Tenant of its own architect and/or
contractor for the installation of any such alterations or improvements, prior
to the commencement of such work, Tenant shall provide Landlord with evidence
that Tenant’s contractor has procured worker’s compensation, liability and
property damage insurance (naming Landlord as an additional insured) in a form
and in an amount approved by Landlord, and evidence that Tenant’s architect
and/or contractor has procured the necessary permits, certificates and
approvals from the appropriate governmental authorities. Tenant acknowledges
and agrees that any review by Landlord of Tenant’s plans and specifications
and/or right of approval exercised by Landlord with respect to Tenant’s
architect and/or contractor is for Landlord’s benefit only and Landlord shall
not, by virtue of such review or right of approval, be deemed to make any
representation, warranty or acknowledgment to Tenant or to any other person or
entity as to the adequacy of Tenant’s plans and specifications or as to the
ability, capability or reputation of Tenant’s architect and/or contractor.


7.2     Tenant’s
Obligations. Tenant shall, at Tenant’s sole cost and expense, maintain the
Leased Premises in a clean, neat and sanitary condition and shall keep the
Leased Premises and every part thereof in good condition and repair except
where the same is required to be done by Landlord. Tenant shall be responsible
for maintaining, repairing, and replacing (as necessary) the HVAC for the
Premises. Tenant shall be responsible for maintaining the electrical, plumbing,
lighting, and other mechanical systems within the Premises. Tenant shall be
responsible for its own separately metered water, electricity, phone and other
utilities, and Tenant’s trash collection, janitorial service and lighting.
Tenant hereby waives all rights to make repairs at the expense of Landlord as
provided by any law, statute or ordinance now or hereafter in effect. All of
Tenant’s alterations and/or improvements are the property of the Landlord, and
Tenant shall, upon the expiration or earlier termination of the Lease Term,
surrender the Leased Premises, including Tenant’s alterations and/or
improvements, to Landlord, janitorial clean and in the same condition as when
received, ordinary wear and tear and damage by casualty excepted. Except as set
forth in Article 7.3 below, Landlord has no obligation to
construct, remodel, improve, repair, decorate or paint the Leased Premises or
any improvement thereon or part thereof. Tenant shall pay for the cost of all
repairs to the Leased Premises not required to be made by Landlord and shall be
responsible for any redecorating, remodeling, alteration and painting during
the Lease Term as Tenant deems necessary. Tenant shall pay for any repairs to
the Leased Premises, the Building and the Property made necessary by any
negligence or carelessness of Tenant, its employees or invitees.


7.3     Landlord’s
Obligations. Landlord shall (a) make all necessary repairs to the exterior
walls, exterior doors, roofs, windows and corridors of the Building, (b)
maintain, repair and replace (as necessary) the HVAC for the premises, and (c)
keep the Building and the Building Common Areas in a clean, neat and attractive
condition, but Landlord shall not be liable or responsible for breakdowns or
interruptions in service when reasonable efforts are made to restore such
service. The cost of all such maintenance and repair shall be Operating Costs
for which Tenant will be liable for its Pro Rata Share.


7.4     Removal of
Alterations. Upon the expiration or earlier termination of this Lease,



 7
 









Tenant shall remove from the Leased Premises all
movable trade fixtures and other movable personal property, and shall promptly
repair any damage to the Leased Premises, the Building and/or the Property
caused by such removal. All such removal and repair shall be entirely at Tenant’s
sole cost and expense. At any time within fifteen (15) days prior to the
scheduled expiration of the Lease Term or immediately upon any termination of
this Lease, Landlord may require that Tenant remove from the Leased Premises
any alterations, additions, improvements (as to such items only to the extent
specified at the time of approval of such items), trade fixtures, equipment,
shelving, cabinet units or movable furniture (and other personal property)
designated by Landlord to be removed. In such event, Tenant shall, in
accordance with the provisions of Article 7.2 above, complete such
removal (including the repair of any damage caused thereby) entirely at its own
expense and within fifteen (15) days after notice from Landlord. All repairs
required of Tenant pursuant to the provisions of this Article 7.5 shall
be performed in a manner satisfactory to Landlord, and shall include, but not
be limited to, repairing plumbing, electrical wiring and holes in walls,
restoring damaged floor and/or ceiling tiles, repairing any other cosmetic
damage, and cleaning the Leased Premises. Tenant may remove its equipment at
any time.


7.5     No
Abatement. Except as provided herein, Landlord shall have no liability to
Tenant, nor shall Tenant’s covenants and obligations under this Lease,
including without limitation, Tenant’s obligation to pay Annual Basic Rent and
Additional Rent, be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord’s making any repairs or changes which Landlord is required or
permitted to make pursuant to the terms of this Lease or by any other tenant’s
Lease or are required by law to be made in and to any portion of the Leased
Premises, the Building or the Property. Landlord shall, nevertheless, use
reasonable efforts to minimize any interference with Tenant’s business in the
Leased Premises.


8. SERVICES


Landlord does not warrant
that any services which Landlord may supply will be free from interruption.
Tenant acknowledges that any one or more of such services may be suspended by
reason of accident, repairs, inspections, alterations or improvements necessary
to be made, or by strikes or lockouts, or by reason of operation of law, or by
causes beyond the reasonable control of Landlord. Landlord shall not be liable
for and Tenant shall not be entitled to any abatement or reduction of Annual
Basic Rent or Additional Rent by reason of any disruption of the services to be
provided by Landlord pursuant to this Lease.


9. LIABILITY AND
PROPERTY INSURANCE


9.1     Liability
Insurance. Tenant shall, during the Lease Term, keep in full force and
effect, a policy or policies of commercial general liability insurance for
personal injury (including wrongful death) and damage to property covering (a)
any occurrence in the Leased Premises, (b) any act or omission by Tenant, by
any subtenant of Tenant, or by any of their respective invitees, agents,
servants or employees anywhere in the Leased Premises and the Property, (c) the
business operated by Tenant and by any subtenant of Tenant in the Leased
Premises, and (d) the contractual liability of Tenant to Landlord pursuant to
the indemnification provisions of Article 16.1 below, which coverage
shall not be less than One Million and No/100 Dollars ($1,000,000.00) per
occurrence and One Million and No/100 Dollars ($1,000,000.00) combined single
limit. If Landlord shall so request, Tenant shall increase the amount of such
liability insurance to the amount then customary for premises and uses similar
to the Leased Premises and Tenant’s use thereof. The liability policy or
policies shall contain an endorsement naming Landlord, its partners, members or
shareholders (as applicable), Landlord’s lender and management agent and any
persons, firms or corporations designated by Landlord as additional insureds,
and shall provide that the insurance carrier shall have the duty to defend
and/or settle any legal proceeding filed against Landlord seeking damages based
upon bodily injury or property damage liability even if any of the allegations
of such legal proceedings are groundless, false or fraudulent.


9.2     Property
Insurance. Tenant shall, during the Lease Term, keep in full force and
effect, a policy or policies of insurance with “Special Form Coverage,”
including coverage for



 8
 









vandalism or malicious mischief, insuring the Tenant
Improvements as defined on Exhibit “E” hereto and Tenant’s alterations
and/or improvements made pursuant to Article 7.2 above and Tenant’s
stock in trade, furniture, personal property, fixtures, equipment and other
items in the Leased Premises, with coverage in an amount equal to the full
replacement cost thereof.


9.3     Worker’s
Compensation Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of worker’s compensation insurance with
an insurance carrier and in amounts approved by the Industrial Commission of
the State of Arizona.


9.4     Business
Interruption Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of business interruption insurance in an
amount equal to twelve (12) monthly installments of Annual Basic Rent and
Additional Rent payable to Landlord, together with the taxes thereon, insuring
Tenant against losses sustained by Tenant as a result of any cessation or
interruption of Tenant’s business in the Leased Premises for any reason.


9.5     Insurance
Requirements. Each insurance policy and certificate thereof obtained by
Tenant pursuant to this Lease shall contain a clause that the insurer will
provide Landlord, its members, partners and any persons, firms or corporations
designated by Landlord with at least thirty (30) days prior written notice of
any material change, non-renewal or cancellation of the policy. Each such insurance
policy shall be with an insurance company authorized to do business in the
State of Arizona and rated not less than A VIII in the then most current
edition of “Best’s Key Rating Guide”. Certified copies of all insurance
policies evidencing the coverage under each such policy, as well as a certified
copy of the required additional insured endorsement(s) shall be delivered to
Landlord prior to commencement of the Lease Term. Each such policy shall
provide that any loss payable thereunder shall be payable notwithstanding (a)
any act, omission or neglect by Tenant or by any subtenant of Tenant, or (b)
any occupation or use of the Leased Premises or any portion thereof by Tenant
or by any subtenant of Tenant for purposes more hazardous than permitted by the
terms of such policy or policies, or (c) any foreclosure or other action or
proceeding taken by any mortgagee or trustee pursuant to any provision of any
mortgage or deed of trust covering the Leased Premises, the Building or the
Property, or (d) any change in title or ownership of the Property. All
insurance policies required pursuant to this Article 9 shall be written
as primary policies, not contributing with or in excess of any coverage which
Landlord may carry. Tenant shall procure and maintain all policies entirely at
its own expense and shall, at least twenty (20) days prior to the expiration of
such policies, furnish Landlord with certified copies of replacement policies
or renewal certificates for existing policies in conformance with Accord Form
No. 27 (March 1993). Tenant shall not do or permit to be done anything which
shall invalidate the insurance polices maintained by Landlord or the insurance
policies required pursuant to this Article 9 or the coverage thereunder.
If Tenant or any subtenant of Tenant does or permits to be done anything which
shall increase the cost of any insurance policies maintained by Landlord, then
Tenant shall reimburse Landlord for any additional premiums attributable to any
act or omission or operation of Tenant or any subtenant of Tenant causing such
increase in the cost of insurance. Any such amount shall be payable as
Additional Rent within five (5) days after receipt by Tenant of a bill from
Landlord. All policies of insurance (other than the policy of property insurance
described in Article 9.2) shall name both Landlord and Tenant (and/or
such other party or parties as Landlord may require) as insureds and shall be
endorsed to indicate that the coverage provided shall not be invalid due to any
act or omission on the part of Landlord. In addition, the policy of property
insurance described in Article 9.2 shall name Landlord (and Landlord’s
Lender, if Landlord shall so require) as a co-loss payee.


9.6     Co-Insurance.
If on account of the failure of Tenant to comply with the provisions of this Article
9, Landlord is deemed a co-insurer by its insurance carrier, then any loss
or damage which Landlord shall sustain by reason thereof shall be borne by
Tenant, and shall be paid by Tenant within five (5) days after receipt of a
bill therefor.


9.7     Adequacy
of Insurance. Landlord makes no representation or warranty to Tenant that
the amount of insurance to be carried by Tenant under the terms of this Lease
is adequate to fully protect Tenant’s interests. If Tenant believes that the
amount of any such insurance is insufficient, Tenant is encouraged to obtain,
at its sole cost and expense, such additional insurance as Tenant may deem
desirable or adequate. Tenant acknowledges that Landlord shall not, by the fact
of approving, disapproving, waiving, accepting, or obtaining any insurance,
incur any liability for or with respect



 9
 









to the amount of insurance carried, the form or legal
sufficiency of such insurance, the solvency of any insurance companies or the
payment or defense of any lawsuit in connection with such insurance coverage,
and Tenant hereby expressly assumes full responsibility therefor and all
liability, if any, with respect thereto.


9.8     Landlord
Insurance. Landlord shall maintain liability and casualty insurance on the
Building, reimbursable by Tenant as part of operating costs as defined in
Article 6.3, in commercially reasonable amounts.


10. RECONSTRUCTION


10.1    Insured
Damage. In the event the Leased Premises are damaged during the Lease Term
by fire or other perils covered by Landlord’s insurance, Landlord shall:


(a)     Within
a period of one hundred twenty (120) days after the casualty, and provided
there is not then in existence of an Event of Default, commence repair,
reconstruction and restoration of the Leased Premises and prosecute the same
diligently to completion, in which event this Lease shall continue in full
force and effect.


(b)     In
the event of a partial or total destruction of either the Leased Premises, the
Building, or the Property during the last two (2) years of the Lease Term,
Landlord shall have the option to terminate this Lease upon giving written
notice to Tenant within sixty (60) days after such destruction. For purposes of
this Article 10, “partial destruction” shall be deemed destruction
to an extent of at least thirty-three and one-third percent (33.33%) of the
then full replacement cost of the Leased Premises, the Building, or the
Property as of the date of destruction.


(c)     In
the event that Superior Mortgages shall require that insurance proceeds be
applied against the principal balance due on the Superior Mortgage (defined
below), then Landlord may, at Landlord’s option and upon sixty (60) days
written notice to Tenant, elect to terminate this Lease.


10.2    Uninsured
Damage. In the event the Leased Premises, the Building or the Property
shall be damaged as a result of any casualty not covered by Landlord’s
insurance, to any extent whatsoever, Landlord may, subject to Force Majeure,
within one hundred twenty (120) days following the date of the casualty,
commence repair, reconstruction or restoration of the Leased Premises, in which
event this Lease shall continue in full force and effect, or within ninety (90)
days following the casualty elect not to so repair, reconstruct or restore the
Leased Premises, the Building or the Property, as the case may be, in which
event this Lease shall cease and terminate. In either event, Landlord shall
give Tenant written notice of Landlord’s intention within such ninety (90) day
period.


10.3    Reconstruction.
In the event of any reconstruction of the Leased Premises, the Building or the
Property pursuant to this Article 10, such reconstruction shall be in
conformity with all city, county, state and federal ordinances, rules and
regulations then in existence, as the same may be interpreted and enforced.
Notwithstanding that all reconstruction work shall be performed by Landlord’s
contractor unless Landlord shall otherwise agree in writing, Landlord’s
obligation to reconstruct the Leased Premises shall be only to the comparable
condition of the Leased Premises immediately prior to the Commencement Date.
Landlord’s obligation to repair and reconstruct the Leased Premises shall be
limited to the amount of net proceeds of insurance received by Landlord,
subject to reduction pursuant to Article 10.1(c) above. Any extra
expenses incurred by Landlord in the reconstruction of the Leased Premises, the
Building or any other portion of the Property as a result of the violation by
Tenant of the terms and conditions set forth in Article 34 below shall
be borne by Tenant. Tenant, at Tenant’s sole cost and expense, shall be
responsible for the repair and restoration of all items of the Tenant
Improvements or Tenant’s improvements and/or alterations installed pursuant to Article
7.2 and the replacement of Tenant’s stock in trade, trade fixtures,
furniture furnishings and equipment. Tenant shall commence the installation of
fixtures, equipment and merchandise promptly upon delivery to Tenant of
possession of the Leased Premises and shall diligently prosecute such
installation to completion.



 10
 









10.4    Termination.
Upon any termination of this Lease under any of the provisions of this Article
10, Landlord and Tenant each shall be released without further obligations to
the other coincident with the surrender of possession of the Leased Premises to
Landlord, except for items which have previously accrued and remain unpaid. In
the event of termination, all proceeds from Tenant’s property insurance
coverage and covering the Tenant Improvements or Tenant’s improvements and/or
alterations installed pursuant to Article 7.2, but excluding proceeds
for trade fixtures, merchandise, signs and other removable personal property,
shall be disbursed and paid to Landlord.


10.5    Abatement.
In the event of repair, reconstruction and restoration of the Leased Premises,
the Minimum Annual Rental and Additional Rent shall be abated proportionately
with the degree to which Tenant’s use of the Leased Premises is impaired
commencing from the date of destruction and continuing during the period of
such repair, reconstruction or restoration. Tenant shall continue the operation
of Tenant’s business at the Leased Premises during any such period to the
extent reasonably practicable from the standpoint of prudent business
management. Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Leased Premises,
or the building of which the Leased Premises are a part, Tenant’s personal
property or for any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration.


10.6    Waiver.
Tenant hereby waives any statutory and common law rights of termination which
may arise by reason of any partial or total destruction of the Leased Premises
which Landlord is obligated to restore or may restore under any of the
provisions of this Lease, including the provisions of A.R.S. 33-343 except as
otherwise provided herein.


10.7    Termination.
If Landlord cannot complete repairs within one hundred eighty (180) days after
the casualty or Landlord elects to notify Tenant in writing within sixty (60)
days of said casualty of Landlord’s intent to not complete said repairs then
Tenant may terminate this lease by providing Landlord thirty (30) days notice
after receipt of Landlords notice to not proceed with said repairs or after
Landlord fails to complete said repairs within the stated timeframe, whichever
applies.


11. WAIVER OF
SUBROGATION


Landlord and Tenant
hereby waives their rights and the subrogation rights of their insurer against
the other and any other tenants of space in the Building or the Property, as
well as their respective members, officers, employees, agents, authorized
representatives and invitees, with respect to any claims including, but not
limited to, claims for injury to any persons, and/or damage to the Leased
Premises and/or any fixtures, equipment, personal property, furniture,
improvements and/or alterations in or to the Leased Premises, which are caused
by or result from (a) risks or damages required to be insured against under
this Lease, or (b) risks and damages which are insured against by insurance
policies maintained by Tenant or Landlord (as applicable) from time to time.
Each shall obtain for the other from its insurers under each policy required by
this Lease a waiver of all rights of subrogation which such insurers of Each
might otherwise have against the other party.


12. LANDLORD’S RIGHT
TO PERFORM TENANT OBLIGATIONS


All covenants and
agreements to be performed by Tenant under any of the terms of this Lease shall
be performed by Tenant at Tenant’s sole cost and expense and without any
abatement of Annual Basic Rent or Additional Rent. If Tenant shall fail to pay
any sum of money, other than Annual Basic Rent, required to be paid by it
hereunder, or shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for five (5) days after notice
thereof by Landlord (or such shorter period of time as may be reasonable
following oral notice to Tenant’s personnel in the Leased Premises), Landlord
may (but shall not be obligated to do so) without waiving or releasing Tenant
from any of Tenant’s obligations, make any such payment or perform any such
other act on behalf of Tenant. All sums so paid by Landlord and all necessary
incidental costs, together with interest thereon at the greater of (a) fifteen
percent (15%) per annum or (b) the



 11
 









rate of interest per annum publicly announced, quoted
or published, from time to time, by Bank of America, at its Phoenix, Arizona
office as its “reference rate” plus four (4) percentage points, from the
date of such payment by Landlord until reimbursement in full by Tenant (the “Default
Rate”), shall be payable to Landlord as Additional Rent with the next
monthly installment of Annual Basic Rent; provided, however, in no event shall
the Default Rate exceed the maximum rate (if any) permitted by applicable law.


13. DEFAULT AND
REMEDIES


13.1    Event
of Default. The occurrence of any one or more of the following events will
constitute an “Event of Default” on the part of Tenant:


(a)     Failure
to pay any installment of Annual Basic Rent, any Additional Rent or any other
sum required to be paid by Tenant under this Lease, and such failure shall
continue for five (5) days;


(b)     Failure
to perform any of the other covenants or conditions which Tenant is required to
observe and perform (except failure in the payment of Annual Basic Rent,
Additional Rent or any other monetary obligation contained in this Lease) and
such failure shall continue for fifteen (15) days (or such shorter period of
time as may be specified by Landlord in the event of an emergency) after
written notice thereof by Landlord to Tenant, provided that if such default is
other than the payment of money and cannot be cured within such fifteen (15)
day period, then an Event of Default shall not have occurred if Tenant, within
such fifteen (15) day period, commences to cure such failure and diligently in
good faith prosecutes the same to completion and furnishes evidence thereof to
Landlord within thirty (30) days thereafter;


(c)     If
any warranty, representation or statement made by Tenant to Landlord in
connection with this Lease is or was materially false or misleading when made
-or furnished;


(d)     Intentionally
Omitted.


(e)     Intentionally
Omitted.


(f)     Intentionally
Omitted.


(g)     The
levy of a writ of attachment or execution or other judicial seizure of
substantially all of Tenant’s assets or its interest in this Lease, such
attachment, execution or other seizure remaining undismissed or discharged for
a period of thirty (30) days after the levy thereof;


(h)     The
filing of any petition by or against Tenant or any Guarantor to declare Tenant
or any Guarantor a bankrupt or to delay, reduce or modify Tenant’s or any
Guarantor’s debts or obligations, which petition is not discharged within forty
five (45) days after the date of filing;


(i)     The
filing of any petition or other action taken to reorganize or modify Tenant’s
or any Guarantor’s capital structure, which petition is not discharged within
forty five (45) days after the date of filing;


(j)     If
Tenant or any Guarantor shall be declared insolvent according to law;


(k)     A
general assignment by Tenant or any Guarantor for the benefit of creditors;


(l)     The
appointment of a receiver or trustee for Tenant or any Guarantor or all or any
of their respective property, which appointment is not discharged within forty
five (45) days after the date of filing;


(m)     The
filing by Tenant or any Guarantor of a voluntary petition pursuant to the
Bankruptcy Code or any successor thereto or the filing of an involuntary
petition against Tenant or any Guarantor pursuant to the Bankruptcy Code or any
successor legislation, which petition is not discharged within forty five (45)
days after the date of filing; or



 12
 









13.2    Remedies.
Upon the occurrence of an Event of Default under this Lease by Tenant, Landlord
may, without prejudice to any other rights and remedies available to a landlord
at law, in equity or by statute, Landlord may exercise one or more of the
following remedies, all of which shall be construed and held to be cumulative
and non-exclusive: (a) Terminate this Lease and re-enter and take possession of
the Leased Premises, in which event, Landlord is authorized to make such
repairs, redecorating, refurbishments or improvements to the Leased Premises as
may be necessary in the reasonable opinion of Landlord acting in good faith for
the purposes of reletting the Leased Premises and the costs and expenses
incurred in respect of such repairs, redecorating and refurbishments and the
expenses of such reletting (including brokerage commissions) shall be paid by
Tenant to Landlord within five (5) days after receipt of Landlord’s statement;
or (b) Without terminating this Lease, re-enter and take possession of the
Leased Premises; or (c) Without such re-entry, recover possession of the Leased
Premises in the manner prescribed by any statute relating to summary process,
and any demand for Annual Basic Rent, re-entry for condition broken, and any
and all notices to quit, or other formalities of any nature to which Tenant may
be entitled, are hereby specifically waived to the extent permitted by law; or
(d) Without terminating this Lease, Landlord may relet the Leased Premises as
Landlord may see fit without thereby avoiding or terminating this Lease, and
for the purposes of such reletting, Landlord is authorized to make such
repairs, redecorating, refurbishments or improvements to the Leased Premises as
may be necessary in the reasonable opinion of Landlord acting in good faith for
the purpose of such reletting, and if a sufficient sum is not realized from
such reletting (after payment of all costs and expenses of such repairs,
redecorating and refurbishments and expenses of such reletting (including
brokerage commissions) and the collection of rent accruing therefrom) each
month to equal the Annual Basic Rent and Additional Rent payable hereunder,
then Tenant shall pay such deficiency each month within five (5) days after
receipt of Landlord’s statement; or (e) Landlord may declare immediately due
and payable all the remaining installments of Annual Basic Rent and Additional
Rent, and such amount; less the amount Tenant proves, if any, could reasonably
expect to be recovered by Landlord through the releasing of the Leased Premises
for the remainder of the Lease Term, shall be paid by Tenant within five (5)
days after receipt of Landlord’s statement. Landlord shall not by re-entry or
any other act, be deemed to have terminated this Lease, or the liability of
Tenant for the total Annual Basic Rent and Additional Rent reserved hereunder
or for any installment thereof then due or thereafter accruing, or for damages,
unless Landlord notifies Tenant in writing that Landlord has so elected to
terminate this Lease. After the occurrence of an Event of Default, the
acceptance of Annual Basic Rent or Additional Rent, or the failure to re-enter
by Landlord shall not be deemed to be a waiver of Landlord’s right to
thereafter terminate this Lease and exercise any other rights and remedies
available to it, and Landlord may re-enter and take possession of the Leased
Premises as if no Annual Basic Rent or Additional Rent had been accepted after
the occurrence of an Event of Default. Upon an Event of Default, Tenant shall
also pay to Landlord all costs and expenses incurred by Landlord, including
court costs and attorneys’ fees, in retaking or otherwise obtaining possession
of the Leased Premises, removing and storing all equipment, fixtures and
personal property on the Leased Premises and otherwise enforcing any of
Landlord’s rights, remedies or recourses arising as a result of an Event of
Default.


13.3    Additional
Remedies. All of the remedies given to Landlord in this Lease in the event
Tenant commits an Event of Default are in addition to all other rights or
remedies available to a landlord at law, in equity or by statute, including,
without limitation, the right to seize and sell all goods, equipment and
personal property of Tenant located in the Leased Premises and apply the
proceeds thereof to all due and unpaid Annual Basic Rent, Additional Rent and
other amounts owing under the Lease. All rights, options and remedies available
to Landlord shall be construed and held to be cumulative, and no one of them
shall be exclusive of the other. Upon the occurrence of an Event of Default,
all rights, privileges and contingencies which may be exercised by Tenant under
the Lease, including, without limitation, options to renew, extend and expand,
as well as relocation rights, contraction rights and any other rights which may
be exercised by Tenant during the Lease Term, shall be void and of no further
force and effect.


13.4    Interest
on Past Due Amounts. In addition to the late charge described in Article
14 below, if any installment of Annual Basic Rent or Additional Rent is not
paid promptly when due,



 13
 









it shall bear interest at the Default Rate; provided,
however, this provision shall not relieve Tenant from any default in the making
of any payment at the time and in the manner required by this Lease; and
provided, further, in no event shall the Default Rate exceed the maximum rate
(if any) permitted by applicable law.


13.5    Landlord
Default. In the event Landlord should neglect or fail to perform or observe
any of the covenants, provisions or conditions contained in this Lease on its
part to be performed or observed, and such failure continues for thirty (30)
days after written notice of default (or if more than thirty (30) days shall be
required because of the nature of the default, if Landlord shall fail to
commence the curing of such default within such thirty (30) day period and
proceed diligently thereafter) or for any commercially unreasonable time if an
emergency situation occurs, then Landlord shall be responsible to Tenant for
any actual damages sustained by Tenant as a result of Landlord’s breach, but
not special or consequential damages. Should Tenant give written notice to
Landlord to correct any default, Tenant shall give similar notice to the holder
of any mortgages or deeds of trust against the Building or the lessor of any
ground lease, and prior to any cancellation of this Lease, the holder of such
mortgage or deed of trust and/or the lessor under such ground lease shall be
given a reasonable period of time to correct or remedy such default. If and
when such holder of such mortgage or deed of trust and/or the lessor under any
such ground lease has made performance on behalf of Landlord, the default of
Landlord shall be deemed cured. Notwithstanding any other provisions in this
Lease, any claim which Tenant may have against Landlord for failure to perform
or observe any of the covenants, provisions or conditions contained in this Lease
shall be deemed waived unless such claim is asserted by written notice thereof
to Landlord within ten (10) days of commencement of the alleged default or
occurrence of the cause of action and unless suit be brought thereon within six
(6) months subsequent to the occurrence of such cause of action.


14. LATE PAYMENTS


Tenant hereby
acknowledges that the late payment by Tenant to Landlord of any monthly
installment of Annual Basic Rent, any Additional Rent or any other sums due
hereunder will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult and impracticable to
ascertain. Such costs include but are not limited to processing, administrative
and accounting costs. Accordingly, if any monthly installment of Annual Basic
Rent, any Additional Rent or any other sum due from Tenant shall not be
received by Landlord within five (5) days after the date when due, Tenant shall
pay to Landlord a late charge equal to five percent (5%) of such overdue amount
or Two Hundred and No/100 Dollars ($200.00), whichever is greater. Tenant
acknowledges that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payments by Tenant. Neither
assessment nor acceptance of a late charge by Landlord shall constitute a
waiver of Tenant’s default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies available to
Landlord. Nothing contained in this Article 14 shall be deemed to
condone, authorize, sanction or grant to Tenant an option for the late payment
of Annual Basic Rent, Additional Rent or any other sum due hereunder.


15. ABANDONMENT AND
SURRENDER


15.1    Surrender.
No act or thing done by Landlord or by any agent or employee of Landlord during
the Lease Term shall be deemed an acceptance of a surrender of the Leased
Premises unless such acceptance is expressed in writing and duly executed by
Landlord. Unless Landlord so agrees in writing, the delivery of the key to the
Leased Premises to any employee or agent of Landlord shall not operate as a
termination of this Lease or as a surrender of the Leased Premises.


15.2    Surrender.
Tenant shall, upon the expiration or earlier termination of this Lease,
peaceably surrender the Leased Premises, including any Tenant Improvements and
Tenant’s improvements and/or alterations installed pursuant to Article 7.1,
in a janitorial clean condition and otherwise in as good condition as when
Tenant took possession, except for (i) reasonable wear and tear subsequent to
the last repair, replacement, restoration, alteration or renewal; (ii) loss by
fire or other casually, and (iii) loss by condemnation. If Tenant shall
abandon, vacate or surrender the



 14
 









Leased Premises, or be dispossessed by process of law
or otherwise, any personal property and fixtures belonging to Tenant and left
in the Leased Premises shall be deemed abandoned and, at Landlord’s option,
title shall pass to Landlord under this Lease as by a bill of sale. Landlord
may, however, if it so elects, remove all or any part of such personal property
from the Leased Premises and the costs incurred by Landlord in connection with
such removal, including storage costs and the cost of repairing any damage to
the Leased Premises, the Building and/or the Property caused by such removal
shall be paid by Tenant within five (5) days after receipt of Landlord’s
statement. Upon the expiration or earlier termination of this Lease, Tenant
shall surrender to Landlord all keys to the Leased Premises and shall inform
Landlord of the combination of any vaults, locks and safes left on the Leased
Premises. The obligations of Tenant under this Article 15.2 shall
survive the expiration or earlier termination of this Lease. Tenant shall
indemnify Landlord against any loss or liability resulting from delay by Tenant
in so surrendering the Premises, including, without limitation, any claims made
by any succeeding Tenant founded on such delay. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating the Leased
Premises for the express purpose of arranging a meeting with Landlord for a
joint inspection of the Leased Premises. In the event of Tenant’s failure to
give such notice or to participate in such joint inspection, Landlord’s
inspection at or after Tenant’s vacation of the Leased Premises shall be
conclusively deemed correct, unless erroneous, for purposes of determining
Tenant’s liability for repairs and restoration hereunder.


16. INDEMNIFICATION
AND EXCULPATION


16.1    Indemnification.
Tenant shall indemnify, protect, defend and hold Landlord harmless from and
against, and shall be responsible for, all claims, damages, losses, costs,
liens, encumbrances, liabilities and expenses, including reasonable attorneys’,
accountants’ and investigators’ fees and court costs (collectively, the “Claims”),
however caused, arising in whole or in part from Tenant’s use of all or any
part of the Leased Premises, the Building and/or the Property or the conduct of
Tenant’s business or from any activity, work or thing done, permitted or
suffered by Tenant or by any invitee, servant, agent, employee or subtenant of
Tenant in the Leased Premises, the Building and/or the Property, and shall
further indemnify, protect, defend and hold Landlord harmless from and against,
and shall be responsible for, all Claims arising in whole or in part from any
breach or default in the performance of any obligation on Tenant’s part to be
performed under the terms of this Lease or arising in whole or in part from any
act, neglect, fault or omission by Tenant or by any invitee, servant, agent,
employee or subtenant of Tenant anywhere in the Leased Premises, the Building
and/or the Property. In case any action or proceeding is brought against
Landlord to which this indemnification shall be applicable, Tenant shall pay
all Claims resulting therefrom and shall defend such action or proceeding, if
Landlord shall so request, at Tenant’s sole cost and expense, by counsel
reasonably satisfactory to Landlord. The obligations of Tenant under this Article
16.1 shall survive the expiration or earlier termination of this Lease.


16.2    Exculpation.
Tenant, as a material part of the consideration to Landlord, hereby assumes all
risk of damage to property, injury and death to persons and all claims of any
other nature resulting from Tenant’s use of all or any part of the Leased
Premises, the Building and/or the Property, and Tenant hereby waives all claims
in respect thereof against Landlord. Neither Landlord nor its agents or employees
shall be liable for any damaged property of Tenant entrusted to any employee or
agent of Landlord or for loss of or damage to any property of Tenant by theft
or otherwise. Landlord shall not be liable for any injury or damage to persons
or property resulting from any cause, including, but not limited to, fire,
explosion, falling plaster, steam, gas, electricity, sewage, odor, noise, water
or rain which may leak from any part of the Building or from the pipes,
appliances or plumbing works therein, or from the roof of any structure on the
Property, or from any streets or subsurfaces on or adjacent to the Building or
the Property, or from any other place or resulting from dampness or any other
causes whatsoever, unless caused solely by the gross negligence or willful
misconduct of Landlord. Neither Landlord nor its employees or agents shall be
liable for any defects in the Leased Premises, the Building and/or the
Property, nor shall Landlord be liable for the negligence or misconduct,
including, but not limited to, criminal acts, by maintenance or other personnel
or contractors serving the Leased Premises, the Building and/or the Property,
other tenants or third parties, unless Landlord is grossly negligent or guilty
of willful misconduct. All property of Tenant kept or stored on the Property
shall be so kept or stored at the



 15















risk of Tenant only, and Tenant shall indemnify,
defend and hold Landlord harmless from and against, and shall be responsible
for, any Claims arising out of damage to the same, including subrogation claims
by Tenant’s insurance carriers, unless such damage shall be caused by the
willful act or gross neglect of Landlord and through no fault of Tenant. None
of the events or conditions set forth in this Article 16 shall be deemed
a constructive or actual eviction or result in a termination of this Lease, nor
shall Tenant be entitled to any abatement or reduction of Annual Basic Rent or
Additional Rent by reason thereof. Tenant shall give prompt notice to Landlord
with respect to any defects, fires or accidents which Tenant observes in the
Leased Premises, the Building and/or the Property.


17. ENTRY
BY LANDLORD


Landlord reserves and
shall at any and all reasonable times upon reasonable notice, or reasonable
attempt to notify in case of an emergency, have the right to enter the Leased
Premises, to inspect the same, to supply janitorial service and other services
to be provided by Landlord to Tenant hereunder, to submit the Leased Premises
to prospective purchasers or tenants, to post notices of non-responsibility,
and to alter, improve or repair the Leased Premises and any portion of the
Building of which the Leased Premises are a part, without abatement of Annual
Basic Rent or Additional Rent, and may for that purpose erect scaffolding and
other necessary structures where reasonably required by the character of the
work to be performed, always providing that access into the Leased Premises
shall not be blocked thereby, and further providing that the business of Tenant
shall not be interfered with unreasonably. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant’s
business, any loss of occupancy or quiet enjoyment of the Leased Premises or
any loss occasioned thereby. For each of the aforesaid purposes, Landlord shall
at all times have and retain a key with which to unlock all the doors in, upon
or about the Leased Premises, excluding Tenant’s vaults and safes, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open such doors in an emergency in order to obtain entry to the Leased
Premises, and any entry to the Leased Premises obtained by Landlord by any such
means or otherwise shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into, or a detainer of, the Leased Premises or
an eviction of Tenant from all or any portion of the Leased Premises. Nothing
in this Article 17 shall be construed as obligating Landlord to perform
any repairs, alterations or maintenance except as otherwise expressly required
elsewhere in this Lease.


18. SUBSTITUTE
PREMISES


19. ASSIGNMENT
AND SUBLETTING


19.1     Consent
of Landlord Required. Tenant shall not transfer or assign this Lease or any
right or interest hereunder, or sublet the Leased Premises or any part thereof,
without first obtaining Landlord’s prior written consent, which consent
Landlord may not withhold unreasonably. No transfer or assignment (whether
voluntary or involuntary, by operation of law or otherwise) or subletting shall
be valid or effective without such prior written consent. Should Tenant attempt
to make or allow to be made any such transfer, assignment or subletting, except
as aforesaid, or should any of Tenant’s rights under this Lease be sold or
otherwise transferred by or under court order or legal process or otherwise,
then, and in any of the foregoing events Landlord may, at its option, treat
such act as an Event of Default by Tenant. Should Landlord consent to a
transfer, assignment or subletting, such consent shall not constitute a waiver
of any of the restrictions or prohibitions of this Article 19, and such
restrictions or prohibitions shall apply to each successive transfer,
assignment or subletting hereunder, if any.


19.2     Intentionally
Omitted.


19.3     Delivery
of Information. If Tenant wishes at any time to assign this Lease or sublet
the Leased Premises or any portion thereof, it shall first notify Landlord of
its desire to do so and shall submit in writing to Landlord (a) the name of the
proposed subtenant or assignee, (b) the nature of the proposed subtenant’s or
assignee’s business to be carried on in the Leased Premises; (c) the terms and
the provisions of the proposed sublease or assignment; and (d) such financial
information



 16
 









 


as Landlord may reasonably request concerning the
proposed subtenant or assignee. Tenant’s failure to comply with the provisions
of this Article 19.3 shall entitle Landlord to withhold its consent to
the proposed assignment or subletting.


19.4     Adjustment
to Rental. In the event Tenant assigns its interest in this Lease or Sublets
the Leased Premises, Landlord and Tenant shall divide any rent received by
Tenant in excess of the Annual Basic Rent set forth in Article 1.12
above, as adjusted in accordance with the following ratio: Tenant - 70%,
Landlord - 30%. Notwithstanding the foregoing, in no event shall the Annual
Basic Rent due from Tenant after any such assignment or subletting be less than
the Annual Basic Rent specified in Article 1.12 above, as adjusted.


19.6     No
Release from Liability. Landlord may collect Annual Basic Rent and Additional
Rent from the assignee, subtenant, occupant or other transferee, and apply the
amount so collected, first to the monthly installments of Annual Basic Rent,
then to any Additional Rent and other sums due and payable to Landlord, and the
balance, if any, to Landlord, but no such assignment, subletting, occupancy,
transfer or collection shall be deemed a waiver of Landlord’s, rights under
this Article 19, or the acceptance of the proposed assignee, subtenant,
occupant or transferee. Notwithstanding any assignment, sublease or other
transfer (with or without the consent of Landlord), Tenant shall remain
primarily liable under this Lease and shall not be released from performance of
any of the terms, covenants and conditions of this Lease.


19.7     Landlord’s
Expenses. If Landlord consents to an assignment, sublease or other transfer
by Tenant of all or any portion of Tenant’s interest under this Lease, Tenant
shall pay or cause to be paid to Landlord, a transfer fee in an amount not less
than Five Hundred and No/100 Dollars ($500.00) to reimburse Landlord for
administrative expenses and for legal, accounting and other out of pocket
expenses actually incurred by Landlord.


19.8     Assumption
Agreement. If Landlord consents to an assignment, sublease or other transfer
by Tenant of all or any portion of Tenant’s interest under this Lease, Tenant
shall execute and deliver to Landlord, and cause the transferee to execute and
deliver to Landlord, an instrument in the form and substance acceptable to
Landlord in which (a) the transferee adopts this Lease and assumes and agrees
to perform, jointly and severally with Tenant, all of the obligations of Tenant
hereunder, (b) Tenant acknowledges that it remains primarily liable for the
payment of Annual Basic Rent, Additional Rent and other obligations under this
Lease, (e) Tenant subordinates to Landlord’s statutory lien, contract lien and
security interest, any liens, security interests or other rights which Tenant
may claim with respect to any property of transferee and (d) the transferee
agrees to use and occupy the Leased Premises solely for the purpose specified
in Article 20 and otherwise in strict accordance with this Lease.


20. USE
OF LEASED PREMISES AND RUBBISH REMOVAL


20.1     Use.
The Leased Premises are leased to Tenant solely for the Permitted Use set forth
in Article 1.9 above and for no other purpose whatsoever. Tenant shall
not use or occupy or permit the Leased Premises to be used or occupied, nor
shall Tenant do or permit anything to be done in or about the Leased Premises
nor bring or keep anything therein which will in any way increase the existing
rate of or affect any casualty or other insurance on the Building or the
Property, or any of their respective contents, or make void or voidable or
cause a cancellation of any insurance policy covering the Building or the
Property, or any part thereof or any of their respective contents. Tenant shall
not do or permit anything to be done in or about the Leased Premises, the
Building and/or the Property which will in any way obstruct or interfere with
the rights of other tenants or occupants of the Building or the Property or
injure or annoy them. Tenant shall not use or allow the Leased Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Leased
Premises, the Building and/or the Property. In addition, Tenant shall not
commit or suffer to be committed any waste in or upon the Leased Premises, the
Building and/or the Property. Tenant shall not use the Leased Premises, the
Building and/or the Property or permit anything to be done in or about the
Leased Premises, the Building and/or the Property which will in any way
conflict with any matters of record, or any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted



 17
 









 


or promulgated, and shall, at its sole cost and
expense, promptly comply with all matters of record and all laws, statutes,
ordinances and governmental rules, regulations and requirements now in force or
which may hereafter be in force and with the requirements of any Board of Fire
Underwriters or other similar body now or hereafter constituted, foreseen or
unforeseen, ordinary as well as extraordinary, relating to or affecting the
condition, use or occupancy of the Property, excluding structural changes not
relating to or affected by Tenant’s improvements or acts. The judgment of any
court of competent jurisdiction or the admission by Tenant in any action against
Tenant, whether Landlord be a party thereto or not, that Tenant has violated
any matters of record, or any law, statute, ordinance or governmental rule,
regulation or requirement, shall be conclusive of that fact between Landlord
and Tenant. In addition, Tenant shall not place a load upon any floor of the
Leased Premises which exceeds the load per square foot which the floor was
designed to carry, nor shall Tenant install business machines or other
mechanical equipment in the Leased Premises which cause noise or vibration that
may be transmitted to the structure of the Building.


20.2   Rubbish
Removal. Tenant shall keep the Leased Premises clean, both inside and
outside, subject, however, to Landlord’s obligation as set forth in Article
7.3 above. Tenant shall not burn any materials or rubbish of any
description upon the Leased Premises. Tenant shall keep all accumulated rubbish
in covered containers. In the event Tenant fails to keep the Leased Premises in
the proper condition, Landlord may cause the same to be done for Tenant and
Tenant shall pay the expenses incurred by Landlord on demand, together with
interest at the Default Rate, as Additional Rent. Tenant shall, at its sole
cost and expense, comply with all present and future laws, orders and regulations
of all state, county, federal, municipal governments, departments, commissions
and boards regarding the collection, sorting, separation, and recycling of
waste products, garbage, refuse and trash. Tenant shall sort and separate such
waste products, garbage, refuse and trash into such categories as provided by
law. Each separately sorted category of waste products, garbage, refuse and
trash shall be placed in separate receptacles reasonably approved by Landlord.
Such separate receptacles may, at Landlord’s option, be removed from the Leased
Premises in accordance with a collection schedule prescribed by law. Landlord
reserves the right to refuse to collect or accept from Tenant any waste
products, garbage, refuse or trash that is not separated and sorted as required
by law, and to require Tenant to arrange for such collection at Tenant’s sole
cost and expense using a contractor satisfactory to Landlord. Tenant shall pay
all costs, expenses, fines, penalties or damages that may be imposed on
Landlord or Tenant by reason of Tenant’s failure to comply with the provisions
of this Article 20.2, and, at Tenant’s sole cost and expense, Tenant
shall indemnify, defend and hold Landlord and Landlord’s agents and employees
harmless (including legal fees and expenses) from and against, and shall be
responsible for, all actions, claims, liabilities and suits arising from such
noncompliance, utilizing counsel reasonably satisfactory to Landlord.


21. SUBORDINATION
AND ATTORNMENT


21.1   Subordination.
This Lease and all rights of Tenant hereunder shall be, at the option of
Landlord, subordinate to (a) all matters of record, (b) all ground leases,
overriding leases and underlying leases (collectively referred to as the “leases”)
of the Building or the Property now or hereafter existing, (c) all mortgages
and deeds of trust (collectively referred to as the “mortgages”)
which may now or hereafter encumber or affect the Building or the Property, and
(d) all renewals, modifications, amendments, replacements and extensions of leases
and mortgages and to spreaders and consolidations of the mortgages, whether or
not leases or mortgages shall also cover other lands, buildings or leases. The
provisions of this Article 21.1 shall be self-operative and no further
instruments of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any lease or the holder of any
mortgage or any of their respective assigns or successors in interest may
reasonably request to evidence such subordination. Any lease to which this
Lease is subject and subordinate is called a “Superior Lease” and the
lessor under a Superior Lease or its assigns or successors in interest is
called a “Superior Lessor”. Any mortgage to which this Lease is subject
and subordinate is called a “Superior Mortgage” and the holder of a
Superior Mortgage is called a “Superior Mortgagee”. If Landlord, a
Superior Lessor or a Superior Mortgagee requires that such instruments be
executed by Tenant, Tenant’s failure to do so within ten (10) days after
request therefor shall be deemed an Event of Default under this Lease. Tenant
waives any right to terminate



 18
 









 


this Lease because of any foreclosure proceedings.
Tenant hereby irrevocably constitutes and appoints Landlord (and any successor
Landlord) as Tenant’s attorney-in-fact, with full power of substitution coupled
with an interest, to execute and deliver to any Superior Lessor or Superior
Mortgagee any documents required to be executed by Tenant for and on behalf of
Tenant if Tenant shall have failed to do so within ten (10) days after request
therefore.


21.2   Attornment.
If any Superior Lessor or Superior Mortgagee (or any purchaser at a foreclosure
sale) succeeds to the rights of Landlord under this Lease, whether through
possession or foreclosure action, or the delivery of a new lease or deed (a “Successor
Landlord”), Tenant shall attorn to and recognize such Successor Landlord as
Tenant’s landlord under this Lease and shall promptly execute and deliver any
instrument that such Successor Landlord may reasonably request to evidence such
attornment.


22. ESTOPPEL
CERTIFICATE


Tenant shall, whenever
requested by Landlord, within ten (10) days after written request by Landlord,
execute, acknowledge and deliver to Landlord a statement in writing certifying:
(a) that this Lease is unmodified and in full force and effect, (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect); (b) the dates to which
Annual Basic Rent, Additional Rent and other charges are paid in advance, if
any; (c) that there are not, to Tenant’s knowledge, any uncured defaults on the
part of Landlord hereunder or specifying such defaults if any are claimed; (d)
that Tenant has paid Landlord the Security Deposit, (e) the Commencement Date
and the scheduled expiration date of the Lease Term, (f) the rights (if any) of
Tenant to extend or renew this Lease or to expand the Leased Premises and (g)
the amount of Annual Basic Rent, Additional Rent and other charges currently
payable under this Lease. In addition, such statement shall provide such other
information and facts Landlord may reasonably require. Any such statement may
be relied upon by any prospective or existing purchaser, ground lessee or
mortgagee of all or any portion of the Property, as well as by any other
assignee of Landlord’s interest in this Lease. Tenant’s failure to deliver such
statement within such time shall be conclusive upon Tenant (i) that this Lease
is in full force and effect, without modification except as may be represented
by Landlord; (ii) that there are no uncured defaults in Landlord’s performance
hereunder; (iii) that Tenant has paid to Landlord the Security Deposit; (iv)
that not more than one month’s installment of Annual Basic Rent or Additional
Rent has been paid in advance; (v) that the Commencement Date and the scheduled
expiration date of the Lease Term are as stated therein, (vi) that Tenant has
no rights to extend or renew this Lease or to expand the Leased Premises, (vii)
that the Annual Basic Rent, Additional Rent and other charges are as set forth
therein and (viii) that the other information and facts set forth therein are
true and correct.


23. SIGNS


Landlord shall retain
absolute control over the exterior appearance of the Building and the exterior
appearance of the Leased Premises as viewed from the public halls. Tenant shall
not install, or permit to be installed, any drapes, shutters, signs, lettering,
advertising, or any items that will in any way, in the sole opinion of
Landlord, adversely alter the exterior appearance of the Building or the
exterior appearance of the Leased Premises as viewed from the public halls or
the exterior of the Building. In no event may Tenant utilize trucks,
automobiles or other vehicles on the Property for signage purposes.
Notwithstanding the foregoing, Landlord shall install, at Tenant’s sole cost
and expense, letters or numerals at or near the entryway to the Leased Premises
provided Tenant obtains Landlord’s prior written consent as to size, color,
design and location. All such letters or numerals shall be in accordance with
the criteria established by Landlord for the Building. In addition, Landlord
shall, at its cost, install Tenant’s name and suite number on the Building
directory, if any; provided, however, any additions, deletions or other
modifications to the Building directory shall be at Tenant’s sole cost and
expense.


24. PARKING


24.1   Parking Facility. Landlord
shall provide, operate and maintain parking accommodations (the “Parking
Accommodations”), together with necessary access, having a



 19
 









 


capacity adequate in Landlord’s opinion to accommodate
the requirements of the Building and the Property. No storage of vehicles or
parking for more than twenty-four (24) hours shall be allowed without Landlord’s
prior written consent. Tenant acknowledges and agrees that Landlord shall not
be liable for damage, loss or theft of property or injury to persons in, upon
or about the Parking Accommodations from any cause whatsoever unless caused by
the gross negligence or willful misconduct of Landlord or its agents or
employees Landlord shall have the right to establish, and from time to time
change, alter and amend, and to enforce against all users of the Parking
Accommodations, such reasonable requirements and restrictions as Landlord deems
necessary and advisable for the proper operation and maintenance of the Parking
Accommodations, including, without limitation, designation of particular areas
for reserved, visitor and/or employee parking, as a part of the Rules and
Regulations of the Building referenced in Article 31 hereof. Parking
shall be free of charge, except for reserved, covered parking. Tenant shall
have the right to non-exclusive use of a minimum of 1.5 spaces per 1,000 square
feet of rentable space, or the minimum required by governmental requirements,
whichever is greater.


24.2   Parking Passes. Tenant is
hereby allocated the number of unreserved parking passes designated in Article
1.15 hereof, entitling holders to park in unreserved parking spaces,
located in the Parking Accommodations as designated by Landlord from time to
time for use by Tenant, its employees and licensees, and for which Tenant shall
pay the monthly charges set forth in Article 1.16 hereof.


25. LIENS


Tenant shall keep the
Leased Premises free and clear of all mechanic’s and materialmen’s liens. If,
because of any act or omission (or alleged act or omission) of Tenant, any
mechanics’, materialmen’s or other lien, charge or order for the payment of
money shall be filed or recorded against the Leased Premises, the Property or
the Building, or against any other property of Landlord (whether or not such
lien, charge or order is valid or enforceable as such), Tenant shall, at its
own expense, cause the same to be canceled or discharged of record within
thirty (30) days after Tenant shall have received written notice of the filing
thereof, or Tenant may, within such thirty (30) day period, furnish to Landlord,
a bond pursuant to A.R.S. 33-1004 (or any successor statute) and satisfactory
to Landlord and all Superior Lessors and Superior Mortgagees against the lien,
charge or order, in which case Tenant shall have the right to contest, in good
faith, the validity or amount thereof.


26. HOLDING OVER


It is agreed that the
date of termination of this Lease and the right of Landlord to recover
immediate possession of the Leased Premises thereupon is an important and
material matter affecting the parties hereto and the rights of third parties,
all of which have been specifically considered by Landlord and Tenant and that
Tenant shall have no right to continue to occupy the premises without the
express written consent of the Landlord. In the event of any continued
occupancy or holding over of the Leased Premises with the express written
consent of Landlord beyond the expiration or earlier termination of this Lease
or of Tenants right to occupy the Leased Premises, whether in whole or in part,
shall be deemed a monthly tenancy and Tenant shall pay one and one-half (1.5)
times the Annual Basic Rent then in effect for the first thirty (30) days and
two hundred percent (200%) thereafter plus any Additional Rent or other charges
or payments contemplated in this Lease, and any other costs, expenses, damages,
liabilities and attorneys’ fees incurred by Landlord on account of Tenant’s
holding over. The preceding provision of this paragraph shall not be construed
as Landlord’s consent for Tenant to holdover and no holdover shall operate to
extend the terms of the Lease.


27. ATTORNEYS’ FEES


Tenant shall pay to
Landlord all amounts for costs (including reasonable attorneys’ fees) incurred
by Landlord in connection with any breach or default by Tenant under this Lease
or incurred in order to enforce the terms or provisions of this Lease. Such
amounts shall be payable within five (5) days after receipt by Tenant of
Landlord’s statement. In addition, if any action shall be instituted by either
of the parties hereto for the enforcement of any of their respective rights or



 20
 









 


remedies in or under this Lease, the prevailing party
shall be entitled to recover from the losing party all costs incurred by the
prevailing party in such action and any appeal therefrom, including reasonable
attorneys’ fees to be fixed by the court. Further, should Landlord be made a
party to any litigation between Tenant and any third party, then Tenant shall
pay all costs and attorneys’ fees incurred by or imposed upon Landlord in
connection with such litigation.


28. RESERVED RIGHTS OF
LANDLORD


Landlord reserves the
following rights, exercisable without liability to Tenant for damage or injury
to property, persons or business and without effecting an eviction,
constructive or actual, or disturbance of Tenant’s use or possession or giving
rise to any claim:


(a)       To name the Building and the Property and
to change the name or street address of the Building or the Property;


(b)       To install and maintain all signs on the
exterior and interior of the Building and the Properly;


(c)       To designate all sources furnishing sign
painting and lettering;


(d)       During the last ninety (90) days of the
Lease Term, if Tenant has vacated the Leased Premises, to decorate, remodel,
repair, alter or otherwise prepare the Leased Premises for re-occupancy,
without affecting Tenant’s obligation to pay Annual Basic Rent;


(e)       To have pass keys to the Leased Premises
and all doors therein, excluding Tenant’s vaults and safes;


(f)        On reasonable prior notice to Tenant, to
exhibit at reasonable times the Leased Premises to any prospective purchaser,
mortgagee, or assignee of any mortgage on the Building or the Property and to
others having interest therein at any time during the Lease Term, and to
prospective Tenants during the last six (6) months of the Lease Term;


(g)       To take any and all measures, including
entering the Leased Premises for the purposes of making inspections, repairs,
alterations, additions and improvements to the Leased Premises or to the
Building (including, for the purposes of checking, calibrating, adjusting and
balancing controls and other parts of the Building systems) as may be necessary
or desirable for the operation, improvement, safety, protection or preservation
of the Leased Premises or the Building, or in order to comply with all laws,
orders and requirements of governmental or other authorities, or as may
otherwise be permitted or required by this Lease; provided, however, that
Landlord shall endeavor (except in an emergency) to minimize interference with
Tenant’s business in the Leased Premises;


(h)       To relocate various facilities within the
Building and on the Property if Landlord shall determine such relocation to be
in the best interest of the development of the Building and the Property,
provided, that such relocation shall not materially restrict access to the
Leased Premises;


(i)        To change the nature, extent,
arrangement, use and location of the Building Common Areas, provided that such
change does not materially restrict Tenant’s use of the Leased Premises, the
Building and the Property;


(j)        To make alterations or additions to and
to build additional stories on the Building and to build additional buildings
or improvements on the Property; and


(k)       To install vending machines of all kinds
in the Leased Premises and the Building, and to receive all of the revenue
derived therefrom, provided, however, that no vending machines shail be
installed by Landlord in the Leased Premises unless Tenant so requests.


Landlord further reserves the exclusive right to the
roof of the Building. No casement for light, air,



 21
 









 


or view is included in the leasing of the Leased
Premises to Tenant. Accordingly, any diminution or shutting off of light, air
or view by any structure which may be erected on the Property or other
properties in the vicinity of the Building shall in no way affect this Lease or
impose any liability upon Landlord.


29. EMINENT DOMAIN


29.1   Taking.
If the whole of the Building is lawfully and permanently taken by condemnation
or any other manner for any public or quasi-public purpose, or by deed in lieu
thereof, this Lease shall terminate as of the date of vesting of title in such
condemning authority and the Annual Basic Rent and Additional Rent shall be pro
rated to such date. If any part of the Building or Property is so taken, or if
the whole of the Building is taken, but not permanently, then this Lease shall
be unaffected thereby, except that (a) Landlord may terminate this Lease by
notice to Tenant within ninety (90) days after the date of vesting of title in
the condemning authority, and (b) if twenty percent (20%) or more of the Leased
Premises shall be permanently taken and the remaining portion of the Leased
Premises shall not be reasonably sufficient for Tenant to continue operation of
its business, Tenant may terminate this Lease by notice to Landlord within
ninety (90) days after the date of vesting of title in such condemning
authority. This Lease shall terminate on the date of taking. The Annual Basic
Rent and Additional Rent shall be pro rated to the earlier of the termination
of this Lease or such date as Tenant is required to vacate the Leased Premises
by reason of the taking. If this Lease is not terminated as a result of a
partial taking of the Leased Premises, the Annual Basic Rent and Additional
Rent shall be equitably adjusted according to the rentable area of the Leased
Premises and Building remaining.


29.2   Award.
In the event of a taking of all or any part of the Building or the Property,
all of the proceeds or the award, judgment, settlement or damages payable by
the condemning authority shall be and remain the sole and exclusive property of
Landlord, and Tenant hereby assigns all of its right, title and interest in and
to any such award, judgment, settlement or damages to Landlord. Tenant shall,
however, have the right, to the extent that the same shall not reduce or
prejudice amounts available to Landlord, to claim from the condemning
authority, but not from Landlord, such compensation as may be recoverable by
Tenant in its own right for relocation benefits, moving expenses, and damage to
Tenant’s personal property and trade fixtures.


30. NOTICES


Any notice or
communication given under the terms of this Lease shall be in writing and shall
be delivered in person, sent by any public or private express delivery service
or deposited with the United States Postal Service or a successor agency,
certified or registered mail, return receipt requested, postage pre-paid,
addressed as set forth in the Basic Provisions, or at such other address as a
party may from time to time designate by notice hereunder. Notice shall be
effective upon delivery. The inability to deliver a notice because of a changed
address of which no notice was given or a rejection or other refusal to accept
any notice shall be deemed to be the receipt of the notice as of the date of
such inability to deliver or rejection or refusal to accept. Any notice to be
given by Landlord may be given by the legal counsel and/or the authorized agent
of Landlord.


31. RULES AND
REGULATIONS


Tenant shall abide by all
rules and regulations (the “Rules and Regulations”) of the Building and
the Property imposed by Landlord, as attached hereto as Exhibit “F” or
as may hereafter be issued by Landlord. Such Rules and Regulations are imposed
to enhance the cleanliness, appearance, maintenance, order and use of the
Leased Premises, the Building and the Property, and the proper enjoyment of the
Building and the Property by all tenants and their clients, customers and
employees. The Rules and Regulations may be changed from time to time upon ten
(10) days notice to Tenant. Breach of the Rules and Regulations, by Tenant
shall constitute an Event of Default if such breach is not fully cured within
ten (10) days after written notice to Tenant by Landlord. Landlord shall not be
responsible to Tenant for nonperformance by any other tenant, occupant or
invitee of the Building or the Property of any Rules or Regulations.



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32. ACCORD AND
SATISFACTION


No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of Annual
Base Rent and Additional Rent (jointly called “Rent” in this Article
32), shall be deemed to be other than on account of the earliest stipulated
Rent due and not yet paid, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction. Landlord may accept such check or payment without prejudice to
Landlord’s right to recover the balance of such Rent or to pursue any other
remedy in this Lease.


33. BANKRUPTCY OF
TENANT


33.1   Chapter
7. If a petition is filed by, or an order for relief is entered against
Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects
to assume this Lease for the purpose of assigning it, the election or assignment,
or both, may be made only if all of the terms and conditions of Articles
33.2 and 33.4 below are satisfied. If the trustee fails to elect to assume
this Lease for the purpose of assigning it within sixty (60) days after
appointment, this Lease will be deemed to have been rejected. To be effective,
an election to assume this Lease must be in writing and addressed to Landlord
and, in Landlord’s business judgment, all of the conditions hereinafter stated,
which Landlord and Tenant acknowledge to be commercially reasonable, must have
been satisfied. Landlord shall then immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee, and this
Lease will be terminated. Landlord’s right to be compensated for damages in the
bankruptcy proceeding, however, shall survive.


33.2   Chapters
11 and 13. If Tenant files a petition for reorganization under Chapters 11
or 13 of the Bankruptcy Code or a proceeding that is filed by or against Tenant
under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or
13 proceeding and Tenant’s trustee or Tenant as a debtor-in-possession fails to
assume this Lease within sixty (60) days from the date of the filing of the
petition or the conversion, the trustee or the debtor-in-possession will be
deemed to have rejected this Lease. To be effective, an election to assume this
Lease must be in writing and addressed to Landlord and, in Landlord’s business
judgment, all of the following conditions, which Landlord and Tenant acknowledge
to be commercially reasonable, must have been satisfied:


(a)       The trustee or the debtor-in-possession
has cured or has provided to Landlord adequate assurance, as defined in this Article
33.2, that;


(1)       The trustee will cure all monetary
defaults under this Lease within ten (10) days from the date of the assumption;
and


(2)       The trustee will cure all non-monetary
defaults under this Lease within thirty (30) days from the date of the
assumption.


(b)       The trustee or the debtor-in-possession
has compensated Landlord, or has provided to Landlord adequate assurance, as
defined in this Article 33.2, that within ten (10) days from the date of
the assumption Landlord will be compensated for any pecuniary loss it incurred
arising from the default of Tenant, the trustee, or the debtor-in-possession as
recited in Landlord’s written statement of pecuniary loss sent to the trustee
or the debtor-in-possession. For purposes of this Lease, pecuniary loss shall
include all attorneys’ fees and court costs incurred by Landlord in connection
with any bankruptcy proceeding filed by or against Tenant.


(c)       The trustee or the debtor-in-possession
has provided Landlord with adequate assurance of the future performance of each
of Tenant’s obligations under the Lease; provided, however, that:


(1)       The trustee or debtor-in-possession will
also deposit with Landlord as security for the timely payment of Annual Basic
Rent and Additional Rent, an amount equal to three months Annual Basic Rent and
Additional Rent accruing under this Lease.



 23
 









 


(2)       If not otherwise required by the terms of
this Lease, the trustee or the debtor-in-possession will also pay in advance,
on each day that the Annual Basic Rent is payable, one twelfth of Tenant’s
estimated annual obligations under the Lease for the Additional Rent.


(3)       From and after the date of the assumption
of this Lease, the trustee or the debtor-in-possession will pay the Annual
Basic Rent and Additional Rent as provided in Article 1.12 above.


(4)       The obligations imposed upon the trustee
or the debtor-in-possession will continue for Tenant after the completion of
bankruptcy proceedings.


(d)       Landlord has determined that the
assumption of the Lease will not:


(1)       Breach any provisions in any other lease,
mortgage, financing agreement, or other agreement by which Landlord is bound
relating to the Property; or


(2)       Disrupt, in Landlord’s judgment, the
tenant mix of the Building or any other attempt by Landlord to provide a
specific variety of Tenants in the Building that, in Landlord’s judgment, would
be most beneficial to all of the tenants of the Building and would enhance the
image, reputation, and profitability of the Building.


(e)       For purposes of this Article 33.2 “adequate
assurance” means that:


(1)       Landlord will determine that the trustee
or the debtor-in-possession has, and will continue to have, sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the trustee or the
debtor-in-possession will have sufficient, funds to fulfill Tenant’s
obligations under this Lease and to keep the Leased Premises properly staffed
with sufficient employees to conduct a fully operational, actively promoted
business on the Leased Premises; and


(2)       An order will have been entered
segregating sufficient cash payable to Landlord and/or a valid and perfected
first lien and security interest will have been granted in property of Tenant,
trustee, or debtor-in-possession that is acceptable for value and kind to
Landlord, to secure to Landlord the obligation of the trustee or
debtor-in-possession to cure the monetary or non-monetary defaults under this
Lease within the time periods set forth above.


33.3     Landlord’s Right to Terminate. In
the event that this Lease is assumed by a trustee appointed for Tenant or by
Tenant as debtor-in-possession under the provisions of Article 33.2
above and, thereafter, Tenant is either adjudicated a bankrupt or files a
subsequent petition for arrangement under chapter 11 of the Bankruptcy Code,
then Landlord may terminate, at its option, this Lease and all Tenant’s rights
under it, by giving written notice of Landlord’s election to terminate.


33.4     Assignment by Trustee. If the
trustee or the debtor-in-possession has assumed the Lease, under the terms of Article
33.1 or 33.2 above, and elects to assign Tenant’s interest under this Lease
or the estate created by that interest to any other person, that interest or
estate may be assigned only if Landlord acknowledges in writing that the
intended assignee has provided adequate assurance, as defined in this Article
33.4, of future performance of all of the terms, covenants, and conditions
of this Lease to be performed by Tenant.


33.5     Adequate Assurance. For the purposes
of this Article 33 “adequate assurance of future performance”
means that Landlord has ascertained that each of the following conditions has
been satisfied:


(1)       The assignee has submitted a current
financial statement, audited by a certified public accountant, that shows a net
worth and working capital in amounts determined by Landlord to be sufficient to
assure the future performance by the assignee of Tenant’s obligations under
this Lease,



 24
 









 


(2)       If requested by Landlord, the assignee
will obtain guarantees, in form and substance satisfactory to Landlord from one
or more persons who satisfy Landlord’s standards of creditworthiness;


(3)       Landlord has obtained all consents or
waivers from any third party required under any lease, mortgage, financing
arrangement or other agreement by which Landlord is bound, to enable Landlord to
permit the assignment;


(4)       When, pursuant to the Bankruptcy Code,
the trustee or the debtor-in-possession is obligated to pay reasonable use and
occupancy charges for the use of all or part of the Leased Premises, the
charges will not be less than the Annual Basic Rent and Additional Rent.


33.6     Consent of Landlord. Neither Tenant’s
interest in the Lease nor any estate of Tenant created in the Lease will pass
to any trustee, receiver, assignee for the benefit of creditors, or any other
person or entity, or otherwise by operation of law under the laws of any state
having jurisdiction of the person or property of Tenant unless Landlord
consents in writing to the transfer. Landlord’s acceptance of Annual Basic Rent
or Additional Rent or any other payments from any trustee, receiver, assignee,
person, or other entity will not be deemed to have waived, or waive, the need
to obtain Landlord’s consent or Landlord’s right to terminate this Lease for
any transfer of Tenant’s interest under this Lease without that consent.



 25
 









 


34. HAZARDOUS
MATERIALS


34.1     Hazardous Materials Laws. “Hazardous
Materials Laws” means any and all federal, stale or local laws, ordinances,
rules, decrees, orders, regulations or court decisions (including the so-called
“common-law”) relating to hazardous substances, hazardous materials,
hazardous waste, toxic substances, environmental conditions on, under or about
the Premises, or soil and ground water conditions, including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (“CERCLA”), as amended, 42 U.S.C. 9601, et seq., the Resource
Conversation and Recovery Act (“RCRA”), 42 U.S.C. 6901, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. 1801, et seq., any amendments
to the foregoing, and any similar federal, state or local laws, ordinances,
rules, decrees, orders or regulations.


34.2     Hazardous Materials. “Hazardous
Materials”, means any chemical, compound, material, substance or other
matter that: (i) is a flammable explosive, asbestos, radioactive material,
nuclear medicine material, drug, vaccine, bacteria, virus, hazardous waste,
toxic substance, petroleum product, or related injurious or potentially
injurious material, whether injurious or potentially injurious by itself or in
combination with other materials; (ii) is controlled, designated in or governed
by any Hazardous Materials Law; (iii) gives rise to any reporting, notice or
publication requirements under any Hazardous Materials Law; or (iv) gives rise
to any liability, responsibility or duty on the part of Tenant or Landlord with
respect to any third person under any Hazardous Materials Law.


34.3     Use. Tenant shall not allow any
Hazardous Material to be used, generated, released, stored or disposed of on,
under or about, or transported from, the Leased Premises, the Building or the
Property, unless: (i) such use is specifically disclosed to and approved by
Landlord in writing prior to such use, and (ii) such use is conducted in
compliance with the provisions of this Article 34. Landlord may approve
such use subject to reasonable conditions to protect the Leased Premises, the
Building or the Property, and Landlord’s interests. Landlord may withhold
approval if Landlord determines that such proposed use involves a material risk
of a release or discharge of Hazardous Materials or a violation of any
Hazardous Materials Laws or that Tenant has not provided reasonable assurances
of its ability to remedy such a violation and fulfill its obligations under
this Article 34.


34.4     Compliance With Laws. Tenant shall
strictly comply with, and shall maintain the Leased Premises in compliance
with, all Hazardous Materials Laws. Tenant shall obtain and maintain in full
force and effect all permits, licenses and other governmental approvals required
for Tenant’s operations on the Leased Premises under any Hazardous Materials
Laws and shall comply with all terms and conditions thereof. At Landlord’s
request, Tenant shall deliver copies of, or allow Landlord to inspect, all such
permits, licenses and approvals. Tenant shall perform any monitoring,
investigation, clean-up, removal and other remedial work (collectively, “Remedial
Work”) required as a result of any release or discharge of Hazardous
Materials affecting the Leased Premises, the Building or the Property, or any
violation of Hazardous Materials Laws by Tenant or any assignee or sublessee of
Tenant or their respective agents, contractors, employees, licensees, or
invitees. Landlord shall have the right to intervene in any governmental action
or proceeding involving any Remedial Work, and to approve performance of the
work, in order to protect Landlord’s interests.


34.5     Compliance With Insurance Requirements.
Tenant shall comply with the requirements of Landlord’s and Tenant’s respective
insurers regarding Hazardous Materials and with such insurers’ recommendations
based upon prudent industry practices regarding management of Hazardous
Materials.


34.6     Notice; Reporting. Tenant shall
notify Landlord, in writing, as soon as reasonably possible, but in no event
later than two (2) days after any of the following: (a) a release or discharge
of any Hazardous Material, whether or not the release or discharge is in
quantities that would otherwise be reportable to a public agency; (b) Tenant’s
receipt of any order of a governmental agency requiring any Remedial Work
pursuant to any Hazardous Materials Laws; (c) Tenant’s receipt of any warning,
notice of inspection, notice of violation or alleged violation, or Tenant’s
receipt of notice or knowledge of any proceeding, investigation of enforcement
action, pursuant to any Hazardous Materials Laws; or (d) Tenant’s receipt of
notice or knowledge of any claims made



 26
 









 


or threatened by any third party against Tenant or the
Leased Premises, the Building or the Property, relating to any loss or injury
resulting from Hazardous Materials. Tenant shall deliver to Landlord copies of
all test results, reports and business or management plans required to be filed
with any governmental agency pursuant to any Hazardous Materials Laws.


34.7     Termination: Expiration. Upon the
termination or expiration of this Lease, Tenant shall remove any equipment,
improvements or storage facilities utilized in connection with any Hazardous
Materials and shall, clean up, detoxify, repair and otherwise restore the
Leased Premises to a condition free of Hazardous Materials for which Tenant is
responsible.


34.8     Indemnity. Tenant shall protect,
indemnify, defend and hold Landlord harmless from and against, and shall be
responsible for, any and all claims, costs, expenses, suits, judgments,
actions, investigations, proceedings and liabilities arising out of or in
connection with any breach of any provisions of this Article 34 or
directly or indirectly arising out of the use, generation, storage, release,
disposal or transportation of Hazardous Materials by Tenant or any sublessee or
assignee of Tenant, or their respective agents, contractors, employees,
licensees, or invitees, on, under or about the Leased Premises, the Building or
the Property during the Lease Term or Tenant’s occupancy of the Leased
Premises, including, but not limited to, all foreseeable and unforeseeable
consequential damages and the cost of any Remedial Work. Neither the consent by
Landlord to the use, generation, storage, release, disposal or transportation
of Hazardous Materials nor the strict compliance with all Hazardous Material
Laws shall excuse Tenant from Tenant’s indemnification obligations pursuant to
this Article 34. The foregoing indemnity shall be in addition to and not
a limitation of the indemnification provisions of Article 16 of this
Lease. Tenant’s obligations pursuant to this Article 34 shall survive
the termination or expiration of this Lease.


34.9     Assignment; Subletting. If Landlord’s
consent is required for an assignment of this Lease or a subletting of the
Leased Premises. Landlord shall have the right to refuse such consent if the
possibility of a release of Hazardous Materials is materially increased as a
result of the assignment or sublease or if Landlord does not receive reasonable
assurances that the new tenant has the experience and the financial ability to
remedy a violation of the Hazardous Materials Laws and fulfill its obligations
under this Article 34.


34.10   Entry and Inspection; Cure. Landlord
and its agents, employees and contractors, shall have the right, but not the
obligation, to enter the Leased Premises at all reasonable times to inspect the
Leased Premises and Tenant’s compliance with the terms and conditions of this Article
34, or to conduct investigations and tests. No prior notice to Tenant shall
be required in the event of an emergency, or if Landlord has reasonable cause
to believe that violations of this Article 34 have occurred, or if
Tenant consents at the time of entry. In all other cases, Landlord shall give
at least twenty-four (24) hours prior notice to Tenant. Landlord shall have the
right, but not the obligation, to remedy any violation by Tenant of the
provisions of this Article 34 or to perform any Remedial Work which is
necessary or appropriate as a result of any governmental order, investigation
or proceeding. Tenant shall pay, upon demand, as Additional Rent, all costs
incurred by Landlord in remedying such violations or performing all Remedial
Work, plus interest thereon at the Default Rate from the date of demand until
the date received by Landlord.


34.11   Event of Default. The release or
discharge of any Hazardous Material or the violation of any Hazardous Materials
Law shall constitute an Event of Default by Tenant under this Lease. In
addition to and not in lieu of the remedies available under this Lease as a
result of such Event of Default, Landlord shall have the right, without
terminating this Lease, to require Tenant to suspend its operations and
activities on the Leased Premises until Landlord is satisfied that appropriate
Remedial Work has been or is being adequately performed and Landlord’s election
of this remedy shall not constitute a waiver of Landlord’s right thereafter to
pursue the other remedies set forth in this Lease.


34.12   Landlord Representation. Landlord will
supply at its expense a copy of Landlord’s existing environmental report
showing that there are no hazardous substances in the Premises and shall have
no obligation to update said report.



 27
 









 


35. RESTRICTIONS


Tenant and all persons in
possession or holding under Tenant shall conform to and shall not violate the
terms of any matters of record. No use or operation will be made, conducted or
permitted by Tenant on or with respect to all or any part of the Property which
is obnoxious to or out of harmony with the development or operation of similar
properties, including, without limitation, the following: (a) any public or
private nuisance; (b) any noise or sound that is objectionable due to
intermittency, beat, frequency, shrillness or loudness; (c) any obnoxious odor,
(d) any noxious, toxic, caustic or corrosive fuel or gas; (e) any dust, dirt or
fly ash in excessive quantities; (f) any unusual fire, explosion or other
damaging or dangerous hazard; (g) the conduct of any sexually oriented
business, or a so-called “head” shop of businesses featuring, as a
principal portion of a business, the sale or presentation of so-called “adult”
products, sexually explicit products, or drug paraphernalia; (h) any activity
outside the ordinary course of business which physically and substantially
interferes with the business of any other tenant or any other individual or
entity using any portion of the Property; (i) the violation of any law,
ordinance, or rule or regulation of any governmental authority having
jurisdiction over the Property; or (j) for any other unreasonable use of the
Property not compatible with the operation of a first-class industrial office
development, including, without limitation, advertising media which can be
heard or experienced in an annoying manner from the exterior of the Building,
the Premises or the Property, or other improvement from which it emanates, such
a searchlights, loud speakers, phonographs, radios or television.


36. MISCELLANEOUS


36.1     Entire Agreement, Amendments. This
Lease and any Exhibits and Riders attached hereto and forming a part hereof,
set forth all of the covenants, promises, agreements, conditions and
understandings between Landlord and Tenant concerning the Leased Premises and
there are no covenants, promises, agreements, representations, warranties,
conditions or understandings either oral or written between them other than as
contained in this Lease. Except as otherwise provided in this Lease, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding unless it is in writing and signed by both Landlord and Tenant.


36.2     Time of the Essence. Time is of the
essence of each and every term, covenant and condition of this Lease.


36.3     Binding Effect. The covenants and
conditions of this Lease shall, subject to the restrictions on assignment and
subletting, apply to and bind the heirs, executors, administrators, personal
representatives, successors and assigns of the parties hereto.


36.4     Recordation. Neither this Lease nor
any memorandum hereof shall be recorded by Tenant. At the sole option of
Landlord, Tenant and Landlord shall execute, and Landlord may record, a short
form memorandum of this Lease in form and substance satisfactory to Landlord.


36.5     Governing Law. This Lease and all
the terms and conditions thereof shall be governed by and construed in
accordance with the laws of the State of Arizona.


36.6     Defined Terms and Paragraph Headings.
The words “Landlord” and “Tenant” as used in this Lease shall
include the plural as well as the singular. Words used in masculine gender
include the feminine and neuter. If there is more than one Tenant, the
obligations in this Lease imposed upon Tenant shall be joint and several. The
paragraph headings and titles to the paragraphs of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.


36.7     Representations and Warranties of Tenant.
Tenant represents and warrants to Landlord as follows:


(a)       Tenant has been duly organized, is
validly existing, and is in good standing under the laws of its state of
incorporation and is registered to transact business in Arizona. All necessary
action on the part of Tenant has been taken to authorize the execution, delivery
and performance of this Lease and of the other documents, instruments and
agreements, if any, provided



 28
 









 


for herein. The persons who have executed this Lease
on behalf of Tenant are duly authorized to do so;


(b)       This Lease constitutes the legal, valid
and binding obligation of Tenant, enforceable against Tenant in accordance with
its terms, subject, however, to bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws relating to or affecting the
rights of creditors generally, general principles of equity, whether
enforceability is considered in a proceeding in equity or at law, and to the
qualification that certain waivers, procedures, remedies and other provisions
of this Lease may be unenforceable under or limited by applicable law, however,
none of the foregoing shall prevent the practical realization to Landlord of
the benefits intended by this Lease;


(c)       To the best of its knowledge, there are
no suits, actions, proceedings or investigations pending, or to the best of its
knowledge, threatened against or involving Tenant before any court, arbitrator
or administrative or governmental body which might reasonably result in any
material adverse change in the contemplated business, condition or operations
of Tenant;


(d)       To the best of its knowledge, Tenant is
not, and the execution, delivery and performance of this Lease and the
documents, instruments and agreements, if any, provided for herein will not
result in any breach of or default under any other document, instrument or agreement
to which Tenant is a party or by which Tenant is subject or bound;


(e)       To the best of its knowledge, Tenant has
obtained all required licenses and permits, both governmental and private, to
use and operate the Leased Premises in the manner intended by this Lease; and


(f)        All financial statements, tax returns
and other financial information delivered by Tenant to Landlord prior to the
execution of this Lease is true, correct and complete in all material respects
and all financial statements, tax returns or other financial information to be
delivered by Tenant to Landlord subsequent to the execution of this Lease shall
be true, correct and complete in all material respects.


36.8     No Waiver. The failure of either
party to insist in any one or more instances upon the strict performance of any
one or more of the obligations of this Lease, or to exercise any election
herein contained, shall not be construed as a waiver or relinquishment for the
future of the performance of such one or more obligations of this Lease or the
right to exercise such election, but the same shall continue and remain in full
force and effect with respect to any subsequent breach, act or omission.


36.9     Severability. If any clause or
provision of this Lease is or becomes illegal or unenforceable because of any
present or future law or regulation of any governmental body or entity
effective during the Lease Term, the intention of the parties is that the
remaining provisions of this Lease shall not be affected thereby.


36.10   Exhibits. If any provision contained
in an Exhibit, Rider or Addenda to this Lease is inconsistent with any other
provision of this Lease, the provision contained in this Lease shall supersede
the provisions contained in such Exhibit, Rider or Addenda, unless otherwise provided.


36.11   Fair Meaning. The language of this
Lease shall be construed to its normal and usual meaning and not strictly for
or against either Landlord or Tenant. Landlord and Tenant acknowledge and agree
that each party has reviewed and revised this Lease and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply to the interpretation of this Lease, or any
Exhibits, Riders or amendments hereto.


36.12   No Merger. The voluntary or other surrender
of this Lease by Tenant or a mutual cancellation of this Lease shall not work
as a merger and shall, at Landlord’s option, either terminate any or all
existing subleases or subtenancies, or operate as an assignment to Landlord of
any or all of such subleases or subtenancies.



 29
 









 


36.13   Force Majeure. Any prevention, delay
or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to
obtain labor or materials for reasonable substitutes therefor, governmental
restrictions, regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty and other causes
beyond the reasonable control of either party (as applicable) shall excuse such
party’s (as applicable) performance hereunder for the period of any such
prevention, delay, or stoppage.


36.14   Government Energy or Utility Controls.
In the event of the imposition of federal, state or local governmental
controls, rules, regulations or restrictions on the use or consumption of
energy or other utilities during the Lease Term, both Landlord and Tenant shall
be bound thereby.


36.15   Shoring. If any excavation or
construction is made adjacent to, upon or within the Building, or any part
thereof, Tenant shall afford to any and all persons causing or authorized to
cause such excavation or construction license to enter onto the Leased Premises
for the purpose of doing such work as such persons shall deem necessary to
preserve the Building or any portion thereof from injury or damage and to
support the same by proper foundations, braces and supports without any claim
for damages, indemnity or abatement of Annual Basic Rent or Additional Rent or
for a constructive or actual eviction of Tenant.


36.16   Transfer of Landlord’s Interest. The
term “Landlord”as used in this Lease, insofar as the covenants or
agreements on the part of the Landlord are concerned, shall be limited to mean
and include only the owner or owners of Landlord’s interest in this Lease at
the time in question. Upon any transfer or transfers of such interest, the
Landlord herein named (and in the case of any subsequent transfer, the then
transferor) shall thereafter be relieved of all liability for the performance
of any covenants or agreements on the part of the Landlord contained in this Lease.


36.17   Limitation on Landlord’s Liability. If
Landlord becomes obligated to pay Tenant any judgment arising out of any
failure by the Landlord to perform or observe any of the terms, covenants,
conditions or provisions to be performed or observed by Landlord under this
Lease, Tenant shall be limited in the satisfaction of such judgment solely to
Landlord’s interest in the Building and the Property or any proceeds arising
from the sale thereof and insurance proceeds and no other property or assets of
Landlord or the individual partners, directors, officers or shareholders of
Landlord or its constituent partners shall be subject to levy, execution or
other enforcement procedure whatsoever for the satisfaction of any such money
judgment.


36.18   Brokerage Fees. Tenant warrants and
represents that it has not dealt with any Realtor, broker or agent in
connection with this Lease except the Broker identified in Article 1.18
above. Tenant shall indemnify, defend and hold Landlord harmless from and
against, and shall be responsible for, any cost, expense or liability
(including the cost of suit and reasonable attorneys’ fees) for any
compensation, commission or charges claimed by any other Realtor, broker or
agent in connection with this Lease or by reason of any act of Tenant.


36.19   Guaranty. Concurrently with the
execution of this Lease, Tenant shall cause the Guarantors to execute, have
acknowledged and deliver to Landlord, the Guaranty of Lease attached hereto as Exhibit
“G”, whereby Guarantors unconditionally guaranty to Landlord each and every
obligation of Tenant under this Lease.


36.20   Continuing Obligations. All
obligations of Tenant and Landlord hereunder not fully performed as of the
expiration or earlier termination of this Lease shall survive the expiration or
earlier termination of this Lease, including, without limitation, all payment
obligations with respect to Annual Basic Rent, Additional Rent and all
obligations concerning the condition of the Premises.



 30
 









IN WITNESS WHEREOF,
Landlord and Tenant have executed this Lease as of the date and year first
above written.


 


	
  

  	
  LANDLORD:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HARDY COMMERCE CENTER, L.L.C.,
  an

  Arizona limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Victoria Properties Management, L.L.C., an

  
	
   

  	
   

  	
  Arizona Limited Liability Company

  
	
   

  	
  Its:

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ken Matheson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Ken Matheson

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Managing Member

  	
   

  
								



 


 


	
  

  	
  TENANT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Prism Arizona-Operations, LLC, a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bob van Dyke

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bob van Dyke

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Vice President Switch Operations

  	
   

  
								



 


 


	
  Witness for purposes of Power of Attorney:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bob van Dyke

  	
   

  
	
  Witness

  	
   

  	
  Name:

  	
  Bob van Dyke

  	
   

  
	
  Name:

  	
  Daniel Pugh

  	
   

  	
   

  	
  Its:

  	
  Secretary

  	
   

  
									



 


If Tenant is a CORPORATION,
the authorized officers must sign on behalf of the corporation and indicate the
capacity in which they are signing. The Lease must be executed by the president
or vice-president and the secretary or assistant secretary, unless the bylaws
or a resolution of the board of directors shall otherwise provide, in which
event, the bylaws or a certified copy of the resolution, as the case may be,
must be attached to this Lease.



 31















EXHIBIT “A” 


SITE PLAN


The Leased Premises are part of the Property located at 7810-7890 South
Hardy Drive in Tempe,


Arizona which consists of approximately 98,464 rentable square feet
detailed as:


[GRAPHIC]



 32
  
 









EXHIBIT “B” 


FLOOR PLAN


The Leased Premises are located in the Building at 7850 South Hardy
Drive, Suite to be established, Tempe, Arizona 85284, which is detailed below:



 33
  
 









EXHIBIT “D” 


RESERVED COVERED PARKING
LICENSE



 34
  
 









EXHIBIT “E”


WORK LETTER


In order to induce Tenant
to enter into the Lease (which is incorporated herein by reference to the
extent that the provisions of this Work Letter may apply thereto) and in
consideration of the mutual covenants hereinafter contained, Landlord and
Tenant agree as follows:


1.                                     Completion Schedule. Attached to this Work
Letter is a schedule (the “Work Schedule”) setting forth the time table
for the planning and completion of the installation of the tenant improvements
to be constructed in the Leased Premises (the “Tenant Improvements”).
The Work Schedule sets forth each of the various items of work to be done in
connection with the completion of the Tenant Improvements and shall become the
basis for completing the Tenant Improvements. Landlord and Tenant acknowledge
and agree that time is of the essence with respect to their respective
obligations as set forth in this Work Letter.


2.                                     Tenant Improvements. The Tenant
Improvements shall include the work described on Annex I to this Exhibit
“E”, which work shall be done in the Leased Premises pursuant to the Tenant
Improvements Plans described in Paragraph 3 below.


3.                                     Tenant Improvement Plans. Tenant shall
meet with Landlord’s architect and/or space planner for the purposes of
preparing a space plan for the layout of the Premises. Based upon such space
plan, Landlord’s architect shall prepare final working drawings and
specifications for the Tenant Improvements. Such final working drawings and
specifications are referred to in this Work Letter as the “Tenant
Improvement Plans.”


4.                                     Preparation of Tenant Improvement Plans and Final
Pricing. After the preparation of the space plan and after
Tenant’s approval thereof in accordance with the Work Schedule, Landlord shall
cause its architect to prepare and submit to Tenant the Tenant Improvement
Plans. Promptly after the approval of the Tenant Improvement Plans by Landlord
and Tenant in accordance with the Work Schedule, the Tenant Improvement Plans
shall be submitted to the appropriate governmental body for plan checking and
building permits. Landlord, with Tenant’s cooperation, shall cause to be made
such changes in the Tenant Improvement Plans necessary to obtain required
permits. Tenant acknowledges that after final approval of the Tenant
Improvement Plans, no further changes to the Tenant Improvement Plans may be
made without the prior written consent of Landlord, which consent shall not be
unreasonably withheld but may be conditioned on the agreement by Tenant to pay
all additional costs and expenses resulting from such requested changes that
exceed the Allowance (defined below).


5.                                     Construction of Tenant Improvements.
After the Tenant Improvement Plans have been prepared and approved, and
building permits for the Tenant Improvements have been issued, Landlord shall
enter into a construction contract with its contractor for the installation of
the Tenant Improvements in accordance with the Tenant Improvement Plans. The
Tenant Improvements shall be constructed in a good, workmanlike and lien free
manner, and in conformance with applicable building codes. Landlord shall supervise
the completion of the Tenant Improvements and shall endeavor in good faith to
secure the completion of the Tenant Improvements in accordance with the Work
Schedule. The cost of the Tenant Improvements shall be paid as provided in Paragraph
6 below. Tenant shall accept the Tenant Improvements upon substantial
completion thereof, as reasonably determined by Landlord’s architect.


6.                                     Payment of the Cost of the Tenant Improvements.


a.                                     Tenant Improvement Allowance. Landlord
hereby grants to Tenant a Tenant Improvement allowance (the “Allowance”) based
upon a calculation of Twenty-five and 0/100 Dollars ($25.00) per usable square
foot of the Leased Premises. Landlord and Tenant agree that the usable square
Footage of the Leased Premises is 4846 usable square feet. The Allowance shall
be used only for:



 35
  
 









(i)                           Payment
of the cost of preparing the space plan and the final working drawings and
specifications, including mechanical, electrical and structural drawings and of
all other aspects of the Tenant Improvement Plans, including the charges of
Landlord’s space planner and Landlord’s architect.


(ii)                        The
payment of permit and license fees relating to construction of the Tenant
Improvements; and Construction of the Tenant Improvements, including without
limitation the following:


(1)                                Installation
within the Leased Premises of all partitioning, doors, floor coverings,
finishes, ceilings, wall coverings and paintings, millwork and similar items;


(2)                                All
electrical wiring, lighting fixtures, outlets and switches, and other
electrical work to be installed within the Leased Premises;


(3)                                The
furnishing and installation of all duct work, terminal boxes, defusers and
accessories required for the completion of the heating, ventilation and air
conditioning systems within the Leased Premises.


(4)                                Any
additional Tenant requirements including, but not limited to odor control,
special heating, ventilation and air conditioning, noise or vibration control
or other special systems;


(5)                                All
fire and life safety control systems such as fire walls, sprinklers, halon,
fire alarms, including piping, wiring and accessories installed within the
Leased Premises; and


(6)                                All
plumbing, fixtures, pipes and accessories to be installed within the Leased
Premises; and


(7)                                All
monument and directory signage.


b. Additional Costs.
The cost of each of the items set forth in Paragraph 6(a) above shall be
charged against the Allowance. In the event the anticipated cost of installing
the Tenant Improvements, as established by Landlord’s final pricing schedule,
shall exceed the Allowance, or in the event any of the Tenant Improvements are
not to be paid for from the Allowance, the excess shall be paid by Tenant to
Landlord prior to the commencement of construction of the Tenant improvements.


c. Chances to Tenant Improvement
Plans. In the event that Tenant shall request any changes or
substitutions to the Tenant Improvement Plans, after the Tenant Improvement
Plans have been prepared and the final pricing established by Landlord, any
additional costs attributable thereto shall be paid by Tenant to Landlord prior
to the commencement of the work represented by such changes, unless covered
under the Allowance.


d. Unused Allowance.
No portion of the Allowance may be credited toward Annual Basic Rent or
Additional Rent.


7.                                     Early Entry. Landlord shall permit
Tenant and Tenant’s agents to enter the Leased Premises prior to the
Commencement Date in order that Tenant may do such work as may be required by
Tenant to make the Leased Premises ready for Tenant’s use and occupancy. If
Landlord permits such entry prior to the Commencement Date, such permission is
conditioned upon Tenant and its agents, contractors, employees and invitees
working in harmony and not interfering with Landlord and its agents, contractors
and employees in the installation of the Tenant Improvements or in the
performance of work for other tenants and occupants of the Building. If at any
time such entry shall cause or threaten to cause disharmony or interference,
Landlord shall have the right to withdraw such permission upon twenty-four (24)
hours notice to Tenant. Any entry into the Leased Premises by Tenant prior to
the Commencement Date shall be subject to all of the terms, covenants,
conditions and provisions of the Lease, other than with



 36
  
 









respect to Tenant’s obligation to pay Annual Basic Rent. Tenant
acknowledges and agrees that Landlord shall not be liable in any way for any
injury, loss or damage which may occur to Tenant, its agents, contractors and
employees or to Tenant’s work and installations made in the Leased Premises or
to property placed therein prior to the Commencement Date, all of the same
being at Tenant’s sole risk, provided, however, that Landlord shall be liable
to Tenant for the gross negligence of Landlord, its agents, contractors and
employees.


8.                                     Punch List Procedure. Not later than
the day prior to the Commencement Date, Tenant shall prepare a list (the “Punch
List”) of any deficiencies or incompleted work regarding any Tenant
Improvements. Provided that such items are Landlord’s responsibility pursuant
to the Tenant Improvement Plans, Landlord shall correct such deficiencies or
incompleted work within a reasonable period of time, but in no event later than
sixty (60) days after receipt of the Punch List, after which Landlord shall
have no further obligation to alter, change, decorate or improve the Leased
Premises, whether to adapt the same for the use for which it is leased or for
any other purpose. The existence of such deficiencies or incompleted work shall
not effect Tenant’s obligation to accept the Leased Premises as otherwise
required hereunder.


9.                                     Assignment of Warranties. Landlord
shall assign to Tenant the non-exclusive right to enforce any and all
warranties which Landlord may receive from any contractor, supplier or other
person or entity involved with construction of the Tenant Improvements, which
assignment shall continue until the expiration or sooner termination of the
Lease or the expiration of the warranty, whichever occurs first.



 37
  
 









ANNEX I


TO


EXHIBIT “E”


TENANT IMPROVEMENTS



 38
  
 









EXHIBIT “F”


RULES AND REGULATIONS


1.                                     Unless
otherwise specifically defined herein, all capitalized terms in these Rules and
Regulations shall have the meaning set forth in the Lease to which these Rules
and Regulations are attached.


2.                                     The
sidewalks, driveways, entrances, passages, courts, vestibules, stairways,
corridors or halls of the Building and the Property shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant. The halls, passages, exits,
entrances, stairways, balconies and roof are not for the use of the general
public, and the Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence in the judgment of
Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants.


3.                                     No
awnings or other projection shall be attached to the outside walls or windows
of the Building. No curtains, blinds, shades, or screens shall be attached to
or hung in, or used in connection with, any window or door of the premises
demised to any tenant or occupant, without the prior written consent of
Landlord. All electrical fixtures hung in any premises demised to any tenant or
occupant must be of a type, quality, design, color, size and general appearance
approved by Landlord.


4.                                     No
tenant shall place objects against glass partitions, doors or windows which
would be in sight from the Building corridors or from the exterior of the
Building and such tenant will promptly remove any such objects when requested
to do so by Landlord.


5.                                     The
windows and doors that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed, nor shall any bottles, parcels, or other articles be placed on any
window sills.


6.                                     No
show cases or other articles shall be put in front of or affixed to any part of
the exterior of the Building or the other buildings in the Property, nor placed
in the halls, corridors, walkways, landscaped areas, vestibules or other public
parts of the Building or the Property.


7.                                     The
restrooms, water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. The
reasonable costs incurred by Landlord (a) for extra cleaning in any restroom,
water or wash closet required because of any misuse of such restroom, water or
wash closet, and/or (b) to repair any damage resulting from any misuse of the
fixtures will be borne by the tenant who, or whose employees, agents, visitors
or licensees, caused the same. No tenant shall bring or keep, or permit to be
brought or kept, any flammable, combustible, explosive or hazardous fluid,
material, chemical or substance in or about the premises demised to such tenant
or the Property.


8.                                     No
tenant or occupant shall mark, paint, drill into, or in any way deface any part
of the Property, the Building or the premises demised to such tenant or
occupant. No boring, cutting or strings of wires shall be permitted, except
with the prior consent of Landlord, and as Landlord may direct. No tenant or
occupant shall install any resilient tile or similar floor covering in the
premises demised to such tenant or occupant except in a manner approved by
Landlord,


9.                                     Any
carpeting cemented down by a tenant shall be installed with a releasable
adhesive. In the event of a violation of the foregoing by a tenant, Landlord
may charge the expense incurred in such removal to such tenant.


10.                               No
bicycles, vehicles or animals of any kind (except seeing eye dogs) shall be
brought into or kept in or about the premises demised to any tenant. No cooking
shall be done or permitted in the Building by any tenant without the written
approval of Landlord. No tenant



 39
  
 









shall cause or permit any unusual or objectionable odors to emanate
from the premises demised to such tenant.


11.                               No
space in the Building or the Property shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or properly of
any kind at auction.


12.                               No
tenant and no employee, visitor, agent, or licensee of any Tenant shall make,
or permit to be made, any unseemly or disturbing noises or vibrations or
disturb or interfere with other tenants or occupants of the Building or
neighboring buildings or premises whether by the use of any musical instrument,
radio, television set, broadcasting equipment or other audio device, noise,
whistling, singing, yelling or screaming, or in any other way. Nothing shall be
thrown out of any doors. No tenant and no employee, visitor, agent, or licensee
of any Tenant shall conduct itself in any manner that is inconsistent with the
character of the Building as a first quality building or that will impair the
comfort, convenience or safety of other tenants in the Building.


13.                               No
additional locks or bolts of any kind shall be placed upon any of the doors,
nor shall any changes be made in locks or the mechanism thereof. Each tenant
must, upon the termination of its tenancy, return to Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise procured
by, such Tenant.


14.                               All
removals from the Building, or the carrying in or out of the Building or from
the premises demised to any tenant, of any safes, freight, furniture or bulky
matter of any description must take place at such time and in such manner as
Landlord or its agents may determine, from time to time. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of the Rules and Regulations
or the provisions of such tenant’s lease.


15.                               No
tenant or occupant shall engage or pay any employees in the Building or the
Property, except those actually working for such tenant or occupant in the
Building or the Property, nor advertise for day laborers giving an address at
the Building or the Property.


16.                               Landlord
shall have the right to prohibit any advertising by any tenant or occupant
which, in Landlord’s opinion, tends to impair the reputation of the Building or
the Property or its desirability as a building for offices, and upon notice
from Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.


17.                               Each
tenant shall, at its expense, provide artificial light in the premises demised
to such tenant for Landlord’s agents, contractors and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.


18.                               No
premises shall be used, or permitted to be used for lodging or sleeping, or for
any immoral or illegal purposes or in any matter that, in Landlord’s reasonable
business judgment, threatens the safety of the Building or the tenants of the
Building and their employees and invitees. In addition, each tenant shall
maintain its furniture, fixtures and equipment within its premises in a manner
that presents a pleasant appearance both in daylight and nighttime from the
surrounding streets and roadways.


19.                               The
requirements of tenants will be attended to only upon application at the
management office of Landlord. Building employees shall not be required to
perform, and shall not be requested by any tenant or occupant to perform, and
work outside of their regular duties, unless under specific instructions from
the office of Landlord.


20.                               Canvassing,
soliciting and peddling in the Building or the Property are prohibited and each
tenant and occupant shall cooperate in seeking their prevention.


21.                               There
shall not be used in the Building, either by any tenant or occupant or by their
agents or contractors, in the delivery or receipt of merchandise, freight or
other matter, any hand



 40
  
 









trucks or other means of conveyance except those equipped with rubber
tires, rubber side guards and such other safeguards as Landlord may require.


22.                               If
the premises demised to any tenant become infested with vermin, such tenant, at
its sole cost and expense, shall cause its premises to be exterminated, from
time to time, to the satisfaction of Landlord, and shall employ such
exterminators therefor as shall be approved in writing by Landlord.


23.                               No
premises shall be used, or permitted to be used, at any time, as a store for
the sale or display of goods, wares or merchandise of any kind, or as a
restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which predominantly involves direct patronage of the
general public in the premises demised to such tenant, or for manufacturing or
for other similar purposes.


24.                               No
tenant shall clean any window of the Building from the outside.


25.                               No
tenant shall move, or permit to be moved, into or out of the Building or the
premises demised to such tenant, any heavy or bulky matter, without the
specific approval of Landlord. If any such matter requires special handling,
only a qualified person shall be employed to perform such special handling. No
tenant shall place or permit to be placed, on any part of the floor or floors
of the premises demised to such tenant, a load exceeding the floor load per
square foot which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of safes and
other heavy objects, which must be placed so as to distribute the weight.


26.                               With
respect to work being performed by a tenant in its premises with the approval
of Landlord, the tenant shall refer all contractors, contractors’
representatives and installation technicians to Landlord for its supervision,
approval and control prior to the performance of any work or services. This
provision shall apply to all work performed in the Building and the Property
including installation of telephones, telegraph equipment, electrical devices
and attachments, and installations of every nature affecting floors, walls,
woodwork, trim, ceilings, equipment and any other physical portion of the
Building and the Property.


27.                               Landlord
shall not be responsible for lost or stolen personal property, equipment,
money, or jewelry from the premises of tenants or public rooms whether or not
such loss occurs when the Building or the premises are locked against entry.


28.                               Landlord
may permit entrance to the premises of tenants by use of pass keys controlled
by Landlord employees, contractors, or service personnel directly supervised by
Landlord and employees of the United States Postal Service.


29.                               Each
tenant and all of tenant’s representatives, shall observe and comply with the
directional and parking signs on the property surrounding the Building, and
Landlord shall not be responsible for any damage to any vehicle towed because
of non-compliance with parking regulations.


30.                               No
tenant shall install any radio, telephone, television, microwave or satellite
antenna, loudspeaker, music system or other device on the roof or exterior
walls of the Building or on common walls with adjacent tenants or in the Common
Areas.


31.                               Each
tenant shall store all trash and garbage within its premises. No material shall
be placed in the trash boxes or receptacles in the Building or the Property
unless such material may be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage and will not result in a violation
of any law or ordinance governing such disposal. All garbage and refuse
disposal shall be made only through entryways and elevators provided for such
purposes and at such limes as Landlord shall designate.


32.                               Each
tenant shall give prompt notice to landlord of any accidents to or defects in plumbing,
electrical or heating apparatus so that same may be attended to properly.



 41
  
 









33.                               No
tenant shall bring onto the Property or into the Building any pollutants,
contaminants, inflammable, gasolines, kerosene or hazardous substances (as now
or later defined under State or Federal law).


34.                               All
tenants and tenants’ servants, employees, agents, visitors, invitees and
licensees shall observe faithfully and comply strictly with the foregoing Rules
and Regulations and such other and further appropriate Rules and Regulations as
Landlord or Landlord’s agent from time to time adopt. Each tenant shall at all
times keep the premises leased to such tenant, its employees, agents and
invitees under its control so as to prevent the performance of any act that
would damage the Building or its reputation or the premises leased to such
tenant or could injure, annoy, or threaten the security of the other tenants in
the Building or their respective employees, agents or invitees or the public.


35.                               Landlord
may deny entrance to the Building and may remove from the Building any person
or persons who appear to be or are intoxicated, or who appear to be or are
under the influence of liquor or drugs, or who are in any manner violating any
of the Building Rules and Regulations, or who present a hazard or nuisance to
any other person. The reasonable costs incurred by Landlord for security
services or other costs reasonably incurred by Landlord to remove any such
persons shall be borne by the tenant whose employees, agents and/or invitees
are so removed.


36.                               Landlord
shall furnish each tenant, at Landlord’s expense, with two (2) keys to unlock
the entry level doors to each tenant’s premises and, at such tenant’s expense,
with such additional keys as such tenant may request. No tenant shall install
or permit to be installed any additional lock on any door into or inside of the
premises demised to that tenant or make or permit to be made any duplicate of
keys to the entry level doors or the doors to such premises. Landlord shall be
entitled at all times to possession of a duplicate of all keys to all doors
into or inside of the premises demised to tenants of the Building. All keys
shall remain the property of Landlord. Each tenant shall deliver to Landlord a
deposit in the amount established by Landlord. Any lost key shall be subject to
a replacement charge as established by Landlord from time to time. Upon the
expiration of the Lease Term, each tenant shall surrender all such keys to
Landlord and shall deliver to Landlord the combination to all locks on all
safes, cabinets and vaults which will remain in the premises demised to that
tenant. Landlord shall be entitled to install, operate and maintain security
systems in or about the Property which monitor, by computer, close circuit
television or otherwise, persons entering or leaving the Property, the Building
and/or the premises demised to any tenant. For the purposes of this rule the
term “keys” shall mean traditional metallic keys, plastic or other key
cards and other lock opening devices.


37.                               Each
person using the Parking Accommodations or other areas designated by Landlord
where parking will be permitted shall comply with all Rules and Regulations
adopted by Landlord with respect to the Parking Accommodations or other areas,
including any employee or visitor parking restrictions, and any sticker or
other identification system established by Landlord. Landlord may refuse to permit
any person who violates any parking rule or regulation to park in the Parking
Accommodations or other areas, and may remove any vehicle which is parked in
the Parking Accommodations or ether areas in violation of the parking Rules and
Regulations. The Rules and Regulations applicable to the Parking Accommodations
and the outside parking areas are as follows:


(a)                                The
maximum speed limit within the Parking Accommodations shall be 5 miles per
hour, the maximum speed limit in other parking areas shall be 15 miles per
hour.


(b)                               All
directional signs and arrows must be strictly observed.


(c)                                All
vehicles must be parked entirely within painted stall lines.


(d)                               No
intermediate or full-size car may be parked in any parking space reserved for a
compact car; no bicycle, motorcycle or other two or three wheeled vehicle, and
no truck, van or other oversized vehicle, may be parked in any area not
specifically designated for use thereby.



 42
  
 









(e)                                No
vehicle may be parked (i) in an area not striped for parking, (ii) in a space
which has been reserved for visitors or for another person or firm, (iii) in an
aisle or on a ramp, (iv) where a “no parking” sign is posted or which
has otherwise designated as a no parking area, (v) in a cross hatched area,
(vi) in an area bearing a “handicapped parking only” or similar
designation unless the vehicle bears an appropriate handicapped designation,
(vii) in an area bearing a “loading zone” or similar designation unless
the vehicle is then engaged in a loading or unloading function and (viii) in an
area with a posted height limitation if the vehicle exceeds the limitation.


(f)                                  Parking
passes, stickers or other identification devices that may be supplied by
Landlord shall remain the property of Landlord and shall not be transferable.
Landlord may require a deposit for each such pass, sticker or other
identification device. In addition, a replacement charge determined by Landlord
will be payable by each tenant for loss of any magnetic parking card or parking
pass or sticker.


(g)                               Each
operator shall be required to park and lock his or her own vehicle, shall use
the Parking Facilities at his or her own risk and shall bear full
responsibility for all damage to or loss of his or her vehicle, and for all
injury to persons and damage to property caused by his or her operation of the
vehicle.


(h)                               Landlord
reserves the right to tow away, at the expense of the owner, any vehicle which
is inappropriately parked or parked in violation of these Rules and
Regulations.


38.                               Landlord
reserves the right at any time and from time to time to rescind, alter or
waive, in whole or in part, any of the Building Rules and Regulations when it
is deemed necessary, desirable or proper, in Landlord’s judgment for its best
interest or of the best interests of the tenants of the Property.


39.                               Landlord
has designated the Building a “non-smoking” building in accordance with
the Smoking Pollution Control Ordinance adopted by the City of Tempe, Arizona
as set forth in the City of Tempe Municipal Code. Accordingly, smoking of
tobacco or any other weed plant is prohibited in the Building Common Areas,
including the Building Lobby, the Building entrances and exits, including the
portions of the Property adjacent thereto, public corridors, lavatories,
elevators and other public areas. Further, smoking of tobacco or any other weed
plant is prohibited on the Property, except in areas that may be designated,
from time to time, by Landlord.


40.                               Bicycles,
motorcycles and other two or three-wheeled vehicles may only be stored or
parked in areas designated, from time to time, by Landlord.


Tenant hereby acknowledges receipt of the Building Rules and
Regulations.


	
  TENANT:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Prism Arizona
  Operations, LLC 

  	
   

  	
   

  
	
  a Delaware
  limited liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Bob van Dyke

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
    Bob
  van Dyke

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
      Vice
  President Switch Operations

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
							



 



 43
  
 









RIDER


Rider to Lease dated September 24, 1999 between HARDY COMMERCE CENTER,
L.L.C., an Arizona Limited Liability Company (“Landlord”) and Prism
Communication Services, Inc., a Delaware Corporation, (“Tenant”).


	
  Right of First Refusal:

  	
   

  	
  Tenant shall have a single right of first refusal to
  lease any contiguous space in the building subject to existing options.
  Tenant shall exercise its right within ten (10) calendar days of Tenant’s
  receipt of notice that Landlord has received a bona fide offer from another
  tenant prospect. After the contiguous space is leased. Landlord will grant an
  ongoing right of first refusal to Tenant for contiguous space. The contiguous
  space will be leased on the same terms and conditions as applicable to the
  offer to lease, including commissions.

  
	
   

  	
   

  	
   

  
	
  Electrical:

  	
   

  	
  Tenant will rely for its entire supply of electric
  current on the public utility by direct meter and Landlord shall identify the
  point of connection within the existing electrical distribution system for
  the requested service. If direct metering is not possible, the Premises shall
  be sub-metered with direct pass through of electrical costs without
  additional Landlord charge.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Landlord shall provide space within the Building (at
  no additional rental) for the installation of an additional transformer if
  such transformer is necessary to satisfy Tenant’s electrical requirements.
  Such location shall be acceptable to the public utility, Tenant and Landlord.

  
	
   

  	
   

  	
   

  
	
  Utilities During
  Construction:

  	
   

  	
  Landlord shall provide, at Tenant’s expense, power,
  water and sewer during Tenant’s construction of its improvements.

  
	
   

  	
   

  	
   

  
	
  Options to
  Renew:

  	
   

  	
  With 12 months prior written notice for each
  renewal, Prism Communication Services shall have two options to renew for 5
  years each. Each renewal shall be at 95% of the then fair market value rental
  rate for space taking into account all relevant current market factors,
  including but not limited to base rent, existing tenant improvements,
  escalations (current base year), construction period, free rent, brokerage
  commissions, etc. The fair market value determination shall be based on
  similar buildings in the same market. Within thirty (30) days after receipt
  of the notice of the exercise of the renewal option, Landlord shall notify
  Tenant of the proposed rent for the renewal term. If the parties cannot agree
  on the rent for the renewal term within thirty (30) days after Tenant’s
  receipt of Landlord’s notice, Tenant shall have the right to terminate the
  exercise of the option or elect to proceed to arbitration. If Tenant elects
  to proceed to arbitration, then each party shall appoint, and bear the expense
  of the arbitrator so appointed, an arbitrator with at least ten (10) years
  experience in office and industrial real estate in the Phoenix, Arizona
  market area who shall each decide the fair market rate. If the appointed
  arbitrators do not agree, each arbitrator shall designate its proposed fair
  market rate and mutually appoint a third arbitrator who shall pick the rate
  that third arbitrator believes is closest to the fair market rate. The
  parties shall each pay one-half the cost of the third arbitrator.

  
	
   

  	
   

  	
   

  
	
  Standby
  Generator Installation:

  	
   

  	
  The Landlord will provide Tenant appropriate space
  outside the Building and the right to install, operate, maintain, and test

  



 



 44
  
















	
  

  	
   

  	
  (weekly) a dedicated stand by generator system of
  approximately 750K capacity, including fuel storage cable and piping routing
  and exhaust routing for the generator. The operation and testing of the
  standby generator (i.e. running of the generator other than during power
  failures) shall be scheduled so as not to disrupt the use of the building by
  other tenants in Landlord’s sole discretion. Generator installation in the
  rear of the Building is acceptable. Landlord shall allow any and all conduits
  to be run between the generator and Tenant’s space at no cost to the Landlord.
  The installation and location will be subject to Landlord’s review and
  approval in its sole discretion.

  
	
   

  	
   

  	
   

  
	
  Accommodation Space:

  	
   

  	
  Subject to Landlord’s written approval, Tenant shall
  have the right, throughout the term, to utilize or create additional space
  within the Project (at no additional rental) to accommodate Tenant’s
  equipment and facilities (e.g., the construction of a structural platform to
  support a HVAC cooling tower or an enclosure for an emergency backup
  generator) subject to Landlord’s consent, which shall be in Landlord’s sole
  discretion.

  
	
   

  	
   

  	
   

  
	
  Communications Services:

  	
   

  	
  Tenant shall have the right to provide
  communications services to other tenants in the Building and/or any other
  buildings owned by Landlord or its affiliates and to utilize existing
  building risers for such purposes provided that no installation of equipment
  will be mounted on the exterior of any buildings or require the installation
  by Landlord of any facilities. Such right will not be deemed to be an
  exclusive right to provide such services and any tenant will be free to chose
  any communications provider and will not interfere with any other tenant’s
  rights.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tenant shall have the right to access the Leased
  Premises grade level loading dock.

  
	
   

  	
   

  	
   

  
	
  Other Providers:

  	
   

  	
  Landlord will permit other telecommunication
  providers access to the Building to connect to Tenant’s equipment and
  facilities, provided that said access does not disrupt any tenants occupancy
  or require construction of any additional facilities.

  
	
  Sublease & Assignment:

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Any direct or indirect assignment of the Lease by
  virtue of the merger or consolidation of Tenant or by virtue of the sale of
  all or substantially all of Tenant’s assets would be permitted without
  Landlord’s consent.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Any assignment of the Lease or sublease of all or
  any portion of the Premises to an affiliate is permitted without Landlord’s
  consent provided that in the event of an assignment, the Tenant remains
  liable for the obligations of the Lease.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Any assignment of the Lease or sublease of the
  Premises to unaffiliated third parties is  subject to Landlord’s
  consent, which consent is not to be unreasonably withheld or delayed.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Landlord will not have any right of recapture;
  subleasing profits would be shared equally between Tenant and Landlord; all
  such rights would pass to all permitted assignees and/or subtenants.

  



 



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  Signage:

  	
   

  	
  Tenant shall have the right to install exterior
  signage on the Building (subject to applicable building and signage codes and
  Landlord’s approval, not to be unreasonably withheld). Tenant shall be
  entitled to a listing in the Building directory and to install signage at the
  entrance to the Premises if such signage is available by the Landlord.

  
	
   

  	
   

  	
   

  
	
  Non-Disturbance:

  	
   

  	
  Landlord shall use its best efforts to obtain for
  Tenant non-disturbance agreements from all existing and future
  mortgagees/ground lessors.

  
	
   

  	
   

  	
   

  
	
  Relocation:

  	
   

  	
  Landlord shall have no right to relocate Tenant to
  other premises within the Building or to otherwise relocate any equipment or
  facilities of Tenant’s.

  



 



 -53-