EXHIBIT
10.1


 


 


 


 


 


 


 


 


 


 


OFFICE
LEASE 



BETWEEN


 3960 HHP LLC



(“LANDLORD”)



AND



NORTHWEST POWER MANAGEMENT, INC.



(“TENANT”)


 


 


 





















TABLE OF CONTENTS


	
  1.

  	
  Basic Lease Information.

  	
   

  
	
  2.

  	
  Lease Grant.

  	
   

  
	
  3.

  	
  Term; Adjustment of
  Commencement Date.

  	
   

  
	
  4.

  	
  Rent.

  	
   

  
	
  5.

  	
  Tenant’s Use of Premises.

  	
   

  
	
  6.

  	
  Security Deposit.

  	
   

  
	
  7.

  	
  Services Furnished by Landlord.

  	
   

  
	
  8.

  	
  Use of Electrical Services by
  Tenant.

  	
   

  
	
  9.

  	
  Repairs and Alterations.

  	
   

  
	
  10.

  	
  Entry by Landlord.

  	
   

  
	
  11.

  	
  Assignment and Subletting.

  	
   

  
	
  12.

  	
  Liens.

  	
   

  
	
  13.

  	
  Indemnity.

  	
   

  
	
  14.

  	
  Insurance.

  	
   

  
	
  15.

  	
  Mutual Waiver of Subrogation.

  	
   

  
	
  16.

  	
  Casualty Damage.

  	
   

  
	
  17.

  	
  Condemnation.

  	
   

  
	
  18.

  	
  Events of Default.

  	
   

  
	
  19.

  	
  Remedies.

  	
   

  
	
  20.

  	
  Limitation of Liability.

  	
   

  
	
  21.

  	
  No Waiver.

  	
   

  
	
  22.

  	
  Tenant’s Right to Possession.

  	
   

  
	
  23.

  	
  Relocation.

  	
   

  
	
  24.

  	
  Holding Over.

  	
   

  
	
  25.

  	
  Subordination to Mortgages;
  Estoppel Certificate.

  	
   

  
	
  26.

  	
  Attorneys’ Fees.

  	
   

  
	
  27.

  	
  Notice.

  	
   

  
	
  28.

  	
  Reserved Rights.

  	
   

  
	
  29.

  	
  Surrender of Premises.

  	
   

  
	
  30.

  	
  Hazardous Materials.

  	
   

  
	
  31.

  	
  Building Directory.

  	
   

  
	
  32.

  	
  Miscellaneous.

  	
   

  



 


EXHIBITS
AND RIDERS:


	
  EXHIBIT A-1

  	
  OUTLINE AND LOCATION OF PREMISES

  
	
  EXHIBIT A-2

  	
  LEGAL DESCRIPTION OF PROPERTY

  
	
  EXHIBIT B

  	
  RULES AND REGULATIONS

  
	
  EXHIBIT C

  	
  COMMENCEMENT LETTER

  
	
  EXHIBIT D

  	
  WORK LETTER

  
	
  EXHIBIT E

  	
  PARKING AGREEMENT

  



 


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OFFICE
LEASE


This Office Lease (this “Lease”) is entered
into by and between 3960 HHP LLC, a Delaware limited liability company (“Landlord”), and NORTHWEST  POWER MANAGEMENT, INC., a Washington
corporation (“Tenant”), and shall be
effective as of the date set forth below Landlord’s signature (the “Effective Date”).


1.             Basic Lease Information.  The key business terms used in this Lease are
defined as follows:


 


                A.            “Building”:  The building commonly known as “3960 Howard
Hughes Parkway” and located in Las Vegas, Nevada 89109.


                B.            “Rentable
Square Footage of the Building” is agreed and stipulated to be 161,541
square feet.


                C.            “Premises”:  The area shown on Exhibit
A-1 to this Lease.  The
Premises are located on the fourth floor of the Building and known as suite
number 460.  The “Rentable
Square Footage of the Premises” is deemed to be 4,106 square
feet.  The “Usable
Square Footage of the Premises” is deemed to be 3,586 square
feet.  If the Premises include, now or
hereafter, one or more floors in their entirety, all corridors and restroom
facilities located on such full floor(s) shall be considered part of the
Premises.  Landlord and Tenant stipulate
and agree that the Rentable Square Footage of the Building, the Rentable Square
Footage of the Premises, and the Usable Square Footage of the Premises are
correct and shall not be remeasured.


 


D.            “Base Rent”:


	
  Period

  	
   

  	
  Monthly Rate

  Per Rentable Square Foot

  	
   

  	
  Monthly Base Rent

  
	
  CD

  	
  to

  	
  Lease
  Month 12

  	
   

  	
  $2.75

  	
   

  	
  $11,291.50

  
	
  Lease
  Month 13

  	
  to

  	
  Lease
  Month 24

  	
   

  	
  $2.83

  	
   

  	
  $11,619.98

  
	
  Lease
  Month 25

  	
  to

  	
  Lease
  Month 36

  	
   

  	
  $2.91

  	
   

  	
  $11,948.46

  
	
  Lease
  Month 37

  	
  to

  	
  Lease
  Month 48

  	
   

  	
  $3.00

  	
   

  	
  $12,318.00

  
	
  Lease
  Month 49

  	
  to

  	
  ED

  	
   

  	
  $3.09

  	
   

  	
  $12,687.54

  



CD
= Commencement Date                              ED
= Expiration Date


                E.             “Tenant’s Pro Rata Share”:  The percentage equal to the Rentable Square
Footage of the Premises divided by the Rentable Square Footage of the Building.


                F.             “Base
Year” for Operating Expenses: 
2006.


                G.            “Term”:  The period of approximately sixty (60) months
starting on the Commencement Date, subject to the provisions of Article 3.


                H.            “Estimated Commencement Date”:  February 1, 2006, subject to adjustment, if
any, as provided in Section
3.A and the Work Letter, if any.


 


                I.              “Security Deposit”:  $33,874.50.


                J.             “Guarantor(s)”:  None.


K.            “Business Day(s)”:  Monday through Friday of each week, exclusive
of New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
the day after Thanksgiving and Christmas Day (“Holidays”).  Landlord may designate additional Holidays,
provided that the additional Holidays are commonly recognized by other office
buildings in the area where the Building is located.


L.            “Law(s)”:  All applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or governmental entity, now or
hereafter adopted, including the Americans with Disabilities Act and any other
law pertaining to disabilities and architectural barriers (collectively, “ADA”), and all laws pertaining to the environment,
including the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 U.S.C. §9601 et seq. (“CERCLA”), and


 


1





















 


all
restrictive covenants existing of record and all rules and requirements of any
existing association or improvement district affecting the Property.


M.           “Normal
Business Hours”:  8:00 A.M.
to 6:00 P.M. on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays,
exclusive of Holidays.


N.            “Notice
Addresses”:


Tenant:  On
or after the Commencement Date, notices shall be sent to Tenant at the
Premises.  Prior to the Commencement
Date, notices shall be sent to Tenant at the following address:


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
	
  Phone #:

  	
   

  	
   

  	
   

  
	
  Fax #:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Landlord: 

   

  3800 Howard Hughes

  Parkway, Suite 150

  Las Vegas, Nevada 89109

  Attn: Property Manager

  Phone #: (702) 791-4334

  Fax #: (702) 791-4354

  	
  With a
  copy to:

   

  2000 Post Oak Blvd.

  Suite 1950

  Houston, Texas 77056

  Attn:Jane B. Page

  Phone #: (713) 840-1170

  Fax #: (713) 840-1180

  	
  And to:

   

  777 Main Street,

  Suite 2100

  Fort Worth, Texas 76102

  Attn: Legal Dept.

  Phone #: (817) 321-2100

  Fax #: (817) 321-2000

  
						



 


Rent (defined in Section 4.A) is payable to the order of 3960 HHP
LLC, at the following address:  File No.
57499, Los Angeles, California 90074-7499; or by wire transfer to Bank of
America, Dallas, Texas, ABA #111-0000-25, for further credit to 3960 HHP LLC,
Account #004781670328, Tenant:  NORTHWEST
POWER MANAGEMENT, INC., 3960 Howard Hughes Parkway.


 


O.            “Other Defined Terms”:  In addition to the terms defined above, an
index of the other defined terms used in the text of this Lease is set forth
below, with a cross-reference to the paragraph in this Lease in which the
definition of such term can be found:


	
  Affiliate

  	
   

  	
  11.E

  	
   

  	
  Mortgagee

  	
   

  	
  25

  
	
  Alterations

  	
   

  	
  9.C(1

  	
  )

  	
  Operating Expenses

  	
   

  	
  4.D

  
	
  Audit Election Period

  	
   

  	
  4.G

  	
   

  	
  Permitted Transfer

  	
   

  	
  11.E

  
	
  Cable

  	
   

  	
  9.A

  	
   

  	
  Permitted Use

  	
   

  	
  5.A

  
	
  Claims

  	
   

  	
  13

  	
   

  	
  Prime Rate

  	
   

  	
  19.B

  
	
  Collateral

  	
   

  	
  19.E

  	
   

  	
  Property

  	
   

  	
  2

  
	
  Commencement Date

  	
   

  	
  3.A

  	
   

  	
  Provider

  	
   

  	
  7.C

  
	
  Common Areas

  	
   

  	
  2

  	
   

  	
  Relocated Premises

  	
   

  	
  23

  
	
  Completion Estimate

  	
   

  	
  16.B

  	
   

  	
  Relocation Date

  	
   

  	
  23

  
	
  Contamination

  	
   

  	
  30.C

  	
   

  	
  Rent

  	
   

  	
  4.A

  
	
  Costs of Reletting

  	
   

  	
  19.B

  	
   

  	
  Service Failure

  	
   

  	
  7.B

  
	
  Excess Operating Expenses

  	
   

  	
  4.B

  	
   

  	
  Special Installations

  	
   

  	
  29

  
	
  Expiration Date

  	
   

  	
  3.A

  	
   

  	
  Substantial Completion

  	
   

  	
  Work
  Letter

  
	
  Force Majeure

  	
   

  	
  32.C

  	
   

  	
  Taking

  	
   

  	
  17

  
	
  Hazardous Material

  	
   

  	
  30.C

  	
   

  	
  Tenant Parties

  	
   

  	
  13

  
	
  Landlord Parties

  	
   

  	
  13

  	
   

  	
  Tenant’s Insurance

  	
   

  	
  14.A

  
	
  Landlord Work

  	
   

  	
  3.A

  	
   

  	
  Tenant’s Property

  	
   

  	
  14.A

  
	
  Landlord’s Rental Damages

  	
   

  	
  19.B

  	
   

  	
  Tenant’s Removable
  Property

  	
   

  	
  29

  
	
  Leasehold Improvements

  	
   

  	
  29

  	
   

  	
  Time Sensitive Default

  	
   

  	
  18.B

  
	
  Minor Alterations

  	
   

  	
  9.C(1

  	
  )

  	
  Transfer

  	
   

  	
  11.A

  
	
  Monetary Default

  	
   

  	
  18.A

  	
   

  	
  Work Letter

  	
   

  	
  3.A

  
	
  Mortgage

  	
   

  	
  25

  	
   

  	
   

  	
   

  	
   

  



 


2





















 


2.             Lease Grant.
 Landlord leases the Premises to Tenant
and Tenant leases the Premises from Landlord, together with the right in common
with others to use any portions of the Property (defined below) that are
designated by Landlord for the common use of tenants and others, such as
sidewalks, common corridors, vending areas, lobby areas and, with respect to
multi-tenant floors, restrooms and elevator foyers (the “Common
Areas”).  “Property”
consists of the parcel(s) of land described on Exhibit “A-2”, the Building and all appurtenant parking
facilities, landscaping, fixtures, Common Areas, service buildings and
improvements now or hereafter constructed thereon or on any land acquired by
Landlord (or its affiliates) and added to the Property from time to time.


 


3.             Term; Adjustment
of Commencement Date.


A.    Term.  This Lease shall govern the relationship
between Landlord and Tenant with respect to the Premises from the Effective
Date through the last day of the Term specified in Section 1.G (the “Expiration Date”),
unless terminated early in accordance with this Lease.  The Term of this Lease (as specified in Section 1.G)
shall commence on the “Commencement
Date”, which shall be the date upon which possession of the
Premises is delivered to Tenant.  The
Premises are now leased to another tenant on a temporary basis.  Landlord expects that such tenant will
surrender possession of the Premises and move to permanent space in the Hughes
Center on or about January 31, 2006.   If Landlord is delayed in delivering
possession of the Premises due to any reason, including, without limitation,
the continued occupancy of the Premises by such existing tenant, such delay
shall not be a default by Landlord, render this Lease void or voidable, or
otherwise render Landlord liable for damages.  Notwithstanding the foregoing, if Landlord has
not delivered the Premises within ninety (90) days after the Estimated
Commencement Date, subject to Tenant delay, then Tenant shall have the right,
as its sole remedy, to terminate this Lease upon written notice to Landlord
given at any time after such 120-day period and prior to delivery of the
Premises. Promptly after the determination of the Commencement Date, the
Expiration Date, the Rent schedule and any other variable matters, Landlord
shall prepare and deliver to Tenant a commencement letter agreement
substantially in the form attached as Exhibit C.  If
such commencement letter is not executed by Tenant within 30 days after
delivery of same by Landlord, then Tenant shall be deemed to have agreed with
the matters set forth therein. 
Notwithstanding any other provision of this Lease to the contrary, if
the Expiration Date would otherwise occur on a date other than the last day of
a calendar month, then the Term shall be automatically extended to include the
last day of such calendar month, which shall become the Expiration Date.


B.    Acceptance of Premises.  The Premises are accepted by Tenant in “as is”
condition and configuration.  TENANT HEREBY AGREES THAT
THE PREMISES ARE IN GOOD ORDER AND SATISFACTORY CONDITION AND THAT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS LEASE, THERE ARE NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY LANDLORD REGARDING THE PREMISES,
THE BUILDING OR THE PROPERTY.


4.             Rent.


A.            Payments.  As consideration for this Lease, commencing
on the Commencement Date, Tenant shall pay Landlord, without any demand, setoff
or deduction, the total amount of Base Rent, Tenant’s Pro Rata Share of Excess
Operating Expenses (defined in Section 4.B) and any and all other sums payable by Tenant
under this Lease (all of which are sometimes collectively referred to as “Rent”).  Tenant
shall pay and be liable for all rental, sales and use taxes (but excluding
income taxes), if any, imposed upon or measured by Rent under applicable Law.  The monthly Base Rent and Tenant’s Pro Rata
Share of Excess Operating Expenses shall be due and payable in advance on the
first day of each calendar month without notice or demand, provided that the
installment of Base Rent for the first full calendar month of the Term, in the
amount of Eleven Thousand Two Hundred Ninety-One and 50/100 Dollars
($11,291.50), shall be payable upon the execution of this Lease by Tenant.  All other items of Rent shall be due and
payable by Tenant on or before 30 days after billing by Landlord.  All payments of Rent shall be by good and
sufficient check or by other means (such as automatic debit or electronic
transfer) acceptable to Landlord.  If the
Term commences on a day other than the first day of a calendar month, the monthly
Base Rent and Tenant’s Pro Rata Share of any Excess Operating Expenses for the
month shall be prorated on a daily basis based on a 360 day calendar year.  Landlord’s acceptance of less than the
correct amount of Rent shall be considered a payment on account of the earliest
Rent due.  No endorsement or statement on
a check or letter accompanying a check or payment shall be considered an accord
and satisfaction, and either party may accept such check or payment without
such acceptance being considered a waiver of any rights such party may have
under this Lease or applicable Law. 
Tenant’s covenant to pay Rent is independent of every other covenant in
this Lease.


 


3





















 


B.            Excess Operating
Expenses. 
Tenant shall pay Tenant’s Pro Rata Share of the amount, if any, by which
Operating Expenses (defined in Section 4.D) for each calendar year during the Term exceed
Operating Expenses for the Base Year (the “Excess Operating Expenses”).  If Operating Expenses in any calendar year
decrease below the amount of Operating Expenses for the Base Year, Tenant’s Pro
Rata Share of Excess Operating Expenses for that calendar year shall be
$0.  In no event shall Base Rent be
reduced if Operating Expenses for any calendar year are less than Operating
Expenses for the Base Year.  On or about
January 1 of each calendar year, Landlord shall provide Tenant with a good
faith estimate of the Excess Operating Expenses for such calendar year during
the Term.  On or before the first day of
each month, Tenant shall pay to Landlord a monthly installment equal to
one-twelfth of Tenant’s Pro Rata Share of Landlord’s estimate of the Excess
Operating Expenses.  If Landlord
determines that its good faith estimate of the Excess Operating Expenses was incorrect,
Landlord may provide Tenant with a revised estimate.  After its receipt of the revised estimate,
Tenant’s monthly payments shall be based upon the revised estimate.  If Landlord does not provide Tenant with an
estimate of the Excess Operating Expenses by January 1 of a calendar year,
Tenant shall continue to pay monthly installments based on the most recent
estimate(s) until Landlord provides Tenant with the new estimate.  Upon delivery of the new estimate, an
adjustment shall be made for any month for which Tenant paid monthly
installments based on the same year’s prior incorrect estimate(s).  Tenant shall pay Landlord the amount of any
underpayment within 30 days after receipt of the new estimate.  Any overpayment shall be credited against the
next sums due and owing by Tenant or, if no further Rent is due, refunded
directly to Tenant within 30 days of determination.  The obligation of Tenant to pay for Excess
Operating Expenses as provided herein shall survive the expiration or earlier
termination of this Lease.


C.            Reconciliation of
Operating Expenses.  Within 120 days after the end of each
calendar year or as soon thereafter as is practicable, Landlord shall furnish
Tenant with a statement of the actual Operating Expenses and Excess Operating
Expenses for such calendar year.  If the
most recent estimated Excess Operating Expenses paid by Tenant for such
calendar year are more than the actual Excess Operating Expenses for such
calendar year, Landlord shall apply any overpayment by Tenant against Rent due
or next becoming due; provided, if the Term expires before the determination of
the overpayment, Landlord shall, within 30 days of determination, refund any
overpayment to Tenant after first deducting the amount of Rent due.  If the most recent estimated Excess Operating
Expenses paid by Tenant for the prior calendar year are less than the actual
Excess Operating Expenses for such year, Tenant shall pay Landlord, within 30
days after its receipt of the statement of Operating Expenses, any underpayment
for the prior calendar year.


D.            Operating
Expenses Defined.  “Operating Expenses”
means all costs and expenses incurred or accrued in each calendar year in
connection with the ownership, operation, maintenance, management, repair and
protection of the Property which are directly attributable or reasonably
allocable to the Building, including Landlord’s personal property used in
connection with the Property and including all costs and expenditures relating
to the following:


(1)           Operation,
maintenance, repair and replacements of any part of the Property, including the
mechanical, electrical, plumbing, HVAC, vertical transportation, fire
prevention and warning and access control systems; materials and supplies (such
as building standard light bulbs and ballasts); equipment and tools; floor,
wall and window coverings; personal property; required or beneficial easements;
and related service agreements and rental expenses.


(2)           Administrative costs
and management fees, including accounting, information and professional
services (except for negotiations and disputes with specific tenants not
affecting other parties); management office(s); and wages, salaries, benefits,
reimbursable expenses and taxes (or allocations thereof) for full and part time
personnel involved in operation, maintenance and management.


(3)           Janitorial service;
window cleaning; waste disposal; gas, water and sewer and other utility charges
(including add-ons); and landscaping, including all applicable tools and
supplies.


(4)           Property, liability
and other insurance coverages carried by Landlord, including deductibles and
risk retention programs and a proportionate allocation of the cost of blanket
insurance policies maintained by Landlord and/or its Affiliates (defined
below).


(5)           Real estate taxes,
assessments, business taxes, excises, association dues, fees, levies, charges
and other taxes of every kind and nature whatsoever, general and special,


 


4





















 


extraordinary
and ordinary, foreseen and unforeseen, including interest on installment
payments, which may be levied or assessed against or arise in connection with
ownership, use, occupancy, rental, operation or possession of the Property
(including personal property taxes for property that is owned by Landlord and
used in connection with the operation, maintenance and repair of the Property),
or substituted, in whole or in part, for a tax previously in existence by any
taxing authority, or assessed in lieu of a tax increase, or paid as rent under
any ground lease.  Real estate taxes do
not include Landlord’s income, franchise or estate taxes (except to the extent
such excluded taxes are assessed in lieu of taxes included above).


(6)           Compliance with
Laws, including license, permit and inspection fees (but not in duplication of
capital expenditures amortized as provided in Section 4.D(9)); and all
expenses and fees, including attorneys’ fees and court or other venue of
dispute resolution costs, incurred in negotiating or contesting real estate
taxes or the validity and/or applicability of any governmental enactments which
may affect Operating Expenses; provided Landlord shall credit against Operating
Expenses any refunds received from such negotiations or contests to the extent
originally included in Operating Expenses (less Landlord’s costs).


(7)           Building safety
services, to the extent provided or contracted for by Landlord.


(8)           Goods and services
purchased from Landlord’s subsidiaries and Affiliates to the extent the cost of
same is generally consistent with rates charged by unaffiliated third parties
for similar goods and services.


(9)           Amortization of
capital expenditures incurred: (a) to conform with Laws; (b) to provide or
maintain building standards (other than building standard tenant improvements);
or (c) with the intention of promoting safety or reducing or controlling
increases in Operating Expenses, such as lighting retrofit and installation of
energy management systems.  Such
expenditures shall be amortized uniformly over the following periods of time
(together with interest on the unamortized balance at the Prime Rate (defined
in Section 19.B)
as of the date incurred plus 2%):  for
building improvements, the shorter of 10 years or the estimated useful life of
the improvement; and for all other items, 3 years for expenditures under
$50,000 and 5 years for expenditures in excess of $50,000.  Notwithstanding the foregoing, Landlord may
elect to amortize capital expenditures under this subsection over a longer
period of time based upon (i) the purpose and nature of the expenditure, (ii)
the relative capital burden on the Property, (iii) for cost savings projects,
the anticipated payback period, and (iv) otherwise in accordance with sound
real estate accounting principles consistently applied.


(10)         Electrical services
used in the operation, maintenance and use of the Property; sales, use, excise
and other taxes assessed by governmental authorities on electrical services
supplied to the Property, and other costs of providing electrical services to
the Property.


(11)         All
amounts charged to the Building pursuant to the REA.  The “REA” shall mean (i) that certain Amendment
and Restatement of the Grant of Reciprocal Easements and Declaration of
Covenants recorded in the Official Records of Clark County, Nevada on September
8, 1995 in Book 950908 as Instrument No. 01919 as may be amended from time to
time and (ii) that certain Howard Hughes Declaration of Covenants recorded in
the Official Records of Clark County, Nevada on October 11, 1985 in Book 2199
as Instrument No. 2158547 as amended by the First Amendment to Howard Hughes
Declaration of Covenants dated August 28, 1995 recorded in the Official Records
of Clark County, Nevada on September 8, 1995 in Book 950908 as Instrument No.
01918 as further amended by the Second Amendment to Howard Hughes Declaration
of Covenants dated November 27, 1995 recorded in the Official Records of Clark
County, Nevada on December 6, 1995 in Book 951206 as Instrument No. 00257, as
may be amended from time to time.


E.             Exclusions from
Operating Expenses.  Operating Expenses exclude the following
expenditures:


(1)           Leasing commissions,
attorneys’ fees and other expenses related to leasing tenant space and
constructing improvements for the sole benefit of an individual tenant.


(2)           Goods and services
furnished to an individual tenant of the Building which are above building
standard and which are separately reimbursable directly to Landlord in addition
to Excess Operating Expenses.


 


5





















 


(3)           Repairs,
replacements and general maintenance paid by insurance proceeds or condemnation
proceeds.


(4)           Except as provided
in Section 4.D(9),
depreciation, amortization, interest payments on any encumbrances on the
Property and the cost of capital improvements or additions.


(5)           Costs of installing
any specialty service, such as an observatory, broadcasting facility, luncheon
club, or athletic or recreational club.


(6)           Expenses for repairs
or maintenance related to the Property which have been reimbursed to Landlord
pursuant to warranties or service contracts.


(7)           Costs (other than
maintenance costs) of any art work (such as sculptures or paintings) used to
decorate the Building.


(8)           Principal payments
on indebtedness secured by liens against the Property, or costs of refinancing
such indebtedness.


F.             Proration of
Operating Expenses; Adjustments.  If Landlord incurs Operating Expenses for the
Property together with one or more other buildings or properties, whether
pursuant to a reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses shall be equitably prorated and
apportioned by Landlord between the Property and the other buildings or
properties. If the Building is not 100% occupied during any calendar year or
partial calendar year or if Landlord is not supplying services to 100% of the
total Rentable Square Footage of the Building at any time during a calendar
year or partial calendar year, Operating Expenses shall be determined as if the
Building had been 100% occupied and Landlord had been supplying services to
100% of the Rentable Square Footage of the Building during that calendar
year.  If Tenant pays for Tenant’s Pro
Rata Share of Operating Expenses based on increases over a “Base
Year” and Operating Expenses for a calendar year are determined
as provided in the prior sentence, Operating Expenses for the Base Year shall
also be determined as if the Building had been 100% occupied and Landlord had
been supplying services to 100% of the Rentable Square Footage of the Building.  The extrapolation of Operating Expenses under
this Section shall be performed by Landlord by adjusting the cost of those
components of Operating Expenses that are impacted by changes in the occupancy
of the Building.


G.            Audit Rights. Within 60
days after Landlord furnishes its statement of actual Operating Expenses for
any calendar year (including the Base Year) (the “Audit
Election Period”), Tenant may, at its expense, elect to audit
Landlord’s Operating Expenses for such calendar year only, subject to the
following conditions:  (1) there is no
uncured event of default under this Lease; (2) the audit shall be prepared by
an independent certified public accounting firm of recognized national
standing; (3) in no event shall any audit be performed by a firm retained on a “contingency
fee” basis; (4) the audit shall commence within 30 days after Landlord makes
Landlord’s books and records available to Tenant’s auditor and shall conclude
within 60 days after commencement; (5) the audit shall be conducted during
Landlord’s normal business hours at the location where Landlord maintains its
books and records and shall not unreasonably interfere with the conduct of
Landlord’s business; (6) Tenant and its accounting firm shall treat any audit
in a confidential manner and shall each execute Landlord’s confidentiality
agreement for Landlord’s benefit prior to commencing the audit; and (7) the
accounting firm’s audit report shall, at no charge to Landlord, be submitted in
draft form for Landlord’s review and comment before the final approved audit
report is delivered to Landlord, and any reasonable comments by Landlord shall
be incorporated into the final audit report. 
Notwithstanding the foregoing, Tenant shall have no right to conduct an
audit if Landlord furnishes to Tenant an audit report for the calendar year in
question prepared by an independent certified public accounting firm of
recognized national standing (whether originally prepared for Landlord or
another party).  This paragraph shall not
be construed to limit, suspend, or abate Tenant’s obligation to pay Rent when
due, including estimated Excess Operating Expenses.  Landlord shall credit any overpayment
determined by the final approved audit report against the next Rent due and
owing by Tenant or, if no further Rent is due, refund such overpayment directly
to Tenant within 30 days of determination. 
Likewise, Tenant shall pay Landlord any underpayment determined by the
final approved audit report within 30 days of determination.  The foregoing obligations shall survive the
expiration or termination of this Lease. 
If Tenant does not give written notice of its election to audit Landlord’s
Operating Expenses during the Audit Election Period, Landlord’s Operating
Expenses for the applicable calendar year shall be deemed approved for all
purposes, and Tenant shall have no further right to review or contest the
same.  The right to audit granted
hereunder is personal to the


6





















 


initial
Tenant named in this Lease and to any assignee under a Permitted Transfer
(defined below) and shall not be available to any subtenant under a sublease of
the Premises.


5.             Tenant’s Use of
Premises.


A.            Permitted Uses.  The Premises shall be used only for general
office use (the “Permitted Use”) and for no
other use whatsoever.  Tenant shall not
use or permit the use of the Premises for any purpose which is illegal, in
violation of the REA or any other recorded covenants or restrictions, creates
obnoxious odors (including tobacco smoke), noises or vibrations, is dangerous
to persons or property, could increase Landlord’s insurance costs, or which, in
Landlord’s reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation or maintenance of the Property.  Except as provided below, the following uses
are expressly prohibited in the Premises: 
schools, government offices or agencies; personnel agencies; collection
agencies; credit unions; data processing, telemarketing or reservation centers;
medical treatment and health care; radio, television or other
telecommunications broadcasting; restaurants and other retail; customer service
offices of a public utility company; or any other purpose which would, in
Landlord’s reasonable opinion, impair the reputation or quality of the
Building, overburden any of the Building systems, Common Areas or parking
facilities (including any use which would create a population density in the
Premises which is in excess of the density which is standard for the Building),
impair Landlord’s efforts to lease space or otherwise interfere with the
operation of the Property. 
Notwithstanding the foregoing, the following ancillary uses are
permitted in the Premises only so long as they do not, in the aggregate, occupy
more than 10% of the Rentable Square Footage of the Premises or any single
floor (whichever is less):  (1) the
following services provided by Tenant exclusively to its employees:  schools, training and other educational
services; credit unions; and similar employee services; and (2) the following
services directly and exclusively supporting Tenant’s business:  telemarketing; reservations; storage; data
processing; debt collection; and similar support services.


B.            Compliance with
Laws.  Tenant
shall comply with all Laws regarding the operation of Tenant’s business and the
use, condition, configuration and occupancy of the Premises and the use of the
Common Areas.  Tenant, within 10 days
after receipt, shall provide Landlord with copies of any notices Tenant
receives regarding a violation or alleged or potential violation of any
Laws.  Tenant shall comply with the rules
and regulations of the Building attached as Exhibit B and such other
reasonable rules and regulations (or modifications thereto) adopted by Landlord
from time to time.  Such rules and
regulations will be applied in an equitable manner as determined by
Landlord.  Tenant shall also cause its
agents, contractors, subcontractors, employees, customers, and subtenants to
comply with all rules and regulations.


C.            Tenant’s Security
Responsibilities.  Tenant shall (1) lock the doors to the
Premises and take other reasonable steps to secure the Premises and the
personal property of all Tenant Parties (defined in Article 13) and any of Tenant’s
transferees, contractors or licensees in the Common Areas and parking
facilities of the Building and Property, from unlawful intrusion, theft, fire
and other hazards; (2) keep and maintain in good working order all security and
safety devices installed in the Premises by or for the benefit of Tenant (such
as locks, smoke detectors and burglar alarms); and (3) cooperate with Landlord
and other tenants in the Building on Building safety matters.  Tenant acknowledges that any security or
safety measures employed by Landlord are for the protection of Landlord’s own
interests; that Landlord is not a guarantor of the security or safety of the
Tenant Parties or their property; and that such security and safety matters are
the responsibility of Tenant and the local law enforcement authorities.


6.             Security Deposit.  The Security Deposit shall be delivered to
Landlord on or before the Commencement Date of the Lease by Tenant and shall be
held by Landlord (without liability for interest, except to the extent required
by Law) as security for the performance of Tenant’s obligations under this
Lease.  The Security Deposit is not an
advance payment of Rent or a measure of Tenant’s liability for damages.  Landlord may, from time to time while an
event of default remains uncured, without prejudice to any other remedy, use
all or a portion of the Security Deposit to satisfy past due Rent, cure any
uncured default by Tenant, or repay Landlord for damages and charges for which
Tenant is legally liable under this Lease or resulting from Tenant’s breach of
this Lease.  If Landlord uses the
Security Deposit, Tenant shall on demand restore the Security Deposit to its
original amount and such use by Landlord of the Security Deposit shall not
constitute a cure of the existing event of default until such time as the
entire amount owing to Landlord is paid in full and the Security Deposit is
fully restored.  Provided that Tenant has
performed all of its obligations hereunder, Landlord shall return any unapplied
portion of the Security Deposit to Tenant within 30


 


7





















 


days after the later to occur of: (A) the
date Tenant surrenders possession of the Premises to Landlord in accordance
with this Lease; or (B) the Expiration Date. 
Tenant does hereby authorize Landlord to withhold from the Security
Deposit all amounts allowed by Law and the amount reasonably anticipated by
Landlord to be owed by Tenant as a result of an underpayment of Tenant’s Pro
Rata Share of any Excess Operating Expenses for the final year of the
Term.  To the fullest extent permitted by
applicable Law, Tenant agrees that the provisions of this Article 6 shall supersede and
replace all statutory rights of Tenant under applicable Law regarding the
retention, application or return of security deposits.  If Landlord transfers its interest in the
Premises, Landlord shall assign the Security Deposit to the transferee and,
following the assignment and the delivery to Tenant of an acknowledgement of
the transferee’s responsibility for the Security Deposit if required by Law,
Landlord shall have no further liability for the return of the Security
Deposit.  Landlord shall not be required
to keep the Security Deposit separate from its other accounts.  Notwithstanding the foregoing and provided no
event of default has occurred, Landlord shall credit one-third of the Security
Deposit against the Base Rent due for the thirty-seventh (37) month of the
Term, and one-third of the Security Deposit (being one-half of the remaining
balance thereof) against the Base Rent due for the forty-ninth (49) month of
the Term.


 


7.             Services
Furnished by Landlord.


A.            Standard Services.  Subject to the provisions of this Lease,
Landlord agrees to furnish (or cause a third party provider to furnish) the
following services to Tenant during the Term:


(1)           Water service for
use in the lavatories on each floor on which the Premises are located.


(2)           Heat and air
conditioning in season during Normal Business Hours, at such temperatures and
in such amounts as required by governmental authority or as Landlord determines
are standard for the Building.  Tenant,
upon such notice as is reasonably required by Landlord, and subject to the
capacity of the Building systems, may request HVAC service during hours other
than Normal Business Hours.  Tenant shall
pay Landlord for such additional service at a rate equal to $55.00 per
operating hour per floor (the “Hourly HVAC Charge”). 
Landlord shall have the right, upon 30 days prior written notice to
Tenant, to adjust the Hourly HVAC Charge from time to time, but not more than
once per calendar year, based proportionately upon increases in HVAC costs,
which costs include utilities, taxes, surcharges, labor, equipment, maintenance
and repair.


(3)           Maintenance and
repair of the Property as described in Section 9.B.


(4)           Janitorial service
five days per week (excluding Holidays), as determined by Landlord.  If Tenant’s use of the Premises, floor
covering or other improvements require special services in excess of the
standard services for the Building, Tenant shall pay the additional cost
attributable to the special services.


(5)           Elevator service,
subject to proper authorization and Landlord’s policies and procedures for use
of the elevator(s) in the Building.


(6)           Exterior window
washing at such intervals as determined by Landlord.


(7)           Electricity to the
Premises for general office use, in accordance with and subject to the terms
and conditions in Article
8.


B.            Service
Interruptions.  For purposes of this Lease, a “Service
Failure” shall mean any interruption, suspension or termination
of services being provided to Tenant by Landlord or by third-party providers,
whether engaged by Tenant or pursuant to arrangements by such providers with
Landlord, which are due to (1) the application of Laws; (2) the failure,
interruption or malfunctioning of any electrical or mechanical equipment,
utility or other service to the Building or Property; (3) the performance of
repairs, maintenance, improvements or alterations; or (4) the occurrence of any
other event or cause whether or not within the reasonable control of
Landlord.  No Service Failure shall
render Landlord liable to Tenant, constitute a constructive eviction of Tenant,
give rise to an abatement of Rent, or relieve Tenant from the obligation to
fulfill any covenant or agreement.  In no
event shall Landlord be liable to Tenant for any loss or damage, including the
theft of Tenant’s Property (defined in Article 14), arising out of or in connection with any
Service Failure or the failure of any Building safety services, personnel or equipment.


 


8





















 


C.            Third Party
Services.  If
Tenant desires any service which Landlord has not specifically agreed to
provide in this Lease, such as private security systems or telecommunications
services serving the Premises, Tenant shall procure such service directly from
a reputable third party service provider (“Provider”) for
Tenant’s own account.  Tenant shall
require each Provider to comply with the Building’s rules and regulations, all
Laws, and Landlord’s reasonable policies and practices for the Building.  Tenant acknowledges Landlord’s current policy
that requires all Providers utilizing any area of the Property outside the
Premises to be approved by Landlord and to enter into a written agreement acceptable
to Landlord prior to gaining access to, or making any installations in or
through, such area.  Accordingly, Tenant
shall give Landlord written notice sufficient for such purposes.


8.             Use of
Electrical Services by Tenant.


A.            Landlord’s Electrical Service.  Subject to the terms of this Lease, Landlord
shall furnish building standard electrical service to the Premises sufficient
to operate customary lighting, office machines and other equipment of similar
low electrical consumption.  Landlord
may, at any time and from time to time, calculate Tenant’s actual electrical
consumption in the Premises by a survey conducted by a reputable consultant
selected by Landlord, all at Tenant’s expense. 
The cost of any electrical consumption in excess of that which Landlord
determines is standard for the Building shall be paid by Tenant in accordance
with Section 8.D.  The furnishing of electrical services to the
Premises shall be subject to the rules, regulations and practices of the
supplier of such electricity and of any municipal or other governmental
authority regulating the business of providing electrical utility service.  Landlord shall not be liable or responsible
to Tenant for any loss, damage or expense which Tenant may sustain or incur if
either the quantity or character of the electrical service is changed or is no
longer available or no longer suitable for Tenant’s requirements.


B.            Selection of
Electrical Service Provider.  Landlord shall have and retain the sole right
to select the provider of electrical services to the Building and/or the
Property.  To the fullest extent
permitted by Law, Landlord shall have the continuing right to change such
utility provider.  All charges and expenses
incurred by Landlord due to any such changes in electrical services, including
maintenance, repairs, installation and related costs, shall be included in the
electrical services costs referenced in Section 4.D(10), unless paid directly by Tenant.


C.            Submetering.  Landlord shall have the continuing right,
upon 30 days written notice, to install a submeter for the Premises at Tenant’s
expense.  If submetering is installed for
the Premises, Landlord may charge for Tenant’s actual electrical consumption
monthly in arrears for the kilowatt hours used, a rate per kilowatt hour equal
to that charged to Landlord by the provider of electrical service to the
Building during the same period of time (plus, to the fullest extent permitted
by applicable Laws, an administrative fee equal to 15% of such charge), except
as to electricity directly purchased by Tenant from third party providers after
obtaining Landlord’s consent to the same. 
In the event Landlord is unable to determine the exact kilowatt hourly
charge during the period of time, Landlord shall use the average kilowatt
hourly charge to the Building for the first billing cycle ending after the
period of time in question.  Even if the
Premises are submetered, Tenant shall remain obligated to pay Tenant’s Pro Rata
Share of the cost of electrical services as provided in Section 4.B, except that Tenant
shall be entitled to a credit against electrical services costs equal to that
portion of the amounts actually paid by Tenant separately and directly to
Landlord which are attributable to building standard electrical services
submetered to the Premises.


D.            Excess Electrical
Service. 
Tenant’s use of electrical service shall not exceed, in voltage, rated
capacity, use beyond Normal Business Hours or overall load, that which Landlord
deems to be standard for the Building. 
If Tenant requests permission to consume excess electrical service,
Landlord may refuse to consent or may condition consent upon conditions that
Landlord reasonably elects (including the installation of utility service
upgrades, meters, submeters, air handlers or cooling units).  The costs of any approved additional
consumption (to the extent permitted by Law), installation and maintenance
shall be paid by Tenant.


9.             Repairs and
Alterations.


A.            Tenant’s Repair
Obligations.  Tenant shall keep the Premises in good
condition and repair, ordinary wear and tear excepted.  Tenant’s repair obligations include, without
limitation, repairs to:  (1) floor
covering and/or raised flooring; (2) interior partitions; (3) doors; (4) the
interior side of demising walls; (5) electronic, phone and data cabling and
related equipment (collectively, “Cable”) that is installed by or for the
benefit of Tenant whether located in the Premises or in other


9





















 


portions
of the Building; (6) supplemental air conditioning units, private showers and
kitchens, including hot water heaters, plumbing, dishwashers, ice machines and
similar facilities serving Tenant exclusively; (7) phone rooms used exclusively
by Tenant; (8) Alterations (defined below) performed by contractors retained by
Tenant, including related HVAC balancing; and (9) all of Tenant’s furnishings,
trade fixtures, equipment and inventory. 
Prior to performing any such repair obligation, Tenant shall give
written notice to Landlord describing the necessary maintenance or repair.  Upon receipt of such notice, Landlord may
elect either to perform any of the maintenance or repair obligations specified
in such notice, or require that Tenant perform such obligations by using
contractors approved by Landlord.  All
work shall be performed at Tenant’s expense in accordance with the rules and
procedures described in Section
9.C below.  If Tenant fails to
make any repairs to the Premises for more than 15 days after notice from
Landlord (although notice shall not be required if there is an emergency),
Landlord may, in addition to any other remedy available to Landlord, make the
repairs, and Tenant shall pay to Landlord the reasonable cost of the repairs
within 30 days after receipt of an invoice, together with an administrative
charge in an amount equal to 15% of the cost of the repairs.


B.            Landlord’s Repair
Obligations.  Landlord shall keep and maintain in good
repair and working order and make repairs to and perform maintenance upon:  (1) structural elements of the Building; (2)
standard mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building generally; (3) Common Areas; (4) the roof of the
Building; (5) exterior windows of the Building; and (6) elevators serving the
Building.  Landlord shall promptly make
repairs (taking into account the nature and urgency of the repair) for which
Landlord is responsible.  If any of the
foregoing maintenance or repair is necessitated due to the acts or omissions of
any Tenant Party (defined in Section 13), Tenant shall pay the costs of such repairs or
maintenance to Landlord within 30 days after receipt of an invoice, together
with an administrative charge in an amount equal to 15% of the cost of the
repairs.


C.            Alterations.


(1)           When Consent Is Required.  Tenant shall not make alterations, additions
or improvements to the Premises or install any Cable in the Premises or other
portions of the Building (collectively, “Alterations”)
without first obtaining the written consent of Landlord in each instance.  However, Landlord’s consent shall not be
required for any Alteration that satisfies all of the following criteria (a “Minor Alteration”): 
(a) is of a cosmetic nature such as painting, wallpapering, hanging
pictures and installing carpeting; (b) is not visible from outside the Premises
or Building; (c) will not affect the systems or structure of the Building; and
(d) does not require work to be performed inside the walls or above the ceiling
of the Premises.


(2)           Requirements For All Alterations, Including
Minor Alterations.  Prior
to starting work on any Alteration, Tenant shall furnish to Landlord for review
and approval: plans and specifications; names of proposed contractors (provided
that Landlord may designate specific contractors with respect to Building
systems); copies of contracts; necessary permits and approvals; evidence of
contractors’ and subcontractors’ insurance; and Tenant’s security for
performance of the Alteration.  Changes
to the plans and specifications must also be submitted to Landlord for its
approval.  Some of the foregoing
requirements may be waived by Landlord for the performance of specific Minor
Alterations; provided that such waiver is obtained in writing prior to the
commencement of such Minor Alterations. 
Landlord’s waiver on one occasion shall not waive Landlord’s right to
enforce such requirements on any other occasion.  Alterations shall be constructed in a good
and workmanlike manner using materials of a quality that is at least equal to
the quality designated by Landlord as the minimum standard for the
Building.  Landlord may designate
reasonable rules, regulations and procedures for the performance of Alterations
in the Building and, to the extent reasonably necessary to avoid disruption to
the occupants of the Building, shall have the right to designate the time when
Alterations may be performed.  Tenant
shall reimburse Landlord within 30 days after receipt of an invoice for
out-of-pocket sums paid by Landlord for third party examination of Tenant’s
plans for Alterations.  In addition,
within 30 days after receipt of an invoice from Landlord, Tenant shall pay to
Landlord a fee equal to 15% of the total cost of such Alterations for Landlord’s
oversight and coordination of any Alterations. 
No later than 30 days after completion of the Alterations, Tenant shall
furnish “as-built” plans (which shall not be required for Minor Alterations),
completion affidavits, full and final waivers of liens, receipts and bills
covering all labor and materials.  Tenant
shall assure that the Alterations comply with all insurance requirements and
Laws.


 


10





















 


(3)           Landlord’s Liability For Alterations.  Landlord’s approval of an Alteration shall
not be a representation by Landlord that the Alteration complies with
applicable Laws or will be adequate for Tenant’s use.  Tenant acknowledges that Landlord is not an
architect or engineer, and that the Alterations will be designed and/or
constructed using independent architects, engineers and contractors.  Accordingly, Landlord does not guarantee or
warrant that the applicable construction documents will comply with Laws or be
free from errors or omissions, or that the Alterations will be free from
defects, and Landlord will have no liability therefor.


10.           Entry by Landlord.  Landlord, its agents, contractors and
representatives may enter the Premises to inspect or show the Premises, to
clean and make repairs, alterations or additions to the Premises, and to
conduct or facilitate repairs, alterations or additions to any portion of the
Building, including other tenants’ premises. 
Except in emergencies or to provide janitorial and other Building
services after Normal Business Hours, Landlord shall provide Tenant with
reasonable prior notice of entry into the Premises, which may be given
orally.  Landlord shall have the right to
temporarily close all or a portion of the Premises to perform repairs,
alterations and additions, if reasonably necessary for the protection and
safety of Tenant and its employees.  Except in emergencies, Landlord will not close
the Premises if the work can reasonably be completed on weekends and after
Normal Business Hours; provided, however, that Landlord is not required to
conduct work on weekends or after Normal Business Hours if such work can be
conducted without closing the Premises. 
Entry by Landlord for any such purposes shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.


 


11.           Assignment and
Subletting.


A.            Landlord’s Consent Required.  Subject to the remaining provisions of this Article 11, but
notwithstanding anything to the contrary contained elsewhere in this Lease,
Tenant shall not assign, transfer or encumber any interest in this Lease
(either absolutely or collaterally) or sublease or allow any third party to use
any portion of the Premises (collectively or individually, a “Transfer”)
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.  Without
limitation, Tenant agrees that Landlord’s consent shall not be considered
unreasonably withheld if:  (1) the
proposed transferee’s financial condition does not meet the criteria Landlord
uses to select Building tenants having similar leasehold obligations; (2) the
proposed transferee is a governmental organization or present occupant of the
Property, or Landlord is otherwise engaged in lease negotiations with the
proposed transferee for other premises in the Property; (3) any uncured event
of default exists under this Lease (or a condition exists which, with the
passage of time or giving of notice, would become an event of default); (4) any
portion of the Building or Premises would likely become subject to additional
or different Laws as a consequence of the proposed Transfer; (5) the proposed
transferee’s use of the Premises conflicts with the Permitted Use or any
exclusive usage rights granted to any other tenant in the Building; (6) the
use, nature, business, activities or reputation in the business community of
the proposed transferee (or its principals, employees or invitees) does not
meet Landlord’s standards for Building tenants; (7) either the Transfer or any
consideration payable to Landlord in connection therewith adversely affects the
real estate investment trust qualification tests applicable to Landlord or its
Affiliates; or (8) the proposed transferee is or has been involved in
litigation with Landlord or any of its Affiliates.  Tenant shall not be entitled to receive
monetary damages based upon a claim that Landlord unreasonably withheld its
consent to a proposed Transfer and Tenant’s sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment.  Any attempted Transfer in
violation of this Article is voidable at Landlord’s option.


B.            Consent
Parameters/Requirements.  As part of Tenant’s request for, and as a
condition to, Landlord’s consent to a Transfer, Tenant shall provide Landlord
with financial statements for the proposed transferee, a complete copy
(unexecuted) of the proposed assignment or sublease and other contractual
documents, and such other information as Landlord may reasonably request.  Landlord shall then have the right (but not
the obligation) to terminate this Lease as of the date the Transfer would have
been effective (“Landlord
Termination Date”) with respect to the portion of the Premises
which Tenant desires to Transfer.  In
such event, Tenant shall vacate such portion of the Premises by the Landlord
Termination Date and upon Tenant’s vacating such portion of the Premises, the
rent and other charges payable shall be proportionately reduced.  Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord’s rights to approve any
subsequent Transfers.  In no event shall
any Transfer or Permitted Transfer release or relieve Tenant from any
obligation under this Lease, nor shall the acceptance of Rent from any
assignee, subtenant or occupant constitute a waiver or release of Tenant from
any of its obligations or liabilities under this Lease.  Tenant shall pay Landlord a review fee of
$1000 for Landlord’s review of any Permitted


 


11





















Transfer
or requested Transfer, provided if Landlord’s actual reasonable costs and
expenses (including reasonable attorney’s fees) exceed $1000, Tenant shall
reimburse Landlord for its actual reasonable costs and expenses in lieu of a
fixed review fee.


C.            Payment to
Landlord.  If
the aggregate consideration paid to a Tenant Party for a Transfer exceeds that
payable by Tenant under this Lease (prorated according to the transferred
interest), Tenant shall pay Landlord 50% of such excess (after deducting
therefrom reasonable leasing commissions and reasonable costs of tenant
improvements paid to unaffiliated third parties in connection with the
Transfer, with proof of same provided to Landlord).  Tenant shall pay Landlord for Landlord’s
share of any excess within 30 days after Tenant’s receipt of such excess
consideration. If any uncured event of default exists under this Lease (or a
condition exists which, with the passage of time or giving of notice, would
become an event of default), Landlord may require that all sublease payments be
made directly to Landlord, in which case Tenant shall receive a credit against
Rent in the amount of any payments received, but not to exceed the amount
payable by Tenant under this Lease.


D.            Change in Control
of Tenant. 
Except for a Permitted Transfer, if Tenant is a corporation, limited
liability company, partnership, or similar entity, and if the entity which owns
or controls a majority of the voting shares/rights in Tenant at any time sells
or disposes of such majority of voting shares/rights, or changes its identity
for any reason (including a merger, consolidation or reorganization), such change
of ownership or control shall constitute a Transfer.  The foregoing shall not apply so long as,
both before and after the Transfer, Tenant is an entity whose outstanding stock
is listed on a recognized U.S. securities exchange, or if at least 80% of its
voting stock is owned by another entity, the voting stock of which is so
listed; provided, however, that Tenant shall give Landlord written notice at
least 30 days prior to the effective date of such change in ownership or
control.


E.             No Consent Required.  Tenant may assign its entire interest under
this Lease to its Affiliate (defined below) or to a successor to Tenant by
purchase, merger, consolidation or reorganization without the consent of
Landlord, provided that all of the following conditions are satisfied in
Landlord’s reasonable discretion (a “Permitted Transfer”):  (1) no uncured event of default exists under
this Lease; (2) Tenant’s successor shall own all or substantially all of the
assets of Tenant; (3) such Affiliate or successor shall have a net worth which
is at least equal to the greater of Tenant’s net worth at the date of this
Lease or Tenant’s net worth as of the day prior to the proposed purchase,
merger, consolidation or reorganization; (4) no portion of the Building or
Premises would likely become subject to additional or different Laws as a
consequence of the proposed Transfer; (5) such Affiliate’s or successor’s use
of the Premises shall not conflict with the Permitted Use or any exclusive
usage rights granted to any other tenant in the Building; (6) neither the
Transfer nor any consideration payable to Landlord in connection therewith
adversely affects the real estate investment trust qualification tests
applicable to Landlord or its Affiliates; (7) such Affiliate or successor is not
and has not been involved in litigation with Landlord or any of Landlord’s
Affiliates; and (8) Tenant shall give Landlord written notice at least 30 days
prior to the effective date of the proposed Transfer, along with all applicable
documentation and other information necessary for Landlord to determine that
the requirements of this Section
11.E have been satisfied, including if applicable, the qualification
of such proposed transferee as an Affiliate of Tenant.  The term “Affiliate” means
any person or entity controlling, controlled by or under common control with
Tenant or Landlord, as applicable.  If
requested by Landlord, the Affiliate or successor shall sign a commercially
reasonable form of assumption agreement.


12.           Liens.  Tenant shall not permit mechanic’s or other
liens to be placed upon the Property, Premises or Tenant’s leasehold interest
in connection with any work or service done or purportedly done by or for the
benefit of Tenant.  If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law.  If Tenant fails to
discharge the lien, then, in addition to any other right or remedy of Landlord,
Landlord may bond or insure over the lien or otherwise discharge the lien.  Tenant shall, within 30 days after receipt of
an invoice from Landlord, reimburse Landlord for any amount paid by Landlord, including
reasonable attorneys’ fees, to bond or insure over the lien or discharge the
lien.


 


13.           Indemnity.  Subject to Article 15 Tenant shall hold
Landlord, its trustees, Affiliates, subsidiaries, members, principals,
beneficiaries, partners, officers, directors, shareholders, employees,
Mortgagee(s) (defined in Article
25) and agents (including the manager of the Property)
(collectively, “Landlord Parties”) harmless
from, and indemnify and defend such parties against, all


 


12





















liabilities, obligations, damages, penalties,
claims, actions, costs, charges and expenses, including reasonable attorneys’
fees and other professional fees that may be imposed upon, incurred by or
asserted against any of such indemnified parties (each a “Claim”
and collectively “Claims”) that arise out of Tenant’s
possession, use, maintenance or repair of the Premises or any act or omission
of Tenant or any of Tenant’s employees, agents and invitees in the Premises or
on the Property.  Provided Landlord
Parties are properly named as additional insureds in the policies required to
be carried under this Lease, and except as otherwise expressly provided in this
Lease, the indemnity set forth in the preceding sentence shall be limited to the
greater of (A) $5,000,000, and (B) the aggregate amount of general/umbrella
liability insurance actually carried by Tenant. 
Subject to Articles
9.B, 15
and 20,
Landlord shall hold Tenant, its trustees, members, principals, beneficiaries,
partners, officers, directors, shareholders, employees and agents
(collectively, “Tenant Parties”) harmless
from, and indemnify and defend such parties against, all Claims that arise out
of or in connection with any damage or injury occurring in or on the Property
(excluding the Premises), to the same extent the Tenant Parties would have been
covered had they been named as additional insureds on the commercial general
liability insurance policy required to be carried by Landlord under this Lease.  The indemnity set forth in the preceding
sentence shall be limited to the amount of $5,000,000.


 


14.           Insurance.


A.            Tenant’s
Insurance. 
Tenant shall maintain the following insurance (“Tenant’s
Insurance”), at its sole cost and expense:  (1) commercial general liability insurance applicable
to the Premises and its appurtenances providing, on an occurrence basis, a per
occurrence limit of no less than $1,000,000; (2) causes of loss-special form
(formerly “all risk”) property insurance, including flood and earthquake,
covering all above building standard leasehold improvements and Tenant’s trade
fixtures, equipment, furniture and other personal property within the Premises
(“Tenant’s Property”) in the amount of the full
replacement cost thereof; (3) business income (formerly “business interruption”)
insurance written on an actual loss sustained form or with sufficient limits to
address reasonably anticipated business interruption losses; (4) business
automobile liability insurance to cover all owned, hired and nonowned
automobiles owned or operated by Tenant providing a minimum combined single
limit of $1,000,000; (5) workers’ compensation insurance as required by the
state in which the Premises is located and in amounts as may be required by
applicable statute (provided, however, if no workers’ compensation insurance is
statutorily required, Tenant shall carry workers’ compensation insurance in a
minimum amount of $500,000); (6) employer’s liability insurance in an amount of
at least $500,000 per occurrence; and (7) umbrella liability insurance that
follows form in excess of the limits specified in (1), (4) and (6) above, of no
less than $4,000,000 per occurrence and in the aggregate.  Any company underwriting any of Tenant’s
Insurance shall have, according to A.M. Best Insurance Guide, a Best’s rating of not less than
A- and a Financial Size Category of not less than VIII.  All commercial general liability, business
automobile liability and umbrella liability insurance policies shall name
Landlord (or any successor), Landlord’s property manager, Landlord’s Mortgagee
(if any), and their respective members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and other designees of Landlord as
the interest of such designees shall appear, as “additional insureds” and shall
be primary with Landlord’s policy being secondary and noncontributory.  If any aggregate limit is reduced because of
losses paid to below 75% of the limit required by this Lease, Tenant will
notify Landlord in writing within 10 days of the date of reduction.  All policies of Tenant’s Insurance shall
contain endorsements that the insurer(s) shall give Landlord and its designees
at least 30 days’ advance written notice of any change, cancellation,
termination or lapse of insurance. 
Tenant shall provide Landlord with a certificate of insurance and all
required endorsements evidencing Tenant’s Insurance prior to the earlier to
occur of the Commencement Date or the date Tenant is provided access to the
Premises for any reason, and upon renewals at least 10 days prior to the
expiration of the insurance coverage. 
All of Tenant’s Insurance policies, endorsements and certificates will
be on forms and with deductibles and self-insured retention, if any, reasonably
acceptable to Landlord.  The limits of
Tenant’s insurance shall not limit Tenant’s liability under this Lease.


B.            Landlord’s Insurance.  Landlord shall maintain:  (1) commercial general liability insurance
applicable to the Property which provides, on an occurrence basis, a minimum
combined single limit of no less than $5,000,000 (coverage in excess of
$1,000,000 may be provided by way of an umbrella/excess liability policy); and
(2) causes of loss-special form (formerly “all risk”) property insurance on the
Building in the amount of the replacement cost thereof, as reasonably estimated
by Landlord.  The foregoing insurance and
any other insurance carried by Landlord may be effected by a policy or policies
of blanket insurance and shall be for the sole benefit of Landlord and under


 


13





















 


Landlord’s sole control.  Consequently, Tenant shall have no right or
claim to any proceeds thereof or any other rights thereunder.


 


15.           Mutual Waiver of Subrogation.  Notwithstanding anything in this Lease to the
contrary, Tenant waives, and shall cause its insurance carrier(s) and any other
party claiming through or under such carrier(s), by way of subrogation or
otherwise, to waive any and all rights of recovery, Claim, action or causes of
action against all Landlord Parties for any loss or damage to Tenant’s
business, any loss of use of the Premises, and any loss, theft or damage to
Tenant’s Property (including Tenant’s automobiles or the contents thereof), INCLUDING ALL RIGHTS (BY
WAY OF SUBROGATION OR OTHERWISE) OF RECOVERY, CLAIMS, ACTIONS OR CAUSES OF
ACTION ARISING OUT OF THE NEGLIGENCE OF ANY LANDLORD PARTY, which
loss or damage is (or would have been, had the insurance required by this Lease
been maintained) covered by insurance. 
In addition, Landlord shall cause its insurance carrier(s) and any other
party claiming through or under such carrier(s), by way of subrogation or
otherwise, to waive any and all rights of recovery, Claim, action or causes of
action against all Tenant Parties for any loss of or damage to or loss of use
of the Building, any additions or improvements to the Building, or any contents
thereof, INCLUDING
ALL RIGHTS (BY WAY OF SUBROGATION OR OTHERWISE) OF RECOVERY, CLAIMS, ACTIONS OR
CAUSES OF ACTION ARISING OUT OF THE NEGLIGENCE OF ANY TENANT PARTY,
which loss or damage is (or would have been, had the insurance required by this
Lease been maintained) covered by insurance.


 


16.           Casualty Damage.


A.            Repair or Termination by Landlord.  If all or any part of the Premises are
damaged by fire or other casualty, Tenant shall immediately notify Landlord in
writing.  Landlord shall have the right
to terminate this Lease if:  (1) the
Building shall be damaged so that, in Landlord’s judgment, substantial
alteration or reconstruction of the Building shall be required (whether or not
the Premises have been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before the fire
or casualty; (3) the Premises have been materially damaged and there is less than
2 years of the Term remaining on the date of the casualty; (4) any Mortgagee
requires that the insurance proceeds be applied to the payment of the mortgage
debt; or (5) an uninsured loss of the Building occurs notwithstanding Landlord’s
compliance with Section
14.B above.  Landlord may
exercise its right to terminate this Lease by notifying Tenant in writing
within 90 days after the date of the casualty. 
If Landlord does not terminate this Lease under this Section 16.A, Landlord shall
commence and proceed with reasonable diligence to repair and restore the
Building and/or the Premises to substantially the same condition as existed
immediately prior to the date of damage; provided, however, that Landlord shall
only be required to reconstruct building standard leasehold improvements
existing in the Premises as of the date of damage, and Tenant shall be required
to pay the cost for restoring any other leasehold improvements.  However, in no event shall Landlord be required
to spend more than the insurance proceeds received by Landlord.


B.            Timing for
Repair; Termination by Either Party.  If all or any portion of the Premises is
damaged as a result of fire or other casualty, Landlord shall, with reasonable
promptness, cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required to substantially complete the repair and restoration of the Premises,
using standard working methods (“Completion Estimate”).  If the Completion Estimate indicates that the
Premises cannot be made tenantable within 270 days from the date of damage,
then regardless of anything in Section 16.A above to the contrary, either party shall have
the right to terminate this Lease by giving written notice to the other of such
election within 10 days after receipt of the Completion Estimate.  Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the negligence or
intentional misconduct of any of the Tenant Parties.  If neither party terminates this Lease under
this Section 16.B,
then Landlord shall repair and restore the Premises in accordance with, and
subject to the limitations of, Section 16.A.


C.            Abatement.  In the event a material portion of the
Premises is damaged as a result of a fire or other casualty, the Base Rent
shall abate for the portion of the Premises that is damaged and not usable by
Tenant until substantial completion of the repairs and restoration required to
be made by Landlord pursuant to Section 16.A.  Tenant,
however, shall not be entitled to such abatement if the fire or other casualty
was caused by the negligence or intentional misconduct of any of the Tenant
Parties.  Landlord shall not be liable
for any loss or damage to Tenant’s Property or to the business of Tenant
resulting in any way from the fire or other casualty or from the repair and
restoration of the damage.  Landlord and
Tenant hereby waive the provisions of any Law relating to


 


14





















the
matters addressed in this Article, and agree that their respective rights for
damage to or destruction of the Premises shall be those specifically provided
in this Lease.


17.           Condemnation.  Either party may terminate this Lease if the
whole or any material part of the Premises are taken or condemned for any
public or quasi-public use under Law, by eminent domain or private purchase in
lieu thereof (a “Taking”).  Landlord shall also have the right to
terminate this Lease if there is a Taking of any portion of the Building or
Property which would leave the remainder of the Building unsuitable for use as
an office building in a manner comparable to the Building’s use prior to the
Taking.  In order to exercise its right
to terminate this Lease under this Article 17, Landlord or Tenant, as the case may be, must
provide written notice of termination to the other within 45 days after the
terminating party first receives notice of the Taking.  Any such termination shall be effective as of
the date the physical taking of the Premises or the portion of the Building or
Property occurs.  If this Lease is not
terminated, the Rentable Square Footage of the Building, the Rentable Square
Footage of the Premises and Tenant’s Pro Rata Share shall, if applicable, be
appropriately adjusted by Landlord.  In
addition, Base Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term effective when the physical taking of the
portion of the Premises occurs.  All
compensation awarded for a Taking, or sale proceeds, shall be the property of
Landlord, any right to receive compensation or proceeds being expressly waived
by Tenant.  However, Tenant may file a
separate claim at its sole cost and expense for Tenant’s Property (excluding
above building standard leasehold improvements) and Tenant’s reasonable
relocation expenses, provided the filing of such claim does not diminish the
award which would otherwise be receivable by Landlord.


 


18.           Events of Default.  Tenant shall be considered to be in default
under this Lease upon the occurrence of any of the following events of default:


 


A.            Tenant’s failure to pay when due all or any
portion of the Rent (“Monetary Default”).


B.            Tenant’s
failure to perform any of the obligations of Tenant in the manner set forth in Articles 14, 23,  24 or 25 (a “Time Sensitive Default”).


C.            Tenant’s
failure (other than a Monetary Default or a Time Sensitive Default) to comply
with any term, provision or covenant of this Lease, if the failure is not cured
within 10 days after written notice to Tenant. 
However, if Tenant’s failure to comply cannot reasonably be cured within
10 days, Tenant shall be allowed additional time (not to exceed an additional
10 days) as is reasonably necessary to cure the failure so long as:  (1) Tenant commences to cure the failure
within the 10 day period following Landlord’s initial written notice, and (2)
Tenant diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with this Lease.  However, if Tenant’s failure to comply
creates a hazardous condition, the failure must be cured immediately upon
notice to Tenant.  In addition, if
Landlord provides Tenant with notice of Tenant’s failure to comply with the
same specific term, provision or covenant of this Lease on more than two (2)
occasions during any 12 month period, Tenant’s subsequent violation of the same
term, provision or covenant shall, at Landlord’s option, be deemed an incurable
event of default by Tenant.


D.            Tenant or any
Guarantor becomes insolvent, files a petition for protection under the U.S.
Bankruptcy Code (or similar Law) or a petition is filed against Tenant or any
Guarantor under such Laws and is not dismissed within 45 days after the date of
such filing, makes a transfer in fraud of creditors or makes an assignment for
the benefit of creditors, or admits in writing its inability to pay its debts
when due.


E.             The leasehold
estate is taken by process or operation of Law.


F.             In the case of
any ground floor or retail tenant, or any other tenant whose space is visible
from the Common Areas or elevator lobby areas of the Building, Tenant does not
take possession of, or abandons or vacates all or a substantial portion of the
Premises.


G.            Tenant is in
default beyond any notice and cure period under any other lease or agreement
with Landlord, including any lease or agreement for parking.


 


15





















 


19.           Remedies.


A.            Landlord’s Remedies.  Upon any default, Landlord shall have the
right without notice or demand (except as provided in Article 18) to pursue any of its
rights and remedies at Law or in equity, including any one or more of the
following remedies:


(1)           Terminate this
Lease;


(2)           Re-enter the
Premises, change locks, alter security devices and lock out Tenant or terminate
Tenant’s right of possession of the Premises without terminating this Lease,
and without complying with applicable Law, the benefits of which are waived by
Tenant to the fullest extent permitted by applicable Law;


(3)           Remove and store, at
Tenant’s expense, all the property in the Premises using such lawful force as
may be necessary;


(4)           Cure such event of
default for Tenant at Tenant’s expense (plus a 15% administrative fee);


(5)           Withhold or suspend
payment of sums Landlord would otherwise be obligated to pay to Tenant under
this Lease or any other agreement;


(6)           Require all future
payments to be made by cashier’s check, money order or wire transfer after the
first time any check is returned for insufficient funds, or the second time any
sum due hereunder is more than five (5) days late;


(7)           Apply any Security
Deposit as permitted under this Lease; and/or


(8)           Recover such other
amounts in addition to or in lieu of the foregoing as may be permitted from
time to time by applicable Law, including any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant’s
failure to perform its obligations under this Lease or which in the ordinary
course of events would be likely to result therefrom.


B.            Measure of
Damages.


(1)           Calculation.  If Landlord either terminates this Lease or
terminates Tenant’s right to possession of the Premises, Tenant shall
immediately surrender and vacate the Premises and pay Landlord on demand:  (a) all Rent accrued through the end of the
month in which the termination becomes effective; (b) interest on all unpaid
Rent from the date due at a rate equal to the lesser of 18% per annum or the
highest interest rate permitted by applicable Law; (c) all expenses reasonably
incurred by Landlord in enforcing its rights and remedies under this Lease,
including all reasonable legal expenses; (d) Costs of Reletting (defined
below); and (e) all Landlord’s Rental Damages (defined below).  In the event that Landlord relets the
Premises for an amount greater than the Rent due during the Term, Tenant shall
not receive a credit for any such excess.


(2)           Definitions.  “Costs of Reletting”
shall include commercially reasonable costs, losses and expenses incurred by
Landlord in reletting all or any portion of the Premises including, without
limitation, the cost of removing and storing Tenant’s furniture, trade
fixtures, equipment, inventory or other property, repairing and/or demolishing
the Premises, removing and/or replacing Tenant’s signage and other fixtures,
making the Premises ready for a new tenant, including the cost of advertising,
commissions, architectural fees, legal fees and leasehold improvements, and any
allowances and/or concessions provided by Landlord.  “Landlord’s Rental Damages”
shall mean the total Rent which Landlord would have received under this Lease
(had Tenant made all such Lease payments as required) for the remainder of the
Term minus the amount of such rental loss that Tenant proves would be
reasonably avoided pursuant to Section 19.D.
below, or, if the Premises are relet, the actual rental value (not to exceed
the Rent due during the Term), both discounted to present value at the Prime
Rate (defined below) in effect upon the date of determination.  For purposes hereof, the “Prime
Rate” shall be the per annum interest rate publicly announced by
a federally insured bank selected by Landlord in the state in which the
Building is located as such bank’s prime or base rate.


(3)           Landlord’s Alternative Calculation.  Because future market rental rates, and the
costs or time involved in reletting may be uncertain and difficult to determine
at the time of


 


16





















 


Tenant’s
default, the parties agree that Landlord may in its sole discretion elect to
recover, in lieu of calculating damages under Section
19.B(1)(d) and (e)
above (but without limiting damages under Section
19.B(1)(a) and (b)
above), the sum of (a) the unamortized portion of all costs, losses and
expenses incurred by Landlord as a result of entering into the Lease, and (b)
twenty five percent (25%) of the total nominal Rent which Landlord would have
received under this Lease (had Tenant made all such Rent payments as required)
for the remainder of the Term, which the parties agree is a fair and reasonable
estimate of Landlord’s Rental Damages and the Costs of Reletting.


C.            Tenant Not
Relieved from Liabilities.  Unless expressly provided in this Lease, the
repossession or re-entering of all or any part of the Premises shall not
relieve Tenant of its liabilities and obligations under this Lease.  In addition, Tenant shall not be relieved of
its liabilities under this Lease, nor be entitled to any damages hereunder,
based upon minor or immaterial errors in the exercise of Landlord’s
remedies.  No right or remedy of Landlord
shall be exclusive of any other right or remedy.  Each right and remedy shall be cumulative and
in addition to any other right and remedy now or subsequently available to
Landlord at Law or in equity.  If Tenant
fails to pay any amount when due hereunder (after the expiration of any
applicable cure period), Landlord shall be entitled to receive interest on any
unpaid item of Rent from the date initially due (without regard to any
applicable grace period) at a rate equal to the lesser of 18% per annum or the
highest rate permitted by Law.  In
addition, if Tenant fails to pay any item or installment of Rent when due
(after the expiration of any applicable cure period), Tenant shall pay Landlord
an administrative fee equal to 5% of the past due Rent.  However, in no event shall the charges
permitted under this Section
19.C or elsewhere in this Lease, to the extent they are considered
interest under applicable Law, exceed the maximum lawful rate of interest.  If any payment by Tenant of an amount deemed
to be interest results in Tenant having paid any interest in excess of that
permitted by Law, then it is the express intent of Landlord and Tenant that all
such excess amounts theretofore collected by Landlord be credited against the
other amounts owing by Tenant under this Lease. 
Receipt by Landlord of Tenant’s keys to the Premises shall not
constitute an acceptance or surrender of the Premises.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE TO THE
CONTRARY, TENANT SHALL HOLD LANDLORD PARTIES HARMLESS FROM AND INDEMNIFY AND
DEFEND SUCH PARTIES AGAINST, ALL CLAIMS THAT ARISE OUT OF OR IN CONNECTION WITH
A BREACH OF THIS LEASE, SPECIFICALLY INCLUDING ANY VIOLATION OF APPLICABLE LAWS
OR CONTAMINATION (DEFINED IN ARTICLE 30) CAUSED BY A TENANT PARTY.


D.            Mitigation of
Damages.  Upon
termination of Tenant’s right to possess the Premises, Landlord shall, only to
the extent required by Law, use objectively reasonable efforts to mitigate
damages by reletting the Premises. 
Landlord shall not be deemed to have failed to do so if Landlord refuses
to lease the Premises to a prospective new tenant with respect to whom Landlord
would be entitled to withhold its consent pursuant to Section 11.A, or who (1) is an
Affiliate, parent or subsidiary of Tenant; (2) is not acceptable to any
Mortgagee of Landlord; (3) requires improvements to the Premises to be made at
Landlord’s expense; or (4) is unwilling to accept lease terms then proposed by
Landlord, including:  (a) leasing for a
shorter or longer term than remains under this Lease; (b) re-configuring or
combining the Premises with other space, (c) taking all or only a part of the
Premises; and/or (d) changing the use of the Premises.  Notwithstanding Landlord’s duty to mitigate
its damages as provided herein, Landlord shall not be obligated (i) to give any
priority to reletting Tenant’s space in connection with its leasing of space in
the Building or any complex of which the Building is a part, or (ii) to accept
below market rental rates for the Premises or any rate that would negatively
impact the market rates for the Building. 
To the extent that Landlord is required by applicable Law to mitigate
damages, Tenant must plead and prove by clear and convincing evidence that
Landlord failed to so mitigate in accordance with the provisions of this Section 19.D, and
that such failure resulted in an avoidable and quantifiable detriment to
Tenant.


E.             Landlord’s Lien.  To secure Tenant’s obligations under this
Lease, Tenant grants Landlord a contractual security interest on all of Tenant’s
inventory, goods, consumer goods and equipment now or hereafter situated in the
Premises and all proceeds therefrom, including insurance proceeds
(collectively, “Collateral”).  No Collateral shall be removed from the
Premises without Landlord’s prior written consent until all of Tenant’s
obligations are fully satisfied (except in the ordinary course of business and
then only if replaced with items of same or greater value and quality).  Upon any event of default, Landlord may, to
the fullest extent permitted by Law and in addition to any other remedies
provided herein, enter upon the Premises and take possession of any Collateral
without being held liable for trespass or conversion, and sell the same at
public or private sale, after giving Tenant at least 10 days written notice (or
more if required by Law) of the time and place of such sale.  Such notice may be sent with or without
return receipt requested.  Unless prohibited
by Law, any Landlord Party may purchase any Collateral at such sale.  Subject to


 


17





















applicable
Law, the proceeds from such sale, less Landlord’s expenses, including
reasonable attorneys’ fees and other expenses, shall be credited against Tenant’s
obligations.  Any surplus shall be paid
to Tenant (or as otherwise required by Law) and any deficiency shall be paid by
Tenant to Landlord upon demand.  Upon
Landlord’s request, Tenant agrees to execute and deliver to Landlord for filing
purposes a financing statement sufficient to perfect the foregoing security
interest.  Tenant authorizes Landlord to file
a copy of this Lease as a financing statement, as permitted under Law.


20.           Limitation of
Liability. 
Notwithstanding anything to the contrary contained in this Lease, the
liability of Landlord (and of any successor Landlord) to Tenant (or any person
or entity claiming by, through or under Tenant) shall be limited to the
interest of Landlord in the Property. 
Tenant shall look solely to Landlord’s interest in the Property for the
recovery of any judgment or award against Landlord.  No Landlord Party shall be personally liable
for any judgment or deficiency.  Before
filing suit for an alleged default by Landlord, Tenant shall give Landlord and
the Mortgagee(s) (defined in Article 25) whom Tenant has been notified hold Mortgages
(defined in Article 25)
on the Property, Building or Premises, notice and reasonable time to cure the
alleged default.  Tenant hereby waives
all claims against all Landlord Parties for consequential, special or punitive
damages allegedly suffered by any Tenant Parties, including lost profits and
business interruption.


 


21.           No Waiver.  Neither party’s failure to declare a default
immediately upon its occurrence or delay in taking action for a default shall
constitute a waiver of the default, nor shall it constitute an estoppel.  Neither party’s failure to enforce its rights
for a default shall constitute a waiver of that party’s rights regarding any
subsequent default.


 


22.           Tenant’s Right to Possession.  Provided Tenant pays the Rent and fully
performs all of its other covenants and agreements under this Lease, Tenant
shall have the right to occupy the Premises without hindrance from Landlord or
any person lawfully claiming through Landlord, subject to the terms of this
Lease, all Mortgages, insurance requirements and applicable Law.  This covenant and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Building, and shall not be a
personal covenant of any Landlord Parties.


 


23.           Relocation.  Landlord may, upon 60 days notice to Tenant,
relocate the Premises to any other premises within the Property (“Relocated Premises”) on a date of relocation (the “Relocation Date”) specified therein.  The Relocated Premises shall in all respects
be substantially the same or better, as reasonably determined by Landlord, in
area, finish, and appropriateness for the Permitted Use.  In such event, all reasonable expenses of
moving Tenant and decorating the Relocated Premises with substantially the same
leasehold improvements shall be at the expense of Landlord, including the
physical move, relocating Tenant’s existing telephone equipment and other costs
set forth below.  All moving costs
(including the cost to relocate phones, computers and other systems of similar
nature), all costs of reprinting stationery, cards and other printed material
bearing Tenant’s address at the Premises if such address changes due to the
relocation (but only the quantity existing immediately prior to the relocation)
and all other out-of-pocket costs directly incurred by Tenant in connection
with relocation to the Relocated Premises, including reasonable decorating and
design costs, shall be paid by Landlord within thirty (30) days after receipt
of third-party invoices therefor.  Tenant
shall have the option, effective as of the Relocation Date, either to enter
into an appropriate lease amendment relocating the Premises, or to terminate
this Lease, which option shall be exercised within 10 Business Days following
receipt of Landlord’s relocation notice. 
Failure of Tenant to choose either option within such period shall
constitute Tenant’s election to relocate. 
If Tenant elects (or is deemed to have elected) to relocate, Landlord
shall have the option to tender the Relocated Premises to Tenant on any date
within a 30 day period prior to or after the Relocation Date, in which event
the date of tender of possession of the Relocated Premises shall become the
Relocation Date.  From the Relocation
Date through the Expiration Date, the aggregate Base Rent for the Relocated
Premises shall be the same as for the original Premises.  Tenant’s failure to vacate the Premises and
move into the Relocated Premises on the Relocation Date shall constitute a Time
Sensitive Default.


 


24.           Holding Over.  Except for any permitted occupancy by Tenant
under Article 29,
if Tenant or any party claiming by, through or under Tenant fails to surrender
the Premises at the expiration or earlier termination of this Lease, the
continued occupancy of the Premises shall be that of a tenancy at
sufferance.  Tenant shall pay an amount
(on a per month basis without reduction for partial months during the holdover)
equal to 200% of the greater of:  (A) the
sum of the Base Rent and


 


18





















 


Tenant’s Pro Rata Share of Excess Operating
Expenses due for the period immediately preceding the holdover; or (B) the fair
market gross rental for the Premises. 
Tenant shall otherwise continue to be subject to all of Tenant’s
obligations under this Lease.  No
holdover by Tenant or payment by Tenant after the expiration or early
termination of this Lease shall be construed to extend the Term or prevent
Landlord from immediate recovery of possession of the Premises by summary
proceedings or otherwise.  In addition to
the payment of the amounts provided above, if Landlord is unable to deliver
possession of the Premises to a new tenant, or to perform improvements for a
new tenant, as a result of Tenant’s holdover and Tenant fails to vacate the
Premises within 15 days after Landlord notifies Tenant of Landlord’s inability
to deliver possession, or perform improvements, such failure shall constitute a
Time Sensitive Default hereunder; and notwithstanding any other provision of
this Lease to the contrary, TENANT SHALL BE LIABLE TO LANDLORD FOR, AND SHALL PROTECT LANDLORD FROM
AND INDEMNIFY AND DEFEND LANDLORD AGAINST, ALL LOSSES AND DAMAGES, INCLUDING
ANY CLAIMS MADE BY ANY SUCCEEDING TENANT RESULTING FROM SUCH FAILURE TO VACATE,
AND ANY CONSEQUENTIAL DAMAGES THAT LANDLORD SUFFERS FROM THE HOLDOVER.


 


25.           Subordination to Mortgages; Estoppel
Certificate.  Tenant
accepts this Lease subject and subordinate to any mortgage(s), deed(s) of
trust, ground lease(s) or other lien(s) now or subsequently affecting the
Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively, a “Mortgage”).  The party having the benefit of a Mortgage
shall be referred to as a “Mortgagee.”  This clause shall be self-operative, but upon
request from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee.  In lieu of having the Mortgage be superior to
this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease.  If requested by
a successor-in-interest to all or a part of Landlord’s interest in this Lease,
Tenant shall, without charge, attorn to the successor-in-interest.  Tenant shall, within 5 days after receipt of
a written request from Landlord, execute and deliver an estoppel certificate to
those parties as are reasonably requested by Landlord (including a Mortgagee or
prospective purchaser).  The estoppel
certificate shall include a statement certifying that this Lease is unmodified
(except as identified in the estoppel certificate) and in full force and
effect, describing the dates to which Rent and other charges have been paid,
representing that, to the best of Tenant’s knowledge, there is no default (or
stating with specificity the nature of the alleged default) and certifying
other matters with respect to this Lease that may reasonably be requested.  Tenant’s failure to provide any estoppel
certificate within the 5 day period specified above, and the continuation of
such failure for a period of 5 days after Landlord delivers a second written
notice requesting same, shall constitute a Time Sensitive Default under this
Lease.


 


26.           Attorneys’ Fees.  If either party institutes a suit against the
other for violation of or to enforce any covenant or condition of this Lease,
or if either party intervenes in any suit in which the other is a party to
enforce or protect its interest or rights, the prevailing party shall be
entitled to all of its costs and expenses, including reasonable attorneys’
fees.


 


27.           Notice.  If a demand, request, approval, consent or
notice (collectively, a “notice”) shall or may be
given to either party by the other, the notice shall be in writing and delivered
by hand or sent by registered or certified mail with return receipt requested,
or sent by overnight or same day courier service, or sent by facsimile, at the
party’s respective Notice Address(es) set forth in Article 1, except that if Tenant
has vacated the Premises (or if the Notice Address for Tenant is other than the
Premises, and Tenant has vacated such address) without providing Landlord a new
Notice Address, Landlord may serve notice in any manner described in this
Article or in any other manner permitted by Law.  Each notice shall be deemed to have been
received or given on the earlier to occur of actual delivery (which, in the
case of delivery by facsimile, shall be deemed to occur at the time of delivery
indicated on the electronic confirmation of the facsimile) or the date on which
delivery is first refused, or, if Tenant has vacated the Premises or the other
Notice Address of Tenant without providing a new Notice Address, three (3) days
after notice is deposited in the U.S. mail or with a courier service in the
manner described above.  Either party
may, at any time, change its Notice Address by giving the other party written
notice of the new address in the manner described in this Article.


 


28.           Reserved Rights.  This Lease does not grant any rights to light
or air over or about the Building. 
Landlord excepts and reserves exclusively to itself the use of:  (A) roofs, (B) telephone, electrical and
janitorial closets, (C) equipment rooms, Building risers or similar areas that
are used by Landlord for the provision of Building services, (D) rights to the
land and improvements below the floor of the Premises, (E) the improvements and
air rights above the Premises, (F) the


 


19





















 


improvements and air rights outside the
demising walls of the Premises, (G) the areas within the Premises used for the
installation of utility lines and other installations serving occupants of the
Building, and (H) any other areas designated from time to time by Landlord as
service areas of the Building.  Tenant
shall not have the right to install or operate any equipment producing radio
frequencies, electrical or electromagnetic output or other signals, noise or
emissions in or from the Building without the prior written consent of
Landlord.  To the extent permitted by
applicable Law, Landlord reserves the right to restrict and control the use of
such equipment.  Landlord has the right
to change the Building’s name or address. 
Landlord also has the right to make such other changes to the Property
and Building as Landlord deems appropriate, provided the changes do not
materially affect Tenant’s ability to use the Premises for the Permitted
Use.  Landlord shall also have the right
(but not the obligation) to temporarily close the Building if Landlord
reasonably determines that there is an imminent danger of significant damage to
the Building or of personal injury to Landlord’s employees or the occupants of
the Building.  The circumstances under
which Landlord may temporarily close the Building shall include, without
limitation, electrical interruptions, hurricanes and civil disturbances.  A closure of the Building under such
circumstances shall not constitute a constructive eviction nor entitle Tenant
to an abatement or reduction of Rent.


 


29.           Surrender of
Premises.  All
improvements to the Premises (collectively, “Leasehold Improvements”)
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant.  At the
expiration or earlier termination of this Lease or Tenant’s right of
possession, Tenant shall remove Tenant’s Removable Property (defined below)
from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear
excepted.  As used herein, the term “Tenant’s Removable Property” shall mean:  (A) Cable installed by or for the benefit of
Tenant and located in the Premises or other portions of the Building; (B) any
Leasehold Improvements that are installed by or for the benefit of Tenant and,
in Landlord’s reasonable judgment, are of a nature that would require removal
and repair costs that are materially in excess of the removal and repair costs
associated with standard office improvements (“Special
Installations”); and (C) Tenant’s personal property.  Notwithstanding the foregoing, Landlord may,
in Landlord’s sole discretion and at no cost to Landlord, require Tenant to
leave any of its Special Installations in the Premises.  If Tenant fails to remove any of Tenant’s
Removable Property (other than Special Installations which Landlord has
designated to remain in the Premises) within 2 days after the termination of
this Lease or of Tenant’s right to possession, Landlord, at Tenant’s sole cost
and expense, shall be entitled (but not obligated) to remove and store Tenant’s
Removable Property.  Landlord shall not
be responsible for the value, preservation or safekeeping of Tenant’s Removable
Property.  Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred for Tenant’s Removable
Property.  To the fullest extent
permitted by applicable Law, any unused portion of Tenant’s Security Deposit
may be applied to offset Landlord’s costs set forth in the preceding
sentence.  In addition, if Tenant fails
to remove Tenant’s Removable Property from the Premises or storage, as the case
may be, within 30 days after written notice, Landlord may deem all or any part
of Tenant’s Removable Property to be abandoned, and title to Tenant’s Removable
Property (except with respect to any Hazardous Material [defined in Article 30]) shall
be deemed to be immediately vested in Landlord. 
Except for Special Installations designated by Landlord to remain in the
Premises, Tenant’s Removable Property shall be removed by Tenant before the
Expiration Date; provided that upon Landlord’s prior written consent (which
must be requested by Tenant at least 30 days in advance of the Expiration Date
and which shall not be unreasonably withheld), Tenant may remain in the
Premises for up to 5 days after the Expiration Date for the sole purpose of
removing Tenant’s Removable Property. 
Tenant’s possession of the Premises for such purpose shall be subject to
all of the terms and conditions of this Lease, including the obligation to pay
Base Rent and Tenant’s Pro Rata Share of Excess Operating Expenses on a per
diem basis at the rate in effect for the last month of the Term.  In the event this Lease is terminated prior
to the Expiration Date, Tenant’s Removable Property (except for Special
Installations designated by Landlord to remain in the Premises) shall be
removed by Tenant on or before such earlier date of termination.  Tenant shall repair damage caused by the
installation or removal of Tenant’s Removable Property.


 


30.           Hazardous
Materials.


A.            Restrictions.  No Hazardous Material (defined below) (except
for de  minimis
quantities of household cleaning products and office supplies used in the
ordinary course of Tenant’s business at the Premises and that are used, kept
and disposed of in compliance with Laws) shall be brought upon, used, kept or
disposed of in or about the Premises or the Property by any Tenant Parties or
any of Tenant’s transferees, contractors or licensees without Landlord’s prior
written


 


20





















 


consent, which consent may be withheld in Landlord’s sole and absolute
discretion.  Tenant’s request for such
consent shall include a representation and warranty by Tenant that the
Hazardous Material in question (1) is necessary in the ordinary course of Tenant’s
business, and (2) shall be used, kept and disposed of in compliance with all
Laws.


B.            Remediation.  Tenant shall, at its expense, monitor the
Premises for the presence of Hazardous Materials or conditions which may
reasonably give rise to Contamination (defined below) and promptly notify
Landlord if it suspects Contamination in the Premises.  Any remediation of Contamination caused by a
Tenant Party or its contractors or invitees which is required by Law or which
is deemed necessary by Landlord, in Landlord’s opinion, shall be performed by
Landlord and Tenant shall reimburse Landlord for the cost thereof, plus a 15%
administrative fee.


C.            Definitions.  For purposes of this Article 30, a “Hazardous
Material” is any substance the presence of which requires, or
may hereafter require, notification, investigation or remediation under any
Laws or which is now or hereafter defined, listed or regulated by any
governmental authority as a “hazardous waste”, “extremely hazardous waste”, “solid
waste”, “toxic substance”, “hazardous substance”, “hazardous material” or “regulated
substance”, or otherwise regulated under any Laws.  “Contamination”
means the existence or any release or disposal of a Hazardous Material or
biological or organic contaminant, including any such contaminant which could
adversely impact air quality, such as mold, fungi or other bacterial agents,
in, on, under, at or from the Premises, the Building or the Property which may
result in any liability, fine, use restriction, cost recovery lien, remediation
requirement, or other government or private party action or imposition
affecting any Landlord Party. For purposes of this Lease, claims arising from
Contamination shall include diminution in value, restrictions on use, adverse
impact on leasing space, and all costs of site investigation, remediation,
removal and restoration work, including response costs under CERCLA and similar
statutes.


D.            Reports, Surveys
and Acceptance of Premises.  All current surveys or reports prepared for
the Property regarding the presence of Hazardous Materials (if any) in the
Building are available for inspection by Tenant in the office of the Property
manager.  With respect to Hazardous
Materials, Tenant hereby (1) accepts full responsibility for reviewing any such
surveys and reports and satisfying itself prior to the execution of this Lease
as to the acceptability of the Premises under Section 3.B above, and (2)
acknowledges and agrees that this provision satisfies all notice requirements
under applicable Law.  In the event
Tenant performs or causes to be performed any test on or within the Premises
for the purpose of determining the presence of a Hazardous Material, Tenant
shall obtain Landlord’s prior written consent and use a vendor approved by
Landlord for such testing.  In addition,
Tenant shall provide to Landlord a copy of such test within 10 days of Tenant’s
receipt.


31.           Building Directory. Tenant shall be
provided with one (1) name on the directory board located in the main lobby of
the Building at Landlord’s cost and expense.


 


32.           Miscellaneous.


A.            Governing Law;
Jurisdiction and Venue; Severability; Paragraph Headings.  This Lease and the rights and obligations of
the parties shall be interpreted, construed and enforced in accordance with the
Laws of the state in which the Property is located.  All obligations under this Lease are
performable in the county or other jurisdiction where the Property is located,
which shall be venue for all legal actions. 
If any term or provision of this Lease shall be invalid or unenforceable,
then such term or provision shall be automatically reformed to the extent
necessary to render such term or provision enforceable, without the necessity
of execution of any amendment or new document. 
The remainder of this Lease shall not be affected, and each remaining
and reformed provision of this Lease shall be valid and enforced to the fullest
extent permitted by Law.  The headings
and titles to the Articles and Sections of this Lease are for convenience only
and shall have no effect on the interpretation of any part of this Lease.  The words “include”, “including” and similar
words will not be construed restrictively to limit or exclude other items not
listed.


B.            Recording.  Tenant shall not record this Lease or any
memorandum without Landlord’s prior written consent.


C.            Force Majeure.  Whenever a period of time is prescribed for
the taking of an action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of days that the
performance is actually delayed due to strikes, acts of God, shortages of


 


21





















 


labor
or materials, war, terrorist attacks (including bio-chemical attacks), civil
disturbances and other causes beyond the reasonable control of the performing
party (“Force Majeure”).  However, events of Force Majeure shall not
extend any period of time for the payment of Rent or other sums payable by
either party or any period of time for the written exercise of an option or
right by either party.


D.            Transferability;
Release of Landlord.  Landlord shall have the right to transfer and
assign, in whole or in part, all of its rights and obligations under this Lease
and in the Building and/or Property, and upon such transfer Landlord shall be
released from any further obligations hereunder, and Tenant agrees to look
solely to the successor in interest of Landlord for the performance of such
obligations.


E.             Brokers. 
Tenant represents that it has dealt directly with and only with Grubb
& Ellis Realty, representing Tenant, and Colliers International,
representing Landlord, (whose commissions shall be paid by Landlord pursuant to
a separate written agreement) in connection with this Lease.  TENANT AND LANDLORD SHALL EACH INDEMNIFY THE
OTHER AGAINST ALL COSTS, EXPENSES, ATTORNEYS’ FEES, LIENS AND OTHER LIABILITY
FOR COMMISSIONS OR OTHER COMPENSATION CLAIMED BY ANY BROKER OR AGENT CLAIMING
THE SAME BY, THROUGH OR UNDER THE INDEMNIFYING PARTY, OTHER THAN THE BROKER(S)
SPECIFICALLY IDENTIFIED ABOVE.


F.             Authority; Joint
and Several Liability.  Landlord covenants, warrants and represents
that each individual executing, attesting and/or delivering this Lease on
behalf of Landlord is authorized to do so on behalf of Landlord, this Lease is
binding upon and enforceable against Landlord, and Landlord is duly organized
and legally existing in the state of its organization and is qualified to do
business in the state in which the Premises are located.  Similarly, Tenant covenants, warrants and
represents that each individual executing, attesting and/or delivering this
Lease on behalf of Tenant is authorized to do so on behalf of Tenant, this
Lease is binding upon and enforceable against Tenant; and Tenant is duly
organized and legally existing in the state of its organization and is
qualified to do business in the state in which the Premises are located.  If there is more than one Tenant, or if
Tenant is comprised of more than one party or entity, the obligations imposed
upon Tenant shall be joint and several obligations of all the parties and
entities.  Notices, payments and
agreements given or made by, with or to any one person or entity shall be
deemed to have been given or made by, with and to all of them.


G.            Time is of the
Essence; Relationship; Successors and Assigns.  Time is of the essence with respect to Tenant’s
performance of its obligations and the exercise of any expansion, renewal or
extension rights or other options granted to Tenant.  This Lease shall create only the relationship
of landlord and tenant between the parties, and not a partnership, joint
venture or any other relationship.  This
Lease and the covenants and conditions in this Lease shall inure only to the
benefit of and be binding only upon Landlord and Tenant and their permitted
successors and assigns.


H.            Survival of
Obligations.  The expiration of the Term, whether by lapse
of time or otherwise, shall not relieve either party of any obligations which
accrued prior to or which may continue to accrue after the expiration or early
termination of this Lease.  Without
limiting the scope of the prior sentence, it is agreed that Tenant’s
obligations under Sections
4.A, 4.B,
and 4.C, and
under Articles 6,
8, 12, 13, 19, 24, 29 and 30 shall survive
the expiration or early termination of this Lease.


I.              Binding Effect.  Landlord has delivered a copy of this Lease
to Tenant for Tenant’s review only, and the delivery of it does not constitute
an offer to Tenant or an option.  This
Lease shall not be effective against any party hereto until an original copy of
this Lease has been signed by such party and delivered to the other party.


J.             Full Agreement;
Amendments.  This
Lease contains the parties’ entire agreement regarding the subject matter
hereof.  All understandings, discussions,
and agreements previously made between the parties, written or oral, are
superseded by this Lease, and neither party is relying upon any warranty,
statement or representation not contained in this Lease.  This Lease may be modified only by a written
agreement signed by Landlord and Tenant. 
The exhibits and riders attached hereto are incorporated herein and made
a part of this Lease for all purposes.


K.            Tax Waiver.  Tenant waives all rights pursuant to all Laws
to contest any taxes or other levies or protest appraised values or receive
notice of reappraisal regarding the Property (including Landlord’s personalty),
irrespective of whether Landlord contests same.


 


22





















 


                Landlord and Tenant have
executed this Lease as of the Effective Date specified below Landlord’s
signature.


	
  Address:

  	
  LANDLORD:

  
	
   

  	
   

  
	
  3800
  Howard Hughes Parkway,

  	
  3960 HHP LLC,

  
	
  Suite
  150, Las Vegas, Nevada 89109

  	
  a Delaware limited
  liability company

  
	
  Attention:
  Property Management

  	
   

  
	
  Phone:
  (702) 791-4334

  	
   

  	
  By:

  	
  CRESCENT REAL ESTATE EQUITIES

  
	
  Fax:
  (702) 791-4354

  	
   

  	
   

  	
  LIMITED PARTNERSHIP,

  
	
   

  	
   

  	
   

  	
  a Delaware limited
  partnership

  
	
  With
  a copy to:

  	
   

  	
   

  	
  its Managing Agent

  
	
  2000
  Post Oak Blvd., Suite 1950

  	
   

  	
   

  	
   

  
	
  Houston,
  Texas 77056

  	
   

  	
   

  	
  By:

  	
  CRESCENT REAL ESTATE

  
	
  Attention:
  Jane B. Page

  	
   

  	
   

  	
   

  	
  EQUITIES, LTD.,

  
	
  Phone:
  (713) 840-1170

  	
   

  	
   

  	
   

  	
  a Delaware corporation

  
	
  Fax:
  (713) 840-1180

  	
   

  	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  And
  to:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
  777
  Main Street, Suite 2100

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Fort
  Worth, Texas 76102

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
  Attention:
  Legal Dept.

  	
   

  	
   

  	
   

  
	
  Phone:
  (817) 321-2100

  	
   

  	
   

  	
   

  
	
  Fax:
  (817) 321-2000

  	
   

  	
  Effective Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NORTHWEST POWER
  MANAGEMENT, INC. a Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


23





















 


EXHIBIT A-1



OUTLINE AND LOCATION OF PREMISES



[TO BE ATTACHED]


 


A-1-i





















 


EXHIBIT A-2



Legal Description of Property



Parcel Nine:


 


That portion of Lot 1 of “Hughes Center Unit
No. 3” as shown by map thereof on file in Book 65, page 38 of Plats, in the
Clark County Recorder’s Office, Clark County, Nevada, lying within the
Southeast Quarter (SE 1⁄4) of Section 16, Township 21 South, Range 61 East,
M.D.M., Clark County, Nevada and described as follows:


 


Commencing at the Southwest Corner of said lot
1 being a point on the Easterly right-of-way line of Howard Hughes Parkway
(80.00 feet wide);


Thence along said right-of-way line the
following three (3) courses;


North 00°11’16” West, 108.63 feet;


Thence along said right-of-way line, curving
to the right along the arc of a 420.00 foot radius curve, concave
Southeasterly, through a central angle of 33°31’36”, an arc length of 245.76
feet to a point of compound curvature to which a radial line bears North 56°39’40”
West;


Thence curving to the right along the arc of a
25.00 foot radius curve, concave Southerly,


through a central angle of 98°42’17”, an arc
length of 43.07 feet;


Thence South 47°57’23” East, 75.46 feet;


Thence curving to the left along the arc of a
200.00 foot radius curve; concave Northeasterly, through a central angle of
17°34’23”, an arc length of 61.34 feet to point of reverse curvature through
which a radial line bears South 24°28’14” West;


Thence curving to the right along the arc of a
100.00 foot radius curve, concave Southwesterly, through a central angle of
17°34’23”, an arc length of 30.67 feet;


Thence South 47°57’23” East, 95.32 feet;


Thence curving to the left along the arc of a
168.50 foot radius curve, concave Northeasterly, through a central angle of
40°12’55”, an arc length of 118.27 feet to a point bearing North  01°49’42” East, 151.00 feet from the South
line of said Lot 1;


Thence parallel with said South line, South
88°10’18” East 252.77 feet;


Thence North 01°49’42” East 37.00 feet;


Thence parallel with the South line of said
Lot 1, North 88°10’18” West 252.77 feet;


Thence curving to the right along the arc of a
131.50 foot radius curve, concave Northeasterly, through a central angle of
40°12’55” an arc length of 92.30 feet;


Thence North 47°57’23” West, 95.32 feet;


Thence curving to the right along the arc of a
100.00 foot radius curve concave Northeasterly through a central angle of 17°34’23”
an arc length of 30.67 feet to a point of reverse curvature through which a
radial line bears South 59°37’00” West;


Thence curving to the left along the arc of a
200.00 foot radius curve concave Southwesterly,


Through a central angle of 17°34’23” an arc
length of 61.34 feet;


Thence North 47°57’23” West, 80.01 feet;


Thence curving to the right along the arc of a
25.00 foot radius curve concave Easterly, through a central angle 90°00’00”, an
arc length of 39.27 feet to a point on the aforementioned Easterly right-of-way
line of Howard Hughes Parkway;


Thence along said right-of-way line, North
42°02’37” East 275.36 feet to the Point of Beginning;


Thence South 47°57’23” East, 313.24 feet;


Thence North 42°02’37” East 133.41 feet;


Thence North 47° 57’23” West, 15.00 feet;


Thence North 42° 02’37” East. 25.00 feet


Thence South 47° 57’23” East, 15.00 feet;


Thence North 42° 02’37” East, 107.07 feet;


Thence North 44° 53’40” West, 71.91 feet;


Thence from a tangent bearing North 34°10’45”
East, curving to the left along the arc of a 97.50 foot radius curve, concave
Northwesterly, through a central angle of 45°39’31”, an arc length of 77.70
feet,


Thence North 11° 28’46” West, 59.92 feet;


Thence from a tangent bearing South 71°10’15”
West, curving to the right along the arc of a 150.00 foot radius curve, concave
Northeasterly, through a central angle of 54° 45’06”, an arc length of 143.34
feet;


Thence North 54°04’39” West 40.26 feet;


Thence curving to the left along the arc of a
332.50 foot radius curve, concave Southwesterly through a central angle of
05°32’15”, an arc length of 32.14 feet to a point on the aforementioned
Easterly right-of-way line of Howard Hughes Parkway to which a radial line
bears North 30°23’06” East;


Thence along said right-of-way line, from a
tangent bearing South 27°00’37” West, curving to the right along the arc of a
940.00 foot radius curve, concave Northwesterly, through a central angle of
15°02’00”, an arc length of 246.64 feet;


Thence continuing along said right-of-way
line, South 42°02’37” West, 40.80 feet to the Point of Beginning.


 


APN: 162-16-811-017


 


 


A-2-i





















 


EXHIBIT B

RULES AND REGULATIONS



                1.             Tenant, or its officers, agents, employees, contractors
or vendors, shall not obstruct sidewalks, doorways, vestibules, halls,
corridors, stairways, lobbies and other common areas (the “Public Areas”) with
refuse, furniture, boxes, or other items. 
The Public Areas shall not be used for any purpose other than ingress
and egress to and from the Premises, or for going from one part of the Building
to another part of the Building.  Tenant’s
doors to the Premises shall not be blocked open and shall remain closed at all
times unless first approved in writing by Landlord in its sole discretion.


 


2.             Plumbing, fixtures
and appliances shall be used only for the purposes for which constructed and no
unsuitable material shall be placed therein.


 


3.             No signs,
directories, posters, advertisements, or notices shall be painted on or affixed
to any portion of the Building or Premises or other parts of the Building.  Including within Tenant’s Premises, which are
visible from any Public Areas or the Building exterior, except in such color,
size, and style, and in such places, as shall be first approved in writing by
Landlord at its sole discretion.  The
Premises shall be identified by a standard suite sign, which Landlord shall
order at Tenant’s expense.  Landlord
shall have the right to remove all unapproved signs without notice to Tenant,
at Tenant’s expense.


 


              4.               Tenant shall not do, or permit
anything to be done in or about the Building, or bring or keep anything
therein, that will in any way increase the possibility of fire or other hazard
or increase rate of fire or other insurance on the Building.  Tenant shall not use or keep in the Building
any inflammable or explosive fluid or substance or any illuminating
materials.  No space heaters or portable
fans shall be operated in the Building. 
Tenant must submit to Landlord a certificate of Fire Retardancy for any
fresh evergreens (i.e. Christmas tree, wreaths) to be brought onto the
Premises.


 


              5.               Tenant shall notify Landlord when
safes or other heavy equipment are to be taken in or out of the Building, and
such moving shall only be done after written permission is obtained from
Landlord on such conditions as Landlord may require at its sole
discretion.  Landlord shall have the
power to prescribe the weight and position of heavy equipment or other objects,
which may overstress any portion of the Building.  All damage done to the Building by such heavy
items will be repaired at the sole expense of the responsible Tenant.


 


              6.               During normal business hours,
Tenant may receive routine deliveries at the Premises (i.e. office supplies,
bottled water, mail couriers and parcel shipments).  All such deliveries must be made via the
Building’s designated service access route and under no circumstances through
the front lobby door.  Tenant’s initial
move-in, move-out and all other non-routine deliveries (i.e. furnishings, large
equipment) must occur after normal business hours and only after written
permission is obtained from Landlord, on such conditions as Landlord may
require in its sole discretion.


 


              7.               Tenant shall cooperate with
Landlord in keeping the Premises neat and clean.


 


              8.               Tenant shall not cause or permit
any improper noises in the Building, or allow any unpleasant odors to emanate
from the Premises, or otherwise interfere, injure or annoy in any way other
tenants in the Building, or persons having business with them.


 


              9.               No animals shall be brought into
or kept in or about the Building, with the exception of aid animals such as
Seeing Eye dogs.


 


            10.               When conditions are such that
Tenant must dispose of small shipping crates or boxes, it will be the
responsibility of Tenant to break down and dispose of same in the refuse
container designated by Landlord.  The
disposal of large shipping crates or boxes (or other large objects or
quantities), which in Landlord’s sole determination could overload the
designated refuse container, must be accommodated through Tenant’s mover or
vendor or may otherwise be prearranged through Landlord at an additional charge
to Tenant’s account.


 


            11.               No machinery of any kind, other
than ordinary office machines such as typewriters, calculators, facsimile
equipment and personal computer equipment shall be operated on the Premises
unless first approved in writing by Landlord in its sole discretion.


 


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            12.               No bicycles, motorcycles or
similar vehicles will be allowed in the Building.


 


            13.               No nails, hooks, or screws shall
be driven into or inserted in any part of the Building unless first approved in
writing by Landlord in its sole discretion.


 


            14.               After normal business hours,
Landlord reserves the right to exclude from the Building any person who does
not possess an authorized means of access such as a key, card key, or a
prearranged written authorization and who is otherwise not an employee or guest
of Tenant.  Tenant and its officers,
agents or employees shall utilize card keys only as instructed by Landlord and
in no event shall Tenant allow access to anyone, other than its officers, agents,
employees, guests or vendors.


 


            15.               Canvassing, soliciting and
peddling in Public Areas, or otherwise within the Building, are strictly
prohibited.  Unless otherwise approved by
Landlord in writing, Tenant shall not use the Premises for the sale of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to
other tenants in the Building or the general public.  Tenant shall not use the Premises for any
business or activity other than that specifically provided for in Tenant’s
lease.  Tenant shall not make door-to-door
solicitation of business from other tenants in the Building.


 


            16.               Landlord shall initially give
tenant two (2) keys to the Premises. 
Tenant shall make no duplicates of such keys.  Additional keys shall be obtained only from
Landlord, at a fee to be determined by Landlord.  No additional locks shall be placed upon any
doors unless first approved by Landlord in writing.  Upon termination of Tenant’s lease, Tenant
shall surrender all keys to the Premises (and, if applicable, card keys) to
Landlord and shall otherwise give Landlord the combination of all locks on the
Premises.


 


            17.               Tenant will not locate
furnishings or cabinets adjacent to mechanical or electrical access panels or
over air conditioning outlets so as to prevent operating personnel from
servicing such units as routine or emergency access may require.  Cost of moving such furnishings for Landlord’s
access will be billed to Tenant.   The
lighting and air conditioning equipment of the Building is the exclusive charge
of Landlord and its employees.


 


            18.               Tenant shall comply with all
parking rules and regulations as posted and distributed by Landlord from time
to time.


 


            19.               No portion of the Building shall
be used for the purpose of lodging rooms.


 


            20.               Tenant shall not waste
electricity, water or other utilities. 
Tenant will comply with any governmental energy-saving rules, laws or
regulations of which Tenant has received notice.  Tenant agrees to cooperate fully with
Landlord to assure the effective operation of the Building’s heating and air
conditioning and to refrain from adjusting thermostat controls.


 


            21.               Tenant shall not place vending
machines or dispensing machines of any kind in the Premises, unless first
approved in writing by Landlord in its sole discretion.


 


            22.               Landlord’s written approval,
which shall be at Landlord’s sole discretion, must be obtained prior to
changing from the standard blinds. 
Landlord will control all blinds and internal lighting that may be
visible from the exterior or Public Areas of the Building and shall have the
right to change any unapproved blinds and lighting at Tenant’s expense.


 


            23.               Tenant shall not make any changes
or alterations to any portion of the Building without Landlord’s prior written
approval, which may be given on such conditions as Landlord may require in its
sole discretion.  All such work shall be
done by Landlord or by Landlord’s contractors and/or workers approved by
Landlord, who must work under Landlord’s supervision and within Landlord’s
standards and guidelines.


 


            24.               Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business of
Tenant except as Tenant’s address, without Landlord’s prior written approval,
which may be given on such conditions as Landlord may require in its sole discretion.


 


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            25.               Tenant shall comply with all
safety, fire protection, and evacuation procedures and regulations established
by Landlord or any governmental agency. 
Landlord has the right to evacuate the Building in the event of an
emergency or catastrophe.  Landlord
reserves the right to prevent access to the Building in cases of invasion, mob,
riot, bomb threat, public excitement or other commotion by closing the doors or
by taking other appropriate action.


 


            26.               Tenant assumes any and all
responsibility for protecting the Premises from theft, robbery and pilferage,
which includes keeping doors locked when the Premises are not fully inhabited.


 


            27.               Smoking shall not be permitted on
any multi-tenant floor in the Building. 
Smoking is permitted on any floor in the Building, which is leased
entirely by a single tenant (if so desired by that tenant).  Smoking is also permitted outside the
Building; however, smokers must utilize the ash urns which are located outside
the Building at the designated smoking area.


 


            28.               Landlord has the right to
designate a property management company to, among other things, monitor and
enforce the Rules and Regulations.


 


            29.               Tenant is solely responsible for
the cost to maintain and repair any and all “Above Standard” items installed
within their Premises (i.e., computer room air conditioning unit, sinks,
garbage disposals, dishwashers, custom locking devices, specialty lighting,
private restroom fixtures, etc.)


 


            30.               Landlord reserves the right to
rescind any of these rules and regulations and to make such other and further
rules and regulations as in its sole judgment. 
And shall from time to time be required for the successful and
professional operation of the Building, which rules shall be binding upon each
tenant and its officers, agents, employees, guests and vendors upon delivery to
tenant.


 


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EXHIBIT C


COMMENCEMENT
LETTER


Re:                               Office Lease
dated                         ,
2005 (the “Lease”) between 3960 HHP LLC
(“Landlord”) and NORTHWEST POWER MANAGEMENT, INC. (“Tenant”) for the Premises, the Rentable Square Footage
of which is 3,448, located on the sixth floor of 3960 Howard Hughes Parkway,
Las Vegas, Nevada.  Unless otherwise specified,
all capitalized terms used herein shall have the same meanings as in the Lease.


Landlord
and Tenant agree that:


Landlord has fully completed
all Landlord Work required under the terms of the Lease, if any.


Tenant has accepted
possession of the Premises.  The Premises
are usable by Tenant as intended; Landlord has no further obligation to perform
any Landlord Work or other construction, and Tenant acknowledges that both the
Building and the Premises are satisfactory in all respects.


The Commencement Date of the
Lease is                         ,
200    .


The Expiration Date of the
Lease is the last day of                         ,
            .


Tenant’s Address at the
Premises after the Commencement Date is:




	
   

  
	
   

  
	
   

  
	
  Attention:

  	
   

  
	
  Phone:

  	
   

  
	
  Fax:

  	
   

  
				






 


All
other terms and conditions of the Lease are ratified and acknowledged to be
unchanged.


EXECUTED as of                         ,
200    .




{ATTACH APPROPRIATE SIGNATURES}


 


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EXHIBIT D


[paint and carpet only — Landlord turn-key]


 


This Work Letter is attached as an Exhibit to an Office Lease (the “Lease”) between 3960 HHP LLC, as Landlord, and NORTHWEST
POWER MANAGEMENT, INC., as Tenant, for the Premises, the Rentable Square
Footage of which is 3,448, located on the sixth floor of the Building.  Unless otherwise specified, all capitalized
terms used in this Work Letter shall have the same meanings as in the
Lease.  In the event of any conflict
between the Lease and this Work Letter, the latter shall control.


Tenant agrees to accept the Premises in its current “as is” condition
as of the Commencement Date; provided that Landlord shall repair any damage
caused by the prior tenant in the Premises. 
However, Tenant shall be permitted at Tenant’s expense to paint and
re-carpet the Premises  with Tenant’s
choice of building standard materials (the “Tenant Work”).  Any materials used must meet all requirements
of Section 4.5 of the ADA.  The Tenant
Work shall be conducted in accordance with all provisions of the Lease as they
pertain to Alterations, including Article 9 of the Lease. 
Upon and subject to the terms and conditions of this Work Letter,
Landlord shall reimburse Tenant for the costs of the Tenant Work; provided,
however, Landlord’s obligation to reimburse Tenant for the Tenant Work shall
be: (i) limited to the lesser of (A) actual costs incurred by Tenant in its
construction of the Tenant Work; and (B) an amount up to, but not exceeding,
$5.00 multiplied by the Usable Square Footage of the Premises; and (ii) conditioned
upon Landlord’s receipt of written notice (which notice shall be accompanied by
invoices and documentation set forth below) from Tenant that the Tenant Work
has been completed and accepted by Tenant.


By
taking possession of the Premises, Tenant agrees and acknowledges that (i) the
Premises are usable by Tenant as intended; (ii) Landlord has no further
obligation to perform any Landlord Work or other construction (except punchlist
items, if any agreed upon by Landlord and Tenant in writing): and (iii) both
the Building and the Premises are satisfactory in all respects.


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EXHIBIT E



HUGHES CENTER


PARKING AGREEMENT


 


This Parking Agreement is incorporated by reference into that certain
Lease Agreement dated as of                                                 , 2005, NORTHWEST
POWER MANAGEMENT, INC., as Tenant, and 3960 HHP LLC, as Landlord (the “Lease”).


 


1.             Parking
Facilities.  The parking facilities
appurtenant to the Building include asphalt surface parking for visitor parking
and a separate parking structure for monthly parking (“Parking Structure”).  Tenant shall be entitled to use thirteen (13)
vehicle parking spaces within the Parking Structure for the monthly parking of
Tenant’s employees.  Up to nine (9) of
such parking spaces shall be for parking in the covered portion of the Parking
Structure, and the remaining four (4) parking spaces shall be for parking in
the rooftop, uncovered portion of the Parking Structure. Tenant’s use of the
Parking Structure shall be based upon a non-exclusive use in common with
Landlord, other tenants of the Building, and their guests and invitees.  Tenant shall not use more parking spaces than
said number, or any spaces (a) which have been specifically assigned by
Landlord to other tenants or for such other uses as visitor parking or
(b) which have been designated by governmental entities of competent
jurisdiction as being restricted to certain uses.  Landlord reserves the right to erect such
security and access and egress control devices as it may reasonably deem to be
appropriate (including, without limitation card controlled gates) and Tenant
agrees to cooperate fully with Landlord in such matters.  Tenant shall not permit or allow any vehicles
that belong to or are controlled by Tenant or Tenant’s employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parked in areas
other than those designated by Landlord for such activities.  If Tenant permits or allows any of such
prohibited activities, then Landlord shall have the right, without notice, in
addition to such other rights and remedies that it may have, to remove or tow
away the vehicle involved and charge the cost to Tenant, which cost shall be
immediately payable upon demand by Landlord.


 


2.             Parking Fee.  Tenant shall pay, throughout the entire Term,
an amount equal to the number of parking spaces Tenant is entitled to use times
the applicable fees (the “Parking Fees”) which Landlord is charging for use of
the parking facilities.  Currently,
Landlord is charging Fifty-five Dollars and No Cents ($55.00) per space
per month for covered parking and Thirty Dollars and No Cents ($30.00) per
space per month for uncovered parking. 
Landlord shall have the right from time to time to increase the Parking
Fees being charged Tenant upon thirty (30) days prior written notice. Tenant
agrees and acknowledges that Tenant shall be obligated to pay such rates
regardless of whether or not Tenant actually uses or needs the parking spaces
which Tenant is entitled to use.  Such
Parking Fees shall be payable monthly commencing with the first installment of
Base Rent due under the Lease.  If the
Commencement Date is other than the first day of a calendar month, the first
installment of the Parking Fees shall be prorated on the basis of a thirty (30)
day calendar month.


 


3.             Definitions.  All capitalized terms contained in this
Parking Agreement that are not defined herein shall have the same definition as
set forth in the Lease.


 


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