**Exhibit 10.2**

 

**INDUSTRIAL REAL ESTATE LEASE**

 

THIS LEASE AGREEMENT (the “Lease”)is entered into as of the                    day of June, 2010, between the tenant-in-common owners listed on Schedule 1attached hereto and made a part hereof for all purposes (collectively, the “Landlord”),c/o RAINIER ASSET MANAGEMENT COMPANY, LLC, AS AGENT FOR LANDLORD, and NEI, Inc.(“Tenant”).

 

**Article 1.BASIC TERMS**

 

This Article 1 containsthe Basic Terms of this Lease between the Landlord and Tenant. Other Articlesand Sections of the Lease referred to in this Article 1 explain and definethe Basic Terms and are to be read in conjunction with the Basic Terms.

 

**Section 1.01.Property and Premises**. The Property (herein so-called) isdescribed on Exhibit “A” attached hereto and is part of Landlord’smulti-tenant real property development known as Plano Tech Center, all or partof which is described or depicted in the site plan attached as Exhibit “B”(the “Project”). The Project includes the land described on Exhibit “B,”the Buildings (herein so-called) and all other improvements located on theProperty or on property subsequently acquired by Landlord and incorporated intothe Project, and the Common Areas described in Section 4.05 A. Tenant’sPremises (herein so-called) shall be located on the Property in the 82,880square foot portion of the Building at 3501 E. Plano Parkway, Plano, Texas75074, shown on the floor plate attached hereto as Exhibit “A-1”.

 

**Section 1.02.Lease Term**. Ninety (90) months, beginning on February 1, 2010and ending on July 31, 2017.

 

**Section 1.03.Permitted Uses**. (See Article 5) The Premises may be used onlyfor light manufacturing, including, without limitation, selling, storing, shipping,designing, testing, assembling, fabricating products, materials and merchandisemade or distributed by Tenant and its customers and for such other purposes asmay be incidental thereto, including, without limitation, offices.

 

**Section 1.04.Tenant’s Guarantor**. None.

 

**Section 1.05.Brokers**. (See Article 14)

 

A.            “Landlord’s Broker”: TCSCentral Region, GP, L.L.C. d/b/a Transwestern

B.            “Tenant’s Broker”: Jackson &Cooksey, Inc.

 

Commission payable tobrokers shall be calculated on an amount of $3,185,123.98. This amount iscalculated as follows:

 

Total base rental amount perthe terms of this Lease is calculated to be $4,332,240.00 less the remainingbase rental of $1,157,116.00 that is to be paid as of January 31, 2010 on thatcertain lease dated December 15, 2000 originally between Argent Plano Realty, L.P.,a Texas Limited Partnership (landlord) and Alliance Systems, Inc., a TexasCorporation (Tenant) and subsequently amended by the following six (6) amendments(collectively, the “Existing Lease”):

 

1.             That certain First Amendmentdated 23rd day of October,2001;

2.             That certain undated SecondAmendment – Satellite Antenna Lease;

3.             That certain Third Amendmentwith an effective date of December 17, 2001;

4.             That certain FourthAmendment dated effective January 1, 2001;

5.             That certain Fifth Amendmentdated July 30, 2004;

6.             That certain Sixth Amendmentdated April 12, 2006.

 

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**Section 1.06.Commissions Payable to Brokers**. (See Article 14) 

 

A.            To Landlord’s Broker: perseparate agreement 

B.            To Tenant’s Broker: perseparate agreement

 

**Section 1.07.Initial Security Deposit**. (See Section 3.02) $58,771.00

 

**Section 1.08.Vehicle Parking Spaces Allocated to Tenant**. (See Section 4.05) approx.200

 

**Section 1.09**. **Rent and Other Charges Payable by Tenant**.

 

**A.**            **Base Rent**.

 
| **Months**   | ** ** | **Monthly Net Lease Amount** |
|--------------|------------|------------------------------|
| Months 1-18  |       | $25,900.00/month             |
| Months 19-30 |       | $49,378.33/month             |
| Months 31-42 |       | $51,105.00/month             |
| Months 43-54 |       | $52,831.67/month             |
| Months 55-66 |       | $54,558.33/month             |
| Months 67-78 |       | $56,285.00/month             |
| Months 79-90 |       | $58,011.67/month             |

 

**B.****           ****Items ofAdditional Rent**. (i) Real property taxes (See Section 4.02);(ii) Utilities (See Section 4.03); (iii) Insurance Premiums (SeeSection 4.04); (iv) Common Area Costs and (v) PropertyMaintenance Costs (See Section 4.05); plus 100% of the costs of separatelymetered utilities and Maintenance, Repairs and Alterations of the Premises tothe extent provided in Article 6.

 

**C.****           ****Rent**. The term “Rent”shall mean Base Rent and Additional Rent.

 

**Section 1.10.Riders**. The following Riders are attached to and made a part of this Lease:

 

Rider 1 - “Renewal Option”;Rider 2 - “Cancellation Option”

 

**Section 1.11.Exhibits**. The following Exhibits “A” through “G” areattached to and made a part of this Lease:

 
| **Exhibit** | ** ** | **Lease  Section** | ** ** | **Description**                                                |
|-------------|------------|--------------------|------------|----------------------------------------------------------------|
| A           |       | 1.01               |       | Property                                                       |
| A-1         |       | 1.01               |       | Floor Plate                                                    |
| B           |       | 1.01               |       | Site Plan of Project                                           |
| C           |       | 2.02               |       | Intentionally Omitted                                          |
| D           |       | 11.02              |       | Subordination, Nondisturbance &  Attornment Agreement |
| E           |       | 11.05A             |       | Estoppel Certificate                                           |
| F           |       | 4.05B              |       | Rules &  Regulations                                  |
| G           |       | 5.04               |       | Signage Criteria                                               |

 

**Article 2.LEASE TERM**

 

**Section 2.01**. **Lease of Premises for Lease Term**. Landlordleases the Premises to Tenant and Tenant leases the Premises from Landlord forthe Lease Term and for any renewal term(s) the option for which isexercised by Tenant pursuant to the Renewal Option Rider described in Section 1.10.The Lease Term is for the period stated in Section 1.02 above and shallbegin on the date specified in Section 1.02 above, unless the beginning ofthe Lease Term is changed under any provision of this Lease. The

 

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“Commencement Date” shall bethe date specified in Section 1.02 above for the beginning of the LeaseTerm, unless advanced or delayed under any provision of this Lease.

 

**Section 2.02.Intentionally Omitted**.

 

**Section 2.03.Intentionally Omitted**.

 

**Section 2.04.Commencement Date**. The Commencement Date shall be February 1, 2010.

 

**Section 2.05.Holding Over**. Tenant shall vacate the Premises upon theexpiration or earlier termination of this Lease. Tenant shall pay Landlord thefollowing amounts if Tenant delays in vacating the Premises after suchexpiration or earlier termination of the Lease: an amount equal to the sum of(i) 125% of the amount of the Base Rent calculated on a daily basis, plus100% of the amount of Additional Rent for the entire holdover period, plus (ii) allreasonable attorneys’ fees and other expenses incurred by Landlord in enforcingits rights under this Lease. If Tenant does not vacate the Premises upon theexpiration or earlier termination of the Lease and Landlord thereafter acceptsRent from Tenant, Tenant’s occupancy of the Premises shall be a “month-to-month”tenancy, subject to all of the terms of this Lease consistent with amonth-to-month tenancy, except that Base Rent then in effect shall be increasedto 125% of the amount of the Base Rent.

 

**Article 3.BASE RENT**

 

**Section 3.01.Time and Manner of Payment**. Landlord acknowledges thatTenant has paid Base Rent in the amount of $63,496.67 for the months ofFebruary, March, April and May 2010 pursuant to the Existing Lease andthat based on the Commencement Date of this Lease, Tenant is required to paythe lesser monthly Base Rent amount as set forth in Section 1.09A abovefor such periods. Therefore, upon execution of this Lease, Tenant shall beentitled to a Base Rent credit in the amount of the difference between theamounts already paid by Tenant and acknowledged by Landlord for the periodbeginning on the Commencement Date and ending on the execution date of thisLease, for which Base Rent credit Tenant shall be entitled to an offset againstthe Base Rent next coming due under this Lease until the entirety of such BaseRent credit has been credited to Tenant. Any partial month of Base Rent creditshall be prorated based on the number of days in such partial month. On thefirst day of each month after such Base Rent credit has been fully credited toTenant, the Base Rent shall be due and payable, and Tenant shall pay Landlordthe Base Rent, in advance, on each such due date, without offset or deduction, exceptas expressly set forth in this Lease, or prior demand. The Base Rent shall be payableat Landlord’s address or at such other place as Landlord may designate inwriting. Upon execution of this Lease, the Existing Lease shall be and ishereby terminated as of January 31, 2010.

 

**Section 3.02.Security Deposit**. Tenant has previously deposited with Landlord acash Security Deposit in the amount set forth in Section 1.07 abovepursuant to the Existing Lease. Such Security Deposit is hereby transferred tothis Lease. Landlord may apply all or part of the Security Deposit to anyunpaid Rent or other charge due from Tenant or to cure any other Defaults ofTenant. If Landlord uses any part of the Security Deposit, Tenant shall restorethe Security Deposit to its full amount within ten (10) days afterTenant’s receipt of Landlord’s written request. No interest shall be paid onthe Security Deposit. Landlord shall not be required to keep the SecurityDeposit separate from the other accounts and no trust relationship is createdwith respect to the Security Deposit.

 

**Article 4.OTHER CHARGES PAYABLE BY TENANT**

 

**Section 4.01.Additional Rent**. All charges payable by Tenant other than Base Rentare called “Additional Rent”. Unless this Lease provides otherwise, Tenantshall pay all Additional Rent then due with the next monthly installment ofBase Rent.

 

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**Section 4.02.Property Taxes**.

 

A.            Real Property Taxes. Tenantshall pay Landlord for Landlord’s estimate of Tenant’s Pro Rata Share (asdefined in Section 4.06) of all real property taxes on the Property(including any fees, taxes or assessments against, or as a result of, anyTenant Improvements installed on the Property by or for the benefit of Tenant) duringthe Lease Term. Such payments shall be made on a monthly basis in accordancewith Section 4.06, below.

 

B.            Definition of “Real PropertyTax.” “Real property tax” means: (i) any fee, license fee, license tax, businesslicense fee, commercial rental tax, levy, charge, assessment, or tax imposed byany taxing authority against the Property: (Ii) any tax on the Landlord’sright to receive, or the receipt of, rent or income from the Property oragainst Landlord’s business of leasing the Property; (iii) any tax orcharge for fire protection, streets, sidewalks, road maintenance, refuse orother services provided to the Property by any governmental agency; ; and (iv) anycharge or fee replacing any tax previously included within the definition ofreal property tax. “Real property tax” does not, however, include Landlord’sfederal or state income, franchise, inheritance or estate taxes.

 

C.            Landlord agrees to use itsreasonable and affirmative best efforts to contest any tax, fee or assessmentwholly or partially paid or reimbursed by Tenant to the same extent as Landlordwould contest the same if Landlord had paid the tax, fee or assessment itselfwithout reimbursement. Landlord shall reimburse Tenant for Tenant’s Pro RataShare of any and all amounts recovered by Landlord as a result of such contest,net of Landlord’s reasonable costs incurred in pursuing such contest.

 

D.            Personal Property Taxes.

 

(1) Tenant shall payall taxes charged against trade fixtures, furnishings, equipment, inventory, orany other personal property belonging to Tenant. Tenant shall render itspersonal property for taxation separately from the Premises.

 

(2) If any of Tenant’spersonal property is taxed with the Property, Tenant shall pay Landlord thetaxes for the personal property within fifteen (15) days after Tenant receivesa written statement from Landlord for such personal property taxes.

 

**Section 4.03.Utilities**. Tenant shall pay, directly to the appropriatesupplier, the cost of all natural gas, heat, light, power, sewer service, telephone,water, refuse disposal and other utilities and services supplied to thePremises. However, if any services or utilities are jointly metered or sharedwith other premises, Landlord shall make a reasonable determination of Tenant’sshare of the cost of such utilities and services based on the square foot areaof the Premises compared to the total square foot area jointly metered orshared and Tenant shall pay such reasonable share to Landlord in accordancewith the terms of Section 4.06. Alternatively, Landlord may require Tenantto contract for Tenant’s own rubbish collection.

 

**Section 4.04.Insurance Policies**.

 

A.            Liability Insurance. Duringthe Lease Term, Tenant shall maintain a policy of commercial general liabilityinsurance (sometimes known as broad form comprehensive general liabilityinsurance) insuring Tenant against liability for bodily injury, Premises damage(including loss of use of Premises) and personal injury arising out of theoperation, use or occupancy of the Premises. Nothing contained herein shallobligate the Tenant to carry product liability insurance. Tenant shall nameLandlord as an additional insured under such policy as their respectiveinterests appear. The amount of such insurance shall be Two Million Dollars($2,000,000) per occurrence. The amount and coverage of such insurance shallnot limit Tenant’s liability nor relieve the Tenant of any other obligationunder this Lease. Landlord may also obtain comprehensive public liabilityinsurance in an amount and with coverage reasonably determined by Landlordinsuring Landlord against liability arising out of ownership, operation, use oroccupancy of the Premises. The policy obtained by Landlord shall not becontributory and shall not provide primary insurance. Tenant shall be liablefor the payment of any deductible amount under Tenant’s insurance policiesmaintained pursuant to this Section 4.04 A.

 

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B.            Building and Rental IncomeInsurance. During the Lease Term, Landlord shall maintain policies of insurancecovering loss of or damage to the Premises in the full amount of its replacementvalue. Such policy shall contain an Inflation Guard Endorsement and shallprovide protection against all perils included within the classification offire, extended coverage, vandalism, malicious mischief, special extended perils(all risk), sprinkler leakage and any other perils which Landlord deemsreasonably necessary. Landlord shall have the right to obtain flood andearthquake insurance if required by any lender holding a security interest inthe Property. Landlord shall not obtain insurance for Tenant’s fixtures orequipment or building improvements installed by Tenant, or Tenant’s personalproperty, on the Premises. During the Lease Term, Landlord shall also maintaina rental income insurance policy, with loss payable to Landlord, in an amountequal to one year’s Base Rent. Tenant shall be liable for Tenant’s Pro RataShare of the payment of any deductible amount under Landlord’s or Tenant’sinsurance policies maintained pursuant to this Section 4.04 B, in anamount not to exceed Ten Thousand Dollars ($10,000), except that the deductibleon flood and earthquake insurance (if any) shall be Twenty Five ThousandDollars ($25,000). Tenant shall not do nor permit anything to be done whichinvalidates any such insurance policies. Landlord shall furnish to Tenant uponrequest a certificate of insurance, properly authenticated, showing that theinsurance which Landlord is required to maintain under this Section 4.04 Bis in full force and effect.

 

C.            Payment of Premiums. Tenantshall pay all premiums for the insurance policies required to be maintained byit described in Section 4.04 A. Tenant shall pay Landlord on the terms providedin Section 4.06 Tenant’s Pro Rata Share of the premium cost of insurancepolicies obtained by Landlord pursuant to Section 4.04 B, except Landlordshall pay all premiums for non-primary comprehensive public liability insurancewhich landlord elects to obtain as provided in Section 4.04 A and thecosts thereof shall not be included in the premium costs reimbursable by Tenantto Landlord. If insurance policies maintained by Landlord cover improvements onreal property other than the Property, Landlord shall deliver to Tenant astatement of the allocation of premium applicable to the Premises showing inreasonable detail how Tenant’s share of the premium was computed. Before the CommencementDate, Tenant shall deliver to Landlord a copy of any policy of insurance whichTenant is required to maintain under this Section 4.04. Prior to theexpiration of any such policy, Tenant shall deliver to Landlord a renewal ofsuch policy. As an alternative to providing a policy of insurance, Tenant shallhave the right to provide Landlord a certificate of insurance, executed by anauthorized officer of the insurance company, showing that the insurance whichTenant is required to maintain under this Section 4.04 is in full forceand effect and containing such other information which Landlord reasonablyrequires.

 

D.            General InsuranceProvisions.

 

(1) Notice. With regardto any insurance which Tenant is required to maintain under this Lease, Tenantshall endeavor to include a provision which requires the insurance carrier togive Landlord not less than thirty (30) days written notice prior to anycancellation or modification of such coverage.

 

(2) Landlord’s Remedy. IfTenant fails to deliver any policy, certificate or renewal to Landlord requiredunder this lease within the prescribed time period or if any such policy iscanceled or modified during the Lease Term without Landlord’s consent, Landlordmay obtain such insurance, in which case Tenant shall reimburse Landlord forits premium cost of such insurance within fifteen (15) days after receipt of astatement that indicates the cost of such insurance.

 

(3) Carrier CreditRating. Tenant shall maintain all insurance required under this Lease withcompanies holding a “General Policy Rating” of A-B or better, as set forth inthe most current issue of “Best Key Rating Guide”. Landlord and Tenantacknowledge the insurance markets are subject to change and that insurance inthe form and amounts described in this Section 4.04 may not be availablein the future. If at any time during the Lease Term, Tenant is unable tomaintain the insurance required under the Lease, Tenant shall neverthelessmaintain insurance coverage which is customary and commercially reasonable inthe insurance industry for Tenant’s type of business, as that coverage maychange from time to time. Landlord makes no representation as to the adequacyof such insurance required under Section 4.04 to protect Landlord orTenant’s interest. Therefore, Tenant shall obtain any

 

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such additional propertyinsurance (for Tenant’s fixtures or contents) or liability insurance whichTenant deems necessary to protect Tenant.

 

(4) Waiver ofSubrogation. Unless prohibited under any applicable insurance policiesmaintained, Landlord and Tenant each hereby waive any and all rights ofrecovery against the other, or against the officers, employees, agents orrepresentatives of the other, for loss of or damage to the Premises or theProperty or the property of others under either party’s control, if such lossor damage is covered by any insurance policy in force (whether or not describedin this Lease) at the time of such loss or damage. Upon obtaining the requiredpolicies of insurance, Landlord and Tenant shall give notice to the insurancecarriers of this mutual waiver of subrogation. 

 

**Section 4.05. Common Areas; Use,Maintenance and Costs.**

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A.            Common Areas. As used inthis Lease, “Common Areas” shall mean all areas within the Project which areavailable for the common use of tenants of the Project pursuant to applicablecommon access easements or other restrictions binding on owners of land withinthe Project, and which are not leased or held for the exclusive use of Tenantor other tenants, including, but not limited to, driveways, landscaped, drainageand planted areas as shown on Exhibits “A-1” and “B” and Project monumentsignage. Any portion of the Common Areas located on the Project are subject to certainmaintenance and repair obligations pursuant to recorded restrictions, the dutyand cost of performance shall be subject to Sections 4.05D and 6.03 of thisLease. Landlord, from time to time, may create Common Areas by recordation of adeclaration of covenants, conditions, and restrictions for the Project, or maychange the size, location, nature and use of any of the Common Areas, convert CommonAreas into leasable areas, construct additional parking facilities (includingparking structures) in the Common Areas, and increase or decrease Common Arealand and/or facilities. Such activities and changes are permitted providedTenant’s use of and access to the Premises are not unreasonably or significantlyimpaired. 

 

B.            Use of Common Areas; Rules andRegulations. Tenant shall have the nonexclusive right (in common with othertenants and all others to whom Landlord has granted or may grant such rights) touse the Common Areas for the purposes intended, subject to recordedrestrictions and conditions and to such reasonable rules and regulationsas Landlord may establish from time to time. Tenant shall abide by such rules andregulations and shall use reasonable efforts to cause others who use the CommonAreas with Tenant’s express or implied permission to abide by Landlord’s rules andregulations. During the Lease Term, Landlord shall enforce the rules andregulations with reasonable commercial diligence based upon notification toLandlord of alleged infractions. At any time, Landlord may close any CommonAreas to perform any acts in the Common Areas as, in Landlord’s judgment, aredesirable to improve the Project, provided Tenant’s use of and access to thePremises are not unreasonably or significantly impaired. Tenant shall notinterfere with the rights of Landlord, other tenants or any other personentitled to use the Common Areas. Notwithstanding anything contained in theRules and Regulations attached hereto, Landlord acknowledges and agreesthat Tenant shall have access to the roof of the Project for installation andmaintenance of its HVAC equipment; provided, however, that (i) all suchinstallation and maintenance shall be at Tenant’s sole cost and expense, (ii) suchequipment does not interfere with the operation of or access to any otherexisting rooftop installations; and (iii) Tenant shall indemnify and holdLandlord harmless from any costs or other damages incurred by Landlord as aresult of the installation and operation of Tenant’s rooftop equipment. Tenantshall submit to Landlord for Landlord’s approval, which approval will not beunreasonably withheld or delayed, drawings showing the location of any suchequipment Tenant desires to place on the Project’s rooftop.

 

C.            Vehicle Parking. Tenantshall be entitled to use the number of vehicle parking spaces in the Propertyallocated to Tenant in Section 1.08 of the Lease without paying anyadditional rent. Tenant’s parking shall not be reserved and shall be limited tovehicles no larger than standard size automobiles or pickup utility vehicles. Temporaryparking of large delivery vehicles in the Project may

 

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be permitted at loading dockstalls serving Tenant’s Premises by the rules and regulations establishedby Landlord. Vehicles shall be parked only in striped parking spaces and not indriveways, loading areas or other locations not specifically designated forparking. If Tenant or Tenant’s employees park more vehicles in the parking areathan the number set forth in Section 1.08 of this Lease and such conductcontinues for five (5) days after Tenant’s receipt of written noticethereof from Landlord, Tenant shall pay a daily charge of $25.00 for each suchadditional vehicle.

 

D.            Common Area Costs. Tenantshall pay Landlord for Landlord’s estimate of all Common Area Costs, as definedin this subparagraph, during the Lease Term. Such payments shall be made on amonthly basis in accordance with Section 4.06, below. All costs incurredby Landlord for the operation and maintenance of the Common Areas located onthe Property, or for maintenance of which the owner of the Property is or shallbe liable to contribute pursuant to applicable recorded restrictions, areherein referred to as “Common Area Costs”. Common Area Costs include, but arenot limited to, costs and expenses for paving maintenance for the privatecommon drive providing access to the Premises from various public streets; Projectmonument signage and landscaping: all real property taxes and assessmentslevied on or attributable to the Common Areas and all Common Area improvements;all personal property taxes levied on or attributable to personal property usedin connection with the Common Areas; straight-line depreciation on personalproperty owned by Landlord which is consumed in the operation or maintenance ofthe Common Areas; rental or lease payments paid by Landlord for rented orleased personal property used in the operation or maintenance of the CommonAreas; fees for required licenses and permits; repairing, resurfacing, repaving,maintaining, painting, lighting, cleaning, refuse removal, security and similaritems; and a reasonable allowance (not to exceed five percent (5%) of the CommonArea Costs) to Landlord for Landlord’s supervision of the Common Areas. Landlordmay cause any or all of such services to be provided by third parties basedupon prevailing market rates and the cost of such services shall be included inCommon Area Costs. Common Area Costs shall not include interest on debt, capitalretirement of debt or depreciation of real property which forms part of theProject; legal fees of Landlord incurred in connection with lease negotiationsor enforcement; brokerage commissions; expenses for the renovation of space fornew tenants; compensation paid to any employee of Landlord or agent above thegrade of Building manager; costs associated with correcting any violation oflaw; costs due to Landlord’s breach of this Lease; costs relating to any artwork or the like; political or charitable contributions; entertainment ortravel expenses of Landlord or its employees, agents, partners and affiliates; reservesof any kind, including without limitation, replacement reserves and reservesfor bad debts or lost rent or any similar charge not involving the payment ofmoney to third parties; costs incurred in connection with the sale, financingor refinancing of the Project; organizational expenses associated with thecreation and operation of the entity which constitutes Landlord; or Landlord’sexpenses incurred in construction of tenant finish improvements.

 

E.             Property Maintenance Costs. Tenantshall pay Landlord for Landlord’s estimate of all Property Maintenance Costs, asdefined in this subparagraph, during the Lease Term. Such payments shall bemade on a monthly basis in accordance with Section 4.06, below. All costsincurred by Landlord for the repair and maintenance of the portions of theProperty for which Landlord is responsible under this Lease are herein referredto as “Property Maintenance Costs”. Property Maintenance Costs include, but arenot limited to, costs and expenses for the following: landscape maintenance; premiumsfor Landlord’s workers compensation insurance premiums pertaining to employeesengaged in Property maintenance: all personal property taxes levied on orattributable to personal property used in connection with the Property, or anallocable share of such taxes for personal property utilized by Landlord in connectionwith Property maintenance; straight-line depreciation on personal propertyowned by Landlord which is consumed in the operation or maintenance of theProperty; rental or lease payments paid by Landlord for rented or leasedpersonal property used in the operation or maintenance of the Property; feesfor required licenses and permits; repairing, resurfacing, repaving, maintaining,painting, lighting, cleaning, refuse removal, security and similar items forthe Property. Landlord may cause any or all of such services to be provided bythird parties based upon prevailing market rates and the cost of such servicesshall be included in Property Maintenance Costs.

 

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Property Maintenance Costsshall not include repairs, restoration or other work occasioned by fire, windstormsor other casualty, the cost of capital repairs, replacements, improvements oradditions, the cost of repairs or other work to the extent Landlord isreimbursed by insurance or condemnation proceeds. Notwithstanding anything tothe contrary contained herein, Landlord expressly acknowledges and agrees thatthe exclusions from Common Area Costs and the exclusions from PropertyMaintenance Costs set forth herein are applicable to both Common Area Costs andProperty Maintenance Costs and are in no way interpreted to be mutuallyexclusive of either defined cost based on how Landlord may define such costs aseither a Common Area Cost or a Property Maintenance Cost.

 

F.             Audit Rights. Tenant may, atits own cost except as provided below, annually examine Landlord’s books andrecords in respect to any Additional Rent for the immediately precedingcalendar year at any time within a period of six (6) months from and after thelater of (i) each March 31 during the Lease Term, or (ii) the datethat Landlord delivers the annual statement of Additional Rent with respect tothe Premises. Tenant shall provide Landlord with reasonable advance notice ofTenant’s intention to examine Landlord’s records. This right shall survive thetermination of this Lease. In the event that Tenant’s examination reveals thatLandlord has overcharged Tenant by more than five percent (5%), Landlord shallpay the reasonable costs of such examination.

 

**Section 4.06.Payment of Additional Rent**. During the Lease Term, commencingwith the Commencement Date, Landlord shall estimate in advance and notifyTenant of estimated Common Area Costs, all real property taxes for which Tenantis liable under Section 4.02 of the Lease, all insurance premiums forwhich Tenant is liable under Section 4.04 of the Lease, all PropertyMaintenance Costs, and all other Additional Rent payable by Tenant hereunder, including,but not limited to, any related sales tax thereon. Tenant shall pay LandlordTenant’s Pro Rata Share of such estimated Common Area Costs, real propertytaxes, insurance premiums, Property Maintenance Costs, and all other items ofAdditional Rent (prorated for any fractional month) on a monthly basis, at thesame time Base Rent shall be due, subject to the terms set forth in this Section.Tenant’s Pro Rata Share shall be calculated by dividing the square foot area ofthe Premises, as set forth in Section 1.01 of the Lease, by the aggregatesquare foot area of the Building which is leased or held for lease by tenants, asof the date on which the computation is made. Landlord may adjust Landlord’sestimates of any item of Additional Rent at any time (but not more frequentlythan annually) based upon Landlord’s reasonable anticipation of costs to beincurred, and Tenant’s Pro Rata Share of such costs shall be adjusted as achange in the area of the Premises or the building in which the Premises arelocated may occur. Such adjustments shall be effective as of the next rentpayment date after notice of adjustment is given to Tenant. At Landlord’selection, statements of Additional Rent may be delivered monthly on or beforethe first day of each calendar month. Within sixty (60) days after the end ofeach calendar year of the Lease Term. Landlord shall deliver to Tenant astatement setting forth, in reasonable detail, the actual Common Area Costs, realproperty taxes, insurance premiums, Property Maintenance Costs and all otherAdditional Rent paid by Landlord during the preceding calendar year andTenant’s Pro Rata Share (adjusted, if necessary, to reflect the extent to whichthe Lease Term fell in such calendar year). Upon receipt of such statement, thereshall be an adjustment between Landlord and Tenant, with payment to or creditgiven by Landlord (as the case may be) so that Landlord shall receive theentire amount of Tenant’s Pro Rata Share of such costs and expenses for suchperiod and Tenant shall receive a credit, if indicated, against the nextinstallment of Rent. If Landlord does not deliver such statement to Tenantwithin three hundred thirty (330) days after the end of any calendar year, thenTenant shall have no further obligation to pay any amount subsequently invoicedby Landlord regarding the same with respect to such prior calendar year.

 

**Article 5.USE OF PREMISES**

 

**Section 5.01.Permitted Uses**. Tenant may use the Premises only for the PermittedUses set forth in Section 1.03 above.

 

**Section 5.02.Manner of Use**. Tenant shall not cause or permit the Premises tobe used in any way which constitutes a violation of any law, ordinance, orgovernmental regulation or order, which

 

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unreasonably annoys orinterferes with the rights of tenants of the Project, or which constitutes anuisance or waste. Tenant shall obtain and pay for all permits (other than acertificate of occupancy for the Premises) required for Tenant’s occupancy ofthe Premises and Tenant shall promptly take all actions necessary to complywith all applicable statues, ordinances, rules, regulations, orders andrequirements regulating the use by Tenant of the Premises, including theOccupational Safety and Health Act.

 

**Section 5.03.****       ****HazardousMaterials**

 

A.            Definitions.

 

(1) “Hazardous Material”means any substance the presence of which requires notice to any GovernmentalAgency or investigation or remediation pursuant to any EnvironmentalRequirement, or is or becomes regulated by any Governmental Agency, or thepresence of which on the Premises causes or threatens to cause a nuisance ortrespass or to otherwise create the reasonable prospect of the assertion of aclaim against the owner of the Property for Environmental Damages.

 

(2) “EnvironmentalRequirements” means all applicable present and future statutes, regulations, rules,ordinances, codes, licenses, permits, orders, approvals, plans, authorizations,concessions, franchises, and similar items (including, but not limited to thosepertaining to reporting, licensing, permitting, investigation and remediation),of all Governmental Agencies; and all applicable judicial, administrative, andregulatory decrees, judgments, and orders relating to the protection of humanhealth or the environment.

 

(3) “EnvironmentalDamages” means all claims, judgments, damages, losses, penalties, fines, liabilities(including strict liability), encumbrances, liens, costs, and expenses (includingthe expense of investigation and defense of any claim, whether or not suchclaim is ultimately defeated, or the amount of any good faith settlement orjudgment arising from any such claim) of whatever kind or nature, contingent orotherwise, matured or unmatured, foreseeable or unforeseeable (includingwithout limitation reasonably attorneys’ fees and disbursements andconsultants’ fees) any of which are incurred at any time as a result of theexistence of Hazardous Material upon, about or beneath the Premises ormigrating or threatening to migrate to or from the Premises, or the existenceof a violation of Environmental Requirements pertaining to the Premises and theactivities thereon, regardless of whether the existence of such HazardousMaterial or the violation of Environmental Requirements arose prior to thepresent ownership or operation of the Premises.

 

(4) “GovernmentalAgency” means all governmental agencies, departments, commissions, boards, bureausor instrumentalities of the United States, states, counties, cities andpolitical subdivisions thereof.

 

(5) The “Tenant Group”means Tenant, Tenant’s successors, assigns, officers, directors, agents andemployees.

 

B.            Prohibitions. Tenant shallnot cause, permit or suffer any Hazardous Material to be brought upon, treated,kept, stored, disposed of, discharged, released, produced, manufactured, generated,refined or used upon, about or beneath the Premises by the Tenant Group, or anyother person without the prior written consent of Landlord. From time to timeduring the Lease Term, Tenant may request Landlord’s approval of Tenant’s useof other Hazardous Materials, which approval may be withheld in Landlord’s solediscretion. Throughout the Lease Term, Tenant shall store flammable materialsin a suitable fire-proof cabinet at all times when such materials are not inuse. Tenant shall not cause, permit or suffer the existence or the commissionby the Tenant Group, or by any other person, of a violation of anyEnvironmental Requirements upon, about or beneath the Premises. Tenant shallnot install, operate or maintain any above or below grade tank, sump, or pit orinstall any treatment vessel or device on the Premises without Landlord’s priorwritten consent. On-site maintenance or repair of hydraulic equipment, loadingvehicles, or highway vehicles shall not be performed in the Premises oranywhere in the Project, including the Common Areas. Tenant shall be permittedto test drive Tenant’s model vehicle products in the Common Areas adjacent tothe Premises without disturbance of other tenants, subject to Project rules andregulations. Notwithstanding anything set forth in this Lease to the contrary, Tenantshall be entitled to utilize, maintain, repair and replace its currentequipment and systems within the Premises, including without limitation, thehydraulic lifts, compactor and elevator as

 

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well as repair and maintainall systems and equipment within the Premises that it is Tenant’s obligation tomaintain or repair.

 

C.            Indemnity. Tenant, its successorsand assigns, agree to indemnify, defend, reimburse and hold harmless Landlord, anyother person who acquires all or a portion of the Property in any manner(including purchase at a foreclosure sale) or who becomes entitled to exercisethe rights and remedies of Landlord under this Lease, and the directors, officers,shareholders, employees, partners, agents, contractors, subcontractors, experts,licensees, affiliates, lessees, mortgagees, trustees, heirs, devisees, successors,assigns and invitees of such persons, from and against any and allEnvironmental Damages which exist as a result of the activities or negligenceof the Tenant Group or which exist as a result of the breach of any warranty orcovenant or the inaccuracy of any representation of Tenant contained in thisLease, or resulting from Tenant’s remediation of the Property or failure tomeet its remediation obligations contained in this Lease. Landlord shall havethe right but not the obligation to join and participate in, and control, if itso elects, any legal proceedings or actions initiated in connection withTenant’s activities. Landlord may also negotiate, defend, approve and appealany action taken or issued by any applicable governmental authority with regardto contamination of the Premises by a Hazardous Material. This indemnificationis solely for Environmental Damages caused by the Tenant Group, and does notinclude conditions existing prior to Tenant’s possession of the Premises orcaused by others.

 

D.            Prior Inspections. The obligationsof Tenant under this Section shall not be affected by any investigation byor on behalf of Landlord, or by any information which Landlord may have orobtain with respect thereto.

 

E.             Obligation to Remediate. Inaddition to the obligation of Tenant to indemnify Landlord pursuant to thisLease, Tenant shall, upon approval and demand of Landlord, at its sole cost andexpense and using contractors approved by Landlord, immediately take allactions to remediate the Property which are required by any GovernmentalAgency, or which are reasonably necessary to mitigate Environmental Damages orto allow full economic use of the Property, which remediation is necessitatedfrom the presence upon, about or beneath the Property, at any time during orupon termination of this Lease, of a Hazardous Material or a violation ofEnvironmental Requirements existing as a result of the activities or negligenceof the Tenant Group. Tenant shall take all actions necessary to restore theProperty to the condition existing prior to the introduction of HazardousMaterial upon, about or beneath the Property, notwithstanding any lesserstandard of remediation allowable under applicable law or governmentalpolicies. This obligation to remediate is for Environmental Damages caused bythe Tenant Group, and does not include Environmental Damages existing prior toTenant’s possession of the Premises or caused by others.

 

F.             Right to Inspect. Landlordshall have the right in its sole and absolute discretion, but not the duty, toenter and conduct an inspection of the Premises, including invasive tests, duringTenant’s regular hours of operation between 9:00 a.m. and 5:00 p.m. weekdaysto determine whether Tenant is complying with the terms of the Lease, includingbut not limited to the compliance of the Premises and the activities thereonwith Environmental Requirements and the existence of Environmental Damages as aresult of the condition of the Premises or surrounding properties andactivities thereon. Landlord’s inspection for environmental compliance shall bebased upon reasonable cause to suspect violation of Environmental Requirements.The cost of the Landlord’s investigation shall be paid by Landlord unless suchinvestigation discloses a violation of any Environmental Requirement by theTenant Group or the existence of a Hazardous Material on the Premises or anyother premises caused by the activities or negligence of the Tenant Group(other than Hazardous Materials used in compliance with all EnvironmentalRequirements and previously approved by Landlord), in which case Tenant shallpay such cost. Tenant hereby grants to Landlord, and the agents, employees, consultantsand contractors of Landlord the right to enter the Premises and to perform suchtests on the Premises as are reasonably necessary to conduct such reviews andinvestigations during Tenant’s regular hours of operation on the Premises. Landlordshall use its best efforts to minimize interference with the business of Tenantin the conduct of such reviews and investigations.

 

G.            Notification of Claims orConditions. If Tenant shall become aware of or receive notice or othercommunication concerning any actual, alleged, suspected or threatened violation

 

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of EnvironmentalRequirements, or liability of Tenant for Environmental Damages in connectionwith the Property or Premises or past or present activities of any personthereon, then Tenant shall promptly notify Landlord and furnish a reasonablydetailed description of such condition. Receipt of such notice shall not bedeemed to create any obligation on the part of Landlord to defend or otherwiserespond to any such notification.

 

**Section 5.04.Signs and Auctions**. Tenant shall not place any signs on the Premiseswithout Landlord’s prior written consent, and such sign shall be in conformancewith signage criteria as outlined in Exhibit “G”. A charge of$50.00 per day per sign, billboard, or other advertisement will be assessedagainst Tenant if Tenant fails to obtain the required consent. Tenant shall notconduct nor permit any auctions or sheriffs sales at the Premises.

 

**Section 5.05.Tenant’s Indemnity**. In addition to, and not in limitation of orsubstitution for the indemnity by Tenant in Section 5.03(3), Tenant shallindemnify Landlord against and hold landlord harmless from any and all costs, claimsor liability arising from: (a) Tenant’s use of the Premises; (b) theconduct of Tenant’s business or anything else done or permitted by Tenant to bedone in or about the Premises; (c) any breach or default in theperformance of Tenant’s obligations under this lease; (d) anymisrepresentation or breach of warranty by Tenant under this lease; or (e) allcosts, expenses, demands and liability Landlord may incur if Landlord becomesor is made a party to any claim or action instituted by Tenant against anythird party, or by any third party against Tenant, or by or against any personholding any interest under or using the Premises by license of or agreementwith Tenant. Tenant shall defend Landlord against any such cost, claim or liabilityat Tenant’s expense with counsel reasonably acceptable to Landlord. AS AMATERIAL PART OF THE CONSIDERATION TO LANDLORD, TENANT ASSUMES ALL RISK OFDAMAGE TO PREMISES OR INJURY TO PERSONS IN OR ABOUT THE PREMISES ARISING FROMANY CAUSE, AND TENANT HEREBY WAIVES ALL CLAIMS IN RESPECT THEREOF AGAINSTLANDLORD, EXCEPT FOR ANY CLAIM ARISING OUT OF LANDLORD’S OR THE LANDLORDGROUP’S OPERATION OR MAINTENANCE OF THE COMMON AREAS, LANDLORD’S BREACH OF THISLEASE OR FROM THE LANDLORD’S OR LANDLORD GROUP’S NEGLIGENCE, GROSS NEGLIGENCEOR WILLFUL MISCONDUCT. AS USED IN THIS SECTION, THE TERM “TENANT” SHALL INCLUDETENANT’S EMPLOYEES, AGENTS AND CONTRACTORS, IF APPLICABLE.

 

**Section 5.06.Landlord’s Indemnity**. Subject to the terms of Section 6.02 of thisLease, so long as no Default by Tenant shall occur or be continuing, Landlordshall indemnify Tenant against, and hold Tenant harmless from any and allcosts, claims, or liability arising from Landlord’s or the Landlord Group’soperation or maintenance of the Common Areas, breach of this Lease, orLandlord’s or the Landlord Group’s negligence, gross negligence or willfulmisconduct. As used herein, the term “Landlord Group” shall include theLandlord, Landlord’s employees, agents and invitees.

 

**Section 5.07.Landlord’s Access**. Landlord or its agents may, upon at least 24 hoursadvance written notice (except in the event of an emergency, in which case noadvance notice is required), enter the Premises during Tenant’s regular hoursof operation to verify that Tenant is in compliance with the terms of thisLease, as well as for other purposes expressly permitted by the terms of thisLease.

 

**Section 5.08.Quiet Possession**. If Tenant pays the rent and complies with allother terms of this Lease, Tenant may occupy and enjoy the Premises for thefull Lease Term, subject to the provisions of this Lease. The Landlordrepresents to Tenant that the Permitted Uses are in general conformance withzoning applicable to the Premises on the execution date of this Lease. Landlordshall take commercially reasonable steps to enforce the Project rules andregulations on a nondiscriminatory basis.

 

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**Article 6.****CONDITION OF PREMISES; MAINTENANCE, REPAIRS AND ALTERATIONS**

 

**Section 6.01.****Existing Conditions.** TENANT ACCEPTSTHE PREMISES, COMMON AREAS AND SHELL CONDITIONS AT THE BUILDING IN THEIRCONDITION AS OF THE EXECUTION OF THE LEASE, SUBJECT TO ALL RECORDED MATTERS, LAWS,ORDINANCES, AND GOVERNMENTAL REGULATIONS AND ORDERS. EXCEPT AS PROVIDED HEREIN,TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY AGENT OF LANDLORD HAS MADEANY REPRESENTATION AS TO THE CONDITION OF THE PREMISES OR THE SUITABILITY OFTHE PREMISES FOR TENANT’S INTENDED USE. TENANT REPRESENTS AND WARRANTS THATTENANT HAS MADE ITS OWN INSPECTION OF AND INQUIRY REGARDING THE CONDITION OFTHE PREMISES AND IS NOT RELYING ON ANY REPRESENTATIONS, EXCEPT AS SET FORTH INTHIS LEASE, OF LANDLORD OR ANY BROKER WITH RESPECT THERETO.

 

**Section 6.02.****Exemption of Landlord from Liability.** LANDLORD SHALLNOT BE LIABLE FOR ANY DAMAGE OR INJURY TO THE PERSON, BUSINESS (OR ANY LOSS OFINCOME THEREFROM), GOODS, WARES, MERCHANDISE OR OTHERPROPERTY OF TENANT, TENANT’S EMPLOYEES, INVITEES, CUSTOMERS OR ANY OTHERPERSON IN OR ABOUT THE PREMISES, WHETHER SUCH DAMAGE OR INJURY IS CAUSED BY ORRESULTS FROM, WITHOUT LIMITATION: (A) FIRE, STEAM, ELECTRICITY, WATER; GASOR RAIN; (B) THE BREAKAGE; LEAKAGE, OBSTRUCTION OR OTHER DEFECTS OF PIPES,SPRINKLERS, WIRES, APPLIANCES, PLUMBING, AIR CONDITIONING OR LIGHTING FIXTURESOR ANY OTHER CAUSE; OR (C) CONDITIONS ARISING IN OR ABOUT THE PREMISES. LANDLORDSHALL NOT BE LIABLE FOR ANY SUCH DAMAGE OR INJURY EVEN THOUGH THE CAUSE OF ORTHE MEANS OF REPAIRING SUCH DAMAGE OR INJURY ARE NOT ACCESSIBLE TO TENANT. THEPROVISIONS OF THIS SECTION 6.02 SHALL NOT, HOWEVER, EXEMPT LANDLORD FROMLIABILITY FOR LANDLORD’S OR THE LANDLORD GROUP’S OPERATION OR MAINTENANCE OFTHE COMMON AREAS, LANDLORD’S BREACH OF THIS LEASE OR FROM THE LANDLORD’S ORLANDLORD GROUP’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

**Section 6.03.****Landlord’sObligations**.

 

A.                                   Maintenance byLandlord. Except as provided in Article 7 (Damage or Destruction) and Article 8(Condemnation), Landlord shall keep the following in good order, condition andrepair at Landlord’s sole cost and expense: the foundation, structural portionsof the Building, exterior walls, roof and all roof related systems andcomponents, mechanical, electrical and plumbing electrical systems andcomponents of the Building in which the Premises are located (includingpainting the exterior surface of the exterior walls of such Building not moreoften than once every five (5) years. However, Landlord shall not beobligated to maintain or repair windows, doors, plate glass or the interiorsurfaces of exterior walls. Landlord shall maintain and repair the parking lotand maintain the landscaping located on the Property, the cost of which itemsshall be Property Maintenance Costs under Section 4.05E. Landlord shallcontract for or require Tenant to enter into a service contract on the Premisesfor the periodic inspection and service of the heating, ventilation and airconditioning equipment. Landlord shall make repairs under this Section 6.03within a reasonable time after receipt of written notice from Tenant of theneed for such repairs and complete such repairs within twenty one (21) days, orsuch longer period of time as may be necessary in the case of repairs which arenot reasonably susceptible to completion within such period, provided Landlordpursues such repairs with reasonable commercial diligence. Tenant may effectemergency repairs otherwise required to be made by Landlord in order to preservesafety and avoid damage to Tenant’s property, and Landlord shall reimburseTenant for Tenant’s out-of-pocket costs in doing so, provided Tenant providesLandlord with prompt notice of the necessity for such repairs.

 

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B.                                     Common AreaMaintenance. Subject to Tenant’s payment of the charges thereforin accordance with Section 4.06, Landlord shall maintain the Common Areasin good order, condition and repair and shall operate the Property, inLandlord’s reasonable discretion, as a first-class industrial/commercial realproperty development. Maintenance of Common Areas may include, at Landlord’sdiscretion, gardening, tree trimming, replacement or repair of landscaping, landscapeirrigation systems, drainage areas and systems and similar items. Such maintenancemay also include sweeping and cleaning of asphalt, concrete or other surfaceson the driveway, parking areas, yard areas, loading areas or other paved orcovered surfaces. In connection with Landlord’s obligations under this Article,Landlord may enter into a contract with one or more contractors of Landlord’schoice to provide those maintenance services listed above which Landlord deemsreasonably necessary to perform.

 

**Section 6.04.****Tenant’sObligations**.

 

A.                                   Maintenance byTenant. Except as provided in Section 6.03, Article 7 (Damage orDestruction) and Article 8 (Condemnation), Tenant shall keep all portionsof the Premises in good order, condition and repair, ordinary wear and tear excepted. If any portion of the Premises or any system orequipment in the Premises which Tenant is obligated to repair cannot be fullyrepaired or restored, Tenant shall promptly replace such portion of thePremises or system or equipment in the Premises, regardless of whether thebenefit of such replacement extends beyond the Lease Term: but if the benefitor useful life of such replacement extends beyond the Lease Term (as such LeaseTerm may be extended by exercise of any options), the useful life of suchreplacement shall be prorated over the remaining portion of the Lease Term (asextended), and Tenant shall be liable only for that portion of the cost whichis applicable to the Lease Term (as extended). Tenant will maintain temperatureof Premises sufficient to avoid freezing the sprinkler system. Tenant shallmaintain a preventive maintenance contract providing for the regular inspectionand maintenance of the heating, ventilation, and air conditioning system by alicensed contractor approved in advance by Landlord. If any part of thePremises is damaged by any act of Tenant, Tenant shall pay Landlord the cost ofrepairing or replacing such damaged property, whether or not Landlord wouldotherwise be obligated to pay the cost of maintaining or repairing suchproperty.

 

B.                                     LandlordRemedy. Tenant shall fulfill all of Tenant’s obligations under this Section 6.04at Tenant’s sole expense. If Tenant fails to maintain, repair or replace thePremises as required by this Section 6.04 and such failure continues forthirty (30) days after Tenant’s receipt of written notice thereof fromLandlord, then Landlord may enter the Premises and perform such maintenance orrepair (including replacement, as needed) on behalf of Tenant. In such case, Tenantshall reimburse Landlord for all reasonable costs incurred in performing suchmaintenance or repair within ten (10) days after written demand.

 

C.                                     SecurityServices. Tenant, at Tenant’s sole cost, may contract for installation ofsecurity devices for the Premises from a reputable contractor. Monitoring ofsuch devices, if any, shall be performed by a Security Contractor acceptable toLandlord, in Landlord’s reasonable discretion.

 

D.                                    Mechanic’sLiens. Tenant will not permit any mechanic’s liens, or other liens, to beplaced upon the Premises or the Project as a result of work performed on behalfof Tenant during the Lease Term or any extension or renewal thereof, and incase of the filing of any such lien, Tenant will pay same or obtain a releaseof same within thirty (30) days after receipt of written notice of such lienfiling. Tenant agrees to pay all legal fees that might be incurred by Landlordbecause of any mechanic’s liens being placed upon the Premises, as a result ofTenant’s actions.

 

E.                                      Vacating ofPremises. Tenant shall maintain security of the Premises for the purpose ofpreventing loss, pilferage and deterioration of the Premises and vandalism ator illegal entry onto the Premises.

 

**Section 6.05.****Alterations, Additions, and Improvements.**

 

A.                                   Notice andConsent. Tenant shall not make any alterations, additions, or improvements tothe Premises without Landlord’s prior written consent, except fornon-structural

 

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alterations (excluding roofpenetrations) which do not exceed Twenty-Five Thousand Dollars ($25,000) incost cumulatively over the Lease Term and which are not visible from theoutside of the Building of which the Premises are part. Alterations, additions,and improvements made by Tenant after the date this Lease is executed by bothparties shall be removed or demolished by Tenant at the expiration of the LeaseTerm, provided Landlord provides Tenant with written notice of such requirementat the time Landlord consents to the alterations, additions or improvements. Landlordmay require Tenant to provide demolition and/or lien and completion bonds inform and amount reasonably satisfactory to Landlord for major demolitions oralterations, additions or improvements in excess of $100,000. Tenant shallpromptly remove any alterations, additions, or improvements constructed inviolation of this Section 6.05A upon Landlord’s written request. Allalterations, additions, and improvements shall be done in a good andworkmanlike manner and in conformity with all applicable laws and regulations. Uponcompletion of any such work requiring plans, Tenant shall provide Landlord with“as built” plans.

 

B.                                     Payment. Tenantshall pay when due all claims for labor and material furnished to the Premises.Tenant shall give Landlord at least twenty (20) days prior written notice ofthe commencement of any work on the Premises, regardless of whether Landlord’sconsent to such work is required. Landlord may elect to record and post noticesof non-responsibility on the Premises.

 

**Section 6.06.****Condition Upon Termination**. Not later than the lastday of the Lease Term (or any renewals or extensions thereof), Tenant shallsurrender the Premises to Landlord, broom clean (with all keys in Tenant’spossession or control) and in the same condition as received except forordinary wear and tear which Tenant was not otherwise obligated to repair underany provision of this Lease; provided, however, that Tenant shall not berequired to rebuild any of the first floor office portion of the Premises ifTenant retrofits that portion of the Premises. However, Tenant shall not beobligated to repair any damage which Landlord is required to repair underArticle 7 (Damage or Destruction). In addition, Landlord may requireTenant to remove any alterations, additions or improvements (whether or notmade with Landlord’s consent unless Tenant obtained Landlord’s consent to surrenderthe Premises without such removal) prior to the expiration of the Lease and torestore the Premises to its prior condition as of the date of execution of thisLease by both parties, all at Tenant’s expense, as provided in Section 6.05A,except ordinary wear and tear. All alterations, additions and improvementswhich Landlord did not require Tenant to remove (upon expiration or earliertermination of the Lease) at time of Landlord’s consent shall become Landlord’sproperty and shall be surrendered to Landlord upon the expiration or earliertermination of the Lease, except that Tenant may remove any of Tenant’smachinery, equipment or fixtures which can be removed without material damageto the Premises. Tenant shall repair, at Tenant’s expense, any damage to thePremises caused by the removal of any such machinery, equipment or fixtures. Inno event, however, shall Tenant remove any of the following (which shall bedeemed Landlord’s property) without Landlord’s prior written consent: any powerwiring or power panels; lighting or lighting fixtures; wall coverings: drapes, blindsor other window coverings; carpets or other floor coverings; heaters, airconditioners or any other heating or air conditioning equipment; fencing orsecurity gates, or other similar building operating equipment and decorations.

 

**Article 7.****DAMAGE OR DESTRUCTION**

 

**Section 7.01.****Partial Damage to Premises.**

 

A.                                   Occurrence ofDamage. Tenant shall notify Landlord in writing immediately upon the occurrenceof any damage to the Premises.

 

B.                                     Restoration.

 

(1) If the Premises areonly partially damaged (i.e., less than one-third (1/3) of the office portionof the Premises or less than fifty percent (50%) of storage area portion of thePremises are untenantable as a result of suchdamage), the facility is securable, and if the proceeds received by Landlordfrom the insurance policies described in Section 4.04B are sufficient topay for the necessary repairs, this Lease shall remain in effect and Landlordshall notify Tenant within thirty (30) days after

 

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notice of theoccurrence of the damage whether Landlord shall repair the damage. In the eventLandlord repairs the damage, Landlord shall use commercially reasonable effortsto complete such repairs promptly.

 

(2) If the insuranceproceeds received by Landlord are not sufficient to pay the entire cost ofrepair, or if the cause of the damage is not covered by the insurance policieswhich landlord maintains under Section 4.04B, or if any mortgagee orbeneficiary under a deed of trust encumbering the Premises should require thatproceeds payable as a result of said fire or casualty be used to retire orreduce any debt secured by a deed of trust encumbering the Premises, Landlordmay elect either to (i) repair the damage assoon as reasonably possible, in which case this Lease shall remain in fullforce and effect, or (ii) terminate this lease as of the date the damageoccurred. Landlord shall notify Tenant within thirty (30) days after notice ofthe occurrence of the damage whether Landlord elects to repair the damage orterminate the Lease. If Landlord elects to repair the damage, such repairsshall be substantially completed as soon as reasonably possible. Tenant shallpay Landlord the “deductible amount” (if any) up to $25,000 under Landlord’s insurancepolicy and, if the damage was due to the willful misconduct or negligence ofTenant or Tenant’s employees, agents, contractors or invitees, then Tenantshall pay to Landlord the difference between the actual cost of repair and anyinsurance proceeds received by Landlord. If Landlord elects to terminate thisLease, Tenant may elect to continue this Lease in full force and effect, inwhich case Tenant may repair any damage to the Premises and any Building inwhich the Premises is located. Tenant shall pay the cost of such repairs, exceptthat upon satisfactory completion of such repairs, Landlord shall deliver toTenant any insurance proceeds received by Landlord for the damage repaired byTenant. Tenant shall give Landlord written notice of such election withinthirty (30) days after Landlord’s termination notice.

 

C.                                     Termination. Ifthe damage to the Premises occurs during the last six (6) months of theLease Term and such damage will require more than thirty (30) days to repair, eitherLandlord or Tenant may elect to terminate this Lease as of the date the damageoccurred, regardless of the sufficiency of any insurance proceeds. The partyelecting to terminate this Lease shall give written notification to the otherparty of such election within thirty (30) days after Tenant’s notice toLandlord of the occurrence of the damage.

 

**Section 7.02.****Substantial or Total Destruction.** If thePremises are substantially or totally destroyed by any cause whatsoever (i.e., thedamage to the Premises is greater than partial damage as described in Section 7.01),and regardless of whether Landlord receives any insurance proceeds, this Leaseshall terminate the later of (i) the date thedestruction occurred, or (ii) the date Tenant ceases to do business at thePremises.

 

**Section 7.03.****Reduction of Rent Due to Casualty Loss.** If the Premises are destroyed or damaged andLandlord or Tenant repairs or restores the Premises pursuant to the provisionsof this Article 7, any Rent payable during the period of such damage, repairand/or restoration shall be reduced according to the degree, if any, to whichTenant’s use of the Premises is impaired. Except for such possible reduction inRent or as otherwise provided in Section 5.06, Tenant shall not beentitled to any compensation, reduction, or reimbursement from Landlord as aresult of any damage, destruction, repair, or restoration of or to thePremises.

 

Notwithstanding anything inthis Lease to the contrary, if Landlord fails to restore and repair thePremises to the condition required herein within two hundred ten (210) daysafter the date of the casualty, Tenant shall be entitled to terminate thisLease by delivering written notice at any time before substantial completion ofsuch repairs and restoration.

 

**Article 8.****CONDEMNATION**

 

If all or any portion of thePremises is taken under the power of eminent domain or sold under the threat ofthat power (all of which are called “Condemnation”), this Lease shall terminateas to the part taken or sold on the date the condemning authority takes titleor possession, whichever occurs first.

 

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If more than twenty percent(20%) of the Premises is taken, Tenant may terminate this Lease as of the datethe condemning authority takes title or possession by delivering written noticeto Landlord within ten (10) days after receipt of written notice of suchtaking (or in the absence of such notice, within thirty (30) days after thecondemning authority takes title or possession). If Tenant does not terminatethis Lease, this Lease shall remain in effect as to the portion of the Premisesnot taken, except that the Base Rent and Additional Rent shall be reduced inproportion to the reduction in the floor area of the Premises. Any Condemnationaward or payment shall be distributed in the following order: (a) first, toany mortgagee or beneficiary under a deed of trust encumbering the Premises, theamount of its interest in the Premises; (b) second, to Tenant, only theamount of any award specifically designated for loss of or damage to Tenant’strade fixtures or removable personal property; and (c) third, to Landlord,the remainder of such award, whether as compensation for reduction in the valueof the leasehold, the taking of the fee, or otherwise; provided, however, thatTenant shall be entitled to a separate award to the extent it does not diminishLandlord’s award. If this Lease is not terminated, Landlord shall repair, atits sole cost and expense, any damage to the Premises caused by theCondemnation, except that Landlord shall not be obligated to repair any damagefor which Tenant has been reimbursed by the condemning authority.

 

**Article 9.****ASSIGNMENT AND SUBLETTING**

 

**Section 9.01.****Permitted Transfers.** Tenant mayassign this Lease or sublease the Premises, without Landlord’s consent, to anycorporation or other entity which controls, is controlled by or is under commoncontrol with Tenant, or to any corporation resulting from the merger of orconsolidation with Tenant (“Tenant’s Affiliate”), provided Tenant shall giveLandlord prompt written notice and Tenant’s Affiliate shall assume in writingall of Tenant’s obligations under this Lease.

 

**Section 9.02.****Prohibited Transfers.** Tenant shallnot, without Landlord’s prior written consent, which shall not be unreasonablywithheld, conditioned or delayed, sell, assign, mortgage, sublease, orotherwise transfer or permit the transfer of (collectively or individually, a “Transfer”)all or any portion of or interest in the leasehold under this Lease. Forpurposes of this limitation, each of the following events shall constitute aTransfer: (A) if Tenant is an individual, a transfer of all or any portionof or interest in the leasehold by operation of law or by bequest, devise, orinheritance; (B) if Tenant is a partnership, any cumulative sale, assignment,mortgage, pledge, or transfer of more than twenty percent (20%) of thepartnership interests; and (C) if Tenant is a corporation, any change inthe ownership of a controlling interest of the voting stock of the corporation(except for transactions described in Section 9.01). Any attemptedTransfer without Landlord’s consent shall be voidableby Landlord.

 

**Section 9.03.****Landlord’sConsent**.

 

A.                                   Landlord’sConsent; Factors. Tenant’s request for consent to any Transfer described inSection 9.01 shall set forth in writing the details of the proposedTransfer, including the name, business and financial condition of theprospective transferee, financial details of the proposed Transfer (e.g., theterm of and the rent and security deposit payable under any proposed assignmentor sublease), and any other information Landlord deems relevant.

 

B.                                     AssignmentProfit. If Tenant assigns or subleases the Premises pursuant to Section 9.03,the following shall apply:

 

(1) Tenant shall pay toLandlord as Additional Rent under the Lease fifty percent (50%) of the Profit(defined below) on such transaction within thirty (30) days after the datereceived by Tenant. The “Profit” means (A) all amounts paid to Tenant forsuch assignment or sublease, including “key” money, monthly rent in excess ofthe monthly Rent payable under the Lease, and all fees and other considerationpaid for the assignment or sublease, including fees under any collateralagreements, less (B) costs and expenses directly incurred by Tenant(excluding Tenant’s overhead) in connection with the execution and performanceof such assignment or sublease for real estate broker’s

 

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commissions and costs ofrenovation or construction of Tenant Improvements required under suchassignment or sublease. Tenant is entitled to recover such costs and expensesbefore Tenant is obligated to pay any portion of assignment or sublease revenueto Landlord. The Profit in the case of a sublease of less than all the Premisesis the rent allocable to the subleased space as a percentage on a squarefootage basis, or as Landlord and Tenant may otherwise mutually agree inwriting.

 

(2) Tenant shallprovide Landlord a written statement certifying all amounts to be paid from anyassignment or sublease of the Premises within thirty (30) days after thetransaction documentation is signed, and Landlord may inspect Tenant’s booksand records to verify the accuracy of such statement. On written request, Tenantshall immediately furnish to Landlord copies of all the transactiondocumentation, all of which shall be certified by Tenant to be complete, trueand correct. Landlord’s receipt of fifty percent (50%) of the Profit shall notbe a consent to any further Transfer. The breach ofTenant’s obligation under this Section 9.03B shall be a default under thisLease.

 

**Section 9.04.****No Releaseof Tenant**. No assignment, sublease or transfer of any kindpermitted by this Article 9, whether with or without Landlord’s consent, shallrelease Tenant or change Tenant’s primary liability to pay the Rent and toperform all other obligations of Tenant under this Lease. Landlord’s acceptanceof rent from any other person is not a waiver of any provision of this Article 9.Consent to one Transfer is not a consent to anysubsequent Transfer. If Tenant’s transferee defaults under this Lease, Landlordmay proceed directly against Tenant without pursuing remedies against thetransferee. Landlord may consent to subsequent assignments or modifications ofthis Lease by Tenant’s transferee, without notifying Tenant or obtaining itsconsent. Such action shall not relieve Tenant’s liability under this Lease.

 

**Section 9.05.****No Merger**. No mergershall result from Tenant’s sublease of the Premises under this Article 9, Tenant’ssurrender of this Lease or the termination of this Lease in any other manner.

 

**Section 9.06.****Post-petition Lease Assumptions.** No assumption(“Assumption”) of this Lease pursuant to 11 U.S.C. §365 (b)(1) by the Tenant as debtor-in-possession or by the trustee forsuch Tenant shall be effective unless: (i) anymonetary Default under the Lease has been cured by payment to Landlord withinten (10) days of the date of Assumption; (ii) any non-monetaryDefault under the Lease shall be cured by performance within thirty (30) daysof the date of Assumption; and (iii) all actual monetary losses incurredby Landlord occasioned by any Default by Tenant under the terms of this Leasehave been paid to Landlord within ten (10) days of the date of Assumption.

 

**Article 10.****DEFAULTS: REMEDIES**

 

**Section 10.01.****Intentionally Omitted.**

 

**Section 10.02.****Defaults.** Tenant shallbe in material default (a “Default”) under this Lease:

 

A.                                   Failure to Pay.If Tenant fails to pay Rent or any other charge when due and such failurecontinues for a period of five (5) days after Tenant’s receipt of writtennotice.

 

B.                                     Failure toPerform Nonmonetary Obligations. If Tenant fails toperform any of Tenant’s nonmonetary obligations underthis Lease and such failure continues for a period of thirty (30) days afterTenant’s receipt of written notice of such failure from Landlord; provided thatif more than thirty (30) days are required to complete such performance, noDefault shall occur if Tenant commences such performance within the thirty (30)day period and thereafter diligently pursues its completion.

 

C.                                     Bankruptcy. (i) If Tenant makes a general assignment or generalarrangement for the benefit of creditors; (ii) if a petition foradjudication of bankruptcy or for reorganization or rearrangement is filed byor against Tenant and is not dismissed within sixty (60) days; (iii) if atrustee or receiver is appointed to take possession of substantially all ofTenant’s assets located at the Premises or of Tenant’s interest in this Leaseand possession is not restored to Tenant within sixty (60) days; or (iv) ifsubstantially all of Tenant’s assets located at the Premises or of Tenant’sinterest in this Lease is

 

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subjected to attachment,execution or other judicial seizure which is not discharged within sixty (60) days.If a court of competent jurisdiction determines that any of the acts describedin this subsection (C) is not a Default under this Lease, and a trustee isappointed to take possession (or if Tenant remains a debtor in possession) andsuch trustee or Tenant transfers Tenant’s interest hereunder, then Landlordshall receive, as Additional Rent, the excess, if any, of the rent (or anyother consideration) paid in connection with such assignment or sublease overthe Rent payable by Tenant under this Lease.

 

**Section 10.03.****Remedies.** On theoccurrence and during the continued existence of any Default by Tenant, Landlordmay, with or without notice or demand and without limiting Landlord in theexercise of any right or remedy which Landlord may have:

 

A.                                   Repossession; Damages.Terminate Tenant’s right to possession of the Premises by any lawful means inwhich case this Lease shall terminate and Tenant shall immediately surrenderpossession of the Premises to Landlord. In event of repossession of thePremises following Tenant’s Default, Landlord shall be entitled to recover fromTenant all damages incurred by Landlord by reason of Tenant’s Default, includingan amount equal to the sum of (i) the total Rentfor the unexpired balance of the Lease Term following the date the damagejudgment is entered (or otherwise awarded) (the “Judgment Date”), including, withoutlimitation all applicable late charges and interest, discounted at the DefaultDiscount Rate (hereinafter defined) to the present value on the Judgment Date, plusall other damages incurred by Landlord in connection with Tenant’s Default asspecified in Section 10.04, below, plus the unpaid Rent due as of theJudgment Date, less (ii) the market rental value of the Premises for thebalance of the Lease Term, discounted at the Default Discount Rate to thepresent value on the Judgment Date. For the purposes of clause (i) above, the components of monthly rent (other thanBase Rent) for the remainder of the Term shall be deemed to be equal to therespective monthly amounts thereof as were due and payable during the month inwhich the Lease was terminated. As used in clause (ii), the term “DefaultDiscount Rate” shall be the average of discount rates of the Federal ReserveBank of Dallas in effect on the first day of each of the six calendar monthspreceding the month in which the Judgment Date falls, plus three percent (3%).

 

B.                                     Continuance ofTenant’s Right to Possession. Maintain Tenant’s right to possession, in whichcase this Lease shall continue in effect whether or not Tenant has abandonedthe Premises. In such event, Landlord shall be entitled to enforce all ofLandlord’s rights and remedies under this Lease, including the right to recoverthe Rent as it becomes due.

 

C.                                     Reletting. Enter upon and take possession of the Premises asTenant’s agent without terminating this Lease and without being liable forprosecution or any claim for damages therefor, andLandlord may relet the Premises as Tenant’s agent andreceive the rental therefor, in which event Tenantshall pay to Landlord within thirty (30) days after written demand all sums duepursuant to Section 10.04, below, together with any deficiency that mayarise by reason of such reletting.

 

D.                                    Performance ofTenant’s Lease Obligations. Do whatever Tenant is obligated to do under thisLease and enter the Premises, without being liable for prosecution or any claimfor damages therefor, to accomplish such purpose. Tenantshall reimburse Landlord within thirty (30) days after written demand for anyreasonable expenses which Landlord incurs in thus effecting compliance withthis Lease on Tenant’s behalf.

 

E.                                      Other Remedies.Pursue any other remedy now or hereafter available to Landlord under the lawsor judicial decisions of the state in which the Premises is located, including,but not limited to, reentering the Premises, changing the locks, takingpossession of any furniture or fixtures not otherwise subject to a valid priorlien and selling same at a private or public sale and applying the proceeds ofsuch sale to the costs of the sale, payment of damages and payment of sumsowing under this Lease.

 

**Section 10.04.****Additional Damages Attributable to Tenant Default.** In addition to any othersum provided to be paid herein, Tenant also shall be liable for and shall payto Landlord: (i) brokers’ fees incurred by Landlordin connection with reletting the whole or any part ofthe Premises to the extent of the remaining Lease Term as of the date ofDefault; (ii) the costs of removing and storing Tenant’s or otheroccupant’s property; (iii) the costs of repairing the Premises to thecondition otherwise required by

 

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this Lease; and (iv) allreasonable expenses incurred by Landlord in enforcing or defending Landlord’srights and/or remedies. If either party hereto institutes any action orproceeding to enforce any provision hereof by reason of any alleged breach ofany provision of this Lease, the prevailing party shall be entitled to receivefrom the losing party all reasonable attorneys’ fees and all court costs inconnection with such proceeding. Notwithstanding any provision in this Lease tothe contrary, (i) Tenant shall not be liable forany consequential, exemplary or punitive damages or lost profits, (ii) Landlordshall use good faith, commercially reasonable efforts to mitigate Landlord’sdamages, (iii) Tenant shall be entitled to vacate the Premises for all orpart of the Lease Term without penalty provided Tenant continues to pay Rent inaccordance with the terms of this Lease, and (iv) other than as expresslyset forth in Section 10.03 A., Landlord shall not be entitled toaccelerate Rent. Notwithstanding any provision in this Lease to the contrary, Landlordshall not have and hereby expressly waives any and all constitutional, statutoryand contractual lien against the assets or property of Tenant, and Tenant mayremove such items at any time and from time to time. Landlord agrees to executeand deliver to Tenant within twenty (20) days after receipt of a writtenrequest therefor, such documents as may be reasonablyrequested by Tenant or its lender to evidence and confirm such waiver.

 

**Section 10.05.****Cumulative Remedies.** Landlord’sexercise of any right or remedy shall not prevent it from exercising any otherright or remedy.

 

**Article 11.****PROTECTION OF LENDERS**

 

**Section 11.01.****Right to Mortgage and Transfer.** Landlord shallhave the right to transfer, mortgage, pledge or otherwise encumber, assign andconvey, in whole or in part, the Project, this Lease, and all or any part ofthe rights now or thereafter existing therein and all rents and amounts payableto Landlord under the provisions hereof. In the event of any such transfer ortransfers resulting in the transfer of Landlord’s title to the Premises, Landlordherein named (and in case of any subsequent transfer, the then transferor) shallbe automatically freed and relieved from and after the date of such transfer ofall personal liability with respect to the performance of any covenants oragreements on the part of Landlord contained in this Lease thereafter to beperformed, provided that Landlord’s liability for return of the SecurityDeposit as required herein shall only terminate upon the transferee’s expressassumption of such liability.

 

**Section 11.02.****Subordination.** Conditioned onTenant’s receipt of a nondisturbance agreementconforming with the provisions of this Lease, this Lease shall be subordinateto any deed of trust or mortgage encumbering the Premises, any advances made onthe security thereof and any renewals, modifications, consolidations, replacementsor extensions thereof, whenever made or recorded. Landlord shall use itsreasonable effort to obtain from Landlord’s mortgagee a subordination, non-disturbanceand attornment agreement in the form attached heretoas Exhibit “D” or such other form providing for nondisturbancerights as is then required by Landlord’s lender provided that Tenant’sobligations under this Lease shall not be increased in any material way (theperformance of ministerial acts shall not be deemed material), and Tenant shallnot be deprived of its rights under this Lease. Tenant shall cooperate withLandlord and any lender which has or is acquiring a security interest in thePremises or the Lease. Tenant shall execute such further documents andassurances as such lender may reasonably require, in connection with thesubordination of this Lease to any deed of trust or mortgage encumbering thePremises. Tenant covenants and agrees to execute and deliver within twenty (20)days after written demand such further instruments subordinating this Lease tothe lien of any such mortgage, deed of trust or security agreement as shall bereasonably requested by Landlord and/or mortgagee or proposed mortgagee orholder of any security agreement. Tenant’s right to quiet possession of thePremises during the Lease Term shall not be disturbed except as expresslyallowed by the terms of this Lease or any subordination, non-disturbance and attornment agreement(s) binding Tenant. Notwithstandinganything to the contrary contained herein, if any beneficiary or mortgageeelects to have this Lease prior to the lien of its deed of trust or mortgageand gives written notice thereof to Tenant, this Lease shall be deemed prior tosuch deed of trust or mortgage whether this Lease is dated

 

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prior or subsequentto the date of said deed of trust or mortgage or the date of recording thereof.Tenant waives the provisions of any current or future statute, rule or lawwhich may give or purport to give Tenant any right or election to terminate orotherwise adversely affect this Lease and the obligations of the Tenanthereunder in the event of any foreclosure proceeding or sale.

 

**Section 11.03.****Attornment**. If Landlord’sinterest in the Premises is acquired by any beneficiary under a deed of trust, mortgagee,or purchaser at a foreclosure sale, Tenant shall attornto the transferee of or successor to Landlord’s interest in the Premises andrecognize such transferee or successor as Landlord under this Lease, inaccordance with the terms of any nondisturbance and attornment agreement executed by Tenant. Tenant waives the protectionof any statute or rule of law which gives or purports to give Tenant anyright to terminate this Lease or surrender possession of the Premises upon thetransfer of Landlord’s interest.

 

**Section 11.04.****Signing of Documents.** Tenant shallsign and deliver any instrument or documents necessary or appropriate toevidence any attornment or subordination or agreementto do so as contemplated under Section 11.02 within twenty (20) days afterwritten request.

 

**Section 11.05.****EstoppelCertificates.**

 

A.                                   CertificateRequirements. Within twenty (20) days after receipt of Landlord’s writtenrequest or the written request of any mortgagee or beneficiary under a deed oftrust encumbering the Premises, Tenant shall execute, acknowledge and deliverto Landlord or to any mortgagee or beneficiary under a deed of trustencumbering the Premises, as the case may be, a written statement in the formattached hereto as Exhibit “E” or such other form as is thenrequired by Landlord’s lender, certifying: (i) thatnone of the terms or provisions of this Lease have been changed (or if theyhave been changed, stating how they have been changed); (ii) that thisLease has not been canceled or terminated; (iii) the last date of paymentof the Base Rent and other charges and the time period covered by such payment;(iv) that Landlord is not in default under this Lease (or, if Landlord isclaimed to be in default, stating why); and (v) such other factualrepresentations or factual information with respect to Tenant or the Lease asLandlord may reasonably request or which any prospective purchaser or encumbrancer of the Premises may reasonably require. Tenantshall deliver such statement to Landlord within twenty (20) days after receiptof Landlord’s written request. Landlord may give any such statement by Tenantto any prospective purchaser or encumbrancer of thePremises. Such purchaser or encumbrancer may relyconclusively upon such statement as true and correct.

 

Upon Tenant’s writtenrequest or upon the written request of any lender, purchaser, merger partner, subtenantor assignee of Tenant (a “Requesting Party”), Landlord shall execute, acknowledgeand deliver to Tenant and to the applicable Requesting Party a writtenstatement certifying; (i) that none of the termsor provisions of this Lease have been changed (or if they have been changed, statinghow they have been changed); (ii) that this Lease has not been canceled orterminated; (iii) the last date of payment of the Base Rent and othercharges and the time period covered by such payment; (iv) that Tenant isnot in Default under this Lease (or, if Tenant is claimed to be in Default, statingwhy); and (v) such other factual representations or factual informationwith respect to Landlord, Tenant or the Lease as Tenant or the Requesting Partymay reasonably request (so long as such document does not materially adverselyaffect Landlord’s rights under this Lease). Landlord shall deliver suchstatement to Tenant within twenty (20) days after receipt of Tenant’s or theRequesting Party’s written request. Tenant may give any such statement byLandlord to any prospective lender, purchaser, merger partner, subtenant orassignee of Tenant.

 

B.                                     LandlordRemedy. If Tenant does not deliver such statement to Landlord or to anymortgagee or beneficiary under a deed of trust encumbering the Premises, as thecase may be, within such twenty (20) day period, Landlord, and any prospectivepurchaser or encumbrancer may conclusively presumeand rely upon the following facts: (i) that theterms and provisions of this Lease have not been changed except as otherwiserepresented by Landlord; (ii) that this Lease has not been

 

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canceled or terminatedexcept as otherwise represented by Landlord; (iii) that not more than onemonth’s Base Rent or other charges have been paid in advance; and (iv) thatLandlord is not in default under the Lease. In such event, Tenant shall be estopped from denying the truth of such facts.

 

**Section 11.06.****Tenant’sFinancial Condition**. Within ten (10) days after written requestfrom Landlord or any mortgagee or beneficiary under a deed of trust encumberingthe Premises as the case may be, Tenant shall deliver to Landlord its mostrecent unaudited financial statements to verify thenet worth of Tenant. Tenant represents and warrants to Landlord that each suchfinancial statement is a true and accurate statement in all material respectsas of the date of such statement. Except for the delivery of financialstatements to any mortgagee beneficiary under a deed of trust on the Property, prospectivemortgagee, investor, prospective investor, or prospective purchaser of theProperty, all financial information delivered by Tenant shall be confidentialand shall be used only for the purposes set forth in this Lease.

 

**ARTICLE 12.****LEGAL COSTS**

 

**Section 12.01.****Legal Proceedings.** If Tenant orLandlord shall be in breach or default under this Lease, such party (the “DefaultingParty”) shall reimburse the other party (the “NondefaultingParty”) upon written demand for any costs or expenses that the Nondefaulting Party incurs in connection with any breach ordefault of the Defaulting Party under this Lease, whether or not suit iscommenced or judgment entered. Such costs shall include legal fees and costsincurred for the negotiation of a settlement, enforcement of rights orotherwise. Furthermore, if any action for breach of or to enforce theprovisions of this Lease is commenced, the losing party in such action shallpay the attorneys’ fees and costs of the prevailing party.

 

**Section 12.02.****Landlord’sConsent**. Tenant shall pay Landlord’s reasonable attorneys’ fees, in excess ofminor charges, incurred in connection with Tenant’s request for Landlord’sconsent under Article 9 (Assignment and Subletting), or in connection withany other act which Tenant proposes to do and which requires Landlord’sconsent, up to a maximum of $1,500.

 

**Article 13.****MISCELLANEOUS PROVISIONS**

 

**Section 13.01.****Late Charges.** Tenant’sfailure to pay Rent when due may cause Landlord toincur unanticipated costs. The exact amount of such costs areimpractical or extremely difficult to ascertain. Such costs may include, butare not limited to, processing and accounting charges and late charges whichmay be imposed on Landlord by any ground lease, mortgage or trust deedencumbering the Project and Premises. Therefore, if Landlord does not receiveany Rent payment within five (5) days after it becomes due and suchfailure continues for five (5) days after Tenant’s receipt of writtennotice thereof, Tenant shall pay Landlord a late charge equal to three percent(3%) of the overdue amount. The parties agree that such late charge representsa fair and reasonable estimate of the costs Landlord will incur by reason ofsuch late payment.

 

**Section 13.02.****Interest on Past Due Obligations.** Any amountowed by Tenant to Landlord which is not paid when due shall bear interest atthe rate of eleven percent (11%) per annum from forty (40) days after the duedate of such amount. However, interest shall not be payable on late charges tobe paid by Tenant under this Lease. The payment of interest on such amountsshall not excuse or cure any Default by Tenant under this Lease. If theinterest rate specified in this Lease is higher than the rate permitted by law,the interest rate is hereby decreased to the maximum legal interest ratepermitted by law.

 

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**Section 13.03.Landlord’s Liability; Certain Duties**.

 

A.            Definition of Landlord. As used in this Lease, the term “Landlord”means only the current owner or owners of the fee title to the Property orProject at the time in question. Each Landlord is obligated to perform theobligations of Landlord under this Lease only during the time such Landlordowns such interest or title. Any Landlord who transfers its title or interestis relieved of all liability with respect to the obligations of Landlord underthis Lease to be performed on or after the date of transfer. However, eachLandlord shall deliver to its transferee, or credit its transferee with allfunds that Tenant previously paid if such funds have not yet been applied underthe terms of this Lease.

 

B.            Notice. Tenant shall give written notice of any failureby Landlord to perform any of its obligations under this Lease to Landlord andto any mortgagee or beneficiary under any deed of trust encumbering theProperty whose name and address have been furnished to Tenant in writing. Tenantagrees to accept cure of any Landlord default from any mortgagee or beneficiaryunder any deed of trust encumbering the Property, provided such party shallhave no liability or obligation to tender any cure. Landlord shall not be indefault under this Lease unless Landlord (or such mortgagee or beneficiary) failsto cure such non-performance within thirty (30) days after receipt of Tenant’snotice. However, if such nonperformance reasonably requires more than thirty(30) days to cure, Landlord shall not be in default if such cure is commencedwithin such thirty (30) day period and thereafter diligently pursued tocompletion.

 

C.            Personal Liability. Notwithstanding any term or provisionherein to the contrary, the liability of Landlord for the performance of itsduties and obligations under this Lease is limited to Landlord’s interest inthe Property and the rents and proceeds therefrom and neither the Landlord norits partners, shareholders, officers or other principals shall have anypersonal liability under this Lease. Tenant agrees to look solely to Landlord’sinterest in the Property and the rents and proceeds therefrom for the recoveryof any judgment against Landlord, and Landlord shall not be liable for anydeficiency. The foregoing provision shall not limit any right that Tenant mayotherwise have to obtain specific performance of Landlord’s obligations underthis Lease.

 

D.            Rights of Landlord. At any time during the Lease Term, Landlordmay, subject to the notice provision in Section 5.07, enter upon thePremises for the purpose of exercising any or all of the following reservedrights without being liable in any manner to Tenant, provided that Landlordshall have no duty or obligation to perform any of the rights so reserved; (1) Tochange the name of the Building or the Project without notice to Tenant; (2) Totake any and all measures, including making inspection, repairs, alterations, additionsand improvements to the Property (other than the Premises) as may be necessaryor desirable for the safety, protection, preservation, or more efficientoperation of the Property or the Project or the enhancement or protection ofLandlord’s interests therein subject to the terms and conditions of this Leaserelating to Landlord’s access to the Premises; and (3) During the last 180days of the Term or any renewal or extension, to display a sign advertising theavailability or the Premises for lease, to show the Premises to prospectivetenants, and to otherwise market the Premises for the purpose of relettingsame, provided that Landlord shall exercise Landlord’s best efforts to avoidunreasonable interruptions of the conduct of Tenant’s business in the Premises.

 

**Section 13.04.Severability**. A determination by a court of competent jurisdictionthat any provision of this Lease or any part thereof is illegal orunenforceable shall not cancel or invalidate the remainder of such provision orthis Lease, which shall remain in full force and effect.

 

**Section 13.05.Interpretation**. The captions of the Articles or Sections of thisLease are to assist the parties in reading this Lease and are not a part of theterms or provisions of this Lease. Whenever required by the context of thisLease, the singular shall include the plural and the plural shall include thesingular. The masculine, feminine and neuter genders shall each include theother. In any provision relating to the conduct or acts of Tenant, the term “Tenant”shall include Tenant’s agents and employees.

 

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**Section 13.06.Incorporation of Prior Agreements; Modifications**. This Lease is the onlyagreement between the parties pertaining to the lease of the Premises and noother agreements are effective. All amendments to this Lease shall be inwriting and signed by all parties. Any other attempted amendment shall be void.

 

**Section 13.07.Notices**. All notices required or permitted under this Lease shall be inwriting and shall be either personally delivered, or sent via telecopy withreceipt confirmation, or by Federal Express or other regularly scheduledovernight courier or sent by United States mail, registered or certified withreturn receipt requested, properly addressed and with full postage prepaid. Allnotices shall be effective upon delivery by the sender (and, in the case of atelecopied notice, the date on which a party is deemed to have received suchnotice shall be the date such telecopy is transmitted with confirmation ofreceipt) or the day delivery is tendered to the addressee (in the case of handdelivered notices) or three (3) days after the day the notice is consignedby the sender (in the case of couriered or mailed notices). Either party maychange its notice address upon written notice to the other party. Said noticesshall be sent to the parties hereto at the following addresses, unlessotherwise notified in writing (provided that upon Tenant’s taking possession ofthe Premises, the Premises shall be Tenant’s address for notice purposes).

 
| To Landlord: |   | RAMCO                                             |
|--------------|--------|---------------------------------------------------|
|         |   | Attention: Asset Manager  for Plano Tech Building |
|         |   | 13760 Noel Road, #800                             |
|         |   | Dallas, TX 75240                                  |
|         |   |                                              |
| To Tenant:   |   | NEI, Inc.                                    |
|         |   | 3501 E. Plano Parkway                             |
|         |   | Plano, Texas 75074                                |
|         |   | Attn: Doug Bryant                                 |

 

**Section 13.08.Waivers**. All waivers must be in writing and signed by the waiving party. Landlord’sfailure to enforce any provision of this Lease or its acceptance of Rent shallnot be a waiver and shall not prevent Landlord from enforcing that provision orany other provision of this Lease in the future. No statement on a paymentcheck from Tenant or in a letter accompanying a payment check shall be bindingon Landlord. Landlord may, with or without notice to Tenant, negotiate suchcheck without being bound to the conditions of such statement.

 

**Section 13.09.No Recordation**. Tenant shall not record this Lease without priorwritten consent from Landlord. The party requiring such recording shall pay alltransfer taxes and recording fees.

 

**Section 13.10.Binding Effect; Choice of Law**. This Lease binds any partywho legally acquires any rights or interest in this Lease from Landlord orTenant. However, Landlord shall have no obligation to Tenant’s successor unlessthe rights or interests of Tenant’s successor are acquired in accordance withthe terms of this Lease. THE LAWS OF THE STATE OF TEXAS SHALL GOVERN THISLEASE.

 

**Section 13.11.Corporate Authority**. If Tenant is a corporation, Tenant represents andwarrants that each person signing this Lease on behalf of Tenant has fullauthority to do so and that this Lease binds the corporation. Within thirty (30)days after Landlord’s written request, Tenant shall deliver to Landlord acertified copy of a resolution of Tenant’s Board of Directors authorizing theexecution of this Lease or other evidence of such authority reasonablyacceptable to Landlord.

 

**Section 13.12.Intentionally Omitted**.

 

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**Section 13.13.Force Majeure**. If Landlord or Tenant cannot perform any of itsobligations due to events beyond such party’s control, the time provided forperforming such obligations shall be extended by a period of time equal to theduration of such events; provided, however that such extension will not applyto obligations that can be performed by the payment of money. Events beyondsuch party’s control include, but are not limited to, acts of God, war, civilcommotion, labor disputes, strikes, fire, flood or other casualty, shortages oflabor or material, government regulation. If Landlord or Tenant shall be unableto perform or shall be delayed in the performance of any obligation under thisLease by reason of events beyond such party’s control, such nonperformance ordelay in performance shall not render such party liable in any respect fordamages to either person or property, constitute a total or partial eviction, constructiveor otherwise, work an abatement of Rent or relieve the other party from thefulfillment of any covenant or agreement contained in this Lease.

 

**Section 13.14.Execution of Lease**. This Lease may be executed in counterparts and, whenall counterpart documents are executed, the counterparts shall constitute asingle binding instrument. Landlord’s delivery of this Lease to Tenant shallnot be deemed to be an offer to lease and shall not be binding upon eitherparty until executed and delivered by both parties.

 

**Section 13.15.Survival**. All representations and warranties of Landlord andTenant not fully performed on the date of the expiration or termination of thisLease shall survive the termination of this Lease for the maximum period oftime allowed by law.

 

**Section 13.16.Gender and Number**. Whenever the context so requires herein, theneuter gender shall include the masculine and feminine, and the singular numbershall include the plural.

 

**Section 13.17.Signage**. Tenant, at Tenant’s expense, shall have the right to install identitysignage on the exterior of the Building and/or on a monument sign along ShilohRoad, subject to Landlord’s reasonable approval and City of Plano ordinances.

 

**Article 14.BROKERS**

 

**Section 14.01.Broker’s Fee**. Tenant and Landlord warrant that they have had nodealings with any real estate broker or agent in connection with thenegotiation of this Lease except Landlord’s Broker as referenced in Section 1.06Aand Tenant’s Broker as referenced in Section 1.06B, and they know of noother real estate brokers or agents who are or might be entitled to a commissionin connection with this Lease. Landlord has agreed to pay a commission toLandlord’s Broker and Tenant’s Broker pursuant to a written agreement with suchbroker. Tenant agrees to indemnify and hold harmless Landlord from and againstany liability or claim arising in respect to brokers or agents other thanTenant’s Broker and Landlord’s Broker. Landlord agrees to indemnify and holdharmless Tenant from and against any liability or claim arising in respect toany brokers or agents claiming a commission from Landlord.

 

ADDITIONAL PROVISIONS MAY BESET FORTH IN A RIDER OR RIDERS ATTACHED HERETO OR IN THE BLANK SPACE BELOW. IFNO ADDITIONAL PROVISIONS ARE INSERTED, PLEASE DRAW A LINE THROUGH THE SPACEBELOW.

 

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Landlord and Tenant havesigned this Lease at the place and on the dates specified adjacent to theirsignatures below and have initialed all Riders which are attached to orincorporated by reference in this Lease.

 
|   | LANDLORD: | Rainier Asset Management  Company, LLC,   |
|--------|-----------|-------------------------------------------|
|   |      | as agent for the  Tenant-in-Common Owners |
|   |      |                                      |
|   |      |                                      |
|   |      | Date:                                     |   |
|   |      |                                      |
|   | TENANT:   | NEI, Inc.                            |
|   |      |                                      |
|   |      |                                      |
|   |      | Date:                                     |   |

 

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RIDER1

TO

INDUSTRIALREAL ESTATE LEASE

RENEWALOPTION

 

Provided Tenant is not inDefault when Tenant delivers such notice, Tenant may renew this Lease for two(2) additional periods of three (3) years each on the same termsprovided in this Lease, except that the Base Rent payable for each month shallbe the market rate for space of equivalent size, quality and utility takinginto account the credit standing of Tenant; Tenant shall deliver written noticeto Landlord indicating whether or not Tenant elects to preserve its option toextend the Lease Term no later than one hundred twenty (120) days prior to theexpiration of the Lease Term, including any extension thereof (“ElectionDate”). Within thirty (30) days after the Election Date, Landlord shall provideTenant with a proposed Base Rent Renewal Rate. The proposed Base Rent RenewalRate shall be determined by Landlord in its reasonable discretion, taking intoaccount the factors described hereinabove. If Tenant shall object to Landlord’sproposed Base Rent Renewal Rate, Landlord and Tenant shall negotiate in goodfaith to determine a mutually acceptable Base Rent Renewal Rate. If Landlordand Tenant reach mutual agreement on or before the day 90 days prior to theexpiration of the Lease Term (the “Renewal Target Date”), such rate shall bethe Base Rent Renewal Rate, and Landlord and Tenant shall enter into anagreement confirming Tenant’s exercise of this Renewal Option at such Base RentRenewal Rate. If Landlord and Tenant fail to reach mutual agreement on orbefore the Renewal Target Date, Tenant may notify Landlord in writing withinten (10) days after the Renewal Target Date that Tenant invokes thearbitration procedure set forth below to determine the Base Rent Renewal Rate.Notwithstanding anything contained herein to the contrary: (a) if Tenantfails to deliver written notice indicating whether or not it elects to preserveits Renewal Option prior to the Election Date, Tenant shall be deemed to haveelected not to extend the Lease Term and the renewal option set forth hereinshall automatically terminate, and (b) Tenant’s rights hereunder shallterminate if (i) this Lease expires or is canceled, or because of an eventof Default, this Lease or Tenant’s right to possession of the Premises isterminated, or (ii) Tenant fails to timely exercise its renewal optionhereunder, time being of the essence with respect to Tenant’s exercise thereof.

 

Upon delivery and receipt ofsuch notice that Tenant rejects Landlord’s proposed Base Rent Renewal Rate, theparties will attempt within seven (7) days thereafter to mutually appointan appraiser who will select (in the manner set forth below) the Base RentRenewal Rate (the “Deciding Appraiser”). The Deciding Appraiser must have atleast five (5) years of full-time commercial appraisal experience withprojects comparable to the Property and be a member of a reputable nationalappraisal association. The Deciding Appraiser may not have any materialfinancial or business interest in common with either of the parties. If Landlordand Tenant are not able to agree upon a Deciding Appraiser within such seven(7) day period, each party will within fifteen (15) days thereafterseparately select an appraiser meeting the criteria set forth above, which twoappraisers will, within seven days of their selection, mutually appoint a thirdappraiser meeting the criteria set forth above (and who also does not have anymaterial financial or business interest in common with either of the twoselecting appraisers) to be the Deciding Appraiser. Within twenty (20) daysafter the appointment (by either method) of the Deciding Appraiser, Landlordand Tenant will submit to the Deciding Appraiser their respectivedeterminations of Base Rent Renewal Rate and any related information. Withintwenty-one (21) days after such appointment of the Deciding Appraiser, theDeciding Appraiser will review each party’s submittal (and such otherinformation as the Deciding Appraiser deems necessary) and will select, intotal and without modification, the submittal presented by either Landlord orTenant as the Base Rent Renewal Rate. Subject to the previous sentence, if theDeciding Appraiser timely receives one party’s submittal, but not both, theDeciding Appraiser must designate the submitted proposal as the Base RentRenewal Rate for the applicable extension of the Lease Term. Any determinationof the Base Rent Renewal Rate made by the Deciding Appraiser in violation ofthe provisions of this Rider 2 shall be beyond the scope of authority of theDeciding Appraiser and shall be null and void. If the determination of BaseRent Renewal Rate is made by a Deciding Appraiser, Landlord and Tenant willeach pay, directly to the

 

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Deciding Appraiser, one-half(1/2) of all fees, costs and expenses of the Deciding Appraiser. Landlord andTenant will each separately pay all costs, fees and expenses of theirrespective additional appraiser (if any) used to determine the DecidingAppraiser.

 
|   | LANDLORD: | Rainier Asset Management  Company, LLC,   |
|--------|-----------|-------------------------------------------|
|   |      | as agent for the  Tenant-in-Common Owners |
|   |      |                                      |
|   |      |                                      |
|   |      | Date:                                     |   |
|   |      |                                      |   |
|   |      |                                      |   |
|   | TENANT:   | NEI, Inc.                            |
|   |      |                                      |   |
|   |      |                                      |   |
|   |      | Date:                                     |   |

 

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RIDER2

TO

INDUSTRIALREAL ESTATE LEASE

CANCELLATIONOPTION

 

Tenant may cancel the Leasefollowing the sixty-sixth (66th) month of the Lease Term provided Tenant (i) provides Landlordwith written notice of Tenant’s intent to cancel this Lease on a date certainchosen by Tenant (the “First Cancellation Date”) at least twelve (12) monthsprior to the First Cancellation Date and (ii) pays to Landlord in cash atthe time the rent payment for the next month after Tenant delivers its noticeof intent to cancel this Lease is due, a cancellation option fee (the “FirstCancellation Fee”) equal to four (4) months Base Rent plus any unamortizedlease commission; provided that, if Tenant provides such cancellation noticebut fails to pay the First Cancellation Fee in the amount and within the timeherein described, Landlord may, at Landlord’s sole option, either(1) treat the Lease as cancelled as of the First Cancellation Date and collectthe First Cancellation Fee, (2) enforce this Lease in accordance with itsterms as if such cancellation notice had not been given, and Tenant shall havewaived its right to cancel pursuant to this paragraph of this Rider 2. The dateon which this Lease is cancelled pursuant to this Rider 2, if at all, shall bedeemed the termination date of this Lease for all purposes, except earliertermination as provided under the Lease due to Tenant’s Default or casualty orcondemnation.

 

Tenant may cancel the Leasefollowing the seventy-eighth (78th) month of the Lease Term provided Tenant(i) provides Landlord with written notice of Tenant’s Intent to cancelthis Lease on a date certain (the “Second Cancellation Date”) at least twelve(12) months prior to the Second Cancellation Date and (ii) pays toLandlord in cash at the time the rent payment for the month after Tenantdelivers its notice of intent to cancel this Lease is due, a cancellationoption fee (the “Second Cancellation Fee”) equal to three (3) months BaseRent plus any unamortized lease commission; provided that, if Tenant providessuch cancellation notice but fails to pay the Second Cancellation Fee in theamount and within the time herein described, Landlord may, at Landlord’s soleoption, either (1) treat the Lease as cancelled as of the SecondCancellation Date and collect the Second Cancellation Fee; or (2) enforcethis Lease in accordance with its terms as if such cancellation notice had notbeen given, and Tenant shall have waived its right to cancel pursuant to thisparagraph of this Rider 2. The date on which this Lease is cancelled pursuantto this Rider 2, if at all, shall be deemed the termination date of this Leasefor all purposes, except earlier termination as provided under the Lease due toTenant’s Default or casualty or condemnation.

 
|   | LANDLORD: | Rainier Asset Management  Company, LLC,   |
|--------|-----------|-------------------------------------------|
|   |      | as agent for the  Tenant-in-Common Owners |
|   |      |                                      |
|   |      |                                      |
|   |      | Date:                                     |   |
|   |      |                                      |
|   |      |                                      |
|   | TENANT:   | NEI, Inc.                            |
|   |      |                                      |   |
|   |      |                                      |   |
|   |      | Date:                                     |   |

 

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EXHIBIT “A”

PROPERTY

 

Being a tract of land situatedin the Eli Murphy Survey, Abstract No. 597, O. Yeomans Survey, AbstractNo. 1043, In Collin County, Texas, and being a Dart of a tract ofland described by instrument to Argent Plano Realty, L.P. as recorded in File“99-0011425, Deed Records, Collin County, Texas IO.R.C.C.T.I, and being all ofLot 7, Block l of the final plot of Plano Tech Center, on addition to the Cityof Plano, Texas as recorded In Volume M. Page 49. Plot Records, CollinCounty, Texas (P.R.C.C.T.I, and being more particularly described as follows: 

 

BEGINNING at a 1⁄2-inch ironrod with COD stomped ‘HALFF ASSOC. INC: (hereinafter referred to as ‘with cop·) found for the most westerly southwest corner ofsaid Lot 7, said point also being the southeast corner of Block 21, a Replot ofBlocks 16, 17, 20, and 21. Central Plano Industrial Pork Phase III as recordedin Cabinet ‘F’, Page 145 Deed Records of Collin County, Texas, said pointalso being on the north line of Technology Drive (6O feet wide); 

 

THENCE North 00 degrees 12minutes 30 seconds East, departing said north line and along the east line ofBlock 21, a distance of 330.27 feet to a 1⁄2-Inch iron rod with COD found at thenortheast corner of said Block 21, said corner being on the south line of theSt. Louis Southwestern Railway right-of-way (variable width); 

 

THENCE South 79 degrees 32minutes 25 seconds East, deporting sold Block line and along said south line, adistance of 114.68 feet to a 1⁄2-lnch Iron rod with cop found for corner; 

 

THENCE South 86 degrees 20minutes 07 seconds East, continuing along said south line, a distance of 544.82feet to a 1⁄2-lnch iron rod with cap found for corner; 

 

THENCE. South 79 degrees 32minutes 43 seconds East, continuing along sold south line, a distance of 238.72feet to a 1⁄2-inch Iron rod with cap found for corner, said corner being thenorthwest corner of a tract of land described by deed to Texas UtilitiesElectric Company as recorded in Volume 3409, Page 17, Deed Records ofCollin County, Texas; 

 

THENCE South 10 degrees 27minutes 17 seconds West, departing sold south line and along the west line ofsaid Texas Utilities Electric Company tract, a distance of 275.00 feet to a1⁄2-lnch iron rod with COD sot for corner, sold point being a common corner withLot 8 of sold Block I; 

 

THENCE South 39 degrees 26minutes 15 seconds West, departing sold west line and along the common linebetween sold Lots 7 and 8, a distance of 37.48 feet to on ‘X’ in concrete foundfor corner, said point being a common corner for Lot 6 of said Block 

 

THENCE North 89 degrees 47minutes 30 seconds West, along the common line between sold Lots 6 and 7, adistance of 729.45 feet to a “crow’s foot” found for corner on the east line ofKlein Road; 

 

THENCE North 10 degrees 27minutes 35 seconds East, along said east line of Klein Rood. a distance of48.12 feet to on ‘X’ In concrete found at the Intersection of said east lineand the said north line of Technology Drive; 

 

THENCE North 79 degrees 32minutes 25 seconds West, along sold north line, a distance of 99.67 feet to tilePOINT OF BEGINNING AND CONTAINING 300,130 square feet or 6.89 acre: of land,more or less.

 

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EXHIBIT“A-1”

FLOORPLATE

 

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EXHIBIT “B”

SITEPLAN OF PROJECT

 

 

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EXHIBIT “C”

 

**Intentionally Omitted**

 

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EXHIBIT “D”

SUBORDINATION,NONDISTURBANCE AND ATTORNMENT AGREEMENT

 

THIS AGREEMENT is made andentered into as of the date set forth below by and between                                                ,(“Tenant”);                                                   ,(“Landlord”); and                                                           as Trustee for the registered holders of                                  Commercial Mortgage Pass-Through CertificatesSeries                     ,whose Master Servicer is Midland Loan Services, Inc. (collectively,“Lender”), as follows:

 

RECITALS

 

LENDER is now the holder ofa Mortgage or Deed of Trust, which secures or will secure a Note in theoriginal principal amount of $                               .The Mortgage or Deed of Trust and any other security instruments, executed bythe Landlord in favor of Lender, encumber the real property, together with thebuildings and improvements on that property, described as “Exhibit A”,which is attached to this document; and

 

TENANT is the holder of alease (the “Lease”) dated                    from Landlord, further amended by instrument(s) dated                     (such lease, together with the amendments referenced above, are collectivelyreferred to as “the Lease”) covering certain premises more particularlydescribed in the Lease (referred to later as the “Leased Premises”); and

 

TENANT, LANDLORD AND LENDERdesire to confirm their understanding with respect to the Lease and theMortgage or Deed of Trust;

 

ACCORDINGLY, inconsideration of the mutual covenants and agreements contained in thisinstrument, Tenant, Landlord and Lender agree and covenant as follows:

 

1.     Now and at all times in thefuture, the Lease and the rights of the Tenant shall be subject and subordinateto the above Mortgage or Deed of Trust, and to all renewals, modifications orextensions of that Mortgage. However, such renewals, modifications andextensions shall be subject and entitled to the benefits of the terms of thisAgreement.

 

2.     So long as Tenant is not indefault in the payment of rent or in Tenant’s performance of any of the terms,covenants or conditions of the Lease (beyond any period given Tenant to curesuch default):

 

a)     Lender shall not diminishnor interfere with Tenant’s possession of the Leased Premises, or Tenant’srights and privileges under the Lease or lease renewals, modifications orextensions that may be affected in accordance with any options under the Lease.

 

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b)    Tenant’s occupancy of theLeased Premises shall not be disturbed, affected or impaired by Lender duringthe term of the Lease or any such renewals, modifications or extensions of theLease.

 

c)     Tenant, or any leaseholdmortgagee of Tenant (“Tenant’s Mortgagee”) shall not be named or joined in anyaction or proceeding brought by lender to enforce any of its rights in theevent of default under the Note, Mortgage (or Deed of Trust), unless suchjoinder be required by law for effecting those remedies available under thesecurity instruments. Such joinder would ONLY be for the purposes of effectingthose remedies, but not for the purpose of terminating the Lease or affectingTenant’s right to possession.

 

d)    If the interests of Landlordshall be transferred to and owned by Lender by reason of foreclosure or other proceedingsor by any other manner, and Lender succeeds to the interests of the Landlordunder the Lease, Tenant shall be bound to Lender under all of the terms,covenants and conditions of the Lease for the balance of the term remaining andfor any extensions or renewals which may be effected in accordance with anyoption granted in the Lease, with the same force and effect as if Lender werethe Landlord under the Lease. Tenant agrees to attorn to Lender as itsLandlord, such attornment to be effective and self-operative without theexecution of any further instruments on the part of any of the parties to thisAgreement immediately upon Lender succeeding to the interest of the Landlordunder the Lease. The respective rights and obligations of Tenant and Lenderupon such attornment, to the extent of the then remaining balance of the termof the Lease and any such extensions and renewals, shall be and are the same asnow set forth. The parties’ intent is to incorporate the Lease in thisAgreement by reference with the same force and effect as if set forth at lengthin this Agreement.

 

3.     During the period ofLender’s ownership of Landlord’s interest in the Lease, Tenant and Tenant’sMortgagee shall have the same remedies against Lender for the breach of anagreement contained in the Lease that Tenant and Tenant’s Mortgagee would havehad against the Landlord if Lender had not succeeded to Landlord’s interest;provided, however, that even though provisions in the Lease may be to thecontrary, Lender shall not be:

 

a)     liable for any act oromission of any prior landlord arising under the Lease (including the Landlord)or subject to any offsets, defenses or counterclaims which Tenant may haveagainst any prior landlord arising under the Lease (including the Landlord);or,

 

b)    bound by any rents oradditional rent which Tenant might have paid for more than the current month toany prior landlord (including the Landlord); or

 

c)     bound by any amendment ormodification of the Lease made without its consent; or,

 

d)    liable for any securitydeposited under the Lease unless such security has been physically delivered toLender.

 

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Provided, however, that theLender shall not be relieved from responsibility for failure to perform anyobligation under the Lease which, although such failure may have begun prior toLender succeeding to Landlord’s interest, thereafter continues. In such event,Lender’s responsibility shall be determined as if the failure had first arisenupon the day Landlord’s title to the Subject Property succeeds to Lender.

 

4.     Tenant shall promptly notifyLender of any default, act or omission of Landlord which would give Tenant theright, immediately or after the lapse of a period of time, to cancel orterminate the Lease or to claim a partial or total eviction (“a LandlordDefault”). In the event of a Landlord Default, the Tenant shall not exerciseany rights available to it until it has given written notice of such LandlordDefault to Lender; and Lender has failed within thirty (30) days after Lenderreceives such notice, to cure or remedy the Landlord Default. If the same cannot be reasonably remedied within such thirty-day period, then Lender shallhave a reasonable period for remedying such Landlord Default. However, in anyevent, Lender’s time to cure such default shall not be less than the period oftime the Landlord would be entitled to cure such default pursuant to the termsof the Lease. Lender shall have no obligation under this paragraph to remedyany Landlord Default.

 

5.     The terms “holder of a mortgage”and “Lender” or any similar term in this document or in the Lease shall bedeemed to include Lender and any of its successors or assigns, including anyonewho shall have succeeded to Landlord’s interests by, through or underforeclosure of the Mortgage or Deed of Trust, or by deed in lieu of suchforeclosure or otherwise.

 

6.     The Landlord has assigned orwill assign to Lender all of Landlord’s right, title and interest in the Leaseby an Assignment of Rents and Leases (“Rent Assignment”). If in the futurethere is a default by the Landlord in the performance and observance of theterms of the Note or Mortgage or Deed of Trust, the Lender may, at its optionunder the Rent Assignment, require that all rents and all other payments dueunder the Lease be paid directly to Lender. Upon notification to that effect bythe Lender to the Landlord and the Tenant, the Landlord HEREBY IRREVOCABLYAUTHORIZES AND DIRECTS the Tenant and the Tenant agrees to pay any payments dueunder the terms of the Lease to the Lender. Such payments shall constitutepayments under the terms of the Lease and Landlord shall have no claim againstTenant by reason of such payments made to Lender. Tenant shall make suchpayments to Lender regardless of any right of setoff, counterclaim or otherdefense that Tenant may have against Landlord. Neither the Rent Assignment norits implementation shall diminish any obligation of the Landlord under theLease or impose any such obligations on the Lender.

 

7.     Any notice, or request orother communication required by this Agreement to be given shall be in writingand shall be: (a) personally delivered; or, (b) sent via nationallyrecognized overnight courier; or, (c) transmitted by postage prepaidregistered or certified mail, return receipt requested. All such notices,requests or other communications shall be addressed to Tenant, Landlord orLender at the addresses set forth below or such other address as the partiesshall in like manner designate. All such notices and requests shall be deemedto have been given on the first to occur of: (i) the actual date received,or (ii) the date of delivery if personally delivered; or (iii) five(5) days following posting if transmitted by mail.

 

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If to Tenant:

 

 

If to Landlord:

 

 

If to Lender:

 

Midland Loan Services, Inc.

10851 Mastin Blvd.,Suite 700 

Overland Park, KS 66210

Attention:                                  ,Asset Manager

 

8.     This Agreement may NOT bemodified except by a written agreement signed by the parties or theirrespective successors in interest. This Agreement shall inure to the benefit ofand be binding upon the parties, their successors and assigns.

 

IN RATIFICATION OF THISAGREEMENT, the parties have placed their signatures and seals below, by andthrough their duly authorized officers on this date,                                      ,20  .

 

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|   | “LENDER”                                                      as  Trustee |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   | for                                                                                                                                                                                                                                                                                                                                                     |
|   | Commercial Mortgage  Pass-Through Certificates                                                                                                                                                                                                                                                                                                          |
|   | Series                                                                                                                                                                                                                                                                                                                                                  |
|   | by and through its Master  Servicer,                                                                                                                                                                                                                                                                                                                    |
|   | Midland Loan Services, Inc.                                                                                                                                                                                                                                                                                                                        |
|   |                                                                                                                                                                                                                                                                                                                                                    |
|   |                                                                                                                                                                                                                                                                                                                                                    |
|   | By                                                                                                                                                                                                                                                                                                                                                      |   |
|   |                                                                                                                                                                                                                                                                                                                                                    | Brad Hauger |
|   |                                                                                                                                                                                                                                                                                                                                                    | Senior Vice President and |
|   |                                                                                                                                                                                                                                                                                                                                                    | Servicing Officer |

 

 
| STATE OF KANSAS   | ) |
|-------------------|---|
|              | ) |
| COUNTY OF JOHNSON | ) |

 

On this         day of                  ,2           , before me, aNotary Public in and for the State of Kansas, personally appeared Brad Hauger,personally known to me (or proved to me on the basis of satisfactory evidence)to be the person who executed this instrument, on oath stated that he wasauthorized to execute the instrument, and acknowledged that he is the SeniorVice President and Servicing Officer of Midland Loan Services, Inc., to bethe free and voluntary act and deed of said company for the uses and purposesmentioned in the instrument.

 

IN WITNESS WHEREOF, Ihave hereunto set my hand and official seal the day and year first abovewritten.

 

 
| (seal)                 |                                           |
|------------------------|------------------------------------------------|
|                   |                                           |
|                   | (Print Name)                                   |
|                   | NOTARY PUBLIC in and for  the State of Kansas. |
|                   |                                           |
|                   |                                           |
| My appointment expires |                                           |   |
|                   |                                           |
|                   |                                           |
|                   | “TENANT”                             |
|                   | (print)                                        |
|                        |                                                |  |

 

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|      | By     |   |
|-----------|--------|--------|
|      | Its    |   |
|      |   |   |
|      |   |   |
| STATE OF  |   | )      |
|      |   | ) ss.  |
| COUNTY OF |   | )      |
|           |        |        |  |  |

 

On this         day of                     ,2         , before me, a Notary Publicin and for the State of                                      ,personally appeared                                           personallyknown to me (or proved to me on the basis of satisfactory evidence) to be theperson who executed this instrument, on oath stated that he/she was authorizedto execute the instrument, and acknowledged that he/she is the                                              of                    ,to be the free and voluntary act and deed of said                                for the uses and purposes mentioned in the instrument.

 

IN WITNESS WHEREOF, Ihave hereunto set my hand and official seal the day and year first abovewritten.

 

 
| (seal)                 |                                                                                                                                                                                                                                                                      |
|------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                   |                                                                                                                                                                                                                                                                      |
|                   | (Print Name)                                                                                                                                                                                                                                                              |
|                   | NOTARY PUBLIC in and for  the State of                                                                                                                                                                                                                                    |
|                   |                                             . |
|                   |                                                                                                                                                                                                                                                                      |
|                   |                                                                                                                                                                                                                                                                      |
| My appointment expires |                                                                                                                                                                                                                                                                      |   |
|                        |                                                                                                                                                                                                                                                                           |  |

 

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|   | “LANDLORD” |
|--------|----------------------|
|   | (print)              |
|   |                 |
|   | By                   |   |
|   | Its                  |   |

 

 
| STATE OF  |   | )     |
|-----------|--------|-------|
|      |   | ) ss. |
| COUNTY OF |   | )     |
|           |        |       |  |

 

On this              dayof                  ,2     , before me, a Notary Public in and for the State of                     ,personally appeared                              personally known to me (or proved to me on the basis of satisfactory evidence)to be the person who executed this instrument, on oath stated that he/she wasauthorized to execute the instrument, and acknowledged that he/she is the                                   of                  ,to be the free and voluntary act and deed of said                             forthe uses and purposes mentioned in the instrument.

 

IN WITNESS WHEREOF, Ihave hereunto set my hand and official seal the day and year first abovewritten.

 

 
| (seal)                 |                                                                                                                                                                                                                                                                      |
|------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                   |                                                                                                                                                                                                                                                                      |
|                   | (Print Name)                                                                                                                                                                                                                                                              |
|                   | NOTARY PUBLIC in and for  the State of                                                                                                                                                                                                                                    |
|                   |                                             . |
|                   |                                                                                                                                                                                                                                                                      |
|                   |                                                                                                                                                                                                                                                                      |
| My appointment expires |                                                                                                                                                                                                                                                                      |   |
|                        |                                                                                                                                                                                                                                                                           |  |

 

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EXHIBIT “E”

ESTOPPELCERTIFICATE

 

1.             DEFINITIONS. In thisCertificate, the following terms have the meanings given to them:

 
|   | (a)    | Landlord:         | Rainier Asset Management  Company, LLC, as agent for the Tenant-in-Common Owners.                                                                                 |
|--------|--------|-------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   | (b)    | Tenant:           | NEI, Inc.                                                                                                                                                    |
|   | (c)    | Lease:            | Lease  dated                    between  Landlord and Tenant. |
|   | (d)    | Premises:         | Suite                                                                                                                                                             |
|   | (e)    | Building Address: | 3501 E. Plano Parkway                                                                                                                                             |
|   |   |              | Plano, Texas 75074                                                                                                                                                |
|        |        |                   |                                                                                                                                                                   |  |

 

2.             Landlord and Tenant confirmthat the Commencement Date of the Lease is 02/1/10, and the Expiration Date is 07/31/2017.

 

3.             The Rentable Area of thePremises is deemed to be 82,880 square feet.

 

4.             The Rentable Area of theBuilding is deemed to be 82,880 square feet.

 

5.             Tenant’s Share is 100% percent.

 

6.             Tenant has acceptedpossession of the Premises as provided in the Lease.

 

7.             TheImprovements required to be furnished by the Landlord in accordance with theWorkletter (if any) have been furnished to the satisfaction of Tenant (subjectto any corrective work or punch-list items submitted previously to Landlord).

 

8.             All terms andconditions to be performed by Landlord under the Lease have been satisfied andon this date Tenant is unaware of existing defenses or offsets, whichTenant has against the full enforcement of the Lease by Landlord.

 

9.             The Lease is in full forceand effect and has not been modified, altered, or amended, except as follows:

None

 

10.           There are nosetoffs or credits against Rent, and no Security Deposit or prepaid Rent hasbeen paid except as provided by the Lease.

 

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Landlord and Tenant haveexecuted this Commencement Date and Estoppel Certificate as of the dates setforth below.

 
| Tenant: | NEI, Inc. |   | Landlord: | Rainier Asset Management Company,  LLC, as agent for the Tenant-in-Common Owners |
|---------|----------------|--------|-----------|----------------------------------------------------------------------------------|
|    |           |   |      |                                                                             |
| By:     |           |   | By:       |                                                                             |
|    |           |   |      |                                                                             |
| Name:   |           |   | Name:     |                                                                             |
|    |           |   |      |                                                                             |
| Title:  |           |   | Title:    |                                                                             |
|    |           |   |      |                                                                             |
| Date:   |           |   | Date:     |                                                                             |

 

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Exhibit “F”

RULESAND REGULATIONS

 

1.                                       Landlord willfurnish Tenant free of charge two (2) keys to each door in and to theTenant’s leased Premises. Landlord may make any reasonable charge foradditional keys, and Tenant shall not make or have made additional keys, andTenant shall not alter any lock or install a new or additional lock or bolt onany door of its Premises. Tenant, upon the termination of its tenancy, shalldeliver the Landlord the keys of all doors which have been furnished to theTenant and in the event of loss of any keys furnished, shall notify Landlord oflost keys.

 

2.                                       Landlord willnot be responsible for lost or stolen personal property, equipment, money orjewelry from the leased Premises or the Project regardless of whether such lossoccurs when the area is locked against entry or not.

 

3.                                       Except asrequired to periodically inspect and service HVAC units, no Tenant and noemployee of any Tenant shall go up on the roof of the Building, without priorknowledge and written consent of the Landlord.

 

4.                                       Tenant shall beresponsible for maintaining with Landlord an up-to-date list of personnel to benotified in the event of an emergency. This list must include correct afterhours phone numbers, pager numbers and cellular numbers for the employee(s) whoare designated for this responsibility.

 

5.                                       The directoryof the Building, if any will be provided exclusively for the display of thename and location of tenants only and Landlord reserves the right to excludeany names therefrom.

 

6.                                       Tenant and itsemployees, agents and invitees shall park their vehicles only in those parkingareas designated by Landlord. Tenant shall not leave any vehicle in a state ofdisrepair (including without limitation: flat tires, out of date inspectionstickers or license plates) on the leased Premises or Project.  If Tenant or its employees, agents orinvitees park their vehicles in areas other than the designated parking areasor leave any vehicle in a state of disrepair, Landlord, after giving writtennotice to Tenant of such violation, shall have the right after three(3) days, including weekends and holidays to remove such vehicles atTenant’s expense. No termination of parking privileges or removal orimpoundment of a vehicle shall create any liability on Landlord or be deemed tointerfere with Tenant’s right to possession of its leased Premises. Allresponsibility for damage to vehicles or persons is assumed by the owner of thevehicle or its driver. The areas located directly in front of the dock doorsshall strictly be used for loading and unloading and shall not be used foradditional parking except as approved by the Landlord. Semi-trailers and/ortrucks may not block or obstruct the traffic flow or marked fire lanes.

 

7.                                       Tenant shallprovide cleaning and janitorial services for the Premises. Landlord shall notin any way be responsible to any Tenant for any loss of property on thePremises, however occurring, or for any damage to any Tenant’s property causedby the janitor or any other persons who might be working on the Property.

 

8.                                       Tenant shallnot store anything on the exterior of the Building without prior writtenconsent from Landlord.

 

9.                                       Tenant shallnot use any method of heating or air conditioning other than that supplied byLandlord.

 

10.                                 Tenant shall notuse in any space of the Building any hand trucks except those equipped withwheels and side guards or other such material-handling

 

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equipmentas Landlord may approve; provided, however, that Tenant shall be entitled touse forklifts and similar material-handling equipment in the Premises withoutLandlord’s approval. Tenant shall not bring any other vehicles of any kind intothe Building, except as may be necessary from time to time in the course ofTenant’s business. No vehicles may be parked or stored inside the Building foran extended period.

 

11.                                 No person shalldisturb occupants of the Building by the use of any radios, record players,tape recorders, musical instruments or the making of unseemly noises of anykind. Tenant shall not permit any objectionable or unpleasant odors, smoke,smoke, dust, gas, noise or vibrations to emanate from the Premises, nor takeany other action that would constitute a nuisance or would disturb,unreasonably interfere with or endanger Landlord or any other tenants of theBuilding in which the Premises are a part.

 

12.                                 The restroomfacilities and other water fixtures shall not be used for any other purposeother than those for which they were constructed and any damage resulting tothem from misuse shall be borne by the Tenant. No person shall use water fromthe faucets except for those for which they are billed by the applicable waterdepartment.

 

13.                                 Tenant shallnot obstruct any sidewalks, halls, passages, exits, entrances or stairways ofthe Building. The halls, passages, exits and stairways are not for the generalpublic, and Landlord shall in all cases retain the right to control and preventaccess to the Building of all persons whose presence the judgment of Landlordwould be prejudicial to the safety, character, reputation and interests of theBuilding and its tenants provided that nothing contained in thisrule shall be construed to prevent such access to persons with whom Tenantnormally deals in the ordinary course of its business, unless such persons areengaged in illegal activities.

 

14.                                 None of thepark lawn areas, entries, passages or doors shall be blocked or obstructed norany rubbish, litter, trash or material of any nature placed, emptied or throwninto these areas or such area used by Tenant’s agents, employees or invitees atany time for purposes inconsistent with their designation by Landlord.

 

15.                                 Subject to item30 of these rules and regulations, Tenant shall not place, install oroperate on the leased Premises or in any part of the Building any engine, stoveor machinery, or conduct mechanical operations or cook thereon or therein, orplace or use in or about the leased Premises or project any explosives,gasoline, kerosene, oil, acids, caustics or any flammable, explosive orhazardous materials without written consent of Landlord.

 

16.                                 Tenant shallnot use the name of the Building in connection with or in promoting oradvertising the business of Tenant without prior written consent of Landlord.

 

17.                                 Tenant shallnot place a load upon any floor, which exceeds the load per square foot, whichfloor was designed to carry and which is allowed by law.  Business machines and mechanical equipmentwhich cause noise or vibration that may be transmitted to the structure of theBuilding or to any space in the Building to such a degree as to beobjectionable to Landlord or to any tenants shall be placed and maintained byTenant, at Tenant’s expense, on vibration eliminators or other devicessufficient to reasonably eliminate noise or vibration. Landlord will not beresponsible for loss of or damage to any such equipment or other property fromany cause, and all damage done to the Building by maintaining or moving suchequipment or other property shall be repaired at the expense of Tenant.

 

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18.                                 Except asapproved by Landlord and further provided in Section 6.05 A of the Lease,Tenant shall not mark, drive nails, screw or drill into the partitions,woodwork or plaster or in any way deface the Premises. Tenant shall not cut orbore holes for wires. Tenant shall not affix any floor covering to the floor ofthe Premises in any manner except as reasonably approved by Landlord. Tenantshall repair any damage resulting from noncompliance with this rule.

 

19.                                 Tenant shallstore and dispose of all its trash and garbage in proper receptacles, locatedin areas approved by Landlord and at its sole cost and expense. Saidreceptacles must be of a size and type that will be compatible with the volume,size, and type of trash that is placed into the receptacle.

 

20.                                 All doors or closuresmust be kept closed at all times, if there are no doors, then Tenant shall berequired to schedule the frequency of the emptying of theirreceptacle(s) so that no trash will spill over the top onto the ground.  Tenant shall not place in any trash box orreceptacle any material that cannot be disposed of in the ordinary andcustomary manner of trash and garbage disposal. Tenant shall be responsible forthe removal of all trash and debris from the exterior of the property withinthe boundaries of their leasehold, regardless of where such trash and debrisoriginated.

 

21.                                 No sign,placard, advertisement, name or notice shall be installed or displayed on anypart of the outside or inside of the Building without prior written consent ofthe Landlord. Landlord shall have the right to remove at Tenant’s expense andwithout notice, any sign installed or displayed in violation of this rule. Allapproved signs or lettering on doors and walls shall be printed, affixed,painted or inscribed at Tenant’s expense. In addition, Landlord reserves theright to change from time to time the format of the signs or lettering and torequire previously approved signs to be altered, the cost for which shall notbe unreasonable.

 

22.                                 If Landlordobjects to in writing any curtains, blinds, shades or screens attached to, hungin or used in connection with any window or door, Tenant shall promptlydiscontinue such use. No awning shall be permitted on any part of the Premiseswithout Landlord’s prior approval. Tenant shall not place anything or allowanything to be placed against or near any glass partitions or doors or windowswhich may appear unsightly, in the reasonable discretion of Landlord, fromoutside the Premises.

 

23.                                 Subject to item30 of these rules and regulations, no cooking shall be done or permittedby any Tenant on the Premises, except by the use of an Underwriter’s Laboratoryapproved microwave oven or equipment for brewing coffee, tea, hot chocolate andsimilar beverages, and provided that such equipment and use is in accordancewith all applicable federal, state and city laws, codes, ordinances,rules and regulations.

 

24.                                 Tenant shallnot install, maintain or operate upon the Premises any vending machine, exceptfor the exclusive use of its employees.

 

25.                                 Tenant shallnot at any time occupy any part of the leased Premises or project as sleepingor lodging quarters.

 

26.                                 No dogs, unlessassisting the visually impaired, cats, fowl, or other animals shall be broughtinto or kept in or about the leased Premises.

 

27.                                 Landlord maywaive one or more of these Rule and Regulations for the benefit of anyparticular tenant or tenants, but no such waiver shall be construed as a waiverof such Rules and Regulations in favor of any other tenant or tenants, norprevent Landlord from thereafter enforcing any such Rules and Regulationsto include any or all of the Tenants of the Building.  These Rules and Regulations are inaddition to, and shall not be construed

 

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toin any way modify or amend, in whole or in part, the terms, covenants,agreements and conditions of any lease of premises in the Building.

 

28.                                 Landlordreserves the right to make other such reasonable rules and regulations asin its judgment may be from time to time be needed for safety and security, forcare and cleanliness of the Building and for the preservation of good order inand about the Building. Tenant agrees to abide by all such rules andregulations in this Exhibit F and any additional rules andregulations, which may be added.

 

29.                                 Tenant ishereby notified of the existence of permanent PVC conduit that is locatedadjacent to and is accessible by each building located within the Plano TechCenter Phase I & II development. The sole purpose for this conduit isto provide access to any leasehold in any building by a tenant wishing toinstall telecommunications cabling (including optical fiber), such cablingand/or fiber to be supplied by the Tenant’s provider of choice. It is arequirement by Landlord that the conduit system be utilized for theinstallation of all such connections. Landlord must approve any suchinstallation in writing and no other method of access to the Building will bepermitted. Any unauthorized access to the Building will be removed at the soleexpense of the Tenant.

 

30.                                 Notwithstandingthe prohibitions in items 15 and 23 of these rules and regulations, Tenantshall be entitled to hold seasonal company events, picnics and cookouts at theProject; provided, that (i) no activity conducted at any such event shallbe in violation of local statutes or ordinances, and (ii) such event doesnot interfere with the regular business operations of other tenants at theProject.

 

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EXHIBIT “G”

SIGNAGECRITERIA AND APPROVALS

 

Tenant shall be entitled tomaintain its current signage relating to the Premises and the Project.

If other signs are requestedby Tenant and approved by Landlord, then such signs shall meet the followingcriteria:

Signs shall be composed ofindividual letters.

Signs shall be located onthe Building (front elevation).

Signs shall be made of solidexpanded PVC, Komacel or equal product.

Letters shall be 30mmminimum in depth.

Letters of signs to be studset with threaded connection on back side of letter.

Letters of signs to beattached to concrete panels as directed by fabricator.

Sign layout, location onbuilding, type-face and color to be approved by Landlord prior to fabrication.

Signs to conform to City ofPlano sign criteria.

 

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