EXHIBIT
10.23


 


 


LEASE
AGREEMENT

(Full Service)


 


by
and between


 


 


ADVANCED
TELCOM GROUP, INC.

(“Tenant”)


 


 


and


 


 


200
SOUTH VIRGINIA INVESTMENTS, LLC

(“Landlord”)


 


July 16, 1999

200 South Virginia


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  Demise and Premises

  	
   

  
	
   

  	
  1.1

  	
  Demise

  	
   

  
	
   

  	
  1.2

  	
  Premises

  	
   

  
	
   

  	
  1.3

  	
  Commencement
  and Expiration Dates

  	
   

  
	
  2.

  	
  Rent

  	
   

  
	
   

  	
  2.1

  	
  Base Rent

  	
   

  
	
  3.

  	
  Business Taxes

  	
   

  
	
  4.

  	
  Property Taxes

  	
   

  
	
   

  	
  4.1

  	
  Taxes on Tenant’s Personal Property

  	
   

  
	
   

  	
  4.2

  	
  Tenant Improvements

  	
   

  
	
  5.

  	
  Use

  	
   

  
	
   

  	
  5.1

  	
  General

  	
   

  
	
   

  	
  5.2

  	
  Negative Covenants as to Use

  	
   

  
	
   

  	
  5.3

  	
  Hazardous Substances

  	
   

  
	
   

  	
  5.4

  	
  Rules and Regulations

  	
   

  
	
   

  	
  5.5

  	
  Specialized Equipment

  	
   

  
	
  6.

  	
  Condition of Premises, Maintenance and
  Repair

  	
   

  
	
   

  	
  6.1

  	
  Tenant’s Acceptance

  	
   

  
	
   

  	
  6.2

  	
  Tenant’s Maintenance
  Obligations

  	
   

  
	
   

  	
  6.3

  	
  Manner

  	
   

  
	
   

  	
  6.4

  	
  Janitorial Services

  	
   

  
	
   

  	
  6.5

  	
  Landlord’s Maintenance and Repair
  Obligations

  	
   

  
	
   

  	
  6.6

  	
  Waiver

  	
   

  
	
   

  	
  6.7

  	
  End of Term

  	
   

  
	
  7.

  	
  Tenant Alterations

  	
   

  
	
   

  	
  7.1

  	
  Landlord’s Consent

  	
   

  
	
   

  	
  7.2

  	
  Procedure for Approval

  	
   

  
	
   

  	
  7.3

  	
  Standard for Approval

  	
   

  
	
   

  	
  7.4

  	
  Compliance with Laws

  	
   

  
	
   

  	
  7.5

  	
  Title to Improvements

  	
   

  
	
   

  	
  7.6

  	
  Schedule/Manner of Work

  	
   

  
	
   

  	
  7.7

  	
  Debris

  	
   

  
	
   

  	
  7.8

  	
  Right of Entry/Inspection

  	
   

  
	
   

  	
  7.9

  	
  Insurance

  	
   

  
	
   

  	
  7.10

  	
  Non-Responsibility of Landlord

  	
   

  
	
  8.

  	
  Liability and Insurance

  	
   

  
	
   

  	
  8.1

  	
  Action
  by Tenant

  	
   

  
	
   

  	
  8.2

  	
  Landlord’s Insurance

  	
   

  
	
   

  	
  8.3

  	
  Waiver of Subrogation

  	
   

  
	
   

  	
  8.4

  	
  Public Liability Insurance

  	
   

  
	
   

  	
  8.5

  	
  Tenant’s Fire and All Risk Coverage Insurance

  	
   

  
	
   

  	
  8.6

  	
  Insurance Policies

  	
   

  
	
   

  	
  8.7

  	
  Increase Policies

  	
   

  
	
   

  	
  9.1

  	
  Landlord’s Property

  	
   

  
	
   

  	
  9.2

  	
  Tenant’s Property

  	
   

  
								



 


ii





















 


	
   

  	
  9.3

  	
  Removal

  	
   

  
	
   

  	
  9.4

  	
  Abandonment

  	
   

  
	
  10.

  	
  Holding Over

  	
   

  
	
   

  	
  11.1

  	
  High Voltage Equipment

  	
   

  
	
   

  	
  11.2

  	
  Cost of Increasing Capacity

  	
   

  
	
   

  	
  11.3

  	
  Light Fixtures

  	
   

  
	
  12.

  	
  Climate Control

  	
   

  
	
  13.

  	
  Signs, Displays, Auctions, and Sales

  	
   

  
	
   

  	
  13.1

  	
  General

  	
   

  
	
   

  	
  13.2

  	
  Tenant’s Interior Signs

  	
   

  
	
   

  	
  13.3

  	
  Displays

  	
   

  
	
   

  	
  13.4

  	
  Auctions

  	
   

  
	
  14.

  	
  Access and Control of Premises

  	
   

  
	
   

  	
  14.1

  	
  Access to Premises

  	
   

  
	
   

  	
  14.2

  	
  Waiver in Connection with Landlord’s Entry

  	
   

  
	
   

  	
  14.3

  	
  Building Changes

  	
   

  
	
  15.

  	
  Damage or Destruction

  	
   

  
	
   

  	
  15.1

  	
  Rights and Obligations

  	
   

  
	
   

  	
  15.2

  	
  Rent Abatement

  	
   

  
	
   

  	
  15.3

  	
  Interference
  with Tenant’s Business

  	
   

  
	
   

  	
  15.4

  	
  Insurance on Tenant’s Property

  	
   

  
	
  16.

  	
  Eminent Domain

  	
   

  
	
   

  	
  16.1

  	
  Total Condemnation

  	
   

  
	
   

  	
  16.2

  	
  Partial Condemnation

  	
   

  
	
   

  	
  16.3

  	
  Effect of Termination or Continuation

  	
   

  
	
   

  	
  16.4

  	
  Award

  	
   

  
	
   

  	
  16.5

  	
  Temporary Taking

  	
   

  
	
  17.

  	
  Landlord’s Self Help Rights; Liability
  and Indemnification

  	
   

  
	
   

  	
  17.1

  	
  Landlord’s Right to Cure

  	
   

  
	
   

  	
  17.2

  	
  Tenant’s Indemnity

  	
   

  
	
   

  	
  17.3

  	
  Limit on Landlord’s Liability

  	
   

  
	
   

  	
  17.4

  	
  Defense of Claims

  	
   

  
	
  18.

  	
  Defaults and Remedies

  	
   

  
	
   

  	
  18.1

  	
  Events of Default

  	
   

  
	
   

  	
  18.2

  	
  Remedies

  	
   

  
	
   

  	
  18.3

  	
  Cumulative Remedies

  	
   

  
	
   

  	
  18.4

  	
  Termination

  	
   

  
	
  19.

  	
  Transfers By Tenant

  	
   

  
	
   

  	
  19.1

  	
  General

  	
   

  
	
   

  	
  19.2

  	
  Listing Premises

  	
   

  
	
   

  	
  19.3

  	
  Corporate Changes

  	
   

  
	
   

  	
  19.4

  	
  Unapproved Transfers

  	
   

  
	
   

  	
  19.5

  	
  Successors and Assigns

  	
   

  
	
  20.

  	
  Subordination; Attornment; Quiet
  Enjoyment

  	
   

  
	
   

  	
  20.1

  	
  Subordination,
  Nondisturbance

  	
   

  
	
   

  	
  20.2

  	
  Attornment

  	
   

  
							



 


iii





















 


	
   

  	
  20.3

  	
  Quiet Enjoyment

  	
   

  
	
   

  	
  20.4

  	
  Estoppel Certificates

  	
   

  
	
   

  	
  20.5

  	
  Mortgagee Protection

  	
   

  
	
   

  	
  20.6

  	
  Modification
  for Lender

  	
   

  
	
  21.

  	
  Security

  	
   

  
	
   

  	
  21.1

  	
  Financial Statements

  	
   

  
	
   

  	
  21.2

  	
  Deposit

  	
   

  
	
  22.

  	
  Governing Law

  	
   

  
	
  23.

  	
  No Merger

  	
   

  
	
  24.

  	
  Disputes

  	
   

  
	
   

  	
  24.1

  	
  Attorneys’ and Collection Fees

  	
   

  
	
   

  	
  24.2

  	
  Arbitration of Disputes.  Intentionally Deleted

  	
   

  
	
  25.

  	
  Hazardous Substances

  	
   

  
	
  26.

  	
  Tenant’s Liability and Performance

  	
   

  
	
  27.

  	
  Definition of Landlord; Limitation or
  Liability

  	
   

  
	
  28.

  	
  Waiver

  	
   

  
	
  29.

  	
  Miscellaneous Provisions

  	
   

  
	
   

  	
  29.1

  	
  Successors or Assigns

  	
   

  
	
   

  	
  29.2

  	
  Authority of Parties

  	
   

  
	
   

  	
  29.3

  	
  Interest on Past Due Obligations

  	
   

  
	
   

  	
  29.4

  	
  Broker’s Commission

  	
   

  
	
   

  	
  29.5

  	
  Terms and Headings

  	
   

  
	
   

  	
  29.6

  	
  Examination of Lease

  	
   

  
	
   

  	
  29.7

  	
  Time

  	
   

  
	
   

  	
  29.8

  	
  Amendments

  	
   

  
	
   

  	
  29.9

  	
  Partial Invalidity

  	
   

  
	
   

  	
  29.10

  	
  Recording

  	
   

  
	
   

  	
  29.11

  	
  Notices

  	
   

  
	
   

  	
  29.12

  	
  Entire Agreement

  	
   

  
	
   

  	
  29.13

  	
  Survival of Obligations

  	
   

  
	
   

  	
  29.14

  	
  Representations and Warranties

  	
   

  
	
   

  	
  29.15

  	
  Waiver

  	
   

  



 


iv





















 


BASIC LEASE TERMS AND
DESCRIPTION OF EXHIBITS

(Full Service)


 


The following list is a
summary of certain basic terms of this Lease. 
In case of a conflict between any provision of this Lease and the
information contained in this summary, the applicable provision of this Lease shall
control.  Terms set forth in the left-hand
column, below, and used in this Lease shall, unless otherwise defined in the
Lease, have the meaning given opposite each such term in the right-hand column,
below.


 




	
  LESSOR:

  	
   

  	
  200
  South Virginia Investments, LLC, an Oregon limited liability company

  
	
   

  	
   

  	
   

  
	
  ADDRESS
  OF LESSOR:

  	
   

  	
  c/o
  ScanlanKemperBard Companies, Operating Manager

  2650 Pacwest Center

  1211 S.W. Fifth Avenue

  Portland, OR 97204

  Attn: Jeffrey Tallman

  Telecopy: (503) 220-2648

  
	
   

  	
   

  	
   

  
	
  LESSEE:

  	
   

  	
  Advanced
  TelCom Group, Inc., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  ADDRESS
  OF LESSEE:

  	
   

  	
  Advanced
  TelCom Group, Inc.

  100 Stony Point Road, Suite 130

  Santa Rosa, CA 95401

  Attn: Mr. Clifford G. Rudolph

  Telecopy: (707) 535-8909

  
	
   

  	
   

  	
   

  
	
  PROPERTY
  MANAGER:

  	
   

  	
  Trammel
  Crow

  
	
   

  	
   

  	
   

  
	
  ADDRESS
  OF PROPERTY MANAGER:

  	
   

  	
  990
  East Greg Street

  Sparks, NV 89431

  Attn: Cindy Frankenhauser

  Telecopy: 775-356-6181

  
	
   

  	
   

  	
   

  
	
  CITY,
  COUNTY AND STATE:

  	
   

  	
  Reno,
  Washoe County, Nevada, respectively

  
	
   

  	
   

  	
   

  
	
  PREMISES:

  	
   

  	
  5,275
  rentable square feet of space located on the first floor, and 4,554 rentable
  square feet of space located on the second floor, of the building at 200
  South Virginia, as identified on the description and/or floor plan attached
  as Exhibit B.

  
	
   

  	
   

  	
   

  
	
  LEASE
  TERM:

  	
   

  	
  One
  Hundred Twenty (120) months

  
	
   

  	
   

  	
   

  
	
  RENEWAL
  TERM(S):

  	
   

  	
  One
  (1) term of one hundred twenty (120) months

  






 





















 




	
   

  	
   

  	
   

  
	
  EFFECTIVE
  DATE:

  	
   

  	
                           ,          

  
	
   

  	
   

  	
   

  
	
  COMMENCEMENT DATE:

  	
   

  	
  August
  1, 1999

  
	
   

  	
   

  	
   

  
	
  EXPIRATION
  DATE:

  	
   

  	
  July
  31, 2009, or as otherwise set forth in Section 1.3.1

  
	
   

  	
   

  	
   

  
	
  BASE
  RENT:

  	
   

  	
  $15,726.40
  per month ($188,716.80 annual rate)

  
	
   

  	
   

  	
   

  
	
  ADJUSTMENT
  DATE FOR BASE RENT:

  	
   

  	
  August
  1, 2000, and on each August 1 thereafter, continuing through the Term and any
  Renewal Term.

  
	
   

  	
   

  	
   

  
	
  PERMITTED
  USE:

  	
   

  	
  General
  offices, including, without limitation, telecommunications management,
  marketing, customer service and, on that portion of the Premises located on
  the second floor only, switch operation.

  
	
   

  	
   

  	
   

  
	
  LANDLORD’S
  BROKER:

  	
   

  	
  CB
  Richard Ellis

  5190 Neil Road, Suite 100

  Reno, NV 89502

  Attn: Tim Ruffin

  
	
   

  	
   

  	
   

  
	
  TENANT’S
  BROKER

  	
   

  	
  Grubb
  & Ellis

  Nevada Commercial Group

  573 Hammil Lane

  Reno, NV 89511

  Attn: Rick LaMay

  






 


EXHIBITS


 




	
  Exhibit
  A

  	
   

  	
  Legal
  Description of Land

  
	
  Exhibit
  B

  	
   

  	
  Premises
  Description and Plan

  
	
  Exhibit
  C

  	
   

  	
  Initial
  Tenant Improvements

  
	
  Exhibit
  D

  	
   

  	
  Rules
  and Regulations

  
	
  Exhibit
  E

  	
   

  	
  Standards
  for Utilities and Services

  
	
  Exhibit
  F

  	
   

  	
  Tenant’s
  Batteries

  
	
  Exhibit
  G

  	
   

  	
  Landlord’s
  Waiver and Estoppel Certificate

  






 


ii





















 


LEASE AGREEMENT


(Full Service)


 


THIS LEASE AGREEMENT (this
“Lease” or this “Agreement”) is made and entered into as of the Effective Date
identified in the summary of Basic Lease Terms preceding this Lease by and
between the Tenant and Landlord also identified in such summary.


 


1.                                       Demise
and Premises.


 


1.1                                 Demise.  Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, upon the terms and subject to the conditions set
forth in this Lease, the Premises described in Section 1.2 within the project
known as 200 South Virginia, in the City, County and State (the “Building”),
SUBJECT, HOWEVER, to any and all existing liens and encumbrances of record (the
“Existing Encumbrances”), and the terms of this Lease.  The Building is located upon the land legally
described in Exhibit A (the “Land”).


 


1.2                                 Premises


 


1.2.1
                     Premises and Associated Rights.  The
premises leased to Tenant consist of space in the Building having the square
footage and location generally identified in the summary of Basic Lease Terms
preceding this Lease, as more particularly identified on the description and/or
floor plans attached as Exhibit B (the “Premises”).  The Premises also include the appurtenant
right to use, in common with others, the public portions of the Building,
including public hallways and lobbies, elevators, parking facilities parking facilities
to the extent allocated to Tenant in the summary of Basic Lease Terms,
restrooms, sidewalks, ramps, landscape areas, and driveways.


 


1.2.2                      Option
to Expand.  If, during the Term
or any Renewal Term, any space on the second floor of the Building and adjacent
to the Premises comes available (the “Expansion Space”), then Landlord shall
offer Tenant the right to lease the Expansion Space by sending to Tenant a
written notice of the specific terms of an offer to lease, including Base Rent
(the “Offered Rent”) and the other terms covered in the summary of Basic Lease
Terms (as set forth in such notice, the “Expansion Space Terms”), prior to
offering to lease the Expansion Space to any other person or entity.


 


(a)                                  Tenant shall have five (5) business days
after its receipt of Landlord’s notice to exercise its right to lease.  If Tenant elects to lease the Expansion
Space, Landlord and Tenant shall execute an amendment to this Lease, adding the
Expansion Space to the Premises and otherwise incorporating the Expansion Space
Terms, within ten (10) business days after acceptance of the proposal by
Tenant, or as soon thereafter as reasonably possible.  If Tenant does not elect to accept such offer
within said five (5) business day period, or fails to enter into a Lease
amendment within said ten (10) business day period, then Landlord may offer to
lease the Expansion Space to a third party, on the same terms and conditions
offered to Tenant.


 


(b)                                 If Landlord receives and desires to accept a
third party offer to lease the Expansion Space for an amount less than
ninety-eight percent (98%) of the Offered Rent, or if such offer is on terms
materially more favorable to the lessee than those terms on


 


1





















 


which lease of the Expansion
Space was initially offered to Tenant, then Landlord shall give Tenant notice
of such terms and Tenant shall have an additional five (5) days after the
receipt of said notice to exercise this right of first refusal.  If Tenant accepts such revised proposal, the
parties shall execute an amendment to this Lease, adding the Expansion Space to
the Premises and otherwise incorporating the terms applicable to the Expansion
Space that were contained in the third party officer, within ten (10) business
days after acceptance of the proposal by Tenant or as soon thereafter as
reasonably possible.  If Tenant fails to
accept such offer within the five (5) day period or to execute said Lease
amendment within the ten (10) business day period, Landlord shall be free to
continue negotiating with, and/or to the lease the Expansion Space to, such
third party.


 


1.3                                 Commencement and Expiration
Dates.  The term of this Lease shall be for the
period of months designated in the summary of Basic Lease Terms preceding this
Lease, and shall have the Commencement Date and Expiration Date also designated
in such summary (the “Term”); provided that:


 


1.3.1                      Landlord
shall deliver possession of the Premises upon the Effective Date of this Lease
specified in the Basic Lease Terms.  If
Landlord has not delivered the Premises to Tenant for any reason whatsoever
within ten (10) days after such Effective Date then, as its sole remedy for
such delay in delivery, Tenant may terminate this Lease by written notice to
Landlord, whereupon any monies previously paid by Tenant to Landlord shall be
reimbursed to Tenant.  Within ten (10)
days after Landlord delivers possession of the Premises to Tenant, Tenant shall
inspect the Premises and deliver to Landlord a written notice of any defects or
non-conforming conditions or failures to comply with law in or of the
Premises.  Landlord may elect in writing,
within five (5) business days following receipt of Tenant’s notice, to correct
any such defects or conditions and, if Landlord so elects, Landlord shall
forthwith undertake to correct the same and shall thereafter diligently
prosecute such correction to completion. 
If Landlord does not elect in writing within the period given to correct
any such defects or conditions, then Landlord shall be deemed to have elected
not to correct the same.  Tenant may,
within an additional five (5) business day period following Landlord’s election
or deemed election not to cure any such defects or conditions, terminate this
Lease by written notice to Landlord, whereupon both parties shall be released and
discharged from any further obligations hereunder.  If Tenant does not elect to terminate this
Lease, then, except for latent defects and items that Landlord has undertaken
to correct pursuant to this Section 1.3.1, Tenant shall be deemed to have
accepted the Premises in their then condition, as  is, with all
faults and defects.  If Landlord
undertakes, in accordance with the foregoing procedure, to correct defects or
conditions that Tenant identifies, and if, due to no fault of Tenant, Landlord
fails to complete such work by the Commencement Date, then this Lease shall not
be void or voidable, and Landlord shall not be responsible or liable for any
claims or damages in connection therewith or by reason thereof, and the Term of
this Lease shall not be modified, but the date on which Base Rent first becomes
due under Section 2 shall be extended one day for each day that Landlord’s
completion of such work is delayed.


 


1.3.2                      Subject
to the conditions stated in this Section 1.3.2, Tenant shall have the option to
extend this Lease for up to that number of additional terms specified in the
summary of Basic Lease Terms preceding this Lease (each, a “Renewal Term”),
each consisting of that number of months also specified in the summary of Basic
Lease Terms preceding this Lease.


 


2





















 


Each
such Renewal Term shall commence the day following expiration of, as
applicable, the initial Term or the preceding Renewal Term, and shall be for a
Base Rent determined pursuant to Section 2.1.2, and otherwise on and subject to
all of the terms and conditions set forth in this Agreement.  Tenant may exercise the option granted hereby
by written notice to Landlord if, but only if, all of the following conditions
are satisfied:


 


(a)                                  Tenant shall have given such notice not less
than 180 days nor more than 240 days before the last day of the initial Term or
Renewal Term to be extended;


 


(b)                                 During the Term preceding delivery of such
notice, Tenant shall not have defaulted in any of its obligations hereunder
beyond applicable notice and cure periods, or Landlord shall, for purposes of
this Section 1.3.2 only, waived the absence of any such default as a condition
precedent to Tenant’s right to exercise the option.


 


(c)                                  At the time that Tenant gives such notice,
and continuing until the first day of the Renewal Term, there shall not exist
hereunder any default of Tenant nor any event or circumstance that, with
notice, the passage of time, or both, could ripen into a default.


 


Subsequent references to the
“Term” of this Lease shall include the Term and the Renewal Term(s), if any,
for which Tenant effectively exercises the foregoing option.


 


2.                                       Rent.  Tenant shall pay Landlord rent
(“Base Rent”), as set forth in this Section 2. 
Base Rent, along with all other sums that become payable by Tenant under
this Lease, whether to Landlord directly, or to a third party for the benefit
of Landlord and the Premises, are referred to herein as “Rent.” All Base Rent
shall be paid in advance on the first day of each month, commencing on November
1, 1999, unless otherwise provided herein. 
All Rent shall be paid in lawful money of the United States to Landlord,
c/o ScanlanKemperBard Companies, 2650 Pacwest Center, 1211 SW Fifth Avenue,
Portland, OR 97204, or at such other place as Landlord shall designate by
written notice to Tenant.  Tenant shall
pay all Rent promptly when due without notice or demand therefor and without
any abatement, deduction or off set, for any reason whatsoever, except as may
be expressly provided in this Lease.  If
the Tenant’s obligation to pay Base Rent does not commence on the first day of
a calendar month, or does not expire on the last day of the calendar month, the
Base Rent payable by Tenant on the first fractional month, or the last fractional
month, as the case may be, shall be prorated for said month.  Base Rent for the first full calendar month
of the Term shall be paid upon execution of this Lease, and Base Rent for any
partial month at the beginning of the Term shall be due on the Commencement
Date.  Tenant acknowledges that Tenant’s
late payment of Rent due Landlord will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such cost being extremely
difficult and impractical to ascertain. 
Therefore, if Landlord does not receive any Rent due from Tenant within
five (5) days of when due, Tenant shall pay to Landlord an additional sum equal
to five percent (5 %) of the overdue amount, which late charge shall be due and
payable on demand.  By their execution of
this Lease, Landlord and Tenant confirm that such late charge represents a fair
and reasonable estimate of the costs that Landlord will incur by reason of any
such late payment, that the late charge is in addition to any and all remedies
available to Landlord and that the assessment and/or collection of the late
charge shall not be deemed a waiver by Landlord of such failure or to any other
default under this Lease.  Additionally,
all such delinquent Rent, plus any late charge, shall bear interest at the rate
of


 


3





















 


fourteen percent (14%) per
annum, or, if lower, the maximum interest rate permitted by law (as applicable,
the “Default Rate”), from the date due until paid.  If any payment of Rent is returned for
insufficient funds, Landlord may require Tenant to pay all future payments by
cashier’s check.


 


2.1                                 Base Rent.  Subject to adjustment as
provided in Section 2.1.1., the monthly Base Rent shall be the amount specified
in the summary of Basic Lease Terms preceding this Lease (the “Base
Rent”).  As of the first day of each
Adjustment Date specified in the summary of Basic Lease Terms preceding this
Lease, Base Rent shall be increased as provided in Section 2.1.1.


 


2.1.1                      Base
Rent Increases.  The Base Rent shall
be increased annually, during the initial Term and any Renewal Term, effective
as of each Adjustment Date specified in the Basic Lease Terms preceding this
Lease, to equal one hundred three percent (103%) of the Base Rent applicable
during the immediately preceding year.


 


2.1.2                      Base
Rent for the first year of any Renewal Term shall be 95% of the then fair
market rental value of the Premises, which fair market value shall be
established by agreement of the parties or, if they cannot agree by 120 days
prior to the commencement date of the Renewal Term, then fair market value
shall be established pursuant to the terms of this Section 2.1.2.  If the parties are not able to agree upon the
then fair market rental value of the Premises on or before the 120th day prior
to the commencement of the Renewal Term, then not later than the 90th day prior
to the commencement of the Renewal Term, each party shall submit to the other a
written final offer setting forth the then fair market rental value of the
Premises.  The written notice of the fair
market rental value shall also be accompanied by a list of three qualified MAI
appraisers, experienced in determining fair market rental values of similar
commercial properties in the City and County, metropolitan area in which the
Premises is located.  Each party shall
have the right to strike one candidate from the list submitted by the other
parry.  The resulting four names shall
then be placed in a vessel and one MAI appraiser shall be selected at
random.  The MAI appraiser so selected
(the “Appraiser”) need not necessarily conduct an appraisal, but rather shall,
using whatever means (including an appraisal) the Appraiser deems reasonable,
select; as between the two final offers submitted by the parties, that final
offer that sets forth a fair market rental value that is closest to the actual
fair market rental value as the same may be determined by the Appraiser using
whatever means (including an appraisal) the Appraiser deems reasonable.  The decision of the Appraiser shall be final
and binding on the parties and 95% of such determined value shall be the Base
Rent for the first year of the Renewal Term. 
The cost of the Appraiser’s fee shall be paid by the party whose final
offer was not selected as the final offer which was closest to the then fair
market rental value.  Once Base Rent is
established for the first year of a Renewal Term, such Base Rent shall be
adjusted for subsequent years of the Renewal Term in accordance with Section
2.1.1.


 


3.                                       Business
Taxes. 
Tenant shall be directly liable for, and shall pay as and when due
throughout the Term, all license and excise fees and occupation taxes covering
the business conducted on the Premises.


 


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4.                                       Property
Taxes.


 


4.1                                 Taxes on Tenant’s
Personal Property.  Tenant shall be liable for and shall pay at
least ten (10) days before delinquency, taxes levied against any personal
property or trade futures placed by Tenant in or about the Premises.  If any such taxes on Tenant’s personal
property or trade fixtures are levied against the Premises, Landlord or
Landlord’s property, or if the assessed value of the Premises is increased by
the inclusion therein of a value placed upon such personal property or trade
fixtures, then Landlord shall have the right to pay the taxes based upon such
increased assessments, regardless of the validity thereof, but only under
proper protest if requested by Tenant in writing.  If Landlord shall so-pay such taxes, then
Tenant shall, upon demand, repay to Landlord the taxes so-levied and paid by
Landlord, or the proportion of such taxes resulting from such increase in the
assessment.  In any such event, Tenant,
shall have the right, at Tenant’s sole cost and expense, in the name of
Landlord and with Landlord’s full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of any such taxes so paid under
protest, any amount so recovered to belong to Tenant.


 


4.2                                 Tenant Improvements.  If
the Tenant Improvements, whether installed and/or paid for by Landlord or
Tenant and whether or not affixed to the real property so as to become a part
thereof, are assessed for real property tax purposes at a valuation higher than
the valuation at which improvements conforming to Landlord’s “building
standard” in other space in the Building are assessed, then the real property
taxes and assessments levied against Landlord or the Premises by reason of such
excess assessed valuation shall be deemed to be property taxes and assessments
levied against personal property of Tenant and shall be governed by the
provisions of Section 3.4.2, above.  If
the records of the county assessor are available and sufficiently detailed to
serve as a basis for determining whether said Leasehold Improvements are assessed
at a higher valuation than Landlord’s “building standard”, such records shall
be binding on both Landlord and Tenant. 
If the records of the county assessor are not available or sufficiently
detailed to serve as a basis for making said determination, the actual costs of
construction shall be used.


 


5.                                       Use.


 


5.1                                 General


 


5.1.1                      Permitted
Uses.  Tenant shall use
and occupy the Premises continuously during the term of this Lease for uses
specified in the summary of Basic Lease Terms preceding this Lease.


 


5.1.2                      Licenses
and Permits.  If any governmental
license or permit, other than a Certificate of Occupancy, shall be required for
the proper and lawful conduct of Tenant’s business in the Premises, Tenant, at
its expense, shall procure, maintain and comply with the terms and conditions
of each such license or permit.  Tenant
shall, at Tenant’s expense, comply with all laws and requirements of public
authorities relating to Tenant’s particular use and occupancy of the Premises
and shall observe the Rules and Regulations as may be adopted pursuant to
Section 5.4 hereof of which Landlord notifies Tenant from time to time for the
safety and general order of the Premises and the Building.


 


5





















 


5.2                                 Negative Covenants as to Use.  Tenant shall
not, without the prior written consent of Landlord, use any apparatus,
machinery or device in or about the Premises that will cause any substantial
noise, vibration, fumes or electronic interference Tenant shall not at any time
use or occupy, or suffer or permit anyone to use or occupy the Premises, or
permit anything to be done in the Premises, in any manner that: (a) violates
the Certificate of Occupancy for the Premises or for the Building; (b) causes
injury to the Premises, or the Building or any equipment, facilities or systems
therein; (c) constitutes a violation of the laws or requirements of any public
authorities or the requirements of insurance bodies; (d) impairs the character,
reputation or appearance of the Building as a first-class office building; (e)
impairs the proper and economic maintenance, operation and repair of the
Building arid/or its equipment, facilities or systems; or (f) unreasonably
annoys or inconveniences other tenants or occupants of the Building.


 


5.3                                 Hazardous Substances.


 


5.3.1                      Tenant
Shall Not Permit Hazardous Substances Upon the Premises, Building or Land.  Tenant will not itself, and will not suffer
or permit its employees, agents, contractors or invitees in or about the
Premises or Building to use, generate, process, store, transport, handle, or
dispose of, on, under, in, or from the Premises, the Building or the Land, any
Hazardous Substances (as that term is defined in Section 5.3.4, below) in
quantities or concentrations that exceed amounts allowed by, or in a manner
that fails to comply with, applicable law.


 


5.3.2                      Notification.  Tenant shall immediately notify Landlord
should Tenant (a) become aware of the existence of any Hazardous Substance on
the Premises, the Building or the Land, (b) receive any notice of, or become
aware of, any actual or alleged violation with respect to the Premises, the
Building or the Land of any federal, state, or local statute, ordinance, rule,
regulation, or other law pertaining to Hazardous Substances, or (c) become
aware of any lien or action with respect to any of the foregoing.  Tenant shall deliver to Landlord, promptly
upon receipt, (i) copies of any documents received from the United States
Environmental Protection Agency (“EPA”) and/or any state, county, or municipal
environmental or health agency concerning Tenant’s ownership, use, or
operations upon or in connection with the Premises; and (ii) copies of any
documents submitted by Tenant to the EPA and/or any state, county, or municipal
environmental or health agency concerning the Premises.


 


5.3.3                      Inspection
and Remedial Action. 
Landlord is hereby authorized to enter the Premises thereon at
reasonable times, and after reasonable notice, for the purpose of inspecting
the Premises, to ascertain Tenant’s compliance with all covenants made in this
Section.  Upon Landlord’s written request
(a) Tenant, through professional engineers approved by Landlord and at Tenant’s
cost, shall thoroughly investigate suspected Hazardous Substances contamination
of the Premises occurring after the Commencement Date, or of the Building or
Land and caused by a breach of Tenant’s covenant at Section 5.3.1, and (b)
Tenant shall forthwith take such remedial action with respect to any such
contamination as may be necessary to ensure that no such Hazardous Substances
are present on the Premises or in the groundwater of the Premises, Building or
Land in quantities or concentrations that exceed amounts allowed by applicable
law.  Tenant’s obligations under this
Section shall arise upon Landlord’s demand as provided herein, regardless of
whether the EPA or any other federal, state, or local agency or governmental
authority has taken or threatened any action in connection with the presence of
any


 


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Hazardous
Substance on, or release of any Hazardous Substance from, the Premises,
Building or the Land.  If Tenant shall
fail promptly to discharge its obligations under this Section, Landlord may, at
its election, but without the obligation to do so, cause such investigation to
be made or remedial action to be taken and/or take any and all other actions
that Landlord may deem necessary or advisable to protect its interests or to
avoid or minimize its liability for the existence of Hazardous Substances on
the Premises, the Building or the Land, or for a release thereof from the
Premises, the Building or Land.  All
amounts expended by Landlord under this Section shall be payable by Tenant to
Landlord upon demand.


 


5.3.4                      Definition
of Hazardous Substance(s). 
The term “Hazardous Substance” shall mean:


 


(a)                                  “Hazardous substances”, as defined by 40 CFR
Part 302;


 


(b)                                 “Extremely hazardous substance”, as defined
by 40 CFR Part 355;


 


(c)                                  “Toxic chemicals”, as defined by 40 CFR Part
372;


 


(d)                                 “Hazardous chemical” as defined by 29 CFR §
1910.120, to the extent it is included in the employer’s written Hazard
Communication Program or in Material Safety Data Sheets that are located on
site;


 


(e)                                  “Hazardous Waste” as defined by applicable
administrative rules;


 


(f)                                    Petroleum, including crude oil and any
fraction thereof; 

and


 


(g)                                 Any material that contains more than 1% of
asbestos.


 


5.3.5                      Power
Interruption.  If there is any
interruption, failure, stoppage or interference of the utilities, services or
access to be furnished by Lessor to the Premises under this Lease or due to the
presence of any Hazardous Substances on or about the Building (except to the
extent released or emitted by Tenant), and such interruption continues for
seven (7) consecutive calendar days, then Tenant shall be entitled to an
equitable abatement of rent to the extent of the interference with Tenant’s use
of the Premises occasioned thereby.  If
the interference persists for more than thirty (30) consecutive calendar days,
then Tenant shall have the right to terminate the Lease.


 


5.3.6                      Survival.  Tenant’s covenants set forth in this Section
5.3 shall survive the termination of the Lease or any transfer by Tenant, by
assignment or otherwise, of any or all right, title, or interest of Tenant in
the Premises.


 


5.4                                 Rules and Regulations.  Tenant and its employees and agents shall
faithfully observe and comply with, and Tenant shall cause its invitees and
licensees to observe and comply with, the rules and regulations attached as
Exhibit D and with such changes therein as


 


7





















 


Landlord may
from time to time make and of which Landlord has notified Tenant (the “Rules
and Regulations”).  Landlord shall not be
liable to Tenant for violation of the Rules and Regulations by any other tenant
or such other tenant’s employees, agents, invitees or licensees.


 


5.5                                 Specialized
Equipment.


 


(a)                                  Subject to the provisions of this Section
5.5, Landlord acknowledges and consents to Tenant’s use and storage on the
Premises of a diesel power generator and specialized batteries for Tenant’s
computers (the “Batteries”), as show in the diagram and structural engineering
report dated June 15, 1999, and attached as Exhibit F (the “Structural
Report”), and to Tenant’s installation and use of the following equipment that
uses electricity in excess of 110 volts: switching, transport and data storage
equipment.  Before installing any such
specialized equipment on the Premises, or any other equipment that does not
constitute standard office equipment normally and routinely used in a typical
business office environment (all of the foregoing are herein referred to as
“Specialized Equipment”), Tenant shall install a separate electric meter and
circuitry to be used for, and to measure the energy consumption of, all such
Specialized Equipment.  Tenant shall take
whatever steps may be necessary (including, without limitation, inspection by a
structural engineer) to confirm that the floor capacity of the Premises is
sufficient to support such and equipment identified in the Structural Report.


 


(b)                                 From and after the date that Tenant installs
a separate meter therefor as part of Tenant’s Initial Tenant Improvements under
Section 7.2.1, Landlord shall provide Tenant nonexclusive access to the 8,000
gallon diesel fuel tank located on the Premises for the purpose making
available to Tenant a back-up supply for the aforementioned diesel power
generator.  Tenant shall pay Landlord,
within ten (10) days following receipt of Landlord’s invoice therefor, the
actual cost (determined in accordance with Landlord’s standard accounting
practices) of any fuel held in such tank that is consumed by Tenant.


 


(c)                                  Tenant may also install, on the roof of the
Building in a location approved by Landlord, cooling systems and an antenna,
used in connection with its business operation. 
Commencing upon installation of the antenna pursuant to this Section
5.5, Tenant shall pay Landlord, together with Tenant’s monthly payment of the
Base Rent, the sum of $300.00, which amount shall be paid on the first day of
each and every successive month for so long as Tenant maintains such antenna on
the roof of the Building.


 


(d)                                 Tenant’s installation of all of the equipment
and items referred to in this Section 5.5 shall be made pursuant to, and in
conformance with, the provisions of this Lease pertaining to the Initial Tenant
Improvements set forth at Section 7.2.1, including, without limitation, the
requirement for obtaining Landlord’s approval of construction drawings.


 


6.                                       Condition
of Premises, Maintenance and Repair.


 


6.1                                 Tenant’s Acceptance.  By taking possession of the Premises on the
Commencement Date, but subject to Section 1.2.1, Tenant shall be deemed to have
accepted the Premises AS IS, and as being in good, sanitary and working order,
condition, and repair.


 


6.2                                 Tenant’s Maintenance Obligations.  Tenant, at its expense, shall be responsible
for maintaining the Premises, the fixtures and improvements in the Premises,
and Tenant’s


 


8





















 


Property
(defined at Section 9.2), except for the maintenance of structural elements of
the Building included in the Premises, lighting, plumbing, mechanical, and
electrical systems which shall be maintained by Landlord.  Tenant, at its expense, shall promptly
replace all scratched, damaged or broken doors and, in and about the Premises
and shall be responsible for all repairs, maintenance and replacement of
millwork, cabinets, wall and floor coverings in the Premises.  Tenant shall be responsible for all repairs,
interior and exterior, structural and non-structural, pertaining to Building
glass or the mechanical and/or utility systems, ordinary and extraordinary, in
and to the Premises and the Building and the facilities and systems thereof,
the need for which arises out of the performance or existence of Tenant
Improvements (defined at Section 7,1); the installation, use or operation of
Tenant’s Property in the Premises; the moving of Tenant’s Property in or out of
the Building; or the act, omission, misuse or neglect of Tenant or any of its
subtenants or its or their employees, agents, contractors or invitees.  Tenant shall promptly report to Landlord any
damage or injury occurring on or to the Premises or the Building.


 


6.3                                 Manner.  Tenant shall promptly make, at Tenant’s
expense, all repairs in or to the Premises and the Building for which Tenant is
responsible.  Such work shall be
performed only by contractors approved by Landlord.  Any such repairs in or to the Building and
the facilities and systems thereof for which Tenant is responsible may, at
Landlord’s election be performed by Landlord at Tenant’s expense, and Landlord
may, at its option before commencing any such work or at any time thereafter,
require Tenant to furnish to Landlord such security, bond or surety in a form
and amount as Landlord shall reasonably deem necessary to assure the payment
for such work by Tenant.


 


6.4                                 Janitorial Services.  Except as provided below in this Section 6.4,
Landlord shall provide routine janitorial services to the Building and the
Premises of a standard that is substantially equivalent to the services
provided in similar buildings in the Washoe County, Nevada metropolitan area,
and in accordance with the Standards for Utilities and Services attached as
Exhibit E.  Such services shall be
provided at Landlord’s cost and expense. 
Tenant shall provide janitorial service to that portion of the Premises
located on the second floor of the Building, and Landlord shall have no
responsibility for performing or for the cost of such services.


 


6.5                                 Landlord’s Maintenance and Repair Obligations.  Landlord shall cause to be made all
structural repairs to the Building including, without limitation, the roof,
structural walls and foundations of the Building as and when needed in or about
the Premises, except for those repairs for which Tenant is responsible pursuant
to any of the provisions of this Lease. 
In addition, subject to other provisions of this Lease, including
Sections 15 and 16, Landlord shall perform, and/or construct, and Tenant shall
have no responsibility to perform or construct, any repair, maintenance or
improvements (a) necessitated by the acts or omissions of Landlord, or any
other occupant of the Building, or their respective agents, employees or
contractors, (b) occasioned by fire or other casualty, or by the exercise of
the power of eminent domain, (c) required as a consequence of any violation of
any laws not caused by Tenant’s specific use of the Premises, (d) to the
lighting, plumbing, mechanical and electrical systems and the structural
elements of the Building, (e) to the exterior glass of the Premises and the
Building, and (f) to any portion of the Building outside of the demising walls
of the Premises.


 


9





















 


6.6                                 Waiver.  Landlord shall have no liability to Tenant,
nor shall Tenant’s covenants and obligations under this Lease be reduced or
abated in any manner whatsoever, by reason of any inconvenience, annoyance,
interruption of or injury to Tenant’s business arising from Landlord’s making
any repairs or changes that Landlord is required or permitted by this Lease or
required by law to make in or to any portion of the Building or the Premises,
or in or to the fixtures, equipment or appurtenances of the Building or the
Premises, but Landlord shall endeavor in good faith to minimize disruption to
Tenant’s business in such event. 
Landlord shall have no liability to Tenant nor shall Tenant’s covenants
and obligations under this Lease be reduced or abated in any manner whatsoever,
by reason of any act or failure to act of any security personnel or mechanism
used in the Building, or by reason of any lack of security in the Building.


 


6.7                                 End of Term.  Upon termination of this Lease for any reason
whatsoever Tenant will peacefully surrender to Landlord the entire Premises,
together, subject to the provisions of Section 7.5, with all improvements,
changes, alterations and replacements thereto or to the Building or Land, in
good order, condition and repair, but in any event with all windows, walls,
floors, and carpets cleaned, all equipment in good working order, and the
Premises restored to their original condition as of the Commencement Date,
ordinary wear and tear excepted.  Upon such
termination, Tenant shall have the right to remove Tenant’s Property, as
provided at Section 9.2.


 


7.                                       Tenant
Alterations.


 


7.1                                 Landlord’s Consent.  Tenant shall make no alterations, additions,
or improvements in or to the Premises, the Building or the real property
appurtenant thereto (herein, “Tenant Improvements”) without Landlord’s prior
written consent, to be granted or withheld pursuant to Sections 7.2 and 7.3
below, and, if such consent is granted, then only contractors or mechanics that
are approved by Landlord shall effect such Tenant Improvements.


 


7.2                                 Procedure for Approval.  If Tenant
wishes to make any Tenant Improvements to the Premises that either (a) are of a
structural nature, or (b) involve a cost greater than $2,500, (c) involve the
roof, foundation, exterior walls or interior load- bearing walls of the
Building, or (d) are made pursuant to Section 7.2.1 or pursuant to Section
11.2, below, Tenant shall submit to Landlord, for Landlord’s written approval,
a written description of the Major Work that Tenant proposes to perform together
with detailed plans and specifications for such Major Work.   If Tenant wishes to make any alterations,
additions, or improvements to the Premises that do not constitute Major Work,
Tenant shall submit to Landlord, for Landlord’s written approval, a written
description of such work.  Reference
herein to “structural work” or “work of a structural nature” shall have the
meaning that such terms normally connote in the construction industry.  By way of example, alteration of interior
non-load bearing walls and partitions, alteration of ceilings, installation of
wall coverings, painting, installation of rugs, and similar work shall not be
deemed to constitute structural work; alteration to any exterior wall, load
bearing wall, roof, plumbing system, heating, ventilation, and air conditioning
system or similar work shall be deemed to be of a structural nature.


 


7.2.1                      Initial
Tenant Improvements. 
Landlord hereby consents to the Tenant Improvements (some of which will
be made outside of the Premises) described in Exhibit C (the


 


10





















 


“Initial
Tenant Improvements”), which include the installation of the Specialized
Equipment and other items described in Section 5.5, and the installation on the
Land, in a location approved by Landlord, of a primary diesel fuel tank to
supply Tenant’s diesel generator described in Section 5.5.  Landlord shall afford Tenant an allowance for
the Initial Tenant Improvements in the amount of $137,606.00, as more
particularly provided in Section 7.2.2 (the “TI Allowance”).  Landlord shall be responsible for, and Tenant
shall not be required to perform or to apply the TI Allowance to, any of the
following:


 


(a)                                  The removal of Hazardous Substances from the
Premises existing thereon or therein on and as of the Effective Date; or


 


(b)                                 Work necessary to bring the Premises into
compliance with applicable laws, regulations and ordinances, including, without
limitation, the Americans with Disability Act, unless such compliance is made
necessary by Tenant’s specific use of the Premises.


 


Tenant shall prepare and
deliver to Landlord, for its review and approval, construction drawings and
specifications for the Initial Tenant Improvements (on the form approved by
Landlord pursuant to this Section 7.2.1, the “Approved Plans”).  Landlord shall not unreasonably withhold or
delay it approval thereof, provided that the same conform to the description of
the Initial Tenant Improvements set forth in Exhibit C, and meet the criteria
specified at clauses (a), (c) and (d), of Section 7.3.


 


7.2.2                      Landlord’s
Obligation and TI Allowance. 
In connection with Tenant’s design and installation of the Initial
Tenant Improvements, Landlord, at its sole cost and expense, shall cause the
Premises to have dedicated electrical power service of 480 volt, 3-phase power
of 800 amps.  Upon completion of the
Initial Tenant Improvements in conformance with the Approved Plans, issuance of
a certificate of occupancy for the Premises, and Tenant’s delivery of its
certification to Landlord that the Initial Tenant Improvements have been
completed in accordance with the Approved Plans, Landlord shall pay the TI
Allowance directly to Tenant’s general contractor performing the Initial Tenant
Improvements construction work.


 


7.3                                 Standard for Approval.  Landlord’s approval of proposed work shall
not be unreasonably withheld or delayed if such work (a) does not adversely
affect, in Landlord’s judgment, the appearance of the Premises and/or Building
or the value of the Premises and/or Building, (b) does not adversely affect, in
Landlord’s judgment, Landlord’s ability to release the Premises, (c) does not
affect the structural integrity of the Building or its systems, (d) conforms to
the requirements of all building codes and any other applicable laws and
regulations, and (e) can be performed and completed without disrupting the
business or operation of the Building or of any other tenant of the
Building.  Tenant’s failure to obtain
Landlord’s prior written consent to any proposed work shall constitute an Event
of Default hereunder.


 


7.4                                 Compliance with Laws.  All work done by Tenant shall be performed in
full compliance with all laws, rules, orders and ordinances.  Without limiting the generality of the
foregoing:  (a) Tenant, at its expense,
shall obtain all necessary governmental permits and certificates for the
commencement and prosecution of Tenant Improvements and for final approval
thereof upon completion, and shall cause the Tenant Improvements work to be


 


11





















 


performed in
compliance with all such permits and certificates, applicable laws and
requirements of public authorities and with all applicable requirements of
insurance, and (b) Tenant shall be responsible for assuring that the Premises
complies with any and all requirements of the Americans with Disabilities Act
and any other Federal, state or local governmental agency requirements relating
to Tenant’s specific use of the Premises or Tenant’s business operation.  Landlord’s approval or consent to any
proposed work shall not be deemed a waiver of, or an opinion respecting, the
compliance of the proposed work with the requirements of this Section 7.4.


 


7.5                                 Title to Improvements.  All Tenant
Improvements upon the Premises, including (without limiting the generality of
the foregoing) all wall covering, built-in cabinet work, paneling, and the like
shall, unless Landlord elects otherwise in writing, be the property of
Landlord, and shall remain upon and be surrendered with the Premises as a part thereof
at expiration or earlier termination of this Lease, except that Landlord may,
by written notice to Tenant, require Tenant, at Tenant’s cost, (a) to remove
any or all Tenant Improvements, and (b) to repair all damage resulting from
such removal.  If Tenant fails to perform
the foregoing, Tenant shall pay to Landlord all costs arising from Landlord’s
performance of the same, which shall be due and payable upon Landlord’s demand.


 


7.6                                 Schedule/Manner of Work.  All of
Tenant’s contractors, suppliers, workmen, and mechanics for any Tenant
Improvements shall comply with such rules and conditions as Landlord may
reasonably impose from time to time, which rules and conditions shall be
enforced by Tenant at the discretion of Landlord.  At any time any contractor, supplier,
workman, or mechanic performing construction of any Tenant Improvements
performs any work that may or does impair the quality, integrity, or
performance of any portion of the Building, Tenant shall cause such contractor,
supplier, workman, or mechanic to leave the Building and remove all his tools,
equipment, and materials immediately upon written notice delivered to Tenant
and Tenant shall reimburse Landlord for any repairs or corrections of any
portion of the building caused by or resulting from the work of any contractor,
supplier, workman, or mechanic performing any Tenant Improvements work.  The quality of all Tenant Improvements to or
involving structural, electrical, mechanical, life/safety, energy management,
or plumbing systems in the Premises shall be at least equal to the quality of
such systems as on the Commencement Date.


 


7.7                                 Debris.  Tenant will cause construction of any Tenant
Improvements to be accomplished in a neat, clean, and workmanlike manner.  Tenant shall not permit any trash, rubbish,
or debris to accumulate in the Premises or the Building, and Tenant shall
remove or cause to be removed all such trash, rubbish, and debris from the
Premises and the Building and on a timely basis.  Tenant shall be responsible for any additional
costs incurred by Landlord for cleaning the Building or any portion thereof,
and for removing any trash, rubbish, or debris therefrom to the extent caused
by Tenant’s construction of the Tenant Improvements.


 


7.8                                 Right of Entry/Inspection.  At all times
during the period of construction of any portion of any Tenant Improvements,
Landlord and Landlord’s architects and engineers shall have the right to enter
upon the Premises to inspect the work of construction and the progress thereof.  Tenant shall not close any work affecting any
portion of the life safety, heating, ventilation, and air conditioning,
plumbing, or electrical systems in the Premises or building until the same has
been inspected and approved by Landlord’s engineers.  No inspection or approval


 


12





















 


by Landlord’s
engineers of any such work shall constitute an endorsement thereof or any
representation as to the adequacy thereof for any purpose or the conformance
thereof with any governmental ordinances, codes, or regulations, and Tenant
shall be fully responsible and liable therefor.


 


7.9                                 Insurance.  In addition to the insurance requirements set
forth in Section 8, during the period of construction of any Tenant
Improvements, Tenant and Tenant’s general contractor shall maintain worker’s
compensation, builder’s all-risk and public liability insurance, and such other
insurance as Landlord may reasonably require in amounts satisfactory to
Landlord.  All policies shall have such
coverage limits, and be underwritten by such companies, as Landlord shall
approve, and shall name Landlord as an additional insured thereunder.  Before the commencement of construction of
any Tenant Improvements, Tenant and Tenant’s general contractor must deliver
certificates of all such insurance policies and such insurance policies must be
approved by Landlord.


 


7.10                           Non-Responsibility of Landlord.  Tenant hereby acknowledges that Landlord
shall have no responsibility whatsoever for the construction of any Tenant
Improvements or for any defects therein. 
Tenant shall notify Landlord in writing no less than ten (10) days
before the commencement of construction of any Tenant Improvements in order to
afford Landlord an opportunity to post and record appropriate notices of non-responsibility.  Tenant, at its expense, shall procure the
cancellation or discharge of all notices of violation arising from or other
connected with Tenant Improvements work, or any other work, labor, services or
materials done for or supplied to Tenant, or any other person claiming through
or under Tenant, in or about the Premises or Building.  Tenant shall defend, indemnify and save
harmless Landlord and any mortgagee from and against any and all mechanics and
other liens and encumbrances filed in connection with the Tenant Improvements
work, or any other work, labor, services or materials done for or supplied to
Tenant, or any person claiming through or under Tenant, in or about the
Premises or Building.  Tenant, at its
expense, shall procure the satisfaction or discharge of record of all such
liens and encumbrances of record within fifteen (15) days after the filing
thereof; provided, Tenant may contest, in good faith and at its own expense,
any notice of violation, or lien, provided Tenant posts for the protection of
Landlord security in an amount and form acceptable to Landlord.


 


8.                                       Liability
and Insurance.


 


8.1                                 Action by Tenant.  Further to Section 5.2, Tenant shall not do,
or permit anything to be done, or keep or permit anything to be kept in the
Premises that would subject Landlord to any liability or responsibility for
personal injury, death or property damage, or that would increase insurance
rates in respect of the Land, Building or the property therein over the rates
that would otherwise then be in effect or that would result in insurance
companies of good standing refusing to insure the Building or the property
therein in amounts satisfactory to Landlord, or that would result in the
cancellation of or the assertion of any defense by the insurer in whole or in
part to claims under any policy of insurance in respect of the Land, Building
or the property therein.  If, by reason
of any failure of Tenant to comply with the provisions of Section 5 or this
Section 8.1, the premiums on Landlord’s insurance on the Building and/or
property therein shall be higher than they otherwise would be, Tenant shall
reimburse Landlord, on demand, for that part of such premiums attributable to
such failure on the part of Tenant.


 


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8.2                                 Landlord’s Insurance.  Landlord
shall procure and maintain at all times during the Term of this Lease a policy
or policies of insurance covering loss or damage to the Building in the amount
of the full replacement value thereof (exclusive of Tenant’s trade fixtures,
non-standard tenant improvements, equipment and personal property), providing
protection against all perils included within the classification of fire,
extended coverage, all risk of loss as it relates to the standard insuring clause,
loss of rental income, Landlord’s risk liability coverage, and to the extent
any mortgagee of the Building may require or as Landlord may deem prudent,
coverage against such other hazards that are then commonly insured against for
similar properties.  Such insurance shall
provide for payment of loss thereunder to Landlord and/or the holder of any
mortgages or deeds of trust or real estate contracts on the Land and/or
Building.


 


8.3                                 Waiver of
Subrogation.  Landlord and Tenant hereby release each other
and their respective agents, employees, successors and assigns from all
liability for damage to any property that is actually covered by property
insurance in force or that would normally be covered by full replacement “all
risk” property insurance, without regard to the negligence or willful
misconduct of the entity so released. 
Each party shall cause each such insurance policy it obtains to include
a waiver of subrogation regarding the liabilities released hereby.  All of the Landlord and Tenant’s repair and
indemnity obligations under this Lease shall be subject to the waiver contained
in this Section 8.3.  The waiver of
subrogation shall extend to Landlord or Tenant, as applicable, and the agents
and employees of each.


 


8.4                                 Public Liability Insurance.  Tenant,
at its expense, shall procure and maintain at all times during the Term and at
anytime prior to the Term that Tenant is given possession of the Premises,
public liability insurance in respect of the Premises and the conduct or
operation of business therein, with Landlord, Landlord’s Operating Manager and
Landlord’s managing agent, if any, and any mortgagee whose name and address
shall previously have been furnished to Tenant, as additional named insureds,
with limits of not less than $1,000,000 for bodily injury or death to any one
person and $3,000,000 for bodily injury or death to any number of persons in
any one occurrence, and $1,000,000 for property damage.  All such insurance shall insure the
performance by Tenant of the indemnity agreement as to liability for injury to,
illness of, or death of persons and damage to property set forth in Section
17.2.


 


8.5                                 Tenant’s
Fire and All Risk Coverage Insurance.  Tenant shall also at its own
expense maintain, during the Term, and at any time prior to the Term that
Tenant is given possession of the Premises, insurance covering its furniture,
fixtures, equipment, and inventory in an amount equal to not less than one
hundred percent (100%) of the full replacement value thereof and insuring
against fire and all risk perils coverage as provided by a standard all risk
coverage endorsement and the plate glass and all other glass is the
responsibility of the Tenant in the event of breakage from any cause.


 


8.6                                 Insurance
Policies.  All insurance policies required to be carried
by Tenant hereunder shall name Landlord as additional insured and shall be with
companies and with loss-payable clauses satisfactory to Landlord, and certified
copies or originals of policies or certificates evidencing such insurance shall
be delivered to Landlord by Tenant prior to Tenant commencing occupancy and
thereafter within thirty (30) days prior to each renewal thereof.  Such certificate shall be from a company
holding a “Best’s Rating” of at least A: 
Class IX, shall indicate that the insurance policy is in full force and
effect, and that the policy bears an


 


14





















 


endorsement that the same not be canceled or amended unless thirty (30)
days prior written notice by U.S. Certified Mail of the proposed cancellation
or amendment has been given to Landlord and any mortgagee of which Landlord has
given Tenant notice prior to the date of such certificate.  Each of said certificates of insurance and
each such policy of insurance required to be maintained by Tenant hereunder
shall expressly evidence insurance coverage as required by the Lease.  All such policies shall be written as primary
policies not contributing with and not in excess of coverage which Landlord may
carry.


 


8.7                                 Increase Policies.  From
and after the fifth (5th) anniversary of the Commencement Date,
Landlord may from time to time require that the amount of public liability
insurance to be maintained by Tenant under Section 7.4 be increased to an
amount determined by Landlord to be necessary to adequately protect Landlord’s
interest.  Upon receipt of Tenant of a
notice from Landlord stating the increased amount of insurance, Tenant shall
thereafter carry the insurance as set forth in such notice.  In no event shall the amount of public liability
insurance to be carried by Tenant be less than the amount specified in Section
7.4, or be greater than the coverage required to be carried from time to time
by new tenants of the Building.


 


9.                                       Landlord’s
Property Tenant’s Property


 


9.1                                 Landlord’s Property.  All
fixtures, equipment, improvements and appurtenances attached to or built into
the Premises, whether or not by or at the expense of Tenant, shall be and
remain a part of the Premises, shall be deemed the property of Landlord and
shall not be removed by Tenant, except as provided in Section 7.5.  Any carpeting or other personal property in
the Premises on the Commencement Date shall be and remain Landlord’s property
and shall not be removed by Tenant; provided, that at Landlord’s written
request, Tenant shall, at its sole expense upon termination of the Lease and in
accordance with, and subject to the provisions of, Section 7.5, remove those
items specified by Landlord, including any or all fixtures, equipment,
improvements, appurtenances and other personal property, that are deemed herein
the property of Landlord.


 


9.2                                 Tenant’s Property.  Notwithstanding
any provision to the contrary in Section 9.1, all business and trade fixtures,
machinery and equipment, communications equipment and office equipment that are
installed in the Premises, the Building or Land by or for the account of Tenant
without expense to Landlord and that can be removed without structural damage
to the Building and all furniture, furnishings (excluding window coverings) and
other articles of movable personal property owned by Tenant and located in the
Premises (together, the “Tenant’s Property”) shall be and remain the property
of Tenant and may be removed by Tenant at any time during the term of this
Lease; provided, that if any of Tenant’s Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Premises, the Building
and/or the Land resulting from the installation and/or removal thereof.  Any equipment or other property for which
Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense
to Landlord, shall not be considered Tenant’s Property, and shall be deemed to
be the property of Landlord.


 


9.3                                 Removal.  At
or before the Expiration Date of this Lease, or any earlier termination of this
Lease, Tenant, at its expense, shall remove from the Premises all of Tenant’s
Property (except, at Tenant’s option, such items thereof as Landlord shall have
expressly


 


15





















 


permitted to remain, which property shall become the property of
Landlord), and Tenant shall repair any damage to the Premises or the Building
resulting from any installation and/or removal of Tenant’s Property.


 


9.4                                 Abandonment.  In
addition to Landlord’s rights at Section 18.2.1, any items of Tenant’s Property
that shall remain in the Premises after the Expiration Date of this Lease, or
any earlier termination of this Lease, at the option of Landlord, may, at
Landlord’s election, be deemed to have been abandoned, and in such case such
items may be retained by Landlord, and Landlord may deal with Tenant’s Property
in such manner as Landlord shall determine, at Tenant’s expense.


 


10.                                 Holding
Over.  If
Tenant holds over after the Expiration Date or earlier termination of the Term
without the express written consent of Landlord, Tenant shall become a tenant
at sufferance only, at a rental rate equal to two hundred percent (200%) of the
Base Rent in effect upon the date of such expiration or termination (prorated
on the basis of a thirty-day month and actual days elapsed), and otherwise
subject to the terms, covenants, and conditions herein specified, so far as
applicable.  Acceptance by Landlord of
rental after such expiration or earlier termination shall not result in a
renewal or extension of this Lease.  The
foregoing provisions of this Section 10 are in addition to and do not affect
Landlords’ right of re-entry or any rights of Landlord hereunder or as otherwise
provided by law.


 


11.                                 Electric
Energy


 


11.1                           High Voltage Equipment.  Tenant
shall not, without the prior written consent of Landlord, use any equipment,
machine, apparatus or device within the Premises, such as data processing
units, punch card machines or any other specialty equipment, that individually
uses electricity in excess of 110 volts.


 


11.2                           Cost of Increasing Capacity.  The
Initial Tenant Improvements include installation of a separate electric meter
for all Specialized Equipment used in the Premises.  Should Landlord consent to installation of
equipment or a design load for the Premises in excess of that permitted to be
installed as a part of the Initial Tenant Improvements under Section 7.2.1, the
additional equipment required to increase the capacity for Tenant’s excess
equipment or design load shall, subject to obtaining Landlord’s approval
thereof pursuant to Section 7.2, be provided by Tenant.  Tenant shall pay the cost to purchase,
install, service and maintain such additional equipment.  Tenant shall reimburse Landlord, on demand,
for the cost of all electric energy separately metered to the Premises, as
contemplated above and at Section 5.5.


 


11.3                           Light Fixtures.  Landlord shall attend to any
replacement of electric light bulbs, tubes and ballasts in the Premises
throughout the term of this Lease. 
Landlord may adopt a system of relamping and reballasting periodically
on a group basis in accordance with generally accepted management practice.


 


12.                                 Climate Control.  Landlord
shall maintain and operate the heating, ventilating and air-conditioning
systems serving the Premises and shall furnish heat, ventilating and
air-conditioning in the Premises (except as otherwise provided in the Standards
for Utilities and Services attached as Exhibit E or elsewhere in this Lease)
for occupancy of the Premises during Business Hours of


 


16





















 


Business Days.  As used herein,
and unless otherwise stated in the Rules and Regulations “Business Hours” shall
mean generally customary daytime business hours, but not before 8:00 a.m. or
after 6:00 p.m. on weekdays and not before 8:00 a.m. or after 1:00 p.m. on
Saturdays, and “Business Days” shall mean all days except Sundays, and days
observed by the Federal or the State government as legal holidays.  If Tenant shall require heat or
air-conditioning service at any other time, Landlord shall furnish such service
subject to such terms and conditions including cost reimbursement, as Landlord
may from time to time prescribe in the Rules and Regulations.


 


13.                                 Signs, Displays,
Auctions, and Sales.


 


13.1                           General.  Tenant
shall not place or suffer to be placed on the exterior walls or windows of the
Premises or upon the roof or any exterior door or wall or on the exterior or
interior of any window thereof any sign, awning, canopy, marquee, advertising
matter, decoration, picture, letter or other thing of any kind without the
prior written consent of Landlord. 
Landlord and Tenant acknowledge that Landlord has, by a separate letter
dated on or about the date of this Lease, consented to Tenant’s placement of
signs in the exterior of the Building, subject however, to the provisions of
such letter.  If Tenant shall install any
sign without Landlord’s consent, Landlord shall have the right and authority
without liability to Tenant to enter upon the Premises, remove and store the
subject sign and repair at Tenant’s cost all damage caused by the removal of
the sign.


 


13.2                           Tenant’s
Interior Signs.  Tenant shall have the right, at its sole cost
and expense, to erect and maintain within the interior of the Premises all
signs and advertising matter customary or appropriate in the conduct of
Tenant’s business; provided, however, that Tenant shall upon demand of Landlord
immediately remove any sign, advertisement, decoration, lettering or notice
which Tenant has placed or permitted to be placed in, upon or about the
Premises and that Landlord reasonably deems objectionable or offensive, and if
Tenant fails or refuses to so do, Landlord may enter upon the Premises and
remove
the same at Tenant’s cost and expense. 
In this connection, Tenant acknowledges that the Premises are a part of
an integrated business environment, and that control of all signs by Landlord
is essential to the maintenance of uniformity, propriety and the aesthetic
values in or pertaining to the Building.


 


13.3                           Displays.  Tenant
may not display or sell merchandise or allow carts or other similar devices
within the control of Tenant to be stored or to remain outside the defined demising
walls and permanent doorways of the Premises. 
Tenant shall not install any exterior lighting, amplifiers, or similar
devices or use in or about the Premises such items as flashing lights,
searchlights, loudspeakers, phonographs or radio broadcasts, nor make, or allow
to be made, any odor or excessive noise in or around the Premises.  No advertisement or sound of advertising
shall be permitted to be heard outside of the Premises.


 


13.4                           Auctions.  Tenant
shall not conduct or permit to be conducted any sale by auction upon or from
the Premises, whether said auction be voluntary, involuntary, pursuant to any
assignment for the payment of creditors or pursuant to any bankruptcy or other
insolvency proceeding.  No auction, fire,
bankruptcy, “going out of business” or other distress sales of any nature may
be conducted on the Premises without prior written consent of Landlord, which
consent may be conditioned as Landlord deems appropriate.


 


17





















 


14.                                 Access and
Control of Premises.


 


14.1                           Access to Premises.  Landlord
shall have access to the Premises upon 24-hours prior notice (except in an
emergency, when no notice shall be required) to: (a) inspect the Premises; (b)
exhibit the Premises to prospective purchasers, lenders or tenants (during the
last 180 days of the Term); (c) determine whether Tenant is complying with its
obligations hereunder; (d) supply any service to be provided by Landlord to
Tenant hereunder; (e) post notices of non-responsibility; (f) make repairs
required of Landlord hereunder or repairs to any adjoining space or utility
services or make repairs, alterations or improvements to any other portion of
the Building, provided, however, that all such work shall be done in a
commercially reasonable and prompt manner, or (g) exercise any of its rights
hereunder including, without limitation, its cure rights under Section
17.1.  Landlord may, in order to carry
out the purposes stated at clauses (a) through (g) above, erect scaffolding and
other necessary structures where reasonably required by the character of the
work to be performed, and during the course of work being performed keep and
store upon the Premises all necessary material, supplies, and equipment,
provided that the business of Tenant shall be interfered with as little as is
reasonably practicable.  For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises (including the
portion thereof on the second floor of the Building), excluding Tenant’s vaults
and safes, if any.  Except for locks
called for by the Initial Tenant Improvements (for which Tenant shall provide
keys and security codes to Landlord as required by the preceding sentence), no
additional locks shall be placed by Tenant upon any doors in the Premises and
if more than two keys for any lock are desired, such additional keys shall be
paid for by Tenant.  Except for locks
called for by the Initial Tenant Improvements, all keys shall be duplicated
only by Landlord, and under no circumstance shall Tenant cause any key to be
duplicated.  Landlord shall have the
right to use any and all means which Landlord may deem proper to open said
doors in an emergency or in re-taking possession in order to obtain entry to
the Premises, and any entry to the Premises obtained by Landlord by any of said
means, or otherwise, shall not under any circumstance be construed or deemed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction
of Tenant from the Premises or any portion thereof, and any damages caused on
account thereof shall be paid by Tenant.


 


14.2                           Waiver in
Connection with Landlord’s Entry.  Tenant hereby waives any claim
against Landlord for damages for any injury or inconvenience to or interference
with
Tenant’s business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by entry on the Premises in accordance with any
provision of this Lease except to the extent caused by the negligence or
intentional misconduct of Landlord.


 


14.3                           Building
Changes.  Landlord reserves the right, at any time,
without incurring any liability by Tenant therefor, and without affecting or
reducing any of Tenant’s covenants and obligations hereunder, to make such
changes, alterations and improvements in or to the Building and the fixtures
and equipment thereof, as well as in or to the doors, halls, passages,
elevators, escalators and stairways thereof, and other public parts and common
areas of the Building and Land, as Landlord shall reasonably deem necessary or
desirable, including the temporary or permanent closure or inoperability.  Landlord reserves the right, and Tenant shall
permit Landlord, to install, erect, use and maintain pipes, ducts and conduits in
and through the


 


18





















 


Premises, so long as the installation and maintenance thereof do not
detract from the use or appearance of the Premises.


 


15.                                 Damage or
Destruction.


 


15.1                           Rights and
Obligations.


 


15.1.1                Obligation
to Rebuild.  If rentable area of
the Building, or any portion thereof, is damaged, destroyed, or rendered
untenantable due to fire or other casualty (which is not due to the fault or
negligence of Tenant or its agents, employees, or invitees and is not due
to-any default by Tenant), and if


 


(a)                                  the damage or destruction does not exceed
twenty-five percent (25%) of the insurable value of the Building,


 


(b)                                 the Building is capable of being repaired,
reconstructed or restored within a period of two hundred seventy (270) days
from the date of the damage or destruction, and


 


(c)                                  Landlord will receive insurance proceeds
sufficient to cover the cost of such repairs, reconstruction or restoration,


 


then, subject to Tenant’s
termination right stated in the next succeeding sentence, Landlord shall be
obligated to restore the Building to a condition reasonable comparable to its
condition prior to such casualty; provided, that clause (c), above will not be
a condition to Landlord’s restoration obligation hereunder if the
unavailability of insurance proceeds is attributable to Landlord’s failure to
perform its obligation to carry insurance under Section 8.2, or because a
mortgagee of Landlord has obtained and retained the proceeds thereof due to a
default by Landlord in its obligation to such mortgagee.  If, under the circumstances stated in this
Section 15.1.1, Landlord is obligated to restore the Building, or if under
Section 15.1.2 Landlord elects to restore the Building, but if such restoration
cannot be completed within two hundred seventy (270) days following the
casualty necessitating such restoration, then (provided the casualty is not due
to the fault or negligence of Tenant, or its agents, employees or invitees, or
to a default of Tenant), Tenant shall have the option to terminate this Lease,
which option Tenant must exercise by notice in writing to Landlord given within
thirty (30) days following the date of such casualty.  If Landlord is obligated to restore the
Building as set forth above, and except as stated in the preceding sentence,
this Lease shall remain in full force and effect, Rent shall be adjusted
pursuant to Section 15.2, Landlord will commence restoring that portion of the
Building so damaged as soon as commercially practicable, and will diligently
complete the restoration.


 


15.1.2                Right
to Terminate.  In the case of a
casualty loss not described in Section 15.1.1, then within 60 days after such a
casualty Landlord shall have the right to elect either to terminate this Lease
or to restore the Building.  Landlord
shall make its election by written notice to Tenant within such 60 day period
of time.  If Landlord elects to terminate
this Lease, the termination shall be effective 30 days after receipt of the
notice by Tenant.  If Landlord does not
elect to terminate this Lease, then, subject to Tenant’s right of termination
stated in Section 15.1.1, Rent shall be abated in accordance with Section 15.2
and Landlord shall restore the Building in accordance with the requirements of
Section 15.1.1.


 


19





















 


15.1.3                Tenant’s
Property.  If Landlord
undertakes to repair the Building after an event of casualty, such restoration
shall not include replacement of furniture, equipment or other items designated
as Tenant’s Property herein.


 


15.1.4                Late
Term Casualty.  Regardless of
Sections 15.1.1 and 15.1.2, if the casualty, loss occurs within the last two
(2) years of the Term, then, regardless of the extent of the damage, Section
15.1.2 shall establish the rights and obligations of Landlord and Tenant.  In determining whether a casualty loss occurs
during the last two (2) years of the Term, notwithstanding the notice periods
specified in Section 1.3.2, Tenant shall be entitled, within thirty (30) days
following any such casualty, to exercise any renewal option that may exist
under Section 1.3.2, and the applicable Renewal Term shall be included in
making such determination.


 


15.2                           Rent
Abatement.  If
all or part of the Premises shall be damaged or destroyed or rendered
untenantable as a result of fire or other casualty, not caused by Tenant, its
agents, employees or invitees, the Base Rent shall be abated or reduced based
on the number of square feet of space rendered untenantable and Additional Rent
provided herein shall be abated or reduced, as the case may be, in the
proportion that the untenantable area of the Premises bears to the total area
of the Premises, for the period from the date of the damage or destruction to
the date the damage to the Premises shall be substantially repaired, or the
date on which Tenant again uses the untenantable portion, whichever first
occurs.


 


15.3                           Interference
with Tenant’s Business.  Tenant shall not be entitled to terminate
this Lease and no damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Building pursuant to this
Section 15.


 


15.4                           Insurance
on Tenant’s Property.  Landlord will not carry insurance of any kind
on Tenant’s Property, and, except as provided by law or by reason of Landlord’s
breach of any of its obligations under this Lease, Landlord shall not be
obligated to repair an damage to or replace any improvements paid for by
Tenant, or any of Tenant’s Property.


 


16.                                 Eminent
Domain.


 


16.1                           Total Condemnation.  If
the whole of the Building or the Premises shall be taken by condemnation or in
any other manner for any public or quasi-public use or purpose, (including a
sale under threat of condemnation) this Lease shall terminate as of the date of
vesting of title on such taking (herein called “Date of Taking”), and the Base
Rent and Additional Rent shall be prorated and adjusted as Date of Taking.


 


16.2                           Partial
Condemnation.  If a part of the Building or the
Land shall be so taken, this Lease shall be unaffected by such taking, except
that:


 


16.2.1                Landlord’s
Option to Terminate. 
If a material portion of the Building or Land is so taken, Landlord may,
at its option, terminate this Lease by giving Tenant notice to that effect
within ninety (90) days after the Date of Taking, provided Landlord terminates
the leases of all other similarly situated tenants in the Building; and


 


20





















 


16.2.2                Tenant’s
Option to Terminate. 
If twenty percent (20%) or more of the Premises shall be so taken and
the remaining area of the Premises shall not be reasonably sufficient for
Tenant to continue feasible operation of its business, Tenant may terminate
this Lease by giving Landlord notice to that effect within ninety (90) days
after the Date of Taking.


 


16.3                           Effect of
Termination or Continuation.  This Lease shall terminate on the date that
such notice from the Landlord or Tenant to the other shall be given, and the Base
Rent and Additional Rent shall be prorated and adjusted as of such termination
date.  Upon a partial taking this Lease
shall continue in force as to the remaining part of the Premises, and the Base
Rent and Additional Rent shall be adjusted according to the rentable Area
remaining.


 


16.4                           Award.  Landlord shall be entitled to
receive the entire award or payment in connection with any taking without
deduction therefrom for any estate vested in Tenant by this Lease and Tenant
shall receive no part of such award. 
Tenant shall have no claim against Landlord or the condemning authority
for the unexpired portion of the Lease term. 
Nothing contained in this Section 16.4 shall be deemed to prevent Tenant
from making a claim in any condemnation proceeding for moving expenses, loss of
good will, the unamortized portion of improvements paid for by Tenant and the
value of any fixtures, equipment or furnishings installed by Tenant at its sole
expense and which are included in the taking.


 


16.5                           Temporary
Taking.  A temporary taking (or transfer in lieu
thereof) of any portion of the Premises by any authorized authority shall not
cause a termination of this Lease, but Tenant shall be entitled to a rent
reduction or abatement during the period its possession is interfered with
because of any such taking of the Premises. 
Such rent reduction or abatement shall equal the lesser of the Rent that
would have been payable by Tenant during the period of such temporary taking or
an amount equal to the award paid by the condemning authority for such
taking.  If the taking is for a period of
longer than one hundred eighty (180) days, or for an indefinite period that
extends beyond one year, either Landlord or Tenant may elect to terminate this
Lease by notice to the other given within thirty (30) days after the event
giving rise to the right of termination. 
No temporary taking of the Land or of any portion of the Building not
including the Premises shall give Tenant the right to any rent abatement,
reduction, or lease termination.


 


17.                                 Landlord’s
Self Help Rights; Liability and
Indemnification.


 


17.1                           Landlord’s
Right to Cure.  If Tenant fails to pay or perform any of its
obligations under this Lease, Landlord may, without waiving or releasing Tenant
from its obligations hereunder, but shall not be required to, pay or perform
such oblations on Tenant’s behalf upon ten (10) days notice to Tenant (except
where, in Landlord’s opinion, an emergency exists, in which event no notice
shall be required), and Tenant shall reimburse or pay promptly to Landlord the
reasonable cost thereof as Additional Rent. 
“Reasonable cost,” as used in this Section 17, means Landlord’s actual
out-of-pocket costs to effect such cure plus twenty percent (20%) to cover overhead,
administrative and collection charges. 
There shall be no abatement of Rent and no liability of Landlord by
reason of any injury to or interference with Tenant’s business arising from
Landlord’s exercise of its rights under this Section 17.1.


 


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17.2                           Tenant’s
Indemnity.  As between Landlord and Tenant, and except to
the limited extent otherwise provided in this Section 17.2, Landlord shall not
be liable for injury to any person, or for the loss of or damage to any
property (including property of Tenant) occurring in or about the Premises from
any cause whatsoever.  Tenant hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises, from any cause whatsoever except that which is caused by the
gross negligence or willful misconduct of Landlord or its agents, contracts, or
invitees, or the failure of Landlord to observe any of the terms and conditions
of this Lease where such failure has persisted for an unreasonable period of
time after Tenant has given Landlord written notice of such failure.  Tenant hereby indemnifies and holds Landlord
harmless, and shall defend Landlord, from and against any and all claims,
charges, liabilities, obligations, penalties, causes of action, liens, damages,
costs and expenses (including attorneys’ fees) arising, claimed, charged or
incurred against or by Landlord and arising from or in connection with: (a)
Tenant’s use or occupancy of, or any activity, work or other thing done,
permitted or suffered by Tenant on or about, the Premises, whether before,
after or during the Term, (b) any breach or default in the performance of any
obligation on Tenant’s part to be performed under this Lease, or (c) any act or
omission of Tenant, or any officer, contractor, agent, employee, guest, licensee,
or invitee of Tenant.  Such
indemnification obligation shall extend to all costs, attorneys’ fees, and
liabilities incurred in connection with the defense of any such claim
(including appeals and petitions for review) or any action or proceeding brought
thereon.


 


17.3                           Limit on
Landlord’s Liability.  Landlord and its agents shall not be liable
for any loss or damage to persons or property resulting from fire, explosion,
falling plaster or other material, steam, gas, electricity, or from bursting,
overflowing, or leaking of water, water or rain which may leak from or into any
part of the Premises or from pipes, appliances or plumbing works therein or
from the roof, street or subsurface or from any other place, from dampness,
from electrical wiring, circuitry, power surges, overloads, spiking or
interruption of any kind, from air conditioning equipment, or from gas or
odors, sprinkler leakage, or from any other cause whatsoever, unless caused by
or due to the gross negligence of Landlord, its agents, invitees, servants,
employees, or contractors.  Landlord and
its agents shall not be liable for interference with the light, air, or other
incorporeal hereditaments.  Tenant shall give
prompt notice to Landlord in case of casualty or accidents on or about the
Premises.  Landlord or its agents shall
not be liable for any damage to property entrusted to employees of the Building
or its management, nor for the loss of or damage to any property by theft or
otherwise.  Except as otherwise provided
above in this Section 17.3, Landlord shall not be released or indemnified from,
and shall indemnify, defend, protect and hold harmless Tenant from, all losses,
damages, liabilities, judgments, actions, claims, attorneys’ fees, consultants’
fees, payments, costs and expenses arising from the gross negligence or willful
misconduct of Landlord or its agents, contractors, licensees or invitees,
Landlord’s violation of any law, order or regulation, or a breach of Landlord’s
obligations under this Lease.


 


17.4                           Defense of
Claims.  In case any action or proceeding shall be
brought against Landlord by reason of a claim covered by the provisions of
Section 17.2, Tenant, upon notice from Landlord, shall defend the same at
Tenant’s expense, by counsel approved in writing by Landlord.


 


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18.                                 Defaults
and Remedies.


 


18.1                           Events of
Default.  In addition to events described elsewhere in
this Lease as constituting a “default” or an “Event of Default,” the occurrence
of any one or more of the following events shall constitute an Event of Default
hereunder by Tenant:


 


(a)                                  Tenant’s abandonment of the Premises.


 


(b)                                 Tenant’s failure to make any payment of Rent
hereunder as and when due, where such failure shall continue for a period of
three days after Tenant’s receipt of written notice thereof; provided,
that no such notice shall be required more frequently than three (3) times in
any consecutive 12-month period and, where no notice is required, an Event of
Default shall arise automatically upon the due date for the payment of Rent;


 


(c)                                  Tenant’s failure to observe or perform any of
the other covenants or provisions of this Lease to be observed or performed by
Tenant, where such failure shall continue for a period of twenty (20) days
after written notice thereof from Landlord to Tenant (unless this Lease
elsewhere provides that such failure alone constitutes an Event of Default
hereunder upon its occurrence).  If the
nature of Tenant’s default is such that more than 20 days are reasonably
required for its cure, then an Event of Default shall not be deemed to occur if
Tenant shall commence such cure within said 20-day period and shall thereafter
diligently prosecute such cure to completion, but in no event shall such
default extend beyond sixty (60) days. 
Once notice of default has been given, no additional notice shall be
required in order for Landlord to exercise remedies under Section 18.2 by
reason of a recurrence or continuation of such default; or


 


(d)                                 If (i) Tenant shall make any general assignment
for the benefit of creditors; (ii) a petition to have Tenant adjudged a
bankrupt or a petition for reorganization or arrangement under any law relating
to bankruptcy shall be filed by or against Tenant or any such Guarantor (unless
the same is dismissed within 30 days); (iii) a trustee or receiver is appointed
to take possession of substantially all of Tenant’s assets located at the
Premises or of Tenant’s interest in this Lease, where possession is not
restored to Tenant within 30 days; or (iv) substantially all of Tenant’s assets
located at the Premises, or of Tenant’s interest in this Lease, is attached,
executed upon, or otherwise judicially seized, where such seizure is not
discharged within 30 days.


 


18.2                           Remedies.  Upon
the occurrence of an Event of Default, Landlord may exercise any one or more of
the remedies set forth in this Section 18, or any other remedy available under
applicable law or contained in this Lease.


 


18.2.1                Re-Entry.  Landlord or Landlord’s agents and employees
may immediately or at any time thereafter re-enter the Premises, or any part
thereof, peaceably but using such reasonable force as may be required, and
without judicial process, or by any suitable action or proceeding at law, and
may repossess the Premises, and may remove any persons, fixtures or chattels
therefrom, to the end that Landlord may have, hold and enjoy the Premises.  In the event of any such retaking of
possession of Premises by Landlord, Tenant shall remove all personal property
located thereon and upon failure to do so upon demand of Landlord, Landlord


 


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may
in addition to any other remedies allowed by law, remove and store the same in
any place selected by Landlord, including but not limited to a public warehouse,
at the expense and risk of Tenant.  If
Tenant shall fail to pay all sums due hereunder together with the cost of
storing any such property within thirty (30) days after it has been stored,
Landlord may sell any or all of such property at public or private sale and
shall apply the proceeds of such sale first, to the cost of such sale; second,
to the payment of the charges and expenses for reentry, removal and storage;
third, to the payment of any other sums of money that may be due from Tenant to
Landlord under the terms of this Lease; and the balance, if any, to
Tenant.  Tenant hereby waives all claims
for damages that may be caused by Landlord’s re-entering and taking possession
of Premises or removing and storing or selling the property of Tenant as herein
provided, and will indemnify, defend and save Landlord harmless from loss,
costs or damages to Tenant occasioned hereby, and no such re-entry shall be
considered or construed to be a forcible entry. 
RE-ENTRY OR TAKING POSSESSION OF SAID PREMISES BY LANDLORD SHALL NOT BE
CONSTRUED AS AN ELECTION ON ITS PART TO TERMINATE THIS LEASE UNLESS A WRITTEN
NOTICE OF SUCH INTENTION IS GIVEN TO TENANT.


 


18.2.2                Continue
the Lease.  Landlord may elect
to continue this Lease in effect, whether or not Tenant shall have abandoned or
Landlord shall have re-entered the Premises. 
In such event Landlord shall be entitled to enforce all Landlord’s
rights and remedies under this Lease, including the right to recover the Rent
as the same may become due hereunder and to recover damages from Tenant in
accordance with the provisions of this Section 18.


 


18.2.3                Terminate
Lease.  Terminate Tenant’s
right to possession and use of the Premises by any lawful means, in which case
this Lease shall terminate and Tenant shall immediately surrender possession of
the Premises to Landlord and shall pay Landlord damages as provided at this
Section 18.


 


18.2.4                Monetary
Damages and Recovery. 
Tenant shall have full liability for payment of all damages directly or
indirectly suffered by Landlord which are proximately caused by any default or
breach under this Lease, whether or not such default or breach is declared by
Landlord, and such elements of damage and recovery by Landlord from Tenant
shall specifically include, but not be limited to:


 


(a)                                  the worth at the time of award of any unpaid
Rent which had been earned at the time of such termination of the Lease or
possession; plus


 


(b)                                 the worth at the time of award of the amount
by which the unpaid Rent which would have been earned after termination of the
Lease or possession until the time of award exceeds the amount of such Rent
loss that Tenant proves could have been reasonably avoided; plus


 


(c)                                  the worth at the time of award of the amount
by which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such Rent loss that Tenant proves could be reasonably
avoided; plus


 


(d)                                 any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant’s failure to
perform his obligations under this Lease or


 


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that in the ordinary course
of things would be likely to result therefrom, including but not limited to,
all legal expenses and other related costs incurred by Landlord following
Tenant’s default; that portion of any leasing commission paid by Landlord as a
result of this Lease which is attributable to the unexpired portion of this
Lease; all costs incurred by Landlord in restoring the Premises to good order
and condition, or in remodeling, renovating or otherwise preparing the Premises
for reletting; all other costs incurred by Landlord in reletting the Premises,
including, without limitation, any brokerage commissions, legal fees and the
value of Landlord’s time; and Default Interest, late charges and administrative
fees, as herein provided.  Landlord shall
not be obligated to relet the Premises to a particular tenant, or, in the event
of any such reletting, for refusal or failure to collect any rent due upon such
reletting; and no such refusal or failure shall operate to relieve Tenant of
any liability under this Lease or otherwise affect any such liability.  Landlord at its option may make such physical
changes to the Premises as Landlord, in its sole discretion, considers advisable
or necessary in connection with any such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or otherwise
affecting Tenant’s liability.  If there
is other unleased space in the Building, Landlord shall have no obligation to
attempt to relet the Premises prior to leasing such other space in the
Building.


 


18.2.5                Form
of Action for Damages. 
To the extent permitted under the law of the State, Landlord may sue
periodically for damages as they accrue without barring a later action for
further damages.  If the Lease or
possession is terminated and the Premises are subsequently re-let, no portion
of the rents from such new Lease that is in excess of the contracted rent
hereunder shall be treated as an offset to monies owed by defaulting
Tenant.  All unpaid Rent after its due
date shall bear interest from the date due at the Default Rate in addition to
any late charges and administration costs related to such delinquency, whether
or not a default is declared.


 


18.2.6                Deposit.  Landlord may apply any deposit held pursuant
to Section 21.2, or pursuant to or in connection with any guarantee of Tenant’s
obligations under this Lease, in payment of any sums due from Tenant hereunder.


 


18.3                           Cumulative Remedies.  The
remedies provided for in this Lease are cumulative and in addition to any other
remedy available to Landlord at law or in equity.  In the event of a breach by Tenant, of any of
its obligations under this Lease, Landlord shall also have the right to obtain
an injunction and any other appropriate equitable relief.


 


18.4                           Termination.  Even
though Tenant has breached this Lease, Tenant’s contractual obligations under
this Lease shall continue in effect for so long as Landlord does not terminate
the same (and even though Landlord may have terminated Tenant’s estate and
right to possession) by written notice to Tenant, and Landlord may enforce all
its rights and remedies under this Lease, including the right to recover the
Rent as it becomes due under this Lease. 
Acts of maintenance or preservation or efforts to relet the Premises or
the appointment of a receiver upon initiative of Landlord to protect Landlord’s
interest under this Lease shall not constitute a termination of Tenant’s rights
to possession unless written notice of termination is given by Landlord to
Tenant.


 


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19.                                 Transfers
By Tenant.


 


19.1                           General.


 


19.1.1                Assignment
and Subletting.  Tenant shall not
assign this Lease or any interest therein, or sublet the Premises or any part
thereof, or permit the use of the Premises by any party other than Tenant, or
hypothecate, mortgage, encumber or otherwise transfer or dispose of Tenant’s
interest in the Premises, either voluntarily or involuntarily, without the
prior written consent of Landlord.  If
Tenant requests consent to a proposed transfer, Tenant shall pay for Landlord’s
reasonable legal and administrative expenses in reviewing the request for
consent to transfer.  Consent to one such
assignment or sublease shall not imply any future consent, and all subsequent
assignments and subleases shall be made only upon obtaining prior written
consent of Landlord.


 


19.1.2                Obligations
of Assignees.  Assignees or
subtenants shall become directly liable to Landlord for all obligations of
Tenant hereunder with respect to the portion of the Premises assigned or
subleased, but Tenant shall remain liable for the performance of all
obligations owed to Landlord under this Lease. 
The instrument by which any assignment or subletting consented to by
Landlord is accomplished shall expressly provide that the assignee or subtenant
will perform and observe all the agreements, covenants, conditions and
provisions to be performed and observed by Tenant under this Lease (with
respect to the portion of the Premises assigned or subleased) and that Landlord
will have the right to enforce such agreements, covenants and conditions
directly against such assignee or subtenant.


 


19.1.3                Procedure
for Consent.  It shall be the
responsibility of Tenant to provide Landlord, in a manner acceptable to
Landlord, with such information as Landlord reasonably determines is necessary
for Landlord to grant or withhold its consent. 
If Tenant desires to request approval to assign, hypothecate or
otherwise transfer this Lease or sublet the Premises, then at least thirty (30)
days prior to the date when Tenant desires the assignment or sublease to be
effective (the “Assignment Date”), Tenant shall give Landlord a notice (the
“Assignment Notice”), which shall set forth the name, address and business of
the proposed assignees or subtenant, current and signed financial statements,
credit information as required by Landlord, the Assignment Date, any ownership
or commercial relationship between Tenant and the proposed assignee or
subtenant, and the consideration and all other material terms and conditions of
the proposed assignment or sublease, all in such detail as Landlord shall
reasonably require.  If Landlord requests
additional detail, the Assignment Notice shall not be deemed to have been
received until Landlord receives such additional detail, and Landlord may
withhold action on the request to any assignment or sublease until such
information is provided.  Landlord shall
not unreasonably withhold or delay its consent to any sublease or
assignment.  In considering an Assignment
Notice, Landlord may, among other things, consider financial capability,
business reputation, business experience, the intended use, the anticipated
demand for services by the assignee or subtenant, and the assignee’s or
subtenant’s anticipated contribution to the prestige of the building.


 


19.1.4                Sublease
Income.  If Tenant shall
sublet all or any portion of the Premises, then any consideration paid by the
sublessee for the portion of the Premises being sublet that exceeds one hundred
percent (100%) of the Base Rent and Additional Rent provided by this


 


26





















 


Lease
for such portion of the Premises being sublet (after subtracting reasonable
costs in connection therewith including, without limitation, reasonable broker
and attorneys’ fees and unamortized portion of improvements to the Premises
paid for by Tenant) shall be due, owing and payable from Lessee to Lessor when
paid or owing by the sublessee under the sublease.  For the purpose of this Section 19, the rent
for each square foot of floor space in the Premises shall be deemed equal.


 


19.2                           Listing
Premises.  Tenant shall not list the Premises for lease
through a broker, or advertise or publicize in any way the availability of the
Premises, without prior written notice to and the written approval of Landlord,
which approval Landlord shall not withhold unreasonably, provided, that
Landlord may condition such approval on Tenant’s agreement not to negotiate or
offer to sublease the Premises or assign this Lease to any person or entity
with whom Landlord has, during the preceding twelve-month period, negotiated to
Lease space in the Building, or with whom Landlord is negotiating, or has
negotiated, during the period of the listing.


 


19.3                           Corporate
Changes.  If Tenant is a corporation, partnership or
limited liability company, then any transfer of this Lease by merger,
consolidation, liquidation, change in the ownership or power to vote the
majority of the issued and outstanding stock, or of the partnership or
membership interest, of the company shall not constitute an assignment for the
purposes of this Section 19.


 


19.4                           Unapproved
Transfers.  Any attempted transfer in violation of the
requirements of this Section 19 shall be void and, at the option of Landlord,
shall constitute an Event of Default.


 


19.5                           Successors
and Assigns.  Except as otherwise provided in this Lease,
all of the covenants, conditions, and provisions of this Lease shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors, and assigns.


 


20.                                 Subordination;
Attornment; Quiet Enjoyment.


 


20.1                           Subordination,
Nondisturbance.  This Lease, and all rights of Tenant hereunder,
are and shall be, upon the election of the holder thereof, subject and
subordinate to all mortgages, trust deeds and other financing and security
instruments (“Mortgages”), that may now or hereafter affect the Premises, and
to all renewals, modifications, replacements and extensions of any such
Mortgages, provided, that so long as Tenant pays all rents and other
charges as specified in this Lease and is not otherwise in default (beyond
applicable notice and cure periods) of any of its obligations and covenants
pursuant to this Lease, neither such mortgagee, nor any successors in interest
of such mortgagee, or any purchaser of the Building upon a foreclosure of the
Mortgage, shall disturb Tenant’s possession of the Premises during the Term or
any Renewal Term of this Lease, by reason of a foreclosure (for purposes of
this Lease, a “foreclosure” shall include, but not be limited to, a sheriffs or
trustee’s sale under the power of sale contained in the Mortgage, the
termination of any superior lease of the Building and any other transfer of the
Landlord’s interest in the Building under peril of foreclosure, including,
without limitation to the generality of the foregoing, an assignment or sale in
lieu of foreclosure).  This Section shall
be self operative, and no further instrument of subordination shall be required
to effect a subordination hereunder; provided, however, that in confirmation of
such


 


27





















 


subordination Tenant shall promptly execute, acknowledge or deliver any
instrument that Landlord or any such mortgagee may reasonably request to
evidence such subordination so long as such instrument also (i) provides that
the Lease shall not be terminated so long as Lessee is not in default under
this Lease, and (ii) recognizes all of Lessee’s rights hereunder.  Tenant shall execute such document within ten
(10) business days after receipt thereof. 
If Tenant fails to execute, acknowledge or deliver any such instruments
within the five (5) days after notice of such failure to execute within the
required time period, Landlord may declare an Event of Default hereunder.  Tenant hereby irrevocably constitutes and
appoints Landlord as Tenant’s attorney-in-fact, coupled with an interest, to
execute and deliver any such instruments for and on behalf of Tenant, at
Landlord’s sole election.


 


20.2                           Attornment.  If
the interest of Landlord under this Lease is transferred, whether through
possession, foreclosure or delivery of a new lease or deed, then at the request
of such party so succeeding to Landlord’s rights (herein called “Successor
Landlord”), Tenant shall attorn to and recognize such Successor Landlord as
Tenant’s Landlord under this Lease and shall promptly execute and deliver any
instrument that such Successor Landlord may reasonably request to evidence such
attornment.  Upon such request for
attornment, Tenant’s rights hereunder shall continue in full force and effect
as a direct Lease between the Successor Landlord and Tenant upon all of the
terms, conditions and covenants as set forth in this Lease so long as Tenant is
not in default.


 


20.3                           Quiet Enjoyment.  So long as Tenant pays all
Rents and complies with all of the terms and conditions of this Lease, Tenant
shall peaceably and quietly have, hold and enjoy the Premises, This covenant
shall, subject to the provisions of this Lease, be binding upon the subsequent
successors in interest of Landlord’s interest in this Lease including those to
whom Tenant is subordinate and/or to whom Tenant agreed to attorn pursuant to
Sections 20.1 and 20.2.


 


20.4                           Estoppel
Certificates.  Within fifteen (15) days following any
written request that Landlord may make from time to time, Tenant shall execute
and deliver to Landlord and/or any prospective mortgagee or purchaser designated
by Landlord, a statement certifying: (a) the date of commencement of this
Lease; (b) the fact that this Lease is unmodified and in full force and effect
(or, if there have been modifications hereto, that this Lease is in full force
and effect, and stating the date and nature of such modifications); (c) the
date to which the rental and other sums payable under this Lease have been
paid; (d) that, to Tenant’s current actual knowledge, there are no current
defaults under this Lease by Landlord except as specified in such statement;
and (e) such other matters as may be reasonably requested.  Landlord and Tenant intend that any statement
delivered by Tenant pursuant to this Section may be relied upon by any
mortgagee, beneficiary, purchaser, or prospective purchaser of the Premises or
any interest therein.  Tenant’s failure
to deliver such statement within five (5) days following Landlord’s written
notice to Tenant stating that such 15-day review period has elapsed (x) shall
be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in the Landlord’s performance, and (iii) that no more
than one month’s rental has been paid in advance, and (y) at Landlord’s
election, shall constitute an Event of Default hereunder.  If Landlord desires to finance or refinance
the Premises, or any part thereof, Tenant shall, within ten (10) days following
Landlord’s request therefor, deliver to any lender designated by Landlord such
financial information of Tenant as


 


28





















 


shall be required by such lender. 
All such information shall be received in confidence and shall be used
only for the purpose herein set forth.


 


20.5                           Mortgagee
Protection.  If there occurs any default on the part of
Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises, and shall
offer such beneficiary or mortgagee a reasonable opportunity to cure the
default, including time to obtain receivership of the Premises and/or
possession of the Premises by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure.


 


20.6                           Modification
for Lender.  If, in connection with obtaining
construction, interim, or permanent financing related to the Premises, a lender
shall request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay, or defer its consent
thereto provided that such modifications do not increase Tenant’s obligations,
or decrease Tenant’s rights, hereunder.


 


21.                                 Security.


 


21.1                           Financial
Statements.  Tenant shall furnish to Landlord on or before
ninety (90) days following the end of each fiscal year, Tenant’s unaudited
financial statements for the preceding fiscal year, (consisting of Tenant’s
balance sheet, and profit and loss statement) each prepared by a certified
public accountant in accordance with generally accepted accounting principles
(or other method approved by Landlord) consistently applied.  Tenant shall furnish to Landlord interim
financial statements within thirty (30) days following the end of each of
Tenant’s fiscal quarters.


 


21.2                           Deposit.  On
the Commencement Date, Tenant shall deposit with Landlord the amount specified
in the summary of Basic Lease Terms preceding this Lease, such amount to be
held by Landlord during the Lease Term as security for Tenant’s performance of
its obligations hereunder; provided, that Landlord shall review
annually, in connection with Tenant’s delivery of annual financial statements
pursuant to Section 21.1, the continued necessity of retaining a Security
Deposit hereunder and may elect, in its sole discretion, to refund such
Security Deposit based on such review. 
If Tenant fails to make any payment when due finder this Lease beyond
applicable notice and cure periods, or otherwise defaults with respect to any
provision of this Lease beyond applicable notice and cure periods, Landlord may
use, apply or retain all or any portion of said deposit for the payment of such
obligation or default, or for the payment of any other sum to which Landlord
may be become obligated by reason of Tenant’s default, or to compensate
Landlord for any loss or damage that Landlord may suffer thereby.  If Landlord so uses or applies all or any
portion of said deposit, Tenant shall, within ten (10) days after written
demand therefor from Landlord, deposit cash with Landlord in an amount
sufficient to restore said deposit to the full amount stated in this Section
21.2, and Tenant’s failure to do so shall constitute an Event of Default under
this Lease.  Landlord shall return said
deposit (or so much thereof as has not theretofore been applied by Landlord as
permitted under this Section 21.2) within sixty (60) days following the date of
expiration of the Lease Term or the date on which Tenant has vacated the
Premises.  Landlord shall not be required
to keep said security deposit separate from its general funds, and Tenant shall
not be entitled to interest on said deposit. 
Landlord shall be entitled to deliver the funds constituting the deposit
hereunder to any purchaser


 


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of Landlord’s interest in the Premises, whether by sale, foreclosure,
deed in lieu of foreclosure, or otherwise, and upon such delivery, Landlord
shall be discharged from any further liability with respect to said deposit.


 


22.                                 Governing
Law.  This
Lease shall be governed by and construed pursuant to the laws of the State of
Nevada.


 


23.                                 No
Merger.  The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not constitute a merger of the Landlord’s and Tenant’s estate,
and shall, at the option of Landlord, operate either as an assignment to
Landlord of any or all subleases or subtenancies or as a termination thereof.


 


24.                                 Disputes.


 


24.1                           Attorneys’
and Collection Fees.  If either party should bring an action or
suit because of the breach of any provisions of this Lease, or for any other
relief against the other party hereunder, or in the event of any other
arbitration or litigation between the parties with respect to this Lease, then
all costs and expenses, including collection agency fees and reasonable
attorneys’ fees incurred by the prevailing party in such arbitration or
litigation, including on any arbitration or court proceeding, appeal, petition
for review therefrom or in any proceeding before a U.S. Bankruptcy Court, shall
be paid by the other party, such amount to be set by the court before which the
matter is heard, which obligation on the part of the other party shall be
deemed to have accrued on the date of the commencement of such action and shall
be enforceable whether or not the action is prosecuted to judgment.


 


24.2                           Arbitration of
Disputes.  Intentionally
Deleted.


 


25.                                 Hazardous
Substances.  To the current, actual knowledge of Landlord, (a) no Hazardous Substance is present on
the Land or the soil, surface water or groundwater thereof, (b) except
as disclosed in Section 5.5, no underground storage tanks are present on the
Land, and (c) no action, proceeding or claim is pending or threatened regarding
the Land concerning any Hazardous Substance or pursuant to any environmental
law.  Under no circumstance shall Tenant
be Liable for, and Landlord shall indemnify, defend, protect and hold harmless
Tenant, its agents, contractors, stockholders, directors, successors,
representatives, and assigns from and against, all losses, costs, claims,
liabilities and damages (including attorneys’ and consultants’ fees) of every
type and nature, directly or indirectly arising out of or in connection with
any Hazardous Substance present at any time on or about the Land, or the soil,
air, improvements, groundwater or surface water thereof, or the violation of
any laws, orders or regulations, relating to any such Hazardous Substance,
except to the extent that any of the foregoing actually results from the
release or emission of Hazardous Substance by Tenant or its agents or employees
in violation of applicable environmental laws, or other breach of Tenant’s
obligations set forth at Section 5.3.


 


26.                                 Tenant’s
Liability and Performance.  Except as may be otherwise
specifically provided in this Lease, all covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant’s sole cost and expense and without any abatement of
Rent.  If more than one person or entity
executes this Lease as Tenant (or assumes this Lease as a permitted assignee of
Tenant), (a) each of them is jointly and severally liable for


 


30





















 


the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed and
performed by Tenant, and (b) the term “Tenant” as used in this Lease shall mean
and include each of them jointly and severally. 
The act or notice from, or notice or refund to, or the signature of any
one or more of them, with respect to the tenancy of this Lease, including, but
not limited to any renewal, extension, expiration, termination or modification
of this Lease, shall be binding upon each and all of the persons executing this
Lease as Tenant with the same force and effect as if each and all of them had
so acted or so given or received such notice or refund or so signed.


 


27.                                 Definition
of Landlord; Limitation or Liability.  The
term “Landlord,” as used in this Lease, so far as covenants or obligations on
the part of Landlord are concerned, shall be limited to mean and include only
the owner or owners, at the time hi question, of the fee title of the Premises
or the tenants under any ground lease, if any. 
In the event of any transfer, assignment, or other conveyance or
transfers of any such title, Landlord herein named (and in case of any
subsequent transfers or conveyances, the then grantor) shall be automatically
freed and relieved from and after the date of such transfer, assignment, or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter accruing
to the extent such transferee assumes such liability in writing.  Without further agreement, the transferee of
such title shall be deemed to have assumed and agreed to observe and perform
any and all obligations of Landlord hereunder, accruing during its ownership of
the Premises.  Landlord may transfer its
interest in the Premises without the consent of Tenant and such transfer or
subsequent transfer shall not be deemed a violation on Landlord’s part of any
of the terms and conditions of this Lease. 
Tenant and all successors and assigns acknowledge that, in the event of
any actual or alleged failure, breach or default hereunder by Landlord:


 


(a)                                  The sole and exclusive remedy shall be
against the Landlord’s interest in the Building (including proceeds from the
sale thereof) and the rent reserved by this Lease accruing after any default or
material breach for satisfaction of any liability in respect to this Lease,


 


(b)                                 No member or manager of Landlord shall be
sued, named as a party in any suit or action, served with process or subjected
to any judgment, and any such judgment taken against any member or manager of
Landlord may be vacated and set aside at any time nunc pro tunc;


 


(c)                                  No writ of execution will ever by levied
against the assets of any member or manager of Landlord; and


 


(d)                                 This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder, or is delayed in doing so, if such
liability or delay is caused by reason of strike, labor trouble, inclement
weather, war, riot, acts of God or any other cause beyond the reasonable
control of Landlord.


 


28.                                 Waiver.  The waiver by either party of
any breach of any term, covenant or condition herein contained shall not be
deemed to be a waiver of any subsequent breach of the same or any other term,
covenant or condition herein contained, nor shall any custom or practice that
may evolve between the parties in the administration of the terms hereof be
deemed a waiver of or in any way affect the right to insist upon the
performance in strict accordance with said terms.  The


 


31





















 


subsequent acceptance of Rent hereunder by Landlord shall not be deemed
to be a waiver of any preceding breach by Tenant, of any term, covenant, or
condition of this Lease, other than the failure of Tenant to pay the particular
Rent so accepted, regardless of Landlord’s knowledge of such preceding breach
at the time of such acceptance of such Rent. 
The consent or approval of Landlord to or of any act by Tenant requiring
Landlord’s consent or approval shall not be deemed to waive or render unnecessary
the consent or approval to or of any subsequent similar acts by the acting
party.  Acceptance of one or more rental
or other payments after the dates when the same first became due or after the
applicable grace period shall not prevent Landlord, with respect to subsequent
payments, (a) from insisting upon prompt payment of all amounts due hereunder,
(b) from insisting upon payment of the late fees provided for herein, or (c)
from declaring an Event of Default hereunder. 
Without limiting the generality of the foregoing, no payment by Tenant
or receipt by Landlord of a lesser amount than the full Rent then due shall be
deemed to be other than on account of the earliest stipulated Rent due, nor
shall any endorsement or statement on any check or any letter accompanying any
check, or payment be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord’s right to recover the
balance of such Rent or pursue any other remedy provided for in this Lease or available
at law or in equity.  Acceptance of Rent
from another company or entity does not constitute consent to a purported
sublease or assignment.


 


29.                                 Miscellaneous
Provisions.


 


29.1                           Successors
or Assigns.  Except as otherwise provided herein, all the
terms, conditions, covenants and agreements of this Lease shall extend to and
be binding upon Landlord, Tenant and their respective heirs, administrators,
executors, successors, subtenants, concessionaires, assigns and marital
communities, if any, and upon any person or persons coming into ownership or
possession of any interest in the Premises by operation of law or otherwise.


 


29.2                           Authority
of Parties.  If Tenant is a corporation, Tenant represents
and warrants that each individual executing this Lease on behalf of said
corporation is duly authorized to execute and deliver this Lease on behalf of
said corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and this Lease is binding upon said corporation.  Tenant shall, simultaneously with the
execution of this Lease, deliver to Landlord a certified copy of a resolution
of the Board of Directors of said corporation authorizing or ratifying the
execution of this Lease, and certified copies of other corporation documents as
may reasonably be requested by Landlord or Landlord’s Lender to authenticate
the transaction.


 


29.3                           Interest
on Past Due Obligations.  Any amount due from Tenant to Landlord
hereunder which is not paid when due shall bear interest at the Default Rate
from the date due until paid, but the payment of such interest shall not excuse
or cure any default by Tenant, and interest shall be compensation for the loss
of Tenant’s use of the past due funds, and shall be in addition to late or
delinquent charges which are reimbursements for administrative costs associated
with collecting and processing such past due amounts.  An administrative charge of $25.00 will be assessed
for any check from Tenant which is returned for any reason.


 


32





















 


29.4                           Broker’s
Commission.  The brokers who negotiated this Lease, if
any, are identified in the summary of Basic Lease Terms preceding this
Lease.  Landlord shall be solely responsible
for the payment of brokerage commissions to said brokers, and Tenant shall have
no responsibility therefore.  If Tenant
has dealt with any other person or real estate broker with respect to leasing
or renting space in the Building, Tenant shall be solely, responsible for the
payment of any fee due said person or firm and Tenant shall indemnify and hold
Landlord harmless against any liability in respect thereto, including
attorney’s fees and costs.


 


29.5                           Terms and Headings.  The
words “Landlord” and “Tenant” as used herein shall include the plural as well
as the singular.  Words used in any
gender include other genders.  The
Section headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.


 


29.6                           Examination
of Lease.  Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for
Lease, and it is not effective as a Lease or otherwise until complete execution
by and delivery to both Landlord and Tenant.


 


29.7                           Time.  Except as otherwise
specifically provided herein, time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.


 


29.8                           Amendments.  No
provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in
interest.


 


29.9                           Partial Invalidity.  If
any term, covenant, or condition of this Lease or the application thereof to
any person or circumstance is, to any extent, invalid or unenforceable, the
remainder of this Lease, or the application of such terms, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term, covenant
or condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.


 


29.10                     Recording.  Tenant
shall not record or file this Lease, or any assignment or security document pertaining
to this Lease or all or any part of Tenant’s interest therein without the prior
written consent of Landlord, which consent may be subject to such conditions as
Landlord shall deem appropriate, However, upon the request of Landlord, both
parties shall execute a memorandum or “short form” of this Lease for the
purposes of recordation in a form customarily used for such purposes.  Said memorandum or short form of this Lease
shall describe the parties, the Premises and the Lease Term and shall incorporate
this Lease by reference.


 


29.11                     Notices.  All
notices that either party shall be required or may desire to deliver hereunder
shall be given in writing and shall be sent by registered or certified mail,
return receipt requested, by personal delivery, overnight courier, or by
facsimile transmission followed by delivery of a “hard” copy, and shall be
deemed received upon the earlier of the date of receipt or refusal
thereof.  Notices shall be delivered to
Tenant at the address for Tenant set forth in the Summary of Basic Lease Terms
preceding this Lease with a copy to the Premises and a copy of the following
address:  Wilson Sonsini Goodrich &
Rosati, 650 Page Mill Road, Palo Alto,


 


33





















 


California, 94304, Attention: 
Norman Cruz, and to Landlord at both the address for Landlord and the
address for Landlord’s property manager, if any, each set forth in the Summary
of Basic Lease Terms preceding this Lease. 
In addition, a copy of any notice to Landlord shall be delivered to the
following address:


 


Parisi
& Parisi, P.C.


Suite
100, The Annand Building


1630
S.W. Morrison


Portland,
OR 97205


Telecopy:
(503) 721-2300


Attn:
Robin B. Parisi, Esq.


 


Either
party may change its address for notice by giving notice to the other in the
manner set forth above, which notice shall only be effective upon receipt or
refusal.  Notice to Tenant hereunder may
be given by landlord’s attorney.


 


29.12                     Entire
Agreement.  This Lease, including the Table of Contents
and summary of Basic Lease Terms that precede this Lease, and the Exhibits
Listed in such summary of Basic Lease Terms and attached hereto, all of which
are incorporated herein by this reference to them, together with any other
document to be furnished pursuant to the provisions hereof embody the entire
agreement and understanding of the parties hereto as to the subject matter
contained herein.  There are no
restrictions, promises, representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to in such documents.  This Lease and such documents supersede all
prior agreements and understandings among the parties with respect to the
subject matter hereof.


 


29.13                     Survival
of Obligations.  The covenants, duties, and obligations of
Tenant contained herein that by their nature do not depend upon Tenant’s
possession of the Premises (including, without limitation, obligations arising
under Section 17.2) shall survive the expiration or earlier termination of this
Lease and such expiration or termination shall not excuse Tenant from the full
performance thereof.


 


29.14                     Representations and Warranties.  Landlord has made no representations or
warranties except as contained herein. 
Tenant hereby represents and warrants that financial statements and other
information famished by Tenant to Landlord are true, accurate and complete, and
such representation and warranty shall survive the execution and termination of
this Lease and is material consideration relied upon by Landlord in executing
this Lease.  Any false, misleading or
inaccurate statement made by Tenant therein shall constitute a material breach
and an Event of Default hereunder.


 


29.15                     Waiver.  For
so long as Tenant, its parent or any of its subsidiaries or affiliates is the
Tenant under this Lease, Landlord hereby waives any statutory landlord’s lien
it may have, as security for the payment of rent, against any and all of the
property of Tenant, its parent, subsidiaries or affiliates, to the fullest
extent allowed by law.  Landlord shall,
within 10 days after Tenant’s request therefor, execute and deliver to Landlord
a Landlord’s Waiver and Estoppel Certificate in the form attached hereto
(including the changes marked) as Exhibit H.


 


34





















 


IN WITNESS WHEREOF, the
parties have executed this Lease on the Effective Date.


 


	
   

  	
  200
  SOUTH VIRGINIA INVESTMENTS, an Oregon

  
	
   

  	
  limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:
  SCANLANKEMPERBARD COMPANIES,

  
	
   

  	
  an
  Oregon corporation, its operating manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Jeffrey J. Tarlman

  	
   

  
	
   

  	
  Title:

  	
   VP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  “Landlord”

  
	
   

  	
   

  
	
   

  	
  ADVANCED
  TELCOM GROUP, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Charlene S. Curry

  	
   

  
	
   

  	
  Title:

  	
   VP Finance and Treasury

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  “Tenant”

  
								



 


35





















 


EXHIBIT A


 


Legal Description of Land


 


Washoe County Nevada Parcel
Number 011-171-05 consisting of 0.56 Acres, also known as 200 South Virginia
Street.


 





















 


EXHIBIT B


 


Premises Description and Plan


 





















 





 





















 





 





















 


EXHIBIT C


 


Initial Tenant Improvements


 





















 





 





















 





 





















 


EXHIBIT D


 


Rules and Relations


 


1.                                       No
sign, placard, picture, advertisement, name or notice shall be installed or
displayed on any part of the outside or inside of the Building without the
prior written consent of the Lessor. 
Lessor shall have the right to remove, at Lessee’s expense and without
notice, any sign installed or displayed in violation of this rule.  All approved signs or lettering on doors and
walls shall be printed, painted, affixed or inscribed at the expense of Lessee
by a person chosen by Lessor.


 


2.                                       If
Lessor objects in writing to any curtains, blinds, shades, screens or hanging
plants or other similar objects attached to or used in connection with any
window or door of the Premises, Lessee shall immediately discontinue such
use.  No awning shall be permitted on any
part of the Premises without Lessor’s specific approval in writing.  Lessee shall not place anything against or
near glass partitions or doors or windows which may appear unsightly from
outside the Premises.


 


3.                                       Lessee
shall not obstruct any sidewalk, halls, passages, exits, entrances, elevators,
escalators, or stairways of the Building. 
The halls, passages, exits, entrances, shopping malls, elevators,
escalators and stairways are not open to the general public.  Lessor shall in all cases retain the right to
control and prevent access thereto of all persons whose presence in the
judgment of Lessor would be prejudicial to the safety, character, reputation
and interest of the Building and its tenants; provided that nothing herein
contained shall be construed to prevent such access to persons with whom any
tenant normally deals in the ordinary course of its business, unless such
persons are engaged in illegal activities. 
No tenant and no employee or invitee of any tenant shall go upon the
roof of the Building.


 


4.                                       The
directory of the Building will be provided exclusively for the display of the
name and location of tenants only, and Lessor reserves the right to exclude any
other names therefrom.


 


5.                                       All
cleaning and janitorial services for the Building and the Premises shall be
provided exclusively through Lessor, and except with the written consent of
Lessor, no person or persons other than those approved by Lessor shall be
employed by Lessee or permitted to enter the Building for the purpose of
cleaning the same.  Lessee shall not
cause any unnecessary labor by carelessness or indifference to the good order
and cleanliness of the Premises.  Lessor
shall not in any way be responsible to any Lessee for any loss of property on
the Premises, however occurring, or for any damage to any of Lessee’s property
by the janitor or any other employee or any other persons.


 


6.                                       Lessor
will furnish Lessee, free of charge, two keys to each door lock in the
Premises.  Lessor may make a reasonable
charge for any additional keys.  Lessee
shall not make or have made additional keys, and Lessee shall not alter any
lock or install a new additional lock or bolt on any door of its Premises.  Lessee, upon the termination of its tenancy,
shall deliver to Lessor the keys of all doors which have been furnished to
Lessee, and in the event of loss of any keys so furnished, shall pay Lessor
therefore.


 


7.                                       If
Lessee requires telegraphic, telephonic, burglar alarm or similar services, it
shall first obtain, and comply with, Lessor’s instructions in their
installation.


 





















 


8.                                       Any
freight elevator shall be available for use by all tenants in the Building,
subject to such reasonable scheduling as Lessor in its discretion shall deem
appropriate.  No equipment, materials,
furniture, packages, supplies, merchandise or other property will be received
in the Building or carried in the elevators except between such hours and in
such elevators as may be designated by Lessor.


 


9.                                       Lessee
shall not place a load upon any floor of the Premises which exceeds the load
per square foot which such floor was designed to carry and which is allowed by
law.  Lessor shall have the right to
prescribe the weight, size and position of all equipment, materials, furniture
or other property brought in to the Building. 
Heavy objects shall, if considered necessary by Lessor, stand on such
platforms as determined by Lessor to be necessary to properly distribute the
weight.  Business machines and mechanical
equipment belonging to Lessee, which cause noise or vibration that may be transmitted
to the structure of the Building or to any space therein to any tenants in the
Building, shall be placed and maintained by Lessee, at Lessee’s expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration.  The persons employed to move
such equipment in or out of the building must be acceptable to Lessor.  Lessee agrees to place a plywood covering
over any lobby, hallway, elevator and office dooring and carpeting during any time
where it is constructing in the Premises or moving furniture into or out of the
Building.  Pads shall be used in such a
manner to protect walls and ceilings in said lobbies, hallways, elevators and
offices during said construction or moving periods.  Lessor will not be responsible for loss of,
or damage to, any such equipment or other property from any cause, and all
damage done to the Building including common areas, hallways, elevators and
doors by maintaining or moving such equipment or other property shall be
repaired at the expense of Lessee.


 


10.                                 Except
as and to the extent necessary to power the diesel generator installed in the
Premises as part of the Initial Tenant Improvements, Lessee shall not use or
keep in the Premises any kerosene, gasoline or flammable or combustible fluid
or material other than those limited quantities necessary for the operation or
maintenance of office equipment.  Lessee
shall not use or permit to be used in the Premises any foul or noxious gas or
substance, or permit or allow the Premises to be occupied or used in a manner
offensive or objectionable to Lessor or other occupants of the Building by
reason of noise, odors or vibrations, nor shall Lessee bring into or keep in or
about the Premises any birds, dogs, cats or animals of any kind.


 


11.                                 Except
as specifically set forth in the Lease, Lessee shall not use any method of
heating or air-conditioning other than that supplied by Lessor, without
Lessor’s prior written consent.


 


12.                                 Lessee
shall not waste electricity, water or air-conditioning and agrees to cooperate
fully with Lessor to assure the most effective operation of the Building’s
heating and air-conditioning and to comply with any governmental energy-saving
rules, laws or regulations of which Lessee has actual notice, and shall refrain
from attempting to adjust controls. 
Lessee shall keep corridor doors closed, and shall close window
coverings at the end of each business day.


 


13.                                 Lessor
reserves the right, exercisable without notice and without liability to Lessee,
to change the name and street address of the Building.


 





















 


14.                                 Lessor
reserves the right to exclude from the Building between the hours of 6 P.M. and
7 A.M. the following day, or such other hours as may be established from time
to time by Lessor, and on Sundays and legal holidays, any person unless that
person is known to the person or employee in charge of the Building and has a
pass or is properly identified.  Lessee
shall be responsible for all persons for whom it requests passes and shall be
liable to Lessor for all acts of such persons.  Lessor shall not be liable for damages for any
error with regard to the admission to or exclusion from the Building of any
persons.  Lessor reserves the right to
prevent access to the Building in case of invasion, mob, riot, public
excitement or other commotion by closing the doors or by other appropriate
action.  It is understood that Lessee
requires access for clients until 8 p.m. weekdays and occasionally on
weekends.  Lessor shall coordinate with
Lessee a mutually acceptable way for after-hours entry in to the building.


 


15.                                 Lessee
shall close and lock the doors of its Premises and entirely shut off all water
faucets or other water apparatus, and electricity, gas or air outlets before
Lessee and its employees leave the Premises. 
Lessee shall be responsible for any damage or injuries sustained by
other tenants or occupants of the building or by Lessor for noncompliance with
this rule.


 


16.                                 Lessee
shall not obtain for use on the Premises ice, drinking water, food, beverage,
towel or other similar services or accept barbering or bootblacking service
upon the Premises, except at such hours and under such regulations as may be
fixed by Lessor.


 


17.                                 The
toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein.  The expense of any breakage, stoppage or
damage resulting from the violation of this rule shall be borne by the tenant
who, or whose employees or invitees, shall have caused it.


 


18.                                 Lessee
shall not sell, or permit any sales of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise to the general public in or
on the Premises or the common area. 
Lessee shall not make any room-to-room solicitation of business from
other tenants in the Building nor shall Lessee solicit in any part of the
common areas.  Lessee shall not use the
Premises for any business or activity other than that specifically provided for
in Lessee’s Lease.


 


19.                                 Except
as otherwise provided in the Lease, Lessee shall not install any radio or
television antenna, loudspeaker or other device on the roof or exterior walls
of the Building.  Lessee shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.


 


20.                                 Lessee
shall not mark, drive nails, screws or drill in to the partitions, woodwork or
plaster or in any way deface the Premises or any part thereof.  Lessor reserves the right to direct
electricians as to where and how telephone and telegraph wires are to be
introduced to the Premises.  Lessee shall
not cut or bore holes for wires.  Lessee
shall not affix any floor covering to the floor of the Premises in any manner
except as approved by Lessor.  Lessee shall
repair any damage resulting from noncompliance with this rule.  Lessee shall pay for any and all damages to
the Building, walls, doors, glass, carpeting or otherwise which may be caused
by Lessee’s use


 





















 


of
the Building, moving equipment, supplies or furniture into or out of the
Building whether caused by Lessee or its employees, agents, contractors or
invitees to the Premises.


 


21.                                 Lessee
shall not install, maintain or operate upon the Premises any vending machine
without the written consent of Lessor.


 


22.                                 Canvassing,
soliciting and distribution of handbills or any other written material, and
peddling in the Building or in the common areas and parking lot are prohibited,
and each tenant shall cooperate to prevent same.


 


23.                                 Lessor
reserves the right to exclude or expel from the Building any person who, in
Lessor’s judgment, is intoxicated or under the influence of liquor or drugs or
who is in violation of any of the Rules and Regulations of the Building.


 


24.                                 Lessee
shall store all its trash and garbage within its Premises.  Lessee shall not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. 
All garbage and refuse disposal shall be made in accordance with directions
issued from time to time by Lessor.


 


25.                                 The
Premises shall not be used for the storage of merchandise held for sale to the
general public, or for lodging or for manufacturing of any kind, nor shall the
Premises be used for any improper, immoral or objectionable purpose.  No cooking shall be done or permitted by any
tenant on the Premises, except that use by Lessee of Underwriters’ Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, provided that such equipment and use is in accordance with
all applicable federal, state, county and city laws, codes, ordinances, rules
and regulations.


 


26.                                 Lessee
shall not use in any space or in the public halls of the building any hand
truck except those equipped with rubber tires and side guards or such other
material-handling equipment as Lessor may approve.  Lessee shall not bring any other vehicles of
any kind in to the Building.


 


27.                                 Without
the written consent of Lessor, Lessee shall not use the name of the Building in
connection with or in promoting or advertising the business of Lessee except as
Lessee’s address.


 


28.                                 Lessee
shall comply with all safety, fire protection and evacuation procedures and
regulations established by Lessor or any governmental agency.


 


29.                                 Lessee
assumes any and all responsibility for protecting its Premises from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed.  Lessee
agrees that the cost to repair any damage to the Building and Premises, as a
result of theft, robbery and pilferage, shall be borne by the Lessee.


 


30.                                 The
requirements of Lessee will be attended to only upon appropriate application to
the office of the Building by an authorized individual.  Employees of Lessor shall not perform any
work or do anything outside of their regulated duties unless under special
instructions from


 





















 


Lessor,
and no employee of Lessor will admit any persons (Lessee or otherwise) to any
office without specific instruction from lessor.


 


31.                                 Lessee
shall not park its vehicles in any parking areas designated by Lessor as areas
for parking by visitors to the Building. 
Lessee shall not leave vehicles in the Building parking areas overnight
nor park any vehicles in the Building parking areas other than automobiles,
motorcycles, motor drive or non-motor drive bicycles or four-wheeled
trucks.  Said vehicles improperly parked
shall be subject to a fine of $20.00 per day per violating vehicle or, upon 24
hours notice, shall be subject to towing at the vehicle owner’s expense.


 


32.                                 Lessor
may waive any one or more of these Rules and Regulations for the benefit of
Lessee or any other tenant, but no such waiver by Lessor shall be construed as
a waiver of such Rules and Regulations in favor of Lessee or any other tenant,
nor prevent Lessor from thereafter enforcing any such Rules and Regulations
against any or all of the tenants of the Building.


 


33.                                 These
Rules and Regulations are in addition to, and shall not be construed to in any
way modify or amend, in whole or in part, the terms, covenants, agreements and
conditions of any lease of premises in the Building.


 


34.                                 Lessor
reserves the right to make such other and reasonable Rules and Regulations as,
in its judgment, may from time to time be needed for safety and security, for
care and cleanliness of the Building and for the preservation of good order
therein.  Lessee agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.


 


35.                                 Lessee
shall be responsible for the observance of all of the foregoing rules of
Lessee’s employees, agents, clients, customers, invitees and guests.


 





















 


EXHIBIT E


 


Standards for Utilities and Services.


 


The following Standards for
Utilities and Services are in effect. 
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:


 


As long as Tenant is not in
default under any of the terms, covenants, conditions, provisions or agreements
of this Lease, Landlord shall:


 


a.                                       Provide non-attended automatic elevator
facilities Monday through Friday, except holidays, from 8 A.M. to 6 P.M., and
have one elevator available at all other times.


 


b.                                      On Monday through Friday, except holidays,
from 8 A.M. to 6 P.M. (and other times for a reasonable additional charge to be
fixed by Landlord), ventilate the Premises and furnish air conditioning or
heating on such days and hours, when in the reasonable judgment of Landlord it
may be required for the comfortable occupancy of the premises.  The air conditioning system achieves maximum
cooling when the window coverings are closed. 
Landlord shall not be responsible for room temperatures if Tenant does
not keep all window coverings in the Premises closed whenever the system is in
operation.  Tenant agrees to cooperate
fully at all times with Landlord, and to abide by all regulations and
requirements which Landlord may prescribe for the proper function and
protection of said air conditioning system. 
Tenant agrees not to connect any apparatus, device, conduit or pipe to
the Building chilled and hot water air conditioning supply lines.  Tenant further agrees that neither Tenant nor
its servants, employees, agents, visitors, licensees or contractors shall at any
time enter mechanical installations or facilities of the Building or adjust,
tamper with, touch or otherwise in any manner affect said installations or
facilities.


 


c.                                       Landlord shall furnish to the Premises,
during the usual business hours on business days, electric current as required
by the Building standard office lighting and fractional horsepower office
business machines in the amount of approximately two and one-half (2.5) watts
per square foot.  Tenant agrees, should
its electrical installation or electrical consumption be in excess of the
aforesaid quantity or extend beyond normal business hours, to reimburse
Landlord monthly for the measured consumption at the terms, classifications and
rates charged to similar consumers by said public utility serving the
neighborhood in which the Building is located. 
If a separate meter is not installed at Tenant’s cost, such excess cost
will be established by an estimate agreed upon by Landlord and Tenant, and if
the parties fail to agree, as established by an independent licensed
engineer.  Tenant agrees not to use any
apparatus or device in, or upon, or about the premises which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Tenant further agrees not to connect any apparatus or device with
wires, conduits or pipes, or other means by which such services are supplied,
for the purpose of using additional or unusual amounts of such services without
written consent of Landlord.  Should
Tenant use the same to excess, the refusal on the part of Tenant to pay upon
demand of Landlord the amount established by Landlord for such excess charge
shall constitute a breach of the obligation to pay rent under this Lease and
shall entitle Landlord to the rights therein granted for such breach.  At all times Tenant’s use of electric current
shall never exceed the capacity of the feeders to the Building or the risers or
wiring installation and Tenant shall not install or use or permit the


 





















 


installation
or use of any computer or electronic data processing equipment in the Premises
without the prior written consent of Landlord.


 


d.                                      Water will be available in public areas for
drinking and lavatory purposes only, but if Tenant requires, uses or consumes
water for any purposes in addition to ordinary drinking and lavatory purposes
of which fact Tenant constitutes Landlord to be the sole judge, Landlord may
install a water meter and thereby measure Tenant’s water consumption for all
purposes.  Tenant shall pay Landlord for
the cost of the meter and the cost of the installation thereof and throughout
the duration of Tenant’s occupancy Tenant shall keep said meter and
installation equipment in good working order and repair at Tenant’s own cost
and expenses, in default of which Landlord may cause such meter and equipment to
be replaced or repaired and collect the cost thereof from Tenant.  Tenant agrees to pay for water consumed, as
shown on said meter, as and when bills are rendered, and on default in making
such payment, Landlord may pay such charges and collect the same from
Tenant.  Any such costs or expenses
incurred, or payments made by Landlord for any of the reasons or purposes
hereinabove stated shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such.


 


e.                                       Provide janitor service to the Premises,
provided the same are used exclusively as offices, and are kept reasonably in
order by Tenant, and if to be kept clean by Tenant, no one other than persons
approved by Landlord shall be permitted to enter the Premises for such
purposes.  If the Premises are not used
exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant’s expense and to the satisfaction of Landlord, and by persons approved
by Landlord.  Tenant shall pay to Landlord
the cost of removal of any of Tenant’s refuse and rubbish, to the extent that
the same exceeds the refuse and rubbish usually attendant upon the use of the
Premises as offices.


 


Landlord reserves the right
to stop service of the elevator, plumbing, ventilation, air conditioning and
electric systems, when necessary, by reason of accident or emergency or for
repairs, alterations or improvements, in the judgment of Landlord desirable or
necessary to be made, until said repairs, alterations or improvements shall
have been completed, and shall further have no responsibility or liability for
failure to supply elevator facilities, plumbing, ventilating, air conditioning
or electric service, when prevented from so doing by strike or accident or by
any cause beyond Landlord’s reasonable control, or by laws, rules, orders,
ordinances, directions, regulations or requirements of any federal, state,
county or municipal authority or failure of gas, oil, or other suitable fuel
supply or inability by exercise of reasonable diligence to obtain gas, oil or other
suitable fuel.  It is expressly
understood and agreed that any covenants on Landlord’s part to furnish any
service pursuant to any of the terms, covenant, conditions, provisions or
agreements of this Lease, or to perform any act or thing for the benefit of
Tenant shall not be deemed breach if Landlord’s unable to furnish or perform
the same by virtue of a strike or labor trouble or any other cause whatsoever
beyond Landlord’s control.


 





















 


EXHIBIT F


 


Tenant’s Batteries


 





















 


	
  

  	
  FERRARI SHIELDS & ASSOCIATES

  
	
  Consulting
  Structural and Civil Engineers

  
	
  185, Cadillac Place Reno, Nevada 89509

  
	
  Phone: (775) 829-927 Fax: (775) 829-9359
  [ILLEGIBLE]

  
	
   

  
	
  June 15, 1999

  



 


Mr. Jonathan Biederer


Manager, Site planning and
Power Engineering


Advanced TelCom Group, Inc.


100 Stony Point Road, #130


Santa Rosa, CA 95401


 


Subject: Lucent Technology, 200
South Virginia, Second Floor Suite, structural capabilities.


 


 


Dear Jonathan,


 


I have
reviewed the proposed equipment layout provided to me by Barada Fuetsch
Architects for the proposed Lucent Technology suite in the southwest corner of
the second floor at the 200 South Virginia Street building. The following
report is the result of my engineering investigation into the structural
capacity of the floor system to support the proposed loads.


 


BACKGROUND


 


The equipment
rows are composed of battery storage racks (6500# each) and switching equipment
cabinets (800# each). My structural engineering review of the building floor
system is intended to identify whether the existing structural capacity of the
floor system is adequate to resist the proposed equipment loading. A copy of
the proposed equipment layout is addended to this letter.


 


ANALYSIS


 


My structural
analysis included a review of the W27x84 main floor beam (also a rigid frame element)
spanning east/west between the columns to assess if it is capable of
accommodating the heavy load from the battery storage racks. I also analyzed
the capacity of the composite concrete/steel floor deck spanning north/south
between the typical floor beams. The proposed battery storage racks place a
2,320 pound per linear foot (plf) load on the W27x84; the resultant loading of
the ESS cabinets, dead load of the


 


 


	
  Paul A.
  Ferran, PE

  	
  Joe F.
  Shields, CE/SE

  
	
  President

  	
  Vice President

  



 





















 


slab, and a 50 pound per square foot (psf) live load result in a total
load of 3,171 plf. This loading results in a beam section demand of 157
cubic inches; the existing W27x84 has a beam section of 213 cubic inches,
far exceeding the demand generated by the new battery storage loading. I also
reviewed the load carrying capacity of the typical W21x50 floor framing beams
to assess if they could also support a full rack of battery storage cabinets.
The W21x50 has a section of 94.5 cubic inches, but the full rack battery
storage cabinets over the beam produces a demand of 157 cubic inches, far
exceeding the capacity of the typical floor beam.


 


The floor deck of the building appears to be a 6 1/2"
total concrete/metal deck thickness – a 3 1/2" thick reinforced (#3 @ 18TM o.c.
each way) concrete slab over a 3"
20g W3 Formlock deck spanning 10' between the floor beams. The proposed
switching equipment layout results in a 160 psf additional superimposed load on
the floor deck. The 6 1/2" deck is capable of supporting an additional superimposed
load of 201 psf, providing adequate support for the switching cabinets.  However, the floor deck
cannot support any battery storage cabinets between the floor beams.  A copy of the calculations is transmitted with
this letter.


 


CONCLUSIONS


 


The heavy weight of an entire row of the battery storage racks produces
a heavy structural demand, and greatly limits their possible locations. The
only approved location for the 10 ESS battery cabinets is directly over the W27x84
main east/west beam between the columns. The proposed floor plan indicates a
bank of 12 and 13 ESS cabinets that are to be placed to the north of the
switching cabinets. These banks of batteries
would have to be supported by the W21x50 floor beams, which are incapable of
supporting a row of the battery storage racks. No other banks of ESS cabinets
are allowed on the floor plan, other than over the W27x54 beam. If
additional ESS cabinets are desired in the future, the number of the cabinets
in a row must be subordinate to the structural capacity of the supporting
W21x50 floor beam, so that the design parameters of the beam are not violated.
The lateral load capacity of the storage racks is not included in the
structural scope of this report.


 


If you have
any questions regarding this analysis, or require any further assistance,
please do not hesitate to contact me.


 


	
   

  	
  SEAL

  
	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  /s/ Paul A. Ferrari

  	
   

  
	
   

  	
  Paul A. Ferrari, P.E.

  



 


	
  Copies to:

  	
  John Barada, Barada Fuetsch Architects

  
	
   

  	
  Tim Ruffin, CB Richard Ellis

  
	
   

  	
  Mike Callahan

  



 


2





















 





 





















 


	
  BARADA-FUETSCH

  
	
  ARCHITECTS

  
	
   

  	
  ARCHITECTURE

  	
  534
  LANDER STREET

  	
   

  
	
   

  	
  FACILITY
  MANAGEMENT

  	
  RENO,
  NEVADA 89509

  	
   

  
	
   

  	
  MASTER
  PLANNING

  	
  702-329-7624
  FAX 7626

  	
   

  



 


TELEPHONE
CONVERSATION on : 5/26/99


 


	
  WITH:

  	
  Steve
  Wheeler

  	
   

  	
   

  
	
   

  	
  Lucent
  Technology

  	
   

  	
   

  
	
  RE:

  	
  SV101
  – ATG equipment weight specifications

  	
   

  	
   

  



 


	
  Switching
  equipment cabinets:

  
	
  Weight:

  	
  <
  800 #

  	
   

  
	
  Length:

  	
  30"

  	
  [ILLEGIBLE]

  	
   

  
	
  Width:

  	
  24"

  	
   

  	
   

  
	
  Height:

  	
  72"

  	
  [ILLEGIBLE]

  	
   

  
	
  Attachment:

  	
  Bolt
  into floor at each corner (4 bolts) 2" from edge (20" x 26"
  pattern)

  
	
  Layout:

  	
  In
  60" o.c. rows with 30" dimension on axis with the row.

  



 


	
  Battery
  storage racks:

  
	
  Weight:

  	
  6500
  #

  	
  [ILLEGIBLE]

  	
   

  
	
  Length:

  	
  34.4"

  	
   

  	
   

  	 

	
  Width:

  	
  25.5"

  	
  [ILLEGIBLE]

  	
   

  	 

	
  Height:

  	
  84"

  	
   

  	
   

  	 

	
  Attachment:

  	
  Bolt
  into floor, three at each 25.5" end (6 bolts) spaced at 8.1" o.c.

  
	
  Layout:

  	
  Aligned
  over E/W beam running between columns at south building face.

  
	
   

  	
  (In
  lieu of " 10 Future ESS Cabinets" shown).

  
	
   

  	
   

  



 


John
Barada. AIA.


 


CC:
file,


 





















 


	
  

  	
  F E R R A
  R I   S H I E L D S   & 
   A S S O C I A T E S

  
	
  C o n s u l t i n g  S t r u c t u r a l  a n d  C i v i l  E n g i n e e r s

  
	
  PROJECT LUCENT TECHNOLOGY
  200 SQ. VIRGINIA

  
	
  2ND FLOOR BEAM ANALYSIS

  
	
  MADE BY PLF

  	
  DATE 6/99

  	
  JOB NO 99010

  
	
  CHKD BY 

  	
  DATE 

  	
  SHEET NO 1

  
	
   

  



 


	
  D.L. DECK
  & FLR

  	
  =

  	
  40psf

  
	
  L.L.

  	
  =

  	
  50psf (SINCE,
  RACKS ARE PERMENANT, L.L. CAN BE USED ONLY FOR A/S LEO)

  
	
  BATTERY
  STORAGE BTWN COLS. F-1 & F-2

  
	
  30' SPAN, BATTERY RACK CENTERED OVER W27x84

  
	
  = STORAGE RACKS @ 6.5K, 34.4R LENGTH

  
	
  =
  (28' - 2')) (12)/34.4         = 10 @ 6.5K
  = 65.0K

  
	
  UNIFORM BM LOAD = 65.0K/28' = 2.32KLF

  
	
   

  
	
  W27x84 LOADING.

  	
   

  
	
  D.L.

  	
  = 17'/2 (40)
  = 340 PLF

  	
   

  
	
  L.L.

  	
  = 50 (3') =
  150 PLF

  	
   

  
	
  ESS CABINETS. (24)(12)/30 = 9@.8K = 720 PLF/2
  = 360 PLF

  
	
  W.T.
  TO

  12 TONES

  
	
  BATTERY
  CABINETS

  	
  = 2.32 KLF

  
	
   

  	
  Sum

  	
  = 3171 PLF

  
	
  M
  = 3171 (282)/8 = 310.8" k, SRQ = 157"3

  
	
   

  	
  Sw27x84= 213"
  3 O.K.

  
	
  BATTERY STORAGE OVER
  W21x50

  
	
  W
  = 3171 PLF

  
	
  M
  = 310.8" k, SRQ = 15.7" 3

  
	
   

  	
  Sw21X50 = 94.5"
  3 N.G.

  
									



 





















 


	
  

  	
  F E R R A
  R I   S H I E L D S   & 
   A S S O C I A T E S

  
	
  C o n s u l t i n g  S t r u c t u r a l  a n d  C i v i l  E n g i n e e r s

  
	
  PROJECT

  
	
   

  
	
  MADE BY

  	
  DATE 

  	
  JOB NO 99010

  
	
  CHKD BY

  	
  DATE 

  	
  SHEET NO 2.

  
	
   

  



 


SWITCHING EQUIPMENT


 


800/2 'r 21/2'
= 160 psf


 


20g W3 FORMLOCK DECK w/ 6 1/2 "
TOTAL SLAB


10'-0" SPAN


 


WALLOW = 201 PSF
O.K.


(SUPERIMPOSED)


 





















 


EXHIBIT G


 


LANDLORD’S WAIVER AND ESTOPPEL CERTIFICATE


 





















 


LANDLORD
WAIVER AND ESTOPPEL CERTIFICATE


 


First
Union National Bank,


   as
Administrative Agent


One
First Union Center, TW-10


301
South College Street


Charlotte,
NC 28288-0608


Ladies and Gentleman:


 


This letter acknowledges
that the undersigned (the “Landlord”) has been informed that                           
(the “Tenant”), has entered into a Credit Agreement dated as of                          ,
1999 (as amended, modified, restated or replaced from time to time, the “Credit
Agreement”) among Advanced Telcom Group, Inc. and certain of its Subsidiaries
(collectively the “Borrowers”), First Union National Bank, as administrative
agent (the “Administrative Agent”), J.P. Morgan Bank & Trust, as syndication
agent, General Electric Capital Corporation, as documentation agent and the
lenders party thereto (the “Lenders”). 
As a precedent condition to the Lenders’ obligation to provide loans and
other financial accommodations to the Tenant under the Credit Agreement (the
“Loans”), the Lenders require, among other things, liens on the Tenant’s
personal property, including, without limitation, equipment, trade fixtures and
fixtures.


 


To induce the Lenders to
continue to make the Loans and provide financial accommodations to the Tenant,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Landlord hereby represents and warrants to
the Administrative Agent that as of the date hereof:


 


1.                                       The
Landlord is the current landlord under the lease described in Exhibit A
attached hereto (the “Lease”) with the Tenant;


 


2.                                       The
Lease is in full force and effect and there have been no amendments,
modifications or other agreements relating to the Lease except as stated
herein;


 


3.                                       The
Lease is not in default, nor, to the Landlord’s knowledge, are there in
existence any facts which with notice or passage of time or both would
constitute a default or a breach of the terms or conditions of the Lease; and


 


4.                                       The
Tenant is the tenant under the Lease, is in lawful and actual possession of the
real property described in the Lease (the “Premises”) and, to the Landlord’s
knowledge, is in full compliance with the covenants, agreements and obligations
under the Lease.


 


The Landlord agrees
that:  (a) the Tenant (or its
representatives) is the owner of equipment, trade fixtures, fixtures and other
personal property of Tenant located at or on the Premises, whether attached to
the Premises or not provided that such equipment, trade fixtures and other
personal property (i) has been or will be installed in the Premises, the
Building or Land (as the terms Building and Land are defined in the Lease) by
or for the account of Tenant without


 





















 


expense
to Landlord, and (ii) can be removed without structural damage to the Building
(such personal property owned by Tenant is herein referred to as the “Personal
Property”), (b) the Administrative Agent’s lien upon or security interest in
the Personal Property is prior and superior to any interest, lien or claim of
any nature the Landlord may now have or hereafter obtain in the Personal
Property whether by operation of law, contract or otherwise:  (c) either the Tenant or the Administrative
Agent may remove the Personal Property from the Premises at any time without
hindrance on the part of the Landlord, and, upon request, Landlord will grant
the Administrative Agent (or its representatives) access to the Premises so
that the Administrative Agent (or its representatives) may remove the Personal
Property, provided that (i) Administrative Agent (or its representatives) shall
give Landlord at least 24 hours prior written notice of its desire to enter the
Premises, shall enter the Premises following such notice only in the company of
Landlord or its building manager, shall comply with all Building rules and
regulations in entering the Premises and in removing the Personal Property, and
shall otherwise comply with all provisions of the Lease concerning the removal
of Personal Property (including effecting repairs to the Premises, Building or
Land occasioned thereby); and (ii) the Administrative Agent, on behalf of the
Lenders, shall, and does hereby indemnify, defend and hold Landlord harmless
from any losses, liability, liens, costs or damages, or claims thereof or
therefor, including w/o limitation, reasonable attorneys fees and court costs
caused by the Administrative Agent (or its representatives) in connection with
the removal of the Personal Property by the Administrative Agent:  and (d) the Personal Property shall remain
personal property (to the extent such Personal Property is not already a
fixture as of the date hereof) and shall not become fixtures, notwithstanding
the manner or mode of the attachment of the Personal Property to the land.  The Landlord hereby waives any rights it may
now or hereafter have in the Personal Property, including without limitation,
any lien rights available under applicable law, but excluding any lien filed in
accordance with applicable law to secure a judgment obtained by Landlord
against Tenant for Tenant’s breach of any obligation under the Lease.


 


The Landlord understands
that the Administrative Agent and the Lenders will rely on this Landlord Waiver
and Estoppel Certificate in continuing to make Loans and provide financial
accommodations to the Tenant.


 


In the event of a default
under the Lease, the Landlord agrees to give written notice of such default to
the Administrative Agent at the address set forth above, and allow the
Administrative Agent the same opportunity to cure such default as is accorded
to the Tenant under the Lease, which notice may be given to the Administrative
Agent concurrently with any Notice of Default given to Tenant and, in such
event, which cure period shall run concurrent with any cure period afforded the
tenant under the Lease.  The
administrative Agent may elect to cure such default but shall have no
obligation to do so.


 





















 


Executed and delivered this      
day of           , 1999.


 


 




	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: