Unassociated Document


Exhibit 10.3



CATLIN
PROPERTIES, INC.


 

MULTI-TENANT


 

OFFICE
LEASE AGREEMENT


 

(CROSSROADS
I AT MERIDIAN, 9800 PYRAMID COURT, ENGLEWOOD,
COLORADO)


 

(FULL-SERVICE
GROSS, COLORADO FORM)

 

with

 

SANZ
INC., a
Colorado corporation

 

as
“Tenant”

 






























BASIC
LEASE INFORMATION

 


	
      1.
	
      Lease
      Date:
      For identification purposes only, the date of this Lease is 4/12/05
      ,
      2005.




 


	
      2.
	
      Landlord:
      The parties identified in the signature block for Landlord
      below.




 


	
      3.
	
      Tenant:
      SANZ INC., a Colorado corporation




 


	
      4.
	
      Address
      of Building:
      9800 Pyramid Court, Englewood, Colorado,
80112




 


	
      5.
	
      Approximate
      Rentable Area of the Building:
      117,792 square feet




 


	
      6.
	
      Premises:
      Those certain premises located on the 1st
      floor of the Building, and commonly referred to as Suite
    130




 


	
      7.
	
      Approximate
      Rentable Area of Premises:
      9,595 rentable square feet




 


	
      8.
	
      Parking
      Spaces:
      thirty-eight (38) unreserved surface lot parking spaces and up to four (4)
      reserved garage parking spaces, available as follows: (a) up to two
      (2) reserved garage spaces leaseable at the rate of $65.00 per space per
      month (each, a “Paid Reserved Space”), which rate shall be subject to
      change from time to time at Landlord’s sole discretion, provided that such
      rate does not increase more than 5% per annum on a cumulative basis, plus
      (b) for every Paid Reserved Space leased (up to a maximum of two (2)
      Paid Reserved Spaces), Tenant shall be entitled to one (1) additional
      reserved garage parking space free of charge during the period that Tenant
      continues to pay the fees due for such Paid Reserved
  Space.




 


	
      9.
	
      Term:
      The period of time commencing on September 15, 2005 (the “Commencement
      Date”),
      and ending on September 14, 2008 (the “Expiration
      Date”).




 


	
      10.
	
      Base
      Rent:




 


	
      Months
      following the Commencement Date
	
      Monthly

      Base
      Rent
	
      Annual
      Base Rent per Square Foot of

      Rentable
      Area

	
      09/15/05
      - 09/14/06
	
      $13,992.70
	
      $17.50
      (approximately $1.46 per month)

	
      09/15/06
      - 09/14/07
	
      $14,392.50
	
      $18.00
      ($1.50 per month)

	
      09/15/07
      - 09/14/08
	
      $14,792.29
	
      $18.50
      (approximately $1.54 per month)








	
      11.
	
      Base
      Year:
      The calendar year 2005.




 


	
      12.
	
      Tenant’s
      Share:
      8.15%




 


	
      13.
	
      Advance
      Rent Amount:
      $13,992.70 (per Section 3.1 below).




 


	
      14.
	
      Security
      Deposit:
      $13,992.70 (per Section 4.1 below).




 


	
      15.
	
      Business
      Hours of the Building:
      7:00 a.m. to 6:00 p.m., Monday through Friday, exclusive of generally
      recognized holidays.




 


	16.	Landlord’s
      Address for Payment of Rent: 



c/o
Catlin Properties

3620 Fair
Oaks Boulevard, Suite 150

Sacramento,
California 95825

Attention:
Property Management

 


	17.	Landlord’s
      Address for Notices: 



c/o
Catlin Properties

3620 Fair
Oaks Boulevard, Suite 150

Sacramento,
California 95864

Attn:
Property Management

 

with a
copy to:

 

c/o
Catlin Properties

9780 Mt.
Pyramid Court, Suite 210

Englewood,
Colorado 80112

Attention:
Mike Pepper

Telephone:
(303) 925-0500

 





















	18.	Tenant’s
      Address for Notices 
prior
      to the Commencement Date 
(thereafter,
      the Tenant’s Address 
for
      Notices shall be the Premises): 




c/o SANZ,
Inc

9800 Mt.
Pyramid, Ct., Suite 130

Englewood,
CO 80112


Attn: Ed
Dunn

Telephone:
303.660.3933 x 208






 



	
      19.
	
      Tenant’s
      Tax Identification Number or Social Security Number:
      84-1064036




 


	
      20.
	
      Broker(s):
      CB Richard Ellis





 



	
      21.
	
      Guarantor(s):
      [NIA]




 


	
      22.
	
      Exhibits:




Exhibit
A: The
Premises

Exhibit
B: [INTENTIONALLY
OMITTED]

Exhibit
C: [INTENTIONALLY
OMITTED]

Exhibit
D: Building
Rules

Exhibit
E: [INTENTIONALLY
OMITTED]

 

The Basic
Lease Information set forth above is part of the Lease and capitalized terms
shall be defined terms in the Lease. In the event of any conflict between any
Basic Lease Information and the Lease, the Lease shall control.

 

(THE
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)

























LEASE

 

THIS
LEASE is made as of the Lease Date set forth in the Basic Lease Information, by
and between the Landlord identified in the Basic Lease Information
(“Landlord”), and
the Tenant identified in the Basic Lease Information (“Tenant”).
Landlord and Tenant hereby agree as follows:

 

1.  PREMISES.
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, upon
the terms and subject to the conditions of this Lease, the office space
identified in the Basic Lease Information (the “Premises”), in the
Building identified in the Basic Lease Information (the “Building”). The
approximate configuration and location of the Premises are shown on Exhibit A. The
Building, the parking facilities serving the Building (the “Parking
Facility”), and
the parcel(s) of land on which the Building and the Parking Facility are
situated (the “Land”) are
sometimes collectively referred to in this Lease as the “Property”.
Landlord shall have the right to confirm the rentable and usable square footage
of the Premises by independent measurement. For such purpose, the measurement of
the Premises shall be in accordance with the method for determining “rentable
area” and “usable area” under the Building Owners and Managers Association
Standard Method for Measuring Floor Area in Office Buildings (ANSI Z65.1-1996).
Following such measurement, if the rentable square footage of the Premises
differs from that set forth in the Basic Lease Information, Tenant and Landlord
shall amend this Lease to revise the monthly Base Rent, Tenant’s Share and to
otherwise reflect such revised rentable area of the Premises. If Landlord has
not, by the date that is sixty (60) days after the Commencement Date, notified
Tenant that an adjustment to the rentable area recited in the Basic Lease
Information is required, the parties conclusively agree that the rentable area
set forth in the Basic Lease Information is correct.

 

2.  COMMENCEMENT
DATE; EXPIRATION DATE; EXISTING SUBLEASE.

 

2.1  Commencement
Date. The
“Commencement
Date” and the
“Expiration
Date” shall
be, respectively, the dates set forth in the Basic Lease
Information.

 

2.2  Existing
Sublease. Tenant
currently occupies the Premises pursuant to that certain Sublease Agreement
dated as of March 30, 2004, between Avaya, Inc., a Delaware corporation
(“Avaya”), as
sublandlord, and Tenant, as subtenant (the “Existing
Sublease”), which
Sublease Agreement was entered into pursuant to that certain Office Building
Lease dated as of March 24, 2000, between Avaya, as tenant, and Landlord, as
landlord. Tenant agrees that (i) the Existing Sublease shall, in accordance with
its terms, expire as of the day before the Commencement Date of this Lease, and
(ii) to Tenant’s knowledge, Avaya is not in default under the Existing Sublease,
and Tenant has no defenses or offsets to the payment of rent and performance of
its obligations under the Existing Sublease, and (iii) Tenant represents that
Tenant is the rightful owner of the entire interest of the “subtenant” under the
Existing Sublease, and that no other person or entity has any interest as
“subtenant” under the Existing Sublease.

 

3.  RENT.

 

3.1  Base
Rent; Advance Rent. Tenant
agrees to pay to Landlord the Base Rent set forth in the Basic Lease
Information, without prior notice or demand, on the first day of each and every
calendar month during the Term, except that the Advance Rent Amount set forth in
the Basic Lease Information shall be paid upon execution of this Lease, and Base
Rent for any partial month at the beginning of the Term shall be paid on the
Commencement Date. Base Rent for any partial month at the beginning or end of
the Term shall be prorated based on the actual number of days in the
month.

 

3.2  Additional
Rent: Increases in Operating Costs and Taxes.

 

(a)  Definitions.

 

(1)  “Base
Operating Costs” means
Operating Costs for the calendar year specified as the Base Year in the Basic
Lease Information.

 




















(2)  “Base
Taxes” means
Taxes for the calendar year specified as the Base Year in the Basic Lease
Information.

 

(3)  “Operating
Costs” means
all costs of managing, operating, maintaining, repairing, renewing and replacing
the Property, including, by way of illustration and not limitation, all costs,
expenditures, fees and charges for: (A) operation, maintenance, repair and
replacement of the Property (including, without limitation, maintenance, repair
and replacement of glass, the roof covering or membrane, and landscaping;
provided, however, that to the extent that the cost of any such replacements are
required to be capitalized for federal income tax purposes, the cost of such
replacements, together with interest on the unamortized balance at the rate paid
by Landlord on funds borrowed to finance such replacements [or, if Landlord
finances such replacements out of Landlord’s funds without borrowing, the rate
that Landlord would have paid to borrow such funds, as reasonably determined by
Landlord], shall be amortized over such useful life as Landlord shall reasonably
determine); (B) utilities (as well as related fees, assessments and
surcharges) and services (including telecommunications facilities and equipment,
repairs to and replacements of telephone risers or intrabuilding network
cabling, recycling programs and trash removal), and associated supplies and
materials; (C) a proportionate share of compensation (including employment
taxes and market-standard fringe benefits) for persons who perform duties in
connection with the management (not to exceed a level of general manager),
operation, maintenance and repair of the Building, such compensation to be
appropriately allocated for persons who also perform duties unrelated to the
Building; (D) property (including coverage for earthquake and flood if
carried by Landlord), liability, rental income and other insurance relating to
the Property, and expenditures for deductible amounts paid under such insurance;
(E) licenses, permits and inspections; (F) complying with the
requirements of any law, statute, ordinance or governmental rule or regulation
or any orders pursuant thereto (collectively “Laws”);
(G) amortization of capital improvements required to comply with Laws, or
which are intended to reduce Operating Costs or improve the utility, efficiency
or capacity of any Building System, with interest on the unamortized balance at
the rate paid by Landlord on funds borrowed to finance such capital improvements
(or, if Landlord finances such improvements out of Landlord’s funds without
borrowing, the rate that Landlord would have paid to borrow such funds, as
reasonably determined by Landlord), over such useful life as is consistent with
industry standards for comparable buildings in the Southeast Denver market area;
(H) an office in the Property for the management of the Property, including
expenses of furnishing and equipping such office and the rental value of any
space occupied for such purposes; (I) property management fees (which may
be paid to an affiliate of Landlord and shall not exceed 5% of the aggregate
Base rent for the Building and consistent with comparable office buildings in
the Southeast Denver market area), or in lieu of such management fees, a
reasonable administrative fee to compensate Landlord for managing the Property;
(J) accounting, legal and other professional services incurred in
connection with the operation (but not the ownership) of the Property and the
calculation of Operating Costs and Taxes; (K) a reasonable allowance for
depreciation on machinery and equipment used to maintain the Property and on
other personal property owned by Landlord in the Property (including window
coverings and carpeting in common areas); (L) contesting the validity or
applicability of any Laws that may affect the Property; (M) the Property’s
share of any shared or common area maintenance fees and expenses; and
(N) any other expense or charge, whether or not hereinbefore described,
which in accordance with generally accepted property management practices would
be considered an expense of managing, operating, maintaining, repairing and
replacing the Property. Operating Costs for any year during which average
occupancy of the Building is less than one hundred percent (100%) shall be
calculated based upon the Operating Costs that would have been incurred if the
Building had an average occupancy of one hundred percent (100%) during the
entire calendar year. If Landlord is not furnishing any particular work or
service (the cost of which, if performed or provided by Landlord, would be
included in Operating Costs) to a tenant who has undertaken to perform such work
or service in lieu of the performance thereof by Landlord, Operating Costs
shall, at Landlord’s sole discretion, be deemed to be increased by an amount
equal to the additional Operating Costs which would reasonably have been
incurred during such period by Landlord if it had at its own expense furnished
such work or service to such tenant. The above enumeration of services and
facilities shall not be deemed to impose an obligation on Landlord to make
available or provide such services or facilities except to the extent if any
that Landlord has specifically agreed elsewhere in this Lease to make the same
available or provide the same. Without limiting the generality of the foregoing,
Tenant acknowledges and agrees that it shall be responsible for providing
adequate security for its use of the Premises, the Building and the Property and
that Landlord shall have no obligation or liability with respect thereto, except
to the extent, if any, that Landlord has specifically agreed elsewhere in this
Lease to provide the same.

 

Operating
Costs shall not include (i) capital improvements (except as otherwise
provided above); (ii) costs of special services rendered to individual
tenants (including Tenant) for which a special charge is made;
(iii) interest and principal payments on Loans or indebtedness secured by
the Building; (iv) costs of leasehold improvements for Tenant or other
tenants of the Building; (v) costs of services or other benefits of a type
which are not available to Tenant but which are available to other tenants or
occupants, and costs for which Landlord is reimbursed by other tenants of the
Building other than through payment of tenants’ shares of increases in Operating
Costs and Taxes; (vi) leasing commissions, attorneys’ fees and other
expenses incurred in connection with leasing space in the Building or enforcing
such leases; (vii) depreciation or amortization, other than as specifically
enumerated in the definition of Operating Costs above; (viii) costs, fines
or penalties incurred due to Landlord’s violation of any Law;
(ix) advertising and promotional expenses; (x) nonrecurring costs
incurred to remedy structural defects in the original construction of the
Building; and (xi) repairs or other work needed due to fire, windstorms, or
other casualty or cause actually insured against by Landlord or to the extent
Landlord’s insurance required under Section 11.2 - Landlord’s
Insurance would
have provided coverage, whichever is greater.

 




















(4)  “Taxes” means
all real property taxes and general, special or district assessments or other
governmental impositions, of whatever kind, nature or origin, imposed on or by
reason of the ownership or use of the Property; governmental charges, fees or
assessments for transit or traffic mitigation (including area-wide traffic
improvement assessments and transportation system management fees), housing,
police, fire or other governmental service or purported benefits to the
Property; personal property taxes assessed on the personal property of Landlord
used in the operation of the Property; service payments in lieu of taxes and
taxes and assessments of every kind and nature whatsoever levied or assessed in
addition to, in lieu of or in substitution for existing or additional real or
personal property taxes on the Property or the personal property described
above; any increases in the foregoing caused by changes in assessed valuation,
tax rate or other factors or circumstances; and the reasonable cost of
contesting by appropriate proceedings the amount or validity of any taxes,
assessments or charges described above. To the extent paid by other tenants or
required to be paid by Tenant as “Tenant’s Taxes” (as defined in Section 8 -
Tenant’s Taxes), “Tenant’s Taxes” shall be excluded from Taxes, and accordingly
shall not be included in Taxes accrued in the Base Year.

 

(5)  “Tenant’s
Share” means
the Rentable Area of the Premises divided by the total Rentable Area of the
Building, as set forth in the Basic Lease Information. If the Rentable Area of
the Building is changed or the Rentable Area of the Premises is changed by
Tenant’s leasing of additional space hereunder, Tenant’s Share shall be adjusted
accordingly.

 

(b)  Additional
Rent.

 

(1)  Tenant
shall pay Landlord as “Additional
Rent” for each
calendar year or portion thereof during the Term Tenant’s Share of sum of
(x) the amount (if any) by which Operating Costs for the period exceed Base
Operating Costs, and (y) the amount (if any) by which Taxes for such period
exceed Base Taxes. It is the intention of Landlord and Tenant that the Base Rent
paid to Landlord be absolutely net of all increases in Operating Costs and Taxes
over, respectively, the Base Operating Costs and Base Taxes, and the provisions
of this Section 3.2 are intended to so provide. Tenant agrees that any
Taxes or Operating Costs that accrue or are incurred during the Term of this
Lease may be included in the calculation of Additional Rent, notwithstanding
that such Taxes or Operating Costs may be payable by Landlord in
arrears.

 

(2)  Prior to
the end of the Base Year and each calendar year thereafter, Landlord shall
notify Tenant of Landlord’s estimate of Operating Costs and Taxes and Tenant’s
Additional Rent for the following calendar year. Commencing on the first day of
January of each calendar year and continuing on the first day of every month
thereafter in such year, Tenant shall pay to Landlord one-twelfth (1/12th) of
the estimated Additional Rent. If Landlord thereafter estimates that Operating
Costs and Taxes for such year will vary from Landlord’s prior estimate, Landlord
may, by notice to Tenant, revise the estimate for each year (and Additional Rent
shall thereafter be payable based on the revised estimate).

 

(3)  As soon
as reasonably practicable after the end of the Base Year and each calendar year
thereafter, Landlord shall furnish Tenant a statement (the “Statement”) with
respect to such year, showing Operating Costs and Taxes and Additional Rent for
the year, and the total payments made by Tenant with respect thereto. Unless
Tenant raises any objections to the Statement within ninety (90) days after
receipt of the same, such Statement shall conclusively be deemed correct and
Tenant shall have no right thereafter to dispute such Statement or any item
therein or the computation of Additional Rent based thereon. If Tenant disputes
the amount of Additional Rent stated in the Statement, Tenant may, at Tenant’s
own cost and expense, designate, within ninety (90) days after receipt of that
Statement, an independent certified public accountant to inspect Landlord’s
records. Tenant is not entitled to request that inspection, however, if Tenant
is then in default under this Lease. The accountant must be a member of a
nationally recognized accounting firm and must not charge a fee based on the
amount of Additional Rent that the accountant is able to save Tenant by the
inspection. Tenant must give reasonable notice to Landlord of the request for
inspection, and the inspection must be conducted in Landlord’s offices at a
reasonable time or times. If, after that inspection, Tenant still disputes the
Additional Rent, a certification of the proper amount shall be made, at Tenant’s
expense, by Landlord’s independent certified public accountant. That
certification shall be final and conclusive. Any objection of Tenant to the
Statement and resolution of any dispute shall not postpone the time for payment
of any amounts due Tenant or Landlord based on the Statement, nor shall any
failure of Landlord to deliver the Statement in a timely manner relieve Tenant
of Tenant’s obligation to pay any amounts due Landlord based on the
Statement.

 



















 

(4)  If
Tenant’s Additional Rent as finally determined for the year exceeds the total
payments made by Tenant on account thereof, Tenant shall pay Landlord the
deficiency within ten (10) days of Tenant’s receipt of Landlord’s statement. If
the total payments made by Tenant on account thereof exceed Tenant’s Additional
Rent as finally determined for the year, Tenant’s excess payment shall be
credited toward the rent next due from Tenant under this Lease, unless such
excess is more than Two Thousand and No/100ths Dollars ($2,000.00) and Tenant is
not then in default under this Lease, in which event such excess shall be
refunded to Tenant. For any partial calendar year at the beginning or end of the
Term, Additional Rent shall be prorated on the basis of a 365-day year by
computing Tenant’s Share of increases in the Operating Costs and Taxes for the
entire year and then prorating such amount for the number of days during such
year included in the Term. Notwithstanding the termination of this Lease,
Landlord shall pay to Tenant or Tenant shall pay to Landlord, as the case may
be, within ten (10) days after Tenant’s receipt of Landlord’s final statement
for the calendar year in which this Lease terminates, the difference between
Tenant’s Additional Rent for that year, as finally determined by Landlord, and
the total amount previously paid by Tenant on account
thereof.


 

(c)  Despite
any other provision of this Section 3 to the contrary, in calculating Base
Taxes, there shall be excluded from Taxes any increase in Taxes attributable to
(i) special assessments, charges, costs, or fees; or (ii) modifications or
changes in government laws or regulations, including institution of a split tax
roll; and in calculating Base Operating Costs, there shall be excluded from
Operating Costs (i) market-wide labor-rate increases arising from extraordinary
circumstances (such as boycotts and strikes) and (ii) utility rate increases
arising from extraordinary circumstances (such as conservation surcharges,
boycotts, embargoes, or other shortages), and, (iii) any other costs of a nature
that would not ordinarily be incurred on an annual, recurring basis. If for any
reason Base Taxes or Taxes for any year during the Term are reduced, refunded or
otherwise changed, Tenant’s Additional Rent shall be adjusted accordingly. If
Taxes are temporarily reduced as a result of space in the Building being leased
to a tenant that is entitled to an exemption from property taxes or other taxes,
then for purposes of determining Additional Rent for each year in which Taxes
are reduced by any such exemption, Taxes for such year shall be calculated on
the basis of the amount the Taxes for the year would have been in the absence of
the exemption. Notwithstanding anything to the contrary in this Lease, if there
is at any time a decrease in Taxes below the amount of the Taxes for the Base
Year, then for purposes of calculating Additional Rent for the year in which
such increase occurs and all subsequent periods, Base Taxes shall be reduced to
equal the Taxes for the year in which the decrease occurs.

 

3.3  Payment
of Rent. All
amounts payable or reimbursable by Tenant under this Lease, including late
charges and interest, shall constitute rent and shall be payable and recoverable
as rent in the manner provided in this Lease. Unless otherwise specified in this
Lease, all sums payable to Landlord on demand under the terms of this Lease
shall be payable within ten (10) days after notice from Landlord of the amounts
due. All rent shall be paid without offset, recoupment or deduction, in lawful
money of the United States of America to Landlord at Landlord’s Address for
Payment of Rent as set forth in the Basic Lease Information, or to such other
person or at such other place as Landlord may from time to time designate. All
payments received by Landlord from Tenant shall be applied to the oldest payment
obligation owed by Tenant to Landlord. No designation by Tenant, either in a
separate writing or on a check or money order, shall modify this clause or have
any force or effect. If any non-cash payment made by Tenant is not paid by the
bank or other institution on which it is drawn, Landlord shall have the right,
exercised by notice to Tenant, to require that Tenant make all future payments
by certified funds or cashier’s check.

 

4.  SECURITY
DEPOSIT; LANDLORD’S LIEN.

 

4.1  Security
Deposit. On
execution of this Lease, Tenant shall deposit with Landlord the sum set forth in
the Basic Lease Information (the “Security
Deposit”), in
cash, as security for the performance of Tenant’s obligations under this Lease.
Landlord may (but shall have no obligation to) use the Security Deposit or any
portion thereof to cure any Event of Default under this Lease or to compensate
Landlord for any damage Landlord incurs as a result of Tenant’s failure to
perform any of Tenant’s obligations hereunder. In such event Tenant shall
immediately pay to Landlord an amount sufficient to replenish the Security
Deposit to the sum initially deposited with Landlord. If Tenant is not in
default at the expiration or termination of this Lease, Landlord shall return to
Tenant the Security Deposit or the balance thereof then held by Landlord and not
applied as provided above. Landlord may commingle the Security Deposit with
Landlord’s general and other funds, and Landlord shall not be required to pay
interest on the Security Deposit. Tenant shall not assign or encumber the
Security Deposit without the consent of Landlord; any attempt to do so shall be
void and not binding on Landlord. If Landlord disposes of its interest in the
Premises, Landlord shall deliver or credit the Security Deposit to Landlord’s
successor in interest and thereupon be relieved of all further responsibility
with respect to the Security Deposit. Tenant waives all provisions of law now in
force or that become in force after the date of execution of this Lease, that
provide that Landlord may claim from a security deposit only those sums
reasonably necessary to remedy defaults in the payment of rent, to repair damage
caused by Tenant, or to clean the Premises.

 




















4.2  Landlord’s
Lien.
[INTENTIONALLY OMITTED]

 

5.  USE AND
COMPLIANCE WITH LAWS.

 

5.1  Use;
Permitted Encumbrances; Suitability of Premises.

 

(a)  Use. The
Premises shall be used for general business office purposes and for no other use
or purpose. Tenant shall comply with all present and future Laws relating to
Tenant’s use or occupancy of the Premises. Tenant shall make any repairs,
alterations or improvements as required to comply with all such Laws to the
extent that such Laws relate to or are triggered by (i) Tenant’s particular
use of the Premises, (ii) the Tenant Improvements, or (iii) any
Alterations. Tenant shall observe the “Building Rules” (as defined in Section 27
- Rules and Regulations). Tenant shall not do, bring, keep or sell anything in
or about the Premises that is prohibited by, or that will cause a cancellation
of or an increase in the existing premium for, any insurance policy covering the
Property or any part thereof. Tenant shall not permit the Premises to be
occupied or used in any manner that will constitute waste or a nuisance, or
disturb the quiet enjoyment of or otherwise annoy other tenants in the Building.
Without limiting the foregoing, the Premises shall not be used for educational
activities (client and employee training excepted), practice of medicine or any
of the healing arts, providing social services, or for any governmental use
(including embassy or consulate use). Tenant shall not, without the prior
consent of Landlord, (i) bring into the Building or the Premises anything
that may cause substantial noise, odor or vibration, overload the floors in the
Premises or the Building or any of the heating, ventilating and air-conditioning
(the “HVAC”),
mechanical, elevator, plumbing, electrical, fire protection, life safety,
security or other systems in the Building (the “Building
Systems”), or
jeopardize the structural integrity of the Building or any part thereof;
(ii) connect to the utility systems of the Building any apparatus,
machinery or other equipment other than typical office equipment; or (iii)
connect (directly, or indirectly through use of intermediate devices,
electrified strip molding, or otherwise) to any electrical circuit in the
Premises any equipment or other load with aggregate connected load requirements
in excess of 20 amps.

 

(b)  Permitted
Encumbrances. Tenant
acknowledges that this Lease is subordinate and subject to all liens,
encumbrances, deeds of trust, reservations, restrictions and other matters
affecting the Property or the Premises (“Permitted
Encumbrances”), and
any law, regulation, rule, order or ordinance of any governmental entity
applicable to the Premises or the use or occupancy thereof, in effect on the
execution of this Lease or thereafter promulgated.

 

(c)  Condition
and Suitability of Premises. Tenant
acknowledges and agrees that Landlord is not obligated to perform any
improvement work in the Premises or otherwise prepare the Premises for Tenant’s
occupancy. Tenant acknowledges and agrees that it has had an opportunity to
inspect the Premises, the Building and the Property, and finds the same in
satisfactory condition and repair. Tenant accepts the Premises, the Building and
the Project in their “then as is” condition as of the date hereof. The taking of
possession of the Premises by Tenant on the Commencement Date shall conclusively
establish that the Premises, the Building and the Property were acceptable to
Tenant and in satisfactory condition and repair. Tenant acknowledges that
neither Landlord nor any of Landlord’s representatives has made any
representation or warranty with respect to the Premises, the common area or the
Property or with respect to the suitability or fitness of the same for the
conduct of Tenant’s business or for any other purpose. The taking of possession
of the Premises by Tenant shall conclusively establish that the Premises and the
Property were in satisfactory condition to conduct business at such
time.

 

5.2  Hazardous
Materials.

 

(a)  Use of
Hazardous Materials. Tenant
shall not cause or permit any Hazardous Materials, as defined below, to be
generated, brought onto, used, stored, or disposed of in or about the Premises
or the Property by Tenant or its agents, employees, contractors, subtenants,
assignees, licensees, transferees or representatives (collectively, “Representatives”) or its
guests, customers, or visitors (collectively, “Visitors”) except
for reasonable quantities of substances that are normally associated with
general office duties (such as copier fluids and cleaning supplies) or which are
otherwise approved by Landlord. Tenant shall use, store, and dispose of all such
Hazardous Materials in strict compliance with all Environmental Requirements (as
defined below), and shall comply at all times during the Lease Term with all
Environmental Requirements.

 

(b)  Definitions.
“Hazardous
Materials” shall
mean any substance: (A) that now or in the future is regulated or governed
by, requires investigation or remediation under, or is defined as a hazardous
waste, hazardous substance, pollutant or contaminant under any governmental
statute, code, ordinance, regulation, rule or order, and any amendment thereto,
including for example only the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. § 9601 et seq., and the Resource Conservation
and Recovery Act, 42 U.S.C. § 6901 et seq., or (B) that is toxic,
explosive, corrosive, flammable, radioactive, carcinogenic, dangerous or
otherwise hazardous, including gasoline, diesel fuel, petroleum hydrocarbons,
polychlorinated biphenyls (“PCBs”),
asbestos, radon and urea formaldehyde foam insulation. “Environmental
Requirements” shall
mean all present and future Laws, orders, permits, licenses, approvals,
authorizations and other requirements of any kind applicable to Hazardous
Materials.

 




















6.  ALTERATIONS.

 

6.1  Tenant
shall not make any alterations, improvements or changes to the Premises
(including installation of any security system or telephone or data
communication wiring or cabling), other than the Tenant Improvements (the
“Alterations”),
without Landlord’s prior written consent. Landlord may withhold its consent to
such Alterations in its sole discretion if the proposed Alterations would
adversely affect the structure or safety of the Building or its electrical,
plumbing, HVAC, mechanical or safety systems, or if such proposed Alterations
would create an obligation on Landlord’s part to make modifications to the
Property (in order, for example, to comply with laws such as the ADA mandating
Building accessibility for persons with disabilities); in all other
circumstances, Landlord agrees not to unreasonably withhold or delay its consent
to proposed Alterations. Any such Alterations shall be completed by Tenant at
Tenant’s sole cost and expense: (i) with due diligence, in a good and
workmanlike manner, using new materials; (ii) in compliance with plans and
specifications approved by Landlord; (iii) in compliance with the
construction rules and regulations promulgated by Landlord from time to time;
(iv) in accordance with all applicable Laws (including all work, whether
structural or non-structural, inside or outside the Premises, required to comply
fully with all applicable Laws and necessitated by Tenant’s work); and
(v) subject to all conditions which Landlord may in Landlord’s discretion
impose. Such conditions may include requirements for Tenant to: (i) provide
payment or performance bonds or additional insurance (from Tenant or Tenant’s
contractors, subcontractors or design professionals); (ii) use contractors
or subcontractors designated by Landlord; and (iii) remove all or part of
the Alterations prior to or upon expiration or termination of the Term, provided
that, at the time Landlord approves such Alterations, Landlord specifically
conditions such approval on Tenant’s agreement to remove such Alterations. If
any work outside the Premises, or any work on or adjustment to any of the
Building Systems, is required in connection with or as a result of Tenant’s
work, such work shall be performed at Tenant’s expense by contractors designated
by Landlord. Landlord’s right to review and approve (or withhold approval of)
Tenant’s plans, drawings, specifications, contractor(s) and other aspects of
construction work proposed by Tenant is intended solely to protect Landlord, the
Property and Landlord’s interests. No approval or consent by Landlord shall be
deemed or construed to be a representation or warranty by Landlord as to the
adequacy, sufficiency, fitness or suitability thereof or compliance thereof with
applicable Laws or other requirements. Except as otherwise provided in
Landlord’s consent, all Alterations shall upon installation become part of the
realty and be the property of Landlord.

 

6.2  Before
making any Alterations, Tenant shall submit to Landlord for Landlord’s prior
approval reasonably detailed final plans and specifications prepared by a
licensed architect or engineer, a copy of the construction contract, including
the name of the contractor and all subcontractors proposed by Tenant to make the
Alterations and a copy of the contractor’s license. Tenant shall reimburse
Landlord upon demand for any expenses reasonably incurred by Landlord in
connection with any Alterations made by Tenant, including reasonable fees
charged by Landlord’s contractors or consultants to review plans and
specifications prepared by Tenant and to update the existing as-built plans and
specifications of the Building to reflect the Alterations. Tenant shall obtain
all applicable permits, authorizations and governmental approvals and deliver
copies of the same to Landlord before commencement of any
Alterations.

 

6.3  Tenant
shall keep the Premises and the Property free and clear of all liens arising out
of any work performed, materials furnished or obligations incurred by Tenant. If
any such lien attaches to the Premises or the Property, and Tenant does not
cause the same to be released by payment, bonding or otherwise within ten (10)
days after the attachment thereof, Landlord shall have the right but not the
obligation to cause the same to be released, and any sums expended by Landlord
in connection therewith shall be payable by Tenant on demand with interest
thereon from the date of expenditure by Landlord at the Interest Rate (as
defined in Section 16.2 - Interest). Tenant shall give Landlord at least ten
(10) days’ notice prior to the commencement of any Alterations and cooperate
with Landlord in posting and maintaining notices of non-responsibility in
connection therewith.

 

6.4  Subject
to the provisions of Section 5 - Use and Compliance with Laws and the foregoing
provisions of this Section, Tenant may install and maintain furnishings,
equipment, movable partitions, business equipment and other trade fixtures (the
“Trade
Fixtures”) in the
Premises, provided that the Trade Fixtures do not become an integral part of the
Premises or the Building. Tenant shall promptly repair any damage to the
Premises or the Building caused by any installation or removal of such Trade
Fixtures.

 




















7.  MAINTENANCE
AND REPAIRS.

 

7.1  By
remaining in possession of the Premises as of the Commencement Date, Tenant
agrees that the Premises are then in a good and tenantable condition. Tenant
further agrees that the HVAC system serving the Premises is in good working
order as of the date of this Lease. During the Term, Tenant at Tenant’s expense
but under the direction of Landlord, shall repair and maintain the Premises,
including the interior walls, floor coverings, ceiling (ceiling tiles and grid),
Tenant Improvements, Alterations, fire extinguishers, outlets and fixtures, and
any appliances (including dishwashers, hot water heaters, garbage disposers and
any Dedicated HVAC Unit, as defined in Section 9 below) in the Premises, in a
first class condition, and keep the Premises in a clean, safe and orderly
condition.

 

7.2  Landlord
shall maintain or cause to be maintained in reasonably good order, condition and
repair, the structural portions of the roof, foundations, floors and exterior
walls of the Building, the Building Systems, and the public and common areas of
the Property, such as elevators, stairs, corridors and restrooms; provided,
however, that Tenant shall pay, within fifteen (15) days after receipt of a
written invoice from Landlord, the cost of repairs (plus an administrative fee
of fifteen percent (15%): (i) for damage occasioned by Tenant’s use of the
Premises or the Property or any act or omission of Tenant or Tenant’s
Representatives or Visitors or (ii) which are beyond the scope of Landlord’s
express maintenance and repair obligations under this Lease. Landlord shall be
under no obligation to inspect the Premises. Tenant shall promptly report in
writing to Landlord any defective condition known to Tenant which Landlord is
required to repair.

 

7.3  Landlord
hereby reserves the right, at any time and from time to time, without liability
to Tenant, and without constituting an eviction, constructive or otherwise, or
entitling Tenant to any abatement of rent or to terminate this Lease or
otherwise releasing Tenant from any of Tenant’s obligations under this
Lease:

 

(a)  To make
alterations, additions, repairs, improvements to or in or to decrease the size
of area of, all or any part of the Building (excluding the Premises), the
fixtures and equipment therein, and the Building Systems;

 

(b)  To change
the Building’s name or street address;

 

(c)  To
install and maintain any and all signs on the exterior and interior of the
Building;

 

(d)  To
reduce, increase, enclose or otherwise change at any time and from time to time
the size, number, location, lay-out and nature of the common areas and other
tenancies and premises in the Property and to create additional rentable areas
through use or enclosure of common areas;

 

(e)  To
institute any mandatory programs (such as trash recycling) for the Building that
Landlord believes, in its sole judgment, will be in the best interests of the
Building and its tenants; and

 

(f)  If any
governmental authority promulgates or revises any Law or imposes mandatory or
voluntary controls or guidelines on Landlord or the Property relating to the use
or conservation of energy or utilities or the reduction of automobile or other
emissions or reduction or management of traffic or parking on the Property
(collectively “Controls”), to
comply with such Controls, whether mandatory or voluntary, or make any
alterations to the Property related thereto.

 

8.  TENANT’S
TAXES. “Tenant’s
Taxes” shall
mean (a) all taxes, assessments, license fees and other governmental
charges or impositions levied or assessed against or with respect to Tenant’s
personal property or Trade Fixtures in the Premises, whether any such imposition
is levied directly against Tenant or levied against Landlord or the Property,
(b) all rental, excise, sales or transaction privilege taxes arising out of
this Lease (excluding, however, state and federal personal or corporate income
taxes measured by the income of Landlord from all sources) imposed by any taxing
authority upon Landlord or upon Landlord’s receipt of any rent payable by Tenant
pursuant to the terms of this Lease (the “Rental
Tax”), and
(c) any Taxes attributable to the value or cost of Tenant’s
(i) personal property, (ii) Trade Fixtures, and/or (iii) Tenant
Improvements or other Alterations (to the extent that the cost or value of such
Tenant Improvements or other Alterations made in or to the Premises or the
Building by or for Tenant exceeds the cost or value of a building-standard
build-out, as determined by Landlord, but regardless of whether title to those
improvements is vested in Tenant or Landlord). Tenant shall pay any Rental Tax
to Landlord in addition to and at the same time as Base Rent is payable under
this Lease, and shall pay all other Tenant’s Taxes before delinquency (and, at
Landlord’s request, shall furnish Landlord satisfactory evidence thereof). If
Landlord pays Tenant’s Taxes or any portion thereof, Tenant shall reimburse
Landlord upon demand for the amount of such payment, together with interest at
the Interest Rate from the date of Landlord’s payment to the date of Tenant’s
reimbursement.

 




















9.  UTILITIES
AND SERVICES.

 

9.1  Description
of Services. Subject
to the Controls (as defined in Section 7.3(f) above), Landlord shall
furnish to the Premises reasonable amounts of electricity, water, heat and
air-conditioning, and janitorial service. Landlord shall also furnish normal
fluorescent tube replacement, window washing, elevator service, and common area
toilet room supplies. Landlord shall furnish heat, ventilation and
air-conditioning during the Business Hours specified in the Basic Lease
Information (“Business
Hours”). As
used in this Lease, the term “Business
Days” means
weekdays except generally recognized holidays. Any additional utilities or
services that Landlord may agree to provide (including lamp or tube replacement
for other than building standard lighting fixtures) shall be at Tenant’s sole
expense.

 

9.2  Payment
for Additional Utilities and Services.

 

(a)  Upon
request by Tenant in accordance with the procedures established by Landlord from
time to time for furnishing HVAC service at times other than Business Hours on
Business Days, Landlord shall furnish such service to Tenant and Tenant shall
pay for such services on an hourly basis at the then prevailing rate established
for the Building by Landlord. If such extended service is not a continuation of
that furnished during regular Business Hours as described above, Landlord may
require that Tenant pay for a minimum of three (3) hours of such
service.

 

(b)  If the
temperature otherwise maintained in any portion of the Premises by the HVAC
systems of the Building is affected as a result of (i) any lights, machines
or equipment used by Tenant in the Premises, or (ii) the occupancy of the
Premises by more than one person per 150 square feet of rentable area, then
Landlord shall have the right to install any machinery or equipment reasonably
necessary to restore the temperature, including modifications to the standard
air-conditioning equipment. The cost of any such equipment and modifications,
including the cost of installation and any additional cost of operation and
maintenance of the same, shall be paid by Tenant to Landlord upon
demand.

 

(c)  If
Tenant’s usage of electricity exceeds the Building’s standard electrical usage,
Landlord may determine the amount of such excess use by any reasonable means
(including the installation by Landlord but at Tenant’s expense of a separate
meter or other measuring device) and charge Tenant for the cost of such excess
usage. In addition, Landlord may impose a reasonable charge for the use of any
additional or unusual janitorial services required by Tenant because of any
unusual Tenant Improvements or Alterations, the carelessness of Tenant or the
nature of Tenant’s business (including hours of operation).

 

(d)  If there
is any HVAC or other cooling system located in the Premises that is dedicated to
Tenant’s computers or other equipment (such dedicated system is referred to in
this Lease as a “Dedicated
HVAC Unit”),
Landlord may determine the amount of gas, electricity or other utility costs
attributable to such Dedicated HVAC Unit by any reasonable means (including the
installation by Landlord but at Tenant’s expense of a separate meter or other
measuring device) and charge Tenant for such costs.

 

(e)  Tenant
acknowledges that Landlord’s obligations pursuant to Section 9.1 to provide
janitorial services to the Premises excludes any portions of the Premises not
used as office areas (e.g., closets, storage rooms, mailrooms, computer areas,
laboratories, and areas used for the storage, preparation, service, or
consumption of food or beverages). Tenant, at its sole cost and expense, shall
cause all portions of the Premises not used as office areas to be cleaned on a
regular basis in a manner and by a person or entity satisfactory to Landlord.
Tenant shall contract directly with Landlord or, at Landlord’s option, directly
with Landlord’s contractor for cleaning services in excess of those furnished by
Landlord in accordance with this Lease.

 

9.3  Interruption
of Services. In the
event of an interruption in or failure or inability to provide any services or
utilities to the Premises or Building for any reason (a “Service
Failure”), such
Service Failure shall not, regardless of its duration, impose upon Landlord any
liability whatsoever, constitute an eviction of Tenant, constructive or
otherwise, entitle Tenant to an abatement of rent or to terminate this Lease or
otherwise release Tenant from any of Tenant’s obligations under this Lease.
Tenant hereby waives any benefits of any applicable existing or future Law
permitting the termination of this Lease due to such interruption, failure or
inability.

 

9.4  Utilities
and Services Furnished by Tenant. Except
as provided in Sections 9.1 and 9.2 or in the Construction Rider (if any),
Tenant shall be solely responsible for the furnishing and direct payment
(including, without limitation, hook-up and connection charges) of all other
utilities which are separately metered or separately charged (including, without
limitation, telephone, cable television and any other special utility
requirements of Tenant if available), if any, to the Premises or to Tenant and
shall make such payments to the respective utility companies prior to the
delinquency.

 




















9.5  Utility
Providers.
Landlord may, in Landlord’s sole and absolute discretion, at any time and from
time to time, contract, or require Tenant to contract, for utility services
(including generation, transmission, or delivery of the utility service) with a
utility service provider of Landlord’s choosing. Tenant shall fully cooperate
with Landlord and any utility service provider selected by Landlord. Tenant
shall permit Landlord and the utility service provider to have reasonable access
to the Premises and the utility equipment serving the Premises, including lines,
feeders, risers, wiring, pipes, and meters. Tenant shall either pay or reimburse
Landlord for all costs associated with any change of utility service, including
the cost of any new utility equipment, within ten (10) days after Landlord’s
written demand for payment or reimbursement. Under no circumstances shall
Landlord be responsible or liable for any loss, damage, or expense that Tenant
may incur as a result of any change of utility service, including any change
that makes the utility supplied less suitable for Tenant’s needs, or for any
failure, interference, or defect in any utility service. No such change,
failure, interference, or defect shall constitute an actual or constructive
eviction of Tenant, or entitle Tenant to any abatement of rent, or relieve
Tenant from any of Tenant’s obligations under this Lease.

 

10.  EXCULPATION
AND INDEMNIFICATION.

 

10.1  Landlord
shall not be liable to Tenant for any loss, injury or other damage to any person
or property (including Tenant or Tenant’s property) in or about the Premises or
the Property from any cause (including defects in the Property or in any
equipment in the Property; fire, explosion or other casualty; bursting, rupture,
leakage or overflow of any plumbing or other pipes or lines, sprinklers, tanks,
drains, drinking fountains or washstands in, above, or about the Premises or the
Property; or acts of other tenants in the Property). Tenant hereby waives all
claims against Landlord for such damage and the cost and expense of defending
against claims relating to such damage, except that Landlord shall indemnify,
defend and hold Tenant harmless from and against any claims, actions,
liabilities, damages, costs or expenses, including reasonable attorneys’ fees
and costs incurred in defending against the same (the “Claims”) for
such damages, to the extent the same are (x) caused by the willful or
negligent acts or omissions of Landlord or its authorized representatives and
(y) are not covered by insurance actually carried (or required to be
carried) by Tenant.

 

10.2  Tenant
shall indemnify, defend and hold Landlord harmless from and against Claims
arising from (a) the acts or omissions of Tenant or Tenant’s
Representatives or Visitors in or about the Property, or (b) any
construction or other work undertaken by Tenant on the Premises (including any
design defects), or (c) any breach or default under this Lease by Tenant,
or (d) any accident, injury or damage, howsoever and by whomsoever caused,
to any person or property, occurring in or about the Premises during the Term;
excepting only such Claims for any accident, injury or damage to the extent they
are caused by the negligent or willful acts or omissions of Landlord or its
authorized representatives.

 

10.3  The
obligations of the parties under this Section 10 shall survive the expiration or
termination of this Lease.

 

11.  INSURANCE.

 

11.1  Tenant’s
Insurance.

 

(a)  Tenant
shall maintain in full force throughout the Term, commercial general liability
insurance providing coverage on an occurrence form basis with limits of not less
than Two Million and No/100ths Dollars ($2,000,000.00) each occurrence for
bodily injury and property damage combined, Five Million and No/100ths Dollars
($5,000,000.00) annual general aggregate, and Two Million and No/100ths Dollars
($2,000,000.00) products and completed operations annual aggregate. Tenant’s
liability insurance policy or policies shall: (i) include premises and
operations liability coverage, products and completed operations liability
coverage, broad form property damage coverage, blanket contractual liability
coverage including, to the maximum extent possible, coverage for the
indemnification obligations of Tenant under this Lease, and personal and
advertising injury coverage; (ii) provide that the insurance company has
the duty to defend all insureds under the policy; (iii) provide that
defense costs are paid in addition to and do not deplete any of the policy
limits; (iv) cover liabilities arising out of or incurred in connection
with Tenant’s use or occupancy of the Premises or the Property; and
(v) extend coverage to cover liability for the actions of Tenant’s
Representatives and Visitors.

 

(b)  Tenant
shall at all times maintain in effect with respect to any Alterations and
Tenant’s Trade Fixtures and personal property, commercial property insurance
providing coverage, at a minimum, for “special form” perils, to the extent of
eighty percent (80%) of the full replacement cost of covered property, and for
business income coverage (limited to $150,000) for a minimum of twelve (12)
months. Tenant may carry such insurance under a blanket policy, provided that
such policy provides equivalent coverage to a separate policy. During the Term,
the proceeds from any such policies of insurance shall be used for the repair or
replacement of the Alterations, Trade Fixtures and personal property so insured.
Landlord shall be provided coverage under such insurance to the extent of its
insurable interest and, if requested by Landlord, both Landlord and Tenant shall
sign all documents reasonably necessary or proper in connection with the
settlement of any claim or loss under such insurance. Landlord will have no
obligation to carry insurance on any Alterations or on Tenant’s Trade Fixtures
or personal property.

 




















(c)  Each
policy of insurance required under this Section shall: (i) be in a form,
and written by an insurer, reasonably acceptable to Landlord, (ii) be
maintained at Tenant’s sole cost and expense, and (iii) require at least
thirty (30) days’ written notice to Landlord prior to any cancellation,
nonrenewal or modification of insurance coverage. Insurance companies issuing
such policies shall have rating classifications of “A” or better and financial
size category ratings of “VII” or better according to the latest edition of the
A.M. Best Key Rating Guide. All insurance companies issuing such policies shall
be licensed to do business in the state where the Property is located. Any
deductible amount under such insurance shall not exceed Twenty-Five Thousand and
No/100ths Dollars ($25,000.00). Tenant shall provide to Landlord evidence that
the insurance required to be carried by Tenant pursuant to this Section,
including any endorsement effecting the additional insured status, is in full
force and effect and that premiums therefor have been paid. Such evidence shall,
at Landlord’s discretion, be in either form of an ACORD Form 27
(Certificate of Insurance) (or its equivalent) or a certified copy of the
original policy, in either event providing that the insurer will provide
Landlord with at least thirty (30) days prior written notice before any
termination or amendment to the policy.

 

(d)  Tenant
shall increase the amounts of insurance as required by any Mortgagee, and, not
more frequently than once every three (3) years, as recommended by Landlord’s
insurance broker, if, in the opinion of either of them, the amount of insurance
then required under this Lease is not adequate. Any limits set forth in this
Lease on the amount or type of coverage required by Tenant’s insurance shall not
limit the liability of Tenant under this Lease.

 

(e)  Each
policy of liability insurance required by this Section shall: (i) contain a
cross liability endorsement or separation of insureds clause; (ii) provide
that any waiver of subrogation rights or release prior to a loss does not void
coverage; (iii) provide that it is primary to and not contributing with,
any policy of insurance carried by Landlord covering the same loss;
(iv) provide that any failure to comply with the reporting provisions shall
not affect coverage provided to Landlord, its partners, property managers and
Mortgagees; and (v) name Landlord, its partners, the property manager, and
such other parties in interest as Landlord may from time to time reasonably
designate to Tenant in writing, as additional insureds. Such additional insureds
shall be provided the same extent of coverage as provided to Tenant under such
policies. All endorsements effecting such additional insured status shall be
acceptable to Landlord and shall be at least as broad as additional insured
endorsement form number CG 20 26 11 85 promulgated by the Insurance Services
Office.

 

(f)  Prior to
occupancy of the Premises by Tenant, and not less than thirty (30) days prior to
expiration of any policy thereafter, Tenant shall furnish to Landlord a
certificate of insurance or certified policy of insurance reflecting that the
insurance required by this Section is in force, accompanied by an endorsement
showing the required additional insureds satisfactory to Landlord in substance
and form. Notwithstanding the requirements of this section, Tenant shall at
Landlord’s request provide to Landlord a certified copy of each insurance policy
required to be in force at any time pursuant to the requirements of this Lease
or its Exhibits.

 

11.2  Landlord’s
Insurance. During
the Term, Landlord shall maintain in effect insurance on the Building against
“special form” perils (to the extent such coverages are available), with
responsible insurers, insuring the Building and the Tenant Improvements in an
amount equal to at least eighty percent (80%) of the replacement cost thereof,
excluding land, foundations, footings and underground installations. Landlord
may, but shall not be obligated to, carry insurance against additional perils
and/or in greater amounts.

 

11.3  Property
Insurance - Waiver of Subrogation.
Landlord and Tenant each hereby waive any right of recovery against the other
and the partners, members, shareholders, officers, directors and authorized
representatives of the other for any loss or damage that is covered by any
policy of property insurance maintained by either party (or required by this
Lease to be maintained) with respect to the Premises or the Property or any
operation therein. If any such policy of insurance relating to this Lease or to
the Premises or the Property does not permit the foregoing waiver or if the
coverage under any such policy would be invalidated as a result of such waiver,
the party maintaining such policy shall obtain from the insurer under such
policy a waiver of all right of recovery by way of subrogation against either
party in connection with any claim, loss or damage covered by such
policy.

 




















12.  DAMAGE OR
DESTRUCTION.

 

12.1  Landlord’s
Duty to Repair.

 

(a)  If all or
a substantial part of the Premises are rendered untenantable or inaccessible by
damage to all or any part of the Property from fire or other casualty then,
unless either party is entitled to and elects to terminate this Lease pursuant
to Sections 12.2 - Landlord’s Right to Terminate and 12.3 - Tenant’s Right to
Terminate, Landlord shall, at its expense, use reasonable efforts to repair and
restore the Premises and/or the Property, as the case maybe, to substantially
their former condition to the extent permitted by then applicable Laws;
provided, however, that in no event shall Landlord have any obligation for
repair or restoration beyond the extent of insurance proceeds received by
Landlord for such repair or restoration, or for any of Tenant’s personal
property, Trade Fixtures or Alterations.

 

(b)  If
Landlord is required or elects to repair damage to the Premises and/or the
Property, this Lease shall continue in effect, but Tenant’s Base Rent and
Additional Rent from the date of the casualty through the date of substantial
completion of the repair shall be abated with regard to any portion of the
Premises that Tenant is prevented from using by reason of such damage or its
repair. In no event shall Landlord be liable to Tenant by reason of any injury
to or interference with Tenant’s business or property arising from fire or other
casualty or by reason of any repairs to any part of the Property necessitated by
such casualty.

 

12.2  Landlord’s
Right to Terminate.
Landlord may elect to terminate this Lease following damage by fire or other
casualty under the following circumstances:

 

(a)  If, in
the reasonable judgment of Landlord, the Premises and the Property cannot be
substantially repaired and restored under applicable Laws within one (1) year
from the date of the casualty;

 

(b)  If, in
the reasonable judgment of Landlord, adequate proceeds are not, for any reason,
made available to Landlord from Landlord’s insurance policies (and/or from
Landlord’s funds made available for such purpose, at Landlord’s sole option) to
make the required repairs;

 

(c)  If the
Building is damaged or destroyed to the extent that, in the reasonable judgment
of Landlord, the cost to repair and restore the Building would exceed
twenty-five percent (25%) of the full replacement cost of the Building, whether
or not the Premises are at all damaged or destroyed; or

 

(d)  If the
fire or other casualty occurs during the last year of the Term.

 

If any of
the circumstances described in subsections (a), (b), (c) or (d) of this
Section 12.2 occur or arise, Landlord shall notify Tenant in writing of
that fact within ninety (90) days after the date of the casualty and in such
notice Landlord shall also advise Tenant whether Landlord has elected to
terminate this Lease as provided above.

 

12.3  Tenant’s
Right to Terminate. If all
or a substantial part of the Premises are rendered untenantable or inaccessible
by damage to all or any part of the Property from fire or other casualty, then
Tenant may elect to terminate this Lease under the following
circumstances:

 

(a)  Where
Landlord fails to commence the required repair within one hundred and twenty
(120) days after the date of the casualty, in which event Tenant may elect to
terminate this Lease upon notice to Landlord given within ten (10) days after
such one hundred and twenty (120)-day period; or

 

(b)  In the
circumstance described in Section 12.2(a) above; in which event Tenant may elect
to terminate this Lease by giving Landlord notice of such election to terminate
within thirty (30) days after Landlord’s notice to Tenant pursuant to Section
12.2 - Landlord’s Right to Terminate.

 

12.4  Waiver.
Landlord and Tenant each hereby waive any applicable existing or future Law
permitting the termination of a lease agreement in the event of damage or
destruction under any circumstances other than as provided in Sections 12.2 -
Landlord’s Right to Terminate and 12.3 - Tenant’s Right to
Terminate.

 

13.  CONDEMNATION.

 

13.1  Definitions.

 

(a)  “Award” shall
mean all compensation, sums, or anything of value awarded, paid or received on a
total or partial Condemnation.

 




















(b)  “Condemnation” shall
mean (i) a permanent taking (or a temporary taking for a period extending
beyond the end of the Term) pursuant to the exercise of the power of
condemnation or eminent domain by any public or quasi-public authority, private
corporation or individual having such power (“Condemnor”),
whether by legal proceedings or otherwise, or (ii) a voluntary sale or
transfer by Landlord to any such authority, either under threat of condemnation
or while legal proceedings for condemnation are pending.

 

(c)  “Date
of Condemnation” shall
mean the earlier of the date that title to the property taken is vested in the
Condemnor or the date the Condemnor has the right to possession of the property
being condemned.

 

13.2  Effect
on Lease.

 

(a)  If the
Premises are totally taken by Condemnation, this Lease shall terminate as of the
Date of Condemnation. If a portion but not all of the Premises is taken by
Condemnation, this Lease shall remain in effect; provided, however, that if the
portion of the Premises remaining after the Condemnation will be unsuitable for
Tenant’s continued use, then upon notice to Landlord within thirty (30) days
after Landlord notifies Tenant of the Condemnation, Tenant may terminate this
Lease effective as of the Date of Condemnation.

 

(b)  If
twenty-five percent (25%) or more of the Land or of the Parking Facility or of
the floor area in the Building is taken by Condemnation, or if as a result of
any Condemnation the Building is no longer reasonably suitable for use as an
office building, whether or not any portion of the Premises is taken, Landlord
may elect to terminate this Lease, effective as of the Date of Condemnation, by
notice to Tenant within thirty (30) days after the Date of
Condemnation.

 

(c)  If all or
a portion of the Premises is temporarily taken by a Condemnor for a period not
extending beyond the end of the Term, this Lease shall remain in full force and
effect.

 

13.3  Restoration. If this
Lease is not terminated as provided in Section 13.2 - Effect on Lease, Landlord,
at its expense, shall diligently proceed to repair and restore the Premises to
substantially its former condition (to the extent permitted by then applicable
Laws) and/or repair and restore the Building to an architecturally complete
office building; provided, however, that Landlord’s obligations to so repair and
restore shall be limited to the amount of any Award received by Landlord and not
required to be paid to any Mortgagee (as defined in Section 20.5 below). In no
event shall Landlord have any obligation to repair or replace any improvements
in the Premises beyond the amount of any Award received by Landlord for such
repair or to repair or replace any of Tenant’s personal property, Trade
Fixtures, or Alterations.

 

13.4  Abatement
and Reduction of Rent. If any
portion of the Premises is taken in a Condemnation or is rendered permanently
untenantable by repairs necessitated by the Condemnation, and this Lease is not
terminated, the Base Rent and Additional Rent payable under this Lease shall be
proportionally reduced as of the Date of Condemnation based upon the percentage
of rentable square feet in the Premises so taken or rendered permanently
untenantable. In addition, if this Lease remains in effect following a
Condemnation and Landlord proceeds to repair and restore the Premises, the Base
Rent and Additional Rent payable under this Lease shall be abated during the
period of such repair or restoration to the extent such repairs prevent Tenant’s
use of the Premises.

 

13.5  Awards. Any
Award made shall be paid to Landlord, and Tenant hereby assigns to Landlord, and
waives all interest in or claim to, any such Award, including any claim for the
value of the unexpired Term; provided, however, that Tenant shall he entitled to
receive, or to prosecute a separate claim for, an Award for a temporary taking
of the Premises or a portion thereof by a Condemnor where this Lease is not
terminated (to the extent such Award relates to the unexpired Term), or an Award
or portion thereof separately designated for relocation expenses or the
interruption of or damage to Tenant’s business or as compensation for Tenant’s
personal property, Trade Fixtures or Alterations.

 

13.6  Waiver.
Landlord and Tenant each hereby waive any applicable existing or future Law
allowing either party to petition for a termination of this Lease upon a partial
taking of the Premises and/or the Property.

 

14.  ASSIGNMENT
AND SUBLETTING.

 




















14.1  Landlord’s
Consent Required. Tenant
shall not assign, mortgage, pledge, hypothecate or encumber this Lease or any
interest therein, or sublet or license or permit the use or occupancy of the
Premises or any part thereof by or for the benefit of anyone other than Tenant,
or in any other manner transfer all or any part of Tenant’s interests under this
Lease (each and all a “Transfer”),
without the prior written consent of Landlord, which (subject to the other
provisions of this Section 14) shall not be unreasonably withheld.
Notwithstanding any provision in this Lease to the contrary, Tenant shall not
mortgage, pledge, hypothecate or otherwise encumber all or any portion of
Tenant’s interest under this Lease. For purposes of this Section 14, “Transfer”
also includes: (a) if Tenant is a partnership or limited liability company (1) a
change in ownership effected voluntarily, involuntarily, or by operation of law,
within a twelve (12)-month period of twenty-five percent (25%) or more of the
partners or members or twenty-five percent (25%) or more of the partnership or
membership interests; or (2) the dissolution of the partnership or limited
liability company without its immediate reconstitution; (b) if Tenant is a
closely held corporation (i.e., one whose stock is not publicly held and not
traded through an exchange or over the counter): (1) the sale or other transfer,
within a twelve (12)-month period of more than an aggregate of twenty-five
percent (25%) of the voting shares of Tenant (other than to immediate family
members by reason of gift or death); (2) the sale, mortgage, hypothecation, or
pledge, within a twelve (12)-month period of more than an aggregate of
twenty-five percent (25%) of the value of Tenant’s unencumbered assets; or (3)
the dissolution, merger, consolidation, or other reorganization of
Tenant.

 

14.2  Reasonable
Consent.

 

(a)  If Tenant
complies with the following conditions, Landlord shall not unreasonably withhold
its consent to the subletting of the Premises or any portion thereof or the
assignment of this Lease. Prior to any proposed Transfer, Tenant shall submit in
writing to Landlord (i) the name and legal composition of the proposed assignee,
subtenant, user or other transferee (each a “Transferee”); (ii)
the nature of the business proposed to be carried on in the Premises; (iii) a
current balance sheet, income statements for the last two years and such other
reasonable financial and other information concerning the proposed Transferee as
Landlord may request; and (iv) a copy of the proposed assignment, sublease or
other agreement governing the proposed Transfer. Within ten (10) Business Days
after Landlord receives all such information it shall notify Tenant whether it
approves or disapproves such Transfer or if it elects to proceed under Section
14.7 - Landlord’s Right to Space.

 

(b)  The
parties hereto agree and acknowledge that, among other circumstances for which
Landlord could reasonably withhold consent to a proposed Transfer, it shall be
reasonable for Landlord to withhold consent where (i) the proposed Transferee
does not intend itself to occupy the entire portion of the Premises assigned or
sublet, (ii) Landlord reasonably disapproves of the Transferee’s business
operating ability or history, reputation or creditworthiness or the character of
the business to be conducted by the Transferee at the Premises, (iii) the
Transferee is a governmental agency or unit, (iv) the Transferee is an existing
tenant in the Building (or another building owned or controlled by Landlord or
an affiliate of Landlord; such other buildings and the Building are hereinafter
collectively referred to in this Section 14 as the “Project”) or a
party with whom Landlord has negotiated to lease space in the Project within the
preceding six (6) months, (v) the proposed Transfer would violate any
“exclusive” rights of any tenants in the Project, (vi) Tenant is in default
under this Lease, (vii) such Transferee’s proposed use is not permitted under
Section 5 - Use and Compliance with Laws, (viii) such Transferee’s proposed use
would increase the density of occupation in the Premises or use of the
Building’s parking facilities, (ix) the Transfer would result in there being
more than two (2) separate entities or businesses occupying the Premises, (x)
the Transfer would constitute a sub-sublease, or (xi) Landlord otherwise
determines that the proposed Transfer would have the effect of decreasing the
value of the Building or increasing the expenses associated with operating,
maintaining and repairing the Building. In no event may Tenant publicly offer or
advertise all or any portion of the Premises for assignment or sublease at a
rental less than that then sought by Landlord for a direct lease (non-sublease)
of comparable space in the Building (or the Project if the Building is fully
leased).

 

14.3  Excess
Consideration. If
Landlord consents to the assignment or sublease, Landlord shall be entitled to
receive as additional Rent hereunder an amount equal to fifty percent (50%) of
the amount (if any) by which the total value of (x) any consideration paid by
the Transferee for the assignment or sublease and, in the case of a sublease,
the excess of the rent and other consideration payable by the subtenant over the
amount of Base Rent and Additional Rent payable hereunder applicable to the
subleased space, exceeds (y) the reasonable direct, out-of-pocket costs (such
as, but not necessarily limited to, reasonable brokerage commissions, tenant
improvement costs, attorneys’ fees, and other cash concessions as may be
typical, reasonable and appropriate under then prevailing market conditions)
actually and necessarily paid by Tenant to third parties not affiliated with
Tenant to procure the assignment or sublease.

 

14.4  No
Release of Tenant. No
consent by Landlord to any Transfer shall relieve Tenant of any obligation to be
performed by Tenant under this Lease, whether occurring before or after such
consent, assignment, subletting or other Transfer. Each Transferee shall be
jointly and severally liable with Tenant (and Tenant shall be jointly and
severally liable with each Transferee) for the payment of rent (or, in the case
of a sublease, rent in the amount set forth in the sublease) and for the
performance of all other terms and provisions of this Lease. The consent by
Landlord to any Transfer shall not relieve Tenant or any such Transferee from
the obligation to obtain Landlord’s express prior written consent to any
subsequent Transfer by Tenant or any Transferee. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision of this Lease or to be a consent to any Transfer.

 




















14.5  Expenses
and Attorneys’ Fees. Tenant
shall pay to Landlord on demand all costs and expenses (including reasonable
attorneys’ fees) incurred by Landlord in connection with reviewing or consenting
to any proposed Transfer (including any request for consent to, or any waiver of
Landlord’s rights in connection with, any security interest in any of Tenant’s
property at the Premises).

 

14.6  Effectiveness
of Transfer. Prior
to the date on which any permitted Transfer (whether or not requiring Landlord’s
consent) becomes effective, Tenant shall deliver to Landlord a counterpart of
the fully executed Transfer document and Landlord’s standard form of consent to
assignment or consent to sublease executed by Tenant and the Transferee in which
each of Tenant and the Transferee confirms its obligations pursuant to this
Lease. Failure or refusal of a Transferee to execute any such instrument shall
not release or discharge the Transferee from liability as provided herein. The
voluntary, involuntary or other surrender of this Lease by Tenant, or a mutual
cancellation by Landlord and Tenant, shall not work a merger, and any such
surrender or cancellation shall, at the option of Landlord, either terminate all
or any existing subleases or operate as an assignment to Landlord of any or all
of such subleases.

 

14.7  Landlord’s
Right to Space.
Notwithstanding any of the above provisions of this section to the contrary, if
Tenant notifies Landlord that it desires to enter into a Transfer, Landlord, in
lieu of consenting to such Transfer, may elect (x) in the case of an assignment
or a sublease of the entire Premises, to terminate this Lease, or (y) in the
case of a sublease of less than the entire Premises, to terminate this Lease as
it relates to the space proposed to be subleased by Tenant. In such event, this
Lease will terminate (or the space proposed to be subleased will be removed from
the Premises subject to this Lease and the Base Rent and Tenant’s Share under
this Lease shall be proportionately reduced) on the date the Transfer was
proposed to be effective, and Landlord may lease such space to any party,
including the prospective Transferee identified by Tenant.

 

14.8  Assignment
of Sublease Rents. Tenant
hereby absolutely and irrevocably assigns to Landlord any and all rights to
receive rent and other consideration from any sublease and agrees that Landlord,
as assignee or as attorney-in-fact for Tenant for purposes hereof, or a receiver
for Tenant appointed on Landlord’s application may (but shall not be obligated
to) collect such rents and other consideration and apply the same toward
Tenant’s obligations to Landlord under this Lease; provided, however, that
Landlord grants to Tenant at all times prior to occurrence of any breach or
default by Tenant a revocable license to collect such rents (which license shall
automatically and without notice be and be deemed to have been revoked and
terminated immediately upon any Event of Default).

 

14.9  Transfer
to Affiliate. Tenant
may assign this Lease or sublet the Premises or any portion thereof, without
Landlord’s written consent, but subject to all other provisions of this Lease,
to any corporation or other entity which controls, is controlled by, or is under
common control with Tenant, or to any corporation or other entity resulting from
a merger or consolidation of Tenant (collectively, an “Affiliate”),
subject to all the terms of this Lease (except only that Landlord shall not be
entitled to terminate this Lease pursuant to Section 14.7 - Landlord’s Right to
Space upon such an assignment or sublease to an Affiliate), provided that (i)
the Affiliate assumes in writing all of Tenant’s obligations under this Lease,
and (i) the original entity executing this Lease as “Tenant” remains fully
liable under this Lease, and (iii) Landlord receives written notification of
such transfer and provides Landlord with all relevant documents requested by
Landlord, at least twenty (20) days prior to the effective date of such
transfer, and (iv) Tenant is not then and has not been in default under this
Lease; and (v) the intended Transferee has a tangible net worth, as evidenced by
financial statements delivered to Landlord and certified by an independent
certified public accountant in accordance with generally accepted accounting
principles that are consistently applied (“Net
Worth”), at
least equal to Tenant’s Net Worth either immediately before the Transfer or as
of the date of this Lease, whichever is greater, and (vi) such Transfer is not a
subterfuge by Tenant to avoid its obligations under this Lease or the
restrictions on Transfers under this Section 14; Tenant shall have the burden of
establishing that all the terms of this Section 14.9 have been
satisfied.

 

14.10  Effect
of Impermissible Transfer. Any
Transfer effected without Landlord’s consent in violation of this Section 14
shall, at Landlord’s option, be a noncurable Event of Default under Section 15.1
without the necessity of any notice and grace period. If Landlord elects to
treat such unapproved Transfer as a noncurable Event of Default, Landlord may,
in addition to all other remedies provided for in Section 15.2 below, increase
the monthly Base Rent to one hundred ten percent (110%) of the Base Rent then in
effect.

 

15.  DEFAULT
AND REMEDIES.

 

15.1  Events
of Default. The
occurrence of any of the following shall constitute an “Event
of Default” by
Tenant:

 




















(a)  Tenant
fails to timely make any payment of rent when due, or any amount required to
replenish the Security Deposit as provided in Section 4 above, if payment in
full is not received by Landlord within five (5) days after written notice that
it is due;

 

(b)  [INTENTIONALLY
OMITTED];

 

(c)  Tenant
fails to deliver any estoppel certificate requested by Landlord within the
period described in Section 21.1 - Estoppel Certificates;

 

(d)  Tenant
violates the restrictions on Transfer set forth in Section 14 - Assignment and
Subletting;

 

(e)  Tenant
fails to timely deliver any documents under Section 20 -
Encumbrances;

 

(f)  Tenant
ceases doing business as a going concern; makes an assignment for the benefit of
creditors; is adjudicated an insolvent; files a petition (or files an answer
admitting the material allegations of a petition) seeking relief under any under
any state or federal bankruptcy or other statute, law or regulation affecting
creditors’ rights; all or substantially all of Tenant’s assets are subject to
judicial seizure or attachment and are not released within thirty (30) days; or
Tenant consents to or acquiesces in the appointment of a trustee, receiver or
liquidator for Tenant or for all or any substantial part of Tenant’s
assets;

 

(g)  Tenant
fails, within ninety (90) days after the commencement of any proceedings against
Tenant seeking relief under any state or federal bankruptcy or other statute,
law or regulation affecting creditors’ rights, to have such proceedings
dismissed, or Tenant fails, within ninety (90) days after an appointment,
without Tenant’s consent or acquiescence, of any trustee, receiver or liquidator
for Tenant or for all or any substantial part of Tenant’s assets, to have such
appointment vacated; or

 

(h)  Tenant
fails to perform or comply with any provision of this Lease other than those
described in (a) through (g) above, and does not fully cure such failure within
fifteen (15) days after notice to Tenant or, if such failure cannot be cured
within such fifteen (15)-day period, Tenant fails within such fifteen (15)-day
period to commence, and thereafter diligently proceed with, all actions
necessary to cure such failure as soon as reasonably possible but in all events
within ninety (90) days of such notice; provided, however, that if Landlord in
Landlord’s reasonable judgment determines that such failure cannot or will not
be cured by Tenant within such ninety (90) days, then such failure shall
constitute an Event of Default immediately upon such notice to
Tenant.

 

15.2  Remedies. Upon
the occurrence of an Event of Default, Landlord shall have the following
remedies, which shall not be exclusive but shall be cumulative and shall be in
addition to any other remedies now or hereafter allowed by law:

 

(a)  Landlord
may terminate Tenant’s right to possession of the Premises at any time by
written notice to Tenant. Tenant expressly acknowledges that in the absence of
such written notice from Landlord, no other act of Landlord, including re-entry
into the Premises, efforts to relet the Premises, reletting of the Premises for
Tenant’s account, storage of Tenant’s personal property and Trade Fixtures,
acceptance of keys to the Premises from Tenant or exercise of any other rights
and remedies under this section, shall constitute an acceptance of Tenant’s
surrender of the Premises or constitute a termination of this Lease or of
Tenant’s right to possession of the Premises. Upon such termination in writing
of Tenant’s right to possession of the Premises, as herein provided, this Lease
shall terminate and Landlord shall be entitled to recover damages from Tenant as
provided in any applicable existing or future Law providing for recovery of
damages for such breach, including:

 

(i) The worth
at the time of the award of any unpaid rent that had been earned at the time of
the termination, to be computed by allowing interest at the Interest Rate set
forth in Section 16.2 but in no case greater than the maximum amount of interest
permitted by law;

 

(ii) The worth
at the time of the award of the amount by which the unpaid rent that would have
been earned between the time of the termination and the time of the award
exceeds the amount of unpaid Rent that Tenant proves could reasonably have been
avoided, to be computed by allowing interest at the Interest Rate set forth in
Section 16.2 but in no case greater than the maximum amount of interest
permitted by law;

 

(iii) The worth
at the time of the award of the amount by which the unpaid rent for the balance
of the Lease term after the time of the award exceeds the amount of unpaid rent
that Tenant proves could reasonably have been avoided, to be computed by
discounting that amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award plus one percent (1%);

 




















(iv) Any other
amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant’s failure to perform obligations under this Lease, including brokerage
commissions and advertising expenses, expenses of remodeling the Premises for a
new tenant (whether for the same or a different use), and any special
concessions made to obtain a new tenant; and

 

(v) Any other
amounts, in addition to or in lieu of those listed above, that may be permitted
by applicable law.

 

(b)  Landlord
may continue this Lease in effect after Tenant’s breach and abandonment and
recover rent as it becomes due, if Tenant has the right to sublet or assign,
subject only to reasonable limitations.

 

(c)  Landlord
may cure the Event of Default at Tenant’s expense. If Landlord pays any sum or
incurs any expense in curing the Event of Default, Tenant shall reimburse
Landlord upon demand for the amount of such payment or expense with interest at
the Interest Rate from the date the sum is paid or the expense is incurred until
Landlord is reimbursed by Tenant.

 

(d)  Landlord
may remove all Tenant’s property from the Premises, and such property may be
stored by Landlord in a public warehouse or elsewhere at the sole cost and for
the account of Tenant. If Landlord does not elect to store any or all of
Tenant’s property left in the Premises, Landlord may consider such property to
be abandoned by Tenant, and Landlord may thereupon dispose of such property in
any manner deemed appropriate by Landlord. Any proceeds realized by Landlord on
the disposal of any such property shall be applied first to offset all expenses
of storage and sale, then credited against Tenant’s outstanding obligations to
Landlord under this Lease, and any balance remaining after satisfaction of all
obligations of Tenant under this Lease shall be delivered to
Tenant.

 

15.3  Transfers
of Tenant. Whether
or not Landlord elects to terminate this Lease on account of any default by
Tenant, as set forth in this Section 15, Landlord shall have the right to
terminate any and all Transfers entered into by Tenant and affecting the
Premises or may, in Landlord’s sole discretion, succeed to Tenant’s interest in
such Transfers. In the event of Landlord’s election to succeed to Tenant’s
interest in any such Transfers, Tenant shall, as of the date of notice by
Landlord of such election, have no further right to or interest in the rent or
other consideration receivable thereunder.

 

15.4  Inducement
Recapture. Any
agreement for free or abated rent or other charges, or for the giving or paying
by Landlord to or for Tenant of any cash or other bonus, inducement or other
consideration for Tenant’s entering into this Lease (all of which concessions
are hereinafter referred to as “Inducement
Provisions”), shall
be deemed conditioned upon Tenant’s full and faithful performance of all of the
terms, covenants and conditions of this Lease. Upon breach of this Lease by
Tenant, any such Inducement Provision shall automatically be deemed deleted from
this Lease and of no further force or effect, and any rent, other charge, bonus,
inducement or consideration theretofore abated, given or paid by Landlord under
such an Inducement Provision shall be immediately due and payable by Tenant to
Landlord, notwithstanding any subsequent cure of said breach by Tenant. The
acceptance by Landlord of rent or the cure of the breach which initiated the
operation of this Section 15.4 shall not be deemed a waiver by Landlord of the
provisions of this Section 15.4 unless specifically so stated in writing by
Landlord at the time of such acceptance.

 

16.  LATE
CHARGE AND INTEREST.

 

16.1  Late
Charge. If any
payment of rent is not received by Landlord within ten (10) days after its due
date (and whether or not Landlord has notified Tenant of such delinquency),
Tenant shall pay to Landlord on demand as a late charge an additional amount
equal to ten percent (10%) of the overdue payment as liquidated damages in lieu
of actual damages (other than interest under Section 16.2 and attorneys’ fees
and costs under Sections 23.1 and 23.2). The parties agree that this late charge
represents a reasonable estimate of the expenses that Landlord will incur
because of any late payments of rent (other than interest and attorneys’ fees
and costs). Landlord’s acceptance of any liquidated damages shall not constitute
a waiver of Tenant’s default with respect to the overdue amount or prevent
Landlord from exercising any of the rights and remedies available to Landlord
under this Lease. A late charge shall not be imposed more than once on any
particular installment not paid when due, but imposition of a late charge on any
payment not made when due does not eliminate or supersede late charges imposed
on other (prior) payments not made when due or preclude imposition of a late
charge on other installments or payments not made when due.

 

16.2  Interest. In
addition to the late charges referred to above, which are intended to defray
Landlord’s costs resulting from late payments, any payment from Tenant to
Landlord not paid when due shall at Landlord’s option bear interest from the
date due until paid to Landlord by Tenant at the rate of fifteen percent (15%)
per annum or the maximum lawful rate that Landlord may charge to Tenant under
applicable laws, whichever is less (the “Interest
Rate”).
Acceptance of any late charge and/or interest shall not constitute a waiver of
Tenant’s default with respect to the overdue sum or prevent Landlord from
exercising any of its other rights and remedies under this Lease.

 




















17.  WAIVER.
No provisions of this Lease shall be deemed waived by Landlord or Tenant unless
such waiver is in a writing signed by the waiving party. The waiver by Landlord
or Tenant of any breach of any provision of this Lease shall not be deemed a
waiver of such provision or of any subsequent breach of the same or any other
provision of this Lease. No delay or omission in the exercise of any right or
remedy of Landlord upon any default by Tenant, or of Tenant upon any default of
Landlord, shall impair such right or remedy or be construed as a waiver.
Landlord’s acceptance of any payments of rent due under this Lease shall not be
deemed a waiver of any default by Tenant under this Lease (including Tenant’s
recurrent failure to timely pay rent) other than Tenant’s nonpayment of the
accepted sums, and no endorsement or statement on any check or accompanying any
check or payment shall be deemed an accord and satisfaction. Landlord’s or
Tenant’s consent to or approval of any act by Tenant requiring Landlord’s or
Tenant’s consent or approval shall not be deemed to waive or render unnecessary
Landlord’s or Tenant’s consent to or approval of any subsequent
act.

 

18.  ENTRY,
INSPECTION AND CLOSURE. Upon twenty-four (24) hours oral or written notice to
Tenant (and without notice in emergencies), Landlord and its authorized
representatives may enter the Premises at all reasonable times to determine
whether the Premises are in good condition, to determine whether Tenant is
complying with its obligations under this Lease, to perform any maintenance or
repair of the Premises or the Building that Landlord has the right or obligation
to perform, to install or repair improvements for other tenants where access to
the Premises is required for such installation or repair, to serve, post or keep
posted any notices required or allowed under the provisions of this Lease, to
show the Premises to prospective brokers, agents, buyers, transferees,
Mortgagees or tenants, or to do any other act or thing necessary for the safety
or preservation of the Premises or the Building. When reasonably necessary,
Landlord may temporarily close entrances, doors, corridors, elevators or other
facilities in the Building without liability to Tenant by reason of such
closure. Landlord shall conduct its activities under this Section in a manner
that will minimize inconvenience to Tenant without incurring additional expense
to Landlord. In no event shall Tenant be entitled to an abatement of rent on
account of any entry by Landlord, and Landlord shall not be liable in any manner
for any inconvenience, loss of business or other damage to Tenant or other
persons arising out of Landlord’s entry on the Premises in accordance with this
Section. No action by Landlord pursuant to this section shall constitute an
eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of
rent or to terminate this Lease or otherwise release Tenant from any of Tenant’s
obligations under this Lease.

 

19.  SURRENDER
AND HOLDING OVER

 

19.1  Surrender. Upon
the expiration or termination of this Lease, Tenant shall surrender the Premises
and all Tenant Improvements and Alterations to Landlord broom-clean and in their
original condition, except for reasonable wear and tear, damage from casualty or
condemnation and any changes resulting from approved Alterations; provided,
however, that prior to the expiration or termination of this Lease, Tenant shall
remove all telephone and other cabling installed in the Building by Tenant and
remove from the Premises all Tenant’s personal property, Trade Fixtures and
Alterations that Tenant has the right or is required by Landlord to remove under
the provisions of this Lease, and repair any damage caused by such removal. If
such removal is not completed before the expiration or termination of the Term,
Landlord shall have the right (but no obligation) to remove the same, and Tenant
shall pay Landlord on demand for all costs of removal and storage thereof and
for the rental value of the Premises for the period from the end of the Term
through the end of the time reasonably required for such removal. Landlord shall
also have the right to retain or dispose of all or any portion of such property
if Tenant does not pay all such costs and retrieve the property within ten (10)
days after notice from Landlord (in which event title to all such property
described in Landlord’s notice shall be transferred to and vest in Landlord).
Tenant waives all Claims against Landlord for any damage or loss to Tenant
resulting from Landlord’s removal, storage, retention, or disposition of any
such property. Upon expiration or termination of this Lease or of Tenant’s
possession, whichever is earliest, Tenant shall surrender all keys to the
Premises or any other part of the Building and shall deliver to Landlord all
keys for or make known to Landlord the combination of locks on all safes,
cabinets and vaults that may be located in the Premises. Tenant’s obligations
under this Section shall survive the expiration or termination of this
Lease.

 

19.2  Holding
Over. If
Tenant (directly or through any Transferee or other successor-in-interest of
Tenant) remains in possession of the Premises after the expiration or
termination of this Lease, Tenant’s continued possession shall be on the basis
of a tenancy at the sufferance of Landlord. In such event, Tenant shall continue
to comply with or perform all the terms and obligations of Tenant under this
Lease, except that the monthly Base Rent during Tenant’s holding over shall be
(i) during the initial sixty (60) days of such holdover, one hundred twenty-five
percent (125%) of the Base Rent payable in the last full month prior to such
holding over, and (ii) thereafter, one hundred fifty percent (150%) of the Base
Rent payable in the last full month prior to the termination hereof. Acceptance
by Landlord of rent after such termination shall not constitute a renewal of
this Lease; and nothing contained in this provision shall be deemed to waive
Landlord’s right of re-entry or any other right hereunder or at law. Tenant
shall indemnify, defend and hold Landlord harmless from and against all claims
arising or resulting directly or indirectly from Tenant’s failure to timely
surrender the Premises, including (i) any rent payable by or any loss, cost, or
damages claimed by any prospective tenant of the Premises, and (ii) Landlord’s
damages as a result of such prospective tenant rescinding or refusing to enter
into the prospective lease of the Premises by reason of such failure to timely
surrender the Premises.

 




















20.  ENCUMBRANCES.

 

20.1  Subordination. This
Lease and any rights of Tenant granted hereby shall be subject and subordinate
to any ground lease, mortgage, deed of trust, or other hypothecation or security
device (collectively, “Encumbrance”), now or
hereafter placed upon the Premises, to any and all advances made on the security
thereof, and to all renewals, modifications, and extensions thereof. Tenant
agrees that the holders of any such Encumbrance (in this Lease together referred
to as “Mortgagee”) shall
have no liability or obligation to perform any of the obligations of Landlord
under this Lease. Any Mortgagee may elect to have this Lease and/or rights of
Tenant granted hereby superior to the lien of its Encumbrance by giving written
notice thereof to Tenant, whereupon this Lease and such rights of Tenant shall
be deemed prior to such Encumbrance, notwithstanding the relative dates of the
documentation or recordation thereof.

 

20.2  Attornment. In the
event that Landlord transfers title to the Premises, or the Premises are
acquired by another upon the foreclosure or termination of an Encumbrance to
which this Lease is subordinated (i) Tenant shall, subject to the
non-disturbance provisions of Section 20.3, attorn to such new owner, and upon
request, enter into a new lease, containing all of the terms and provisions of
this Lease, with such new owner for the remainder of the term hereof, or, at the
election of such new owner, this Lease shall automatically become a new Lease
between Tenant and such new owner, upon all of the terms and conditions hereof,
for the remainder of the term hereof, and (ii) Landlord shall thereafter be
relieved of any further obligations hereunder and such new owner shall assume
all of Landlord’s obligations hereunder, except that such new owner shall not:
(a) be liable for any act or omission of any prior landlord or with respect to
events occurring prior to acquisition of ownership; (b) be subject to any
offsets or defenses which tenant might have against any prior landlord; (c) be
bound by prepayment of more than one month’s rent, or (d) be liable for the
return of any security deposit paid to any prior landlord. Tenant waives its
right under any current or future law which gives or purports to give Tenant any
right to terminate or otherwise adversely affect this Lease as a result of any
sale of the Premises or the foreclosure or termination of any
Encumbrance.

 

20.3  Non-Disturbance. With
respect to Encumbrances entered into by Landlord after the execution of this
Lease, Landlord shall use reasonable, good faith efforts to receive a
commercially reasonable non-disturbance agreement (a “Non-Disturbance
Agreement”) from
the Mortgagee which Non-Disturbance Agreement provides that Tenant’s possession
of the Premises, and this Lease, including any options to extend the term
hereof, will not be disturbed so long as Tenant is not in default hereof and
attorns to the record owner of the Premises. Tenant acknowledges that the
Non-Disturbance Agreement may contain the limitations on liability of the
succeeding owner set forth in Section 20.2 above, and will be in the form that
the Mortgagee typically provides tenants such as Tenant, taking into account the
terms of this Lease, the creditworthiness of Tenant and such criteria as its
Mortgagee customarily applies. Such Non-Disturbance Agreement may provide, among
other things, that (i) such Mortgagee shall be entitled to receive notice of any
Landlord default under this Lease plus a reasonable opportunity to cure such
default; (ii) such Mortgagee shall not be bound by any modification or amendment
to this Lease, or any cancellation or surrender of this Lease, without such
Mortgagee’s consent, (iii) such Mortgagee shall not be bound by any obligation
under this Lease or the Construction Rider (if any) to perform or pay for any
improvements to the Premises; and (iv) such Mortgagee or any successor landlord
shall not: (a) be liable for any act or omission of any prior landlord or with
respect to events occurring prior to acquisition of ownership; (b) be subject to
any offsets or defenses which Tenant might have against any prior landlord; (c)
be bound by prepayment of more than one month’s rent, or (d) be liable for the
return of any security deposit paid to any prior landlord. Landlord shall have
no obligation to negotiate the terms of the Non-Disturbance Agreement on
Tenant’s behalf, or to incur any legal fees or other out-of-pocket expenses in
obtaining the Non-Disturbance Agreement.

 

20.4  Self-Executing. The
agreements contained in this Section 20 shall be effective without the execution
of any further documents; provided, however, that, upon written request from
Landlord or a Mortgagee in connection with a sale, financing or refinancing of
the Premises, Tenant shall, within ten (10) days after receipt of a written
request, execute such further writings as may be reasonably required to
separately document any subordination, attornment and/or Non-Disturbance
Agreement provided for herein.

 




















20.5  Mortgagee
Protection. Tenant
agrees to give any Mortgagee, by registered mail, a copy of any notice of
default served upon Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of notice of assignment of rents and leases, or
otherwise) of the address of such Mortgagee. If Landlord shall have failed to
cure such default within thirty (30) days from the effective date of such notice
of default, then the Mortgagee shall have an additional thirty (30) days within
which to cure such default or if such default cannot be cured within that time,
then such additional time as may be necessary to cure such default (including
the time necessary to foreclose or otherwise terminate its Encumbrance, if
necessary to effect such cure), and this Lease shall not be terminated so long
as such remedies are being diligently pursued.

 

21.  ESTOPPEL
CERTIFICATES AND FINANCIAL STATEMENTS.

 

21.1  Estoppel
Certificates. Within
ten (10) business days after written request therefor, Tenant shall execute and
deliver to Landlord, in a form provided by or satisfactory to Landlord, a
certificate stating that this Lease is in full force and effect, describing any
amendments or modifications hereto, acknowledging that this Lease is subordinate
or prior, as the case may be, to any Encumbrance and stating any other
information Landlord may reasonably request, including the Term, the monthly
Base Rent, the date to which Rent has been paid, the amount of any Security
Deposit or prepaid rent, whether either party hereto is in default under the
terms of the Lease, and whether Landlord has completed its construction
obligations hereunder (if any), and providing such other information concerning
this Lease or the Premises as Landlord may reasonably request. Any person or
entity purchasing, acquiring an interest in or extending financing with respect
to the Property shall be entitled to rely upon any such certificate. If Tenant
fails to deliver such certificate within ten (10) business days after Landlord’s
second written request therefor, Tenant shall be liable to Landlord for any
damages incurred by Landlord including any profits or other benefits from any
financing of the Property or any interest therein which are lost or made
unavailable as a result, directly or indirectly, of Tenant’s failure or refusal
to timely execute or deliver such estoppel certificate.

 

21.2  Financial
Statements.
Throughout the Term of this Lease, within ten (10) Business Days after written
request by Landlord, not more than once a year, Tenant shall deliver to Landlord
a copy of the financial statements for Tenant and any Guarantor (including at
least a year end balance sheet and a statement of profit and loss) for each of
the three most recently completed years, prepared in accordance with generally
accepted accounting principles (and, if such is Tenant’s and/or Guarantor’s
normal practice, audited by an independent certified public accountant), all
then available subsequent interim statements, and such other financial
information as may reasonably be requested by Landlord or required by any
Mortgagee.

 

22.  NOTICES.

 

22.1  Notices
Generally. Any
notice, demand, request, consent or approval that either party desires or is
required to give to the other party under this Lease shall be in writing and
shall be served personally, delivered by messenger or courier service, or sent
by U.S. certified mail, return receipt requested, postage prepaid, addressed to
the other party at the party’s address for notices set forth in the Basic Lease
Information. Notices delivered personally or by certified mail, return receipt
requested, will be effective immediately upon receipt (or refusal of delivery or
receipt); notices sent by independent messenger or courier service will be
effective one (1) Business Day after acceptance by the independent service for
delivery. Either party may change its address for notices hereunder by a notice
to the other party complying with this Section. If Tenant sublets the Premises,
notices from Landlord shall be effective on the subtenant when given to Tenant
pursuant to this Section. Notwithstanding any provision of this Lease to the
contrary, if this Lease (or any rider, addendum or subsequent amendment hereto)
grants Tenant any option to extend or renew the Term, or to expand the Premises,
the exercise of such option shall be valid only if Landlord actually receives
written notice thereof from Tenant by the date that such option
expires.

 

22.2  Replacement
of Statutory Notice Requirements. When
this Lease requires service of a notice, that notice shall replace rather than
supplement any equivalent or similar statutory notice. When a statute requires
service of a notice in a particular manner, service of that notice (or a similar
notice required by this Lease) in the manner required by Section 22.1 shall
replace and satisfy the statutory service-of-notice procedures.

 

23.  ATTORNEYS’
FEES.

 

23.1  Disputes
between Landlord and Tenant. In the
event of any litigation or arbitration regarding any rights and obligations
under this Lease, the prevailing party shall be entitled to recover reasonable
attorneys’ fees and court costs in addition to any other relief which maybe
granted. The “Prevailing
Party” shall
mean the party receiving substantially the relief desired, whether by
settlement, dismissal, summary judgment, judgment, or otherwise.

 




















23.2  Other
Litigation. If
Landlord, without fault on Landlord’s part, is made a party to any litigation
instituted by Tenant or by any third party against Tenant, or by or against any
Transferee or other occupant of the Premises or otherwise arising out of or
resulting from any act or transaction of Tenant or of any such Transferee or
occupant, Tenant shall hold Landlord harmless from any judgment rendered against
Landlord or the Premises or any part thereof, and reimburse Landlord upon demand
for all costs and expenses, including reasonable attorneys’ fees, incurred by
Landlord in or in connection with such litigation.

 

24.  QUIET
POSSESSION. Subject to Tenant’s full and timely performance of all of Tenant’s
obligations under this Lease and subject to the terms of this Lease, including
Section 20 - Encumbrances, Tenant shall have the quiet possession of the
Premises throughout the Term as against any persons or entities lawfully
claiming by, through or under Landlord.

 

25.  SECURITY
MEASURES. Landlord may, but shall be under no obligation to, implement security
measures for the Property, such as the registration or search of all persons
entering or leaving the Building, requiring identification for access to the
Building, evacuation of the Building for cause, suspected cause, or for drill
purposes, the issuance of magnetic pass cards or keys for Building or elevator
access and other actions that Landlord deems necessary or appropriate to prevent
any threat of property loss or damage, bodily injury or business interruption;
provided, however, that such measures shall be implemented in a way as not to
inconvenience tenants of the Building unreasonably. Landlord shall at all times
have the right to change, alter or reduce any such security services or
measures. Tenant shall cooperate and comply with, and cause Tenant’s
Representatives and Visitors to cooperate and comply with, such security
measures. Landlord, its agents and employees shall have no liability to Tenant
or its Representatives or Visitors for the implementation or exercise of, or the
failure to implement or exercise, any such security measures or for any
resulting disturbance of Tenant’s use or enjoyment of the Premises.

 

26.  FORCE
MAJEURE. If Landlord is delayed, interrupted or prevented from performing any of
its obligations under this Lease, including its obligations under the
Construction Rider (if any), and such delay, interruption or prevention is due
to fire, act of God, governmental act or failure to act, labor dispute,
unavailability of materials or any cause outside the reasonable control of
Landlord, then the time for performance of the affected obligations of Landlord
shall be extended for a period equivalent to the period of such delay,
interruption or prevention.

 

27.  RULES AND
REGULATIONS. Tenant shall be bound by and shall comply with the rules and
regulations attached to and made a part of this Lease as Exhibit
D to the
extent those rules and regulations are not in conflict with the terms of this
Lease, as well as any reasonable rules and regulations hereafter adopted by
Landlord for all tenants of the Building, upon notice to Tenant thereof
(collectively, the “Building
Rules”).
Landlord shall not be responsible to Tenant or to any other person for any
violation of, or failure to observe, the Building Rules by any other tenant or
other person.

 

28.  LANDLORD’S
LIABILITY. The term “Landlord,” as used in this Lease, shall mean only the owner
or owners of the Building at the time in question. In the event of any
conveyance of title to the Building, then from and after the date of such
conveyance, the transferor Landlord shall be relieved of all liability with
respect to Landlord’s obligations to be performed under this Lease after the
date of such conveyance. Notwithstanding any other term or provision of this
Lease, the liability of Landlord for its obligations under this Lease is limited
solely to Landlord’s interest in the Building as the same may from time to time
be encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord’s partners
or members or its or their respective partners, trustees, shareholders, members,
directors, officers or managers on account of any of Landlord’s obligations or
actions under this Lease.

 

29.  CONSENTS
AND APPROVALS.

 

29.1  Determination
in Good Faith.
Wherever the consent, approval, judgment or determination of Landlord is
required or permitted under this Lease and no express standard is specified
(e.g., “reasonableness”), Landlord shall exercise Landlord’s business judgment
in good faith in granting or withholding such consent or approval or in making
such judgment or determination. If it is determined that Landlord failed to give
its consent where it was required to do so under this Lease, Tenant shall be
entitled to injunctive relief but shall not to be entitled to monetary damages
or to terminate this Lease for such failure. Without limiting the generality of
the foregoing, if Tenant claims that Landlord has unreasonably withheld or
delayed its consent under Section 14 of this Lease with respect to any proposed
Transfer, Tenant’s sole remedy shall be an injunction for the relief sought and
Tenant waives the benefit of any statute, judicial decision or other law that
purports to allow Tenant to terminate this Lease or to seek damages under such
circumstances.

 




















29.2  No
Liability Imposed on Landlord. The
review and/or approval by Landlord of any item or matter to be reviewed or
approved by Landlord under the terms of this Lease or any Exhibits or Addenda
hereto shall not impose upon Landlord any liability for the accuracy or
sufficiency of any such item or matter or the quality or suitability of such
item for its intended use. Any such review or approval is for the sole purpose
of protecting Landlord’s interest in the Property, and no third parties,
including Tenant or the Representatives or Visitors of Tenant or any person or
entity claiming by, through or under Tenant, shall have any rights as a
consequence thereof.

 

30.  BROKERS.
Landlord shall pay the fee or commission of the broker or brokers identified in
the Basic Lease Information (the “Broker”) in
accordance with Landlord’s separate written agreement with the Broker, if any.
Each of Landlord and Tenant warrants and represents to the other that in the
negotiating or making of this Lease such representing party nor anyone acting on
its behalf has dealt with any broker or finder who might be entitled to a fee or
commission for this Lease other than the Broker. Each of Landlord and Tenant
shall indemnify and hold the other harmless from any claim or claims, including
costs, expenses and attorneys’ fees incurred by the other asserted by any other
broker or finder for a fee or commission based upon any dealings with or
statements made the representing party or its Representatives.

 

31.  RELOCATION
OF PREMISES. [INTENTIONALLY OMITTED]

 

32.  ENTIRE
AGREEMENT. This Lease, including the Exhibits and any Addenda attached hereto,
and the documents referred to herein, if any, constitute the entire agreement
between Landlord and Tenant with respect to the leasing of space by Tenant in
the Building, and supersede all prior or contemporaneous agreements,
understandings, proposals and other representations by or between Landlord and
Tenant, whether written or oral. Neither Landlord nor Landlord’s agents have
made any representations or warranties with respect to the Premises, the
Building, the Property or this Lease except as expressly set forth herein, and
no rights, easements or licenses shall be acquired by Tenant by implication or
otherwise unless expressly set forth herein. The submission of this Lease for
examination does not constitute an option for the Premises and this Lease shall
become effective as a binding agreement only upon execution and delivery thereof
by Landlord to Tenant.

 

33.  MISCELLANEOUS.
This Lease may not be amended or modified except by a writing signed by Landlord
and Tenant. Subject to Section 14 - Assignment and Subletting and Section 28 -
Landlord’s Liability, this Lease shall be binding on and shall inure to the
benefit of the parties and their respective successors, assigns and legal
representatives. The determination that any provisions hereof may be void,
invalid, illegal or unenforceable shall not impair any other provisions hereof
and all such other provisions of this Lease shall remain in full force and
effect. The unenforceability, invalidity or illegality of any provision of this
Lease under particular circumstances shall not render unenforceable, invalid or
illegal other provisions of this Lease, or the same provisions under other
circumstances. This Lease shall be construed and interpreted in accordance with
the laws (excluding conflict of laws principles) of the State in which the
Building is located. The provisions of this Lease shall be construed in
accordance with the fair meaning of the language used and shall not be strictly
construed against either party. When required by the context of this Lease, the
singular includes the plural. Wherever the term “including” is used
in this Lease, it shall be interpreted as meaning “including, but not limited
to” the matter or matters thereafter enumerated. The captions contained in this
Lease are for purposes of convenience only and are not to be used to interpret
or construe this Lease. If more than one person or entity is identified as
Tenant hereunder, the obligations of each and all of them under this Lease shall
be joint and several. Time is of the essence with respect to this Lease, except
as to the conditions relating to the delivery of possession of the Premises to
Tenant. Neither Landlord nor Tenant shall record this Lease.

 

34.  INDEPENDENT
COVENANTS. This Lease shall be construed as though the covenants of Tenant are
independent and not dependent and Tenant hereby expressly waives the benefit of
any statute to the contrary and agrees that if Landlord fails to perform its
obligations set forth herein, Tenant shall not be entitled to make any repairs
or perform any acts hereunder at Landlord’s expense or to any setoff of the rent
or other amounts owing hereunder against Landlord; provided, however, that the
foregoing shall in no way impair the right of Tenant to commence a separate
action against Landlord for any violation by Landlord of the provisions
hereof.

 

35.  MUTUAL
REPRESENTATION OF AUTHORITY. Landlord and Tenant represent and warrant to each
other that they have full right, power and authority to enter into this Lease
without the consent or approval of any other entity or person and make these
representations knowing that the other party will rely thereon. The signatory on
behalf of Landlord and Tenant further represent and warrant that they have full
right, power and authority to act for and on behalf of Landlord and Tenant in
entering into this Lease.

 

36.  SIGNS.

 

36.1  Full
Floors. Subject
to Landlord’s prior written approval, in its sole discretion, and provided all
signs are in keeping with the quality, design and style of the Building, Tenant,
if the Premises comprise an entire floor of the Building, at its sole cost and
expense, may install identification signage anywhere in the Premises including
in the elevator lobby of the Premises, provided that such signs must not be
visible from the exterior of the Building.

 




















36.2  Multi-Tenant
Floors. If
other tenants occupy space on the floor on which the Premises are located,
Tenant’s identifying signage shall be provided by Landlord, at Tenant’s cost,
and such signage shall be comparable to that used by Landlord for other similar
floors in the Building and shall comply with Landlord’s then-current Building
standard signage program.

 

36.3  Prohibited
Signage and Other Items. Any
signs, notices, logos, pictures, names or advertisements which are installed and
that have not been separately approved by Landlord may be removed without notice
by Landlord at the sole expense of Tenant. Tenant may not install any signs on
the exterior or roof of the Building or the common areas of the Property. Any
signs, window coverings, or blinds (even if the same are located behind the
Landlord-approved window coverings for the Building), or other items visible
from the exterior of the Premises or Building, shall be subject to the prior
approval of Landlord, in its sole discretion.

 

36.4  Building
Directory. A
building directory will be located in the lobby of the Building. Tenant shall
have the right, at Tenant’s sole cost and expense, to designate name strips to
be displayed under Tenant’s entry in such directory, provided that in no event
shall Tenant be entitled to use a percentage of such directory that exceeds
Tenant’s Share.

 

36.5  Building
Name; Landlord’s Signage Rights.
Landlord may at any time change the name of the Building and install, affix, and
maintain all signs on the exterior and interior of the Building, and any
monuments, as Landlord may, in Landlord’s sole discretion, desire. Tenant shall
not have or acquire any property right or interest in the name of the
Building.

 

37.  TENANT
PARKING. Tenant shall have the right to use, commencing on the Commencement
Date, up to the number of parking spaces set forth in the Basic Lease
Information. Tenant shall pay to Landlord for automobile parking spaces on a
monthly basis at the rate and upon the terms set forth in the Basic Lease
Information. In addition, Tenant shall be responsible for the full amount of any
taxes imposed by any governmental authority in connection with the renting of
such parking spaces by Tenant or the use of the Parking Facility by Tenant.
Tenant’s continued right to use the parking spaces is conditioned upon Tenant
abiding by all rules and regulations which are prescribed from time to time for
the orderly operation and use of the Parking Facility, including any sticker or
other identification system established by Landlord, Tenant’s cooperation in
seeing that Tenant’s Representatives and Visitors also comply with such rules
and regulations and Tenant not being in default under this Lease. Landlord
specifically reserves the right to change the size, configuration, design,
layout and all other aspects of the Parking Facility at any time and Tenant
acknowledges and agrees that Landlord may, without incurring any liability to
Tenant and without any abatement of rent under this Lease, from time to lime,
close-off or restrict access to the Parking Facility for purposes of permitting
or facilitating any such construction, alteration or improvements. Landlord may
delegate its responsibilities hereunder to a parking operator in which case such
parking operator shall have all the rights of control attributed hereby to
Landlord. The parking spaces rented by Tenant pursuant to this Section 37 are
provided to Tenant solely for use by Tenant’s own personnel and such spaces may
not be transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord’s prior approval. Tenant may validate visitor parking by such method or
methods as Landlord may establish, at the validation rate from time to time
generally applicable to visitor parking.

 

38.  GUARANTY
OF LEASE. [INTENTIONALLY OMITTED]

 

39.  WAIVER OF
JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS
HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY
JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL
SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR
DAMAGE.

 

40.  LIMITATION
OF ACTIONS AGAINST LANDLORD. Any claim, demand or right of any kind by Tenant
which is based upon or arises in connection with this Lease shall be barred
unless Tenant commences an action thereon within six (6) months after the date
that the act, omission, event or default upon which the claim, demand or right
arises, has occurred.

 




















41.  NONDISCLOSURE
OF LEASE TERMS. Tenant acknowledges and agrees that the terms of this Lease are
confidential and constitute proprietary information of Landlord. Disclosure of
the terms could adversely affect the ability of Landlord to negotiate other
leases and impair Landlord’s relationship with other tenants. Accordingly,
Tenant agrees that it, and its partners, officers, directors, employees and
attorneys, shall not intentionally and voluntarily disclose the terms and
conditions of this Lease to any other tenant or apparent prospective tenant of
the Building or Property, either directly or indirectly, without the prior
written consent of Landlord, provided, however, that Tenant may disclose the
terms to prospective subtenants or assignees under this Lease.

 

42.  CHANGES
REQUESTED BY LENDER. If, in connection with obtaining financing for the
Property, the lender shall request reasonable modifications in this Lease as a
condition to the financing, Tenant will not unreasonably withhold or delay its
consent, provided that the modifications do not materially increase the
obligations of Tenant or materially and adversely affect the leasehold interest
created by this Lease.

 

43.  RIGHT TO
LEASE. Landlord reserves the absolute right to contract with any other person or
entity to be a tenant in the Property as Landlord, in Landlord’s sole business
judgment, determines best to promote the interests of the Property. Tenant does
not rely on the expectation, and Landlord does not represent, that any specific
tenant or type or number of tenants will, during the Lease term, occupy any
space in the Property.

 

44.  NO AIR
RIGHTS. No rights to any view from the Premises or to exterior light or air to
the Premises are created under this Lease.

 

45.  TRANSPORTATION
MANAGEMENT. Tenant shall fully comply with all current or future compulsory
programs imposed by any public authority, intended to manage parking,
transportation, or traffic in and around the Building. In connection with this
compliance, Tenant shall take responsible action for the transportation planning
and management of all employees located at the Premises by working directly with
Landlord, any government transportation management organizations, or other
transportation-related committees or entities. This provision includes programs
such as the following: (a) restrictions on the number of peak-hour vehicle
trips generated by Tenant; (b) encouragement of increased vehicle occupancy
through employer-sponsored financial or in-kind incentives; (c) implementation
of an in-house or area-wide ridesharing program and appointment of an employee
transportation coordinator; and (d) flexible work shifts for
employees.

 

46.  PRIOR
DRAFTS. If the parties delete any provision appearing in any prior drafts of
this Lease, this Lease shall be interpreted as if the deleted language were
never part of this Lease.


 




















IN
WITNESS WHEREOF, the parties have executed this Lease as of the dates set forth
below.

 


	
      LANDLORD:

       

      3604
      INVESTORS, a
      California, limited partnership;

      BELLISIMO
      MERIDIAN, LLC, a
      Delaware limited

      liability
      company, ALBERTO
      V. ALDRETE and

      LORI
      J. ALDRETE,
      husband and wife; GLC

      MERIDIAN
      DENVER #4, LLC, a
      California limited

      liability
      company; GLC
      MERIDIAN DENVER #1,

      LLC, a
      California limited liability company; KAC

      DEVELOPMENT
      MERIDIAN A, LLC, a
      California

      limited
      liability company; and BENJAMIN
      S.

      CATLIN
      and GAIL E. CATLIN,
      husband and wife,

      all
      as tenants in common

       

      By: CATLIN
      PROPERTIES, INC., a
      California corporation, authorized agent

       

      By:
      /s/
      Benjamin S. Catlin

      Benjamin
      S. Catlin
	
      TENANT:

       

      SANZ
      INC., a
      Colorado corporation

       

      By:
      /s/
      E. M. Dunn

       

      Its:
      Director
      of Contracts

       

      Date:
      April
      26, 2005

       

      By:
      /s/
      D. B. Huphill

       

      Its:
      Controller

       

      Date:
      April
      26, 2005




 






















EXHIBIT
A

 

ATTACHED
TO AND FORMING A PART OF

 

OFFICE
LEASE AGREEMENT


 

DATED AS
OF __________, 2005, BETWEEN

 

3604
INVESTORS, a California limited partnership; BELLISIMO MERIDIAN, LLC, a Delaware
limited liability company; ALBERTO V. ALDRETE and LORI J. ALDRETE, husband and
wife; GLC MERIDIAN DENVER #4, LLC, a California limited liability company; GLC
MERIDIAN DENVER #1, LLC, a California limited liability company; KAC DEVELOPMENT
MERIDIAN A, LLC, a California limited liability company; and BENJAMIN S. CATLIN
and GAIL E. CATLIN, husband and wife, all as tenants in common,

 

AS
LANDLORD,

 

AND

 

SANZ
INC., a Colorado corporation

 

AS
TENANT

 

(the
“LEASE”)

 

[Floor
Plans showing the location and configuration of the Premises to be
inserted]





















EXHIBIT
B


 

[INTENTIONALLY
OMITTED]

 






























EXHIBIT
C

 

[INTENTIONALLY
OMITTED]

 






























EXHIBIT
D

 

ATTACHED
TO AND FORMING A PART OF


 

OFFICE
LEASE AGREEMENT


 

DATED AS
OF __________, 2005, BETWEEN

 

3604
INVESTORS, a California limited partnership; BELLISIMO MERIDIAN, LLC, a Delaware
limited liability company, ALBERTO V. ALDRETE and LORI J. ALDRETE, husband and
wife; GLC MERIDIAN DENVER #4, LLC, a California limited liability company; GLC
MERIDIAN DENVER #1, LLC, a California limited liability company; KAC DEVELOPMENT
MERIDIAN A, LLC, a California limited liability company; and BENJAMIN S. CATLIN
and GAIL E. CATLIN, husband and wife, all as tenants in common,

 

AS
LANDLORD,


 

AND


 

SANZ
INC., a Colorado corporation


 

AS
TENANT


 

(the
“LEASE”)

 

BUILDING
RULES

 

The
following Building Rules are additional provisions of the foregoing Lease to
which they are attached. The capitalized terms used herein have the same
meanings as these terms are given in the Lease.

 

1. Use of
Common Areas. Tenant
will not obstruct the sidewalks, halls, passages, exits, entrances, elevators or
stairways of the Building (the “Common
Areas”), and
Tenant will not use the Common Areas for any purpose other than ingress and
egress to and from the Premises. The Common Areas, except for the sidewalks, are
not open to the general public and Landlord reserves the right to control and
prevent access to the Common Areas of any person whose presence, in Landlord’s
opinion, would be prejudicial to the safety, reputation and interests of the
Building and its tenants.

 

2. No
Access to Roof. Tenant
has no right of access to the roof of the Building and will not install, repair
or replace any antenna, aerial, aerial wires, fan, air-conditioner or other
device on the roof of the Building, without the prior written consent of
Landlord. Any such device installed without such written consent is subject to
removal at Tenant’s expense without notice at any time. In any event Tenant will
be liable for any damages or repairs incurred or required as a result of its
installation, use, repair, maintenance or removal of such devices on the roof
and agrees to indemnify and hold harmless Landlord from any liability, loss,
damage, cost or expense, including reasonable attorneys’ fees, arising from any
activities of Tenant or of Tenant’s Representatives on the roof of the
Building.

 

3. Signage. No
sign, placard, picture, name, advertisement or notice visible from the exterior
of the Premises will be inscribed, painted, affixed or otherwise displayed by
Tenant on or in any part of the Building without the prior written consent of
Landlord. Landlord reserves the right to adopt and furnish Tenant with general
guidelines relating to signs in or on the Building. All approved signage will be
inscribed, painted or affixed at Tenant’s expense by a person approved by
Landlord, which approval will not be unreasonably withheld.

 

4. Prohibited
Uses. The
Premises will not be used for manufacturing, for the storage of merchandise held
for sale to the general public, for lodging or for the sale of goods to the
general public. Tenant will not permit any food preparation on the Premises
except that Tenant may use Underwriters’ Laboratory approved microwave ovens,
dishwashers, self-dispensing drink machines, equipment for brewing coffee, tea,
hot chocolate and similar beverages, and similar equipment so long as such use
is in accordance with all applicable federal, state and city laws, codes,
ordinances, rules and regulations.

 

5. Janitorial
Services. Tenant
will not employ any person for the purpose of cleaning the Premises or permit
any person to enter the Building for such purpose other than Landlord’s
janitorial service, except with Landlord’s prior written consent. Tenant will
not necessitate, and will be liable for the cost of, any undue amount of
janitorial labor by reason of Tenant’s carelessness in or indifference to the
preservation of good order and cleanliness in the Premises. Janitorial service
will not be furnished to areas in the Premises on nights when such areas are
occupied after 9:30 p.m., unless such service is extended by written agreement
to a later hour in specifically designated areas of the Premises.

 




















6. Keys
and Locks.
Landlord will furnish Tenant, free of charge, two keys to each door or lock in
the Premises. Landlord may make a reasonable charge for any additional or
replacement keys. Tenant will not duplicate any keys, alter any locks or install
any new or additional lock or bolt on any door of its Premises or on any other
part of the Building without the prior written consent of Landlord and, in any
event, Tenant will provide Landlord with a key for any such lock. On the
termination of the Lease, Tenant will deliver to Landlord all keys to any locks
or doors in the Building which have been obtained by Tenant.

 

7. Freight. Upon
not less than twenty-four (24) hours prior notice to Landlord, which notice may
be oral, an elevator will be made available for Tenant’s use for transportation
of freight, subject to such scheduling as Landlord in its discretion deems
appropriate. Tenant shall not transport freight in loads exceeding the weight
limitations of such elevator. Landlord reserves the right to prescribe the
weight, size and position of all equipment, materials, furniture or other
property brought into the Building, and no property will be received in the
Building or carried up or down the freight elevator or stairs except during such
hours and along such routes and by such persons as may be designated by
Landlord. Landlord reserves the right to require that heavy objects will stand
on wood strips of such length and thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage to
any such property from any cause, and Tenant will be liable for all damage or
injuries caused by moving or maintaining such property.

 

8. Nuisances
and Dangerous Substances. Tenant
will not conduct itself or permit its agents, employees, contractors or invitees
to conduct themselves, in the Premises or anywhere on or in the Property in a
manner which is offensive or unduly annoying to any other Tenant or Landlord’s
property managers. Tenant will not install or operate any phonograph, radio
receiver, musical instrument, or television or other similar device in any part
of the Common Areas and shall not operate any such device installed in the
Premises in such manner as to disturb or annoy other tenants of the Building.
Tenant will not use or keep in the Premises or the Property any kerosene,
gasoline or other combustible fluid or material other than limited quantities
thereof reasonably necessary for the maintenance of office equipment, or,
without Landlord’s prior written approval, use any method of heating or air
conditioning other than that supplied by Landlord. Tenant will not use or keep
any foul or noxious gas or substance in the Premises or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or
vibrations, or interfere in any way with other tenants or those having business
therein. Tenant will not bring or keep any animals in or about the Premises or
the Property.

 

9. Building
Name and Address. Without
Landlord’s prior written consent, Tenant will not use the name of the Building
in connection with or in promoting or advertising Tenant’s business except as
Tenant’s address.

 

10. Building
Directory. A
directory for the Building will be provided for the display of the name and
location of tenants. Landlord reserves the right to approve any additional names
Tenant desires to place in the directory and, if so approved, Landlord may
assess a reasonable charge for adding such additional names.

 

11. Window
Coverings. No
curtains, draperies, blinds, shutters, shades, awnings, screens or other
coverings, window ventilators, hangings, decorations or similar equipment shall
be attached to, hung or placed in, or used in or with any window of the Building
without the prior written consent of Landlord, and Landlord shall have the right
to control all lighting within the Premises that may be visible from the
exterior of the Building.

 

12. Floor
Coverings. Tenant
will not lay or otherwise affix linoleum, tile, carpet or any other floor
covering to the floor of the Premises in any manner except as approved in
writing by Landlord. Tenant will be liable for the cost of repair of any damage
resulting from the violation of this rule or the removal of any floor covering
by Tenant or its contractors, employees or invitees.

 

13. Wiring
and Cabling.
Landlord shall have the right to direct Tenant’s electricians and other vendors
as to where and how data, telephone and electrical wires and cables are to be
installed. No boring or cutting for wires or cables will be allowed without the
prior written consent of Landlord. The location of burglar alarms, smoke
detectors, telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the written approval of Landlord.

 

14. Office
Closing Procedures. Tenant
will see that the doors of the Premises are closed and locked and that all water
faucets, water apparatus and utilities are shut off before Tenant or its
employees leave the Premises, so as to prevent waste or damage. Tenant will be
liable for all damage or injuries sustained by other tenants or occupants of the
Building or Landlord resulting from Tenant’s carelessness in this regard or
violation of this rule. Tenant will keep the doors to the Building corridors
closed at all times except for ingress and egress.

 

15. Plumbing
Facilities. 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 disposed of therein. Tenant will be
liable for any breakage, stoppage or damage resulting from the violation of this
rule by Tenant, its employees or invitees.

 

16. Use of
Hand Trucks. Tenant
will not use or permit to be used in the Premises or in the Common Areas any
hand trucks, carts or dollies except those equipped with rubber tires and side
guards or such other equipment as Landlord may approve.

 




















17. Refuse. Tenant
shall store all Tenant’s trash and garbage within the Premises or in other
facilities designated by Landlord for such purpose. Tenant shall not place in
any trash box or receptacle any material which cannot be disposed of in the
ordinary and customary manner of removing and disposing of trash and garbage in
the city in which the Building is located without being in violation of any law
or ordinance governing such disposal. All trash and garbage removal will be only
through such Common Areas provided for such purposes and at such times as
Landlord may designate. Tenant shall comply with any trash recycling programs
that Landlord may institute for the Building.

 

18. Soliciting.
Canvassing, peddling, soliciting and distribution of handbills or any other
written materials in the Building are prohibited, and Tenant will cooperate to
prevent the same.

 

19. Parking. Tenant
will use, and will cause its agents, employees, contractors and invitees to use,
the parking spaces to which it is entitled under the Lease in a manner
consistent with Landlord’s directional signs and markings in the Parking
Facility. Specifically, but without limitation, Tenant will not park, or permit
its agents, employees, contractors or invitees to park, in a manner that impedes
access to and from the Building or the Parking Facility or that violates space
reservations for handicapped drivers. Landlord may use such reasonable means as
may be necessary to enforce the directional signs and markings in the Parking
Facility, including but not limited to towing services, and Landlord will not be
liable for any damage to vehicles towed as a result of non-compliance with such
parking regulations.

 

20. Fire,
Security and Safety Regulations. Tenant
will comply with all safety, security, fire protection and evacuation measures
and procedures established by Landlord or any governmental agency.

 

21. Responsibility
for Theft. Tenant
assumes any and all responsibility for protecting the Premises from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed.

 

22. Sales
and Auctions. Tenant
will not conduct or permit to be conducted any sale by auction in, upon or from
the Premises or elsewhere in the Property, whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or pursuant
to any bankruptcy or other insolvency proceeding.

 

23. Smoking. Neither
Tenant nor its agents, employees, contractors, guests or invitees shall smoke or
permit smoking in any portion of the Building (including any portion of the
Premises) or within twenty (20) feet of any entrance to the Building at any
time. Landlord reserves the right, in its sole discretion, to amend the smoking
regulations for the Building or the Project at any time.

 

24. Enforcement.
Landlord may waive any one or more of these Building Rules for the benefit of
any particular tenant or tenants, but no such waiver by Landlord will be
construed as a waiver of such Building Rules in favor of any other tenant or
tenants nor prevent Landlord from thereafter enforcing these Building Rules
against any or all of the tenants of the Building.

 

25. Effect
on Lease. These
Building Rules 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 the Lease. Violation of these Building Rules shall constitute an
default under the Lease.

 

26. Non-Discriminatory
Enforcement. Subject
to the provisions of the Lease (and the provisions of other leases with respect
to other tenants), Landlord shall use reasonable efforts to enforce these
Building rules in a non-discriminatory manner, but in no event shall Landlord
have any liability for any failure to do so (and Tenant’s sole and exclusive
remedy for any such failure or refusal shall be injunctive relief preventing
Landlord from enforcing any of the Building Rules against Tenant in a manner
that discriminates against Tenant).

 

27. Additional
and Amended Rules.
Landlord reserves the right to rescind or amend these Building Rules and/or
adopt any other and reasonable rules and regulations as in its judgment may from
time to time be needed for the safety, care and cleanliness of the Building and
for the preservation of good order therein.

 





























EXHIBIT
E

 

[INTENTIONALLY
OMITTED]