exv10w17






Exhibit 10.17




STANDARD OFFICE LEASE




BY AND BETWEEN




CH REALTY III/HAYDEN FERRY I, L.L.C.,

a Delaware limited liability company,




AS LANDLORD,




AND




UNITED BUSINESS HOLDINGS, INC.

a Nevada corporation,




AS TENANT




HAYDEN FERRY LAKESIDE

[80 East Rio Salado Parkway]














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	ARTICLE 1	 	BASIC LEASE PROVISIONS
	 	 	1	 
	 	 	 
	 	 	 	 
	ARTICLE 2	 	TERM/PREMISES
	 	 	2	 
	 	 	 
	 	 	 	 
	ARTICLE 3	 	RENTAL
	 	 	3	 
	 	 	 
	 	 	 	 
	ARTICLE 4	 	SECURITY DEPOSIT/LETTER OF CREDIT
	 	 	7	 
	 	 	 
	 	 	 	 
	ARTICLE 5	 	HOLDING OVER
	 	 	9	 
	 	 	 
	 	 	 	 
	ARTICLE 6	 	OTHER TAXES
	 	 	10	 
	 	 	 
	 	 	 	 
	ARTICLE 7	 	USE
	 	 	10	 
	 	 	 
	 	 	 	 
	ARTICLE 8	 	CONDITION OF PREMISES
	 	 	11	 
	 	 	 
	 	 	 	 
	ARTICLE 9	 	REPAIRS AND ALTERATIONS
	 	 	11	 
	 	 	 
	 	 	 	 
	ARTICLE 10	 	LIENS
	 	 	14	 
	 	 	 
	 	 	 	 
	ARTICLE 11	 	PROJECT SERVICES
	 	 	14	 
	 	 	 
	 	 	 	 
	ARTICLE 12	 	RIGHTS OF LANDLORD
	 	 	16	 
	 	 	 
	 	 	 	 
	ARTICLE 13	 	INDEMNITY, EXEMPTION OF LANDLORD FROM LIABILITY
	 	 	17	 
	 	 	 
	 	 	 	 
	ARTICLE 14	 	INSURANCE
	 	 	19	 
	 	 	 
	 	 	 	 
	ARTICLE 15	 	ASSIGNMENT AND SUBLETTING
	 	 	20	 
	 	 	 
	 	 	 	 
	ARTICLE 16	 	DAMAGE OR DESTRUCTION
	 	 	23	 
	 	 	 
	 	 	 	 
	ARTICLE 17	 	SUBORDINATION
	 	 	24	 
	 	 	 
	 	 	 	 
	ARTICLE 18	 	EMINENT DOMAIN
	 	 	25	 
	 	 	 
	 	 	 	 
	ARTICLE 19	 	DEFAULT
	 	 	25	 
	 	 	 
	 	 	 	 
	ARTICLE 20	 	REMEDIES
	 	 	26	 
	 	 	 
	 	 	 	 
	ARTICLE 21	 	TRANSFER OF LANDLORD’S INTEREST
	 	 	28	 
	 	 	 
	 	 	 	 
	ARTICLE 22	 	BROKER
	 	 	28	 
	 	 	 
	 	 	 	 
	ARTICLE 23	 	PARKING
	 	 	28	 






(i)









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 
	 	 	 	 
	ARTICLE 24	 	WAIVER
	 	 	29	 
	 	 	 
	 	 	 	 
	ARTICLE 25	 	ESTOPPEL CERTIFICATE
	 	 	29	 
	 	 	 
	 	 	 	 
	ARTICLE 26	 	LIABILITY OF LANDLORD
	 	 	30	 
	 	 	 
	 	 	 	 
	ARTICLE 27	 	INABILITY TO PERFORM
	 	 	30	 
	 	 	 
	 	 	 	 
	ARTICLE 28	 	HAZARDOUS WASTE
	 	 	31	 
	 	 	 
	 	 	 	 
	ARTICLE 29	 	SURRENDER OF PREMISES; REMOVAL OF PROPERTY
	 	 	32	 
	 	 	 
	 	 	 	 
	ARTICLE 30	 	MISCELLANEOUS
	 	 	33	 
	 	 	 
	 	 	 	 
	ARTICLE 31	 	SIGNAGE/DIRECTORY
	 	 	37	 
	 	 	 
	 	 	 	 
	ARTICLE 32	 	AUTOMATED TELLER MACHINE/NIGHT DEPOSITORY
	 	 	37	 
	 	 	 
	 	 	 	 
	ARTICLE 33	 	OPTION TO EXTEND
	 	 	39	 
	 	 	 
	 	 	 	 
	ARTICLE 34	 	REGULATORY APPROVAL
	 	 	40	 






(ii)









 






INDEX




	 	 	 	 	 
	 	 	Pages	 
	Abatement Event
	 	 	16	 
	Abatement Notice
	 	 	16	 
	ADA
	 	 	11	 
	Additional Rent
	 	 	4	 
	Affiliate
	 	 	22	 
	Affiliated Assignee
	 	 	23	 
	Alterations
	 	 	12	 
	Applicant
	 	Exhibit E	 
	Approved Working Drawings
	 	Exhibit D	 
	Architect
	 	Exhibit D	 
	ATM Equipment
	 	 	38	 
	ATM Signage
	 	 	38	 
	Base Year
	 	 	2	 
	Base, Shell and Core
	 	Exhibit D	 
	Basic Rental
	 	 	1	 
	Beneficiary
	 	Exhibit E	 
	BOMA Standard
	 	 	3	 
	Brokers
	 	 	2	 
	Cash Security Deposit
	 	 	7	 
	Cash Security Deposit/Letter of Credit
	 	 	2	 
	Claims
	 	 	18	 
	Code
	 	Exhibit D	 
	Commencement Date
	 	 	1	 
	Construction Drawings
	 	Exhibit D	 
	Contingency
	 	 	41	 
	Contractor
	 	 	3	 
	Control
	 	 	23	 
	Cosmetic Alterations
	 	 	12	 
	Cost Proposal
	 	Exhibit D	 
	Cost Proposal Delivery Date
	 	Exhibit D	 
	Damage Repair Estimate
	 	 	23	 
	Development Work
	 	Exhibit F	 
	Direct Costs
	 	 	4	 
	Dispute Notice
	 	 	7	 
	Eligibility Period
	 	 	16	 
	Engineers
	 	Exhibit D	 
	Estimate
	 	 	6	 
	Estimate Statement
	 	 	6	 
	Estimated Excess
	 	 	6	 
	Estoppel Certificate
	 	 	30	 
	Event of Default
	 	 	26	 
	Excess
	 	 	5	 
	Expiration Date
	 	 	1	 
	FDIC
	 	 	41	 
	Final Space Plan
	 	Exhibit D	 
	Final Working Drawings
	 	Exhibit D	 






(iii)









 






	 	 	 	 	 
	 	 	Pages	 
	Force Majeure
	 	 	31	 
	Hazardous Material
	 	 	32	 
	Improvement Allowance
	 	Exhibit D	 
	Improvement Allowance Items
	 	Exhibit D	 
	Improvements
	 	Exhibit D	 
	Indemnity Letter
	 	 	41	 
	Initial Installment of Basic Rental
	 	 	2	 
	Interest Notice
	 	 	40	 
	Landlord
	 	 	1	 
	Landlord Coordination Fee
	 	Exhibit D	 
	Landlord Parties
	 	 	18	 
	Laws
	 	 	32	 
	Lease
	 	 	1	 
	Lease Year
	 	 	3	 
	Letter of Credit
	 	 	8	 
	LOC Delivery Date
	 	 	8	 
	LOC Expiration Date
	 	 	8	 
	Market Rent
	 	 	39	 
	OCC
	 	 	41	 
	Operating Costs
	 	 	5	 
	Option
	 	 	39	 
	Option Rent
	 	 	39	 
	Option Rent Notice
	 	 	40	 
	Option Term
	 	 	39	 
	Original Tenant
	 	 	38	 
	Outside Agreement Date
	 	 	40	 
	Over-Allowance Amount
	 	Exhibit D	 
	Parking Passes
	 	 	2	 
	Permits
	 	Exhibit D	 
	Permitted Use
	 	 	2	 
	Premises
	 	 	1	 
	Project
	 	 	1	 
	Real Property
	 	 	4	 
	Release Date
	 	 	23	 
	Rent
	 	 	4	 
	Rental Tax
	 	 	4	 
	Review Notice
	 	 	6	 
	Review Period
	 	 	6	 
	Rules and Regulations
	 	 	35	 
	Second Estoppel Notice
	 	 	30	 
	Second SNDA Request
	 	 	25	 
	Security Deposit Laws
	 	 	9	 
	SNDA
	 	 	25	 
	Specifications
	 	Exhibit D	 
	Square Footage
	 	 	1	 
	Standard Improvement Package
	 	Exhibit D	 
	Stated Amount
	 	 	8	 
	Statement
	 	 	6	 
	Substantial Completion
	 	Exhibit D	 
	Tax Costs
	 	 	4	 
	Tax Costs Base Year
	 	 	6	 






(iv)









 






	 	 	 	 	 
	 	 	Pages	 
	Tenant
	 	 	1	 
	Tenant Bank
	 	 	23	 
	Tenant Delays
	 	Exhibit D	 
	Tenant Improvements
	 	 	11	 
	Tenant’s Acceptance
	 	 	40	 
	Tenant’s Proportionate Share
	 	 	2	 
	Tenant’s Signage
	 	 	37	 
	Term
	 	 	1	 
	Time Deadlines
	 	Exhibit D	 
	Transfer
	 	 	22	 
	Transfer Premium
	 	 	22	 
	Transferee
	 	 	22	 
	Vault
	 	 	13	 
	Vendors
	 	Exhibit F	 






(v)









 






STANDARD OFFICE LEASE




     This Standard Office Lease (“Lease”) is made and entered into as of this 18th day
of August, 2008, by and between CH REALTY III/HAYDEN FERRY I, L.L.C., a Delaware limited liability
company (“Landlord”), and UNITED BUSINESS HOLDINGS, INC., a Nevada corporation (“Tenant”).



     Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the premises located
on a portion of the first (1st) floor, as designated on the plan attached hereto and
incorporated herein as Exhibit “A” (“Premises”), of the project (“Project”) whose address is 80
East Rio Salado Parkway, Tempe, Arizona for the Term and upon the terms and conditions hereinafter
set forth, and Landlord and Tenant hereby agree as follows:



ARTICLE 1




BASIC LEASE PROVISIONS




	 	 	 	 	 
	A.

	 	Term:
	 	Ten (10) years and Four (4) months.
	 
	 	 	 	 
	 

	 	Commencement Date:
	 	The earlier of: (i) the date Tenant first commences to
conduct business in all or any portion of the Premises, or
(ii) the date of Substantial Completion of Improvements (as
such terms are defined in Sections 5.1 and 2.1 of the
Tenant Work Letter attached hereto as Exhibit “D”,
respectively) in the Premises. The Commencement Date is
anticipated to be on or about April 1, 2009.
	 
	 	 	 	 
	 

	 	Expiration Date:
	 	The date immediately preceding the one hundred
twenty-fourth (124th) monthly anniversary of the
Commencement Date; provided, however, that if the
Commencement Date is a date other than the first
(1st) day of a month, the Expiration Date shall
be the last day of the month which is one hundred
twenty-four (124) months after the month in which the
Commencement Date falls, unless extended or earlier
terminated pursuant to this Lease.
	 
	 	 	 	 
	B.

	 	Square Footage:
	 	8,076 rentable square feet.
	 
	 	 	 	 
	C.

	 	Basic Rental	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Approx. Annual
	Months	 	Annual	 	Monthly	 	Basic Rental
	During Term	 	Basic Rental	 	Basic Rental	 	Per Rentable Square Foot
	1-16*
	 	$	274,584.00	 	 	$	22,882.00	 	 	$	34.00	 
	17-28
	 	$	282,821.52	 	 	$	23,568.46	 	 	$	35.02	 
	29-40
	 	$	291,301.32	 	 	$	24,275.11	 	 	$	36.07	 
	41-52
	 	$	300,023.40	 	 	$	25,001.95	 	 	$	37.15	 
	53-64
	 	$	309,068.52	 	 	$	25,755.71	 	 	$	38.27	 
















 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Approx. Annual
	Months	 	Annual	 	Monthly	 	Basic Rental
	During Term	 	Basic Rental	 	Basic Rental	 	Per Rentable Square Foot
	65-76
	 	$	318,355.92	 	 	$	26,529.66	 	 	$	39.42	 
	77-88
	 	$	327,885.60	 	 	$	27,323.80	 	 	$	40.60	 
	89-100
	 	$	337,738.32	 	 	$	28,144.86	 	 	$	41.82	 
	101-112
	 	$	347,833.32	 	 	$	28,986.11	 	 	$	43.07	 
	113-124
	 	$	358,251.36	 	 	$	29,854.28	 	 	$	44.36	 








 




			
	*	 	Subject to abatement as provided in Section 3(a) below.





	 	 	 	 	 
	D.

	 	Base Year:
	 	2008.
	 
	 	 	 	 
	E.

	 	Tenant’s Proportionate Share:
	 	3.98%.
	 
	 	 	 	 
	F.

	 	Cash Security Deposit/Letter of Credit:
	 	See Article 4 of this Lease.
	 
	 	 	 	 
	G.

	 	Permitted Use:
	 	Subject to Tenant obtaining and maintaining at all times during
the Term of this Lease all necessary permits and
governmental approvals, the
Premises shall be used only for
the purpose of operating a
federally or state chartered
bank branch office used
primarily as an office for
lending money, issuing credit,
and accepting deposits and
paying interest thereon and
ancillary uses directly related
thereto; provided, however such
use shall at all times during
the Term be consistent with the
character of the Project as a
first-class office project.
	 
	 	 	 	 
	H.

	 	Brokers:
	 	Colliers International
representing Tenant and CB
Richard Ellis, Inc. representing
Landlord.
	 
	 	 	 	 
	I.

	 	Parking Passes:
	 	Tenant shall rent twenty (20)
unreserved uncovered parking
passes, upon the terms and
conditions and at the rate
provided in Article 23 hereof.
	 
	 	 	 	 
	J.

	 	Initial Installment of Basic Rental:
	 	Intentionally Omitted.






ARTICLE 2




TERM/PREMISES




     The Term of this Lease shall commence on the Commencement Date as set forth in Article 1.A. of
the Basic Lease Provisions and shall end on the Expiration Date set forth in Article 1.A. of the
Basic Lease Provisions. For purposes of this Lease, the term “Lease Year” shall mean each
consecutive twelve (12) month period during the Term, with the first (1st) Lease Year
commencing on the Commencement Date; however, (i) if the Commencement Date falls on a day other
than the first (1st) day of a calendar month, the first (1st) Lease Year
shall end on the last day of the eleventh (11th) month after the Commencement Date and
the second (2nd) and each succeeding Lease Year shall commence on the first
(1st) day of the next calendar month, and (ii) the last Lease Year shall end on the
Expiration Date. If Landlord does not deliver possession of the Premises to Tenant on or before
the anticipated Commencement Date (as set forth in Article 1.A, above), Landlord shall not be
subject to any liability for



-2-









 







its failure to do so, and such failure shall not affect the validity
of this Lease nor the obligations of Tenant hereunder. The number of rentable square feet and
usable square feet of the Premises shall be determined in accordance with the rentable area and
usable area standards set forth in ANSI Z65.1-1996 and accompanying guidelines, as promulgated by
the Building Owners and Managers Association (“BOMA Standard”). Within ninety (90) days after
Landlord’s approval of the Final Space Plan (as defined in Section 3.2 of the Tenant Work Letter),
Landlord’s architect or space planner, in consultation with Tenant’s Architect (as defined in
Section 3.1 of the Tenant Work Letter), will determine the rentable square footage and usable
square footage of the Premises in accordance with the BOMA Standard and all figures in this Lease
which vary based upon such square footage (including, without limitation, Basic Rental, Tenant’s
Proportionate Share and the “Improvement Allowance,” as that term is defined in Section 2.1 of the
Tenant Work Letter) shall be retroactively adjusted based upon such square footage figures. Any
such adjustments shall be reflected in the Commencement Letter, which Commencement Letter shall be
in a form substantially similar to that attached hereto as Exhibit “C”, and which Tenant shall
execute and return to Landlord within five (5) days of receipt thereof. Failure of Tenant to
timely execute and deliver the Commencement Letter shall constitute acknowledgment by Tenant that
the statements included in such notice are true and correct, without exception, including the
number of rentable square feet and usable square feet of the Premises set forth therein.



ARTICLE 3




RENTAL




     (a) Basic Rental. Tenant agrees to pay to Landlord during the Term hereof, at
Landlord’s office or to such other person or at such other place as directed from time to time by
written notice to Tenant from Landlord, the monthly and annual sums as set forth in Article 1.C. of
the Basic Lease Provisions, payable in advance on the first (1st) day of each calendar
month, without demand, setoff or deduction, and in the event this Lease commences or the date of
expiration of this Lease occurs other than on the first (1st) day or last day of a
calendar month, the rent for such month shall be prorated. Notwithstanding anything to the
contrary contained herein and provided that Tenant faithfully performs all of the terms and
conditions of this Lease, Landlord hereby agrees to abate one hundred percent (100%) of Tenant’s
obligation to pay monthly Basic Rental for the first (1st) , second (2nd),
third (3rd) and fourth (4th) full calendar months of the initial Term only.
During such abatement period, Tenant shall still be responsible for the payment of all of its other
monetary obligations under this Lease, including any applicable Rental Tax and parking charges. In
the event of a default by Tenant under the terms of this Lease that results in early termination
pursuant to the provisions of Section 20(a) of this Lease, then as a
part of the recovery set forth in Article 20 of this Lease, Landlord shall be entitled to the
recovery of the monthly Basic Rental that was abated under the provisions of this Section 3(a).



     (b) Increase in Direct Costs. The term “Base Year” means the calendar year set forth
in Article 1.D. of the Basic Lease Provisions. If, in any calendar year during the Term of this
Lease, the “Direct Costs” (as hereinafter defined) paid or incurred by Landlord shall be higher
than the Direct Costs for the Base Year, Tenant shall pay an additional sum for each such
subsequent calendar year equal to the product of the amount set forth in Article 1.E. of the Basic
Lease Provisions multiplied by such increased amount of “Direct Costs.” In the event either the
Premises and/or the Project is expanded or reduced, then Tenant’s Proportionate Share shall be
appropriately adjusted, and as to the calendar year in which such change occurs, Tenant’s
Proportionate Share for such calendar year shall be determined on the basis of the number of days
during that particular calendar year that such Tenant’s Proportionate Share was in effect. In the
event this Lease shall terminate on any date other than the last day of a calendar year, the
additional sum payable hereunder by Tenant during the calendar year in which this Lease terminates
shall be prorated on the basis of the relationship which the number of days which have elapsed from
the commencement of said calendar year to and including said date on which this Lease terminates
bears to



-3-









 







three hundred sixty five (365). Any and all amounts due and payable by Tenant pursuant to
this Lease (other than Basic Rental) shall be deemed “Additional Rent” and Landlord shall be
entitled to exercise the same rights and remedies upon default in these payments as Landlord is
entitled to exercise with respect to defaults in monthly Basic Rental payments. Basic Rental and
Additional Rent may be collectively referred to herein as “Rent”. At the same time as any payment
of Rent is to be made by Tenant hereunder, Tenant shall also pay (directly to Landlord unless
otherwise instructed by Landlord) any and all rental taxes, gross receipts taxes, transaction
privilege taxes, sales taxes, and/or similar taxes levied currently or in the future on the Rent
amount then due or otherwise assessed in connection with the rental activity then occurring
(collectively, “Rental Tax”).



     (c) Definitions. As used herein the term “Direct Costs” shall mean the sum of the
following:



          (i) “Tax Costs”, which shall mean any and all real estate taxes and other similar charges on
real property or improvements, assessments, water and sewer charges, and all other charges
assessed, reassessed or levied upon the Project and appurtenances thereto and the parking or other
facilities thereof, or the real property thereunder (collectively the “Real Property”) or
attributable thereto or on the rents, issues, profits or income received or derived therefrom which
are assessed, reassessed or levied by the United States, the State of Arizona, any applicable
county within the State of Arizona, any applicable city, town or other local government authority
within the State of Arizona, and/or any other agency or political subdivision of the State of
Arizona, and shall include Landlord’s reasonable legal fees, costs and disbursements incurred in
connection with proceedings for reduction of Tax Costs or any part thereof; provided, however, if
at any time after the date of this Lease the methods of taxation now prevailing shall be altered so
that in lieu of or as a supplement to or a substitute for the whole or any part of any Tax Costs,
there shall be assessed, reassessed or levied (a) a tax, assessment, reassessment, levy, imposition
or charge wholly or partially as a net income, capital or franchise levy or otherwise on the rents,
issues, profits or income derived therefrom, or (b) a tax, assessment, reassessment, levy
(including but not limited to any municipal, state or federal levy), imposition or charge measured
by or based in whole or in part upon the Real Property and imposed upon Landlord, then except to
the extent such items are payable by Tenant under Article 6 below, such taxes, assessments,
reassessments or levies or the part thereof so measured or based, shall be deemed to be included in
the term “Direct Costs.” In no event shall Tax Costs included in Direct Costs for any year
subsequent to the Base Year be less than the amount of Tax Costs included in Direct Costs for the
Base Year; provided, however, that in the event that Tax Costs in any subsequent year to the Tax
Costs Base Year (as that term is defined in Section 3(d)(i) below) are less than Tax Costs
included in Direct Costs for the Tax Costs Base Year, Tenant’s Proportionate Share of Tax Costs for
such year shall be zero. In addition, when calculating Tax Costs for the Base Year, special
assessments shall only be deemed included in Tax Costs for the Base Year to the extent that such
special assessments are included in Tax Costs for the applicable subsequent calendar year during
the Term.




          (ii) “Operating Costs”, which shall mean all costs and expenses incurred by Landlord in
connection with the maintenance, operation, replacement, ownership and repair of the Project, the
equipment, the intrabuilding cabling and wiring, adjacent walks, malls and landscaped and common
areas and the parking structure, areas and facilities of the Project. Operating Costs shall
include but not be limited to, salaries, wages, medical, surgical and general welfare benefits and
pension payments, payroll taxes, fringe benefits, employment taxes, workers’ compensation, uniforms
and dry cleaning thereof for all persons who perform duties connected with the operation,
maintenance and repair of the Project, its equipment, the intrabuilding cabling and wiring and the
adjacent walks and landscaped areas, including gardening, security, parking, operating engineer,
elevator, painting, plumbing, electrical, carpentry, heating, ventilation, air conditioning and
window washing; hired services; a reasonable allowance for depreciation of the cost of acquiring or
the rental expense of personal property used in the




-4-









 







maintenance, operation and repair of the
Project; accountant’s fees incurred in the preparation of rent adjustment statements; legal fees;
real estate tax consulting fees; personal property taxes on property used in the maintenance and
operation of the Project; fees, costs, expenses or dues payable pursuant to the terms of any
covenants, conditions or restrictions or owners’ association pertaining to the Project; capital
expenditures incurred to effect economies of operation of, or stability of services to, the Project
and capital expenditures required by government regulations, laws, or ordinances including, but not
limited to the Americans with Disabilities Act; provided, however, that any such permitted capital
expenditure shall be amortized (with interest at ten percent (10%) per annum) over its useful life;
costs incurred (capital or otherwise) on a regular recurring basis every three (3) or more years
for certain maintenance projects (e.g., parking lot slurry coat or replacement of lobby and
elevator cab carpeting); the cost of all charges for electricity, gas, water and other utilities
furnished to the Project, including any taxes thereon; the cost of all charges for fire and
extended coverage, liability and all other insurance in connection with the Project carried by
Landlord; the cost of all building and cleaning supplies and materials; the cost of all charges for
cleaning, maintenance and service contracts and other services with independent contractors and
administration fees; a property management fee (which fee may be imputed if Landlord has
internalized management or otherwise acts as its own property manager) and license, permit and
inspection fees relating to the Project. In the event, during any calendar year, the Project is
less than ninety-five percent (95%) occupied at all times, Operating Costs shall be adjusted to
reflect the Operating Costs of the Project as though ninety-five percent (95%) were occupied at all
times, and the increase or decrease in the sums owed hereunder shall be based upon such Operating
Costs as so adjusted. In no event shall costs for any item of utilities included in Direct Costs
for any year subsequent to the Base Year be less than the amount included in Direct Costs for the
Base Year for such utility item. Notwithstanding anything to the contrary set forth in this
Article 3, when calculating Operating Costs for the Base Year, unless Operating Costs for the
applicable subsequent calendar year include the applicable following items, Operating Costs shall
exclude (a) increases due to extraordinary circumstances including, but not limited to,
labor-related boycotts and strikes, utility rate hikes, utility conservation surcharges, or other
surcharges, insurance premiums resulting from terrorism coverage, catastrophic events and/or the
management of environmental risks, and (b) amortization of any capital items including, but not
limited to, capital improvements, capital repairs and capital replacements (including such
amortized costs where the actual improvement, repair or replacement was made in prior years).




     (d) Determination of Payment.



          (i) If for any calendar year ending or commencing within the Term, Tenant’s Proportionate
Share of Direct Costs for such calendar year exceeds Tenant’s Proportionate Share of Direct Costs
for the Base Year, then Tenant shall pay to Landlord, in the manner set forth in Sections 3(d)(ii)
and (iii) below, and as Additional Rent, an amount equal to the excess (the “Excess”). However,
notwithstanding the foregoing, effective as of January 1, 2010, with regard to the entire Premises,
Tax Costs includable in Direct Costs pursuant to Section 3(c)(i) above shall be excluded from
Direct Costs such that if this Lease extends beyond December 31, 2010, Tenant shall only be
responsible for Tenant’s Proportionate Share of increases in such Tax Costs over and above the
amount incurred for calendar year 2010 (the “Tax Costs Base Year”).




          (ii) As soon as reasonably practicable following the end of each calendar year, Landlord shall
give Tenant a yearly expense estimate statement (the “Estimate Statement”) which shall set forth
Landlord’s reasonable estimate (the “Estimate”) of what the total amount of Direct Costs for the
then-current calendar year shall be and the estimated Excess (the “Estimated Excess”) as calculated
by comparing Tenant’s Proportionate Share of Direct Costs for such calendar year, which shall be
based upon the Estimate, to Tenant’s Proportionate Share of Direct Costs for the Base Year. The
failure of Landlord to timely furnish the Estimate Statement for any calendar year shall not
preclude Landlord from subsequently enforcing its rights to collect any Estimated Excess under this
Article 3, once such




-5-









 







Estimated Excess has been determined by Landlord (provided that in the event
that such failure continues for a period of six (6) months following receipt of written notice of
such failure from Tenant, then Tenant may elect to seek specific performance). If pursuant to the
Estimate Statement an Estimated Excess is calculated for the then-current calendar year, Tenant
shall pay, with its next installment of Monthly Basic Rental due, a fraction of the Estimated
Excess for the then-current calendar year (reduced by any amounts paid pursuant to the last
sentence of this Section 3(d)(ii)). Such fraction shall have as its numerator the number of months
which have elapsed in such current calendar year to the month of such payment, both months
inclusive, and shall have twelve (12) as its denominator. Until a new Estimate Statement is
furnished, Tenant shall pay monthly, with the Monthly Basic Rental installments, an amount equal to
one-twelfth (1/12) of the total Estimated Excess set forth in the previous Estimate Statement
delivered by Landlord to Tenant.




          (iii) In addition, on or before the first (1st) day of May, Landlord shall give to
Tenant a statement (the “Statement”) which shall state the Direct Costs incurred or accrued for
such preceding calendar year, and which shall indicate the amount, if any, of the Excess. Upon
receipt of the Statement for each calendar year during the Term, if amounts paid by Tenant as
Estimated Excess are less than the actual Excess as specified on the Statement, Tenant shall pay,
with its next installment of monthly Basic Rental due, the full amount of the Excess for such
calendar year, less the amounts, if any, paid during such calendar year as Estimated Excess. If,
however, the Statement indicates that amounts paid by Tenant as Estimated Excess are greater than
the actual Excess as specified on the Statement, such overpayment shall be credited against
Tenant’s next installments of Estimated Excess. The failure of Landlord to timely furnish the
Statement for any calendar year shall not prejudice Landlord from enforcing its rights under this
Article 3, once such Statement has been delivered. Even though the Term has expired and Tenant has
vacated the Premises, when the final determination is made of Tenant’s Proportionate Share of the
Direct Costs for the calendar year in which this Lease terminates, if an Excess is present, Tenant
shall immediately pay to Landlord an amount as calculated pursuant to the provisions of this
Section 3(d). The provisions of this Section 3(d)(iii) shall survive the expiration or earlier
termination of the Term.




          (iv) If the Project is a part of a multi-building development, those Direct Costs attributable
to such development as a whole (and not attributable solely to any individual building therein)
shall be allocated by Landlord to the Project and to the other buildings within such
development on an equitable basis.




     (e) Audit Right. Within one hundred twenty (120) days after receipt of a Statement by
Tenant (“Review Period”), if Tenant disputes the amount set forth in the Statement, Tenant’s
employees or an independent certified public accountant (which accountant is in good standing with
the Arizona State Board of Accountancy and is not retained on a contingency fee basis), designated
by Tenant, may, after reasonable notice to Landlord (“Review Notice”) and at reasonable times,
inspect Landlord’s records at Landlord’s offices, provided that Tenant is not then in default after
expiration of all applicable cure periods and provided further that Tenant and such accountant or
representative shall, and each of them shall use their commercially reasonable efforts to cause
their respective agents and employees to, maintain all information contained in Landlord’s records
in strict confidence. Notwithstanding the foregoing, Tenant shall only have the right to review
Landlord’s records one (1) time during any twelve (12) month period. If after such inspection, but
within thirty (30) days after the Review Period, Tenant notifies Landlord in writing (“Dispute
Notice”) that Tenant still disputes such amounts, a certification as to the proper amount shall be
made in accordance with Landlord’s standard accounting practices, at Tenant’s expense, by an
independent certified public accountant selected by Landlord and who is in good standing with the
Arizona State Board of Accountancy. Tenant’s failure to deliver the Review Notice within the
Review Period or to deliver the Dispute Notice within thirty (30) days after the Review Period
shall be deemed to constitute Tenant’s approval of such Statement and Tenant, thereafter, waives
the right



-6-









 







or ability to dispute the amounts set forth in such Statement. If Tenant timely delivers
the Review Notice and the Dispute Notice, Landlord shall cooperate in good faith with Tenant and
the accountant to show Tenant and the accountant the information upon which the certification is to
be based. However, if such certification by the accountant proves that the Direct Costs set forth
in the Statement were overstated by more than ten percent (10%), then the cost of the accountant
and the cost of such certification shall be paid for by Landlord. Promptly following the parties
receipt of such certification, the parties shall make such appropriate payments or reimbursements,
as the case may be, to each other, as are determined to be owing pursuant to such certification.
Tenant agrees that this section shall be the sole method to be used by Tenant to dispute the amount
of any Direct Costs payable by Tenant pursuant to the terms of this Lease, and Tenant hereby waives
any other rights at law or in equity relating thereto.



ARTICLE 4




SECURITY DEPOSIT/LETTER OF CREDIT




     (a) Cash Security Deposit. Tenant has deposited or concurrently herewith is
depositing with Landlord the sum (the “Cash Security Deposit”) of Thirty One Thousand Four Hundred
Forty and 93/100 Dollars ($31,440.93) (which amount includes the applicable Rental Tax and parking
charges payable by Tenant at the Rental Tax and parking rates in effect as of the date of this
Lease) as security for the full and faithful performance of every provision of this Lease to be
performed by Tenant. If Tenant breaches any provision of this Lease, including but not limited to
the payment of rent, Landlord may use all or any part of the Cash Security Deposit for the payment
of any rent or any other sums in default, or to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant’s default. If any portion of said Cash Security
Deposit is so used or applied, Tenant shall, within five (5) days after written demand therefor,
deposit cash with Landlord in an amount sufficient to restore the Cash Security Deposit to its full
amount. Tenant agrees that Landlord shall not be required to keep the Cash Security Deposit in
trust, segregate it or keep it separate from Landlord’s general funds, but Landlord may commingle
the Cash Security Deposit with its general funds and Tenant shall not be entitled to interest on
such Cash Security Deposit. At the expiration of the Term, and provided there exists no default by
Tenant hereunder, the Cash Security Deposit or any balance thereof
shall be returned to Tenant (or, at Landlord’s option, to Tenant’s “Transferee”, as such term
is defined in Article 15 below), provided that subsequent to the expiration of this Lease, Landlord
may retain from said Cash Security Deposit (i) an amount reasonably estimated by Landlord to cover
potential Direct Cost reconciliation payments due with respect to the calendar year in which this
Lease terminates or expires (such amount so retained shall not, in any event, exceed ten percent
(10%) of estimated Direct Cost payments due from Tenant for such calendar year through the date of
expiration or earlier termination of this Lease and any amounts so retained and not applied to such
reconciliation shall be returned to Tenant within thirty (30) days after Landlord’s delivery of the
Statement for such calendar year), (ii) any and all amounts reasonably estimated by Landlord to
cover the anticipated costs to be incurred by Landlord to remove any signage provided to Tenant
under this Lease, to remove cabling and other items required to be removed by Tenant under Section
29(b) below and to repair any damage caused by such removal (in which case any such removal and/or
repair Landlord conducts pursuant to this Section 4(a) shall occur within ninety (90) days after
the date of expiration or earlier termination of this Lease and any excess amount so retained by
Landlord shall be returned to Tenant within thirty (30) days after such removal and repair), and
(iii) any and all amounts permitted by law or this Section 4(a). Tenant hereby waives any
provisions of law, now or hereafter in effect, which 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, it being agreed that Landlord may, in
addition, claim those sums specified in this Section 4(a) above, and all of Landlord’s damages
under this Lease and Arizona law including, but not limited to, any damages accruing upon
termination of this Lease and/or those sums reasonably necessary



-7-









 







to compensate Landlord for any
other loss or damage, foreseeable or unforeseeable, caused by the acts or omissions of Tenant or
any officer, employee, agent, contractor or invitee of Tenant.



     (b) Letter of Credit. In addition to Tenant’s obligation to pay the Cash Security
Deposit to Landlord as set forth in Section 4(a) above, on or before the date (the “LOC Delivery
Date”) upon which the Contingency (as defined in Article 34 below) is either satisfied, waived or
deemed to be waived by Tenant, Tenant shall deliver to Landlord an unconditional, irrevocable and
renewable letter of credit (“Letter of Credit”) in favor of Landlord in the form attached hereto as
Exhibit E, issued by a bank reasonably approved by Landlord with a branch which will honor draws
located in Southern California, in the principal amount (“Stated Amount”) of Three Hundred Thousand
and No/100 Dollars ($300,000.00), to be held by Landlord in accordance with the terms, provisions
and conditions of this Section 4(b). Tenant shall pay all expenses, points and/or fees incurred by
Tenant in obtaining the Letter of Credit. If the Letter of Credit delivered by Tenant is
inconsistent with the form attached hereto as Exhibit E (including, without limitation, the wrong
name or address for the Beneficiary), Landlord may so notify Tenant in writing, in which case
Tenant shall cause the Letter of Credit to be corrected within five (5) business days after such
notice. Notwithstanding the foregoing terms and conditions of this Section 4(b), if as of the date
(“LOC Expiration Date”) immediately preceding the third (3rd) anniversary of the LOC
Delivery Date, Tenant is not and has not been in default under this Lease and no circumstances then
exist which with the giving of notice or the passage of time or both would constitute a default
hereunder, then Landlord shall release the Letter of Credit and Tenant shall no longer have an
obligation to provide the Letter of Credit to Landlord from and after the LOC Expiration Date.
However, in the event that Landlord releases the Letter of Credit pursuant to the immediately
preceding sentence, Landlord shall continue to hold the Cash Security Deposit in the amount and
otherwise in accordance with the terms and conditions set forth in Section 4(a) above. On the
other hand, if as of the LOC Expiration Date either: (i) a default by Tenant has occurred or is
then occurring under this Lease, or (ii) circumstances then exist that would, with notice or lapse
of time, or both, constitute a default by Tenant, then the Letter of Credit shall not be so
released by Landlord and Tenant shall maintain the Letter of Credit in the Stated Amount throughout
the remaining Term of this Lease. The Letter of Credit shall state that an authorized officer or
other representative of Landlord may make demand on Landlord’s behalf for the Stated Amount of the
Letter of Credit, or any portion thereof, and that the issuing bank must immediately honor such
demand,
without qualification or satisfaction of any conditions, except the proper identification of
the party making such demand. In addition, the Letter of Credit shall indicate that it is
transferable in its entirety by Landlord as beneficiary and that upon receiving written notice of
transfer, and upon presentation to the issuing bank of the original Letter of Credit, the issuer or
confirming bank will reissue the Letter of Credit naming such transferee as the beneficiary.
Tenant shall be responsible for the payment to the issuing bank of any transfer costs imposed by
the issuing bank in connection with any such transfer. If (A) the Letter of Credit is not released
by Landlord as set forth in this Section 4(b) above and the term of the Letter of Credit held by
Landlord will expire prior to the last day of the Term and the Letter of Credit is not extended, or
a new Letter of Credit for an extended period of time is not substituted, in either case at least
(30) days prior to the expiration of the Letter of Credit, or (B) Tenant commits a default with
respect to any provision of this Lease, including the filing of a voluntary petition under Title 11
of the United States Code (i.e., the Bankruptcy Code), or otherwise becomes a debtor in any case or
proceeding under the Bankruptcy Code, as now existing or hereinafter amended, or any similar law or
statute, Landlord may (but shall not be required to) draw upon all or any portion of the Stated
Amount of the Letter of Credit, and the proceeds received from such draw shall constitute
Landlord’s property (and not Tenant’s property or the property of the bankruptcy estate of Tenant)
and Landlord may then use, apply or retain all or any part of the proceeds (1) for the payment of
any sum which is in default, (2) to reimburse Landlord for costs incurred by Landlord in connection
with this Lease (including, without limitation, any costs incurred by Landlord to improve the
Premises, any Improvement Allowance, and any brokerage commissions and attorneys’ fees), (3) for
the payment of any other amount which Landlord may spend or become obligated to spend by reason of
Tenant’s default, (4) to compensate Landlord for any loss or



-8-









 







damage which Landlord may suffer by
reason of Tenant’s default or (5) as prepaid rent to be applied against Tenant’s Basic Rental
obligations for the last month of the Term and the immediately preceding month(s) of the Term until
the remaining proceeds are exhausted. If any portion of the Letter of Credit proceeds are so used
or applied, Tenant shall, within ten (10) days after demand therefor, post an additional Letter of
Credit in an amount to cause the aggregate amount of the unused proceeds and such new Letter of
Credit to equal the Stated Amount required in this Section 4(b) above. Landlord shall not be
required to keep any proceeds from the Letter of Credit separate from its general funds. Should
Landlord sell its interest in the Premises during the Term and if Landlord deposits with the
purchaser thereof the Letter of Credit or any proceeds of the Letter of Credit, thereupon Landlord
shall be discharged from any further liability with respect to the Letter of Credit and said
proceeds and Tenant shall look solely to such transferee for the return of the Letter of Credit or
any proceeds therefrom. The Letter of Credit or any remaining proceeds of the Letter of Credit
held by Landlord after expiration of the Term, after any deductions described in this Section 4(b)
above, shall be returned to Tenant or, at Landlord’s option, to the last assignee of Tenant’s
interest hereunder, within sixty (60) days following the expiration of the Term.



     (c) The use, application or retention of the Letter of Credit, the proceeds or any portion
thereof, shall not prevent Landlord from exercising any other rights or remedies provided under
this Lease, it being intended that Landlord shall not be required to proceed against the Letter of
Credit, and such use, application or retention of the Letter of Credit shall not operate as a
limitation on any recovery to which Landlord may otherwise be entitled. No trust relationship is
created herein between Landlord and Tenant with respect to the Letter of Credit.



     (d) Landlord and Tenant acknowledge and agree that in no event or circumstance shall the
Letter of Credit, any renewal thereof or substitute therefor or the proceeds thereof be deemed to
be or treated as a “security deposit” under any applicable law. Landlord and Tenant hereby agree
that any and all laws, rules and regulations applicable to security deposits in the commercial
context (“Security Deposit Laws”) shall have no applicability or relevancy to the Letter of Credit
and each party waives any and all rights, duties and obligations such party may now have or, in the
future, will have relating to or arising from the Security Deposit Laws.



     (e) The provisions of this Section 4(b) shall survive the expiration or earlier termination of
this Lease.



ARTICLE 5




HOLDING OVER




     Should Tenant, without Landlord’s written consent, hold over after termination of this Lease,
Tenant shall, at Landlord’s option, become either a tenant at sufferance or a month-to-month tenant
upon each and all of the terms herein provided as may be applicable to such a tenancy and any such
holding over shall not constitute an extension of this Lease. During such holding over, Tenant
shall pay in advance, monthly, Basic Rental at a rate equal to one hundred fifty percent (150%) of
the rate in effect for the last month of the Term of this Lease or one hundred fifty percent (150%)
of Landlord’s then asking rate for comparable space in the Project, whichever is greater, in
addition to, and not in lieu of, all other payments required to be made by Tenant hereunder
including but not limited to Tenant’s Proportionate Share of any increase in Direct Costs. Nothing
contained in this Article 5 shall be construed as consent by Landlord to any holding over of the
Premises by Tenant, and Landlord expressly reserves the right to require Tenant to surrender
possession of the Premises to Landlord as provided in this Lease upon the expiration or earlier
termination of the Term. If Tenant fails to surrender the Premises upon the expiration or
termination of this Lease, Tenant agrees to indemnify, defend and hold Landlord harmless



-9-









 







from and
against all costs, loss, expense or liability, including without limitation, claims made by any
succeeding tenant and real estate brokers claims and attorney’s fees and costs.



ARTICLE 6




OTHER TAXES




     Tenant shall pay, prior to delinquency, all taxes assessed against or levied upon trade
fixtures, furnishings, equipment and all other personal property of Tenant located in the Premises.
In the event any or all of Tenant’s trade fixtures, furnishings, equipment and other personal
property shall be assessed and taxed with property of Landlord, or if the cost or value of any
leasehold improvements in the Premises exceeds the cost or value of a Project-standard buildout as
determined by Landlord and, as a result, real property taxes for the Project are increased, Tenant
shall pay to Landlord, within ten (10) days after delivery to Tenant by Landlord of a written
statement setting forth such amount, the amount of such taxes applicable to Tenant’s property or
above-standard improvements. Tenant shall assume and pay to Landlord at the time Basic Rental next
becomes due (or if assessed after the expiration of the Term, then within ten (10) days), any
excise, sales, use, rent, occupancy, garage, parking, gross receipts or other taxes (other than net
income taxes) which may be assessed against or levied upon Landlord on account of the letting of
the Premises or the payment of Basic Rental or any other sums due or payable hereunder, and which
Landlord may be required to pay or collect under any law now in effect or hereafter enacted. In
addition to Tenant’s obligation pursuant to the immediately preceding sentence, Tenant shall pay
directly to the party or entity entitled thereto all business license fees, gross receipts taxes
and similar taxes and impositions which may from time to time be assessed against or levied upon
Tenant, as and when the same become due and before delinquency. Notwithstanding anything to the
contrary contained herein, any sums payable by Tenant under this Article 6 shall not be included in
the computation of “Tax Costs.”



ARTICLE 7




USE




     Tenant shall use and occupy the Premises only for the use set forth in Article 1.G. of the
Basic Lease Provisions and shall not use or occupy the Premises or permit the same to be used or
occupied for any other purpose without the prior written consent of Landlord, which consent may be
given or withheld in Landlord’s sole and absolute discretion, and Tenant agrees that it will use
the Premises in such a manner so as not to interfere with or infringe upon the rights of other
tenants or occupants in the Project. Tenant shall, at its sole cost and expense, promptly comply
with all laws, statutes, ordinances, governmental regulations or requirements now in force or which
may hereafter be in force relating to or affecting (a) the condition, use or occupancy of the
Premises or the Project (excluding structural changes to the Project not related to Tenant’s
particular use of the Premises), and (b) improvements installed or constructed in the Premises by
or for the benefit of Tenant. Except for occasional meetings and special events, Tenant shall not
permit more than six (6) people per one thousand (1,000) rentable square feet of the Premises to
occupy the Premises at any time; provided, however, that Tenant acknowledges that if more than six
(6) people per thousand (1,000) rentable square feet of the Premises occupy the Premises at any
time, the Project systems may not be sufficient for Tenant’s use and Landlord shall have no
liability or responsibility for the inadequacy of such systems. Tenant shall not do or permit to
be done anything which would invalidate or increase the cost of any fire and extended coverage
insurance policy covering the Project and/or the property located therein and Tenant shall comply
with all rules, orders, regulations and requirements of any organization which sets out standards,
requirements or recommendations commonly referred to by major fire insurance underwriters, and
Tenant shall promptly upon demand reimburse Landlord for any additional premium charges for any
such insurance policy assessed or increased by reason of Tenant’s failure to comply with the
provisions of this Article. Landlord represents



-10-









 







that Landlord has taken or shall take the
necessary steps to comply with what Landlord reasonably believes are the requirements of the
Americans with Disabilities Act (“ADA”) in effect as of the date of this Lease as it pertains to
the common areas within the Project. Operating Costs shall not include any cost incurred by
Landlord in connection with upgrading the Project to comply with the requirements of the ADA that
are in effect as of the date of this Lease, including penalties or damages incurred due to such
noncompliance. Notwithstanding the foregoing, Tenant shall not be required to make any structural
changes to the Premises unless such changes are required as a direct result of Tenant’s specific
use or Alterations in the Premises, or due to the negligence or willful misconduct of Tenant or
Tenant’s agents, employees or contractors.



ARTICLE 8




CONDITION OF PREMISES




     Tenant hereby agrees that, except as provided in the Tenant Work Letter attached hereto as
Exhibit “D” and made a part hereof, the Premises shall be taken “as is”, “with all faults”,
“without any representations or warranties”, and Tenant hereby agrees and warrants that it has
investigated and inspected the condition of the Premises and the suitability of same for Tenant’s
purposes, and Tenant does hereby waive and disclaim any objection to, cause of action based upon,
or claim that its obligations hereunder should be reduced or limited because of the condition of
the Premises or the Project or the suitability of same for Tenant’s purposes. Tenant acknowledges
that neither Landlord nor any agent nor any employee of Landlord has made any representations or
warranty with respect to the Premises or the Project or with respect to the suitability of either
for the conduct of Tenant’s business and Tenant expressly warrants and represents that Tenant has
relied solely on its own investigation and inspection of the Premises and the Project in its
decision to enter into this Lease and let the Premises in the above-described condition.
Notwithstanding the foregoing, Landlord shall, at its sole cost and expense and
throughout the initial Term of the Lease and the Option Term (if applicable), repair any
structural and/or latent design or construction defects in the original construction of the Project
of which Landlord has notice or that Landlord discovers. The Premises shall be initially improved
as provided in, and subject to, the Tenant Work Letter attached hereto as Exhibit “D” and made a
part hereof. The existing leasehold improvements in the Premises as of the date of this Lease,
together with the Improvements (as defined in the Tenant Work Letter) may be collectively referred
to herein as the “Tenant Improvements.” The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the Project were at such time in satisfactory
condition. Tenant hereby waives any provisions of law which would otherwise permit Tenant to make
repairs required of Landlord under this Lease.



ARTICLE 9




REPAIRS AND ALTERATIONS




     (a) Landlord’s Obligations. Landlord shall maintain the structural portions of the
Project, including the foundation, floor/ceiling slabs, roof, curtain wall, exterior glass,
columns, beams, shafts, stairs, stairwells, elevator cabs and common areas, and shall also maintain
and repair the basic mechanical, electrical, life safety, plumbing, sprinkler systems and heating,
ventilating and air-conditioning systems.



     (b) Tenant’s Obligations. Except as expressly provided as Landlord’s obligation in
this Article 9, Tenant shall keep the Premises in good condition and repair. All damage or injury
to the Premises or the Project resulting from the act or negligence of Tenant, its employees,
agents or visitors, guests, invitees or licensees or by the use of the Premises, shall be promptly
repaired by Tenant at its sole cost and expense, to the satisfaction of Landlord; provided,
however, that for damage to the Project as a



-11-









 







result of casualty or for any repairs that may impact
the mechanical, electrical, plumbing, heating, ventilation or air-conditioning systems of the
Project, Landlord shall have the right (but not the obligation) to select the contractor and
oversee all such repairs. Landlord may make any repairs which are not promptly made by Tenant
after Tenant’s receipt of written notice and the reasonable opportunity of Tenant to make said
repair within five (5) business days from receipt of said written notice, and charge Tenant for the
cost thereof, which cost shall be paid by Tenant within five (5) days from invoice from Landlord.
Tenant shall be responsible for the design and function of all non-standard improvements of the
Premises, whether or not installed by Landlord at Tenant’s request. Tenant waives all rights to
make repairs at the expense of Landlord, or to deduct the cost thereof from the rent.



     (c) Alterations.



          (i) Alterations. Tenant shall make no alterations, installations, changes or
additions in or to the Premises or the Project (collectively, “Alterations”) without Landlord’s
prior written consent which consent shall not be unreasonably withheld. Any Alterations approved
by Landlord must be performed in accordance with the terms hereof, using only contractors or
mechanics approved by Landlord in writing and upon the approval by Landlord in writing of fully
detailed and dimensioned plans and specifications pertaining to the Alterations in question, to be
prepared and submitted by Tenant at its sole cost and expense. Tenant shall at its sole cost and
expense obtain all necessary approvals and permits pertaining to any Alterations approved by
Landlord. Tenant shall cause all Alterations to be performed in a good and workmanlike manner, in
conformance with all applicable federal, state, county and municipal laws, rules and regulations,
pursuant to a valid building permit, and in conformance with Landlord’s construction rules and
regulations. If Landlord, in approving any Alterations, specifies a commencement date therefor,
Tenant shall not commence any work with respect to such Alterations prior to such date.
Notwithstanding anything to the contrary contained herein, Tenant
may make strictly cosmetic changes to the finish work in the Premises (the “Cosmetic
Alterations”) without Landlord’s consent, provided that the aggregate cost of any such alterations
does not exceed Thirty Thousand and No/100 Dollars ($30,000.00) in any twelve (12) month period,
and further provided that such alterations do not (a) require any structural or other substantial
modifications to the Premises, (b) require any changes to, nor adversely affect, the systems and
equipment of the Project, and (c) affect the exterior appearance of the Project. Tenant shall give
Landlord at least three (3) business days prior notice of such Cosmetic Alterations, which notice
shall be accompanied by reasonably adequate evidence that such changes meet the criteria contained
in this Article 9. Tenant hereby agrees to indemnify, defend, and hold Landlord free and harmless
from all liens and claims of lien, and all other liability, claims and demands arising out of any
work done or material supplied to the Premises by or at the request of Tenant in connection with
any Alterations.




          (ii) Vault Installation. Tenant shall have the right to install, at Tenant’s sole
cost and expense, a bank vault (the “Vault”) in the Premises subject to the terms of this Section
9(c)(ii). The design specifications, plans and method of installation of the Vault shall be
subject to the prior written approval of Landlord. However, for purposes of the immediately
preceding sentence, Landlord hereby approves the design specifications and plans for the Vault
attached hereto as Exhibit “D-1” and incorporated herein by this reference. In addition, Tenant’s
right to install and use the Vault shall be subject to all applicable government law and
ordinances, and all covenants, conditions and restrictions affecting the Project. Tenant hereby
acknowledges that notwithstanding Landlord’s approval of the specifications and plans for the
Vault, Landlord has made no representation or warranty to Tenant with respect to Tenant’s
compliance with such laws nor the probability of Tenant obtaining necessary permits and approvals.
In the event Tenant does not obtain the necessary permits and approvals for the Vault, Tenant’s
obligations and Landlord’s rights hereunder shall not be affected. The Vault shall be maintained
by Tenant, at Tenant’s sole cost and expense, in first-class order, condition, and repair at all
times in accordance with applicable laws and this Section 9(c)(ii). All changes, modifications or
alterations to the




-12-









 







Vault shall be (a) subject to Landlord’s prior written approval, which approval
shall not be unreasonably withheld, conditioned or delayed, (b) in compliance with all applicable
laws, and (c) in keeping with the quality, design, and style of the Project. Upon the expiration
or earlier termination of this Lease, Tenant shall, at Tenant’s sole cost and expense, remove the
Vault and repair any resulting damage to the Premises to a condition reasonably satisfactory to the
Landlord. If Tenant fails to remove the Vault and restore the Premises and/or Project as provided
in the immediately preceding sentence within thirty (30) days of the expiration or earlier
termination of this Lease, then Landlord may perform such work and all costs and expenses incurred
by Landlord in performing such work shall be reimbursed by Tenant within ten (10) days after
Tenant’s receipt of an invoice therefor. Tenant’s obligations under this Section 9(c)(ii) shall
survive the expiration or earlier termination of this Lease. Tenant shall be entitled, during the
Term to designate the Vault as a secured area and to install door locks or other access control
systems as necessary to secure the Vault provided that the Vault shall be used by Tenant solely for
purposes related to securing certain valuable property, cash or confidential information as may be
required in accordance with Tenant’s operations in the Premises as a full-service retail bank.
Tenant hereby agrees and acknowledges that Landlord shall have no liability whatsoever to Tenant in
connection with the installation and/or use of the Vault by Tenant. Landlord shall enter the Vault
only upon two (2) business days’ prior notice to Tenant and only after providing Tenant with the
opportunity to have a representative of Tenant present as an escort. Landlord and Tenant hereby
agree to use commercially reasonable efforts to schedule any such entries into the Vault by
Landlord at times that are mutually convenient to both Landlord and Tenant, taking into
consideration the nature of Tenant’s operations in the Premises. Tenant agrees that Tenant shall
be responsible, at its sole cost and expense, for complying with all applicable laws regarding the
Vault and that the Vault is subject to Tenant’s indemnity and insurance obligations set forth in
Articles 13 and 14 of this Lease below.




     (d) Insurance; Liens. Prior to the commencement of any Alterations, Tenant shall
provide Landlord with evidence that Tenant carries “Builder’s All Risk” insurance in an amount
approved by Landlord covering the construction of such Alterations, and such other insurance as
Landlord may reasonably require, it being understood that all such Alterations shall be insured by
Tenant pursuant to Article 14 of this Lease immediately upon completion thereof. In addition,
Landlord may, in its discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to ensure the lien free
completion of such Alterations and naming Landlord as a co-obligee.



     (e) Costs and Fees; Removal. If permitted Alterations are made, they shall be made at
Tenant’s sole cost and expense and shall be and become the property of Landlord, except that
Landlord may, by written notice to Tenant given prior to the end of the Term, require Tenant at
Tenant’s expense to remove all partitions, counters, railings, Improvements and other Alterations
from the Premises, and to repair any damage to the Premises and the Project caused by such removal.
Any and all costs attributable to or related to the applicable building codes of the city in which
the Project is located (or any other authority having jurisdiction over the Project) arising from
Tenant’s plans, specifications, improvements, Alterations or otherwise shall be paid by Tenant at
its sole cost and expense. With regard to repairs, Alterations (other than Cosmetic Alterations)
or any other work arising from or related to this Article 9, Landlord shall be entitled to receive
an administrative/coordination fee (which fee shall vary depending upon whether or not Tenant
orders the work directly from Landlord but in no event shall such fee exceed seven percent (7%) of
the hard costs of such work) sufficient to compensate Landlord for all overhead, general
conditions, fees and other costs and expenses arising from Landlord’s involvement with such work.
The construction of initial improvements to the Premises shall be governed by the terms of the
Tenant Work Letter and not the terms of this Article 9, except as expressly provided in the first
sentence of this Section 9(e).



-13-









 





ARTICLE 10




LIENS




     Tenant shall keep the Premises and the Project free from any mechanics’ liens, vendors liens
or any other liens arising out of any work performed, materials furnished or obligations incurred
by Tenant, and Tenant agrees to defend, indemnify and hold Landlord harmless from and against any
such lien or claim or action thereon, together with costs of suit and reasonable attorneys’ fees
and costs incurred by Landlord in connection with any such claim or action. Before commencing any
work of alteration, addition or improvement to the Premises, Tenant shall give Landlord at least
ten (10) business days’ written notice of the proposed commencement of such work (to afford
Landlord an opportunity to post appropriate notices of non-responsibility). In the event that
there shall be recorded against the Premises or the Project or the property of which the Premises
is a part any claim or lien arising out of any such work performed, materials furnished or
obligations incurred by Tenant and such claim or lien shall not be removed or discharged by bond or
otherwise within ten (10) days after Tenant receives notice of filing of any such claim or lien,
Landlord shall have the right but not the obligation to pay and discharge said lien without regard
to whether such lien shall be lawful or correct, or to require that Tenant promptly deposit with
Landlord in cash, lawful money of the United States, one hundred fifty percent (150%) of the amount
of such claim, which sum may be retained by Landlord until such claim shall have been removed of
record or until judgment shall have been rendered on such claim and such judgment shall have become
final, at which time Landlord shall have the right to apply such deposit in discharge of the
judgment on said claim and any costs, including attorneys’ fees and costs incurred by Landlord, and
shall remit the balance thereof to Tenant.



ARTICLE 11




PROJECT SERVICES




     (a) Basic Services. Landlord agrees to furnish to the Premises, at a cost to be
included in Operating Costs, from 8:00 a.m. to 6:00 p.m. Mondays through Fridays and 9:00 a.m. to
1:00 p.m. on Saturdays, excepting local and national holidays, air conditioning and heat all in
such reasonable quantities as in the judgment of Landlord is reasonably necessary for the
comfortable occupancy of the Premises. In addition, Landlord shall provide electric current for
normal lighting and normal office machines, elevator service and water on the same floor as the
Premises for lavatory and drinking purposes in such reasonable quantities as in the judgment of
Landlord is reasonably necessary for general office use and in compliance with applicable codes.
Tenant shall be responsible for retaining a bonded janitorial contractor, which contractor shall be
reasonably approved by Landlord, and Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide janitorial service to the Premises. Tenant shall comply with all
rules and regulations which Landlord may establish for the proper functioning and protection of the
common area air conditioning, heating, elevator, electrical, intrabuilding cabling and wiring and
plumbing systems. Except as provided in Section 11(i) below, Landlord shall not be liable for, and
there shall be no rent abatement as a result of, any stoppage, reduction or interruption of any
such services caused by governmental rules, regulations or ordinances, riot, strike, labor
disputes, breakdowns, accidents, necessary repairs or other cause. Except as specifically provided
in this Article 11, Tenant agrees to pay for all utilities and other services utilized by Tenant
and any additional building services furnished to Tenant which are not uniformly furnished to all
tenants of the Project, at the rate generally charged by Landlord to tenants of the Project for
such utilities or services.



     (b) Excess Usage. Tenant will not, without the prior written consent of Landlord, use
any apparatus or device in the Premises which will in any way increase the amount of electricity or
water usually furnished or supplied for use of the Premises as general office space; nor connect
any apparatus,



-14-









 







machine or device with water pipes or electric current (except through existing
electrical outlets in the Premises), for the purpose of using electric current or water.



     (c) Additional Electrical Service. If Tenant shall require electric current in excess
of that which Landlord is obligated to furnish under Section 11(a) above, Tenant shall first obtain
the written consent of Landlord, which Landlord may refuse in its sole and absolute discretion.
Additionally, Landlord may cause an electric current meter or submeter to be installed in or about
the Premises to measure the amount of any such excess electric current consumed by Tenant in the
Premises. The cost of any such meter and of installation, maintenance and repair thereof shall be
paid for by Tenant and Tenant agrees to pay to Landlord, promptly upon demand therefor by Landlord,
for all such excess electric current consumed by any such use as shown by said meter at the rates
charged for such service by the city in which the Project is located or the local public utility,
as the case may be, furnishing the same, plus any additional expense incurred by Landlord in
keeping account of the electric current so consumed.



     (d) HVAC Balance. If any lights, machines or equipment (including but not limited to
computers and computer systems and appurtenances) are used by Tenant in the Premises which
materially affect the temperature otherwise maintained by the air conditioning system, or generate
substantially more heat in the Premises than would be generated by the building standard lights and
usual office equipment, Landlord shall have the right to install any machinery and equipment which
Landlord reasonably deems necessary to restore temperature balance, including but not limited to
modifications to the standard air conditioning equipment, and the cost thereof, including the cost
of installation and any additional cost of operation and maintenance occasioned thereby, shall be
paid by Tenant to Landlord upon demand by Landlord.



     (e) Telecommunications. Upon request from Tenant from time to time, Landlord will
provide Tenant with a listing of telecommunications and media service providers serving the
Project, and Tenant shall have the right to contract directly with the providers of its choice. If
Tenant wishes to contract with or obtain service from any provider which does not currently serve
the Project or wishes to obtain from an existing carrier services which will require the
installation of additional equipment, such provider must, prior to providing service, enter into a
written agreement with Landlord setting forth the terms and conditions of the access to be granted
to such provider. In considering the installation of any new or additional telecommunications
cabling or equipment at the Project, Landlord will consider all relevant factors in a reasonable
and non-discriminatory manner, including, without limitation, the existing availability of services
at the Project, the impact of the proposed installations upon the Project and its operations and
the available space and capacity for the proposed installations. Landlord may also consider
whether the proposed service may result in interference with or interruption of other services at
the Project or the business operations of other tenants or occupants of the Project. In no event
shall Landlord be obligated to incur any costs or liabilities in connection with the installation
or delivery of telecommunication services or facilities at the Project. All such installations
shall be subject to Landlord’s prior approval and shall be performed in accordance with the terms
of Article 9. If Landlord approves the proposed installations in accordance with the foregoing,
Landlord will deliver its standard form agreement upon request and will use commercially reasonable
efforts to promptly enter into an agreement on reasonable and non-discriminatory terms with a
qualified, licensed and reputable carrier confirming the terms of installation and operation of
telecommunications equipment consistent with the foregoing.



     (f) After-Hours Use. If Tenant requires heating, ventilation and/or air conditioning
during times other than the times provided in Section 11(a) above, Tenant shall give Landlord such
advance notice as Landlord shall reasonably require and shall pay Landlord’s standard charge for
such after-hours use.



-15-









 





     (g) Reasonable Charges. Landlord may impose a reasonable charge for any utilities or
services (other than electric current and heating, ventilation and/or air conditioning which shall
be governed by Sections 11(c) and (f) above) utilized by Tenant in excess of the amount or type
that Landlord reasonably determines is typical for general office use.



     (h) Sole Electrical Representative. Tenant agrees that Landlord shall be the sole and
exclusive representative with respect to, and shall maintain exclusive control over, the reception,
utilization and distribution of electrical power, regardless of point or means of origin, use or
generation. Tenant shall not have the right to contract directly with any provider of electrical
power or services.



     (i) Abatement Event. An “Abatement Event” shall be defined as an event that prevents
Tenant from using the Premises or any portion thereof, as a result of any failure to provide
services or access to the Premises, where (i) Tenant does not actually use the Premises or such
portion thereof, and (ii) such event is not caused by the negligence or willful misconduct of
Tenant, its agents, employees or contractors. Tenant shall give Landlord notice (“Abatement
Notice”) of any such Abatement Event, and if such Abatement Event continues beyond the “Eligibility
Period” (as that term is defined below), then the Basic Rental and Tenant’s Proportionate Share of
Direct Costs and Tenant’s obligation to pay for parking shall be abated entirely or reduced, as the
case may be, after expiration of the Eligibility Period for such time that Tenant continues to be
so prevented from using, and does not use, the Premises or a portion thereof, in the proportion
that the rentable area of the portion of the Premises that Tenant is prevented from using, and does
not use, bears to the total rentable area of the Premises; provided, however, in the event that
Tenant is prevented from using, and does not use, a portion of the Premises for a period of time in
excess of the Eligibility Period and the remaining portion of the Premises is not sufficient to
allow Tenant to effectively conduct its
business therein, and if Tenant does not conduct its business from such remaining portion,
then for such time after expiration of the Eligibility Period during which Tenant is so prevented
from effectively conducting its business therein, the Basic Rental and Tenant’s Proportionate Share
of Direct Costs and Tenant’s obligation to pay for parking for the entire Premises shall be abated
entirely for such time as Tenant continues to be so prevented from using, and does not use, the
Premises. If, however, Tenant reoccupies any portion of the Premises during such period, the Basic
Rental and Tenant’s Proportionate Share of Direct Costs and Tenant’s obligation to pay for parking
allocable to such reoccupied portion, based on the proportion that the rentable area of such
reoccupied portion of the Premises bears to the total rentable area of the Premises, shall be
payable by Tenant from the date Tenant reoccupies such portion of the Premises. The term
“Eligibility Period” shall mean a period of five (5) consecutive business days after Landlord’s
receipt of any Abatement Notice(s). Such right to abate Basic Rental and Tenant’s Proportionate
Share of Direct Costs and Tenant’s obligation to pay for parking shall be Tenant’s sole and
exclusive remedy at law or in equity for an Abatement Event. If a fire or other casualty results
in Tenant’s inability to use the Premises or a portion thereof, the terms and conditions of Article
16 below shall apply rather than this Section 11(i).



ARTICLE 12




RIGHTS OF LANDLORD




     (a) Right of Entry. Landlord and its agents shall have the right to enter the
Premises at all reasonable times upon twenty-four (24) hours prior notice (except that no notice
shall be required in the case of an emergency) for the purpose of examining or inspecting the
Premises, serving or posting and keeping posted thereon notices as provided by law, or which
Landlord deems necessary for the protection of Landlord or the Project, showing the same to
prospective tenants during the last nine (9) months of the Term or Option Term (if applicable) or
any period in which an Event of Default (as defined in Article 19 hereof) exists only), lenders or
purchasers of the Project, in the case of an emergency, and for making such alterations, repairs,
improvements or additions to the Premises or to the Project as Landlord may



-16-









 







deem necessary.
Landlord agrees that, except in an emergency, Landlord shall cooperate with Tenant’s reasonable
security requirements in connection with any such entry, including, without limitation, permitting
Tenant to provide an escort with respect to any such entry. If Tenant shall not be personally
present to open and permit an entry into the Premises at any time when such an entry by Landlord is
necessary or permitted hereunder (and after the required notice, if any, has been given to Tenant),
Landlord may enter by means of a master key, or may forcibly enter in the case of an emergency, in
each event without liability to Tenant and without affecting this Lease. During any entry by
Landlord under this Section 12(a), Landlord and Landlord’s employees, agents and contractors shall
use commercially reasonable efforts to minimize any disruption to Tenant’s access and use of the
Premises.



     (b) Maintenance Work. Landlord reserves the right from time to time, but subject to
payment by and/or reimbursement from Tenant as otherwise provided herein: (i) to install, use,
maintain, repair, replace, relocate and control for service to the Premises and/or other parts of
the Project pipes, ducts, conduits, wires, cabling, appurtenant fixtures, equipment spaces and
mechanical systems, wherever located in the Premises or the Project, (ii) to alter, close or
relocate any facility in the Premises or the common areas or otherwise conduct any of the above
activities for the purpose of complying with a general plan for fire/life safety for the Project or
otherwise, and (iii) to comply with any federal, state or local law, rule or order. Landlord shall
attempt to perform any such work with the least inconvenience to Tenant as is reasonably
practicable and, except as specifically provided in Section 11(i) above, in no event shall Tenant
be permitted to withhold or reduce Basic Rental or other charges due hereunder as a result of same,
make any claim for constructive eviction or otherwise make any claim against Landlord for
interruption or interference with Tenant’s business and/or operations.



     (c) Rooftop. If Tenant desires to use the rooftop of the Project for any purpose,
including the installation of communication equipment to be used from the Premises, such rights
will be granted in Landlord’s sole discretion and Tenant must negotiate the terms of any rooftop
access with Landlord or the rooftop management company or lessee holding rights to the rooftop from
time to time. Any rooftop access granted to Tenant will be at prevailing rates and will be
governed by the terms of a separate written agreement or an amendment to this Lease.



ARTICLE 13




INDEMNITY, EXEMPTION OF LANDLORD FROM LIABILITY




     (a) Indemnity. Tenant shall indemnify, defend and hold Landlord, Arden Realty, Inc.,
their subsidiaries, partners, parental or other affiliates and their respective members,
shareholders, officers, directors, employees and contractors (collectively, “Landlord Parties”)
harmless from and against any and all claims arising from Tenant’s use of the Premises or the
Project or from the conduct of its business or from any activity, work or thing which may be
permitted or suffered by Tenant in or about the Premises or the Project and shall further
indemnify, defend and hold Landlord and the Landlord Parties harmless from and against any and all
claims arising from any breach or default in the performance of any obligation on Tenant’s part to
be performed under this Lease or arising from any negligence or willful misconduct of Tenant or any
of its agents, contractors, employees or invitees, patrons, customers or members in or about the
Project and from any and all costs, attorneys’ fees and costs, expenses and liabilities incurred in
the defense of any claim or any action or proceeding brought thereon, including negotiations in
connection therewith. However, notwithstanding the foregoing, Tenant shall not be required to
indemnify and/or hold Landlord harmless from any loss, cost, liability, damage or expense,
including, but not limited to, penalties, fines, attorneys’ fees or costs (collectively, “Claims”),
to any person, property or entity to the extent resulting from the negligence or willful misconduct
of Landlord or its agents, contractors, or employees (except for damage to the Tenant Improvements
and Tenant’s personal property, fixtures, furniture and equipment in the Premises in which case
Tenant shall be



-17-









 







responsible to the extent Tenant is required to obtain the requisite insurance
coverage pursuant to this Lease). Landlord hereby indemnifies Tenant and holds Tenant harmless
from any Claims to the extent resulting from the negligence or willful misconduct of Landlord or
its agents, contractors or employees and not covered by insurance required to be carried under this
Lease by Tenant or actually carried by Tenant; provided, however, that (i) because Landlord
maintains insurance on the Project and Tenant compensates Landlord for such insurance as part of
Tenant’s Proportionate Share of Direct Costs and because of the existence of waivers of subrogation
set forth in Article 14 of this Lease, Landlord hereby indemnifies and holds Tenant harmless from
any Claims to any property outside of the Premises to the extent such Claim is covered by such
insurance, even if resulting from the negligent acts, omissions, or willful misconduct of Tenant or
those of its agents, contractors, or employees, and (ii) because Tenant must carry insurance
pursuant to Article 14 to cover its personal property within the Premises and the Tenant
Improvements, Tenant hereby indemnifies and holds Landlord harmless from any Claim to any property
within the Premises, to the extent such Claim is covered by such insurance, even if resulting from
the negligent acts, omissions or willful misconduct of Landlord or those of its agents,
contractors, or employees. Further, Tenant’s agreement to indemnify Landlord and Landlord’s
agreement to indemnify Tenant pursuant to this Section 13(a) is not intended to and shall not
relieve any insurance carrier of its obligations under policies required to be carried by Landlord
or Tenant pursuant to this Lease, to the extent such policies cover the matters subject to such
indemnification obligations. Tenant hereby assumes all risk of damage to property or injury to
persons in or about the Premises from any cause, and Tenant hereby waives all claims in respect
thereof against Landlord and the Landlord Parties, excepting where the damage is caused solely by
the negligence or willful misconduct of Landlord or the Landlord Parties (provided that in such
case Landlord’s liability shall be limited to amounts not covered by insurance carried by Tenant or
required to be carried by Tenant pursuant to this Lease).



     (b) Exemption of Landlord from Liability. Landlord and the Landlord Parties shall not
be liable for injury to Tenant’s business, or loss of income therefrom, however occurring
(including, without limitation, from any failure or interruption of services or utilities, or,
except in connection with damage or injury resulting from the negligence or willful misconduct of
Landlord or the Landlord Parties (provided that in such case Landlord’s liability shall be limited
to amounts not covered by insurance carried by Tenant or required to be carried by Tenant pursuant
to this Lease), for damage that may be sustained by the person, goods, wares, merchandise or
property of Tenant, its employees, invitees, customers, agents, or contractors, or any other person
in, on or about the Premises directly or indirectly caused by or resulting from any cause
whatsoever, including, but not limited to, fire, steam, electricity, gas, water, or rain which may
leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, light
fixtures, or mechanical or electrical systems, or from intrabuilding cabling or wiring, whether
such damage or injury results from conditions arising upon the Premises or upon other portions of
the Project or from other sources or places and regardless of whether the cause of such damage or
injury or the means of repairing the same is inaccessible to Tenant. Landlord and the Landlord
Parties shall not be liable to Tenant for any damages arising from any willful or negligent action
or inaction of any other tenant of the Project.



     (c) Security. Tenant acknowledges that Landlord’s election whether or not to provide
any type of mechanical surveillance or security personnel whatsoever in the Project is solely
within Landlord’s discretion; Landlord and the Landlord Parties shall have no liability in
connection with the provision, or lack, of such services, and Tenant hereby agrees to hold Landlord
and the Landlord Parties harmless with regard to any such potential claim. Landlord and the
Landlord Parties shall not be liable for losses due to theft, vandalism, or like causes. Tenant
shall defend, indemnify, and hold Landlord and the Landlord Parties harmless from and against any
such claims made by any employee, licensee, invitee, contractor, agent or other person whose
presence in, on or about the Premises or the Project is attendant to the business of Tenant.




-18-











 





ARTICLE 14




INSURANCE




     (a) Tenant’s Insurance. Tenant, shall at all times during the Term of this Lease, and
at its own cost and expense, procure and continue in force the following insurance coverage: (i)
Commercial General Liability Insurance, written on an occurrence basis, with a combined single
limit for bodily injury and property damages of not less than Two Million Dollars ($2,000,000) per
occurrence and Three Million Dollars ($3,000,000) in the annual aggregate, including products
liability coverage if applicable, owners and contractors protective coverage, blanket contractual
coverage including both oral and written contracts, and personal injury coverage, covering the
insuring provisions of this Lease and the performance of Tenant of the indemnity and exemption of
Landlord from liability agreements set forth in Article 13 hereof; (ii) a policy of standard fire,
extended coverage and special extended coverage insurance (all risks), including a vandalism and
malicious mischief endorsement, sprinkler leakage coverage and earthquake sprinkler leakage where
sprinklers are provided in an amount equal to the full replacement value new without deduction for
depreciation of all (A) Tenant Improvements, Alterations, fixtures and other improvements in the
Premises, including but not limited to all mechanical, plumbing, heating, ventilating, air
conditioning, electrical, telecommunication and other equipment, systems and facilities, and (B)
trade fixtures, furniture, equipment and other personal property installed by or at the expense of
Tenant; (iii) Worker’s Compensation coverage as required by law; and (iv) business interruption,
loss of income and extra expense insurance covering any failure or interruption of Tenant’s
business equipment (including, without limitation, telecommunications equipment) and covering all
other perils, failures or interruptions sufficient to cover a period of interruption of not less
than twelve (12) months. Tenant shall carry and maintain during the entire Term (including any
option periods, if applicable), at Tenant’s sole cost and expense, increased amounts of the
insurance required to be carried by Tenant pursuant to this Article 14 and such other reasonable
types of insurance coverage and in such reasonable amounts covering the Premises and Tenant’s
operations therein, as may be reasonably required by Landlord.



     (b) Form of Policies. The aforementioned minimum limits of policies and Tenant’s
procurement and maintenance thereof shall in no event limit the liability of Tenant hereunder. The
Commercial General Liability Insurance policy shall name Landlord, the Landlord Parties, Landlord’s
property manager, Landlord’s lender(s) and such other persons or firms as Landlord specifies from
time to time, as additional insureds with an appropriate endorsement to the policy(s). All such
insurance policies carried by Tenant shall be with companies having a rating of not less than
A-VIII in Best’s Insurance Guide. Tenant shall furnish to Landlord, from the insurance companies,
or cause the insurance companies to furnish, certificates of coverage. The deductible under each
such policy shall be reasonably acceptable to Landlord. No such policy shall be cancelable or
subject to reduction of coverage or other modification or cancellation except after thirty (30)
days prior written notice to Landlord by the insurer. All such policies shall be endorsed to agree
that Tenant’s policy is primary and that any insurance carried by Landlord is excess and not
contributing with any Tenant insurance requirement hereunder. Tenant shall, at least twenty (20)
days prior to the expiration of such policies, furnish Landlord with renewals or binders. Tenant
agrees that if Tenant does not take out and maintain such insurance or furnish Landlord with
renewals or binders in a timely manner, Landlord may (but shall not be required to) procure said
insurance on Tenant’s behalf and charge Tenant the cost thereof, which amount shall be payable by
Tenant upon demand with interest (at the rate set forth in Section 20(e) below) from the date such
sums are expended. Tenant shall have the right to provide such insurance coverage pursuant to
blanket policies obtained by Tenant, provided such blanket policies expressly afford coverage to
the Premises and to Tenant as required by this Lease.



-19-









 





     (c) Landlord’s Insurance. Landlord may, as a cost to be included in Operating Costs,
procure and maintain at all times during the Term of this Lease, a policy or policies of insurance
covering loss or damage to the Project in the amount of the full replacement costs without
deduction for depreciation thereof, providing protection against all perils included within the
classification of fire and extended coverage, vandalism coverage and malicious mischief, sprinkler
leakage, water damage, and special extended coverage on the building. Additionally, Landlord may
carry: (i) Bodily Injury and Property Damage Liability Insurance and/or Excess Liability Coverage
Insurance; and (ii) Earthquake and/or Flood Damage Insurance; and (iii) Rental Income Insurance;
and (iv) any other forms of insurance Landlord may deem appropriate or any lender may require. The
costs of all insurance carried by Landlord shall be included in Operating Costs.



     (d) Waiver of Subrogation. Landlord and Tenant each agree to require their respective
insurers issuing the insurance described in Sections 14(a)(ii), 14(a)(iv) and the first sentence of
Section 14(c), waive any rights of subrogation that such companies may have against the other
party. Tenant hereby waives any right that Tenant may have against Landlord and Landlord hereby
waives any right that Landlord may have against Tenant as a result of any loss or damage to the
extent such loss or damage is insurable under such policies.



     (e) Compliance with Law. Tenant agrees that it will not, at any time, during the Term
of this Lease, carry any stock of goods or do anything in or about the Premises that will in any
way tend to increase the insurance rates upon the Project. Tenant agrees to pay Landlord forthwith
upon demand the amount of any increase in premiums for insurance that may be carried during the
Term of this Lease, or the amount of insurance to be carried by Landlord on the Project resulting
from the foregoing, or from Tenant doing any act in or about the Premises that does so increase the
insurance rates, whether or not Landlord shall have consented to such act on the part of Tenant.
If Tenant installs upon the Premises any electrical equipment which causes an overload of
electrical lines of the Premises, Tenant shall at its own cost and expense, in accordance with all
other Lease provisions (specifically including, but not limited to, the provisions of Article 9, 10
and 11 hereof), make whatever changes are necessary to comply with requirements of the insurance
underwriters and any governmental authority having jurisdiction thereover, but nothing herein
contained shall be deemed to constitute Landlord’s consent to such overloading. Tenant shall, at
its own expense, comply with all insurance requirements applicable to the Premises including,
without limitation, the installation of fire extinguishers or an automatic dry chemical
extinguishing system.



ARTICLE 15




ASSIGNMENT AND SUBLETTING




     Tenant shall have no power to, either voluntarily, involuntarily, by operation of law or
otherwise, sell, assign, transfer or hypothecate this Lease, or sublet the Premises or any part
thereof, or permit the Premises or any part thereof to be used or occupied by anyone other than
Tenant or Tenant’s employees without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. Except as otherwise expressly provided herein, Tenant may transfer its
interest pursuant to this Lease only upon the following express conditions, which conditions are
agreed by Landlord and Tenant to be reasonable:



     (a) That the proposed Transferee (as hereafter defined) shall be subject to the prior written
consent of Landlord, which consent will not be unreasonably withheld but, without limiting the
generality of the foregoing, it shall be reasonable for Landlord to deny such consent if:



          (i) The use to be made of the Premises by the proposed Transferee is (a) not generally
consistent with the character and nature of all other tenancies in the Project, or (b) a use which





-20-









 







conflicts with any so-called “exclusive” then in favor of, or for any use which might
reasonably be expected to diminish the rent payable pursuant to any percentage rent lease with
another tenant of the Project or any other buildings which are in the same complex as the Project,
or (c) a use which would be prohibited by any other portion of this Lease (including but not
limited to any Rules and Regulations then in effect);




          (ii) The financial responsibility of the proposed Transferee is not reasonably satisfactory to
Landlord or in any event not at least equal to those which were possessed by Tenant as of the date
of execution of this Lease;




          (iii) The proposed Transferee is either a governmental agency or instrumentality thereof;




          (iv) Either the proposed Transferee or any person or entity which directly or indirectly
controls, is controlled by or is under common control with the proposed Transferee (A) occupies
space in the Project at the time of the request for consent, or (B) is negotiating with Landlord or
has negotiated with Landlord during the six (6) month period immediately preceding the date of the
proposed Transfer, to lease space in the Project; or




          (v) The rent charged by Tenant to such Transferee during the term of such Transfer, calculated
using a present value analysis, is less than the rent being quoted by Landlord at the time of such
Transfer for comparable space in the Project for a comparable term, calculated using a present
value analysis.




     (b) Upon Tenant’s submission of a request for Landlord’s consent to any such Transfer, Tenant
shall pay to Landlord Landlord’s then standard processing fee and reasonable attorneys’ fees and
costs incurred in connection with the proposed Transfer, which the parties hereby stipulate to be
$250.00, unless Landlord provides to Tenant evidence that Landlord has incurred greater costs in
connection with the proposed Transfer;



     (c) That the proposed Transferee shall execute an agreement pursuant to which it shall agree
to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease applicable to that portion of the Premises so transferred; and



     (d) That an executed duplicate original of said assignment and assumption agreement or other
Transfer on a form reasonably approved by Landlord, shall be delivered to Landlord within five (5)
days after the execution thereof, and that such Transfer shall not be binding upon Landlord until
the delivery thereof to Landlord and the execution and delivery of Landlord’s consent thereto. It
shall be a condition to Landlord’s consent to any subleasing, assignment or other transfer of part
or all of Tenant’s interest in the Premises (“Transfer”) that (i) upon Landlord’s consent to any
Transfer, Tenant shall pay and continue to pay ninety-five percent (95%) of any “Transfer Premium”
(defined below), received by Tenant from the transferee; (ii) any sublessee of part or all of
Tenant’s interest in the Premises shall agree that in the event Landlord gives such sublessee
notice that Tenant is in default under this Lease, such sublessee shall thereafter make all
sublease or other payments directly to Landlord, which will be received by Landlord without any
liability whether to honor the sublease or otherwise (except to credit such payments against sums
due under this Lease), and any sublessee shall agree to attorn to Landlord or its successors and
assigns at their request should this Lease be terminated for any reason, except that in no event
shall Landlord or its successors or assigns be obligated to accept such attornment; (iii) any such
Transfer and consent shall be effected on forms supplied by Landlord and/or its legal counsel; (iv)
Landlord may require that Tenant not then be in default hereunder in any respect; and (v) Tenant or
the proposed subtenant or assignee (collectively, “Transferee”) shall agree to pay Landlord, upon demand, as



-21-









 




Additional Rent, a sum equal to the additional costs, if any, incurred by Landlord for maintenance and repair as a result of any change in the nature of
occupancy caused by such subletting or assignment. “Transfer Premium” shall mean all rent,
Additional Rent or other consideration payable by a Transferee in connection with a Transfer in
excess of the Basic Rental and Direct Costs payable by Tenant under this Lease during the term of
the Transfer and if such Transfer is for less than all of the Premises, the Transfer Premium shall
be calculated on a rentable square foot basis. The calculation of “Transfer Premium” shall also
include, but not be limited to, key money, bonus money or other cash consideration paid by a
Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market
value for services rendered by Tenant to the Transferee and any payment in excess of fair market
value for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to the
Transferee in connection with such Transfer. Any Transfer of this Lease which is not in compliance
with the provisions of this Article 15 shall be voidable by written notice from Landlord and shall,
at the option of Landlord, terminate this Lease. In no event shall the consent by Landlord to any
Transfer be construed as relieving Tenant or any Transferee from obtaining the express written
consent of Landlord to any further Transfer, or as releasing Tenant from any liability or
obligation hereunder whether or not then accrued and Tenant shall continue to be fully liable
therefor. No collection or acceptance of rent by Landlord from any person other than Tenant shall
be deemed a waiver of any provision of this Article 15 or the acceptance of any Transferee
hereunder, or a release of Tenant (or of any Transferee of Tenant). Notwithstanding anything to
the contrary in this Lease, if Tenant or any proposed Transferee claims that Landlord has
unreasonably withheld or delayed its consent under this Article 15 or otherwise has breached or
acted unreasonably under this Article 15, their sole remedies shall be a declaratory judgment and
an injunction for the relief sought without any monetary damages, and Tenant hereby waives all
other remedies, including, without limitation, any right at law or equity to terminate this Lease,
on its own behalf and, to the extent permitted under all applicable laws, on behalf of the proposed
Transferee.




     (e) Notwithstanding anything to the contrary contained in this Article 15, an assignment or
subletting of all or a portion of the Premises to an affiliate (“Affiliate”) of Tenant (an entity
which is controlled by, controls, or is under common control with, Tenant), shall not be deemed a
Transfer under this Article 15, provided that Tenant notifies Landlord of any such assignment or
sublease and promptly supplies Landlord with any documents or information requested by Landlord
regarding such assignment or sublease or such affiliate, and further provided that such assignment
or sublease is not a subterfuge by Tenant to avoid its obligations under this Lease. An assignee
of Tenant’s entire interest in this Lease pursuant to the immediately preceding sentence may be
referred to herein as an “Affiliated Assignee.” “Control,” as used in this Article 15, shall mean
the ownership, directly or indirectly, of greater than fifty percent (50%) of the voting securities
of, or possession of the right to vote, in the ordinary direction of its affairs, of greater than
fifty percent (50%) of the voting interest in, an entity.



     (f) Notwithstanding anything to the contrary contained in this Article 15, except as provided
in the grammatical paragraph above, Landlord shall have the option, by giving written notice to
Tenant within thirty (30) days after Landlord’s receipt of a request for consent to a proposed
Transfer, to terminate this Lease as to the portion of the Premises that is the subject of the
proposed Transfer. If this Lease is so terminated with respect to less than the entire Premises,
the Basic Rental and Tenant’s Proportionate Share shall be prorated based on the number of rentable
square feet retained by Tenant as compared to the total number of rentable square feet previously
contained in the Premises, and this Lease as so amended shall continue thereafter in full force and
effect, and upon the request of either party, the parties shall execute written confirmation of the
same.



     (g) Notwithstanding anything to the contrary contained herein, Tenant shall have the one-time
right to assign this Lease to Ventana National Bank (the “Tenant Bank”) upon at least thirty (30) days prior written notice to Landlord delivered at any time after
the Tenant Bank is fully formed, capitalized and registered to transact business in the State of
Arizona (and upon delivery to Landlord of



-22-









 




reasonable evidence that the Tenant Bank is properly formed, capitalized and authorized to transact business in the State of Arizona) and provided the
Tenant Bank does not default (after any applicable notice and cure periods) in the payment of any
monetary obligations under this Lease within twelve (12) months following the effective date of
such assignment by Tenant (the “Release Date”), Tenant shall be relieved of all liabilities
accruing under this Lease after the Release Date. In the event Tenant elects to assign this Lease
to Tenant Bank, the termination right set forth in Section 15(f) shall not apply to such
assignment.




ARTICLE 16




DAMAGE OR DESTRUCTION




     If the Project is damaged by fire or other insured casualty and the insurance proceeds have
been made available therefor by the holder or holders of any mortgages or deeds of trust covering
the Premises or the Project, within sixty (60) days after the date Landlord learns of the necessity
for repairs as a result of such damage, Landlord shall notify Tenant (“Damage Repair Estimate”) of
Landlord’s estimated assessment of the period of time in which the repairs will be completed. The
damage shall be repaired by Landlord to the extent such insurance proceeds are available therefor
and provided the Damage Repair Estimate indicates that such repairs can be completed within one
hundred eighty (180) days after the necessity for repairs as a result of such damage becomes known
to Landlord, without the payment of overtime or other premiums, and until such repairs are
completed rent shall be abated in proportion to the part of the Premises which is unusable by
Tenant in the conduct of its business (but there shall be no abatement of rent by reason of any
portion of the Premises being unusable for a period equal to one (1) day or less). However, if the
damage is due to the fault or neglect of Tenant, its employees, agents, contractors, guests,
invitees and the like, there shall be no abatement of rent, unless and to the extent Landlord
receives rental income insurance proceeds. Upon the occurrence of any damage to the Premises,
Tenant shall assign to Landlord (or to any party designated by Landlord) all insurance proceeds
payable to Tenant under Section 14(a)(ii)(A) above; provided, however, that if the cost of repair
of improvements within the Premises by Landlord exceeds the amount of insurance proceeds received
by Landlord from Tenant’s insurance carrier, as so assigned by Tenant, such excess costs shall be
paid by Tenant to Landlord prior to Landlord’s repair of such damage. If, however, the Damage
Repair Estimate indicates that repairs cannot be completed within one hundred eighty (180) days
after the necessity for repairs as a result of such damage becomes known to Landlord without the
payment of overtime or other premiums, Landlord may, at its option, either (i) make such repairs in
a reasonable time and in such event this Lease shall continue in effect and the rent shall be
abated, if at all, in the manner provided in this Article 16, or (ii) elect not to effect such
repairs and instead terminate this Lease, by notifying Tenant in writing of such termination within
sixty (60) days after Landlord learns of the necessity for repairs as a result of damage, such
notice to include a termination date giving Tenant sixty (60) days to vacate the Premises. In
addition, Landlord may elect to terminate this Lease if the Project shall be damaged by fire or
other casualty or cause, whether or not the Premises are affected, if the damage is not fully
covered, except for deductible amounts, by Landlord’s insurance policies. However, if Landlord
does not elect to terminate this Lease pursuant to Landlord’s termination right as provided above,
and if the Damage Repair Estimate indicates that repairs cannot be completed within one hundred
eighty (180) days after being commenced and if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant’s employees, licensees, invitees or agents, Tenant may
elect, not later than thirty (30) days after Tenant’s receipt of the Damage Repair Estimate, to
terminate this Lease by written notice to Landlord effective as of the date specified in Tenant’s
notice. Finally, if the Premises or the Project is damaged to any substantial extent during the
last twelve (12) months of the Term, unless Tenant exercises (or has exercised) an Option to extend
the Term in accordance with the terms of Article 33 below (which Option to extend must be exercised on or before the earlier of (A) the date
which is thirty (30) days after the date of such damage or destruction, or (B) the date specified
in Section 33(c)(iv) below, if the damage or



-23-









 




destruction occurs between the date which is twelve (12) months prior to the end of the Term and the date specified in Section 33(c)(iv) below), then
notwithstanding anything contained in this Article 16 to the contrary, Landlord shall have the
option to terminate this Lease by giving written notice to Tenant of the exercise of such option
within sixty (60) days after Landlord learns of the necessity for repairs as the result of such
damage (provided that Landlord also terminates the leases of all similarly affected tenants under
whose leases Landlord has a right to so terminate). In the event that the Premises or the Project
is destroyed or damaged to any substantial extent during the last twelve (12) months of the Term
and if such damage shall take longer than sixty (60) days to repair and if such damage is not the
result of the negligence or willful misconduct of Tenant or Tenant’s employees, licensees, invitees
or agents, then notwithstanding anything in this Article 16 to the contrary, Tenant shall have the
option to terminate this Lease by written notice to Landlord of the exercise of such option within
sixty (60) days after Tenant learns of the necessity for repairs as the result of such damage. A
total destruction of the Project shall automatically terminate this Lease. Except as provided in
this Article 16, there shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant’s business or property arising from such damage or
destruction or the making of any repairs, alterations or improvements in or to any portion of the
Project or the Premises or in or to fixtures, appurtenances and equipment therein. Tenant
understands that Landlord will not carry insurance of any kind on Tenant’s furniture, furnishings,
trade fixtures or equipment, and that Landlord shall not be obligated to repair any damage thereto
or replace the same. Tenant acknowledges that Tenant shall have no right to any proceeds of
insurance carried by Landlord relating to property damage. With respect to any damage which
Landlord is obligated to repair or elects to repair, Tenant, as a material inducement to Landlord
entering into this Lease, irrevocably waives and releases any rights under law to terminate this
Lease. Without limiting the foregoing, Tenant hereby waives any right it may have to terminate
this Lease pursuant to Arizona Revised Statutes § 33-343 as a result of any destruction.




ARTICLE 17




SUBORDINATION




     This Lease is subject and subordinate to all ground or underlying leases, mortgages and deeds
of trust which affect the property or the Project, including all renewals, modifications,
consolidations, replacements and extensions thereof; provided, however, if the lessor under any
such lease or the holder or holders of any such mortgage or deed of trust shall advise Landlord
that they desire or require this Lease to be prior and superior thereto, upon written request of
Landlord to Tenant, Tenant agrees to promptly execute, acknowledge and deliver any and all
documents or instruments which Landlord or such lessor, holder or holders deem necessary or
desirable for purposes thereof. Landlord shall have the right to cause this Lease to be and become
and remain subject and subordinate to any and all ground or underlying leases, mortgages or deeds
of trust which may hereafter be executed covering the Premises, the Project or the property or any
renewals, modifications, consolidations, replacements or extensions thereof, for the full amount of
all advances made or to be made thereunder and without regard to the time or character of such
advances, together with interest thereon and subject to all the terms and provisions thereof;
provided, however, that Landlord obtains from the lender or other party in question a written
undertaking in favor of Tenant to the effect that such lender or other party will not disturb
Tenant’s right of possession under this Lease if Tenant is not then or thereafter in breach of any
covenant or provision of this Lease. Tenant agrees, within ten (10) days after Landlord’s written
request therefor, to execute, acknowledge and deliver upon request any and all documents or
instruments requested by Landlord or necessary or proper to assure the subordination of this Lease
to any such mortgages, deed of trust, or leasehold estates (hereinafter, an “SNDA”). If Tenant
fails to deliver an executed SNDA to Landlord within ten (10) days after Landlord’s request
therefor and pursuant to the terms of this Article 17, Landlord shall deliver to Tenant a second request (a “Second SNDA Request”) which shall
request that Tenant execute and deliver to Landlord such SNDA within five (5) business days from
the date thereof.



-24-









 




Tenant hereby agrees that if Tenant fails to deliver an executed SNDA to
Landlord within such five (5) business day period, then it would be impracticable or extremely
difficult to fix Landlord’s actual damages; consequently, without limiting any other rights or
remedies of Landlord, commencing on the sixth (6th) business day after Landlord delivers
the Second SNDA Request to Tenant, Landlord shall have the right to charge Tenant an amount equal
to Five Hundred Dollars ($500.00) per day for each day thereafter until Tenant delivers to Landlord
an SNDA pursuant to the terms hereof. Tenant agrees that in the event any proceedings are brought
for the foreclosure of any mortgage or deed of trust or any deed in lieu thereof, to attorn to the
purchaser or any successors thereto upon any such foreclosure sale or deed in lieu thereof as so
requested to do so by such purchaser and to recognize such purchaser as the lessor under this
Lease; Tenant shall, within five (5) days after request, execute such further instruments or
assurances as such purchaser may reasonably deem necessary to evidence or confirm such attornment.
Tenant agrees to provide copies of any notices of Landlord’s default under this Lease to any
mortgagee or deed of trust beneficiary whose address has been provided to Tenant and Tenant shall
provide such mortgagee or deed of trust beneficiary a commercially reasonable time after receipt of
such notice within which to cure any such default. Tenant waives the provisions of any current or
future statute, rule or law which may give or purport to give Tenant any right or election to
terminate or otherwise adversely affect this Lease and the obligations of the Tenant hereunder in
the event of any foreclosure proceeding or sale.




ARTICLE 18




EMINENT DOMAIN




     If a material portion of the Premises or the Project (as to render the balance unusable by
Tenant as determined by Tenant in Tenant’s good faith and commercially reasonable opinion), shall
be taken under power of eminent domain, or is sold, transferred or conveyed in lieu thereof, this
Lease shall automatically terminate as of the date of such condemnation, or as of the date
possession is taken by the condemning authority, at Landlord’s option. No award for any partial or
entire taking shall be apportioned, and Tenant hereby assigns to Landlord any award which may be
made in such taking or condemnation, together with any and all rights of Tenant now or hereafter
arising in or to the same or any part thereof; provided, however, that nothing contained herein
shall be deemed to give Landlord any interest in or to require Tenant to assign to Landlord any
award made to Tenant for the taking of personal property and trade fixtures belonging to Tenant and
removable by Tenant at the expiration of the Term hereof as provided hereunder or for the
interruption of, or damage to, Tenant’s business. In the event of a partial taking described in
this Article 18, or a sale, transfer or conveyance in lieu thereof, which does not result in a
termination of this Lease, the rent shall be apportioned according to the ratio that the part of
the Premises remaining useable by Tenant bears to the total area of the Premises. Tenant hereby
waives any and all rights it might otherwise have under law to terminate this Lease in the event of
a taking under power of eminent domain.



ARTICLE 19




DEFAULT




     Each of the following acts or omissions of Tenant or of any guarantor of Tenant’s performance
hereunder, or occurrences, shall constitute an “Event of Default”:



     (a) Failure or refusal to pay Basic Rental, Additional Rent or any other amount to be paid by
Tenant to Landlord hereunder within three (3) calendar days after written notice that the same is
due or payable hereunder; said three (3) day period shall be in lieu of, and not in addition to, any
statutory notice requirements;



-25-









 





     (b) Except as set forth in items (a) above and (c) through and including (g) below, failure to
perform or observe any other covenant or condition of this Lease to be performed or observed within
thirty (30) days following written notice to Tenant of such failure. Such thirty (30) day notice
shall be in lieu of, and not in addition to, any statutory notice requirements;



     (c) Abandonment or vacating or failure to accept tender of possession of the Premises or any
significant portion thereof;



     (d) The taking in execution or by similar process or law (other than by eminent domain) of the
estate hereby created;



     (e) The filing by Tenant or any guarantor hereunder in any court pursuant to any statute of a
petition in bankruptcy or insolvency or for reorganization or arrangement for the appointment of a
receiver of all or a portion of Tenant’s property; the filing against Tenant or any guarantor
hereunder of any such petition, or the commencement of a proceeding for the appointment of a
trustee, receiver or liquidator for Tenant, or for any guarantor hereunder, or of any of the
property of either, or a proceeding by any governmental authority for the dissolution or
liquidation of Tenant or any guarantor hereunder, if such proceeding shall not be dismissed or
trusteeship discontinued within thirty (30) days after commencement of such proceeding or the
appointment of such trustee or receiver; or the making by Tenant or any guarantor hereunder of an
assignment for the benefit of creditors. Tenant hereby stipulates to the lifting of the automatic
stay in effect and relief from such stay for Landlord in the event Tenant files a petition under
the United States Bankruptcy laws, for the purpose of Landlord pursuing its rights and remedies
against Tenant and/or a guarantor of this Lease;



     (f) Tenant’s failure to cause to be released by bond or otherwise any mechanics liens filed
against the Premises or the Project within twenty (20) days after the date the same shall have been
filed or recorded; or



     (g) Tenant’s failure to observe or perform according to the provisions of Articles 7, 14, 17
or 25 within two (2) business days after notice from Landlord.



     All defaults by Tenant of any covenant or condition of this Lease shall be deemed by the
parties hereto to be material.



ARTICLE 20




REMEDIES




     (a) Upon the occurrence of an Event of Default under this Lease as provided in Article 19
hereof, Landlord may exercise all of its remedies as may be permitted by law, including but not
limited to, terminating this Lease, reentering the Premises and removing all persons and property
therefrom, which property may be stored by Landlord at a warehouse or elsewhere at the risk,
expense and for the account of Tenant. If Landlord elects to terminate this Lease, Landlord shall
be entitled to recover from Tenant the aggregate of all amounts permitted by law, including but not
limited to (i) the worth at the time of award of the amount of any unpaid rent which had been
earned at the time of such termination; plus (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its
obligations under this



-26-









 




Lease or which in the ordinary course of things would be likely to result
therefrom, specifically including but not limited to, tenant improvement expenses, brokerage
commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion
thereof for a new tenant, whether for the same or a different use, and any special concessions made
to obtain a new tenant; and (v) at Landlord’s election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law. The term “rent” as
used in this Section 20(a) shall be deemed to be and to mean all sums of every nature required to
be paid by Tenant pursuant to the terms of this Lease, whether to Landlord or to others. As used
in items (i) and (ii), above, the “worth at the time of award” shall be computed by allowing
interest at the rate set forth in item (e), below, but in no case greater than the maximum amount
of such interest permitted by law. As used in item (iii), above, the “worth at the time of award”
shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).




     (b) Nothing in this Article 20 shall be deemed to affect Landlord’s right to indemnification
for liability or liabilities arising prior to the termination of this Lease for personal injuries
or property damage under the indemnification clause or clauses contained in this Lease.



     (c) Notwithstanding anything to the contrary set forth herein, Landlord’s re-entry to perform
acts of maintenance or preservation of or in connection with efforts to relet the Premises or any
portion thereof, or the appointment of a receiver upon Landlord’s initiative to protect Landlord’s
interest under this Lease shall not terminate Tenant’s right to possession of the Premises or any
portion thereof and, until Landlord does elect to terminate this Lease, this Lease shall continue
in full force and effect and Landlord may enforce all of Landlord’s rights and remedies hereunder.
Accordingly, if Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce all of its rights
and remedies under this Lease, including the right to recover all rent as it becomes due.



     (d) All rights, powers and remedies of Landlord hereunder and under any other agreement now or
hereafter in force between Landlord and Tenant shall be cumulative and not alternative and shall be
in addition to all rights, powers and remedies given to Landlord by law, and the exercise of one or
more rights or remedies shall not impair Landlord’s right to exercise any other right or remedy.



     (e) Any amount due from Tenant to Landlord hereunder which is not paid when due shall bear
interest at the lower of eighteen percent (18%) per annum or the maximum lawful rate of interest
from the due date until paid, unless otherwise specifically provided herein, but the payment of
such interest shall not excuse or cure any default by Tenant under this Lease. In addition to such
interest: (i) if Basic Rental is not paid on or before the fifth (5th) day of the calendar month
for which the same is due, a late charge equal to ten percent (10%) of the amount overdue or $100,
whichever is greater, shall be immediately due and owing and shall accrue for each calendar month
or part thereof until such rental, including the late charge, is paid in full, which late charge
Tenant hereby agrees is a reasonable estimate of the damages Landlord shall suffer as a result of
Tenant’s late payment and (ii) an additional charge of $25 shall be assessed for any check given to
Landlord by or on behalf of Tenant which is not honored by the drawee thereof; which damages
include Landlord’s additional administrative and other costs associated with such late payment and
unsatisfied checks and the parties agree that it would be impracticable or extremely difficult to
fix Landlord’s actual damage in such event. Tenant agrees, with respect to each rate of interest
set forth herein, to an effective rate of interest that is the stated rate plus any additional rate
of interest resulting from any other charges in the nature of interest paid or to be paid by or on
behalf of Tenant, or any benefit received or to be received by Landlord, in connection with this
Lease or the underlying rental activity. Such charges for interest and late payments and
unsatisfied checks are separate and cumulative and are in addition to and shall not diminish or
represent a substitute for any or all of Landlord’s rights or remedies under any other provision of
this Lease.



-27-









 





     (f) Notwithstanding anything to the contrary set forth in this Lease, Landlord acknowledges
and agrees that it will use commercially reasonable efforts to mitigate its damages under an Event
of Default by Tenant.



ARTICLE 21




TRANSFER OF LANDLORD’S INTEREST




     In the event of any transfer or termination of Landlord’s interest in the Premises or the
Project by sale, assignment, transfer, foreclosure, deed-in-lieu of foreclosure or otherwise
whether voluntary or involuntary, Landlord shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord from and after the date of such transfer or
termination, including furthermore without limitation, the obligation of Landlord under Article 4
above to return the Cash Security Deposit, provided said Cash Security Deposit is transferred to
said transferee. Tenant agrees to attorn to the transferee upon any such transfer and to recognize
such transferee as the lessor under this Lease and Tenant shall, within five (5) days after
request, execute such further instruments or assurances as such transferee may reasonably deem
necessary to evidence or confirm such attornment.



ARTICLE 22




BROKER




     In connection with this Lease, Tenant warrants and represents that it has had dealings only
with firm(s) set forth in Article 1.H. of the Basic Lease Provisions and that it knows of no other
person or entity who is or might be entitled to a commission, finder’s fee or other like payment in
connection herewith and does hereby indemnify and agree to hold Landlord, its agents, members,
partners, representatives, officers, affiliates, shareholders, employees, successors and assigns
harmless from and against any and all loss, liability and expenses that Landlord may incur should
such warranty and representation prove incorrect, inaccurate or false. All commissions due to the
Brokers set forth in Article 1.H of the Basic Lease Provisions shall be paid by Landlord pursuant
to a separate agreement.



ARTICLE 23




PARKING




     Tenant shall rent from Landlord, commencing on the Commencement Date, the number of unreserved
parking passes set forth in Article 1.I. of the Basic Lease Provisions, which parking passes shall
pertain to the Project parking facility. Tenant shall pay to Landlord for the parking passes the
prevailing rate charged from time to time at the location of such parking passes, which rate is
currently Forty-Five and No/100 Dollars ($45.00) per unreserved parking pass per month. In
addition, Tenant shall be responsible at all times during the Term for the full amount of any taxes
imposed by any governmental authority in connection with the renting of such parking passes by
Tenant or the use of the parking facility by Tenant. Tenant’s continued right to use the parking
passes 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 where the parking passes are
located, including any sticker or other identification system established by Landlord, Tenant’s
cooperation in seeing that Tenant’s employees 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 Project 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 time, close-off or restrict access to the Project parking facility for purposes of
permitting or facilitating any such



-28-









 




construction, alteration or improvements. Landlord may, from time to time, relocate any reserved parking spaces (if any) rented by Tenant to another location in
the Project parking facility. Landlord may delegate its responsibilities hereunder to a parking
operator or a lessee of the parking facility in which case such parking operator or lessee shall
have all the rights of control attributed hereby to the Landlord. The parking passes rented by
Tenant pursuant to this Article 23 are provided to Tenant solely for use by Tenant’s own personnel
and such passes 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 the Landlord may establish, at the validation rate from time to time generally applicable to
visitor parking.




ARTICLE 24




WAIVER




     No waiver by Landlord of any provision of this Lease shall be deemed to be a waiver of any
other provision hereof or of any subsequent breach by Tenant of the same or any other provision.
No provision of this Lease may be waived by Landlord, except by an instrument in writing executed
by Landlord. Landlord’s consent to or approval of any act by Tenant requiring Landlord’s consent
or approval shall not be deemed to render unnecessary the obtaining of Landlord’s consent to or
approval of any subsequent act of Tenant, whether or not similar to the act so consented to or
approved. No act or thing done by Landlord or Landlord’s agents during the Term of this Lease
shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the
time of acceptance of such rent. Any payment by Tenant or receipt by Landlord of an amount less
than the total amount then due hereunder shall be deemed to be in partial payment only thereof and
not a waiver of the balance due or an accord and satisfaction, notwithstanding any statement or
endorsement to the contrary on any check or any other instrument delivered concurrently therewith
or in reference thereto. Accordingly, Landlord may accept any such amount and negotiate any such
check without prejudice to Landlord’s right to recover all balances due and owing and to pursue its
other rights against Tenant under this Lease, regardless of whether Landlord makes any notation on
such instrument of payment or otherwise notifies Tenant that such acceptance or negotiation is
without prejudice to Landlord’s rights.



ARTICLE 25




ESTOPPEL CERTIFICATE




     Tenant shall, at any time and from time to time, upon not less than ten (10) days’ prior
written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing
certifying the following information, (but not limited to the following information in the event
further information is requested by Landlord) (collectively, an “Estoppel Certificate”): (a) that
this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as modified, is in full force and effect); (b) the
dates to which the rental and other charges are paid in advance, if any; (c) the amount of Tenant’s
Cash Security Deposit, if any; and (d) acknowledging that there are not, to Tenant’s knowledge, any
uncured defaults on the part of Landlord hereunder, and no events or conditions then in existence which, with the passage
of time or notice or both, would constitute a default on the part of Landlord hereunder, or
specifying such defaults, events or conditions, if any are claimed. It is expressly understood and
agreed that any such statement may be relied upon by any prospective purchaser or encumbrancer of
all or any portion of the Real Property. If Tenant fails to



-29-









 




deliver an executed SNDA to Landlord within ten (10) days after Landlord’s written request therefor and pursuant to the terms of this
Article 25, Landlord shall deliver to Tenant a second notice (a “Second Estoppel Notice”) which
shall request that Tenant execute and deliver such previously requested Estoppel Certificate to
Landlord within five (5) business days from the date thereof. Tenant hereby agrees that Tenant’s
failure to deliver such statement within five (5) business days after Landlord’s delivery of the
Second Estoppel Notice shall constitute an admission by Tenant that all statements contained
therein are true and correct. Furthermore, if Tenant fails to timely deliver an Estoppel
Certificate to Landlord within such five (5) business day period and pursuant to the terms of this
Article 25, then without limiting any other rights and remedies of Landlord, commencing on the
sixth (6th) business day after Landlord delivers the Second Estoppel Notice, Landlord
shall have the right to charge Tenant an amount equal to $500 per day for each day thereafter until
Tenant delivers to Landlord an Estoppel Certificate pursuant to the terms hereof. Tenant
acknowledges and agrees that (i) such charge compensates Landlord for the administrative costs
caused by the delinquency, and (ii) Landlord’s damage would be difficult to compute and the amount
stated in this paragraph represents a reasonable estimate of such damage. Tenant hereby
irrevocably appoints Landlord as Tenant’s attorney-in-fact and in Tenant’s name, place and stead to
execute any and all documents described in this Article 25 if Tenant fails to do so within the
specified time period.




ARTICLE 26




LIABILITY OF LANDLORD




     Notwithstanding anything in this Lease to the contrary, any remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of money by Landlord in
the event of any default by Landlord hereunder or any claim, cause of action or obligation,
contractual, statutory or otherwise by Tenant against Landlord or the Landlord Parties concerning,
arising out of or relating to any matter relating to this Lease and all of the covenants and
conditions or any obligations, contractual, statutory, or otherwise set forth herein, shall be
limited solely and exclusively to an amount which is equal to the lesser of (a) the interest of
Landlord in and to the Project, and (b) the interest Landlord would have in the Project if the
Project were encumbered by third party debt in an amount equal to eighty-five percent (85%) of the
then current value of the Project. No other property or assets of Landlord or any Landlord Party
shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s
remedies under or with respect to this Lease, Landlord’s obligations to Tenant, whether
contractual, statutory or otherwise, the relationship of Landlord and Tenant hereunder, or Tenant’s
use or occupancy of the Premises.



ARTICLE 27




INABILITY TO PERFORM




     This Lease and the obligations of Tenant hereunder shall not be affected or impaired because
Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of any prevention, delay, stoppage due to strikes, lockouts,
acts of God, or any other cause previously, or at such time, beyond the reasonable control or
anticipation of Landlord (collectively, a “Force Majeure”) and Landlord’s obligations under this
Lease shall be forgiven and suspended by any such Force Majeure.



-30-









 





ARTICLE 28




HAZARDOUS WASTE




     (a) Tenant shall not cause or permit any Hazardous Material (as defined in Section 28(c)
below) to be brought, kept or used in or about the Project by Tenant, its agents, employees,
contractors, or invitees. Tenant indemnifies Landlord and the Landlord Parties from and against
any breach by Tenant of the obligations stated in the preceding sentence, and agrees to defend and
hold Landlord and the Landlord Parties harmless from and against any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Project, damages for the loss or restriction or use of rentable or usable space or
of any amenity of the Project, damages arising from any adverse impact or marketing of space in the
Project, and sums paid in settlement of claims, attorneys’ fees and costs, consultant fees, and
expert fees) which arise during or after the Term of this Lease as a result of such breach. This
indemnification of Landlord and the Landlord Parties by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup, remedial, removal,
or restoration work required by any federal, state, or local governmental agency or political
subdivision because of Hazardous Material present in the soil or ground water on or under the
Project. Without limiting the foregoing, if the presence of any Hazardous Material on the Project
caused or permitted by Tenant results in any contamination of the Project, then subject to the
provisions of Articles 9, 10 and 11 hereof, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Project to the condition existing prior to the introduction
of any such Hazardous Material and the contractors to be used by Tenant for such work must be
approved by Landlord, which approval shall not be unreasonably withheld so long as such actions
would not potentially have any material adverse long-term or short-term effect on the Project and
so long as such actions do not materially interfere with the use and enjoyment of the Project by
the other tenants thereof; provided however, Landlord shall also have the right, by written notice
to Tenant, to directly undertake any such mitigation efforts with regard to Hazardous Materials in
or about the Project due to Tenant’s breach of its obligations pursuant to this Section 28(a), and
to charge Tenant, as Additional Rent, for the costs thereof.



     (b) It shall not be unreasonable for Landlord to withhold its consent to any proposed Transfer
if (i) the proposed transferee’s anticipated use of the Premises involves the generation, storage,
use, treatment, or disposal of Hazardous Material; (ii) the proposed Transferee has been required
by any prior landlord, lender, or governmental authority to take remedial action in connection with
Hazardous Material contaminating a property if the contamination resulted from such Transferee’s
actions or use of the property in question; or (iii) the proposed Transferee is subject to an
enforcement order issued by any governmental authority in connection with the use, disposal, or
storage of a Hazardous Material.



     (c) As used herein, the term “Hazardous Material” means any hazardous or toxic substance,
material, or waste which is or becomes regulated by any local governmental authority, the State of
Arizona or the United States Government. The term “Hazardous Material” includes, without
limitation, any material or substance which is (i) designated as a “Hazardous Substance” pursuant
to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), (ii) defined as a
“Hazardous Waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), (iii) defined as a “Hazardous Substance” pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601 et seq. (42 U.S.C. § 9601), or (iv) defined as a “Hazardous Substance”, “Hazardous Waste” or
“Hazardous Material”, pursuant to the Arizona Hazardous Waste Management Act (§§ 49-921 et seq.,
Arizona Revised Statutes), and/or the Arizona Environmental Quality Act (§§ 49-1001 et seq.,
Arizona Revised Statutes).



-31-









 





     (d) As used herein, the term “Laws” means any applicable federal, state or local law,
ordinance, or regulation relating to any Hazardous Material affecting the Project, including,
without limitation, the laws, ordinances, and regulations referred to in Section 28(c) above.



ARTICLE 29




SURRENDER OF PREMISES; REMOVAL OF PROPERTY




     (a) The voluntary or other surrender of this Lease by Tenant to Landlord, or a mutual
termination hereof, shall not work a merger, and shall at the option of Landlord, operate as an
assignment to it of any or all subleases or subtenancies affecting the Premises.



     (b) Upon the expiration of the Term of this Lease, or upon any earlier termination of this
Lease, Tenant shall quit and surrender possession of the Premises to Landlord in good order and
condition, reasonable wear and tear and repairs which are Landlord’s obligation excepted, and
shall, without expense to Landlord, remove or cause to be removed from the Premises all debris and
rubbish, all furniture, equipment, business and trade fixtures, free-standing cabinet work,
moveable partitioning, telephone and data cabling and other articles of personal property in the
Premises except to the extent (i) Landlord elects by notice to Tenant to exercise its option to
have any subleases or subtenancies assigned to it, and/or (ii) Landlord elects by notice to Tenant
not to require Tenant to remove any data cabling servicing the Premises (in which event Tenant
shall pay to Landlord the estimated cost [as determined by Landlord] to be incurred by Landlord in
connection with removing said data cabling) within three (3) business days following written demand
therefor from Landlord together with reasonable back-up documentation evidencing the cost of such
removal (it being agreed that if Landlord exercises its right set forth in this clause (ii),
Landlord shall actively cause such data cabling to be removed). Tenant shall be responsible for
the cost to repair all damage to the Premises resulting from the removal of any of such items from
the Premises, provided that Landlord shall have the right to either (I) cause Tenant to perform
said repair work, or (II) perform said repair work itself, at Tenant’s expense (with any such costs
incurred by Landlord to be reimbursed by Tenant to Landlord within three (3) business days
following written demand therefor from Landlord).



     (c) Whenever Landlord shall reenter the Premises as provided in Article 20 hereof, or as
otherwise provided in this Lease, any property of Tenant not removed by Tenant upon the expiration
of the Term of this Lease (or within forty-eight (48) hours after a termination by reason of
Tenant’s default), as provided in this Lease, shall be considered abandoned and Landlord may remove
any or all of such items and dispose of the same in any manner or store the same in a public
warehouse or elsewhere for the account and at the expense and risk of Tenant, and if Tenant shall
fail to pay the cost of storing any such property after it has been stored for a period of thirty
(30) days or more, Landlord may sell any or all of such property at public or private sale, in such
manner and at such times and places as Landlord, in its sole discretion, may deem proper, without
notice to or demand upon Tenant, for the payment of all or any part of such charges or the removal
of any such property, and shall apply the proceeds of such sale as follows: first, to the cost and
expense of such sale, including reasonable attorneys’ fees and costs for services rendered; second,
to the payment of the cost of or charges for storing any such property; third, to the payment of
any other sums of money which may then or thereafter be due to Landlord from Tenant under any of
the terms hereof; and fourth, the balance, if any, to Tenant.



     (d) All fixtures, Tenant Improvements, Alterations and/or appurtenances attached to or built
into the Premises prior to or during the Term, whether by Landlord or Tenant and whether at the
expense of Landlord or Tenant, or of both, shall be and remain part of the Premises and shall not
be removed by Tenant at the end of the Term unless otherwise expressly provided for in this Lease
or unless such removal is required by Landlord. Such fixtures, Tenant Improvements, Alterations
and/or appurtenances



-32-









 




shall include but not be limited to: all floor coverings, drapes, paneling, built-in
cabinetry, molding, doors, vaults (including vault doors), plumbing systems, security systems,
electrical systems, lighting systems, communication systems, all fixtures and outlets for the
systems mentioned above and for all telephone, radio and television purposes, and any special
flooring or ceiling installations.




ARTICLE 30




MISCELLANEOUS




     (a) SEVERABILITY, ENTIRE AGREEMENT. ANY PROVISION OF THIS LEASE WHICH SHALL PROVE TO
BE INVALID, VOID, OR ILLEGAL SHALL IN NO WAY AFFECT, IMPAIR OR INVALIDATE ANY OTHER PROVISION
HEREOF AND SUCH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT. THIS LEASE AND THE
EXHIBITS AND ANY ADDENDUM ATTACHED HERETO CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO WITH REGARD TO TENANT’S OCCUPANCY OR USE OF ALL OR ANY PORTION OF THE PROJECT, AND NO PRIOR
AGREEMENT OR UNDERSTANDING PERTAINING TO ANY SUCH MATTER SHALL BE EFFECTIVE FOR ANY PURPOSE. NO
PROVISION OF THIS LEASE MAY BE AMENDED OR SUPPLEMENTED EXCEPT BY AN AGREEMENT IN WRITING SIGNED BY
THE PARTIES HERETO OR THEIR SUCCESSOR IN INTEREST. THE PARTIES AGREE THAT ANY DELETION OF LANGUAGE
FROM THIS LEASE PRIOR TO ITS MUTUAL EXECUTION BY LANDLORD AND TENANT SHALL NOT BE CONSTRUED TO HAVE
ANY PARTICULAR MEANING OR TO RAISE ANY PRESUMPTION, CANON OF CONSTRUCTION OR IMPLICATION INCLUDING,
WITHOUT LIMITATION, ANY IMPLICATION THAT THE PARTIES INTENDED THEREBY TO STATE THE CONVERSE,
OBVERSE OR OPPOSITE OF THE DELETED LANGUAGE.



     (b) Attorneys’ Fees; Waiver of Jury Trial.



          (i) In any action to enforce the terms of this Lease, including any suit by Landlord for the
recovery of rent or possession of the Premises, the losing party shall pay the successful party a
reasonable sum for attorneys’ fees and costs in such suit and such attorneys’ fees and costs shall
be deemed to have accrued prior to the commencement of such action and shall be paid whether or not
such action is prosecuted to judgment. Tenant shall also reimburse Landlord for all costs incurred
by Landlord in connection with enforcing its rights under this Lease against Tenant following a
bankruptcy by Tenant or otherwise, including, without limitation, legal fees, experts’ fees and
expenses, court costs and consulting fees.




          (ii) Should Landlord, without fault on Landlord’s part, be made a party to any litigation
instituted by Tenant or by any third party against Tenant, or by or against any person holding
under or using the Premises by license of Tenant, or for the foreclosure of any lien for labor or
material furnished to or for Tenant or any such other person or otherwise arising out of or
resulting from any act or transaction of Tenant or of any such other person, Tenant covenants to
save and hold Landlord harmless from any judgment rendered against Landlord or the Premises or any
part thereof and from all costs and expenses, including reasonable attorneys’ fees and costs
incurred by Landlord in connection with such litigation.




          (iii) TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION SEEKING SPECIFIC PERFORMANCE OF ANY PROVISION OF THIS LEASE, FOR DAMAGES FOR ANY




-33-









 







BREACH UNDER THIS LEASE, OR OTHERWISE FOR ENFORCEMENT OF ANY RIGHT OR REMEDY HEREUNDER.




     (c) Time of Essence. Each of Tenant’s covenants herein is a condition and time is of
the essence with respect to the performance of every provision of this Lease.



     (d) Headings; Joint and Several. The article headings contained in this Lease are for
convenience only and do not in any way limit or amplify any term or provision hereof. The terms
“Landlord” and “Tenant” as used herein shall include the plural as well as the singular, the neuter
shall include the masculine and feminine genders and the obligations herein imposed upon Tenant
shall be joint and several as to each of the persons, firms or corporations of which Tenant may be
composed.



     (e) Reserved Area. Tenant hereby acknowledges and agrees that the exterior walls of
the Premises and the area between the finished ceiling of the Premises and the slab of the floor of
the Project thereabove have not been demised hereby and the use thereof together with the right to
install, maintain, use, repair and replace pipes, ducts, conduits, wiring and cabling leading
through, under or above the Premises or throughout the Project in locations which will not
materially interfere with Tenant’s use of the Premises and serving other parts of the Project are
hereby excepted and reserved unto Landlord.



     (f) NO OPTION. THE SUBMISSION OF THIS LEASE BY LANDLORD, ITS AGENT OR REPRESENTATIVE
FOR EXAMINATION OR EXECUTION BY TENANT DOES NOT CONSTITUTE AN OPTION OR OFFER TO LEASE THE PREMISES
UPON THE TERMS AND CONDITIONS CONTAINED HEREIN OR A RESERVATION OF THE PREMISES IN FAVOR OF TENANT,
IT BEING INTENDED HEREBY THAT THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE EXECUTION HEREOF BY
LANDLORD AND TENANT AND DELIVERY OF A FULLY EXECUTED LEASE TO TENANT.



     (g) Use of Project Name; Improvements. Tenant shall be allowed to use the name,
picture or representation of the Project, or words to that effect, only in connection with business
carried on in the Premises in relation to the Permitted use (including Tenant’s address) with the
prior written consent of Landlord, which consent shall be not unreasonably withheld, conditioned or
delayed. Landlord makes no representations as to the suitability of the Project for Tenant’s use
of the name, picture or representation of the Project pursuant to this Section 30(g). In the event
that Landlord undertakes any additional improvements on the Real Property including but not limited
to new construction or renovation or additions to the existing improvements, Landlord shall not be
liable to Tenant for any noise, dust, vibration or interference with access to the Premises or
disruption in Tenant’s business caused thereby.



     (h) Rules and Regulations. Tenant shall observe faithfully and comply strictly with
the rules and regulations (“Rules and Regulations”) attached to this Lease as Exhibit “B” and made
a part hereof, and such other Rules and Regulations as Landlord may from time to time reasonably
adopt for the safety, care and cleanliness of the Project, the facilities thereof, or the
preservation of good order therein. Landlord shall not be liable to Tenant for violation of any
such Rules and Regulations, or for the breach of any covenant or condition in any lease by any
other tenant in the Project. A waiver by Landlord of any Rule or Regulation for any other tenant
shall not constitute nor be deemed a waiver of the Rule or Regulation for this Tenant.



     (i) Quiet Possession. Upon Tenant’s paying the Basic Rental, Additional Rent and
other sums provided hereunder and observing and performing all of the covenants, conditions and
provisions on Tenant’s part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire Term hereof, subject to all of the provisions of this
Lease.



-34-









 





     (j) Rent. All payments required to be made hereunder to Landlord shall be deemed to
be rent, whether or not described as such.



     (k) Successors and Assigns. Subject to the provisions of Article 15 hereof, all of
the covenants, conditions and provisions of this Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal representatives, successors and
assigns.



     (l) Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal service evidenced by a signed receipt or sent by certified
mail, return receipt requested, or via overnight courier, and shall be effective upon proof of
delivery, addressed to Tenant at the Premises, with a copy to Craig L. Keller, Keller & Hickey PC,
Warner Century Plaza, 2177 East Warner Road, Suite 103, Tempe, Arizona 85284 or to Landlord at the
management office for the Project, with a copy to Landlord, c/o Arden Realty, Inc., 11601 Wilshire
Boulevard, Fourth Floor, Los Angeles, California 90025, Attn: Legal Department. Either party may
by notice to the other specify a different address for notice purposes except that, upon Tenant’s
taking possession of the Premises, the Premises shall constitute Tenant’s address for notice
purposes. A copy of all notices to be given to Landlord hereunder shall be concurrently
transmitted by Tenant to such party hereafter designated by notice from Landlord to Tenant. Any
notices sent by Landlord regarding or relating to eviction procedures, including without limitation
three (3) day notices, may be sent by regular mail.



     (m) Persistent Delinquencies. In the event that Tenant shall be delinquent by more
than fifteen (15) days in the payment of rent on three (3) separate occasions in any twelve (12)
month period, Landlord shall have the right to terminate this Lease by thirty (30) days written
notice given by Landlord to Tenant within thirty (30) days of the last such delinquency.



     (n) Right of Landlord to Perform. All covenants and agreements to be performed by
Tenant under any of the terms of this Lease shall be performed by Tenant at Tenant’s sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum of money, other
than rent, required to be paid by it hereunder or shall fail to perform any other act on its part
to be performed hereunder, and such failure shall continue beyond any applicable cure period set
forth in this Lease, Landlord may, but shall not be obligated to, without waiving or releasing
Tenant from any obligations of Tenant, make any such payment or perform any such other act on
Tenant’s part to be made or performed as is in this Lease provided. All sums so paid by Landlord
and all reasonable incidental costs, together with interest thereon at the rate specified in
Section 20(e) above from the date of such payment by Landlord, shall be payable to Landlord on
demand and Tenant covenants to pay any such sums, and Landlord shall have (in addition to any other
right or remedy of Landlord) the same rights and remedies in the event of the nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of the rent.



     (o) Access, Changes in Project, Facilities, Name.



          (i) Every part of the Project except the inside surfaces of all walls, windows and doors
bounding the Premises (including exterior building walls, the rooftop, core corridor walls and
doors and any core corridor entrance), and any space in or adjacent to the Premises or within the
Project used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other building facilities, and the use thereof, as well as access thereto through the
Premises for the purposes of operation, maintenance, decoration and repair, are reserved to
Landlord.




          (ii) Landlord reserves the right, without incurring any liability to Tenant therefor, to make
such changes in or to the Project and the fixtures and equipment thereof, as well as in or to the
street entrances, halls, passages, elevators, stairways and other improvements thereof, as it may
deem necessary or desirable.




-35-









 








          (iii) Landlord may adopt any name for the Project and Landlord reserves the right, from time
to time, to change the name and/or address of the Project at any time.




     (p) Signing Authority. Each individual executing this Lease on behalf of said entity
represents and warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of the Tenant entity in accordance with a duly adopted resolution of the Board of Directors
of said corporation or in accordance with the By-laws of said corporation. Concurrently with
Tenant’s execution of this Lease, Tenant shall provide to Landlord a copy of a resolution of the
Board of Directors authorizing the execution of this Lease on behalf of such corporation, which
copy of resolution shall be duly certified by the secretary or an assistant secretary of the
corporation to be a true copy of a resolution duly adopted by the Board of Directors of said
corporation and shall be in a form reasonably acceptable to Landlord. In the event Tenant fails to
comply with the requirements set forth in this subparagraph (p), then each individual executing
this Lease shall be personally liable, jointly and severally along with Tenant, for all of Tenant’s
obligations in this Lease.



     (q) Intentionally Omitted.



     (r) Intentionally Omitted.



     (s) Survival of Obligations. Any obligations of either party hereto Tenant occurring
prior to the expiration or earlier termination of this Lease shall survive such expiration or
earlier termination.



     (t) Confidentiality. Tenant acknowledges that the content of this Lease and any
related documents are confidential information. Tenant shall keep such confidential information
strictly confidential and shall not disclose such confidential information to any person or entity
other than Tenant’s financial, legal and space planning consultants and any proposed Transferees.



     (u) Governing Law. This Lease shall be governed by and construed in accordance with
the laws of the State of Arizona. No conflicts of law rules of any state or country (including,
without limitation, Arizona conflicts of law rules) shall be applied to result in the application
of any substantive or procedural laws of any state or country other than Arizona. All
controversies, claims, actions or causes of action arising between the parties hereto and/or their
respective successors and assigns, shall be brought, heard and adjudicated by the courts of the
State of Arizona, with venue in the County of Maricopa. Each of the parties hereto hereby consents
to personal jurisdiction by the courts of the State of Arizona in connection with any such
controversy, claim, action or cause of action, and each of the parties hereto consents to service
of process by any means authorized by Arizona law and consent to the enforcement of any judgment so
obtained in the courts of the State of Arizona on the same terms and conditions as if such
controversy, claim, action or cause of action had been originally heard and adjudicated to a final
judgment in such courts. Each of the parties hereto further acknowledges that the laws and courts
of Arizona were freely and voluntarily chosen to govern this Lease and to adjudicate any claims or
disputes hereunder.



     (v) Office of Foreign Assets Control. Tenant certifies to Landlord that Tenant is not
entering into this Lease, nor acting, for or on behalf of any person or entity named as a terrorist
or other banned or blocked person or entity pursuant to any law, order, rule or regulation of the
United States Treasury Department or the Office of Foreign Assets Control. Tenant hereby agrees to
indemnify, defend and hold Landlord and the Landlord Parties harmless from any and all claims
arising from or related to any breach of the foregoing certification.



     (w) Financial Statements. Within ten (10) days after Tenant’s receipt of Landlord’s
written request, Tenant shall provide Landlord with current financial statements of Tenant and, to
the extent available, financial statements for the two (2) calendar or fiscal years (if Tenant’s
fiscal year is other than



-36-









 




a calendar year) prior to the current financial statement year. Any such statements shall be
prepared in accordance with generally accepted accounting principles and, if the normal practice of
Tenant, shall be audited by an independent certified public accountant.




     (x) Exhibits. The Exhibits attached hereto are incorporated herein by this reference
as if fully set forth herein.



     (y) Independent Covenants. This Lease shall be construed as though the covenants
herein between Landlord and 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 set off of any of the rent or other amounts owing hereunder
against Landlord.



     (z) Counterparts. This Lease may be executed in counterparts, each of which shall be
deemed an original, but such counterparts, when taken together, shall constitute one agreement.



ARTICLE 31




SIGNAGE/DIRECTORY




     Provided Tenant is not in default hereunder, Tenant, at Tenant’s sole cost and expense, shall
have the right to one (1) line in the lobby directory and one (1) Project-standard suite
identification sign during the Term. In addition, provided Tenant is not in default hereunder,
Tenant shall have the right, at Tenant’s sole cost and expense, to install an “eyebrow” sign on the
Project’s exterior (“Tenant’s Signage”). Tenant’s Signage shall be subject to Landlord’s approval
as to size, design, location, graphics, materials, colors and similar specifications and shall be
consistent with the exterior design, materials and appearance of the Project and the Project’s
signage program and shall be further subject to all applicable local governmental laws, rules,
regulations, codes and Tenant’s receipt of all permits and other governmental approvals and any
applicable covenants, conditions and restrictions. Tenant’s Signage shall be personal to the
original tenant named in this Lease (the “Original Tenant”) and may not be assigned to any assignee
or sublessee, or any other person or entity. Landlord has the right, but not the obligation, to
oversee the installation of Tenant’s Signage. The cost to maintain and operate, if any, Tenant’s
Signage shall be paid for by Tenant, and Tenant shall be separately metered for such expense (the
cost of separately metering any utility usage shall also be paid for by Tenant). Upon the
expiration of the Term, or other earlier termination of this Lease, Tenant shall be responsible for
any and all costs associated with the removal of Tenant’s Signage, including, but not limited to,
the cost to repair and restore the Project to its original condition, normal wear and tear
excepted.



ARTICLE 32




AUTOMATED TELLER MACHINE/NIGHT DEPOSITORY




     Landlord and Tenant hereby agree that Tenant shall be entitled, during the Term (and the
Option Term, if applicable) at its sole cost and expense and subject to the terms and conditions of
this Article 32, to install, maintain and operate one (1) automated teller machine and one (1)
night depository, together with related equipment, accessories, and identifying signage
(collectively, the “ATM Equipment”) at locations on the Premises to be approved by Landlord, which
approval shall not be unreasonably withheld. For purposes of this Lease, the ATM Equipment shall
be considered part of the Tenant Improvements. In connection with Tenant’s maintenance and
operation of the ATM Equipment, Tenant shall, at its sole cost and expense (a) obtain all necessary
federal, state, and local permits, licenses, and approvals; (b) comply with all laws applicable to the use and operation
of the ATM Equipment, including,



-37-









 




without limitation any provisions of the Americans with Disabilities Act; (c) maintain the ATM Equipment, and the common area in the vicinity thereof in
clean and working condition and service the ATM Equipment and fill the ATM Equipment with cash and
supplies (such services shall be performed before or after the normal business hours of the
Project, except as deemed reasonably necessary by Tenant) and except for such periodic servicing
and maintenance, Tenant shall operate the ATM Equipment continuously during reasonable operating
hours as determined by Landlord from time to time; (d) provide all security measures that are
customary for similar facilities in comparable buildings located in the immediate vicinity of the
Project including, without limitation, mirrors, surveillance cameras, door locks, adequate
lighting, card entry systems, and warning signage and Tenant shall review such security measures at
least annually and revise same to reflect then customary security measures; (e) pay all real,
personal property, or other taxes or fees assessed or imposed on the ATM Equipment; (f) remove,
upon the expiration or earlier termination of the Lease (or at Landlord’s option, upon the Transfer
of the Original Tenant’s interest in this Lease), the ATM Equipment, including any ATM Signage (as
that term is defined below) and repair any damage to the Project caused by such removal; and (g)
arrange with, and pay directly to, the applicable public or private utilities, as the case may be,
for furnishing, installing, and maintaining of all telecommunications lines, services, and
equipment as may be required by Tenant for the operation of the ATM Equipment and, in connection
therewith, Tenant shall not modify or disturb any telecommunications’ lines, services and/or
equipment in the Project without Landlord’s prior written consent. Further, subject to Landlord’s
prior approval (which approval shall not be unreasonably withheld), Tenant shall be permitted, at
Tenant’s sole cost and expense, to change the existing signage and any other advertising material
or displays at the ATM Equipment (“ATM Signage”), which ATM Signage shall identify Tenant and/or
any automated teller network operated by Tenant and/or any shared automatic teller networks with
which the ATM Equipment is affiliated. Tenant shall be responsible, at its sole cost and expense,
for obtaining any permits or governmental approval required for the ATM Signage and for the
maintenance and repair of the ATM Signage. Landlord reserves the right (but Landlord shall have no
obligation) to engage a security consultant to determine whether any additional or different
security measures are necessary at the Project as a result of Tenant’s operation of the ATM
Equipment and Tenant shall pay as additional rent, within ten (10) days after Landlord’s invoice,
all costs and expenses incurred by Landlord in connection therewith (provided the fees charged by
such security consultant shall be reasonably competitive with the fees charged by security
consultants offering comparable services in comparable projects leased in the immediate vicinity of
the Project) and Tenant shall, at Tenant’s sole cost and expense, promptly implement such
recommendations of such security consultant; provided, however, that if Landlord engages said
security consultant, such engagement shall be for the sole benefit of Landlord and Tenant shall not
rely thereon. Landlord may restrict the hours of operation of the ATM Equipment or require Tenant
to temporarily discontinue services in connection with Landlord’s maintenance and repair of the
Project or any portion thereof, or if necessary in Landlord’s reasonable judgment, for the security
of the Project or its occupants or contents, and any such action by Landlord shall not be deemed a
constructive eviction of Tenant or a disturbance of Tenant’s use of the Premises or
 the Project and
without Landlord incurring any liability to Tenant whatsoever. Landlord shall have no
responsibility whatsoever for the ATM Equipment and shall not be liable for any damage or
disruption to same however caused, including without limitation, due to a disruption in electrical
or telecommunication service. Landlord makes no representations as to the suitability of the
Project for an ATM, whether or not an ATM may be installed in the Project under applicable zoning
ordinances or other laws, or as to the safety or security of the Project. The ATM Equipment and
surrounding areas shall be deemed to constitute a portion of the Premises for purposes of Articles
13 and 14 above.




-38-









 





ARTICLE 33




OPTION TO EXTEND




     (a) Option Right. Landlord hereby grants the Original Tenant one (1) option
(“Option”) to extend the Term for the entire Premises for a period of five (5) years only (an
“Option Term”), which Option shall be exercisable only by written notice delivered by Tenant to
Landlord as set forth below. The right contained in this Article 33 shall be personal to the
Original Tenant and may only be exercised by the Original Tenant (and not any assignee, sublessee
or other transferee of the Original Tenant’s interest in this Lease) if the Original Tenant
occupies the entire Premises as of the date of Tenant’s Acceptance (as defined in Section 33(c)
below).



     (b) Option Rent. The rent payable by Tenant during the Option Term (“Option Rent”)
shall be equal to the “Market Rent” (defined below). “Market Rent” shall mean the applicable
Monthly Basic Rental, including all escalations, Direct Costs, additional rent and other charges at
which tenants, as of the commencement of the Option Term, are entering into leases for non-sublease
space which is not encumbered by expansion rights and which is comparable in size, location and
quality to the Premises in renewal transactions for a term comparable to the Option Term which
comparable space is located in office buildings comparable to the Project in Tempe, Arizona, taking
into consideration the value of the existing improvements in the Premises to Tenant, as compared to
the value of the existing improvements in such comparable space, with such value to be based upon
the age, quality and layout of the improvements and the extent to which the same could be utilized
by Tenant with consideration given to the fact that the improvements existing in the Premises are
specifically suitable to Tenant.



     (c) Exercise of Option. The Option shall be exercised by Tenant only in the following
manner: (i) Tenant shall not be in default, and shall not have been in default under this Lease
more than once, on the delivery date of the Interest Notice and Tenant’s Acceptance; (ii) Tenant
shall deliver written notice (“Interest Notice”) to Landlord not more than ten (10) months nor less
than nine (9) months prior to the expiration of the Term, stating that Tenant is interested in
exercising the Option; (iii) within fifteen (15) business days of Landlord’s receipt of Tenant’s
written notice, Landlord shall deliver notice (“Option Rent Notice”) to Tenant setting forth the
Option Rent; and (iv) if Tenant desires to exercise such Option, Tenant shall provide Landlord
written notice within five (5) business days after receipt of the Option Rent Notice (“Tenant’s
Acceptance”) and upon, and concurrent with such exercise, Tenant may, at its option, object to the
Option Rent contained in the Option Rent Notice. Tenant’s failure to deliver the Interest Notice
or Tenant’s Acceptance on or before the dates specified above shall be deemed to constitute
Tenant’s election not to exercise the Option. If Tenant timely and properly exercises its Option,
the Term shall be extended for the Option Term upon all of the terms and conditions set forth in
this Lease, except that the rent for the Option Term shall be as indicated in the Option Rent
Notice, unless Tenant, concurrently with Tenant’s Acceptance, objects to the Option Rent contained
in the Option Rent Notice, in which case the parties shall follow the procedure and the Option Rent
shall be determined, as set forth in Section 33(d) below.



     (d) Determination of Market Rent. If Tenant timely and appropriately objects to the
Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent
using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within
twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party
shall make a separate determination of the Market Rent which shall be submitted to each other and
to arbitration in accordance with the following items (i) through (vii):



          (i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement
Date, one arbitrator who shall by profession be a current real estate broker or appraiser of





-39-









 







comparable commercial properties in the immediate vicinity of the Project, and who has been active
in such field over the last five (5) years. The determination of the arbitrators shall be limited
solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the
actual Market Rent as determined by the arbitrators, taking into account the requirements of item
(b), above (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market
Rent and shall not be entitled to make a compromise determination).




          (ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of
the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who
shall be qualified under the same criteria set forth hereinabove for qualification of the initial
two arbitrators.




          (iii) The three arbitrators shall within fifteen (15) days of the appointment of the third
arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted
Market Rent, and shall notify Landlord and Tenant thereof.




          (iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord
and Tenant.




          (v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the
applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision,
notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord
and Tenant.




          (vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd)
arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third
arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith
submitted to arbitration under the provisions of the American Arbitration Association, but subject
to the instruction set forth in this item (d).




          (vii) The cost of arbitration shall be paid by Landlord and Tenant equally.




ARTICLE 34




REGULATORY APPROVAL




     This Lease is subject to Tenant obtaining on behalf of Tenant Bank approval of this location
from the Office of Comptroller of the Currency (“OCC”), the Federal Deposit Insurance Corporation
(the “FDIC”) and any other regulatory authorities having the requisite jurisdiction over chartering
federally and/or state banking institutions on or before January 31, 2009 (the “Contingency”).
Tenant agrees to apply on behalf of Tenant Bank for such approval immediately after full execution
and delivery of this Lease and shall use commercially reasonable and diligent efforts to satisfy
the Contingency once it has applied for such approvals. However, if Tenant, on behalf of Tenant
Bank, does not obtain such approvals on or before January 31, 2009, then either Tenant or Landlord,
may, but shall not be obligated to terminate this Lease by delivering written notice to the
non-terminating party on or before February 10, 2009. If such termination notice specified in the
immediately preceding sentence is delivered to Landlord by Tenant, such notice shall contain a
reasonably detailed explanation of reasons known by Tenant as to why the OCC, FDIC and/or other
regulatory authority will not grant the required approval. If Tenant or Landlord delivers a
termination notice pursuant to this Article 34, this Lease shall immediately terminate as of the
date the non-terminating party receives such notice and neither party shall have any further
obligation to the other. The failure of either Tenant or Landlord to so notify the other party in writing on or before
February 10, 2009 shall be deemed to constitute such party’s waiver of its termination rights
specified herein and this Lease shall continue in full force and effect notwithstanding Tenant’s
ability or



-40-









 




non-ability to obtain such regulatory approvals. Notwithstanding anything set forth to
the contrary herein, Landlord shall have no obligation to begin construction of the Improvements in
the Premises as set forth in the Tenant Work Letter until Tenant obtains all approvals required
pursuant to this Article 34 or such approvals are waived or deemed to be waived by Tenant.
Notwithstanding the foregoing and provided that Tenant delivers to Landlord concurrently with
Tenant’s execution and delivery of this Lease to Landlord, a fully executed Indemnity Letter in
favor of Landlord (“Indemnity Letter”), in the form attached hereto as Exhibit F and incorporated
herein by this reference, Landlord agrees to authorize the “Architect” and “Engineers” (as such
terms are defined in the Tenant Work Letter attached hereto) to commence preparation of the
“Construction Drawings,” “Final Space Plan” and “Final Working Drawings” (as such terms are defined
in Section 3 of the Tenant Work Letter) and other pre-construction work in preparation for the
construction of the Improvements in the Premises.




-41-









 





     IN WITNESS WHEREOF, the parties have executed this Lease, consisting of the foregoing
provisions and Articles, including all exhibits and other attachments referenced therein, as of the
date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	“LANDLORD”	 	CH REALTY III/HAYDEN FERRY I, L.L.C.,

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	BY:	 	ARDEN REALTY LIMITED PARTNERSHIP,

a Maryland limited partnership	 	 
	 	 	 	 	Its: Sole Member and Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	ARDEN REALTY, INC.,

a Maryland corporation	 	 
	 	 	 	 	 	 	Its: Sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Its:
	 	 

	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	“TENANT”	 	UNITED BUSINESS HOLDINGS, INC.,

a Nevada corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Print Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 		 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Print Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 		 	 	 	 	 	 
	 	 	 	 	 	 	 






-42-









 








EXHIBIT “A”

PREMISES








This Exhibit “A” is provided for informational purposes only and is intended to be only an
approximation of the layout of the Premises and shall not be deemed to constitute any
representation by Landlord as to the exact layout or configuration of the Premises.




EXHIBIT “A”




-1-









 





EXHIBIT “B” 




RULES AND REGULATIONS




     1. No sign, advertisement or notice shall be displayed, printed or affixed on or to the
Premises or to the outside or inside of the Project or so as to be visible from outside the
Premises or Project without Landlord’s prior written consent. Landlord shall have the right to
remove any non-approved sign, advertisement or notice, without notice to and at the expense of
Tenant, and Landlord shall not be liable in damages for such removal. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by Landlord or by a person selected by Landlord and in a manner and style acceptable to
Landlord.



     2. Tenant shall not obtain for use on the Premises ice, waxing, cleaning, interior glass
polishing, rubbish removal, towel or other similar services, or accept barbering or bootblackening,
or coffee cart services, milk, soft drinks or other like services on the Premises, except from
persons authorized by Landlord and at the hours and under regulations fixed by Landlord. No
vending machines or machines of any description shall be installed, maintained or operated upon the
Premises without Landlord’s prior written consent.



     3. The sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be
obstructed by Tenant or used for any purpose other than for ingress and egress from Tenant’s
Premises. Under no circumstances is trash to be stored in the corridors. Notice must be given to
Landlord for any large deliveries. Furniture, freight and other large or heavy articles, and all
other deliveries may be brought into the Project only at times and in the manner designated by
Landlord, and always at Tenant’s sole responsibility and risk. Landlord may impose reasonable
charges for use of freight elevators after or before normal business hours. All damage done to the
Project by moving or maintaining such furniture, freight or articles shall be repaired by Landlord
at Tenant’s expense. Tenant shall not take or permit to be taken in or out of entrances or
passenger elevators of the Project, any item normally taken, or which Landlord otherwise reasonably
requires to be taken, in or out through service doors or on freight elevators. Tenant shall move
all supplies, furniture and equipment as soon as received directly to the Premises, and shall move
all waste that is at any time being taken from the Premises directly to the areas designated for
disposal.



     4. Toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any
purpose other than for which they were constructed and no foreign substance of any kind whatsoever
shall be thrown therein.



     5. Tenant shall not overload the floor of the Premises or mark, drive nails, screw or drill
into the partitions, ceilings or floor or in any way deface the Premises. Tenant shall not place
typed, handwritten or computer generated signs in the corridors or any other common areas. Should
there be a need for signage additional to the Project standard tenant placard, a written request
shall be made to Landlord to obtain approval prior to any installation. All costs for said signage
shall be Tenant’s responsibility.



     6. In no event shall Tenant place a load upon any floor of the Premises or portion of any such
flooring exceeding the floor load per square foot of area for which such floor is designed to carry
and which is allowed by law, or any machinery or equipment which shall cause excessive vibration to
the Premises or noticeable vibration to any other part of the Project. Prior to bringing any heavy
safes, vaults, large computers or similarly heavy equipment into the Project, Tenant shall inform
Landlord in writing of the dimensions and weights thereof and shall obtain Landlord’s consent
thereto. Such consent shall not constitute a representation or warranty by Landlord that the safe,
vault or other equipment complies, with



EXHIBIT “B”




-1-









 




regard to distribution of weight and/or vibration, with the provisions of this Rule 6 nor
relieve Tenant from responsibility for the consequences of such noncompliance, and any such safe,
vault or other equipment which Landlord determines to constitute a danger of damage to the Project
or a nuisance to other tenants, either alone or in combination with other heavy and/or vibrating
objects and equipment, shall be promptly removed by Tenant, at Tenant’s cost, upon Landlord’s
written notice of such determination and demand for removal thereof.




     7. Tenant shall not use or keep in the Premises or Project any kerosene, gasoline or
inflammable, explosive or combustible fluid or material, or use any method of heating or
air-conditioning other than that supplied by Landlord.



     8. Tenant shall not lay linoleum, tile, carpet or other similar floor covering so that the
same shall be affixed to the floor of the Premises in any manner except as approved by Landlord.



     9. Tenant shall not install or use any blinds, shades, awnings or screens in connection with
any window or door of the Premises and shall not use any drape or window covering facing any
exterior glass surface other than the standard drapes, blinds or other window covering established
by Landlord.



     10. Tenant shall cooperate with Landlord in obtaining maximum effectiveness of the cooling
system by closing window coverings when the sun’s rays fall directly on windows of the Premises.
Tenant shall not obstruct, alter, or in any way impair the efficient operation of Landlord’s
heating, ventilating and air-conditioning system. Tenant shall not tamper with or change the
setting of any thermostats or control valves.



     11. The Premises shall not be used for manufacturing or for the storage of merchandise except
as such storage may be incidental to the permitted use of the Premises. Tenant shall not, without
Landlord’s prior written consent, occupy or permit any portion of the Premises to be occupied or
used for the manufacture or sale of liquor or tobacco in any form, or a barber or manicure shop, or
as an employment bureau. The Premises shall not be used for lodging or sleeping or for any
improper, objectionable or immoral purpose. No auction shall be conducted on the Premises.



     12. Tenant shall not make, or permit to be made, any unseemly or disturbing noises, or disturb
or interfere with occupants of Project or neighboring buildings or premises or those having
business with it by the use of any musical instrument, radio, phonographs or unusual noise, or in
any other way.



     13. No bicycles, vehicles or animals of any kind shall be brought into or kept in or about the
Premises, and no cooking shall be done or permitted by any tenant in the Premises, except that the
preparation of coffee, tea, hot chocolate and similar items for tenants, their employees and
visitors shall be permitted. No tenant shall cause or permit any unusual or objectionable odors to
be produced in or permeate from or throughout the Premises. The foregoing notwithstanding, Tenant
shall have the right to use a microwave and to heat microwavable items typically heated in an
office. No hot plates, toasters, toaster ovens or similar open element cooking apparatus shall be
permitted in the Premises.



     14. The sashes, sash doors, skylights, windows and doors that reflect or admit light and air
into the halls, passageways or other public places in the Project shall not be covered or
obstructed by any tenant, nor shall any bottles, parcels or other articles be placed on the window
sills.



     15. No additional locks or bolts of any kind shall be placed upon any of the doors or windows
by any tenant, nor shall any changes be made in existing locks or the mechanisms thereof unless
Landlord is first notified thereof, gives written approval, and is furnished a key therefor. Each
tenant



EXHIBIT “B”




-2-









 




must, upon the termination of his tenancy, give to Landlord all keys and key cards of stores,
offices, or toilets or toilet rooms, either furnished to, or otherwise procured by, such tenant,
and in the event of the loss of any keys so furnished, such tenant shall pay Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change. If more than two keys for one lock are desired, Landlord will
provide them upon payment therefor by Tenant. Tenant shall not key or re-key any locks. All locks
shall be keyed by Landlord’s locksmith only.




     16. Landlord shall have the right to prohibit any advertising by any tenant which, in
Landlord’s opinion, tends to impair the reputation of the Project or its desirability as an office
building and upon written notice from Landlord any tenant shall refrain from and discontinue such
advertising.



     17. Landlord reserves the right to control access to the Project by all persons after
reasonable hours of generally recognized business days and at all hours on Sundays and legal
holidays and may at all times control access to the equipment areas of the Project outside the
Premises. Each tenant shall be responsible for all persons for whom it requests after hours access
and shall be liable to Landlord for all acts of such persons. Landlord shall have the right from
time to time to establish reasonable rules and charges pertaining to freight elevator usage,
including the allocation and reservation of such usage for tenants’ initial move-in to their
premises, and final departure therefrom. Landlord may also establish from time to time reasonable
rules and charges for accessing the equipment areas of the Project, including the risers, rooftops
and telephone closets.



     18. Any person employed by any tenant to do janitorial work shall, while in the Project and
outside of the Premises, be subject to and under the control and direction of the Office of the
Project or its designated representative such as security personnel (but not as an agent or servant
of Landlord, and the Tenant shall be responsible for all acts of such persons).



     19. All doors opening on to public corridors shall be kept closed, except when being used for
ingress and egress. Tenant shall cooperate and comply with any reasonable safety or security
programs, including fire drills and air raid drills, and the appointment of “fire wardens”
developed by Landlord for the Project, or required by law. Before leaving the Premises unattended,
Tenant shall close and securely lock all doors or other means of entry to the Premises and shut off
all lights and water faucets in the Premises.



     20. The requirements of tenants will be attended to only upon application to the Office of the
Project.



     21. Canvassing, soliciting and peddling in the Project are prohibited and each tenant shall
cooperate to prevent the same.



     22. All office equipment of any electrical or mechanical nature shall be placed by tenants in
the Premises in settings approved by Landlord, to absorb or prevent any vibration, noise or
annoyance.



     23. No air-conditioning unit or other similar apparatus shall be installed or used by any
tenant without the prior written consent of Landlord. Tenant shall pay the cost of all electricity
used for air-conditioning in the Premises if such electrical consumption exceeds normal office
requirements, regardless of whether additional apparatus is installed pursuant to the preceding
sentence.



     24. There shall not be used in any space, or in the public halls of the Project, either by any
tenant or others, any hand trucks except those equipped with rubber tires and side guards.



EXHIBIT “B”




-3-









 





     25. All electrical ceiling fixtures hung in offices or spaces along the perimeter of the
Project must be fluorescent and/or of a quality, type, design and bulb color approved by Landlord.
Tenant shall not permit the consumption in the Premises of more than 21/2 watts per net usable square
foot in the Premises in respect of office lighting nor shall Tenant permit the consumption in the
Premises of more than 11/2 per net usable square foot of space in the Premises in respect of the
power outlets therein, at any one time. In the event that such limits are exceeded, Landlord shall
have the right to require Tenant to remove lighting fixtures and equipment and/or to charge Tenant
for the cost of the additional electricity consumed.



     26. Parking.



          (a) Project parking facility hours shall be 7:00 a.m. to 7:00 p.m., Monday through Friday, and
closed on weekends, state and federal holidays, as such hours may be revised from time to time by
Landlord.




          (b) Automobiles must be parked entirely within the stall lines on the floor.




          (c) All directional signs and arrows must be observed.




          (d) The speed limit shall be 5 miles per hour.




          (e) Parking is prohibited in areas not striped for parking.




          (f) Parking cards or any other device or form of identification supplied by Landlord (or its
operator) shall remain the property of Landlord (or its operator). Such parking identification
device must be displayed as requested and may not be mutilated in any manner. The serial number of
the parking identification device may not be obliterated. Devices are not transferable or
assignable and any device in the possession of an unauthorized holder will be void. There will be
a replacement charge to the Tenant or person designated by Tenant of $25.00 for loss of any parking
card. There shall be a security deposit of $25.00 due at issuance for each card key issued to
Tenant.




          (g) The monthly rate for parking is payable one (1) month in advance and must be paid by the
third business day of each month. Failure to do so will automatically cancel parking privileges
and a charge at the prevailing daily rate will be due. No deductions or allowances from the
monthly rate will be made for days parker does not use the parking facilities.




          (h) Tenant may validate visitor parking by such method or methods as the Landlord may approve,
at the validation rate from time to time generally applicable to visitor parking.




          (i) Landlord (and its operator) may refuse to permit any person who violates the within rules
to park in the Project parking facility, and any violation of the rules shall subject the
automobile to removal from the Project parking facility at the parker’s expense. In either of said
events, Landlord (or its operator) shall refund a prorata portion of the current monthly parking
rate and the sticker or any other form of identification supplied by Landlord (or its operator)
will be returned to Landlord (or its operator).




          (j) Project parking facility managers or attendants are not authorized to make or allow any
exceptions to these Rules and Regulations.




          (k) All responsibility for any loss or damage to automobiles or any personal property therein
is assumed by the parker.




EXHIBIT “B”




-4-









 





          (l) Loss or theft of parking identification devices from automobiles must be reported to the
Project parking facility manager immediately, and a lost or stolen report must be filed by the
parker at that time.




          (m) The parking facilities are for the sole purpose of parking one automobile per space.
Washing, waxing, cleaning or servicing of any vehicles by the parker or his agents is prohibited.




          (n) Landlord (and its operator) reserves the right to refuse the issuance of monthly stickers
or other parking identification devices to any Tenant and/or its employees who refuse to comply
with the above Rules and Regulations and all City, State or Federal ordinances, laws or agreements.




          (o) Tenant agrees to acquaint all employees with these Rules and Regulations.




          (p) No vehicle shall be stored in the Project parking facility for a period of more than one
(1) week.




     27. The Project is a non-smoking Project. Smoking or carrying lighted cigars or cigarettes in
the Premises or the Project, including the elevators in the Project, is prohibited.



     28. Tenant shall not, without Landlord’s prior written consent (which consent may be granted
or withheld in Landlord’s absolute discretion), allow any employee or agent to carry any type of
gun or other firearm in or about any of the Premises or Project.



EXHIBIT “B”





-5-









 









EXHIBIT “C”




NOTICE OF TERM DATES

AND TENANT’S PROPORTIONATE SHARE




	 	 	 	 	 	 	 	 	 
	TO:

	 	 	 	 	 	DATE:
	 	                                                            
	 

	 	 

	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 






			
	RE:	 	Lease dated                                         , 20__, between                              
             
               
    (“Landlord”), and
                                  
                                               (“Tenant”), concerning Suite                     , located at
              
                                              .





Ladies and Gentlemen:




     In accordance with the Lease, Landlord wishes to advise and/or confirm the following:



     1. That the Premises have been accepted herewith by the Tenant as being substantially complete
in accordance with the Lease and that there is no deficiency in construction.



     2. That the Tenant has taken possession of the Premises and acknowledges that under the
provisions of the Lease the Term of said Lease shall commence as of                                          for a
term of                                          ending on                                         .



     3. That in accordance with the Lease, Basic Rental commenced to accrue on
                                        .



     4. If the Commencement Date of the Lease is other than the first day of the month, the first
billing will contain a prorata adjustment. Each billing thereafter shall be for the full amount of
the monthly installment as provided for in said Lease.



     5. Rent is due and payable in advance on the first day of each and every month during the Term
of said Lease. Your rent checks should be made payable to                                                              at
                                                            .



     6. The exact number of rentable square feet within the Premises is                      square feet.



     7. Tenant’s Proportionate Share, as adjusted based upon the exact number of rentable square
feet within the Premises is                     %.



AGREED AND ACCEPTED:




TENANT:




	 	 	 	 	 	 	 
	 	 	 
	a 
	 	 	 	 	 	 
	 	 	 	 
	By: 
	 	 	 	 	 
	 	 	 	 	 
	 

	 	Its:	 	 	 	 
	 

	 	 	 	 

	 	 






EXHIBIT ONLY

***DO NOT SIGN — INITIAL ONLY***

EXHIBIT “C”




-1-









 





EXHIBIT “D” 




TENANT WORK LETTER 




[UNITED BUSINESS HOLDINGS. INC.]




     This Tenant Work Letter shall set forth the terms and conditions relating to the renovation of
the tenant improvements in the Premises. This Tenant Work Letter is essentially organized
chronologically and addresses the issues of the renovation of the Premises, in sequence, as such
issues will arise.



SECTION 1




LANDLORD’S INITIAL CONSTRUCTION IN THE PREMISES




     Landlord has constructed, at its sole cost and expense, the base, shell and core (i) of the
Premises, and (ii) of the floor of the Project on which the Premises is located (collectively, the
“Base, Shell and Core”). Tenant has inspected and hereby approves the condition of the Premises
and Base, Shell and Core, and agrees that, subject to construction of the Improvements, the
Premises and the Base, Shell and Core shall be delivered to Tenant in its current “as-is”
condition. The improvements to be initially installed in the Premises shall be designed and
constructed pursuant to this Tenant Work Letter. Any costs of initial design and construction of
any improvements to the Premises shall be an “Improvement Allowance Item”, as that term is defined
in Section 2.2 of this Tenant Work Letter.



SECTION 2




IMPROVEMENTS




     2.1 Improvement Allowance. Tenant shall be entitled to a one-time improvement
allowance (the “Improvement Allowance”) in the amount of Four Hundred Three Thousand Eight Hundred
and No/100 Dollars ($403,800.00) (based on Fifty and No/100 Dollars ($50.00) per rentable square
foot) for the costs relating to the initial design and construction of Tenant’s improvements which
are permanently affixed to the Premises (the “Improvements”). In no event shall Landlord be
obligated to make disbursements pursuant to this Tenant Work Letter in a total amount which exceeds
the Improvement Allowance and in no event shall Tenant be entitled to any credit for any unused
portion of the Improvement Allowance not used by Tenant by June 1, 2009.



     2.2 Disbursement of the Improvement Allowance. Except as otherwise set forth in this
Tenant Work Letter, the Improvement Allowance shall be disbursed by Landlord (each of which
disbursements shall be made pursuant to Landlord’s disbursement process) for costs related to the
construction of the Improvements and for the following items and costs (collectively, the
“Improvement Allowance Items”): (i) payment of the fees of the “Architect” and the “Engineers,” as
those terms are defined in Section 3.1 of this Tenant Work Letter, and payment of the fees incurred
by, and the cost of documents and materials supplied by, Landlord and Landlord’s consultants in
connection with the preparation and review of the “Construction Drawings,” as that term is defined
in Section 3.1 of this Tenant Work Letter; (ii) the cost of permits; (iii) the cost of any changes
in the Base, Shell and Core required by the Construction Drawings; (iv) the cost of any changes to
the Construction Drawings or Improvements required by applicable building codes (the “Code”); and
(v) the “Landlord Coordination Fee”, as that term is defined in Section 4.3.2 of this Tenant Work
Letter. However, in no event shall more than Three and 00/100 Dollars ($3.00) per usable square foot of the Improvement Allowance be
used for the aggregate cost of items described in (i) and (ii) above; any additional amount
incurred as a result of (i) and (ii) above shall be paid for by Tenant as part of the
Over-Allowance Amount.



EXHIBIT “D”




-1-









 





     2.3 Standard Improvement Package. Landlord has established specifications (the
“Specifications”) for the Project standard components to be used in the construction of the
Improvements in the Premises (collectively, the “Standard Improvement Package”), which
Specifications are available upon request. The quality of Improvements shall be equal to or of
greater quality than the quality of the Specifications, provided that Landlord may, at Landlord’s
option, require the Improvements to comply with certain Specifications.



SECTION 3




CONSTRUCTION DRAWINGS




     3.1 Selection of Architect/Construction Drawings. Tenant shall retain an
architect/space planner reasonably approved by Landlord (the “Architect”) to prepare the
“Construction Drawings,” as that term is defined in this Section 3.1 and Tenant shall also retain
the engineering consultants reasonably approved by Landlord (the “Engineers”) to prepare all plans
and engineering working drawings relating to the structural, mechanical, electrical, plumbing, HVAC
and life safety work of the Tenant Improvements. The plans and drawings to be prepared by
Architect and the Engineers hereunder shall be known collectively as the “Construction Drawings.”
All Construction Drawings shall comply with the drawing format and specifications as reasonably
determined by Landlord, and shall be subject to Landlord’s reasonable approval. Tenant and
Architect shall verify, in the field, the dimensions and conditions as shown on the relevant
portions of the base building plans, and Tenant and Architect shall be solely responsible for the
same, and Landlord shall have no responsibility in connection therewith. Landlord’s review of the
Construction Drawings as set forth in this Section 3, shall be for its sole purpose and shall not
imply Landlord’s review of the same, or obligate Landlord to review the same, for quality, design,
Code compliance or other like matters. Accordingly, notwithstanding that any Construction Drawings
are reviewed by Landlord or its space planner, architect, engineers and consultants, and
notwithstanding any advice or assistance which may be rendered to Tenant by Landlord or Landlord’s
space planner, architect, engineers, and consultants, Landlord shall have no liability whatsoever
in connection therewith and shall not be responsible for any omissions or errors contained in the
Construction Drawings.



     3.2 Final Space Plan. On or before the date set forth in Schedule 1, attached hereto,
Tenant and the Architect shall prepare the final space plan for Improvements in the Premises
(collectively, the “Final Space Plan”), which Final Space Plan shall include a layout and
designation of all offices, rooms and other partitioning, their intended use, and equipment to be
contained therein, and shall deliver the Final Space Plan to Landlord for Landlord’s approval.



     3.3 Final Working Drawings. On or before the date set forth in Schedule 1, Tenant,
the Architect and the Engineers shall complete the architectural and engineering drawings for the
Premises, and the final architectural working drawings in a form which is complete to allow
subcontractors to bid on the work and to obtain all applicable permits (collectively, the “Final
Working Drawings”) and shall submit the same to Landlord for Landlord’s approval.



     3.4 Permits. The Final Working Drawings shall be approved by Landlord (the “Approved
Working Drawings”) prior to the commencement of the construction of the Improvements. Tenant shall
cause the Architect to immediately submit the Approved Working Drawings to the appropriate municipal authorities for all applicable building
permits necessary to allow “Contractor,” as that term is defined in Section 4.1, below, to commence
and fully complete the construction of the Improvements (the “Permits”). No changes, modifications
or alterations in the Approved Working Drawings may be made without the prior written consent of
Landlord, which consent shall not be unreasonably withheld.



EXHIBIT “D”





-2-









 








     3.5 Time Deadlines. Tenant shall use its best efforts and all due diligence to
cooperate with the Architect, the Engineers, and Landlord to complete all phases of the
Construction Drawings and the permitting process and to receive the permits, and with Contractor
for approval of the “Cost Proposal,” as that term is defined in Section 4.2 of this Tenant Work
Letter, as soon as possible after the execution of the Lease, and, in that regard, shall meet with
Landlord on a scheduled basis to be determined by Landlord, to discuss Tenant’s progress in
connection with the same. The applicable dates for approval of items, plans and drawings as
described in this Section 3, Section 4 below, and in this Tenant Work Letter are set forth and
further elaborated upon in Schedule 1 (the “Time Deadlines”), attached hereto. Tenant agrees to
comply with the Time Deadlines.



SECTION 4




CONSTRUCTION OF THE IMPROVEMENTS




     4.1 Contractor. The contractor that shall construct the Improvements shall be a
contractor selected pursuant to the following procedure. The Final Working Drawings shall be
submitted by Landlord to two (2) general contractors: one (1) such general contractor shall be
selected by Landlord and the other general contractor shall be selected by Tenant on or before the
date the Final Working Drawings are approved by Landlord and Tenant and which contractor so
selected by Tenant shall be subject to Landlord’s reasonable approval. Each such contractor shall
be invited to submit a sealed, fixed price contract bid (on such bid form as Landlord shall
designate) to construct the Improvements. Each contractor shall be notified in the bid package of
the time schedule for construction of the Improvements. The subcontractors utilized by the
Contractor shall be subject to Landlord’s reasonable approval and the bidding instructions shall
provide that as to work affecting the structure of the Project and/or the systems and equipment of
the Project, Landlord shall be entitled to designate the subcontractors. The bids shall be
submitted promptly to Landlord and a reconciliation shall be performed by Landlord to adjust
inconsistent or incorrect assumptions so that a like-kind comparison can be made and a low bidder
determined. Landlord shall select the contractor who shall be the lowest bidder and who states
that it will be able to meet Landlord’s construction schedule. The contractor selected may be
referred to herein as the “Contractor”.



     4.2 Cost Proposal. After the Approved Working Drawings are signed by Landlord and
Tenant, Landlord shall provide Tenant with a cost proposal in accordance with the Approved Working
Drawings, which cost proposal shall include, as nearly as possible, the cost of all Improvement
Allowance Items to be incurred by Tenant in connection with the construction of the Improvements
(the “Cost Proposal”). Tenant shall approve and deliver the Cost Proposal to Landlord within three
(3) business days of the receipt of the same, and upon receipt of the same by Landlord, Landlord
shall be released by Tenant to purchase the items set forth in the Cost Proposal and to commence
the construction relating to such items. The date by which Tenant must approve and deliver the
Cost Proposal to Landlord shall be known hereafter as the “Cost Proposal Delivery Date.”



     4.3 Construction of Improvements by Contractor under the Coordination of Landlord.



          4.3.1 Over-Allowance Amount. On the Cost Proposal Delivery Date, Tenant shall deliver
to Landlord an amount (the “Over-Allowance Amount”) equal to the difference between (i) the amount
of the Cost Proposal and (ii) the amount of the Improvement Allowance (less any portion thereof
already disbursed by Landlord, or in the process of being disbursed by Landlord, on or before the
Cost Proposal Delivery Date). The Over-Allowance Amount shall be disbursed by Landlord prior to
the disbursement of any then remaining portion of the Improvement Allowance, and such disbursement
shall be pursuant to the same procedure as the Improvement Allowance. In the event that, after the
Cost Proposal Delivery Date, any revisions, changes, or substitutions shall be made to the
Construction




EXHIBIT “D”




-3-









 




Drawings or the Improvements, any additional costs which arise in connection with such
revisions, changes or substitutions or any other additional costs shall be paid by Tenant to
Landlord immediately upon Landlord’s request as an addition to the Over-Allowance Amount.




          4.3.2 Landlord’s Retention of Contractor. Landlord shall independently retain
Contractor, on behalf of Tenant, to construct the Improvements in accordance with the Approved
Working Drawings and the Cost Proposal and Landlord shall coordinate the construction by
Contractor, and Tenant shall pay a construction coordination fee (the “Landlord Coordination Fee”)
to Landlord in an amount equal to the product of (i) five percent (5%) and (ii) an amount equal to
the Improvement Allowance plus the Over-Allowance Amount (as such Over-Allowance Amount may
increase pursuant to the terms of this Tenant Work Letter).




SECTION 5




COMPLETION OF THE IMPROVEMENTS




     5.1 Substantial Completion. For purposes of this Lease, “Substantial Completion” of
the Improvements in the Premises shall occur upon the completion of construction of the
Improvements in the Premises pursuant to the Approved Working Drawings, with the exception of any
punch list items and any tenant fixtures, work-stations, built-in furniture, or equipment to be
installed by Tenant.



     5.2 Delay of the Substantial Completion of the Premises. Except as provided in this
Section 5, the Commencement Date and Tenant’s obligation to pay rent for the Premises shall occur
as set forth in the Lease. However, if there shall be a delay or there are delays in the
Substantial Completion of the Improvements in the Premises as a result of the following
(collectively, “Tenant Delays”):



          5.2.1 Tenant’s failure to comply with the Time Deadlines;




          5.2.2 Tenant’s failure to timely approve any matter requiring Tenant’s approval;




          5.2.3 A breach by Tenant of the terms of this Tenant Work Letter or the Lease;




          5.2.4 Changes in any of the Construction Drawings after disapproval of the same by Landlord or
because the same do not comply with Code or other applicable laws;




          5.2.5 Tenant’s request for changes in the Approved Working Drawings;




          5.2.6 Tenant’s requirement for materials, components, finishes or improvements which are not
available in a commercially reasonable time given the anticipated date of Substantial Completion
of the Improvements in the Premises, or which are different from, or not included in, the
Standard Improvement Package;




          5.2.7 Changes to the Base, Shell and Core required by the Approved Working Drawings; or




          5.2.8 Any other acts or omissions of Tenant, or its agents, or employees;



then, notwithstanding anything to the contrary set forth in the Lease or this Tenant Work Letter
and regardless of the actual date of the Substantial Completion of Improvements in the Premises,
the date of Substantial Completion thereof shall be deemed to be the date that Substantial
Completion would have occurred if no Tenant Delay or Delays, as set forth above, had occurred.




EXHIBIT “D”




-4-









 





SECTION 6




MISCELLANEOUS




     6.1 Tenant’s Representative. Tenant has designated Mr. John Barnes as its sole
representative with respect to the matters set forth in this Tenant Work Letter, who, until further
notice to Landlord, shall have full authority and responsibility to act on behalf of the Tenant as
required in this Tenant Work Letter.



     6.2 Landlord’s Representative. Prior to commencement of construction of Improvements,
Landlord shall designate a representative with respect to the matters set forth in this Tenant Work
Letter, who, until further notice to Tenant, shall have full authority and responsibility to act on
behalf of the Landlord as required in this Tenant Work Letter.



     6.3 Time of the Essence in This Tenant Work Letter. Unless otherwise indicated, all
references herein to a “number of days” shall mean and refer to calendar days.



     6.4 Completion of Improvements During the Term. Tenant acknowledges that Landlord may be
completing the Improvements during the Term, and Landlord’s performance of such work shall not be
deemed a constructive eviction of Tenant, nor shall Tenant be entitled to any abatement of rent in
connection therewith except as otherwise expressly set forth in Section 3(a) of the Lease.



EXHIBIT “D”




-5-









 





EXHIBIT “D-1"




VAULT SPECIFICATIONS









EXHIBIT “D-1”




-1-









 





EXHIBIT “E”




LETTER OF CREDIT




Arden Realty, Inc.

11601 Wilshire Boulevard, Fourth Floor

Los Angeles, California 90025

Attention: Legal Department/Sandra Young




Ladies and Gentlemen:




     We hereby establish in your favor, for the account of [United Business Holdings, Inc., a
Nevada corporation or Ventana National Bank, a                                                              (“Applicant”), our
Irrevocable Letter of Credit and authorize you to draw on us at sight the aggregate amount of Three
Hundred Thousand Dollars ($300,000.00) (“Stated Amount”).



     Funds under this Letter of Credit are available to CH Realty III/Hayden Ferry I, L.L.C., a
Delaware limited liability company (the “Beneficiary”) as follows:



     Any and all of the sums hereunder may be drawn down at any time and from time to time from and
after the date hereof by Beneficiary when accompanied by this Letter of Credit and a written
certification signed by an authorized signatory of Beneficiary certifying that such sums are due
and owing to Beneficiary pursuant to that certain Standard Office Lease dated August 18, 2008
(“Lease”) by and between Beneficiary, as Landlord, and Applicant, as Tenant, together with a
notarized certification by any such individual representing that such individual is authorized by
Beneficiary to take such action on behalf of Beneficiary. The sums drawn by Beneficiary under this
Letter of Credit shall be payable upon demand without necessity of notice to the Applicant.
Partial drawings shall be permitted.



     This Letter of Credit is transferable in its entirety. Should a transfer be desired, such
transfer will be subject to the return to us of this Letter of Credit, together with written
instructions.



     The amount of each draft must be endorsed on the reverse hereof by the negotiating bank. We
hereby agree that this Letter of Credit shall be duly honored upon presentation and delivery of the
certification specified above.



     Subject to our receipt of a written authorization signed by an authorized signatory of
Beneficiary, this Letter of Credit shall expire on April 30, 2009.



     Notwithstanding the above expiration of this Letter of Credit, the term of this Letter of
Credit shall be automatically renewed for successive, additional one (1) year periods unless, at
least thirty (30) days prior to any such date of expiration, the undersigned shall give written
notice to Beneficiary, by certified mail, return receipt requested and at the address set forth
above or at such other address as may be given to the undersigned by Beneficiary, that this Letter
of Credit will not be renewed.



     This Letter of Credit is governed by the International Standby Practices 1998, International
Chamber of Commerce Publication No. 590.



	 	 	 	 	 
	 	Very truly yours,




(Name of Issuing Bank)

 	 
	 	By:  	 
	 	 
	 



EXHIBIT “E”





-1-









 





EXHIBIT “F”




INDEMNITY LETTER




Arden Realty, Inc.

11601 Wilshire Boulevard, Fourth Floor

Los Angeles, California 90025




August 18, 2008




United Business Holdings, Inc.

[PLEASE PROVIDE]                      

                                                            

                                                            





			
	Re:	 	Lease dated August 18, 2008, between CH Realty III/Hayden Ferry I, L.L.C., a Delaware limited
liability company (“Landlord”), and United Business Holdings, Inc., a Nevada corporation
(“Tenant”), concerning a portion of the first (1st) floor, located in the project
known as Hayden Ferry Lakeside whose address is 80 East Rio Salado Parkway, Tempe, Arizona
(the “Lease”).





Dear Ladies and Gentlemen:




     Reference is hereby made to the that certain Standard Office Lease dated as August 18, 2008
(the “Lease”) by and between CH Realty III/Hayden Ferry I, L.L.C., as Landlord, and United Business
Holdings, Inc., a Nevada corporation, as Tenant, pertaining to 8,076 rentable square feet on the
first (1st) floor of that certain building addressed at 80 East Rio Salado Parkway,
Tempe, Arizona. Pursuant to Article 34 of the Lease, the Lease is subject to Tenant obtaining
certain regulatory approvals for the operation of a federally or state chartered bank (the
“Contingency”).



     Although it is anticipated that Contingency will be satisfied or waived when and as required
under the Lease, the parties wish to proceed with the preparation of working drawings, the
obtainment of permits and certain other pre-construction work (collectively, “Development Work”)
for the leasehold improvements contemplated for such first (1st) floor space as soon as
possible.



     Landlord is prepared to authorize its space planners, architects, engineers and other
suppliers and contractors (collectively, “Vendors”) to begin to undertake such Development Work.
However, this authorization shall be in consideration of the countersignature of this letter by
Tenant by which countersignature Tenant agrees to reimburse Landlord for any sums paid by Landlord
to the Vendors retained for the Development Work. Such Development Work shall cease immediately
upon receipt by the Vendors of a written request to stop such work, delivered by Tenant or by
Landlord. Invoices for costs incurred to the date such work is stopped shall be delivered to
Tenant together with a reasonably particularized breakdown of such invoices, and Tenant agrees to
promptly pay to Landlord the amounts owed, if any, pursuant to this letter.



     In any action to enforce the terms of this letter agreement, the losing party shall pay the
successful party a reasonable sum for attorneys’ fees and costs in such suit. This letter
agreement shall be governed by and construed in accordance with the laws of the State of Arizona.
Any cause of action arising between the parties hereto shall be brought, heard and adjudicated by
the courts of the State of Arizona, with venue in the County of Maricopa.



EXHIBIT “F”




-1-









 





     If the foregoing meets with your approval, please countersign this letter and the additional
enclosed copy of this letter, retain this letter for your files, and return the countersigned,
enclosed copy to me, as soon as possible.



	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	Property Manager






The foregoing is agreed

to and accepted this 18th

day of August, 2008




“TENANT”




United Business Holdings, Inc.,

a Nevada corporation




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Its:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Its:	 	 	 	 
	 

	 	 	 	 

	 	 






EXHIBIT “F”





-2-