exv10w12



 





Exhibit 10.12




OFFICE LEASE AGREEMENT




Between




Landlord: MILLBROOK IV LLC,

an Illinois limited liability company




and




Tenant: ALMA LASERS, INC.,

a Delaware corporation




Dated: December 7, 2006




 









 





TABLE OF CONTENTS




LEASE AGREEMENT




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	A.	 	 	 	PREMISES/TERM/POSSESSION
	 	1
	 	 	 	 	 
	 	 
	 	 	1.	 	Premises 
	 	1
	 	 	2.	 	Lease Term 
	 	1
	 	 	3.	 	Landlord’s
Failure to Give Possession
	 	1
	 	 	4.	 	Quiet Enjoyment 
	 	1
	 	 	 	 	 
	 	 
	B.	 	 	 	RENT/PAYMENT/SECURITY DEPOSIT
	 	2
	 	 	 	 	 
	 	 
	 	 	5.	 	Net Rent 
	 	2
	 	 	6.	 	Rent
Payment; Free Net Rent Period 
	 	2
	 	 	7.	 	Operating
Expenses/Taxes 
	 	3
	 	 	8.	 	Late Charge 
	 	6
	 	 	9.	 	Partial Payment 
	 	7
	 	 	10.	 	Security
Deposit/Letter of Credit 
	 	7
	 	 	 	 	 
	 	 
	C.	 	 	 	USE/LAWS/RULES
	 	9
	 	 	 	 	 
	 	 
	 	 	11.	 	Use of Premises 
	 	9
	 	 	12.	 	Compliance
 with Laws 
	 	10
	 	 	13.	 	Waste Disposal 
	 	11
	 	 	14.	 	Rules and Regulations 
	 	11
	 	 	 	 	 
	 	 
	D.	 	 	 	SERVICES/TENANT BUILDOUT
	 	11
	 	 	 	 	 
	 	 
	 	 	15.	 	Services 
	 	11
	 	 	16.	 	Telephone and Data
Equipment 
	 	13
	 	 	17.	 	Signs 
	 	14
	 	 	18.	 	Parking 
	 	14
	 	 	19.	 	[Intentionally Omitted] 
	 	14
	 	 	20.	 	Tenant Construction 
	 	15
	 	 	21.	 	Force Majeure 
	 	15
	 	 	 	 	 
	 	 
	E.	 	 	 	REPAIRS/ALTERATIONS/CASUALTY/CONDEMNATION
	 	15
	 	 	 	 	 
	 	 
	 	 	22.	 	Repairs
By Landlord 
	 	15
	 	 	23.	 	Repairs
By Tenant 
	 	16
	 	 	24.	 	Alterations
and Improvements/Liens 
	 	16
	 	 	25.	 	Destruction or Damage 
	 	17
	 	 	26.	 	Eminent Domain 
	 	18
	 	 	27.	 	Damage
or Theft of Personal Property 
	 	19
	 	 	 	 	 
	 	 
	F.	 	 	 	INSURANCE/INDEMNITIES/WAIVER/ESTOPPEL
	 	19
	 	 	 	 	 
	 	 
	 	 	28.	 	Insurance; Waivers 
	 	19
	 	 	29.	 	Indemnities 
	 	21
	 	 	30.	 	Acceptance and Waiver 
	 	22
	 	 	31.	 	Estoppel 
	 	22
	 	 	 	 	 
	 	 
	G.	 	 	 	DEFAULT/REMEDIES/SURRENDER/HOLDING OVER
	 	22
	 	 	 	 	 
	 	 
	 	 	32.	 	Notices 
	 	22
	 	 	33.	 	Abandonment of Premises 
	 	23
	 	 	34.	 	Default 
	 	23
	 	 	35.	 	Landlord’s Remedies 
	 	23
	 	 	36.	 	Service of Notice 
	 	24






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	 	 	 	 	 	 	Page
	 	 	37.	 	Advertising 
	 	24
	 	 	38.	 	Surrender of Premises 
	 	25
	 	 	39.	 	[Intentionally Omitted]
	 	25
	 	 	40.	 	Removal of Fixtures 
	 	25
	 	 	41.	 	Holding Over 
	 	25
	 	 	42.	 	Attorney’s Fees 
	 	26
	 	 	43.	 	Mortgagee’s Rights 
	 	26
	 	 	 	 	 
	 	 
	H.	 	 	 	LANDLORD ENTRY/RELOCATION/ASSIGNMENT AND SUBLETTING
	 	27
	 	 	 	 	 
	 	 
	 	 	44.	 	Entering
Premises 
	 	27
	 	 	45.	 	Relocation 
	 	27
	 	 	46.	 	Assignment
and Subletting 
	 	28
	 	 	 	 	 
	 	 
	I.	 	 	 	SALE OF BUILDING; LIMITATION OF LIABILITY
	 	30
	 	 	 	 	 
	 	 
	 	 	47.	 	Sale 
	 	30
	 	 	48.	 	Limitation
of Liability 
	 	30
	 	 	 	 	 
	 	 
	J.	 	 	 	BROKERS/CONSTRUCTION/AUTHORITY
	 	30
	 	 	 	 	 
	 	 
	 	 	49.	 	Broker
Disclosure 
	 	30
	 	 	50.	 	Definitions 
	 	30
	 	 	51.	 	Construction
of this Agreement 
	 	30
	 	 	52.	 	No
Estate In Land 
	 	31
	 	 	53.	 	Paragraph
Titles; Severability 
	 	31
	 	 	54.	 	Cumulative
Rights 
	 	31
	 	 	55.	 	Waiver
of Jury Trial 
	 	31
	 	 	56.	 	Entire
Agreement 
	 	31
	 	 	57.	 	Submission
of Agreement 
	 	31
	 	 	58.	 	Authority 
	 	31
	 	 	59.	 	Guaranty 
	 	32
	 	 	 	 	 
	 	 
	K.	 	 	 	SPECIAL STIPULATIONS
	 	32
	 	 	 	 	 
	 	 
	 	 	60.	 	Special
Stipulations 
	 	32
	 	 	61.	 	OFAC
and Anti-Money Laundering
Compliance Certifications 
	 	32
	 	 	 	 	 
	 	 
	 	 	 	 	LIST OF EXHIBITS
	 	 
	 	 	 	 	 
	 	 
	A	 	 	 	Plan of Premises
	 	 
	B	 	 	 	Work Letter
	 	 
	C	 	 	 	Substantial Completion/Acceptance Letter
	 	 
	D	 	 	 	Rules and Regulations
	 	 
	E	 	 	 	HVAC Specifications
	 	 
	F	 	 	 	Special Stipulations (if applicable)
	 	 
	G	 	 	 	Reserved Spaces
	 	 
	H	 	 	 	Plan of ROFO Space
	 	 
	I	 	 	 	Existing Furniture
	 	 
	J	 	 	 	Form of Letter of Credit
	 	 






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BASIC LEASE PROVISIONS




     The following sets forth some of the Basic Provisions of the Lease. In the event of any
conflict between the terms of these Basic Lease Provisions and the referenced Sections of the
Lease, the referenced Sections of the Lease shall control. In addition to the following Basic Lease
Provisions, all of the other terms and conditions and sections of the Office Lease Agreement
hereinafter set forth are hereby incorporated as an integral part of this Summary.



	 	 	 	 	 
	1.

	 	Building (See Section 1):
	 	485 Half Day Road
	 

	 	 	 	Buffalo Grove, Illinois 60089
	 
	 	 	 	 
	2.

	 	Premises (See Section 1):	 	 
	 
	 	 	 	 
	 

	 	Suite:
	 	Suites 100 and 102
	 

	 	Floor:
	 	First (1st) floor
	 

	 	Rentable Square Feet:
	 	Approximately 12,579 rentable square feet
	 
	 	 	 	 
	3.

	 	Term (See Section 2):
	 	One hundred twenty (120) full calendar months
	 
	 	 	 	 
	4.

	 	Net Rent (See Section 5):	 	 






	 	 	 	 	 	 	 
	 	 	Rate Per	 	Annual	 	Monthly
	Period	 	Sq. Ft.	 	Net Rent	 	Installment
	Lease Year 1 *
	 	$14.50	 	$182,395.50	 	$15,199.63
	 
	 	 	 	 	 	 
	Lease Year 2   
	 	$14.94	 	$187,930.26	 	$15,660.86
	 
	 	 	 	 	 	 
	Lease Year 3   
	 	$15.38	 	$193,465.02	 	$16,122.09
	 
	 	 	 	 	 	 
	Lease Year 4   
	 	$15.84	 	$199,251.36	 	$16,604.28
	 
	 	 	 	 	 	 
	Lease Year 5   
	 	$16.32	 	$205,289.28	 	$17,107.44
	 
	 	 	 	 	 	 
	Lease Year 6   
	 	$16.81	 	$211,452.99	 	$17,621.08
	 
	 	 	 	 	 	 
	Lease Year 7   
	 	$17.31	 	$217,742.49	 	$18,145.21
	 
	 	 	 	 	 	 
	Lease Year 8   
	 	$17.83	 	$224,283.57	 	$18,690.30
	 
	 	 	 	 	 	 
	Lease Year 9   
	 	$18.37	 	$231,076.23	 	$19,256.35
	 
	 	 	 	 	 	 
	Lease Year 10 
	 	$18.92	 	$237,994.68	 	$19,832.89








 




			
	*	 	The period commencing on the Commencement Date and ending on the 365th day thereafter is
subject to the Free Net Rent Period (as defined in Section 6 hereof).




-iv-









 










	 	 	 	 	 
	5.

	 	Rent Payment Address (See Section 5):	 	 
	 
	 	 	 	 
	 

	 	Millbrook IV LLC	 	 
	 

	 	c/o Millbrook Properties LLC	 	 
	 

	 	485 Half Day Road, Suite 220	 	 
	 

	 	Buffalo Grove, Illinois 60089	 	 
	 
	 	 	 	 
	6.

	 	Tenant’s Share (See Section 7):
	 	9.36 % (based on 134,430 rentable
square feet in the Building)
	 
	 	 	 	 
	7.

	 	Security Deposit/Letter of Credit	 	 
	 

	 	(See Section 10):
	 	$50,316.01 Security Deposit, plus
$125,000.00 Letter of Credit, subject
in each case to Section 10 hereof
	 
	 	 	 	 
	8.

	 	Parking Spaces (See Section 18):
	 	Six (6) covered reserved spaces
	 
	 	 	 	 
	9.

	 	Tenant Improvement Allowance	 	 
	 

	 	(See Section 20):
	 	N/A
	 
	 	 	 	 
	10.

	 	Tenant’s Liability Insurance	 	 
	 

	 	(See Section 28):
	 	$3,000,000.00 umbrella coverage
	 
	 	 	 	 
	11.

	 	Tenant’s Broker (See Section 49):
	 	J.F. McKinney & Associates, Ltd.
	 
	 	 	 	 
	12.

	 	Notice Address (See Section 32):	 	 






	 	 	 
	Landlord:

	 	Tenant:
	 
	 	 
	Millbrook IV LLC

	 	Alma Lasers, Inc.
	c/o Millbrook Properties LLC

	 	485 Half Day Road
	485 Half Day Road, Suite 220

	 	Suites 100 and 102
	Buffalo Grove, Illinois 60089

	 	Buffalo Grove, Illinois 60089
	Attn: Property Manager

	 	Attn: Office Manager
	 
	 	 
	With a copy to:

	 	With a copy to:
	 
	 	 
	Quarles & Brady LLP

	 	Foley & Lardner LLP
	500 West Madison Street

	 	777 East Wisconsin Avenue
	Suite 3700

	 	Milwaukee, Wisconsin 53202
	Chicago, Illinois 60661

	 	Attn: Sarah O. Jelencic, Esq.
	Attn: Mark J. Home, Esq.
	 	 






-v-









 






	 	 	 
	 

	 	Prior to Commencement Date:
	 
	 	 
	 

	 	Alma Lasers, Inc.
	 

	 	6555 Northwest 9th Avenue
	 

	 	Suite 303
	 

	 	Ft. Lauderdale, Florida 33309
	 

	 	Attn: Miriam Freyer






13.            Guarantor (See Section 59):            N/A




[SIGNATURE PAGE TO FOLLOW]




-vi-









 








     IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument as of the date set forth
on the first page hereof.



LANDLORD:




MILLBROOK IV LLC, an

Illinois limited liability company




	 	 	 	 	 	 	 
	By:	 	Millbrook Properties LLC,
Inc., an Illinois limited liability
company, its Managing Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Harvey L. Miller
 

Harvey L. Miller
	 	 
	 

	 	Title:
	 	Managing Partner	 	 






TENANT:




ALMA LASERS, INC., a

Delaware corporation




	 	 	 	 	 
	By: 

Name:

	 	/s/ Howard V. Kelly
 

Howard V. Kelly
	 	 
	Title:

	 	ALMA LASERS LTD	 	 






-vii-









 






OFFICE LEASE AGREEMENT




     THIS
OFFICE LEASE AGREEMENT (hereinafter called the “Lease”) is made and entered into as of
the date appearing on the first page hereof by and between the Landlord and Tenant identified
above.



A. Premises/Term/Possession.




     1. Premises. Landlord does hereby rent and lease to Tenant and Tenant does hereby rent
and lease from Landlord, for general office purposes of a type customary for first-class office
buildings, the Premises located in the Building identified in the Basic Lease Provisions, situated
on the real property described therein (the “Property”), which Premises are further shown
and depicted on Exhibit A-1 attached hereto and made a part hereof. The Premises shall be
prepared for Tenant’s occupancy in the manner and subject to the provisions of Exhibit B
attached hereto and made a part hereof. As used in this Lease, “rentable square feet” shall be
determined in accordance with the ANSI/BOMA Z65.1-1996 standard promulgated by the Building Owners
and Managers Association. Landlord and Tenant agree that the number of rentable square feet
described in Paragraph 2 of the Basic Lease Provisions has been confirmed and conclusively agreed
upon by the parties. No easement for light, air or view is granted hereunder or included within or
appurtenant to the Premises.



     2. Lease Term. Tenant shall have and hold the Premises for the term (“Term”)
identified in the Basic Lease Provisions commencing on the date (the “Commencement Date”)
which is the earlier of (i) five (5) days after the date on which Landlord notifies Tenant that the
Premises are substantially complete (or would have been substantially complete but for any delays
caused by Tenant, its agents and employees), or (ii) the date Tenant first occupies all or any
portion of the Premises for the conduct of its business, and shall terminate at midnight on the
last day of the one hundred twentieth (120th) full calendar month following the Commencement Date
(the “Expiration Date”), unless sooner terminated or extended as hereinafter provided.
Promptly following the Commencement Date, Landlord and Tenant shall enter into a letter agreement
in the form attached hereto as Exhibit C, specifying and/or confirming the Commencement
Date and the Expiration Date (and the number of rentable square feet contained within the Premises
and the amount of Net Rent payable hereunder for each Lease Year (as defined in Section 5 below),
if such numbers as finally determined differ from those set forth in the Basic Lease Provisions).



     3. Landlord’s Failure to Give Possession. Landlord shall not be liable for damages to
Tenant for failure to deliver possession of the Premises to Tenant if such failure is due to any
previous tenant’s failure to vacate the Premises, except that the commencement of the Term shall be
delayed until Landlord delivers possession of the Premises to Tenant (so long as Tenant is not
responsible for such failure or delay). Landlord will use all commercially reasonable efforts to
deliver possession of the Premises to Tenant by the Commencement Date of the Term.



     4. Quiet
Enjoyment. So long as Tenant is not then in default beyond any applicable
notice and cure period hereunder, Tenant shall peaceably and quietly have, hold and enjoy the
Premises during the Term hereof as against Landlord and anyone claiming by, through,



-1-









 




or under Landlord, subject in all events to the terms and provisions of this Lease. Landlord
shall not be responsible for the acts or omissions of any other tenant (provided, upon written
notice from Tenant, Landlord shall use commercially reasonable efforts to cause any other tenant of
the Building who is materially and adversely interfering with Tenant’s use and enjoyment of the
Premises to cease such interference), Tenant, or third party not within Landlord’s control that may
interfere with Tenant’s use and enjoyment of the Premises.




B. Rent/Payment/Security Deposit.




     5. Net Rent. Tenant shall pay to Landlord, at the address stated in the Basic Lease
Provisions or at such other place as Landlord shall designate in writing to Tenant, annual net
rent (“Net Rent”) in the amounts set forth in the Basic Lease Provisions. The term “Lease Year”, as
used in the Basic Lease Provisions and throughout this Lease, shall mean each and every consecutive
twelve (12) month period during the Term of this Lease, with the first such twelve (12) month
period commencing on the Commencement Date; provided, however, if the Commencement Date occurs
other than on the first day of a calendar month, the first Lease Year shall be that partial month
plus the first full twelve (12) months thereafter.



     6. Rent
Payment; Free Net Rent Period.



          (a) The Net Rent for each Lease Year shall be payable in equal monthly installments, due on
the first day of each calendar month, in advance, in legal tender of the United States of America,
without abatement, demand, deduction or offset whatsoever, except as may be expressly provided in
this Lease. One full monthly installment of Net Rent shall be due and payable on the date of
execution of this Lease by Tenant and shall be applied to the first monthly installment of Net Rent
coming due and payable following expiration of the Free Rent Period, and a like monthly installment
of Net Rent shall be due and payable on or before the first day of each calendar month thereafter
during the Term hereof (provided, that if the Free Rent Period should end on a day other than the
first day of a calendar month, the monthly Net Rent installment paid on the date of execution of
this Lease by Tenant shall be prorated to that partial calendar month, and the excess shall be
applied as a credit against the next monthly Net Rent installment). Tenant shall pay, as Additional
Rent (as hereinafter defined), all other sums due from Tenant under this Lease (the term “Rent”, as
used herein, means all Net Rent, Additional Rent and all other amounts payable hereunder from
Tenant to Landlord).




          (b) Notwithstanding anything to the contrary contained herein and solely as a concession to
enter into this Lease, Tenant’s obligations for Net Rent only (and specifically excluding Tenant’s
obligations for Additional Rent and other sums due and payable hereunder) shall be abated in full
for the period commencing on the Commencement Date and ending on the three hundred sixty-fifth
(365th) day thereafter (the “Free Net Rent Period”); provided, if Tenant shall be in default beyond
any applicable notice and cure period under any of the terms or provisions of this Lease at any
time during the Free Net Rent Period, Tenant shall not be entitled to that portion of the Free Net
Rent Period accruing from and after the date of such default, and Tenant shall thereafter become
obligated to pay all Net Rent which would otherwise have been abated hereunder as and when the same
becomes due and payable under this Lease.




-2-









 








     7. Operating Expenses/Taxes.



          (a) Tenant agrees to reimburse Landlord throughout the Term, as additional rent (the
“Additional Rent”) hereunder, for Tenant’s Share (as defined below) of: (i) the annual
Operating Expenses (as defined below); and (ii) the annual Taxes (as defined below). The term
“Tenant‘s Share” as used in this Lease shall mean the percentage determined by dividing the
rentable square footage of the Premises by the rentable square footage of the Building. Landlord
and Tenant hereby agree that Tenant ‘s Share with respect to the Premises initially demised by this
Lease is the percentage amount set forth in the Basic Lease Provisions. Tenant’s Share of
Operating Expenses and Taxes for any calendar year shall be appropriately prorated for any partial
year occurring during the Term.




          (b) “Operating Expenses” shall mean all of those expenses of operating, servicing,
managing, maintaining and repairing the Property, Building, and all parking areas and all related
common areas. Operating Expenses shall include, without limitation, the following: (1) insurance
premiums and deductible amounts, including, without limitation, for commercial general liability,
“all risks” property, rent loss and other coverages carried by Landlord on the Building and
Property; (2) all costs related to the providing of water, heating, lighting, ventilation, sanitary
sewer, air conditioning and other utilities in the Building, but specifically excluding those
utility charges actually paid separately by Tenant or any other tenants of the Building; (3)
janitorial and maintenance expenses, including: (a) janitorial services and janitorial supplies
and other materials used in the operation and maintenance of the Building; and (b) the cost of
maintenance and service agreements on equipment, window cleaning, grounds maintenance, pest
control, access control services, trash and snow removal, and other similar services or
agreements; (4)
management fees (or a charge equal to fair market management fees if Landlord provides its own
management services), which management fees shall not exceed four percent (4%) of gross rentals
attributable to the Building, and the market rental value of a reasonably-sized management office;
(5) the costs, including interest, amortized over the applicable useful life, of any capital
improvement made to the Building by or on behalf of Landlord which is required under any
governmental law or regulation (or any judicial interpretation thereof) that was not applicable to
the Building as of the date of this Lease, and of the acquisition and installation of any device or
equipment designed to improve the operating efficiency of any system within the Building which is
reasonably intended to reduce Operating Expenses or which is acquired to improve the safety of the
Building or Property; (6) all services, supplies, repairs, replacements or other expenses directly
and reasonably associated with servicing, maintaining, managing and operating the Building,
including, but not limited to the lobby, vehicular and pedestrian traffic areas and other common
use areas; (7) wages and salaries of Landlord’s employees attributable to the Building or the
Property (not above the level of Building or Property Manager or whatever title represents the
on-site management representative primarily responsible for management of the Building) engaged in
the maintenance, operation, repair and services of the Building, including taxes, insurance and
customary fringe benefits; (8) legal and accounting costs (but not including legal costs incurred
in collecting delinquent rent from any occupants of the Property); (9) costs to maintain and repair
the Building and Property (except for those maintenance and repair obligations which are the
express obligation of tenants of the Building or the Property under such tenant’s respective
leases); (10) landscaping and security costs attributable to the Building or the Property unless
Landlord hires a third party to provide such services pursuant to a service contract and the cost
of that service contract is



-3-









 






already included in Operating Expenses as described above; (11) if the Building is part of a
multi-building project, the Building’s allocated share (as reasonably determined by Landlord) of
those expenses incurred on a project-wide basis benefiting the Building and/or Property including,
without limitation, costs in connection with (i) landscaping, (ii) utility and road repairs, (iii)
security, and (iv) signage installation, replacement and repair; (12) business park dues and
assessments paid to Millbrook Business Center Association (the
“Association”); and (13) costs and
expenses relating to the food service and cafeteria operations at the Property in effect from time
to time.



          Operating Expenses shall specifically further exclude, however, the following: (i) costs of
alterations of tenant spaces (including all tenant improvements to such spaces); (ii) costs of
capital improvements, except as provided in clause (5) of the preceding paragraph; (iii)
depreciation, interest and principal payments on mortgages, and other debt costs, if any; (iv) real
estate brokers’ leasing commissions or compensation and advertising and other marketing expenses;
(v) payments to affiliates of the Landlord for goods and/or services in excess of what would be
paid to non-affiliated parties for such goods and/or services in an arm’s length transaction; (vi)
costs or other services or work performed for the singular benefit of another tenant or occupant
(other than for common areas of the Building); (vii) legal, space planning, construction, and other
expenses incurred in procuring tenants for the Building or renewing or amending leases with
existing tenants or occupants of the Building; (viii) costs of advertising and public relations and
promotional costs and attorneys’ fees associated with the leasing of the Building; (ix) any expense
for which Landlord actually receives reimbursement from insurance, condemnation awards, other
tenants or any other source; (x) costs incurred in connection with the sale, financing,
refinancing, mortgaging, or other change of ownership of the Building; (xi) all expenses in
connection with the installation, operation and maintenance of any observatory, broadcasting
facilities, athletic or recreation club, or other facility not generally available to all office
tenants of the Building, including Tenant; (xii) Taxes; and (xiii) rental under any ground or
underlying lease or leases.



          (c) “Taxes” shall mean all taxes and assessments of every kind and nature which
Landlord shall become obligated to pay with respect to each calendar year of the Term or portion
thereof because of or in any way connected with the ownership, leasing, and operation of the
Building and the Property, subject to the following: (i) the amount of ad valorem real and personal
property taxes against Landlord’s real and personal property to be included in Taxes shall be the
amount required to be paid for any calendar year, notwithstanding that such Taxes are assessed for
a different calendar year (the amount of any tax refunds received by Landlord during the Term of
this Lease shall be deducted from Taxes for the calendar year to which such refunds are
attributable); (ii) the amount of special taxes and special assessments to be included shall be
limited to the amount of the installments (plus any interest, other than penalty interest, payable
thereon) of such special tax or special assessment payable for the calendar year in respect of
which Taxes are being determined; (iii) the amount of any tax or excise levied by the State or the
City where the Building is located, any political subdivision of either, or any other taxing body,
on rents or other income from the Property (or the value of the leases thereon) shall be included,
but only to the extent that such tax or excise is in lieu of ad valorem real property taxes and not
in lieu of income or other taxes expressly excluded under the subsection (iv) hereof; (iv) there
shall be excluded from Taxes all income, excess profit, franchise, capital stock, gross receipts,
and inheritance or estate taxes; and (v) Taxes shall also include Landlord’s




-4-









 







reasonable costs and expenses (including reasonable attorneys’ fees) in contesting or attempting to
reduce any Taxes assessed for a different calendar year, but only to the extent of any reduction in
such Taxes. Landlord agrees to consult with a real estate tax consultant or advisor engaged by it
from time to time and in the exercise of reasonable and prudent ownership judgment contest any
unreasonable tax assessment to the extent such tax counsel advises Landlord that a reasonable basis
exists therefor. For purposes hereof, Taxes for any calendar year shall be the Taxes that are paid
in such calendar year, rather than Taxes that are assessed, become a lien, or otherwise accrue
during such calendar year, and Landlord shall, to the extent consistent with applicable Law and
permitted without penalty or interest, elect to pay all such Taxes by the installment method over
the longest period available, and Tenant shall be liable only for those Taxes paid during any Lease
Year of the Term hereof.




          (d) Landlord shall, on or before the Commencement Date and as soon as reasonably possible
after the commencement of each calendar year thereafter, provide Tenant with a statement of the
estimated monthly installments of Tenant’s Share of Operating Expenses and Taxes which will be due
for the remainder of the calendar year in which the Commencement Date occurs or for the next
ensuing calendar year, as the case may be. Landlord agrees to keep books and records showing the
Operating Expenses in accordance with generally accepted accounting principles (as modified for
office buildings in a manner comparable to other similar buildings in the commercial area where the
Building is located) and practices consistently maintained on a year-to-year basis in compliance
with such provisions of this Lease as may affect such accounts for a period of three (3) years, and
Landlord shall deliver to Tenant within one hundred twenty (120) days after the close of each
calendar year (subject to any delays beyond the reasonable control of Landlord to prevent)
(including the calendar year in which this Lease terminates), a statement (“Landlord’s
Statement”) containing the following: (1) a statement that the books and records covering the
operation of the Building have been maintained in accordance with the requirements in this
subparagraph (e); (2) the amount of the Operating Expenses for such calendar year; and (3) the
amount of the Taxes for such calendar year. Tenant or its representative (so long as such
representative is not engaged by Tenant on a contingent fee basis, and so long as both Tenant and
such representative execute a confidentiality agreement reasonably satisfactory to Landlord) shall
have the right, at Tenant’s sole cost and expense, to examine copies of Landlord’s books and
records relative to Operating Expenses and Taxes during normal business hours at any time within
one hundred twenty (120) days following the furnishing by Landlord to Tenant of Landlord’s
Statement. Unless Tenant shall, by notice to Landlord, take exception to any item in Landlord’s
Statement within such 120-day period, such Landlord’s Statement shall be conclusively binding upon
Tenant and shall not be contestable by Tenant thereafter, except as expressly provided to the
contrary herein. Any amount shown by Landlord’s Statement to be due to Landlord, whether or not
written exception is taken thereto, shall be paid by Tenant as provided below, without prejudice to
any such written exception. If Tenant timely gives notice of such exception, any charges disclosed
by Landlord’s Statement which Landlord agrees are irregular or improper shall be promptly corrected
by Landlord and Tenant shall receive a credit (subject, however to Landlord’s right to offset such
amount by any Rent then due and owing from Tenant to Landlord under this Lease) for any
overpayments made by Tenant as a result of such irregularities or improper charges. To the extent
Landlord and Tenant fail to agree, a statement as to the proper amount of Tenant’s Share of
Operating Expenses or Taxes (the “Confirmation”) shall, as promptly as reasonably possible, be
given by such independent certified public accounting firm as is mutually and reasonably
satisfactory to Landlord and




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Tenant, which Confirmation shall be final, binding, and conclusive upon Landlord and Tenant. Tenant
agrees to pay the cost of such Confirmation unless it is determined that Landlord’s original
determination of the actual (as distinguished from the estimated) amount of Tenant’s Share of
Operating Expenses and Taxes was in error by more than five percent (5%), in which case Landlord
shall pay the cost of such Confirmation.




               (i) Tenant shall pay to Landlord, together with its monthly payment of Net Rent as provided in
Section 5 above, as Additional Rent hereunder, the estimated monthly installment of Tenant’s Share
of the Operating Expenses and Taxes for the calendar year in
question. At the end of any calendar
year, if Tenant has paid to Landlord an amount in excess of Tenant’s Share of Operating Expenses
and Taxes for such calendar year, Landlord shall reimburse to Tenant any such excess amount (or
shall apply any such excess amount to any Rent then due and owing to Landlord hereunder, if any, at
the option of Landlord). At the end of any calendar year if Tenant has paid to Landlord less than
Tenant’s Share of Operating Expenses and Taxes for such calendar year, Tenant shall pay to Landlord
any such deficiency within thirty (30) days after Tenant receives the annual statement.



               (ii) For the calendar year in which this Lease terminates and is not extended or renewed, the
provisions of this Section shall apply, but Tenant’s Share for such calendar year shall be subject
to a pro rata adjustment to include only the number of days prior to the expiration of the Term of
this Lease. Tenant shall make monthly estimated payments of the pro rata portion of Tenant’s Share
for such calendar year (in the manner provided above) until this Lease expires or is otherwise
terminated, and when the actual prorated Tenant’s Share for such calendar year is determined,
Landlord shall send
Landlord’s Statement to Tenant for such year and if such Statement reveals that Tenant’s
estimated payments for the prorated Tenant’s Share for such calendar year exceeded the actual
prorated Tenant’s Share for such calendar year, Landlord shall include a refund for that amount
along with Landlords’ Statement (subject to offset in the event Tenant is in default hereunder). If
Landlord’s Statement reveals that Tenant’s estimated payments for the prorated Tenant’s Share for
such calendar year were less than the actual prorated Tenant’s Share for such calendar year, Tenant
shall pay the shortfall to Landlord within thirty (30) days after the date of receipt of Landlord’s
Statement.



               (iii) If the Building is less than ninety-five percent (95%) occupied throughout any calendar
year of the Term, then the actual Operating Expenses for the calendar year in question which vary
with occupancy levels in the Building shall be increased to the amount of Operating Expenses which
Landlord reasonably determines would have been incurred during that calendar year if the Building
had been at least 95% occupied throughout such calendar year; provided, in no event shall Landlord
collect and retain from tenants of the Building with respect to any calendar year more than one
hundred percent (100%) of the actual Operating Expenses attributable to the Building for such
calendar year.



     8. Late Charge. Other remedies for non-payment of Rent notwithstanding, if any monthly
installment of Net Rent or Additional Rent is not received by Landlord on or before the date due
(or within five (5) days following the due date in the case of the first such failure in any
consecutive twelve (12) month period only), or if any payment due Landlord by Tenant which does not
have a scheduled due date is not received by Landlord on or before the thirtieth (30th) day
following the date Tenant was invoiced, a late charge of five percent (5%) of such past due



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amount shall be immediately due and payable as Additional Rent, and interest shall accrue on all
delinquent amounts (or within five (5) days following the due date in the case of the first such
failure in any consecutive twelve (12) month period only) from the date past due until paid at the
lower of (i) twelve percent (12%) per annum, or (ii) the highest rate permitted by applicable law
from the date such payment is due until paid.



     9. Partial Payment. No payment by Tenant or acceptance by Landlord of an amount less
than the Rent herein stipulated shall be deemed a waiver of any other Rent due. No partial payment
or endorsement on any check or any letter accompanying such payment of Rent shall be deemed an
accord and satisfaction, but Landlord may accept such payment without prejudice to Landlord’s
right to collect the balance of any Rent due under the terms of this Lease or any late charge
assessed against Tenant hereunder.



     10. Security Deposit/Letter of Credit.



          (a) Tenant has upon execution of this Lease deposited with Landlord security for the full and
faithful performance of every term, covenant, and condition of this Lease on the part of Tenant to
be observed and performed in the initial amount of Fifty Thousand Three Hundred Sixteen and 01/100
Dollars ($50,316.01) (the “Security Deposit”). If Tenant defaults with respect to any
provision of this Lease, and such default continues beyond any applicable notice and cure period
hereunder, Landlord may use all or any part of this Security Deposit for the payment of any Rent
and any other sum due or in default, or for the payment of any other amount which Landlord may
spend or become obligated to spend by reason of Tenant’s default, or to compensate Landlord for any
loss or damage which Landlord may suffer by reason of Tenant’s default. If any portion of such
Security Deposit is to be used, Tenant shall, within five (5) days after written demand therefor,
deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original
amount, and Tenant’s failure to do so shall be a material breach of this Lease. Landlord shall not
be required to keep this Security Deposit separate from its general funds and Tenant shall not be
entitled to interest on such Security Deposit. Said Security Deposit shall not be deemed an advance
payment of Rent or a measure of Landlord’s damages for any default hereunder by Tenant.




          (b) In addition to the Security Deposit, Tenant shall deliver to Landlord upon Tenant’s
execution and delivery of this Lease an unconditional irrevocable letter of credit in the initial
amount of One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00) in favor of Landlord
from a bank approved by Landlord, substantially in the form of Exhibit J attached hereto
and made a part hereof (the “Letter of Credit”), which Letter of Credit shall be held by
Landlord as additional security for the full and faithful performance by Tenant of each and every
term, covenant, and condition of this Lease on the part of Tenant to be observed and performed;
provided, so long as Tenant is not then in default beyond any applicable notice and cure period
hereunder, and provided further that Landlord has not theretofore drawn upon all or any portion of
such Letter of Credit pursuant to this Section 10, the Letter of Credit shall be subject to
reduction as follows: (i) to the sum of One Hundred Twelve Thousand Five Hundred and No/100 Dollars
($112,500.00) during Lease Year 2; (ii) to the sum of One Hundred Thousand and No/100 Dollars
($100,000.00) during Lease Year 3; (iii) to the sum of Eighty-Seven Thousand Five Hundred and
No/100 Dollars ($87,500.00) during Lease Year 4; and (iv) to the sum of Seventy-Five Thousand and
No/100 Dollars ($75,000.00) during Lease Year 5. So




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long as Tenant is not then in default beyond any applicable notice and cure period hereunder,
and provided further that Landlord has not theretofore drawn upon all or any portion of such Letter
of Credit pursuant to this Section 10, Tenant shall not be required to maintain the Letter of
Credit from and after the commencement of Lease Year 6. If, at any time during the Term hereof,
Tenant shall default in any of its obligations hereunder, and such default continues beyond any
applicable notice and cure period hereunder, then in such event Landlord may (but shall not be
obligated to) from time to time, and in addition to Landlord’s rights with respect to the Security
Deposit, draw down on the Letter of Credit (without prejudice to any other remedy which Landlord
may have on account thereof) in an amount reasonably necessary to cure such Tenant default(s), and
in such event Tenant shall restore the Letter of Credit to its original amount within five (5) days
following Landlord’s demand therefor. The Letter of Credit may be used by
Landlord, at its discretion and without limitation, to apply to any amount owing to Landlord
hereunder, or to pay the expenses of repairing any damage to the Premises which exists on the day
Tenant vacates the Premises, but this right shall not be construed to limit Landlord’s right to
recover additional sums from Tenant for damages to the Premises. If, at any time during the Term
hereof, Tenant has filed (or there has been filed against Tenant) a petition for bankruptcy
protection or other protection from its creditors under any applicable and available Law which has
not been dismissed or discharged, including without limitation a general assignment for the benefit
of creditors, then Landlord may at once, and without any notice whatsoever to Tenant, be entitled
to draw down on the entire amount of the Letter of Credit then available and apply such resulting
sums toward the cure of any default by Tenant under this Lease or toward any damages to which
Landlord is entitled to pursuant to the terms of this Lease, and retain the resulting balance, if
any, as an additional Security Deposit hereunder.




          (c) The Letter of Credit shall provide for an original expiration date not earlier than the
last day of the twelfth (12th) full calendar month following the Commencement Date and shall be
automatically extended without amendment for additional successive one (1) year periods from the
original expiration date or any future expiration date thereof, unless at least sixty (60) days
prior to any such expiration date, the issuer thereof sends to Landlord by U.S.
certified/registered mail, return receipt requested, or via nationally-recognized commercial
overnight delivery service, written advice that the issuer thereof has elected not to consider the
Letter of Credit renewed for any such additional one (1) year period. In the event Landlord is so
advised that the Letter of Credit will not be renewed, Landlord shall promptly thereafter notify
Tenant thereof in writing, and Tenant shall obtain a substitute Letter of Credit from a bank
approved by Landlord meeting all of the terms and conditions described in Section 10(b) hereof (the
“Substitute Letter of Credit”), which Substitute Letter of Credit shall be delivered to
Landlord no later than thirty (30) days prior to the expiration date of the Letter of Credit then
in effect. In the event Tenant fails to deliver such Substitute Letter of Credit to Landlord at
least thirty (30) days prior to the expiration date of the Letter of Credit then in effect,
Landlord shall have the right without further notice to Tenant to immediately draw down on the
entire amount of the Letter of Credit then available to Landlord, and in such instance Landlord
shall retain such resulting sum as an additional Security Deposit hereunder. Landlord shall have
the right to use such additional Security Deposit in accordance with the terms and provisions of
this Section 10, and Tenant shall remain obligated to replenish such additional Security Deposit in
the same manner as required hereunder.




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          (d) So long as Tenant is not then in default hereunder and provided further that Tenant shall
have vacated and surrendered the Premises in the manner and in the condition required under this
Lease, Landlord shall return to Tenant the Security Deposit and the Letter of Credit within
forty-five (45) days following the expiration or earlier termination of this Lease (except to the
extent that Landlord has drawn upon or against any of the same in accordance with Landlord’s rights
hereunder). Upon sale or conveyance of the Building, Landlord may transfer or assign the Security
Deposit and/or the Letter of Credit to any new owner of the Building, and upon such transfer, and
so long as the new owner assumes Landlord’s obligations under this Lease, all liability of Landlord
for the Security Deposit and/or the Letter of Credit shall terminate.




C. Use/Laws/Rules.




     11. Use of Premises.



          (a) Tenant shall use and occupy the Premises for general office purposes, including the
repair, distribution, receipt, and shipment of laser equipment, of a type customary for office
buildings of the same type and quality as the Building and for no other purpose; provided, Tenant
shall be responsible for confirming, at Tenant’s sole cost, expense, and risk, that the use of the
Premises for the repair, distribution, receipt, and shipment of laser equipment complies with
applicable Laws (as hereinafter defined), including without limitation applicable zoning and land
use restrictions, and Landlord makes no representation or warranty whatsoever, nor does Landlord
assume any liability or responsibility, in connection therewith. The Premises shall not be used for
any illegal purpose, nor in violation of any valid regulation of any governmental body, nor in any
manner to create any nuisance or trespass, nor in any
manner which will void the insurance or increase the rate of insurance on the Premises or the
Building, nor in any manner inconsistent with the first-class nature of the Building.




          (b) Except as expressly permitted hereunder, Tenant shall not cause or permit the receipt,
storage, use, location or handling on the Property (including the Building and Premises) of any
product, material or merchandise which is explosive, highly inflammable, or a “hazardous or toxic
material,” as that term is hereafter defined. “Hazardous or toxic material” shall include all
materials or substances which have been determined to be hazardous to health or the environment and
are regulated or subject to all applicable laws, rules and regulations from time to time,
including, without limitation hazardous waste (as defined in the Resource Conservation and Recovery
Act); hazardous substances (as defined in the Comprehensive Emergency Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act); gasoline or any
other petroleum product or by-product or other hydrocarbon derivative; toxic substances, (as
defined by the Toxic Substances Control Act); insecticides, fungicides or rodenticide, (as defined
in the Federal Insecticide, Fungicide, and Rodenticide Act); asbestos and radon and substances
determined to be hazardous under the Occupational Safety and Health Act or regulations promulgated
thereunder. Notwithstanding the foregoing, Tenant shall not be in breach of this provision as a
result of the presence in the Premises of reasonable quantities of hazardous or toxic materials
which are in compliance with all applicable Laws and are customarily present in general office use
(e.g., copying machine chemicals and kitchen cleansers) or used in connection with Tenant’s regular
business operations.




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          (c) Without limiting in any way Tenant’s obligations under any other provision of this Lease,
Tenant and its successors and assigns shall indemnify , protect, defend (with counsel reasonably
acceptable to Landlord) and hold Landlord , its partners, officers, directors, shareholders ,
employees, agents, lenders, contractors , and each of their respective successors and assigns , as
well as the Association (collectively, the “Landlord Indemnified Parties”) harmless from
any and all claims, damages, liabilities, losses, costs and expenses of any nature whatsoever,
known or unknown, contingent or otherwise (including, without limitation, attorneys’ fees,
litigation, arbitration and administrative proceedings costs, expert and consultant fees and
laboratory costs, as well as damages arising out of the diminution in the value of the Premises or
any portion thereof, damages for the loss of the Premises , damages arising from any adverse impact
on the marketing of space in the Premises , and sums paid in settlement of claims), which arise
during or after the Term in whole or in part as a result of the presence or suspected presence of
any hazardous or toxic materials, in, on, under , from or about the Premises to the extent
attributable to Tenant’s acts or omissions on or about the Premises , except to the extent that
such claims, damages, liabilities , losses, costs and expenses arise out of or are caused by the
negligence or willful misconduct of any of the Landlord Indemnified Parties. Without limiting in
any way Landlord’s obligations under any other provision of this Lease, Landlord and its successors
and assigns shall indemnify, protect, defend (with counsel reasonably acceptable to Tenant) and
hold Tenant, its partners, officers, directors, shareholders , employees, agents, lenders,
contractors , and each of their respective successors and assigns (collectively, the “Tenant
Indemnified Parties” ) harmless from any and all claims, damages, liabilities , losses, costs
and expenses of any nature whatsoever, known or unknown, contingent or otherwise (including,
without limitation, attorneys’ fees, litigation, arbitration and administrative proceedings costs,
expert and consultant fees and laboratory costs, as well as damages arising out of loss of use of
the Premises , and sums paid in settlement of claims), which arise during or after the Term in
whole or in part as a result of the presence or suspected presence of any hazardous or toxic
materials, in, on, under, from or about the Premises to the extent attributable to Landlord’s acts
or omissions on or about the Premises, except to the extent that such claims , damages,
liabilities, losses, costs and expenses arise out of or are caused by the negligence or willful
misconduct of any of the Tenant Indemnified Parties. The indemnities contained herein shall survive
the expiration or earlier termination of this Lease.




     12. Compliance with Laws. Tenant and Landlord shall operate the Premises and Building
respectively in compliance with all applicable federal , state, and municipal laws, ordinances and
regulations, including, without limitation, the Americans with Disabilities Act (collectively,
“Laws”), and shall not knowingly, directly or indirectly , make any use of the Premises or Building
which is prohibited by any such Laws. Landlord represents to Tenant that Landlord has
received no notice from any governmental entity or agency with jurisdiction over the Building that
the Premises or the Building are
currently in violation of applicable Laws. Tenant shall have no responsibility for correcting
violations of applicable Laws existing in the Premises or the Building as of the date of this
Lease, except to the extent that any such violations arise from any alterations , improvements , or
other work performed by or at the direction of Tenant or Tenant’s officers, agents, employees, or
contractors, or otherwise arise from or relate to Tenant’s particular manner of use of, or
operations within, the Premises, as opposed to general office use.



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     13. Waste Disposal.



          (a) All normal trash and waste (i.e., waste that does not require special handling pursuant to
subparagraph (b) below) shall be disposed of through the janitorial service.




          (b) Tenant shall be responsible for the removal and disposal of any waste placed in the
Premises or the Building by the Tenant Indemnified Parties, or any of them, any guest or invitee of
Tenant, or any subtenant or occupant of the Premises deemed by any governmental authority having
jurisdiction over the matter to be hazardous or infectious waste or waste requiring special
handling, such removal and disposal to be in accordance with any and all applicable governmental
rules, regulations, codes, orders or requirements. enant agrees to separate and mark appropriately
all waste to be removed and disposed of through the janitorial service pursuant to (a) above and
hazardous, infectious or special waste to be removed and disposed of by Tenant pursuant to this
subparagraph (b). Tenant hereby indemnifies and holds harmless Landlord from and against any loss,
claims, demands, damage or injury Landlord may suffer or sustain as a result of Tenant’s failure to
comply with the provisions of this subparagraph (b).




     14. Rules
and Regulations. The rules and regulations in regard to the Building, a copy
of which is attached hereto as Exhibit D, and all reasonable rules and regulations and
modifications thereto which Landlord may hereafter from time to time adopt and promulgate after
notice thereof to Tenant (so long as any such future rules and regulations do not materially and
adversely interfere with Tenant’s use and occupancy of the Premises for the purposes permitted
hereunder), for the government and management of the Building, are hereby made a part of this Lease
and shall during the Term be observed and performed by the Tenant Indemnified Parties, any guest or
invitee of Tenant, and any subtenant or occupant of the Premises. Landlord agrees to enforce such
rules and regulations on a non-discriminatory basis. In the event of a conflict between the Lease
and the rules and regulations, the terms of this Lease shall govern and control.



D. Services/Tenant Buildout.




     15. Services.



          (a) The normal business hours of the Building shall be from 7:00 A.M. to 7:00 P.M. on Monday
through Friday, 8:00 A.M. to 1:00 P.M. Saturdays, and at such other hours and times as determined
by Landlord to be required for the majority of the occupants of the Building, exclusive of Building
holidays as reasonably designated by Landlord (“Building Holidays”). Initially and until
further notice by Landlord to Tenant, the Building Holidays shall be: New Year’s Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving (and the day after Thanksgiving) and Christmas Day.
Landlord shall furnish the following services during the normal business hours of the Building
except as noted:




               (i) Elevator service for passenger needs at all times, and for delivery needs during normal
business hours;



               (ii) Air conditioning reasonably adequate to cool the Premises and heat reasonably adequate to
warm the Premises in accordance with the standards set forth on the



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HVAC
Specifications shown on Exhibit E attached hereto and made a part hereof, subject to
governmental regulations (so long as the occupancy level of the Premises and the heat generated by
electrical lighting and fixtures do not exceed the thresholds set forth on Exhibit E).



               (iii) Hot and cold running water for all restrooms and lavatories;



               (iv) Soap, paper towels, and toilet tissue for public restrooms;



               (v) Janitorial service Monday through Friday, in keeping with the standards generally
maintained in similar office buildings in the city where the Building
is located;


               (vi) Electrical and mechanical maintenance services in the common areas of the Building;



               (vii) Electric power for the Premises shall not be furnished by Landlord but shall be
furnished by the electric utility serving the Building. Tenant shall make all necessary
arrangements with the utility company for securing and paying for electric power furnished by it to
Tenant, and Tenant shall pay for all electric power consumed on the Premises during the Term of
this Lease. Landlord shall pay the cost of separately metering the Premises as part of the Work
pursuant to Exhibit B attached hereto. In the event that Tenant fails to pay any such costs
or charges hereunder, Landlord may (but shall not be obligated) to pay such costs or charges, in
which event Tenant shall reimburse Landlord for any such sums so paid within ten (10) days
following Landlord’s invoice therefor, any all such sums so paid by Landlord shall be deemed
Additional Rent hereunder;



               (viii) Replacement of Building standard lamps and ballasts in the common areas of the Building
as needed from time to time;



               (ix) Repairs and maintenance as described in Section 22 of this Lease; and



               (x) General Building management, including supervision, inspections, recordkeeping,
accounting, leasing and related management functions.



          (b) Tenant shall have no right to any services in excess of those provided herein. If Tenant
uses services in an amount or for a period in excess of that provided for herein, then Landlord
reserves the right to charge Tenant as Additional Rent hereunder a reasonable sum as reimbursement
for the direct cost of such added services, subject to such minimum hours requirements as Landlord
may then have in effect, and to charge Tenant, after reasonable prior notice and Tenant’s failure
or refusal to discontinue such additional services, for the cost of any additional equipment or
facilities or modifications thereto which are necessary to provide the additional services (but
only to the extent that such additional equipment or facilities or modifications thereto are
necessitated by Tenant’s specific use of, or activities within, the Premises, including, by way of
example, heavy concentration of personnel, motors, machines, or equipment, including telephone
equipment), and/or to discontinue providing such excess services to Tenant. Landlord shall provide
Tenant with a schedule of Landlord’s current rates for




-12-









 







additional services promptly following the full execution and delivery of this Lease by each of
Landlord and Tenant.




          (c) Except to the extent caused by the negligence or willful misconduct of the Landlord
Indemnified Parties, or any of them, Landlord shall not be liable for any damages directly or
indirectly resulting from the interruption in any of the services described above, nor shall any
such interruption entitle Tenant to any abatement of Rent or any right to terminate this Lease.
Landlord shall use all reasonable efforts to furnish uninterrupted services as required above.
Notwithstanding the foregoing, in the event that any interruption or discontinuance of services
provided pursuant to this Section 15 was
within the reasonable control of Landlord to prevent, or was otherwise caused by the
negligence or willful misconduct of the Landlord Indemnified Parties, or any of them, and such
interruption or discontinuance continues beyond three (3) business days after written notice to
Landlord and materially and adversely affects Tenant’s ability to conduct business in the Premises,
or any portion thereof, and on account of such interruption or disturbance Tenant ceases doing
business in the Premises, or any portion thereof, Net Rent and Additional Rent shall thereafter
abate proportionately for the Premises, or such portion thereof as is so affected, for so long as
Tenant remains unable to conduct its business in the Premises or such portion thereof. To the
extent within Landlord’s reasonable control, Landlord agrees to use reasonable efforts to restore
such interrupted or discontinued service as soon as reasonably practicable.




     16. Telephone
and Data Equipment. Landlord shall have no responsibility for providing
to Tenant any telephone equipment, including wiring, within the Premises or for providing telephone
service or connections from the utility to the Premises, except as required by law. Tenant shall
not alter, modify, add to, or disturb any telephone or data wiring in the Premises or elsewhere in
the Building without Landlord’s prior written consent in each instance, which consent (i) shall not
be unreasonably withheld with respect to telephone or data wiring located within the Premises, and
(ii) may be withheld in Landlord’s sole and absolute discretion with respect to telephone or data
wiring located outside of the Premises (but which shall not be unreasonably withheld with respect
to telephone or data wiring located outside of the Premises to the extent necessary for the
operation of Tenant’s telephone and data systems within the Premises). Tenant shall be liable to
Landlord for any damage to the telephone or data wiring in the Building due to the act, negligent
or otherwise, of Tenant or any employee, contractor or other agent of Tenant. Tenant shall have no
access to the telephone closets within the Building, except in the manner and under procedures
reasonably established by Landlord. Tenant shall promptly notify Landlord of any actual or
suspected failure of telephone or data service to the Premises. All costs incurred by Landlord for
the installation, maintenance, repair and replacement of telephone wiring within the Building shall
be an Operating Expense to the extent permitted hereunder, unless Landlord is reimbursed for such
costs by other tenants of the Building. Landlord shall not be liable to Tenant and Tenant waives
all claims against Landlord whatsoever, whether for personal injury, property damage, loss of use
of the Premises, or otherwise, due to the interruption or failure of telephone or data services to
the Premises for any reason. Tenant has been advised by Landlord, but has not been required, to
obtain loss of rental insurance adequate to cover any damage, loss or expense occasioned by the
interruption of telephone or data service.



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     17. Signs. Landlord shall install, at Landlord’s cost, (i) a Building-standard suite
entry sign on the door to the Premises, or adjacent to the entry to the Premises, and (ii) a
Building standard listing on the Building’s main lobby directory. If adequate space is then
available after the fourth (4th) and fifth (5th) floors of the Building have been fully leased,
Landlord, at Tenant’s cost, shall install an identification sign on the existing monument sign on
the Property showing Tenant’s name and/or logo (the “Exterior Sign”). The design,
materials, and content of such Exterior Sign shall be designed by Tenant, at Tenant’s cost, and
submitted to Landlord for Landlord’s review and approval. Such Exterior Sign shall be of similar
quality to other tenant signage located on the existing monument sign and shall otherwise comply
with applicable Laws. The Exterior Sign shall be installed by or at the direction of Landlord at
Tenant’s sole cost and expense. Upon the expiration or earlier termination of this Lease, the
Exterior Sign shall be removed, and the area affected thereby shall be restored, by Landlord at
Tenant’s sole cost and expense. Except as expressly permitted hereunder, Tenant shall not paint or
place any signs, placards, or other advertisements of any character upon the windows or inside
walls of the Premises (except with the prior consent of Landlord, which consent may be withheld by
Landlord in its absolute discretion), and Tenant shall place no signs upon the outside walls,
common areas or the roof of the Building.



     18. Parking. No rights to specific parking spaces are granted under this Lease;
however, subject to Landlord’s rights pursuant to the last sentence of this Section 18, Tenant
shall be entitled to use up to Tenant’s Share of the total number of unreserved surface parking
spaces in the parking facilities located on the Property (and the Reserved Spaces, as defined
below, shall be included for purposes of determining Tenant’s Share of such parking spaces
hereunder). Other than the Reserved Spaces (as hereinafter defined), all parking spaces provided to
Tenant shall be unreserved and are to be used by Tenant, its employees and invitees in common with
the other tenants of the Building and their employees and invitees. Landlord reserves the right to
build improvements upon, reduce the size of, relocate, reconfigure, eliminate, and/or make alterations or additions to such parking facilities at any
time; provided such alterations shall not reduce the number of Reserved Spaces provided to Tenant
hereunder. In addition to the foregoing, Tenant shall have the right and license during the Term
hereof, without additional charge therefor, to use six (6) covered reserved parking spaces (the
“Reserved Spaces”), which Reserved Spaces shall initially be at the location(s) set forth
on Exhibit G attached hereto and made a part hereof, and which Reserved Spaces shall be
identified as reserved for Tenant’s exclusive use; provided, Landlord shall be authorized to
relocate any of the Reserved Spaces to other covered reserved spaces on the Property from time to
time during the Term hereof upon reasonable prior written notice to Tenant. Tenant’s use of any and
all parking spaces hereunder shall be subject at all times to Landlord’s standard parking rules
and regulations in effect from time to time during the Term hereof. It is acknowledged and agreed
that the Reserved Spaces are being provided solely as a concession to Tenant hereunder, and that
such Reserved Spaces shall not be made available to any subtenant, assignee, or any other party
(other than an Affiliate, as hereinafter defined). Upon written notice from Tenant, Landlord shall
use commercially reasonable efforts to police the Reserved Spaces in the event that unauthorized
parties are using the same.



     19. [Intentionally Omitted]



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     20. Tenant Construction.



          (a) Landlord will construct the Premises substantially in accordance with the Plans, as
defined in the Work Letter attached as Exhibit B hereto and made a part hereof (the
“Work Letter”). Landlord shall perform the Work (as defined in the Work Letter) at
Landlord’s sole cost and expense and in accordance with the Work Letter attached hereto. In the
event that Tenant desires any Additional Work (as defined in the Work Letter) be performed by
Landlord, such Additional Work shall be at Tenant’s sole cost and expense. Tenant and Landlord
agree that all costs of the Additional Work, if any, shall be the sole responsibility of Tenant and
shall be paid by Tenant to Landlord in accordance with the provisions of Section 3(b) of the Work
Letter. The amount due for each installment shall be set forth in a written invoice from Landlord.
Should Tenant fail to pay for any such costs within thirty (30) days following Landlord’s invoice
therefor, such amount due shall accrue interest at the rate set forth in Section 8 hereof, and the
failure to pay such amount when due shall be a default, subject to the provisions of Section 34
below.




          (b) The Work Letter attached hereto as Exhibit B and executed by Landlord and Tenant,
is hereby made a part of this Lease, and its provisions shall control in the event of a conflict
with the provisions contained in this Lease.




     21. Force Majeure. In the event of a strike, lockout, labor trouble, civil commotion,
war, acts of terrorism, any act of God, or any other event beyond Landlord’s control (a “Force
Majeure Event”) which results in Landlord or Tenant being unable to timely perform its obligations
hereunder to repair the Premises, provide services, complete Work (as provided in Exhibit B), or
otherwise perform its non-monetary obligations, so long as Landlord or Tenant, as the case may be,
diligently proceeds to perform such obligations after the end of such Force Majeure Event, Landlord
or Tenant, as the case may be, shall not be in breach hereunder and this Lease shall not terminate;
provided, except as expressly provided to the contrary in this Lease, in no event shall Tenant’s
obligation to pay any Net Rent, Additional Rent, or any other charges and sums due and payable be
excused as a result of any such Force Majeure Event.



E. Repairs/Alterations/Casualty/Condemnation.




     22. Repairs By Landlord. Tenant, by taking possession of the Premises, shall accept
and shall be held to have accepted the Premises as suitable for the use intended by this Lease,
subject only to Landlord’s obligations to repair defective Work and to complete punchlist items as
described in Exhibit B attached hereto. Except as expressly provided to the contrary in
this Lease, in no event shall Tenant be entitled to compensation or any other damages or any other
remedy against Landlord in the event the Premises are not deemed suitable for Tenant’s use.
Landlord shall not be required, after possession of the Premises has been delivered to Tenant, to
make any repairs or improvements to the Premises, except as set forth in this Lease, and subject to
Landlord’s obligations to repair defective Work and to complete punchlist items as described in
Exhibit B attached hereto. Except for damage caused by casualty and condemnation
(which shall be governed by Section 25 and 26 below), and subject to normal wear and tear,
Landlord shall maintain in good order and repair and in a neat and clean first-class condition the
exterior walls, roof, common areas, foundation, structural portions, base Building mechanical,
electrical, plumbing, HVAC, sprinkler, life safety, and security systems, and any other
improvements



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owned by Landlord on the Property, subject to normal wear and tear and damage by casualty or
condemnation, provided such repairs are not occasioned by the negligence or willful misconduct of
the Tenant Indemnified Parties, or any of them, any guest or invitee of Tenant, or any subtenant or
occupant of the Premises.




     23. Repairs By Tenant. Except as described in Section 22 above, Tenant shall, at its
own cost and expense, maintain the Premises in good order and repair and in a neat and clean
first-class condition, including making all necessary repairs and replacements, subject to normal
wear and tear and damage by casualty or condemnation. Subject to the waivers set forth in Section
28(e) hereof, Tenant shall further, at its own cost and expense, repair or restore any damage or
injury to all or any part of the Building caused by the Tenant Indemnified Parties, or any of them,
any guest or invitee of Tenant, or any subtenant or occupant of the Premises, including but not
limited to any repairs or replacements necessitated by (i) the construction or installation of
improvements to the Premises by or on behalf of Tenant, other than the Work or any other
improvements constructed by Landlord, and (ii) the moving of any property into or out of the
Premises, except to the extent that any of the same are caused by the negligence or willful
misconduct of the Landlord Indemnified Parties, or any of them. If Tenant fails to make such
repairs or replacements promptly, Landlord may, at its option, upon prior reasonable notice to
Tenant (except in an emergency) make the required repairs and replacements and the reasonable
out-of-pocket costs of such repair or replacements shall be charged to Tenant as additional Rent
and shall become due and payable by Tenant with the monthly installment of Net Rent next due
hereunder.



     24. Alterations and Improvements/Liens.



          (a) Except for the Work to be constructed by Landlord pursuant to Exhibit B attached
hereto, and except for minor, decorative alterations which do not impact the Building structure or
systems, are not visible from outside the Premises, and do not cost in excess of $25,000.00 in the
aggregate in any consecutive twelve (12) month period, Tenant shall not make or allow to be made
any alterations, physical additions or improvements in or to the Premises without first obtaining
in writing Landlord’s written consent for such alterations or additions, which consent may be
granted or withheld in Landlord’s sole discretion if the alterations will impact the Building
structure or systems or will be visible from outside the Premises, but which consent shall not be
unreasonably withheld if the alterations will not impact the Building structure or systems and will
not be visible from outside the Premises. Upon Landlord’s reasonable request, Tenant will deliver
to Landlord plans and specifications for any proposed alterations, additions or improvements and
shall reimburse Landlord for Landlord’s reasonable out-of-pocket cost to review such plans. Any
alterations, physical additions or improvements shall at once become the property of Landlord;
provided, however, that Landlord, at its option, may require Tenant to remove any alterations,
additions or improvements in order to restore the Premises to the condition existing on the
Commencement Date, subject to normal wear and tear (but only if Landlord notified Tenant at the
time of Landlord’s consent to any such alterations, additions or improvements that Landlord would,
or expressly reserved the right to, require the removal thereof). All costs of any such
alterations, additions or improvements shall be borne by Tenant. All alterations, additions or
improvements shall be made in a good, first-class, workmanlike manner and in a manner that does not
disturb other tenants (i.e., any loud work must be performed during non-business hours) and Tenant
must maintain appropriate liability




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and builder’s risk insurance throughout the construction. Except to the extent that such
alterations, additions or improvements are performed by Landlord or Landlord’s contractors, Tenant
does hereby indemnify and hold Landlord harmless from and against any and all claims for damages or
death of persons or damage or destruction of property arising out of or relating to the performance
of any such alterations, additions or improvements made by or on behalf of Tenant, except to the
extent such claims arise from the negligence or willful misconduct of the Landlord Indemnified
Parties, or any of them. Under no circumstances shall Landlord be required to pay, during the Term
of this Lease and any extensions or renewals thereof, any ad valorem or Property tax on such alterations, additions or improvements, Tenant hereby
covenanting to pay all such taxes when they become due. In the event any alterations, additions,
improvements or repairs are to be performed by contractors or workmen other than Landlord’s
contractors or workmen, any such contractors or workmen must first be approved, in writing, by
Landlord (which approval will not be unreasonably withheld). Landlord agrees to assign to Tenant
any rights Landlord may have against the contractor with respect to any work performed by such
contractor in connection with improvements made by Landlord at the request of Tenant.




          (b) Nothing contained in this Lease shall authorize or empower Tenant to do any act which
shall in any way encumber Landlord’s title to the Building, Property, or Premises, nor in any way
subject Landlord’s title to any claims by way of lien or encumbrance whether claimed by operation
of law or by virtue of any expressed or implied contract of Tenant, and any claim to a lien upon
the Building or Premises arising from any act or omission of Tenant shall attach only against
Tenant’s interest and shall in all respects be subordinate to Landlord’s title to the Building,
Property, and Premises. If Tenant has not removed any such lien or encumbrance or (provided that
Tenant is contesting such lien or encumbrance) delivered to Landlord a title indemnity, bond,
letter of credit, or other security reasonably satisfactory to Landlord, within forty-five (45)
days after written notice to Tenant by Landlord, Landlord may pay the amount necessary to remove
such lien or encumbrance, without being responsible for making any investigation as to the
validity thereof, and the amount so paid shall be deemed additional Rent reserved under this Lease
due and payable forthwith.




     25. Destruction or Damage.



          (a) If the Building or the Premises are totally destroyed by storm, fire, earthquake, or other
casualty, or damaged to the extent that, in Landlord’s reasonable opinion, the damage cannot be
restored within one hundred eighty (180) days of the date Landlord provides Tenant written notice
of Landlord’s reasonable estimate of the time necessary to restore the damage, or if the damage is
not covered by standard “all risks” property insurance, or if the Landlord’s lender requires that
the insurance proceeds be applied to its loan, either Landlord or Tenant shall have the right to
terminate this Lease effective as of the date of such destruction or damage by written notice
delivered to the other party hereto on or before thirty (30) days following Landlord’s notice
described in the next sentence and Rent shall be accounted for as between Landlord and Tenant as of
the date of such casualty or damage. Landlord shall provide Tenant with written notice no later
than sixty (60) days following the date of such damage of the estimated time needed to restore,
whether the loss is covered by Landlord’s insurance coverage and whether or not Landlord’s lender
requires the insurance proceeds be applied to its loan.




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          (b) If the Premises are damaged by any such casualty or casualties but Landlord is not
entitled to or does not terminate this Lease as provided in subparagraph (a) above, this Lease
shall remain in full force and effect, Landlord shall notify Tenant in writing no later than sixty
(60) days after the date of such damage that such damage will be restored (and will include
Landlord’s good faith estimate of the date the restoration will be complete), in which case Rent
shall abate as to any portion of the Premises which is not usable for the operation of Tenant’s
business, as reasonably determined by Tenant (and so long as Tenant in fact ceases operating its
business in such portion of the Premises), for the period of such untenantability, and Landlord
shall promptly commence to diligently restore the Premises to substantially the same condition as
before such damage occurred as soon as practicable, whereupon full Rent shall recommence.




          (c) If such damage occurs within the last twelve (12) months of the Term, either party shall
have the right, upon delivery of written notice to the other party within thirty (30) days
following such damage, to cancel and terminate this Lease as of the date of such damage, provided,
however, that (i) Tenant may not elect to terminate this Lease if such damage was caused by the
intentional misconduct of the Tenant Indemnified Parties, or any of them, or any subtenant or
occupant of the Premises, and (ii) Landlord may not elect to terminate this Lease if such damage
was caused by the intentional misconduct of the Landlord Indemnified Parties, or any of them.




          (d) Tenant agrees that Landlord’s obligation to restore, and the abatement of Rent provided
herein, or Tenant’s right to terminate as above set forth in this Section 25, shall be Tenant’s
sole recourse as against Landlord or in connection with this Lease in the event of such damage, and
waives any other rights Tenant may have under any applicable Law to terminate the Lease by reason
of damage to the Premises or Property. If prior to any such election to terminate Tenant has
elected to extend the Term pursuant to the provisions of this Lease and such election may not then
according to its terms be rescinded or terminated, then for purposes of Section 25(c) hereof the
Term shall be deemed to expire on such extended date.




     26. Eminent Domain. If the whole of the Building or Premises, or such portion thereof
as will make the Building or Premises unusable in the reasonable judgment of Landlord (with respect
to the Building) or Tenant (with respect to the Premises) for their intended purposes, is condemned
or taken by any legally constituted authority for any public use or purpose, then in either of such
events, this Lease shall terminate and the Term hereby granted shall cease from that time when
possession thereof is taken by the condemning authorities, and Rent shall be accounted for as
between Landlord and Tenant as of such date. If a portion of the Building or Premises is so taken,
but not such amount as will make the Premises unusable for the operation of Tenant’s business in
the reasonable judgment of Tenant for the purposes herein leased, or if this Lease has not
terminated, this Lease shall continue in full force and effect and the Rent shall be reduced
prorata in proportion to the amount of the Premises so taken. Except as expressly permitted
hereunder, Tenant shall have no right or claim to any part of any award made to or received by
Landlord for such condemnation or taking, and all awards for such condemnation or taking shall be
made solely to Landlord; provided, however, that Tenant shall have the right to pursue any separate
award for loss of its equipment and trade fixtures and for moving expenses so long as such action
does not reduce the award to which Landlord is entitled.



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     27. Damage or Theft of Personal Property . All personal property brought into the
Premises shall be at the risk of the Tenant only and Landlord shall not be liable for theft thereof
or any damage thereto occasioned by any acts of co-tenants, or other occupants of the Building, or
any other person, except, with respect to damage to the Premises, as may be occasioned by the
negligence or willful misconduct of the Landlord Indemnified Parties, or any of them (but subject
to the insurance and waiver of subrogation provisions set forth in Section 28 below).



F. Insurance/Indemnities/Waiver/Estoppel.




     28. Insurance; Waivers.



          (a) Tenant covenants and agrees that from and after the date of delivery of the Premises from
Landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following
types of insurance, in the amounts specified and in the form hereinafter provided for:




               (i) Commercial General Liability (“CGL”) Insurance written on an occurrence basis,
covering the Premises and all operations of the Tenant in or about the Premises against claims for
bodily injury and property damage and to include contractual liability coverage insuring Tenant’s
indemnification obligations under this Lease, to be in combined single limits of not less than
$1,000,000 each occurrence for bodily injury and $500,000 for property damage, $1,000,000 for
personal injury, and to have general aggregate limits of not less than $2,000,000 (per location)
and Umbrella Liability Insurance in an amount not less than $3,000,000 for each policy year. The
general aggregate limits under the Commercial General Liability insurance policy or policies shall
apply separately to the Premises and to Tenant’s use thereof (and not to any other location or use
of Tenant) and such policy shall contain an endorsement to that effect. The certificate of
insurance evidencing the CGL form of policy shall specify all endorsements required herein and
shall specify on the face thereof that the limits of such policy apply separately to the Premises.



               (ii) Insurance covering all of the items included in Tenant’s leasehold improvements, heating,
ventilating and air conditioning equipment maintained by Tenant, trade fixtures,
merchandise and personal property from time to time in, on or upon the Premises, and
alterations, additions or changes made by Tenant pursuant to Section 24, in an amount not less than
one hundred percent (100%) of their full replacement value from time to time during the Term,
providing protection against perils included within the standard form of “all-risks” fire and
casualty insurance policy.



               (iii) Workers’ Compensation and Employer’s Liability insurance affording statutory coverage
and containing statutory limits with the Employer’s Liability portion thereof to have minimum
limits of $500,000.00.



          (b) All policies of the insurance provided for in Section 28(a) above shall be issued in form
acceptable to Landlord by insurance companies with a rating and financial size of not less than
A-VIII in the most current available “Best’s Insurance Reports”, and licensed to do business in the
state in which the Building is located. Each and every such policy:




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               (i) shall name Landlord, Landlord’s property manager and the Association as additional
insureds (as well as any mortgagee of Landlord and any other party having an interest in the
Property, as designated by Landlord from time to time), except with respect to the insurance
described in Section 28(a)(iii) above and insurance relating solely to Tenant’s personal property;



               (ii) shall (and a certificate thereof shall be delivered to Landlord at or prior to the
execution of the Lease) be delivered to Landlord, the Association, and any such other parties in
interest within thirty (30) days after delivery of possession of the Premises to Tenant and
thereafter within five (5) days after the inception (or renewal) of each new policy, and as often
as any such policy shall expire or terminate. Renewal or additional policies shall be procured and
maintained by Tenant in like manner and to like extent;



               (iii) shall contain a provision that the insurer will give to Landlord, the Association, and
such other parties in interest at least thirty (30) days notice in writing (and ten days in the
case of non-payment) in advance of any material change, cancellation, termination or lapse, or the
effective date of any reduction in the amounts of insurance; and



               (iv) shall be written as a primary policy which does not contribute to and is not in excess of
coverage which Landlord may carry.



          (c) Any insurance provided for in Section 28(a) may be maintained by means of a policy or
policies of blanket insurance, covering additional items or locations or insureds, provided,
however, that:




               (i) Landlord, Landlord’s property manager, the Association, and any other parties in interest
from time to time designated by Landlord to Tenant shall be named as an additional insured
thereunder as its interest may appear;



               (ii) the coverage afforded Landlord and any such other parties in interest will not be reduced
or diminished by reason of the use of such blanket policy of insurance; and



               (iii) the requirements set forth in this Section 28 are otherwise
satisfied.



          (d) During the Term hereof, Landlord shall in a manner comparable to other comparable office
buildings in the commercial market where the Building is located keep in effect (i) commercial
property insurance for the full replacement value from time to time during the Term of the
Building, its fixtures and equipment, and rent loss insurance for a period and amount of not less
than one (1) year of rent (such commercial property insurance policy shall, at a minimum, cover the
perils insured under the ISO special causes of loss form which provides “all risk” coverage, and
include replacement cost
coverage), and (ii) a policy or policies of commercial general liability insurance insuring
against liability arising out of the risks of death, bodily injury, property damage and personal
injury liability with respect to the Building and Property.




          (e) Notwithstanding anything to the contrary set forth hereinabove, Landlord and Tenant do
hereby waive any and all claims against one another for damage to or destruction of real or
personal property to the extent such damage or destruction can be covered by “all




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risks” property insurance of the type described in Section 28(a)(ii) and Section 28(d)(i) above.
The risk to be borne by each party shall also include the satisfaction of any deductible amounts
required to be paid under the applicable “all risks” fire and casualty insurance carried by the
party whose property is damaged, and each party agrees that the other party shall not be
responsible for satisfaction of such deductible. These waivers shall apply if the damage would
have been covered by a customary “all risks” insurance policy, even if the party fails to obtain
such coverage. The intent of this provision is that each party shall look solely to its insurance
with respect to property damage or destruction which can be covered by “all risks” insurance of the
type described in Section 28(a)(ii) and Section 28(d)(i). Each such policy shall include a waiver
of all rights of subrogation by the insurance carrier against the other party, its agents and
employees with respect to property damage covered by the applicable “all risks” fire and casualty
insurance policy.




          (f) Notwithstanding anything herein to the contrary, it is acknowledged and agreed that
Landlord has advised (but has not required) Tenant to obtain a standard form policy of Business
Interruption Insurance equal to not less than fifty percent (50%) of the estimated gross earnings
(as defined in the standard form of business interruption insurance policy) of Tenant at the
Premises issued on an “all risks” basis (or its equivalent ), and any failure or refusal of Tenant
to obtain such standard form policy of Business Interruption Insurance issued on an “all risks”
basis (or its equivalent) at such amount shall be at Tenant’s sole risk, and in no event shall
Landlord have any liability or responsibility whatsoever for, nor shall Rent payable hereunder
abate in connection with, matters or occurrences which would or should have been covered under such
standard form policy of Business Interruption Insurance issued on an “all risks” basis (or its
equivalent) had Tenant obtained and/or maintained the same.




     29. Indemnities. Tenant does hereby indemnify and save harmless the Landlord
Indemnified Parties, and each of them, from and against (i) all claims for damages to persons or
property which are caused anywhere in the Building or on the Property by the negligence or willful
misconduct of the Tenant Indemnified Parties, or any of them, any guest or invitee of Tenant, or
any subtenant or occupant of the Premises, or which occur in the Premises (or arise out of actions
taking place in the Premises), except to the extent that such damage is caused by the negligence or
willful misconduct of the Landlord Indemnified Parties, or any of them, and (ii) any and all
claims, damages, losses, liabilities, fines, penalties, forfeitures, and expenses (including
without limitation court costs and attorneys’ fees) arising from or related to any breach of
Tenant’s representations, certification, and warranties under Section 61 hereof. Landlord does
hereby indemnify and hold harmless the Tenant Indemnified Parties, and each of them, from and
against all claims for damage to persons or property which are caused anywhere in the Building or
on the Property by the negligence or willful misconduct of the Landlord Indemnified Parties, or any
of them, or which occur in the common areas of the Building, except to the extent that such damage
is caused by the negligence or willful misconduct of the Tenant Indemnified Parties, or any of
them, any guest or invitee of Tenant, or any subtenant or occupant of the Premises. The
indemnities set forth hereinabove shall include the application to pay reasonable expenses incurred
by the indemnified party, including, without limitation, reasonable, actually incurred attorney’s
fees. The indemnities contained herein do not override the waivers contained in Section 28(e)
above.



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     30. Acceptance and Waiver. Except to the extent caused by the negligence or willful
misconduct of the Landlord Indemnified Parties, or any of them (but subject to the insurance
provisions in Section 28 above), Landlord shall not be liable to the Tenant Indemnified Parties, or
any of them, any guest or invitee of Tenant, or any subtenant or occupant of the Premises for any
damage caused to any of them due to the Building or any part or appurtenances thereof being
improperly constructed or being or becoming out of repair, or arising from the leaking of gas,
water, sewer or steam pipes, or from electricity,
but Tenant, by moving into the Premises and taking possession thereof, shall accept, and shall
be held to have accepted the Premises as suitable for the purposes for which the same are leased,
and shall accept and shall be held to have accepted the Building and every appurtenances thereof,
and Tenant by said act waives any and all defects therein, subject only to Landlord’s obligations
to repair defective Work and to complete punchlist items as described in Exhibit B attached
hereto; provided, however, that this Section shall not preclude Tenant from seeking recovery from
any third party responsible for such damage or injury.



     31. Estoppel. Tenant shall, from time to time, upon not less than ten (10) business
days prior written request by Landlord, execute, acknowledge and deliver to Landlord a written
statement certifying that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and stating the
modifications), the dates to which the Rent has been paid, that Tenant is not in default hereunder
and whether Tenant has any offsets or defenses against Landlord under this Lease, and whether or
not to the best of Tenant’s knowledge Landlord is in default hereunder (and if so, specifying the
nature of the default), it being intended that any such statement delivered pursuant to this
paragraph may be relied upon by a prospective purchaser of Landlord’s interest or by a mortgagee of
Landlord’s interest or assignee of any security deed upon Landlord’s interest in the Premises.
Landlord shall, from time to time, upon not less than ten (10) business days prior written request
by Tenant, execute, acknowledge and deliver to Tenant a written statement certifying that this
Lease is unmodified and in full force and effect (or, if there have been modifications, that the
same is in full force and effect as modified and stating the modifications), the dates to which the
Rent has been paid, that Landlord is not in default hereunder and whether Landlord has any offsets
or defenses against Tenant under this Lease, and whether or not to the best of Landlord’s knowledge
Tenant is in default hereunder (and if so, specifying the nature of the default), it being intended
that any such statement delivered pursuant to this paragraph may be relied upon by a prospective
lender to Tenant.



G. Default/Remedies/Surrender/Holding Over.




     32. Notices. Any notice which is required or permitted to be given by either party
under this Lease shall be in writing and must be given only by certified mail, return receipt
requested, by hand delivery or by nationally recognized overnight courier service at the addresses
set forth in Paragraph 12 of the Basic Lease Provisions. Each party shall further use reasonable
efforts to provide the other party with a courtesy copy of any notice by fax and by electronic
mail. Any such notice shall be deemed given on the earlier of two business days after the date sent
in accordance with one of the permitted methods described above or the date of actual receipt
thereof, provided that receipt of notice solely by fax or electronic mail shall not be deemed to be
delivery of notice hereunder. The time period for responding to any such notice shall begin on the
date the notice is actually received, but refusal to accept delivery or inability to



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accomplish delivery because the party can no longer be found at the then current notice address,
shall be deemed receipt. Either party may change its notice address by notice to the other party in
accordance with the terms of this Section 32. The initial notice addresses for each party are set
forth in the Basic Lease Provisions.




     33. Abandonment of Premises. Tenant agrees not to abandon or vacate the Premises
during the Term of this Lease. If Tenant does abandon or vacate the Premises for more than ninety
(90) days, Landlord may terminate this Lease, by written notice to Tenant at any time prior to
Tenant reoccupying the Premises, but such termination shall not entitle Landlord to pursue any
other remedies unless an uncured Default then exists, in which case Landlord may pursue any and all
remedies provided by this Lease, at law or in equity.



     34. Default. If Tenant shall default in the payment of Rent herein reserved when due
(provided, in the case of the first such failure in any consecutive twelve (12) month period only,
such failure shall not constitute a default hereunder unless Tenant shall fail to pay such Rent
within five (5) days following written notice from Landlord); or if Tenant shall be in default in
performing any of the terms or provisions of this Lease other than the provisions requiring the
payment of Rent, and fails to cure such non-monetary default within thirty (30) days after written
notice of such default is given to Tenant by Landlord,
provided however that if such non-monetary default is of such a nature that it
cannot through the exercise of diligent and reasonable efforts be cured within thirty (30) days,
then Tenant shall not be in default in such instance if Tenant promptly commences and diligently
pursues the cure of such non-monetary default to completion as soon as possible and in all events
within ninety (90) days after such initial notice; or if Tenant is adjudicated a bankrupt; or if a
permanent receiver is appointed for Tenant’s property and such receiver is not removed within sixty
(60) days after appointment thereof; or if, whether voluntarily or involuntarily, Tenant takes
advantage of any debtor relief proceedings under any present or future laws, whereby the Rent or
any part thereof, is, or is proposed to be, reduced or payment thereof deferred; or if Tenant’s
effects should be levied upon or attached and such levy or attachment is not satisfied or dissolved
within thirty (30) days after such levy or attachment; or, if Tenant is an individual, in the event
of the death of the individual and the failure of the executor, administrator or personal
representative of the estate of the deceased individual to have assigned the Lease within three (3)
months after such death to an assignee approved by Landlord; then, and in any of such events,
Landlord, at its option, may exercise any or all of the remedies set forth in Section 35 below.



     35. Landlord’ s Remedies. Upon the occurrence of any default set forth in Section 34
above which is not cured by Tenant within the applicable cure period provided therein, if any,
Landlord may exercise all or any of the following remedies:



          (a) terminate this Lease by giving Tenant written notice of termination, in which event this
Lease shall terminate on the date specified in such notice and all rights of Tenant under this
Lease shall expire and terminate as of such date, Tenant shall remain liable for all obligations
under this Lease up to the date of such termination and Tenant shall surrender the Premises to
Landlord on the date specified in such notice; and if Tenant fails to so surrender, Landlord shall
have the right, without notice and to the extent permitted by applicable Law, to enter upon and
take possession of the Premises and to expel and remove Tenant and its effects without being liable
for prosecution or any claim of damages therefor;




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          (b) terminate this Lease as provided in the immediately preceding subsection and recover from
Tenant all damages Landlord may incur by reason of Tenant’s default, including without limitation,
the then present value (discounted at a rate equal to the then issued treasury bill having a
maturity approximately equal to the remaining Term of this Lease had such default not occurred) of
(i) the total Rent which would have been payable hereunder by Tenant for the period beginning with
the day following the date of such termination and ending with the Expiration Date of the Term as
originally scheduled hereunder, minus (ii) the aggregate reasonable rental value of the Premises
for the same period (as determined by a real estate broker selected by Landlord who is licensed in
the state where the Building is located, who has at least ten (10) years experience
immediately prior to the date in question in evaluating commercial office space, taking into
account all relevant factors including, without limitation, the length of the remaining Term, the
then current market conditions in the general area, the likelihood of reletting for a period equal
to the remainder of the Term, net effective rates then being obtained by landlords for similar type
space in similar buildings in the general area, vacancy levels in the general area, current levels
of new construction in the general area and how that would affect vacancy and rental rates during
the period equal to the remainder of the Term and inflation), plus (iii) the costs of recovering
the Premises, and all other expenses incurred by Landlord due to Tenant’s default, including,
without limitation, reasonable attorneys’ fees, plus (iv) the unpaid Rent earned as of the date of
termination, plus interest, all of which sum shall be immediately due and payable by Tenant to
Landlord;




          (c) without terminating this Lease, and without notice to Tenant, Landlord may in its own
name, but as agent for Tenant enter into and take possession of the Premises and re-let the
Premises, or any portion thereof, as agent of Tenant, upon any terms and conditions as Landlord
may deem necessary or desirable (Landlord shall use commercially reasonable efforts to mitigate
its damages hereunder to the extent required by applicable Law). Upon any such re-letting, all
rentals received by Landlord from such re-letting shall be applied first to the costs incurred by
Landlord in accomplishing any such re-letting, and thereafter shall be applied to the Rent owed
by Tenant to Landlord during the remainder of the Term of this Lease and Tenant shall pay any
deficiency between the remaining Rent due hereunder and the amount received by such re-letting as
and when due hereunder;




          (d) allow the Premises to remain unoccupied (so long as Landlord uses commercially
reasonable efforts to mitigate its damages in accordance with applicable Law) and collect Rent
from Tenant as it becomes due; or




          (e) pursue such other remedies as are available at law or in equity.




     36. Service of Notice. Except as otherwise provided by law, Tenant hereby appoints
as its agent to receive the service of all dispossessory or distraint proceedings and notices
thereunder, Tenant’s Chief Financial Officer, being the person in charge of or occupying the
Premises at the time of such proceeding or notice; and if no person be in charge or occupying the
Premises, then such service may be made by attaching the same to the front entrance of the
Premises.



     37. Advertising. Landlord may advertise the Premises as being “For Rent” at any time
following a default by Tenant which results in Landlord taking possession of the Premises



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in accordance with the terms and provisions of this Lease, and at any time within one hundred
eighty (180) days prior to the expiration, cancellation or termination of this Lease for any
reason, and during any such periods Landlord may exhibit the Premises to prospective tenants upon
prior reasonable notice to Tenant. Landlord shall use commercially reasonable efforts to minimize
any interference with Tenant’s use and occupancy of the Premises resulting from Landlord’s
activities hereunder.




     38. Surrender of Premises. Upon the expiration or earlier termination of this Lease
or Tenant’s right to possession hereunder, Tenant at once shall surrender the Premises, and the
keys thereto, to Landlord “broom clean” and in substantially the same condition as on the
Commencement Date hereof, normal wear and tear and damage by casualty or condemnation excepted, and
Tenant shall remove all of its personal property therefrom. Subject to the terms and provisions of
Section 24 hereof, Tenant shall, if directed to do so by Landlord, remove all alterations,
additions, and improvements which have been made therein by or on behalf of Tenant and restore the
Premises to its original condition prior to the construction of any such alterations, additions,
and improvements, normal wear and tear and damage by casualty or condemnation excepted. Landlord
may forthwith re-enter the Premises and repossess itself thereof and remove all persons and effects
therefrom, using such force as may be permitted by applicable Law. Tenant’s obligation to observe
or perform these covenants shall survive the expiration or other termination of the Term of this
Lease. If the last day of the Term of this Lease or any renewal falls on a Saturday, Sunday or a
legal holiday, this Lease shall expire on the business day immediately preceding.



     39. [Intentionally Omitted]



     40. Removal of Fixtures. Tenant may, prior to the expiration of the Term of this
Lease, or any extension thereof, remove any fixtures and equipment which Tenant has placed in the
Premises which can be removed without significant damage to the Premises, provided Tenant promptly
repairs all damages to the Premises caused by such removal.



     41. Holding Over. In the event Tenant remains in possession of the Premises after the
expiration of the Term hereof, or of any renewal term, Tenant shall be a tenant at sufferance and
may be evicted by Landlord without any notice (except such notice as may be required by applicable
Law), and such tenancy shall be subject to all the provisions hereof, except that the monthly
rental shall be at 150% of the monthly Net Rent and Additional Rent payable hereunder upon such
expiration of the Term hereof, or of any renewal term, which monthly rental shall increase from
150% to 200% of such monthly Net Rent and Additional Rent if such holding over continues for more
than thirty (30) days. In addition, if such holding over continues for more than thirty (30) days,
Tenant shall also be liable for any and all other damages Landlord suffers as a result of such
holdover including, without limitation, the loss of a prospective tenant for such space; provided,
Tenant shall not be liable for damages arising in connection with the loss of a prospective tenant
for such space unless Landlord shall have first notified Tenant in writing that Landlord has
identified a prospective tenant for such space, and Tenant has continued to hold
over beyond the date set forth in such notice. There shall be no renewal of this Lease by
operation of law or otherwise. Nothing in this Section 41 shall be construed as a consent by
Landlord for any holding over by Tenant after the expiration of the Term hereof, or any renewal
term.




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     42. Attorney’s Fees. In the event of any action, suit or proceeding brought by
Landlord or Tenant to enforce any of the other’s covenants and agreements in this Lease, the
prevailing party shall be entitled to recover from the non-prevailing party any costs, expenses and
reasonable attorneys’ fees incurred in connection with such action, suit or proceeding.



     43. Mortgagee’ s Rights.



          (a) Tenant agrees that this Lease shall be subject and subordinate (i) to any mortgage, deed
of trust or other security interest now encumbering the Property and to all advances which may be
hereafter made, to the full extent of all debts and charges secured thereby and to all renewals or
extensions of any part thereof, and to any mortgage, deed of trust or other security interest which
any owner of the Property may hereafter, at any time, elect to place on the Property; (ii) to any
assignment of Landlord’s interest in the leases and rents from the Building or Property which
includes the Lease which now exists or which any owner of the Property may hereafter, at any time,
elect to place on the Property; and (iii) to any Uniform Commercial Code Financing Statement
covering the personal property rights of Landlord or any owner of the Property which now exists or
any owner of the Property may hereafter, at any time, elect to place on the foregoing personal
property (all of the foregoing instruments set forth in (i), (ii) and (iii) above being hereafter
collectively referred to as “Security Documents”). Tenant agrees upon request of the holder
of any Security Documents (“Holder”) to hereafter execute any documents which the counsel
for Landlord or Holder may reasonably deem necessary to evidence the subordination of the Lease to
the Security Documents. If Tenant fails to execute any such requested documents within ten (10)
business days after request therefor, Landlord or Holder is hereby empowered to execute such
documents in the name of Tenant evidencing such subordination, as the act and deed of Tenant, and
this authority is hereby declared to be coupled with an interest and not revocable.




          (b) In the event of a foreclosure pursuant to any Security Documents, Tenant shall thereafter
remain bound pursuant to the terms of this Lease as if a new and identical Lease between the
purchaser at such foreclosure (“Purchaser”), as landlord, and Tenant, as tenant, had been
entered into for the remainder of the Term hereof and Tenant shall attorn to the Purchaser upon
such foreclosure sale and shall recognize such Purchaser as the Landlord under the Lease. Such
attornment shall be effective and self-operative without the execution of any further instrument on
the part of any of the parties hereto. Tenant agrees, however, to execute and deliver at any time
and from time to time, upon the request of Landlord or of Holder, any instrument or certificate
that may be necessary or appropriate in any such foreclosure proceeding or otherwise to evidence
such attornment.




          (c) If the Holder of any Security Document or the Purchaser upon the foreclosure of any of the
Security Documents shall succeed to the interest of Landlord under the Lease, such Holder or
Purchaser shall have the same remedies, by entry, action or otherwise for the non-performance of
any agreement contained in the Lease, for the recovery of Rent or for any other default or event of
default hereunder that Landlord had or would have had if any such Holder or Purchaser had not
succeeded to the interest of Landlord. Any such Holder or Purchaser which succeeds to the interest
of Landlord hereunder, shall not be (a) liable for any act or omission of any prior Landlord
(including Landlord) unless such act or omission is of a continuing nature; or (b) subject to any
offsets or defenses which Tenant might have against any




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prior Landlord (including Landlord); or (c) bound by any Rent which Tenant might have paid for more
than the current month to any prior Landlord (including Landlord); or (d) bound by any amendment or
modification of the Lease made without its consent. Landlord shall use commercially reasonable
efforts to notify Tenant in writing of any such Holder or Purchaser.




          (d) Notwithstanding anything to the contrary set forth in this Section 43, the Holder of any
Security Documents shall have the right, at any time, to elect to make this Lease superior and
prior to its Security Document. No documentation, other than written notice to Tenant, shall be
required to evidence that the Lease has been made superior and prior to such Security Documents,
but Tenant hereby agrees to execute any documents reasonably requested by Landlord or Holder to
acknowledge that the Lease has been made superior and prior to the Security Documents.




H. Landlord Entry/Relocation/Assignment and Subletting.




     44. Entering Premises. Landlord may enter the Premises at reasonable hours provided
that Landlord’s entry shall not unreasonably interrupt Tenant’s business operations and that
reasonable prior notice is given (except in the event of an emergency, in which case no prior
notice shall be required): (a) to make repairs, perform maintenance and provide other services
described in Section 22 above (no prior notice is required to provide routine services) which
Landlord is obligated to make to the Premises or the Building pursuant to the terms of this Lease
or to the other premises within the Building pursuant to the leases of other tenants; (b) to
inspect the Premises in order to confirm that Tenant is complying with all of the terms and
conditions of this Lease and with the rules and regulations hereof, (c) to remove from the Premises
any articles or signs kept or exhibited therein in violation of the terms hereof; (d) to run pipes,
conduits, ducts, wiring, cabling or any other mechanical, electrical, plumbing or HVAC equipment
through the areas behind the walls, below the floors or above the drop ceilings in the Premises and
elsewhere in the Building; and (e) to exercise any other right or perform any other obligation that
Landlord has under this Lease. Landlord shall be allowed to take all material into and upon the
Premises that may be required to make any repairs, improvements and additions, or any alterations,
without in any way being deemed or held guilty of trespass and without constituting a constructive
eviction of Tenant; provided, Landlord shall repair any damages to the Premises to the extent
caused by Landlord’s activities under this Section 44. The Rent reserved herein shall not abate
while such repairs, alterations or additions are being made and Tenant shall not be entitled to
maintain a set-off or counterclaim for damages against Landlord by reason of loss from interruption
to the business of Tenant because of the prosecution of any such work; provided, Landlord shall
repair any damages to the Premises to the extent caused by Landlord’s activities under this Section
44. Unless any work would unreasonably interfere with Tenant’s use of the Premises if performed
during business hours, all such repairs, decorations, additions and improvements shall be done
during ordinary business hours, or, if any such work is at the request of Tenant to be done during
any other hours, the Tenant shall pay all overtime and other extra costs.



     45. [Intentionally Omitted]



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     46. Assignment and Subletting.



          (a) Except with respect to an Affiliate (as hereinafter defined), Tenant may not, without the
prior written consent of Landlord, which consent shall not be unreasonably withheld, assign this
Lease or any interest hereunder, or sublet the Premises or any part thereof, or permit the use of
the Premises by any party other than Tenant. Without limitation, and notwithstanding any provisions
of this Section 46 to the contrary, it shall be deemed reasonable for Landlord to withhold its
consent to a proposed assignment or sublease hereunder if: (i) the transferee is of a character or
reputation or engaged in a business which is not consistent with the quality or nature of the
Building or other tenants of the Building; (ii) the transferee intends to use the Premises or any
portion thereof for purposes which are not permitted under this Lease; (iii) the transferee is a
governmental entity (or any agency or instrumentality thereof); (iv) the proposed transferee is an
occupant of the Building or has negotiated to lease space in the Building from Landlord during the
prior twelve (12) month period; (v) the proposed transferee is not financially able to perform the
obligations to be assumed by such transferee in connection with the proposed assignment or
sublease; (vi) the transfer involves a partial or collateral assignment, or a mortgage, pledge,
hypothecation, or other encumbrance or lien on this Lease, or a transfer by operation of law; (vii)
the proposed assignment or sublease would cause Landlord to be in violation of any laws or any
other lease, mortgage or agreement to which Landlord is a party, would give a tenant of the
Building a right to cancel its lease, or the proposed assignment or sublease provides for a rental
or other payment for the leasing, use, occupancy, or utilization of all or any portion of the
Premises based, in whole or in part, on the income or profits derived by any person from the
property so leased, used, occupied, or utilized, other than an amount based on a fixed percentage
or percentages of gross receipts or sales; or (viii) Tenant has committed and failed to cure a
default under this Lease, which default remains uncured at the time of Tenant’s request for such
assignment or sublease.




          (b) Except with respect to an Affiliate, in the event that Tenant is a corporation or entity
other than an individual, any transfer of a majority or controlling interest in Tenant (whether by
stock transfer, merger, operation of law or otherwise) shall be considered an assignment for
purposes of this paragraph and shall require Landlord’s prior written consent (except to the extent
that Alma Lasers, Inc. remains the named tenant hereunder, in which event no assignment shall be
deemed to have occurred). Consent to one assignment or sublease shall not destroy or waive this
provision, and all later assignments and subleases shall likewise be made only upon the prior
written consent of Landlord. Subtenants or assignees shall become liable to Landlord for all
obligations of Tenant hereunder, without relieving Tenant’s liability hereunder and, in the event
of any default by Tenant under this Lease, Landlord may, at its option, but without any obligation
to do so, elect to treat such sublease or assignment as a direct Lease with Landlord and collect
rent directly from the subtenant. In addition, upon any request by Tenant for Landlord’s consent to
an assignment or sublease (other than an assignment or sublease to an Affiliate), Landlord may
elect to terminate this Lease and recapture all of the Premises (in the event of an assignment
request) or the applicable portion of the Premises (in the event of a subleasing request);
provided, however, if Landlord notifies Tenant that Landlord elects to exercise this recapture
right, Tenant may, within five (5) business days of its receipt of Landlord’s recapture notice,
notify Landlord that Tenant withdraws its request to sublease or assign, in which case Tenant shall
continue to lease all of the Premises, subject to the terms of this Lease and Landlord’s recapture
notice shall be null and void.




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          (c) Except with respect to an Affiliate, if Tenant desires to assign or sublease, Tenant shall
provide written notice to Landlord describing the proposed transaction in detail and providing all
documentation (including detailed financial information for the proposed assignee or subtenant)
reasonably necessary to permit Landlord to evaluate the proposed transaction.
Landlord shall notify Tenant within fifteen (15) days after Landlord’s receipt of such notice
whether Landlord elects to exercise Landlord’s recapture right and, if not, whether Landlord
consents to the requested assignment or sublease. If Landlord fails to respond within such 15-day
period, Landlord will be deemed not to have elected to recapture and to have consented to the
assignment or sublease. If Landlord does consent or is deemed to have consented to any assignment
or sublease request and the assignee or subtenant pays to Tenant in connection with such
assignment or sublease an amount in excess of the Rent due under this Lease (after deducting
Tenant’s reasonable and actual out-of-pocket expenses in obtaining such assignment or sublease,
including alterations, broker’s commissions , attorneys’ fees, and any tenant improvements ,
amortized in equal monthly installments at a rate of eight percent (8%) per annum over the then
remainder of the Term), Tenant shall pay fifty percent (50%) of such excess to Landlord as and when
the monthly payments are received by Tenant. Any subletting or assignment hereunder shall not
release or discharge Tenant of or from any liability, whether past, present or future, under this
Lease, and Tenant shall continue fully liable thereunder. Any subtenant or subtenants or assignee
shall agree in a form reasonably satisfactory to Landlord to comply with and be bound by all of the
terms, covenants, conditions , provisions and agreements of this Lease to the extent of the space
sublet or assigned , and Tenant shall deliver to Landlord promptly after execution, an executed
copy of each such sublease or assignment and an agreement of compliance by each such subtenant or
assignee. Tenant agrees to pay to Landlord all reasonable out-of-pocket costs incurred by Landlord
(including fees paid to consultants (as may be required) and attorneys) in connection with any
request by Tenant for Landlord to consent to any assignment or subletting by Tenant, which costs
shall not exceed the sum of Two Thousand and No/100 Dollars ($2,000.00) per request in the case of
routine requests not requiring extended administrative review or attorney negotiation.




          (d) Notwithstanding anything in this Section 46 to the contrary, Tenant may, without the prior
consent of Landlord, assign or sublet all or any portion of the Premises to any Affiliate (as
hereinafter defined) of Tenant, provided that (1) Tenant continues to be fully liable hereunder,
(2) Tenant is not in default beyond any applicable notice and cure period under this Lease at the
time of giving notice thereof or on the effective date of such sublease or assignment, (3) Tenant
delivers to Landlord copies of such assignment or sublease and information establishing that the
proposed assignee or sublessee is an Affiliate, and (4) Tenant notifies Landlord in writing thereof
within ten (10) business days following the effective date of the proposed assignment or sublease
and otherwise complies with the terms and provisions hereof. For purposes of the foregoing,
“Affiliate” shall mean: (i) any subsidiary of Tenant; (ii) any parent company of Tenant;
(iii) any entity which directly or indirectly controls, is controlled by, or is under common
control with Tenant; or (iv) any entity which acquires or succeeds to all or substantially all of
the assets or business of Tenant (including, without limitation, all rights and obligations of
Tenant under this Lease); provided, in each case, Landlord is reasonably satisfied with the
financial condition of such entity (which financial condition shall be deemed reasonably
satisfactory for purposes hereof if such Affiliate has a net worth greater than or equal to the net
worth of Tenant as of the date of this Lease). The term “control” (including the terms
“controlling”, “controlled by” and “under common control with”) shall mean the possession,




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direct or indirect, of the power to direct or cause the direction of the management and policies of
an entity, whether through the ownership of voting securities, by contract or otherwise.




I. Sale of Building; Limitation of Liability.




     47. Sale. In the event the original Landlord hereunder, or any successor owner of the
Building, shall sell or convey the Building, all liabilities and obligations on the part of the
original Landlord, or such successor owner, under this Lease accruing thereafter shall terminate,
and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant
agrees to attorn to such new owner.



     48. Limitation of Liability. Landlord’s obligations and liability with respect to this
Lease shall be limited solely to Landlord’s interest in the Building, as such interest is
constituted from time to time, and neither Landlord nor any partner of Landlord, or any officer,
director, shareholder, or partner or member of any partner or member of Landlord, shall have any
individual or personal liability whatsoever with respect to this Lease. Except as otherwise
provided by applicable Law, Landlord agrees that no officer, director, shareholder, or partner or
member of any partner or member of Tenant, shall have any individual or personal liability
whatsoever with respect to this Lease.



J. Brokers/Construction/Authority.




     49. Broker Disclosure. The Tenant’s Broker identified in the Basic Lease Provisions,
who is a real estate broker licensed in the State where the Building is located, has acted as agent
for Tenant in this transaction and is to be paid a commission by Landlord pursuant to a separate
agreement. Landlord represents that Landlord has dealt with no other broker other than the
broker(s) identified herein. Landlord agrees that, if any other broker makes a claim for a
commission based upon the actions of Landlord, Landlord shall indemnify, defend and hold Tenant
harmless from any such claim. Tenant represents that Tenant has dealt with no broker other than the
broker(s) identified herein. Tenant agrees that, if any other broker makes a claim for a commission
based upon the actions of Tenant, Tenant shall indemnify, defend and hold Landlord harmless from
any such claim.



     50. Definitions. “Landlord,” as used in this Lease, shall include the party named in
the first paragraph hereof, its assigns and successors in title to the Premises. “Tenant” shall
include the party named in the first paragraph hereof, its successors, and, if this Lease shall be
validly assigned or sublet, shall also include Tenant’s assignees or subtenants, as to the
Premises, or portion thereof, covered by such assignment or sublease. “Landlord” and “Tenant”
include male and female, singular and plural, corporation, partnership, limited liability company
(and the officers, members, partners, employees or agents of any such entities) or individual, as
may fit the particular parties.



     51. Construction of this Agreement. No failure of either Landlord or Tenant to
exercise any power given such party hereunder, or to insist upon strict compliance by the other
party hereto of its obligations hereunder, and no custom or practice of the parties at variance
with the terms hereof shall constitute a waiver of such party’s right to demand exact compliance
with the terms hereof. Time is of the essence of this Lease. No inference in favor of or against
any



-30-









 




party should be drawn from the fact that such party drafted or participated in the drafting of this
Lease or that such provisions have been drafted on behalf of such party.




     52. No Estate In Land. This contract shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord; Tenant has only a right
of use, not subject to levy or sale, and not assignable by Tenant except as provided herein.



     53. Paragraph Titles; Severability . The paragraph titles used herein are not to be
considered a substantive part of this Lease, but merely descriptive aids to identify the paragraph
to which they refer. Use of the masculine gender includes the feminine and neuter, and vice versa,
where necessary to impart contextual continuity. If any paragraph or provision herein is held
invalid by a court of competent jurisdiction, all other paragraphs or severable provisions of this
Lease shall not be affected thereby, but shall remain in full force and effect.



     54. Cumulative Rights. All rights, powers and privileges conferred hereunder upon the
parties hereto shall be cumulative but not restrictive to those given by law.



     55. Waiver of Jury Trial. Landlord and Tenant shall and do hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant’s use or occupancy of the Premises, or any statutory remedy.



     56. Entire Agreement. This Lease contains the entire agreement of the parties and no
representations, inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect.



     57. Submission of Agreement. The submission and negotiation of this Lease shall not be
deemed an offer to enter the same by Landlord, but the solicitation of such an offer by Tenant.
Tenant agrees that its execution of this Lease constitutes a firm offer to enter the same which may
not be withdrawn for a period of ten (10) business days after delivery to Landlord. During such
period and in reliance on the foregoing, Landlord may, at Landlord’s option, deposit any Security
Deposit and Rent, proceed with any plans, specifications, alterations or improvements, and permit
Tenant to enter the Premises, but such acts shall not be deemed an acceptance of Tenant’s offer to
enter this Lease, and such acceptance shall be evidenced only by Landlord signing and delivering
this Lease to Tenant.



     58. Authority. If Tenant or Landlord executes this Lease as a corporation, limited
partnership, limited liability company or any other type of entity, each of the persons executing
this Lease on behalf of Tenant or Landlord, as the case may be, does hereby personally represent
and warrant that Tenant or Landlord, as the case may be, is a duly organized and validly existing
corporation, limited partnership, limited liability company or other type of entity, that Tenant or
Landlord, as the case may be, is qualified to do business in the state where the Building is
located, that Tenant or Landlord, as the case may be, has full right, power and authority to enter
into this Lease, and that each person signing on behalf of Tenant or Landlord, as the case may be,
is authorized to do so. In the event any such representation and warranty is false, all persons who
execute this Lease shall be individually, jointly and severally, liable as Tenant or Landlord,



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as the case may be. Upon Landlord’s or Tenant’s request, as the case may be, the requested party
shall provide to the requesting party evidence reasonably satisfactory to the requesting party
confirming the foregoing representations and warranties.




     59. Guaranty. Tenant shall cause the Guarantor identified in the Basic Lease
Provisions, if any, to execute a Guaranty of the obligations of Tenant under this Lease in the form
of Exhibit F attached hereto and made a part hereof.



K. Special Stipulations.




     60.  Special Stipulations. The Special Stipulations, if any, attached hereto as
Exhibit G are modifications to the terms of this Lease and, if conflicting, such Special
Stipulations shall control in the event of any conflict with the other provisions of this Lease or
any exhibits hereto.



     61. OFAC and Anti-Money Laundering Compliance Certifications. Tenant hereby
represents, certifies and warrants to Landlord , to the actual knowledge of Tenant, as follows: (i)
Tenant is not named by, and is not acting, directly or indirectly, for or on behalf of any person,
group, entity or nation named by, any Executive Order, including without limitation Executive Order
13224, or the United States Treasury Department as a terrorist , “ Specially Designated National
and Blocked Person ,” or other banned or blocked person , entity, nation or transaction pursuant to
any law, order, rule or regulation that is enacted , enforced or administered by the Office of
Foreign Assets Control (“OFAC”); (ii) Tenant is not engaged in this transaction, directly
or indirectly, for or on behalf of, or instigating or facilitating this transaction, directly or
indirectly on behalf of, any such person , group, entity or nation; and (iii) none of the proceeds
used to pay Rent have been or will be derived from a “specified unlawful activity” as defined in,
and Tenant is not otherwise in violation of, the Money Laundering Control Act of 1986, as amended,
or any other applicable laws regarding money laundering activities . Furthermore, Tenant agrees to
immediately notify Landlord if Tenant was, is, or in the future becomes a “senior foreign political
figure,” or an immediate family member or close associate of a “senior foreign political figure ,”
within the meaning of Section 312 of the USA PATRIOT Act of 2001 . Notwithstanding anything in this
Lease to the contrary, Tenant acknowledges and agrees that this Lease is a continuing transaction
and that the foregoing representations, certifications and warranties are ongoing and shall be and
remain true and in full force and effect on the date hereof and throughout the Term of the Lease
(and any extension thereof) and that any breach thereof shall be a default under the Lease (not
subject to any notice or cure period) giving rise to Landlord’s remedies hereunder, at law, and in
equity.



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EXHIBIT A




PREMISES




[ATTACH FLOOR PLAN SHOWING PREMISES]




A-1 









 








EXHIBIT B




WORK LETTER




     To induce Tenant to enter into the Lease (to which this Exhibit B is attached) and in
consideration of the mutual covenants hereinafter contained, Landlord and Tenant agree as follows:



     1. Landlord shall construct, or cause to be constructed, leasehold improvements to the
Premises (the “Work”) in substantial accordance with those certain plans and
specifications prepared by The Dobbins Group and dated as of November 9, 2006, which plans have
heretofore been approved by each of Tenant and Landlord (the “Plans”). The Work shall be
performed (i) at Landlord’s sole cost and expense utilizing Building standard qualities and
quantities of materials, (ii) in compliance with applicable Laws, and (iii) in a good and
workmanlike manner. Landlord shall select a contractor or contractors to perform the construction
of the Work. Landlord shall use commercially reasonable efforts to cause the Work to be
substantially completed on or before December 15, 2006, or as soon as reasonably practicable
following the full execution and delivery of this Lease by each of Landlord and Tenant, subject in
any case to Force Majeure Events and delays to the extent attributable to any act or omission of
Tenant or Tenant’s officers, employees, agents, representatives, consultants, or contractors,
including without limitation any delays by Tenant in the submission of plans, drawings,
specifications, or other information, or in approving any plans, drawings, or estimates, or in
giving any authorization or approval hereunder within such time period as is reasonably directed by
Landlord, or in requesting any Additional Work hereunder (each, a “Tenant Delay”).



     2. Any other work desired by Tenant, including work in addition to, or in substitution for,
the work shown in the Plans, and approved by Landlord (which approval shall not be unreasonably
withheld), shall be performed by Landlord or Landlord’s contractors, unless Landlord otherwise
consents in writing, and at Tenant’s sole cost and expense to the extent that such other work, or
additional or substitute work, as the case may be, increases the cost of the Work. If Tenant
desires any other work or any work in addition to, or in substitution for, the Work described in
Section 1 hereof (“Additional Work”), Tenant shall cause the necessary drawings, plans, and
specifications for the Additional Work to be included on the Plans, or shall submit to Landlord or
Landlord’s agent (at Tenant’s sole cost and expense) the necessary drawings, plans, and
specifications for the Additional Work. Prior to commencing any such Additional Work requested by
Tenant, Landlord or Landlord’s agent shall submit to Tenant a written estimate of the cost of such
Additional Work. If Tenant shall fail to approve said estimate within seven (7) days from the
receipt thereof, the same shall be deemed disapproved in all respects by Tenant and Landlord shall
not be authorized to proceed thereon. If Tenant desires any changes in the Additional Work after
having approved the initial plans and cost estimate, Tenant shall be required to sign such field
order changes requested by Landlord or Landlord’s contractors or agents to evidence any such change
desired by Tenant. Tenant acknowledges that no cost estimate will be given for any changes in the
Additional Work after the initial cost estimate has been approved by Tenant, and Tenant shall be
responsible for any and all costs associated with any such change.



B-1 









 





     3. Any and all costs of the Additional Work, if any, shall be due and payable by Tenant to
Landlord within thirty (30) days following Landlord’s invoice therefor.



     4. Landlord shall permit Tenant and Tenant’s agents to enter the Premises prior to the
Commencement Date of the Term of the Lease in order that Tenant may do such other work as may be
required by Tenant to make the Premises ready for Tenant’s use and occupancy. Such permission is
conditioned upon Tenant and its agents, contractors, employees, and invitees working in harmony and
not interfering in any material respect with Landlord and its agents, contractors, and employees in
doing the Work and the Additional Work or for other tenants and occupants of the Building. If at
any time such entry shall cause or threaten to cause disharmony or interference, Landlord shall
have the right to withdraw such permission upon twenty-four (24) hours notice to Tenant. Tenant
agrees that any such entry into and occupation of the Premises shall be deemed to be under all of
the terms, covenants, conditions, and provisions of the Lease except as to the covenant to pay the
rent, and further agrees Landlord shall not be liable in any way for any injury, loss, or damage
which may occur to any of Tenant’s work and installations made in the Premises or to properties
placed therein prior to the Commencement Date, the same being at Tenant’s sole risk, except to the
extent that any damage is caused by the negligence or willful misconduct of the Landlord
Indemnified Parties, or any of them.



     5. Substantial completion of the Work shall be deemed to occur on the date when all of the
following have occurred: (i) the Work has been completed (except for punchlist items which do not
materially, adversely affect Tenant’s use in any material respect); (ii) the Building systems
serving the Premises are in working condition; (iii) a temporary certificate of occupancy or other
governmental approval, to the extent required, has been issued for the Premises; and (iv) Tenant is
reasonably able to use and occupy all or substantially all of the Premises for the purpose of
conducting its business therein. If substantial completion of the Work is delayed due to Tenant
Delay, the Premises shall be deemed substantially completed on the date when the Work would have
been substantially completed but for such Tenant Delay. If there is any dispute as to whether
Landlord has substantially completed the Work, either Landlord or Tenant may request a good faith
decision by an independent architect or contractor which shall be final and binding on the parties
(and if such decision affirms Landlord’s determination of substantial completion in all material
respects, the Premises shall be deemed substantially completed on the date initially determined by
Landlord). Landlord and Tenant shall participate in a walk-through of the Premises within five (5)
business days after Landlord notifies Tenant that the Work has been substantially completed. The
parties shall identify in writing any unfinished work or other “punchlist” items necessary for
final completion of the Work within such 5-business day period, and neither party shall
unreasonably withhold approval concerning any such items. Landlord shall use commercially
reasonable efforts to complete any such unfinished work or other “punchlist” items within
forty-five (45) days thereafter, subject to Force Majeure Events and Tenant Delay. All defective
work, materials, and equipment comprising part of the initial Work performed by Landlord hereunder
will be repaired or replaced by or at the direction of Landlord, at no cost or expense to Tenant,
as soon as reasonably practicable following Landlord’s receipt of written notice thereof, subject
in all events to Force Majeure Events and Tenant Delay. Landlord’s responsibility for repairing or
replacing such defective work, materials, and equipment shall be limited to matters arising during,
and matters for which Landlord receives



B-2 









 




written notice thereof, during the one (1) year period following the date of substantial completion
of the Work.




     6. Tenant agrees to reimburse Landlord for any and all reasonable out-of-pocket costs and
expenses incurred by Landlord in connection with the Additional Work, if any, hereunder, which
costs and expenses shall be due and payable by Tenant to Landlord within thirty (30) days following
Landlord’ s statement therefor.



B-3 









 





EXHIBIT C



SUBSTANTIAL COMPLETION/ACCEPTANCE LETTER





			
	Date	 	December 15, 2006






			
	Re:	 	Lease dated as of December 7, 2006, by and between Millbrook IV LLC, as Landlord, and
Alma Lasers, Inc., as Tenant, for 12,579 rentable square feet on the first (1st) floor of the
Building located at 485 Half Day Road, Buffalo Grove, Illinois.





Dear Landlord:




          In accordance with the terms and conditions of the above referenced Lease, Tenant accepts
possession of the Premises and agrees:



          1. The
Commencement Date of the Term of the Lease is 12/18/06.


          2. The
Expiration Date of the Term of the Lease is 12/17/16.


          3. The Net Rent Schedule set forth in Item 4 of the Basic Lease Provisions is hereby
established and confirmed as follows:



	 	 	 	 	 	 	 
	 	 	Rate Per	 	Annual	 	Monthly
	Period	 	Sq. Ft.	 	Net Rent	 	Installment
	12/18/06 — 12/17/07*
	 	$14.50
	 	$182,395.50
	 	$15,199.63
	12/18/07 — 12/17/08
	 	$14.94
	 	$187,930.26
	 	$15,660.86
	12/18/08 — 12/17/09
	 	$15.38
	 	$193,465.02
	 	$16,122.09
	12/18/09 — 12/17/10
	 	$15.84
	 	$199,251.36
	 	$16,604.28
	12/18/10 — 12/17/11
	 	$16.32
	 	$205,289.28
	 	$17,107.44
	12/18/11 — 12/17/12
	 	$16.81
	 	$211,452.99
	 	$17,621.08
	12/18/12 — 12/17/13
	 	$17.31
	 	$217,742.49
	 	$18,145.21
	12/18/13 — 12/17/14
	 	$17.83
	 	$224,283.57
	 	$18,690.30
	12/18/14 — 12/17/15
	 	$18.37
	 	$231,076.23
	 	$19,256.35
	12/18/15 — 12/17/16
	 	$18.92
	 	$237,994.68
	 	$19,832.89








 




			
	*	 	The period commencing on the Commencement Date and ending on the 365th day thereafter is
subject to the Free Net Rent Period (as defined in Section 6 hereof).





     4. The Free Net Rent Period under Section 6 of the Lease is hereby established and confirmed
as commencing on 12/ 18 , 2006 and ending on 12/17 , 2007.




C-1 









 








     5. The Termination Date under Section 63 of the Lease is hereby established and confirmed as
     12/17     , 2012; the Termination Option Exercise Date under Section 63 of the Lease is hereby
established and confirmed as      12/17     , 2011.



     Please acknowledge your acceptance of possession and agreement to the terms set forth above by
signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully
executed counterparts to my attention.



	 	 	 	 	 	 	 
	Sincerely,
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Millbrook IV LLC	 	Agreed and Accepted:	 	 
	 
	 	 	 	 	 	 
	 

	 	Tenants:
	 	Alex Lasers, Inc.	 	 
	 
	 	 	 	 	 	 
	/s/ Harvey L.Miller

	 	By:
	 	/s/ Howard Kelly	 	 
	 

Harvey L.Miller

	 	Name:
	 	 

Howard Kelly
	 	 
	 

	 	Title:
	 	CEO	 	 
	 

	 	Address:
	 	485 Half Day Road 


Suite 100	 	 
	 

	 	 	 	Buffalo Grove, Illinois 60089	 	 






C-2 









 





EXHIBIT D




RULES AND REGULATIONS





	1.	 	Any sign, lettering, picture, notice or advertisement installed within the Premises which is
visible from the public corridors within the Building shall be installed in such a manner and
be of such character and style as Lessor shall first approve in writing, which approval shall
not be unreasonably withheld. No sign lettering, picture, notice or advertisement shall be
placed on any outside window, except as specifically approved in writing in advance by
Lessor, which approval may be withheld in Landlord’s sole and absolute discretion.
No window treatments visible from the outside of the Building shall be made without the prior
written approval of Lessor, which approval shall not be unreasonably withheld;
	 
	2.	 	Sidewalks, entrances, passages, courts, corridors, halls, elevators and stairways in and
about the Premises shall not be obstructed nor shall objects be placed against glass
partitions, doors or windows which would be unsightly from the Building’s corridors or from
the exterior of the Building;
	 
	3.	 	No animals, pets, bicycles (other then Tenant’s employees’ bicycles to the extent placed
inside the warehouse portion of the Premises) or other vehicles (other than a forklift vehicle
to be located and utilized within the warehouse portion of the Premises) shall be brought or
permitted to be in the Building or the Premises;
	 
	4.	 	To the extent permitted by law, Lessee shall prohibit picketing or other union activity
involving its employees in the building, except in those locations and subject to time and
other limitations as to which Lessor may give prior written consent;
	 
	5.	 	Lessee shall not waste electricity, water or air-conditioning and shall cooperate fully with
Lessor to assure the most effective and efficient operation of the Building’s heating and
air-conditioning systems. All controls shall be adjusted only by personnel authorized by
Lessor;
	 
	6.	 	No locks or similar devices shall be attached to any door except by Lessor and Lessor shall
have the right to retain a key to all such locks (and all of the entry doors to the Premises
shall have working locks and Tenant shall receive keys to all such locks);
	 
	7.	 	Lessee assumes full responsibility of protecting the Premises from theft, robbery and
pilferage. Except during Lessee’s normal business hours, Lessee shall keep all doors to the
Premises locked;
	 
	8.	 	Lessor shall have the right to require Lessee and its employees to produce Lessee
identification cards (if issued by Lessor) as a condition to entering the Premises or for
other purposes affecting the security of the Building and Lessee shall cooperate and
participate in all reasonable security programs affecting the Building;
	 
	9.	 	Lessor shall have the right to require Lessee and its employees to attach parking permits to
their vehicles as a condition of using parking facilities at the building;




D-1 









 












	10.	 	All cleaning, repairing, janitorial, decorating, painting, construction or other services and
work in and about the Premises shall be done only by personnel hired or previously approved in
writing by Lessor;
	 
	11.	 	Safes, furniture, equipment, machines and other large or bulky articles shall be brought to the
Building and into and out of the Premises at such times and in such manner as Lessor shall direct
(including the designation of elevator and the location of such articles) and at Lessee’s sole risk
and cost. Prior to Lessee’s installation or removal of such articles from the Building, Lessee
shall obtain written authorization of the Manager of the Building and shall present such
authorization to a designated employee of Lessor. Landlord in all cases retains the power to
prescribe the weight and position of iron safes or other heavy articles;
	 
	12.	 	Lessee and lessee’s employees and guests shall not in any manner deface or damage the Building;
	 
	13.	 	Inflammables such as gasoline, kerosene, naphtha and benzene, or explosives or any other
articles of an intrinsically dangerous nature are not permitted in the Building or the Premises;
	 
	14.	 	Lessor’s consent to the installation of any electrical equipment shall not relieve Lessee from
the obligation not to use more electricity than the safe capacity available to the Premises as
provided in this Lease. All wiring and cabling work shall be done only by contractors approved in
advance by Landlord and Landlord shall have the right to have all such work supervised by Building
engineering/maintenance personnel. No antenna or cabling shall be installed on the roof or exterior
walls of the Building;
	 
	15.	 	Lessee shall not enter upon the roof of the Building;
	 
	16.	 	Lessee shall not distribute literature, flyers, handouts or pamphlets of any type in any of the
Common Areas of the Building, without the prior written consent of Lessor;
	 
	17.	 	Lessee shall not cook, otherwise prepare or sell any food or beverages in or from the Premises
or sell or serve any alcoholic beverages in or from the Premises, except that Lessee may heat or
prepare food or non-alcoholic beverages for consumption on the Premises by its employees;
	 
	18.	 	Lessee shall not permit the use of any apparatus for sound production or transmission in such
manner that the sound so transmitted or produced shall be audible or vibrations therefrom shall be
detectable beyond the Premises;
	 
	19.	 	Lessee shall keep all electrical and mechanical apparatus owned, or leased from third parties,
by Lessee free of vibration, noise and air waves which may be transmitted beyond the Premises;
	 
	20.	 	Lessee shall not permit objectionable odors or vapors to emanate from the Premises;




D-2 









 












	21.	 	Lessee shall not place a load upon any floor of the Premises exceeding the floor load capacity
for which such floor was designated or allowed by law to carry;
	 
	22.	 	Lessor reserves the right to exclude or expel from the Building any person who, in the judgment
of Lessor is intoxicated or under the influence of alcohol or drugs, or shall in any manner do any
act in violation of any of the rules, regulations or policies of the building;
	 
	23.	 	The reasonable requirements of Lessee will be attended to only upon application at the Office
of the Building. Employees of Lessor shall not perform any work or do anything outside their
regular duties unless under special instructions from Lessor, and no employee will admit any person
(Lessee or otherwise) to any office without specific instruction from Lessor;
	 
	24.	 	Lessee shall not use or operate any electrical or electronic devices or other devices that
would interfere with the operation of any device or equipment or radio or television broadcasting
or reception from or within the Building or elsewhere, and shall not place or install any
projections, antennae, aerials or similar devices outside the Premises;
	 
	25.	 	Lessee and its employees and guests shall not smoke tobacco on any part of the Building
(including exterior acres) except those areas, if any, that are designated or approved as smoking
areas by Lessor. Lessee and its employees and guests shall comply at all times with the Village of
Buffalo Grove smoking Ordinance 2006-19 or the Village of Buffalo Grove Municipal Code;
	 
	26.	 	Lessor reserves the right, by written notice to Lessee, to rescind, alter or waive any rules or
regulations at any time prescribed for the Building when, in Lessor’s reasonable judgment, it is
necessary, desirable or proper for the best interest of the Building and its lessees;
	 
	27.	 	Tenant shall not do or permit to be done in the Premises, or bring or keep anything therein,
which shall in any way increase the rate of insurance carried by Landlord on the Building, or on
the Property, or obstruct or interfere with the rights of other tenants or in any way injure or
annoy them, or violate any applicable laws, codes or regulations.
Tenant, its agents, employees or invitees shall maintain order in the Premises and the
Building, shall not make or permit any improper noise in the Premises or the Building or
interfere in any way with other tenants, or those having business with them. Nothing shall
be thrown by Tenant, its clerks or servants, out of the windows or doors, or down the
passages or skylights of the Building. No rooms shall be occupied or used as sleeping or
lodging apartments at any time. No part of the Building shall be used or in any way
appropriated for gambling, immoral or other unlawful practices, and no intoxicating liquor
or liquors shall be sold or used in the building;
	 
	28.	 	If Tenant desires blinds, coverings or drapes over the windows, they must be of such shape,
color and material as may be prescribed by Landlord, and shall be erected only with Landlord’s
consent and at the expense of Tenant. No awnings shall be placed on the




D-3 









 






	 	 	building. Window covering shall be closed when the effect of sunlight would impose
unnecessary loads on the air conditioning system;






	29.	 	Landlord shall have the right, exercisable without notice and without liability to Tenant, to
change the name or street address of the Building or the room or suite number of the Premises;
	 
	30.	 	Each Tenant shall ensure that all doors to its premises are locked and all water faucets or
apparatus and office equipment are shut off before the tenant or its employees leave such premises
at night. On multiple tenancy floors, all tenants shall keep the
doors to the Building corridors closed at all times except for
ingress and egress;
	 
	31.	 	The toilets, urinals, wash bowls and other restroom facilities shall not be used for any
purpose other than for which they were constructed, no foreign substance of any kind whatsoever may
be thrown therein and the expense of any breakage, stoppage or damage resulting from a violation of
this rule shall be borne by the Tenant who, or whose employees or invitees, shall have caused it;
and,
	 
	32.	 	Each Tenant shall store its refuse within its Premises. No material shall be placed in the
refuse boxes or receptacles if such material is of such a nature that it may not be disposed of in
the ordinary and customary manner of removal without being in violation of any law or ordinance
governing such disposal.




D-4 









 











EXHIBIT E




HVAC SPECIFICATIONS




     Heating, ventilating and air conditioning equipment in the Building shall be capable of
maintaining the following interior conditions when the following maximum outside conditions exist,
subject to the conditions set forth in Article 15 of this Lease:



	 	 	 
	Inside Conditions	 	Outside Conditions
	 
	 	 
	78° F (dry bulb)

	 	up to 95° F (dry bulb)
	 

	 	up to 75° F (wet bulb)
	 
	 	 
	72° F

	 	down to -2° F
	65° F

	 	down to -10° F
	 
	 	 
	Occupant Load

	 	1 person per 100 sq. ft.


(usable)
	 
	 	 
	Equipment
	 	 
	& Lighting Load

	 	3.0 watts per sq. ft. (usable)






E-1 









 





EXHIBIT F




SPECIAL STIPULATIONS




     62. Right of First Offer. Subject to the terms and provisions of this
Section 62, and so long as Tenant has not theretofore exercised the Termination Option
(as hereinafter defined), in the event that any rentable space located adjacent to the
Premises on the first (1st) floor of the Building (such space being referred to herein
as the “ROFO Space”), which ROFO Space is more
specifically depicted on Exhibit H
attached hereto and made a part hereof, is or becomes available for leasing by third
parties on or after the date of this Lease and Landlord issues a proposal for such
ROFO Space to a prospective third party tenant, Tenant shall have and is hereby
granted the right (the “Right of First Offer”) to add such ROFO Space to the Premises
demised hereunder in accordance with the terms and provisions of this Section 62.




          (a) Subject to the foregoing, at such time as any such ROFO Space becomes available for
leasing by third parties and Landlord issues a bona fide, good faith proposal for such ROFO Space
to a prospective third party tenant (the “Proposal”), Landlord shall notify Tenant in writing
thereof, and shall include a copy of the Proposal (collectively, the
“ROFO Notice”). Tenant shall
thereafter have five (5) business days following such ROFO Notice from Landlord within which to
notify Landlord in writing of Tenant’s desire to add the ROFO Space to the Premises on the terms
outlined in the Proposal (“Tenant’s ROFO Exercise
Notice”). In the event Tenant fails to so notify
Landlord of its acceptance of such offer within such 5-business day period, or in the event
Landlord and Tenant fail to thereafter enter into a lease amendment which adds the ROFO Space to
the Premises on the terms provided herein within the time period set forth in Paragraph 62(d)
below, Landlord may thereafter lease such ROFO Space to such third party on such terms and
conditions as Landlord shall deem appropriate in Landlord’s sole and absolute discretion, Tenant’s
Right of First Offer with respect to such ROFO Space shall become null and void, and Tenant shall
have no further right or interest in or to such ROFO Space; provided, (i) in the event that
Landlord does not enter into a lease with such third party within six (6) months following the date
of such ROFO Notice, or (ii) in the event that the net effective rental rate and other economic
terms of the lease which Landlord proposes to execute for the ROFO Space are less than ninety
percent (90%) of the net effective rental rate and other economic terms set forth in the Proposal,
then in such event, Tenant’s Right of First Offer with respect to such ROFO Space shall be
reinstated in accordance with the terms and provisions hereof. Time is of the essence in the giving
of Tenant’s ROFO Exercise Notice hereunder.




          (b) In the event Tenant validly exercises its Right of First Offer hereunder, the ROFO Space
shall be added to and included in the Premises, subject to all of the terms and conditions of the
Lease, as amended hereby, with the following exceptions and modifications:





          (i) The rentable area of the Premises shall be increased by the rentable area of the
ROFO Space;




          (ii) Tenant’s Share shall be increased to reflect the rentable area of such ROFO
Space;



F-1 









 






          (iii) The term of the demise covering such ROFO Space shall be as set forth in the
Proposal, or as the Term may be earlier terminated as elsewhere provided in this Lease;




          (iv) Tenant shall accept the ROFO Space in the condition set forth in the Proposal, and
Landlord shall not be obligated to perform any alterations, improvements, or additions
thereto, or to provide any allowance or other concessions therefor, except as expressly
provided otherwise in the Proposal or as otherwise agreed by Landlord and Tenant;




          (v)
Net Rent for the ROFO Space shall be as set of forth in the Proposal;



          (vi) In addition to the Net Rent applicable thereto, Tenant shall be required to pay
Additional Rent, as well as all other sums due and payable by Tenant hereunder, in
connection with the ROFO Space in the manner set forth herein (except to the extent that the
Proposal did not provide for a net rental rate); and




          (vii) Provided Tenant validly exercises its Right of First Offer hereunder in writing,
Tenant’s obligation to pay Net Rent and Additional Rent with respect to the ROFO Space shall
commence on the date on which such ROFO Space will be made available to Tenant for
occupancy, except as expressly provided otherwise in the Proposal or as otherwise agreed by
Landlord and Tenant.



          (c) Any termination of this Lease during the Term shall terminate all rights hereunder. The
Right of First Offer is personal to Alma Lasers, Inc. and any Affiliate and may not be exercised by
or for the benefit of any assignee, subtenant, or other party (other than an Affiliate). Tenant’s
right to exercise its Right of First Offer hereunder is further subject to the following
conditions: (i) that on the date Tenant delivers Tenant’s ROFO Exercise Notice, and on the
effective date of such Right of First Offer, Tenant is not in default beyond any applicable notice
and cure period under any of the terms, covenants, or conditions of this Lease; and (ii) that
Tenant shall not have assigned this Lease in whole or in part, or sublet all or any portion of the
Premises (other than an assignment or sublease to an Affiliate), at any time prior to or after
Tenant delivers Tenant’s ROFO Exercise Notice to Landlord hereunder.




          (d) In the event that Tenant exercises its Right of First Offer hereunder, Landlord and Tenant
shall execute and deliver to the other party hereto a mutually acceptable lease amendment setting
forth the terms applicable to such ROFO Space within thirty (30) days of the exercise of such Right
of First Offer by Tenant.




     63. Termination Option. Subject to the terms and provisions of this Section 63, Tenant
shall have and is hereby granted the one-time option (the
“Termination Option”) to terminate this
Lease effective on the last day of Lease Year 6 (i.e. the last day of the seventy-second (72nd)
full calendar month following the Commencement Date) (the
“Termination Date”), which Termination
Option shall be exercised by Tenant as follows:



          (a) Tenant shall deliver written notice to Landlord of Tenant’s exercise of such Termination
Option (“Tenant’s Termination Notice”) on or before, but not later than, the last day of
Lease Year 5 (i.e. the last day of the sixtieth (60th) full calendar month following the




F-2 









 







Commencement Date) (the “Termination Option Exercise Date”), and in the event Tenant fails
to deliver Tenant’s Termination Notice on or before the Termination Option Exercise Date, Tenant
shall be deemed to have irrevocably waived the Termination Option hereunder, and the same shall be
null, void, and of no further force or effect; and




          (b) Tenant shall pay to Landlord a termination fee (the “Termination Fee”) equal to
the sum of (i) the then-unamortized costs incurred by Landlord in connection with this Lease,
including without limitation improvement costs, rent abatements, leasing commissions, attorneys’
fees, and other costs (which costs shall be amortized on a straight-line basis over the initial
Term hereof with interest at a rate of eight percent (8%) per annum), plus (ii) nine (9) months of
the Net Rent and Additional Rent then applicable hereunder. Fifty percent (50%) of the Termination
Fee shall be due and payable concurrently with the delivery of Tenant’s Termination Notice to
Landlord hereunder, and the remaining fifty percent (50%) of the Termination Fee shall be due and
payable on the Termination Date (and Tenant’s failure to pay either such installment on or before
the due date therefor shall, at Landlord’s sole option, render Tenant’s exercise of the Termination
Option hereunder null and void, in which event this Lease shall remain in full force and effect).




     Tenant’s exercise of the foregoing Termination Option is further subject to the condition that
Tenant is not in default beyond any applicable notice and cure period under any of the terms,
covenants, or conditions of the Lease at the time of delivery to Landlord of Tenant’s Termination
Notice or upon the Termination Date. Tenant shall deliver the Premises to Landlord on or before the
Termination Date in accordance with the terms and conditions of this Lease the same as if such
Termination Date were the original expiration date of the Term of this Lease. The Termination
Option is personal to Alma Lasers, Inc. and any Affiliate may not be exercised by or for the
benefit of any assignee, subtenant, or other party (other than an Affiliate).



     64. Existing Furniture. Subject to the terms and conditions of this Section 64,
Landlord hereby grants to Tenant the right and license to utilize during the Term, at Tenant’s sole
risk and expense and without additional charge therefor (except as hereinafter provided), the
existing furniture currently located within the Premises (collectively, the “Existing Furniture”),
which Existing Furniture shall be provided to Tenant in substantially the condition existing as of
the date of this Lease, normal wear and tear excepted, and which Existing Furniture is more
specifically listed and described on Exhibit I attached hereto and made a part hereof. Tenant shall
be responsible for any and all costs and expenses of moving, relocating, and/or installing any such
Existing Furniture to, from, and/or within the Premises. Nothing contained herein shall be deemed a
representation, warranty, or guaranty by or from Landlord as to the condition, value, utility, or
title of the Existing Furniture, or any portion thereof, and Landlord hereby expressly disclaims
any and all warranties in connection with the Existing Furniture, including without limitation
warranties of title, condition, merchantability, and fitness; provided, Landlord represents to
Tenant that, pursuant to a letter agreement dated as of September 9, 2006 by and between Landlord
and Takeda Pharmaceuticals North America (“Takeda”), the existing tenant of the Premises, Takeda
has agreed to surrender the Existing Furniture to Landlord upon the expiration or earlier
termination of its lease for the Premises. So long as Tenant does not exercise the Termination
Option set forth in Section 63 hereof, and upon receipt of One and No/100 Dollars ($1.00) from
Tenant, Landlord shall convey all of Landlord’s right, title, and interest in and to the Existing
Furniture to Tenant upon the expiration or earlier termination of



F-3 









 




this Lease. Notwithstanding the foregoing, during the Term of this Lease and until Tenant’s
purchase of the Existing Furniture as provided herein, Tenant may remove and replace any or all of
the Existing Furniture without notice to Landlord (and any replacement furniture installed by
Tenant shall remain Tenant’s property and shall not comprise part of the Existing Furniture
hereunder). Tenant shall be responsible for any and all costs and expenses of moving, relocating,
removing, and/or installing any such Existing Furniture to, from, and/or within the Premises. Upon
the expiration or termination of this Lease, Tenant shall, if Tenant exercises its right to so
purchase the Existing Furniture hereunder, remove the Existing Furniture from the Premises and
repair any and all damages to the Premises or the Building resulting from such removal, such
removal and repair to be conducted in a good and workmanlike manner, and otherwise in accordance
with the terms and provisions of this Lease.




F-4 









 








EXHIBIT G




PLAN
OF TENANT’S
DESIGNATED PARKING SPACES





 









 








EXHIBIT G




RESERVED SPACES




G-1 









 








EXHIBIT H




PLAN OF ROFO SPACE




H-1 









 








EXHIBIT I




EXISTING FURNITURE




I-1 









 






EXHIBIT J




FORM OF LETTER OF CREDIT




                    , 2006




Millbrook
IV LLC 
c/o Millbrook
Properties LLC 
485 Half Day
Road, Suite 220

Buffalo Grove, Illinois 60089

Attn: Property Manager




IRREVOCABLE LETTER OF CREDIT NO.                    




Original Expiration Date:                    , 2007




Gentlemen:



We hereby establish our irrevocable Letter of Credit in favor of Millbrook IV LLC (“Beneficiary”)
for the account of Alma Lasers, Inc., a Delaware corporation, for the sum not exceeding U.S. One
Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00).



This Letter of Credit is available against your draft drawn on us bearing the clause “Drawn
Under                                        Bank,                    ,                     L/C No.                                        .”



We hereby agree with the drawers of the draft drawn and negotiated in compliance with the terms of
this credit, that said draft will be duly honored within forty-eight (48) hours after it is
presented at this office.



It is a condition of this Letter of Credit that it shall be deemed automatically extended without
amendment for a period of one (1) year from the initial expiration date stated above or any future
expiration date hereof, unless at least sixty (60) days prior to the then expiration date, we mail
you our written notice, by U.S. registered or certified mail, proper postage prepaid and return
receipt requested, or via nationally-recognized commercial overnight delivery service, informing
you that the Letter of Credit will no longer be automatically renewed beyond the then expiration
date. In the event that we notify you that it is our intention not to renew this Letter of Credit
for an additional one (1) year period, we agree to also notify the following parties by registered
or certified mail:



Quarles & Brady LLP

500 West Madison Street

Suite 3700

Chicago, IL 60661

Attn: Mark J. Horne, Esq. / Eric J. Fuglsang, Esq.



This Letter of Credit is transferable and assignable from time to time; any transfer request
shall be effected by presentation to the issuer of the attached transfer form accompanied by the




J-1 









 







original of this Letter of Credit, provided that the holder hereof shall not incur any fees to the
issuer as a condition to any such transfer.



Partial Drawings and reductions are permitted.



Except so far as otherwise expressly stated this documentary credit is subject to Uniform Customs
and Practice for Documentary Credits, 1995 revision, ICC Publication No. 500, excluding Article 17.




Name of Bank




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






J-2 









 






EXHIBIT
H




RIGHT
OF FIRST OFFER SPACE





 









 








EXHIBIT
A




FLOOR
PLAN OF PREMISES





 









 





FIRST LEASE AMENDMENT




     THIS FIRST LEASE AMENDMENT (this “Amendment”) is made and entered into as of this 31st day of
October, 2007 (the “Effective Date”), by and between MILLBROOK IV LLC, an Illinois limited
liability company (“Landlord”), and ALMA LASERS, INC., a Delaware corporation (“Tenant”).



WITNESSETH:




     WHEREAS, Landlord is the landlord and Tenant is the tenant under that certain Office Lease
Agreement dated as of December 7, 2006 (the “Lease”) for certain premises (the “Original Premises”)
commonly known as Suites 100 and 102 comprising approximately 12,579 rentable square feet located
on a portion of the first (1st) floor of the building (the “Building”) commonly known as 485 Half
Day Road, Buffalo Grove, Illinois 60089, for a term (the “Term”) currently expiring December 17,
2016;



     WHEREAS, Landlord is willing to lease to Tenant, and Tenant desires to lease from Landlord,
certain additional space comprising a portion of the first (1st) floor of the Building containing
approximately 6,250 rentable square feet, all on the terms and conditions hereinafter set forth;
and



     WHEREAS, Landlord and Tenant desire to further amend the Lease on the terms and conditions
hereinafter set forth.



     NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt and sufficiency of
which is ·hereby acknowledged, Landlord and Tenant covenant and agree as follows:



     1. Definitions. Capitalized terms used in this Amendment and not otherwise defined
herein shall have the same meaning as provided in the Lease.



     2. Confirmation of Commencement Date; Extension of Term. The Commencement Date is hereby
established and confirmed as December 18, 2006. Effective as of the Effective Date, the Term of the
Lease shall be and is hereby extended for an additional period of six (6) months through and
including June 17, 2017, the same as if June 17, 2017 were the Expiration Date of the Lease as
initially set forth therein, unless sooner terminated in accordance with the terms of the Lease.



     3. Expansion. Effective as of the Effective Date, the Lease shall be and is hereby amended by
adding to the Original Premises demised thereby that certain additional space comprising
approximately 6,250 rentable square feet located on a portion of the first (1st) floor of the
Building (the “Expansion Space”), subject to the terms, covenants, and conditions of the Lease, as
amended hereby, with the result that, from and after the Effective Date and continuing for the
remainder of the Term, the Premises demised by the Lease shall contain 18,829 rentable square feet
in the aggregate, all as more particularly shown and depicted on Exhibit A attached



 









 






hereto and
made a part hereof. The Original Premises and the Expansion Space are sometimes referred to herein,
collectively, as the “Premises”.



     4. Net Rent. Effective as of the Effective Date, the Lease shall be and is hereby amended by
deleting the Net Rent schedule set forth in Item 4 of the Basic Lease Provisions in its entirety
and by substituting the following Net Rent schedule in lieu thereof with the result that, from and
after the Effective Date and continuing for the remainder of the Term, Tenant shall pay Net Rent in
accordance with the following Net Rent schedule and otherwise at the same time and in the same
manner as set forth in the Lease:



NET RENT SCHEDULE

(18,829 Rentable Square Feet)




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Rate Per	 	Annual	 	Monthly
	Period	 	Sq. Ft.	 	Net Rent	 	Installment
	12/18/06 - Date Immediately Preceding the
Effective Date*
	 	$	14.50	 	 	$	0	 	 	$	0	 
	
Effective Date - 12/17/07*
	 	$	14.50	 	 	$	0	 	 	$	0	 
	12/18/07 - 06/17/08**
	 	$	14.94	 	 	$	187,930.26	 	 	$	15,660.86	 
	06/18/08 - 12/17/08
	 	$	14.94	 	 	$	281,305.26	 	 	$	23,442.11	 
	12/18/08 - 12/17/09
	 	$	15.38	 	 	$	289,590.02	 	 	$	24,132.50	 
	12/18/09 - 12/17/10
	 	$	15.84	 	 	$	298,251.36	 	 	$	24,854.28	 
	12/18/10 - 12/17/11
	 	$	16.32	 	 	$	307,289.28	 	 	$	25,607.44	 
	12/18/11 - 12/17/12
	 	$	16.81	 	 	$	316,515.49	 	 	$	26,376.29	 
	12/18/12 - 12/17/13
	 	$	17.31	 	 	$	325,929.99	 	 	$	27,160.83	 
	12/18/13 - 12/17/14
	 	$	17.83	 	 	$	335,721.07	 	 	$	27,976.76	 
	12/18/14 - 12/17/15
	 	$	18.37	 	 	$	345,888.73	 	 	$	28,824.06	 
	12/18/15 - 12/17/16
	 	$	18.92	 	 	$	356,244.68	 	 	$	29,687.06	 
	12/18/16 - 06/17/17
	 	$	19.49	 	 	$	366,977.21	 	 	$	30,581.43	 








 




			
	*	 	The period commencing on December 18, 2006 and ending on December 17, 2007 is subject to the
Free Net Rent Period (as defined in Section 6 of the Lease, as amended hereby).
	 
	**	 	The period commencing on December 18, 2007 and ending on June 17, 2008 is further subject
to the Free Expansion Space Net Rent Period (as defined in Paragraph 5 hereof), with the result
that Net Rent payable during the Free Expansion Space Net Rent Period shall be calculated based
upon 12,579 rentable square feet, being the rentable area of the Original Premises, subject to
Paragraph 5 hereof.





2









 





     5. Free Net Rent Period.



     A. Effective as of the Effective Date, the Lease shall be and is hereby amended by deleting
Section 6(b) thereof in its entirety and by substituting the following Section 6(b) in lieu
thereof:




     “(b) Notwithstanding anything to the contrary contained herein and solely as a
concession to enter into this Lease, Tenant’s obligations for Net Rent only (and
specifically excluding Tenant’s obligations for Additional Rent and other sums due and
payable hereunder) shall be abated in full with respect to the entirety of the Premises
(inclusive of the Original Premises and the Expansion Space, as each such term is defined
in the First Lease Amendment) for the period commencing on December 18, 2006 and ending on
December 17, 2007 (the “Free Net Rent Period”); provided, if Tenant shall be in default
beyond any applicable notice and cure period under any of the terms or provisions of this
Lease at any time during the Free Net Rent Period, Tenant shall not be entitled to that
portion of the Free Net Rent Period accruing from and after the date of such default, and
Tenant shall thereafter become obligated to pay all Net Rent which would otherwise have
been abated hereunder as and when the same becomes due and payable under this Lease.”



     B. Notwithstanding anything to the contrary contained herein or in the Lease, as
amended hereby, solely as a concession to enter into this Amendment and in addition to the Free Net
Rent Period, Tenant’s obligations for Net Rent only (and specifically excluding Tenant’s
obligations for Additional Rent and other sums due and payable hereunder) shall be abated in full
with respect to the Expansion Space only (and specifically excluding the Original Premises) for the
period commencing on December 18, 2007 and ending on June 17, 2008 (the “Free Expansion Space Net
Rent Period”); provided, if Tenant shall be in default beyond any applicable notice and cure period
under any of the terms or provisions of this Lease at any time during either the Free Net Rent
Period or the Free Expansion Space Net Rent Period, Tenant shall not be entitled to that portion of
the Free Expansion Space Net Rent Period accruing from and after the date of such default, and
Tenant shall thereafter become obligated to pay all Net Rent which would otherwise have been abated
hereunder as and when the same becomes due and payable under this Lease.



     6. Additional Rent. Tenant shall continue to pay for the remainder of the Term Additional Rent
with respect to the Original Premises in accordance with the terms and provisions of the Lease,
including without limitation Section 7 (Operating Expenses/Taxes) thereof, as amended hereby.
Commencing as of the Effective Date and continuing for the remainder of the Term, Tenant shall also
pay Additional Rent with respect to the Expansion Space in accordance with the terms and provisions
of the Lease, including without limitation Section 7 (Operating Expenses/Taxes) thereof, as amended
hereby.



     7. Condition of Premises. Tenant is currently in occupancy of the Original Premises and has
been afforded an opportunity to inspect the Expansion Space, and Tenant agrees to accept both the
Original Premises and the Expansion Space in their “AS IS” condition



3









 






as existing as of the date
hereof, without any agreements, representations, understandings, or obligations on the part of Landlord to perform any alterations, repairs, or
improvements therein, or to provide any allowance therefor, except as expressly provided to the
contrary herein or in the Lease. Notwithstanding the foregoing, (i) Landlord shall construct the
Work (as hereinafter defined) in the Expansion Space in accordance with the terms and provisions of
the Work Letter attached as Exhibit B hereto and made a part
hereof, and (ii) any
Additional Work (as hereinafter defined), including without limitation any additional rooms and/or
offices to be located within the Expansion Space, shall be at Tenant’s sole cost and expense.



     8. Other Lease Provisions. Effective as of the Effective Date, the Lease shall be
and is hereby further amended as follows:



     A. Item 2 (Premises) of the Basic Lease Provisions shall be and is hereby amended
by deleting the phrase “Rentable Square Feet: Approximately 12,579 rentable square feet” in its
entirety and by substituting the phrase “Rentable Square Feet: Approximately 18,829 rentable square
feet” in lieu thereof.



     B. Item 6 (Tenant’s Share) of the Basic Lease Provisions shall be and is hereby amended by
deleting the phrase “9.36% (based on 134,430 rentable square feet in the Building)” in its entirety
and by substituting the phrase “14.13% (based on 133,274 rentable square feet in the Building)” in
lieu thereof.



     C. Item 7 (Security Deposit/Letter of Credit) of the Basic Lease Provisions shall be and is
hereby amended by deleting the phrase “$50,316.01 Security Deposit, plus $125,000.00 Letter of
Credit” in its entirety and by substituting the phrase “$75,316.02 Security Deposit, plus
$187,107.50 Letter of Credit” in lieu thereof.



     D. Section 10 (Security Deposit/Letter of Credit) of the Lease shall be and is hereby amended
as follows:



          (i) Subsection 10(a) thereof shall be and is hereby amended by deleting the phrase “Fifty
Thousand Three Hundred Sixteen and 01/100 Dollars ($50,316.01)” set forth in the first
grammatical sentence thereof in its entirety and by substituting the phrase “Seventy-Five Thousand
Three Hundred Sixteen and 02/100 Dollars ($75,316.02)” in lieu thereof.



          (ii) Subsection 10(b) thereof shall be and is hereby amended by deleting the first grammatical
sentence thereof in its entirety and by substituting the following sentence in lieu thereof:




     “(b) In addition to the Security Deposit, Tenant shall deliver to Landlord
upon Tenant’s execution and delivery of this Lease (or the First Lease Amendment, as the
case may be) an unconditional irrevocable letter of credit in the initial amount of One
Hundred Eighty-Seven Thousand One Hundred Seven and 50/100 Dollars
($187,107.50) in favor of Landlord from a bank approved by Landlord, substantially in the
form of Exhibit J attached hereto and made a part hereof (the “Letter of
Credit”), which Letter of Credit shall be held by Landlord as additional security for the
full and faithful performance by Tenant of each and



4









 






every term, covenant, and condition of this Lease on the part of Tenant to be
observed and performed; provided, so long as Tenant is not then in default beyond any
applicable notice and cure period hereunder, and provided further that Landlord has not
theretofore drawn upon all or any portion of such Letter of Credit pursuant to this
Section 10, the Letter of Credit shall be subject to reduction as follows: (i) to the sum
of One Hundred Sixty-Eight Thousand Three Hundred Ninety-Six and 75/100 Dollars
($168,396.75) during Lease Year 2; (ii) to the sum of One Hundred Forty-Nine Thousand Six
Hundred Eighty-Six and No/100 Dollars ($149,686.00) during Lease Year 3; (iii) to the sum
of One Hundred Thirty Thousand Nine Hundred Seventy-Five and 25/100 Dollars ($130,975.25)
during Lease Year 4; and (iv) to the sum of One Hundred Twelve Thousand Two Hundred
Sixty-Four and 50/100 Dollars ($112,264.50) during Lease Year 5.”



     E. Exhibit A (Plan of Premises) to the Lease shall be and is hereby amended by deleting it in
its entirety and by substituting Exhibit A (Plan of Premises) attached hereto and made a part
hereof in lieu thereof.



     F. Exhibit F (Special Stipulations) to the Lease shall be and is hereby amended
as follows:



          (i) Section 63 (Termination Option) of the Lease shall be and is hereby amended by deleting it
in its entirety and by substituting the following in lieu thereof:




     “63. Termination Option. Subject to the terms and provisions of this Section 63,
Tenant shall have and is hereby granted the one-time option (the “Termination Option”) to
terminate this Lease effective on June 17, 2014 (the “Termination Date”), which
Termination Option shall be exercised by Tenant as follows:




          (a) Tenant shall deliver written notice to Landlord of Tenant’s exercise of such
Termination Option (“Tenant’s Termination Notice”) on or before, but not later than, June
17, 2013 (the “Termination Option Exercise Date”), and in the event Tenant fails to
deliver Tenant’s Termination Notice on or before the Termination Option Exercise Date,
Tenant shall be deemed to have irrevocably waived the Termination Option hereunder, and
the same shall be null, void, and of no further force or effect; and




          (b) Tenant shall pay to Landlord a termination fee (the “Termination
Fee”) equal to the sum of (i) the then-unamortized costs incurred by Landlord in
connection with this Lease and the First Lease Amendment, including without limitation
improvement costs, rent abatements, leasing commissions, attorneys’ fees, and other costs
(which costs shall be amortized on a straight-line basis over the initial Term hereof
with interest at a rate of eight percent (8%) per annum), plus (ii) nine (9) months of
the Net Rent and Additional Rent then applicable hereunder with respect to the entirety
of the Premises (inclusive of the



5









 






Original Premises and the Expansion Space, as each such term is defined in the First
Lease Amendment). Fifty percent (50%) of the Termination Fee shall be due and payable
concurrently with the delivery of Tenant’s Termination Notice to Landlord hereunder, and
the remaining fifty percent (50%) of the Termination Fee shall be due and payable on the Termination Date (and Tenant’s failure to pay either such
installment on or before the due date therefor shall, at Landlord’s sole option, render
Tenant’s exercise of the Termination Option hereunder null and void, in which event this
Lease shall remain in full force and effect).




     Tenant’s exercise of the foregoing Termination Option is further subject to the
condition that Tenant is not in default beyond any applicable notice and cure period
under any of the terms, covenants, or conditions of this Lease at the time of delivery to
Landlord of Tenant’s Termination Notice or upon the Termination Date. Tenant shall
deliver the Premises to Landlord on or before the Termination Date in accordance with the
terms and conditions of this Lease the same as if such Termination Date were the original
expiration date of the Term of this Lease. The Termination Option is personal to Alma
Lasers, Inc. and any Affiliate, and may not be exercised by or for the benefit of any
assignee, subtenant, or other party (other than an Affiliate).”



          (ii) Section 64 (Existing Furniture) of the Lease shall be and is hereby amended by
deleting it in its entirety and by substituting the following in lieu thereof:




     “64. Existing Furniture. Subject to the terms and conditions of this Section 64,
Landlord hereby grants to Tenant the right and license to utilize during the Term, at
Tenant’s sole risk and expense and without additional charge therefor (except as
hereinafter provided), the existing furniture (collectively, the “Existing Furniture”)
currently located within the Premises, inclusive of the Original Premises and the
Expansion Space (as each such term is defined in the First Lease Amendment), which
Existing Furniture shall be provided to Tenant in substantially the condition existing as
of the date of this Lease (or the date of the First Lease Amendment, as the case may be),
normal wear and tear excepted, and which Existing Furniture is more specifically listed
and described on Exhibit I attached to the First Lease Amendment and made a
part thereof. Tenant shall be responsible for any and all costs and expenses of moving,
relocating, and/or installing any such Existing Furniture to, from, and/or within the
Premises (inclusive of the Original Premises and the Expansion Space). Nothing contained
herein shall be deemed a representation, warranty, or guaranty by or from Landlord as to
the condition, value, utility, or title of the Existing Furniture, or any portion
thereof, and Landlord hereby expressly disclaims any and all warranties in connection
with the Existing Furniture, including without limitation warranties of title, condition,
merchantability, and fitness. So long as Tenant does not exercise the Termination Option
set forth in Section 63 hereof, and upon receipt of One and No/100 Dollars ($1.00) from
Tenant, Landlord shall convey all of Landlord’s right, title, and interest in and to the
Existing Furniture to Tenant upon the expiration or earlier termination of this Lease.
Notwithstanding the



6









 






foregoing, during the Term of this Lease and until Tenant’s
purchase of the Existing Furniture as provided herein, Tenant may remove and replace any
or all of the Existing Furniture without notice to Landlord (and any replacement
furniture installed by Tenant shall remain Tenant’s property and shall not comprise part
of the Existing Furniture hereunder). Tenant shall be responsible for any and all costs
and expenses of moving, relocating, removing, and/or installing any such Existing
Furniture to, from, and/or within the Premises (inclusive of the Original Premises and the Expansion Space). Upon the expiration or
termination of this Lease, Tenant shall, if Tenant exercises its right to so purchase the
Existing Furniture hereunder, remove the Existing Furniture from the Premises (inclusive
of the Original Premises and the Expansion Space) and repair any and all damages to the
Premises (inclusive of the Original Premises and the Expansion Space) or the Building
resulting from such removal, such removal and repair to be conducted in a good and
workmanlike manner, and otherwise in accordance with the terms and provisions of this
Lease.”



     G. Exhibit I (Existing Furniture) to the Lease shall be and is hereby amended by
deleting it in its entirety and by substituting Exhibit I (Existing Furniture — Rev. 9/07) attached
hereto and made a part hereof in lieu thereof.



     H. Exhibit J (Form of Letter of Credit) to the Lease shall be and is hereby amended
by deleting the phrase “U.S. One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00)” set
forth in the first grammatical paragraph thereof in its entirety and by substituting the phrase
“U.S. One Hundred Eighty-Seven Thousand One Hundred Seven and 50/100 Dollars ($187,107.50)” in lieu
thereof.



     9. Authority of Landlord and Tenant; Tenant Representations.



     A. Landlord hereby represents and warrants to Tenant that: (i) the person signing on
behalf of Landlord is duly authorized to execute and deliver this Amendment; and (ii) the execution
and delivery of this Amendment and the performance of the terms hereof have been duly authorized by
all necessary corporate action on the part of Landlord. Tenant hereby represents and warrants to
Landlord that: (iii) the person signing on behalf of Tenant is duly authorized to execute and
deliver this Amendment; and (iv) the execution and delivery of this Amendment and the performance
of the terms hereof have been duly authorized by all necessary corporate action on the part of
Tenant.



     B. Tenant further represents and warrants that (i) the Lease is in full force and effect, (ii)
the Lease has not been assigned or encumbered, (iii) Tenant knows of no defense or counterclaim to
the enforcement of the Lease, (iv) Tenant is not entitled to any offset, abatement, or reduction of
rent under the Lease (except for the Free Net Rent Period, as amended hereby), (v) Landlord has
completed all work to be performed by Landlord and paid all contributions and other sums due to
Tenant under the Lease (except only for the Work to be performed in the Expansion Space by Landlord
pursuant to this Amendment), and (vi) neither Landlord nor Tenant is in default under any of its
obligations under the Lease.




7












 





     10. Brokers. Tenant hereby represents and warrants to Landlord that Tenant has not dealt
with any broker, agent, or finder in connection with this Amendment, and agrees to indemnify,
defend, and hold Landlord, and Landlord’s officers, employees, agents, and affiliates, harmless
from and against any and all claims, damages, judgments, liabilities, and expenses (including
without limitation court costs and reasonable attorneys’ fees) arising from any claims or demands
of any broker, agent, or finder with whom Tenant has dealt or is alleged to have dealt for any
commission or fee due or alleged to be due in connection with this Amendment.



     11. Governance. This Amendment is intended and shall be construed to complement and supplement
the Lease and, therefore, if and only to the extent that the provisions of this Amendment are
inconsistent or in conflict with the provisions of the Lease, then this Amendment shall govern and
control and the Lease shall be deemed amended, whenever required or necessary, to conform to the
provisions of this Amendment.



     12. Headings. The paragraph headings of this Amendment are for convenience only and are not
intended, and shall not be construed to alter, limit, or enlarge in any way the scope or meaning of
the language contained in this Amendment.



     13. Counterparts. This Amendment may be executed in counterparts, each of which shall be
deemed an original, and all of which, when taken together, shall be deemed and shall constitute a
single, integrated original document.



     14. Binding Effect. This Amendment shall extend to, be binding upon and inure to the benefit
of Landlord, its successors and assigns. This Amendment shall extend to and be binding upon Tenant,
its successors and assigns, and shall only inure to the benefit of Tenant and such of its
successors and assigns are permitted pursuant to the Lease.



     15. Entire Agreement. It is expressly agreed that this Amendment, including, without
limitation, all the Exhibits attached hereto, constitutes the whole agreement between Landlord and
Tenant as to the subject matter hereof and there are no other terms, promises, obligations,
covenants, warranties, representations, statements, or conditions, expressed or implied, of any
kind and all prior negotiations and agreements in respect of this Amendment are hereby superseded
by this Amendment and are of no further force and effect. No inference in favor of or against any
party should be drawn from the fact that such party drafted or participated in the drafting of this
Amendment or that such provisions have been drafted on behalf of such party.



8









 







     16. Applicable Law. This Amendment and any disputes arising hereunder shall be governed
by and shall in all respects be construed under the laws of the State of Illinois.



     17. Status of Lease. Except as expressly amended or modified hereby, the Lease and all
provisions, terms and conditions thereof shall remain, in all respects, unchanged and in full force
and effect, and are hereby ratified and confirmed.



     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MILLBROOK IV LLC, an Illinois limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Millbrook Properties LLC, Inc., an Illinois limited liability company, its Managing Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Harvey L. Miller	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Harvey L. Miller	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Its:
	 	Mng. Partner	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ALMA LASERS, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Howard V. Kelly	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Howard V. Kelly	 	 
	 	 	 	 	 	 	 
	 	 	Its:	 	 	 	 
	 	 	 	 	 	 	 





9









 





EXHIBIT A




PLAN OF PREMISES




[SEE FLOOR PLAN ATTACHED HERETO]




A-1









 







EXHIBIT B




WORK LETTER




     To induce Tenant to enter into the Amendment (to which this Exhibit B is attached) and in
consideration of the mutual covenants hereinafter contained, Landlord and Tenant agree as follows:



     1. Landlord shall construct, or cause to be constructed, leasehold improvements to the
Expansion Space (the “Work”) in substantial accordance with the Plans (as hereinafter defined).
Landlord shall cause a preliminary layout to be prepared with Tenant’s cooperation and for Tenant’s
approval, which approval shall not be unreasonably withheld, conditioned, or delayed. Tenant’s
failure to approve or disapprove the layout within five (5) days of its submission shall be deemed
an approval. Upon approval of the layout, Landlord shall prepare, or cause to be prepared, working
drawings for the construction of the standard building items and improvements, adequate in detail
to perform the Work, and shall, to the extent required, have mechanical (sprinkler, air
conditioning, heating, electrical, and plumbing) drawings prepared by Landlord’s mechanical
engineer covering mechanical elements of the Work (together with the preliminary layout, the
drawings are referred to as the “Plans”). The Work shall be performed (i) at Landlord’s sole cost
and expense utilizing Building standard qualities and quantities of materials, (ii) in compliance
with applicable Laws, and (iii) in a good and workmanlike manner. Landlord shall select a
contractor or contractors to perform the construction of the Work. Landlord shall use commercially
reasonable efforts to cause the Work to be substantially completed on or before December 18, 2007,
or as soon as reasonably practicable following the full execution and delivery of this Amendment by
each of Landlord and Tenant, subject in any case to Force Majeure Events and delays to the extent
attributable to any act or omission of Tenant or Tenant’s officers, employees, agents,
representatives, consultants, or contractors, including without limitation any delays by Tenant in
the submission of plans, drawings, specifications, or other information, or in approving any plans,
drawings, or estimates, or in giving any
authorization or approval hereunder within such time period as is reasonably directed by
Landlord, or in requesting any Additional Work hereunder (each, a “Tenant Delay”).



     2. Any other work desired by Tenant, including work in addition to, or in substitution for,
the work shown in the Plans, and approved by Landlord (which approval shall not be unreasonably
withheld), shall be performed by Landlord or Landlord’s contractors, unless Landlord otherwise
consents in writing, and at Tenant’s sole cost and expense to the extent that such other work, or
additional or substitute work, as the case may be, increases the cost of the Work. If Tenant
desires any other work or any work in addition to, or in substitution for, the Work described in
Section I hereof (“Additional Work”), Tenant shall cause the necessary drawings, plans, and
specifications for the Additional Work to be included on the Plans, or shall submit to Landlord or
Landlord’s agent (at Tenant’s sole cost and expense) the necessary drawings, plans, and
specifications for the Additional Work. Prior to commencing any such Additional Work requested by
Tenant, Landlord or Landlord’s agent shall submit to Tenant a written estimate of the cost of such
Additional Work. If Tenant shall fail to approve said estimate within seven (7) days from the
receipt thereof, the same shall be deemed disapproved in all respects by Tenant and Landlord shall
not be authorized to proceed thereon. If Tenant desires any



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changes in the Additional Work after having approved the initial plans and cost estimate,
Tenant shall be required to sign such field order changes requested by Landlord or Landlord’s
contractors or agents to evidence any such change desired by Tenant. Tenant acknowledges that no
cost estimate will be given for any changes in the Additional Work after the initial cost estimate
has been approved by Tenant, and Tenant shall be responsible for any and all costs associated with
any such change.




     3. Any and all costs of the Additional Work, if any, shall be due and payable by Tenant to
Landlord within thirty (30) days following Landlord’s invoice therefor.



     4. Landlord shall permit Tenant and Tenant’s agents to enter the Expansion Space prior to
substantial completion of the Work therein in order that Tenant may do such other work as may be
required by Tenant to make the Expansion Space ready for Tenant’s use and occupancy. Such
permission is conditioned upon Tenant and its agents, contractors, employees, and invitees working
in harmony and not interfering in any material respect with Landlord and its agents, contractors,
and employees in doing the Work and the Additional Work or for other tenants and occupants of the
Building. If at any time such entry shall cause or threaten to cause disharmony or interference,
Landlord shall have the right to withdraw such permission upon twenty-four (24) hours notice to
Tenant. Tenant agrees that any such entry into and occupation of the Expansion Space shall be
deemed to be under all of the terms, covenants, conditions, and provisions of the Lease except as
to the covenant to pay the rent, and further agrees Landlord shall not be liable in any way for any
injury, loss, or damage which may occur to any of Tenant’s work and installations made in the
Expansion Space or to properties placed therein prior to substantial completion of the Work, the
same being at Tenant’s sole risk, except to the extent that any damage is caused by the negligence
or willful misconduct of the Landlord
Indemnified Parties, or any of them.



     5. Substantial completion of the Work shall be deemed to occur on the date when all of the
following have occurred: (i) the Work has been completed (except for punchlist items which do not
materially, adversely affect Tenant’s use in any material respect); (ii) the Building systems
serving the Expansion Space are in working condition; (iii) a temporary certificate of occupancy or
other governmental approval, to the extent required, has been issued for the Expansion Space; and
(iv) Tenant is reasonably able to use and occupy all or substantially all of the Expansion Space
for the purpose of conducting its business therein. If substantial completion of the Work is
delayed due to Tenant Delay, the Expansion Space shall be deemed substantially completed on the
date when the Work would have been substantially completed but for such Tenant Delay. If
there is any dispute as to whether Landlord has substantially completed the Work, either
Landlord or Tenant may request a good faith decision by an independent architect or contractor
which shall be final and binding on the parties (and if such decision affirms Landlord’s
determination of substantial completion in all material respects, the Expansion Space shall be
deemed substantially completed on the date initially determined by Landlord). Landlord and Tenant
shall participate in a walk-through of the Expansion Space within five (5) business days after
Landlord notifies Tenant that the Work has been substantially completed. The parties shall identify
in writing any unfinished work or other “punchlist” items necessary for final completion of the
Work within such 5-business day period, and neither party shall unreasonably withhold approval
concerning any such items. Landlord shall use commercially reasonable efforts to



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complete any such unfinished work or other “punchlist” items within forty-five (45) days
thereafter, subject to Force Majeure Events and Tenant Delay. All defective work, materials, and
equipment comprising part of the initial Work performed by Landlord hereunder will be repaired or
replaced by or at the direction of Landlord, at no cost or expense to Tenant, as soon as reasonably
practicable following Landlord’s receipt of written notice thereof, subject in all events to Force
Majeure Events and Tenant Delay. Landlord’s responsibility for repairing or replacing such
defective work, materials, and equipment shall be limited to matters arising during, and matters
for which Landlord receives written notice thereof, during the one (1) year period following the
date of substantial completion of the Work.




     6. Tenant agrees to reimburse Landlord for any and all reasonable out-of-pocket costs and
expenses incurred by Landlord in connection with the Additional Work, if any, hereunder, which
costs and expenses shall be due and payable by Tenant to Landlord within thirty (30) days following
Landlord’s statement therefor.



     7. In addition to the Work described in Paragraph 1 hereof, but subject to the
terms and provisions of the Lease and this Exhibit B, it is acknowledged and agreed that Landlord
shall install (i) one (1) supplemental ceiling air conditioning unit (the “Supplemental HVAC Unit”)
to be located in Tenant’s computer room in substantial accordance with the plans and specifications
to be provided by Tenant in connection therewith, the capacity of which will be sized to
accommodate the appropriate cooling
load (as reasonably approved by Tenant) in such computer room (subject in all events to
Landlord’s review and approval lights as hereinabove set forth), and (ii) one (1) additional
grounded to the source electrical circuit (the “Additional Circuit”) to be located in Tenant’s
computer room (subject in all events to Landlord’s review and approval lights as hereinabove set
forth). Each of the Supplemental HVAC Unit and the Additional Circuit shall be deemed Additional
Work hereunder and shall be subject to all of the terms and provisions applicable thereto. Tenant
shall be responsible for fifty percent (50%) of the costs associated with the Supplemental HVAC
Unit, plus any and all costs associated with the Additional Circuit, and shall be required to
reimburse Landlord, within ten (10) days following Landlord’s invoice therefor, for such costs.
Tenant shall thereafter be solely responsible, at Tenant’s sole cost and expense, for the
maintenance, repair, and replacement of each of the Supplemental HVAC Unit and the Additional
Circuit in accordance with the terms and provisions of the Lease, including without limitation
Section 23 thereof. All sums payable by Tenant hereunder shall be deemed additional Rent under the
Lease. Notwithstanding anything herein or in the Lease to the contrary, and without limitation of
Tenant’s obligations as otherwise set forth therein, Landlord, at its sole option, may require
Tenant to remove the Supplemental HVAC Unit and/or the Additional Circuit, or any portion thereof,
upon the expiration or earlier termination of the Lease and to restore the Premises to the
condition existing prior to the installation thereof, subject to normal wear and tear, which
removal and restoration work shall be completed at Tenant’s sole cost and expense.



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EXHIBIT I




EXISTING FURNITURE (Rev. 10/07)




[SEE INVENTORY LIST ATTACHED HERETO]







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