exv10w4



 





EXHIBIT 10.4



02/03/06
02/15/06
03/09/06




MULTI-TENANT LEASE AGREEMENT




PC 101, INC., AS LANDLORD,




AND




SXC HEALTH SOLUTIONS, INC., AS TENANT.




OPUS PIMA CENTER II

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	DEFINITIONS	 	 	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	BASIC TERMS	 	 	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 1	 	LEASE OF PREMISES AND LEASE TERM	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1	 	Premises 	 	 	3	 
	 
	 	1.2	 	Term; Commencement 	 	 	3	 
	 
	 	1.3	 	Extension of Term 	 	 	3	 
	 
	 	1.4	 	Quiet Enjoyment 	 	 	3	 
	 
	 	1.5	 	Common Area 	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 2	 	RENTAL AND OTHER PAYMENTS	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1	 	Basic Rent 	 	 	4	 
	 
	 	2.2	 	Additional Rent	 	 	4	 
	 
	 	2.3	 	Delinquent Rental Payments 	 	 	4	 
	 
	 	2.4	 	No Accord and Satisfaction 	 	 	4	 
	 
	 	2.5	 	Rent Tax 	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 3	 	PROPERTY EXPENSES	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1	 	Payment of Property Expenses 	 	 	4	 
	 
	 	3.2	 	Estimation of Tenant’s Share of Property Expenses 	 	 	4	 
	 
	 	3.3	 	Payment of Estimated Tenant’s Share of Property Expenses 	 	 	5	 
	 
	 	3.4	 	Confirmation of Tenant’s Share of Property Expenses 	 	 	5	 
	 
	 	3.5	 	Tenant’s Inspection and Audit Rights 	 	 	5	 
	 
	 	3.6	 	Adjustments to Property Expenses 	 	 	5	 
	 
	 	3.7	 	Personal Property Taxes	 	 	5	 
	 
	 	3.8	 	Landlord’s Right to Contest Property Taxes 	 	 	5	 
	 
	 	3.9	 	Claim or Assessment of State Taxes 	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 4	 	TENANT’S USE	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1	 	Permitted Use 	 	 	6	 
	 
	 	4.2	 	Acceptance of Premises 	 	 	6	 
	 
	 	4.3	 	Laws/Property Rules 	 	 	6	 
	 
	 	4.4	 	Indemnification 	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 5	 	HAZARDOUS MATERIALS	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1	 	Compliance with Hazardous Materials Laws 	 	 	7	 
	 
	 	5.2	 	Notice of Actions 	 	 	7	 
	 
	 	5.3	 	Hazardous Materials Indemnification 	 	 	7	 
	 
	 	5.4	 	Hazardous Materials Representation 	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 6	 	SERVICES AND UTILITIES	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 7	 	MAINTENANCE AND REPAIR	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1	 	Landlord’s Obligations 	 	 	8	 
	 
	 	7.2	 	Tenant’s Obligations	 	 	8	 
	 
	 	 	 	7.2.1       Maintenance of Premises	 	 	8	 
	 
	 	 	 	7.2.2       Notice to Landlord	 	 	8	 
	 
	 	7.3	 	Supplemental Equipment 	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 8	 	ALTERATIONS	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.1	 	Landlord Approval 	 	 	8	 
	 
	 	8.2	 	Tenant Responsible for Cost and Insurance 	 	 	9	 
	 
	 	8.3	 	Construction Obligations; Ownership of Alterations 	 	 	9	 
	 
	 	8.4	 	Liens 	 	 	9	 
	 
	 	8.5	 	Indemnification	 	 	9	 
	 
	 	8.6	 	Alterations Required by Laws	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 9	 	RIGHTS RESERVED BY LANDLORD	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.1	 	Landlord’s Entry 	 	 	9	 
	 
	 	9.2	 	Control of Property	 	 	9	 
	 
	 	9.3	 	Common Area	 	 	10	 
	 
	 	9.4	 	Right to Cure	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 10	 	INSURANCE	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.1	 	Tenant’s insurance 	 	 	10	 
	 
	 	 	 	10.1.1     Liability Insurance 	 	 	10	 
	 
	 	 	 	10.1.2     Property Insurance 	 	 	10	 






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	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	10.1.3      Other Insurance 	 	 	10	 
	 
	 	10.2	 	Landlord’s Insurance 	 	 	10	 
	 
	 	 	 	10.2.1     Property Insurance 	 	 	10	 
	 
	 	 	 	10.2.2     Liability Insurance 	 	 	11	 
	 
	 	 	 	10.2.3     Other Insurance 	 	 	11	 
	 
	 	10.3	 	Waivers and Releases of Claims and Subrogation 	 	 	11	 
	 
	 	 	 	10.3.1    Tenant’s Waiver and Release 	 	 	11	 
	 
	 	 	 	10.3.2    Landlord’s Waiver and Release 	 	 	11	 
	 
	 	 	 	10.3.3    Limitation on Waivers of Claims 	 	 	11	 
	 
	 	10.4	 	Tenant’s Failure to Insure 	 	 	11	 
	 
	 	10.5	 	No Limitation 	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 11	 	DAMAGE OR DESTRUCTION	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	 
	 	11.1	 	Tenantable Within 270 Days 	 	 	11	 
	 
	 	11.2	 	Not Tenantable Within 270 Days 	 	 	12	 
	 
	 	11.3	 	Property Substantially Damaged 	 	 	12	 
	 
	 	11.4	 	Insufficient Proceeds 	 	 	12	 
	 
	 	11.5	 	Landlord’s Repair; Rent Abatement 	 	 	12	 
	 
	 	11.6	 	Rent Abatement if Lease Terminates 	 	 	12	 
	 
	 	11.7	 	Exclusive Casualty Remedy 	 	 	12	 
	 
	 	11.8	 	Notice to Landlord 	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 12	 	EMINENT DOMAIN	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.1	 	Termination of Lease 	 	 	12	 
	 
	 	12.2	 	Landlord’s Repair Obligations 	 	 	13	 
	 
	 	12.3	 	Tenant’s Participation 	 	 	13	 
	 
	 	12.4	 	Exclusive Taking Remedy 	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 13	 	TRANSFERS	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 
	 	13.1	 	Restriction on Transfers 	 	 	13	 
	 
	 	13.2	 	Recapture Right 	 	 	13	 
	 
	 	13.3	 	Costs 	 	 	13	 
	 
	 	13.4	 	Landlord’s Consent Standards 	 	 	14	 
	 
	 	13.5	 	Transfers to Affiliates 	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 14	 	DEFAULTS; REMEDIES	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	14.1	 	Events of Default 	 	 	14	 
	 
	 	 	 	14.1.1    Failure to Pay Rent 	 	 	14	 
	 
	 	 	 	14.1.2    Failure to Perform 	 	 	14	 
	 
	 	 	 	14.1.3    Misrepresentation 	 	 	14	 
	 
	 	 	 	14.1.4    Insolvency 	 	 	14	 
	 
	 	14.2	 	Remedies 	 	 	15	 
	 
	 	 	 	14.2.1    Termination of Tenant’s Possession/Re-entry and Reletting Right	 	 	15	 
	 
	 	 	 	14.2.2    Termination of Lease 	 	 	15	 
	 
	 	 	 	14.2.3    Present Worth of Rent 	 	 	15	 
	 
	 	 	 	14.2.4    Other Remedies 	 	 	15	 
	 
	 	14.3	 	Costs 	 	 	15	 
	 
	 	14.4	 	Waiver of Re-entry Claims 	 	 	16	 
	 
	 	14.5	 	Landlord’s Default 	 	 	16	 
	 
	 	14.6	 	No Waiver 	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 15	 	CREDITORS; ESTOPPEL CERTIFICATES	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.1	 	Subordination 	 	 	16	 
	 
	 	15.2	 	Attornment 	 	 	16	 
	 
	 	15.3	 	Mortgagee Protection Clause 	 	 	16	 
	 
	 	15.4	 	Estoppel Certificates 	 	 	16	 
	 
	 	 	 	15.4.1    Contents 	 	 	16	 
	 
	 	 	 	15.4.2    Failure to Deliver 	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 16	 	SURRENDER; HOLDING OVER	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 
	 	16.1	 	Surrender of Premises 	 	 	17	 
	 
	 	16.2	 	Holding Over 	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 17	 	TENANT IMPROVEMENTS	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.1	 	Base Building improvements 	 	 	17	 
	 
	 	17.2	 	Tenant Improvements 	 	 	17	 
	 
	 	17.3	 	Improvement Allowance 	 	 	18	 
	 
	 	17.4	 	Space Plan 	 	 	18	 
	 
	 	17.5	 	Construction Drawings and Specifications 	 	 	18	 
	 
	 	17.6	 	Changes to Construction Drawings and Specifications 	 	 	18	 
	 
	 	17.7	 	Landlord’s Approval Rights 	 	 	18	 
	 
	 	17.8	 	Tenant’s Representative 	 	 	19	 
	 
	 	17.9	 	Substantial Completion 	 	 	19	 
	 
	 	17.10	 	Punch List 	 	 	19	 






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	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.11	 	Construction Warranty 	 	 	19	 
	 
	 	17.12	 	Tenant Finish Work 	 	 	19	 
	 
	 	17.13	 	Signs 	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 18	 	ADDITIONAL PROVISIONS	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	18.1	 	Security Deposit 	 	 	19	 
	 
	 	18.2	 	Parking	 	 	19	 
	 
	 	18.3	 	Expanded Development 	 	 	20	 
	 
	 	18.4	 	Access to Premises Prior to Substantial Completion 	 	 	20	 
	 
	 	18.5	 	Exterior Building Signage 	 	 	20	 
	 
	 	18.6	 	Generator 	 	 	20	 
	 
	 	18.7	 	Building Compliance 	 	 	20	 
	 
	 	18.8	 	Access to Premises 	 	 	20	 
	 
	 	18.9	 	Fuel Storage Tanks 	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 19	 	MISCELLANEOUS PROVISIONS	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.1	 	Notices 	 	 	21	 
	 
	 	19.2	 	Transfer of Landlord’s Interest 	 	 	22	 
	 
	 	19.3	 	Successors 	 	 	22	 
	 
	 	19.4	 	Captions and Interpretation 	 	 	22	 
	 
	 	19.5	 	Relationship of Parties 	 	 	22	 
	 
	 	19.6	 	Entire Agreement; Amendment 	 	 	22	 
	 
	 	19.7	 	Severability 	 	 	22	 
	 
	 	19.8	 	Landlord’s Limited Liability 	 	 	22	 
	 
	 	19.9	 	Survival 	 	 	22	 
	 
	 	19.10	 	Attorneys’ Fees 	 	 	22	 
	 
	 	19.11	 	Brokers	 	 	22	 
	 
	 	19.12	 	Chance Events	 	 	22	 
	 
	 	19.13	 	Governing Law 	 	 	23	 
	 
	 	19.14	 	Time is of the Essence	 	 	23	 
	 
	 	19.15	 	Joint and Several Liability 	 	 	23	 
	 
	 	19.16	 	Independent Obligations 	 	 	23	 
	 
	 	19.17	 	Tenant’s Organization Documents; Authority 	 	 	23	 
	 
	 	19.18	 	Force Majeure 	 	 	23	 
	 
	 	19.19	 	Management 	 	 	23	 
	 
	 	19.20	 	Financial Statements 	 	 	23	 
	 
	 	19.21	 	No Recording 	 	 	23	 
	 
	 	19.22	 	Nondisclosure of Lease Terms 	 	 	23	 
	 
	 	19.23	 	Construction of Lease and Terms 	 	 	23	 






EXHIBITS




	 	 	 
	EXHIBIT “A”

	 	Definitions
	EXHIBIT “B”

	 	Legal Description of the Land
	EXHIBIT “C”

	 	Floor Plan
	EXHIBIT “D”

	 	Commencement Date Memorandum
	EXHIBIT “E”

	 	Property Rules
	EXHIBIT “F”

	 	Base Building Improvements
	EXHIBIT “G”

	 	Generator Locations
	EXHIBIT “H”

	 	Form of SNDA Agreement







iii











 





OFFICE LEASE AGREEMENT




     This Multi-Tenant Lease Agreement is made and entered into as of the Effective Date by and
between PC 101, INC., a Delaware corporation, as Landlord, and SXC HEALTH SOLUTIONS, INC., a
Texas corporation, as Tenant.



DEFINITIONS




     Capitalized terms used in this Lease and not defined elsewhere have the meanings given
them on the attached EXHIBIT “A”.



BASIC TERMS




     The following Basic Terms are applied under and governed by the particular section(s) in
this Lease pertaining to the following information:




	 	1.	 	Premises: Approximately 8,000 rentable square feet (7,767 usable square
feet) located within the Building as depicted on EXHIBIT “C”. The Building is
located at the northwest corner of Via de Ventura Boulevard and Loop 101 Pima
Freeway in Scottsdale, Arizona. The Building contains approximately 40,712 rentable
square feet.
	 
	 	2.	 	Lease Term: five years and four months 7.1.06 — 10.31.11
	 
	 	 	 	Extension Periods: one five-year renewal option notice given between 10.31.10 <—> 2.28.11
	 
	 	3.	 	Delivery Date: July 1, 2006
	 
	 	4.	 	Basic Rent:






	 	 	 	 	 	 	 	 	 
	 	 	Annual NNN Basic Rent per	 	 
	Months	 	rentable square foot of the Premises	 	Monthly NNN Basic Rent
	 
	 
	 	 	 	 	 	 	 	 
	1 - 4
	 	$	0.00	 	 	$	0.00	 
	 
	 	 	 	 	 	 	 	 
	5-64
	 	$	16.95	 	 	$	11,300.00	 








	 	 	 	 	 	 	 
	 
	 	5.	 	Initial Tenant’s Share of	 	 
	 
	 	 	 	Property Expenses Percentage:	 	19.65%
	 
	 	 	 	 	 	 
	 
	 	6.	 	Permitted Use:	 	General office purposes
	 
	 	 	 	 	 	 
	 
	 	7.	 	Improvement Allowance:	 	$35 per square foot of the Premises.
	 
	 	 	 	 	 	 
	 
	 	8.	 	Security Deposit:	 	$11,300.00
	 
	 	 	 	 	 	 
	 
	 	9.	 	Initial Property Manager/	 	 
	 
	 	 	 	Rent Payment Address:	 	Opus West Management Corporation
	 
	 	 	 	 	 	2555 East Camelback Road, Suite 840
	 
	 	 	 	 	 	Phoenix, Arizona 85016-9267
	 
	 	 	 	 	 	Attn: Accounts Receivable
	 
	 	 	 	 	 	           Opus Pima Center II
	 
	 	 	 	 	 	Telephone: (602) 912-8880
	 
	 	 	 	 	 	Facsimile: (602) 912-8881
	 
	 	 	 	 	 	 
	 
	 	10.	 	Address of Landlord	 	 
	 
	 	 	 	for Notices:	 	PC 101, Inc.
	 
	 	 	 	 	 	c/o Opus West Corporation
	 
	 	 	 	 	 	2555 East Camelback Road, Suite 800
	 
	 	 	 	 	 	Phoenix, Arizona 85016-9267
	 
	 	 	 	 	 	Attn:     Vice President — Real Estate Development
	 
	 	 	 	 	 	Opus Pima Center II
	 
	 	 	 	 	 	Telephone:     (602) 468-7000
	 
	 	 	 	 	 	Facsimile:      (602) 468-7045
	 
	 	 	 	 	 	 
	 
	 	 	 	With a copy to:	 	Opus West Corporation
	 
	 	 	 	 	 	2555 East Camelback Road, Suite 800
	 
	 	 	 	 	 	Phoenix, Arizona 85016-9267
	 
	 	 	 	 	 	Attn:     Legal Department
	 
	 	 	 	 	 	Telephone:     (602) 468-7000
	 
	 	 	 	 	 	Facsimile:(602) 468-7045
	 
	 	 	 	 	 	 
	 
	 	 	 	With a copy to:	 	Gallagher & Kennedy, P.A.
	 
	 	 	 	 	 	2575 East Camelback Road







 









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Phoenix, Arizona 85016-9225
	 
	 	 	 	 	 	Attn:     Mr. Gregory L. Mast
	 
	 	 	 	 	 	Telephone:     (602) 530-8000
	 
	 	 	 	 	 	Facsimile: (602) 530-8500
	 
	 	 	 	 	 	 
	 
	 	 	 	With a copy to:	 	Property Manager at the address set forth above.
	 
	 	 	 	 	 	 
	 
	 	11.	 	Address of Tenant	 	 
	 
	 	 	 	for Notices:	 	SXC Health Solutions, Inc.
	 
	 	 	 	 	 	2505 South Finley, Suite 110
	 
	 	 	 	 	 	Lombard, Illinois 60148
	 
	 	 	 	 	 	Attn:     Chief Financial Officer
	 
	 	 	 	 	 	Telephone: (630) 559-3600
	 
	 	 	 	 	 	Facsimile: (630) 268-0008
	 
	 	 	 	 	 	 
	 
	 	 	 	With a copy to:	 	Holland & Knight, LLC
	 
	 	 	 	 	 	131 South Dearborn,
	 
	 	 	 	 	 	30th Floor
	 
	 	 	 	 	 	Chicago, Illinois 60603-5506
	 
	 	 	 	 	 	Attn: Mr. Larry Zanger
	 
	 	 	 	 	 	Telephone: (312) 715-5780
	 
	 	 	 	 	 	Facsimile: (312) 578-6666
	 
	 	 	 	 	 	 
	 
	 	 	 	With a copy to:	 	Robert Erven Brown, P.A.
	 
	 	 	 	 	 	4535 East Hearn Road
	 
	 	 	 	 	 	Phoenix, Arizona 85032-5552
	 
	 	 	 	 	 	Attn: Robert Erven Brown
	 
	 	 	 	 	 	Telephone: (602) 992-6725
	 
	 	 	 	 	 	Facsimile: (602) 294-2363
	 
	 	 	 	 	 	 
	 
	 	12.	 	Broker(s):	 	Landlord: Lee & Associates (Bill Blake)
	 
	 	 	 	 	 	Tenant: The Staubach Company (Pat Williams)







2











 





ARTICLE 1

LEASE OF PREMISES AND LEASE TERM




     1.1 Premises. In consideration of the covenants and agreements set forth in this Lease and
other good and valuable consideration, Landlord leases the Premises to Tenant and Tenant leases
the Premises from Landlord, upon and subject to the terms and conditions set forth in this
Lease. The approximate sizes of the Premises and Building are set forth in the Basic Terms.
Pending measurement as provided below, those figures will be used for determining Rent. Prior to
or upon Substantial Completion, Landlord’s architect will measure the Premises and the Building.
The Premises will be measured from the exterior surface walls to the centerline of all walls
common to the premises of other tenants in the Building. The Building will be measured from the
exterior surface of all exterior walls of the Building. The square footages so determined will
be specified in the Commencement Date Memorandum executed as provided in Section 1.2. Landlord
and Tenant agree that such measurement by Landlord’s architect will conclusively establish the
size of the Premises and the Building for determining Rent and for all other purposes under this
Lease.



     1.2 Term; Commencement. The Term of this Lease is the period stated in the Basic Terms.
The Term commences on the Commencement Date and expires at 5:00 p.m. on the last day of
the last
calendar month of the Term. Landlord will tender possession of the Premises to Tenant upon
Substantial
Completion of the Tenant Improvements pursuant to Article 17. Promptly after the
Commencement Date,
Landlord and Tenant will execute a “Commencement Date Memorandum” in substantially the
form of EXHIBIT “D” to this Lease.



     1.3 Extension of Term. Provided that no Event of Default exists at the time of exercise,
Tenant may extend the Term of this Lease for one period of five years. Tenant must
exercise such right
of extension by delivering written notice of Tenant’s exercise at least 9, but not more
than 12, months
prior to the expiration of the Term. The extension of the Term will be on the same terms,
covenants and
conditions as in this Lease, other than Basic Rent. Basic Rent for the extension period
will be the fair
market rental rate(s) for the extension period, determined in relation to comparable (in
quality, location
and size) space located in the Building and/or in the greater Scottsdale metropolitan area
(“Fair Market
Basic Rent”). Landlord will reasonably determine such Fair Market Basic Rent and deliver
Landlord’s
determination to Tenant at least 8 months prior to the expiration of the Term. In no event
will the Fair
Market Basic Rent for the extension of the Term be less than the Basic Rent (exclusive of
temporary
abatements) payable by Tenant for the Lease Year immediately prior to commencement of the
extension
period. The extension rights are personal to Tenant and may not be assigned or transferred
in any
manner except in connection with an approved Transfer under Article 13.



          1.3.1 Selection of Fair Market Basic Rent. If Tenant disputes Landlord’s
determination of Fair Market Basic Rent for an extension of the Term, Tenant will deliver notice of
such dispute, together with Tenant’s proposed Fair Market Basic Rent, to Landlord within five days
of Tenant’s receipt of Landlord’s determination. The parties will then attempt in good faith to
agree upon the Fair Market Basic Rent. If the parties fail to agree within 15 days, then either
party shall be entitled to give notice to the other electing to have the Fair Market Basic Rent
selected by an appraiser as provided in this Section 1.3.1. Upon delivery and receipt of such
notice, the parties will within seven days thereafter mutually appoint an appraiser who will select
(in the manner set forth below) the Fair Market Basic Rent (the “Deciding Appraiser”). The Deciding
Appraiser must have at least five years of full-time commercial appraisal experience with projects
comparable to the Property and be a member of the American Institute of Real Estate Appraisers or a
similar appraisal association. The Deciding Appraiser may not have any material financial or
business interest in common with either of the parties. If Landlord and Tenant are not able to
agree upon a Deciding Appraiser within such seven days, each party will within five days thereafter
separately select an appraiser meeting the criteria set forth above, which two appraisers will,
within seven days of their selection, mutually appoint a third appraiser meeting the criteria set
forth above to be the Deciding Appraiser. Within seven days of the appointment (by either method)
of the Deciding Appraiser, Landlord and Tenant will submit to the Deciding Appraiser their
respective determinations of Fair Market Basic Rent and any related information. Within 21 days of
such appointment of the Deciding Appraiser, the Deciding Appraiser will review each party’s
submittal (and such other information as the Deciding Appraiser deems necessary) and will select,
in total and without modification, the submittal presented by either Landlord or Tenant as the Fair
Market Basic Rent; provided, however, that in no event will Fair Market Basic Rent [the Basic Rent]
for an extension of the Term be less than the Basic Rent (exclusive of temporary abatements)
payable by Tenant immediately prior to commencement of the applicable extension period. Subject to
the previous sentence, if the Deciding Appraiser timely receives one party’s submittal, but not
both, the Deciding Appraiser must designate the submitted proposal as the Fair Market Basic Rent
for the applicable extension of the Term. Any determination of Fair Market Basic Rent made by the
Deciding Appraiser in violation of the provisions of this Section 1.3.1 shall be beyond the scope
of authority of the Deciding Appraiser and shall be null and void. If the determination of Fair
Market Basic Rent is made by a Deciding Appraiser, Landlord and Tenant will each pay, directly to
the Deciding Appraiser, one-half (1/2) of all fees, costs and expenses of the Deciding Appraiser.
Landlord and Tenant will each separately pay all costs, fees and expenses of their respective
additional appraiser (if any) used to determine the Deciding Appraiser.




     1.4 Quiet Enjoyment. So long as Tenant pays all Rent as and when due and keeps, observes
and fully satisfies all other covenants, obligations and agreements of Tenant under this Lease,
Landlord covenants and agrees that, from and after the Commencement Date, Tenant may quietly
hold,



3









 




occupy and enjoy the Premises during the Term, subject to the terms and conditions of this Lease,
free from molestation or hindrance by Landlord or any person claiming by, through or under
Landlord.




     1.5 Common Area. Tenant will have the non-exclusive right, together with the other occupants
and users of the Property, to use the Common Area during the Term. Such right to use the Common
Area is subject to all of the terms and conditions of this Lease, including without limitation
all Property Rules and other Laws.



ARTICLE 2

RENTAL AND OTHER PAYMENTS




     2.1 Basic Rent. Tenant will pay Basic Rent in monthly installments to Landlord, in advance,
beginning on the Commencement Date and thereafter on the first day of each and every calendar
month during the Term. Tenant will make all Basic Rent payments to the Rent Payment Address
specified in the Basic Terms or at such other place or in such other manner as Landlord may from
time to time designate in writing. Tenant will make all Basic Rent payments without offset or
deduction and without any previous demand, invoice or notice for payment. Landlord will prorate,
on a per diem basis, Basic Rent for any partial month within the Term. An amount equal to one full
month of Basic Rent at the initial rate specified in the Basic Terms will be paid to Landlord by
Tenant upon execution of this Lease by Tenant, to be applied against the first installment of
Basic Rent by Landlord when due.



     2.2 Additional Rent. Article 3 of this Lease requires Tenant to pay Tenant’s Share of
Property Expenses as Additional Rent pursuant to estimates Landlord delivers to Tenant. Tenant
will make all such payments in accordance with Section 3.3 without offset or deduction and without
any previous demand, invoice or notice for payment. Tenant will pay all other Additional Rent
described in this Lease within 30 days after receiving Landlord’s invoice for such Additional
Rent. Tenant will make all Additional Rent payments to the same location and, except as described
in the previous sentence, in the same manner as Basic Rent payments.



     2.3 Delinquent Rental Payments. If Landlord does not receive any payment of Basic Rent or
Additional Rent within three days after the date the payment is due, Tenant will pay Landlord a
late payment charge equal to five percent of the amount of the delinquent payment. Further, if
Landlord does not receive any payment of Basic Rent or Additional Rent within 30 days after the
date the payment is due, Tenant will pay Landlord interest on the delinquent payment calculated at
the Maximum Rate from the date the payment is due through the date the payment is received by
Landlord. The parties agree that such amounts represent a fair and reasonable estimate of the
damages Landlord will incur by reason of such late payment. Such charges will be considered
Additional Rent and Landlord’s right to such compensation for the delinquency is in addition to
all of Landlord’s rights and remedies under this Lease, at law or in equity.



     2.4 No Accord and Satisfaction. No statement on a payment check from Tenant or in a letter
accompanying a payment check is binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of any such statement. No
acceptance by Landlord of full or partial Rent during the continuance of any breach or default by
Tenant constitutes a waiver of any such breach or default. If Tenant pays any amount other than
the actual amount due Landlord, receipt or collection of such partial payment does not constitute
an accord and satisfaction. Landlord may retain any such partial payment, whether restrictively
endorsed or otherwise, without prejudice to Landlord’s right to collect the balance properly due.
If all or any portion of any payment is dishonored for any reason, payment will not be deemed
made until the entire amount due is actually collected by Landlord. The foregoing provisions
apply in kind to the receipt or collection of any amount by a lock box agent or other person on
Landlord’s behalf.



     2.5 Rent Tax. Tenant will pay to Landlord all Rent Tax (if any) due in connection with this
Lease or the payment of Rent hereunder, which Rent Tax will be paid by Tenant to Landlord
concurrently with each payment of Rent made by Tenant to Landlord under this Lease.



ARTICLE 3

PROPERTY EXPENSES




     3.1 Payment of Property Expenses. Tenant will pay, as Additional Rent and in the manner
this Article 3 describes, Tenant’s Share of Property Expenses for each calendar year of the
Term. If the Term includes any partial calendar years, or Tenant is otherwise required under
this Lease to pay Tenant’s Share of Property Expenses for only part of a full calendar year,
Landlord will appropriately prorate Tenant’s Share of Property Expenses for such partial
calendar year on a per diem basis based on the number of days within such partial calendar year.



     3.2 Estimation of Tenant’s Share of Property Expenses. Landlord will deliver to Tenant a
written estimate of the following for each calendar year of the Term: (a) Property Expenses, (b)
Tenant’s Share of Property Expenses, and (c) the annual and monthly Additional Rent attributable
to Tenant’s Share of Property Expenses. Landlord may re-estimate Property Expenses from time to
time during the Term. In such event, Landlord will revise the monthly Additional Rent
attributable to Tenant’s Share of Property Expenses to an amount sufficient for Tenant to pay
the re-estimated amount over the balance of the calendar year. Landlord will notify Tenant at
least 30 days prior to the effective date of any such reestimate.



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     3.3 Payment of Estimated Tenant’s Share of Property Expenses. Tenant will pay the amount
Landlord estimates as Tenant’s Share of Property Expenses under Section 3.2 in equal monthly
installments, in advance, beginning on the Commencement Date and thereafter on the first day of
each and every calendar month during the Term. If Landlord has not delivered a new estimate to
Tenant by the first day of January of the applicable calendar year, Tenant will continue paying
Tenant’s Share of Property Expenses based on Landlord’s estimates for the previous calendar year.
When Tenant receives Landlord’s estimates for the current calendar year, Tenant will pay the
estimated amount for such calendar year (less amounts Tenant paid to Landlord in accordance with
the immediately preceding sentence) in equal monthly installments over the balance of such
calendar year, with the number of installments being equal to the number of full calendar months
remaining in such calendar year.



     3.4 Confirmation of Tenant’s Share of Property Expenses. After the end of each calendar
year within the Term, Landlord will determine the actual amount of Tenant’s Share of Property
Expenses for the expired calendar year and deliver to Tenant a written statement of such amount.
If Tenant paid less than the amount of Tenant’s Share of Property Expenses specified in the
statement, Tenant will pay the difference to Landlord as Additional Rent. If Tenant paid more
than the amount of Tenant’s Share of Property Expenses specified in the statement, Landlord
will, at Landlord’s option, either (a) refund the excess amount to Tenant, or (b) credit the
excess amount against Tenant’s next due monthly installment or installments of estimated
Additional Rent. If Landlord is delayed in delivering such statement to Tenant, such delay does
not constitute a waiver of either party’s rights under this Section.



     3.5 Tenant’s Inspection and Audit Rights. If Tenant desires to audit Landlord’s
determination of the actual amount of Tenant’s Share of Property Expenses for any calendar
year, Tenant
must deliver to Landlord written notice of Tenant’s election to audit within 60 days after
Landlord’s
delivery of the statement of such amount under Section 3.4. If such notice is timely
delivered, and
provided that no Event of Default then exists under this Lease, Tenant (but not any
subtenant or
assignee) may, at Tenant’s sole cost and expense, cause a certified public accountant
reasonably
acceptable to Landlord to audit Landlord’s records relating to such amounts on a
non-contingent basis.
Such audit will take place during regular business hours at a time and place reasonably
acceptable to
Landlord (which may be the location where Landlord or Property Manager maintains the
applicable
records). Tenant’s election to audit (Landlord’s determination of Tenant’s Share of Property
Expenses is
deemed withdrawn unless Tenant completes and delivers the audit report to Landlord within 90
days after
the date Tenant delivers its notice of election to audit to Landlord under this Section. If
the audit report
shows that the amount Landlord charged Tenant for Tenant’s Share of Property Expenses was
greater
than the amount this Article 3 obligates Tenant to pay, unless Landlord reasonably contests
the audit,
Landlord will refund the excess amount to Tenant, together with interest on the excess
amount (computed
at 10% per annum from the date Tenant delivers its dispute notice to Landlord), within 30
days after
Landlord receives a copy of the audit report. If the audit report shows that the amount
Landlord charged
Tenant for Tenant’s Share of Property Expenses was less than the amount this Article 3
obligates Tenant
to pay, Tenant will pay to Landlord, as Additional Rent, the difference between the amount
Tenant paid
and the amount determined in the audit. Pending resolution of any audit under this Section,
Tenant will
continue to pay to Landlord all estimated amounts of Tenant’s Share of Property Expenses in
accordance
with Section 3.3. Tenant must keep all information it obtains in any audit strictly
confidential and may only
use such information for the limited purpose this Section describes and for Tenant’s own
account.



     3.6 Adjustments to Property Expenses. If any portions of the rentable area of the Building
are not occupied at any time during any calendar year pursuant to leases under which the terms
and rents have commenced for such calendar year. Landlord may reasonably and equitably adjust
its computation of Property Expenses for that calendar year to include all components of
Property Expenses (if any) that vary based on occupancy in an amount equal to Landlord’s
reasonable estimate of the amount Tenant would have paid for such components of Property
Expenses had all of the rentable area of the Building been so occupied at all times during such
calendar year. If at any time or from time to time any components of Property Expenses relate to
(a) services or benefits that are received by Tenant but not all other tenants in the Building;
(b) costs that are incurred by Landlord on behalf of Tenant but not all other tenants in the
Building; (c) costs that are incurred by Landlord solely, or in disproportionate amounts, as a
result of Tenant’s particular use or occupancy of the Premises or Property as compared to other
tenants in the Building; or (d) services, benefits or costs that are otherwise received or
incurred in differing amounts by, for or as a result of Tenant’s particular use or occupancy of
the Premises or Property as compared to other tenants of the Building, then Landlord may, in
Landlord’s reasonable discretion, adjust Landlord’s computation of such components of Property
Expenses to equitably allocate such components of Property Expenses among Tenant and the other
tenants of the Building, as applicable, in amounts Landlord reasonably determines to be
proportionate to the amounts of such services, benefits and costs received by or incurred for or
as a result of Tenant and each such other tenant.



     3.7 Personal Property Taxes. Tenant will pay, prior to delinquency, all taxes charged
against Tenant’s Personal Property. Tenant will use all reasonable efforts to have Tenant’s
Personal Property taxed separately from the Property. If any of Tenant’s Personal Property is
taxed with the Property. Tenant will pay the taxes attributable to Tenant’s Personal Property
to Landlord as Additional Rent.



     3.8 Landlord’s Right to Contest Property Taxes. Landlord may, but is not obligated to,
contest the amount or validity, in whole or in part, of any Property Taxes. If Property Taxes
are reduced (or if a proposed increase is avoided or reduced) because Property Taxes are
contested, Landlord may



5









 




include in its computation of Property Taxes the costs and expenses incurred in connection with
such contest, including without limitation reasonable attorney’s fees, up to the amount of any
Property Tax reduction obtained in connection with the contest or any Property Tax increase
avoided or reduced in connection with the contest, as the case may be. Tenant may not contest
Property Taxes.




     3.9 Claim or Assessment of State Taxes.



          3.9.1 Tenant will forthwith notify the Community of any claim of right by the State of
Arizona or any of its political subdivisions or municipalities to or assessment of taxes and
will forthwith send to the Community copies of all notices or other documents received by it in
connection with any such claim or assessment of taxes.




          3.9.2 Tenant will make no payment of such taxes without approval of the Community and the
Master Lessor under the Ground Lease unless such payment is made under protest that there is no
right to assess or claim such taxes.




          3.9.3 Tenant will cooperate in any action undertaken by the Community or the Master Lessor
under the Ground Lease in regard to any claim or assessment of such taxes and will further
cooperate with the Community and the Master Lessor in any litigation resulting from a payment
under protest as set out in Section 3.9.2 hereof. Such cooperation, however, shall not require
or subject Tenant to any additional cost or expense except those provided for under the Ground
Lease, and any such litigation shall be undertaken by and the expenses thereof shall be borne
exclusively by the Community and the Master Lessor. In addition, Tenant shall not be obligated
to be a party initiating such action or litigation brought by the Community or the Master Lessor
without its written consent thereto.




          3.9.4 Nothing contained herein shall require Tenant to take any action that (i) is
inconsistent with its rights and obligations under this Lease; (ii) will subject it to any
penalty, fine or lien imposed by any taking authority; or (iii) otherwise diminish or
jeopardize its leasehold interest as provided for under this Lease.




          3.9.5 For purposes of this Section 3.9, “taxes” shall mean any ad valorem taxes, including
leasehold or possessory interest taxes sought to be assessed by or collected by the State of
Arizona or any of its political subdivisions or municipalities having or claiming to have
authority by virtue of the Arizona State Constitution or laws, against the property interest in
the leasehold subject of this Lease or any other property or possessory interest connected with
that leasehold.




ARTICLE 4

TENANT’S USE




     4.1 Permitted Use. Tenant will use the Premises only for the permitted use specified in the
Basic Terms and may not use the Premises for any other purposes. Tenant will not conduct such
permitted use, or allow such permitted use to be conducted, in violation of any Laws or in any
manner that would (a) violate any certificate of occupancy affecting the Property; (b) violate,
invalidate or cause a loss of coverage under any insurance now or after the Effective Date in
force with respect to the Property; (c) cause injury or damage to the Property or to the person
or property of any other tenant on the Property; or (d) cause diminution in the value or
usefulness of all or any part of the Property (reasonable wear and tear excepted). Tenant will
not commit any nuisance or waste in, on or about the Premises or the Property. Tenant will not
use the Common Area in any manner that is inconsistent with Tenant’s permitted use of the
Premises nor in any manner that unreasonably interferes with the use of the Property by other
occupants or users of the Property. Tenant will obtain and maintain, at Tenant’s sole cost and
expense, all permits and approvals required under the Laws for Tenant’s use of the Property.
Tenant will not vacate or abandon the Premises prior to 60 days before the expiration of the Term
without Landlord’s prior written consent. If Tenant’s particular use or occupancy of the Premises
or Property (even though within the scope of Tenant’s permitted use) causes or requires Landlord
to incur any unusual or extraordinary costs or expenses (including, without limitation, costs for
any (i) special governmental permits, (ii) special maintenance, monitoring, inspection or
reporting requirements, (iii) additional insurance premiums, surcharges, policies or coverages,
or (iv) other matters required solely as a result of Tenant’s particular use or occupancy of the
Premises or Property), Landlord may bill Tenant directly therefor and Tenant will pay all such
cost and expense so billed to Landlord as Additional Rent.



     4.2 Acceptance of Premises. Except as may be expressly set forth in this Lease, Tenant
acknowledges that neither Landlord nor any agent, contractor or employee of Landlord has made
any representation or warranty of any kind with respect to the Premises, the Building or the
Property, specifically including, but not limited to, any representation or warranty of
suitability or fitness of the Premises, Building or the Property for any particular purpose, and
Tenant’s acceptance and occupancy of the Premises conclusively establishes Tenant’s acceptance
of the Premises, the Building and the Property in an “AS IS — WHERE IS” condition.



     4.3 Laws/Property Rules. This Lease is subject and subordinate to all Laws. A copy of the
current Property Rules is attached to this Lease as EXHIBIT “E”. Landlord may revise the
Property Rules from time to time in Landlord’s reasonable discretion.



     4.4 Indemnification. Except for the Claims waived by Landlord in Section 10.3.2, Tenant
releases and will, to the fullest extent allowable under the Laws, indemnify, protect, defend
(with counsel



6









 




reasonably acceptable to Landlord) and hold harmless the Landlord Parties from and against all
Claims arising from (a) any use of the Premises or Property by Tenant that violates the terms
of this Lease; (b) any breach or default by Tenant in the performance of any of Tenant’s
covenants or agreements in this Lease, (c) any act, omission, negligence or misconduct of
Tenant, (d) any accident, injury, occurrence or damage in or to the Premises, and (e) if caused
in whole or in part by Tenant, any accident, injury, occurrence or damage in, about or to the
Property. The indemnifications described in this Section 4.4 shall include the Landowner
Parties as indemnified parties.




ARTICLE 5

HAZARDOUS MATERIALS




     5.1 Compliance with Hazardous Materials Laws. Tenant will not cause any Hazardous
Materials to be brought upon, kept or used on the Property in a manner or for any purpose that
violates any Hazardous Materials Laws. Tenant, at its sole cost and expense, will comply with
all Hazardous Materials Laws related to Tenant’s use of the Property. On or before the
expiration or earlier termination of this Lease, Tenant will completely remove from the
Property (regardless whether any Hazardous Materials Law requires removal), in compliance with
all Hazardous Materials Laws and at Tenant’s sole cost and expense, all Hazardous Materials
Tenant causes to be present in, on, under or about the Property. Upon Landlord’s written
request, Tenant will promptly deliver to Landlord documentation acceptable to Landlord
disclosing the nature and quantity of any Hazardous Materials Tenant has located at the
Property and evidencing the legal and proper handling, storage and disposal of all Hazardous
Materials kept at or removed or to be removed from the Property by Tenant. All such
documentation will list Tenant or its agent as the responsible party and will not attribute
responsibility for any such Hazardous Materials to Landlord or Property Manager. Tenant will
comply with and is solely responsible for all reporting and warning obligations required under
Hazardous Materials Laws arising from Tenant’s use or occupancy of the Premises or Property.



     5.2 Notice of Actions. Tenant will notify Landlord of any of the following actions
affecting Landlord, Tenant or the Property that result from or in any way relate to Tenant’s
use of the Property, immediately after receiving notice of the same: (a) any enforcement,
clean-up, removal or other governmental or regulatory action instituted, completed or
threatened under any Hazardous Materials Law; (b) any Claims made or threatened relating to any
Hazardous Material; and (c) any reports, records, letters of inquiry and responses, manifests
or other documents made by any person, including Tenant, to or from any environmental agency
relating to any Hazardous Material, including any complaints, notices, warnings or asserted
violations. Tenant will not take any remedial action in response to the presence of any
Hazardous Materials in, on, under or about the Property, nor enter into any settlement
agreement, consent decree or other compromise with respect to any Claims relating to or in any
way connected with Hazardous Materials in, on, under or about the Property, without first
notifying Landlord of Tenants intention to do so and affording Landlord reasonable opportunity
to investigate, appear, intervene and otherwise assert and protect Landlord’s interest in the
Property. The indemnifications described in this Section 5.2 shall include the Landowner
Parties as indemnified parties.



     5.3 Hazardous Materials Indemnification. Tenant releases and will indemnify, protect,
defend (with counsel reasonably acceptable to Landlord) and hold harmless the Landlord Parties
from and against any and all Claims whatsoever arising or resulting, in whole or in part,
directly or indirectly, from the presence, treatment, storage, transportation, disposal,
release or management of Hazardous Materials in, on, under, about or from the Property
(including water tables and atmosphere), but only to the extent arising from Tenant’s use or
occupancy of the Premises or Property. Tenant’s obligations under this Section include, without
limitation and whether foreseeable or unforeseeable, (a) the costs of any required or necessary
repair, compliance, investigations, clean-up, monitoring, response, detoxification or
decontamination of the Property; (b) the costs of implementing any closure, remediation or
other required action in connection therewith; (c) the value of any loss of use and any
diminution in value of the Property and adjacent and nearby properties, including groundwater;
and (d) consultants’ fees, experts’ fees and response costs. The obligations of Tenant under
this Article survive the expiration or earlier termination of this Lease.



     5.4 Hazardous Materials Representation. To Landlord’s knowledge, Landlord is not aware of
any Hazardous Material which exists or is located on the Property, except as may be disclosed
in that certain Environmental Site Assessment prepared by Geotechnical and Environmental
Consultants, Inc., dated February 8, 2005.



ARTICLE 6

SERVICES AND UTILITIES




     Tenant is solely responsible for obtaining all services and utilities Tenant desires in
connection with Tenant’s use and occupancy of the Premises. Tenant is also solely responsible
for paying directly to the applicable service or utility companies, prior to delinquency, all
charges of every nature, kind or description for services and utilities furnished to the
Premises or chargeable against the Premises (including, without limitation, any deposits
required or charges imposed by any utility or service company as a condition precedent to
furnishing or continuing to furnish utilities or services to the Premises), including all
charges for water, sewer, heat, gas, light, garbage and rubbish removal, electricity,
telecommunications, cable, steam, power, or other public or private utilities and services and
any charges or fees for present or future water or sewer capacity to serve the Premises. Tenant
will also pay all charges relating to any addition, extension, relocation, or other change in
the facilities necessary to



7









 




provide the Premises with any additional utilities and services. No interruption in, or
temporary stoppage of, any utility or service to the Premises will be deemed an eviction or
disturbance of Tenant’s use and possession of the Premises, nor does any interruption or
stoppage relieve Tenant from any obligations under this Lease, render Landlord liable for
damages or entitle Tenant to any Rent abatement.




ARTICLE 7

MAINTENANCE AND REPAIR




     7.1 Landlord’s Obligations. Landlord will keep and maintain in good order, condition and
repair, reasonable wear and tear excepted, the (a) exterior surfaces of the exterior walls
(excluding windows and plate glass) and roof (including the roof membrane) of the Building; (b)
structural integrity of the footings, foundation, exterior walls, roof and other structural
elements of the Building, and (c) the Common Area. The costs and expenses incurred by Landlord
in performing its obligations under this Section 7.1 will be included in Operating Expenses
(but only to the extent provided under the definition thereof).



     7.2 Tenant’s Obligations.



          7.2.1 Maintenance of Premises. Except for Landlord’s obligations described in Section 7.1,
Tenant, at its sole cost and expense, will keep and maintain the Premises in good, clean,
sanitary, neat and fully operative condition and repair, reasonable wear and tear, Casualty and
Taking excepted. Tenant’s obligations under this Section 7.2 include, without limitation,
maintenance and repair (including replacements) of all: (a) non-structural interior portions,
systems and equipment; (b) interior surfaces of exterior walls; (b) interior moldings,
partitions and ceilings; (c) slabs, floors and columns; (d) windows, plate glass, and doors;
and (e) electrical, lighting, mechanical, plumbing, heating and air conditioning systems,
facilities, fixtures and components exclusively serving the Premises. Tenant will also pay or
reimburse Landlord for (or, at Landlord’s option, perform) the repair or replacement of any
waste or excessive or unreasonable wear and tear to the Premises or Property caused or
permitted by Tenant. Any repairs or replacements performed by Tenant pursuant to this Section
7.2 must be at least equal in quality and workmanship to the original work and be in accordance
with all Laws. Tenant will at all times and at Tenant’s sole cost and expense keep a
preventative maintenance and repair contract in force and effect for the heating, air
conditioning and ventilation system serving the Premises. Such contract (including without
limitation the schedule and scope of services provided and the identity and capabilities of the
contractor) must be approved by Landlord in Landlord’s reasonable discretion.




          7.2.2 Notice to Landlord. If Tenant believes any maintenance or repair Landlord is
obligated under Section 7.1 to perform is needed at the Property, Tenant will promptly provide
written notice to Landlord specifying in detail the nature and extent of any condition
requiring maintenance or repair. Landlord will not be deemed to have failed to perform its
obligations under Section 7.1 with respect to any maintenance or repair unless Tenant has
provided such written notice and Landlord has had a commercially reasonable time within which
to respond to such notice and effect the needed maintenance or repair.




     7.3 Supplemental Equipment. Any Supplemental Equipment will be maintained, repaired and
replaced as needed by Tenant at Tenant’s sole cost and expense. Landlord has no liability for
the operation, repair, maintenance or replacement of any such Supplemental Equipment or for any
other systems, fixtures or equipment placed within the Premises by Tenant that are not a part
of the Building’s standard equipment and systems. If Landlord elects at any time to perform any
repair or maintenance upon such Supplemental Equipment, Landlord will do so at Tenant’s sole
cost and expense.



ARTICLE 8

ALTERATIONS




     8.1 Landlord Approval. Tenant will not make any Major Alterations without Landlord’s prior
written consent, which consent Landlord may grant, withhold or condition in Landlord’s sole and
absolute
discretion. Tenant will not make any other Alterations without Landlord’s prior written
consent, which
consent Landlord will not unreasonably condition or withhold. Along with any request for
Landlord’s
consent, Tenant will deliver to Landlord plans and specifications for the Alterations and names and
addresses of all prospective contractors for the Alterations, if Landlord fails to grant or
withhold its
consent for any Alterations within 10 Business Days after receipt of a request for consent from
Tenant,
then Landlord will be deemed to have consented to any Alterations that were the subject of such
request
for consent. If Landlord approves the proposed Alterations, Tenant will, before commencing the
Alterations or delivering (or accepting delivery of) any materials to be used in connection with the
Alterations, deliver to Landlord certificates evidencing the insurance coverages and copies of
any bonds
required by Section 8.2, copies of all necessary permits and licenses, and such other
information relating
to the Alterations as Landlord reasonably requests. Tenant will not commence the Alterations
before
Landlord has, in Landlord’s reasonable discretion, provided Landlord’s written approval of the
foregoing
deliveries. Tenant, at its sole cost and expense, will remove any Alterations Tenant
constructs without
obtaining Landlord’s approval as provided in this Article 8 within 10 days after Landlord’s
written request
and will thereafter fully and promptly repair and restore the Premises and Property to its previous
condition. No approval or inspection of Alterations by Landlord constitutes any representation or
agreement by Landlord that the Alterations comply with sound architectural or engineering
practices or
with all applicable Laws, and Tenant is solely responsible for ensuring such compliance.



8









 





     8.2 Tenant Responsible for Cost and Insurance. Tenant will pay the entire cost and expense
of all Alterations, including, without limitation, for any painting, restoring or repairing of
the Premises or the Property necessitated by the Alterations and a reasonable charge for
Landlord’s review, inspection and engineering time. Tenant will also obtain and/or require: (a)
demolition (if applicable) and payment and performance bonds in an amount not less than the full
cost of the Alterations; (b) builder’s “all risk” insurance in an amount at least equal to the
replacement value of the Alterations; and (c) liability insurance insuring Tenant and each of
Tenant’s contractors against construction related risks in at least the form, amounts and
coverages required of Tenant under Article 10. The insurance policies described in clauses (b)
and (c) of this Section must name Landlord, Landlord’s lender (if any) and Property Manager as
additional insureds, specifically including completed operations.



     8.3 Construction Obligations; Ownership of Alterations. Tenant will notify Landlord in
writing 30 days prior to commencing any Alterations in order to provide Landlord the
opportunity to record and post notices of non-responsibility or such other protective notices
available to Landlord under the Laws. Tenant will cause all Alterations to be constructed (a)
promptly by contractors approved by Landlord as provided above; (b) in a good and workmanlike
manner; (c) in compliance with all Laws; (d) in a manner that will minimize interference with
other tenants’ use and enjoyment of the Property; and (e) in full compliance with all of
Landlord’s rules and regulations applicable to third party contractors, subcontractors and
suppliers performing work at the Property. Landlord may inspect construction of the
Alterations. All Alterations (including all telephone, computer, security and other wiring and
cabling located within the walls of and outside the Premises, but excluding Tenant’s Personal
Property) become the property of Landlord and a part of the Building immediately upon
installation. Unless Landlord requires Tenant to remove the Alterations, Tenant will surrender
the Alterations to Landlord upon the expiration or earlier termination of this Lease at no cost
to Landlord.



     8.4 Liens. Tenant will keep the Property free from any mechanics’, materialmens’,
designers’ or other liens arising out of any work performed, materials furnished or obligations
incurred by or for Tenant or any person or entity claiming by, through or under Tenant.
Immediately after completing the Alterations, Tenant will furnish Landlord with contractor
affidavits and full and final lien waivers covering all labor and materials expended and used
in connection with the Alterations. If any liens are filed against the Property and Tenant,
within 15 days after such filing, does not release the same of record or provide Landlord with
a bond or other security satisfactory to Landlord protecting Landlord and the Property against
such liens, Landlord may, without waiving its rights and remedies based upon such breach by
Tenant and without releasing Tenant from any obligation under this Lease, cause such liens to
be released by any means Landlord deems proper, including, but not limited to, paying the claim
giving rise to the lien or posting security to cause the discharge of the lien. In such event,
Tenant will reimburse Landlord, as Additional Rent, for all amounts Landlord pays (including,
without limitation, reasonable attorneys’ fees and costs).



     8.5 Indemnification. To the fullest extent allowable under the Laws, Tenant releases and
will indemnify, protect, defend (with counsel reasonably acceptable to Landlord) and hold
harmless the Landlord Parties and the Property from and against any Claims in any manner
relating to or arising out of any Alterations or any other work performed, materials furnished
or obligations incurred by or for Tenant or any person or entity claiming by, through or under
Tenant. The indemnifications described in this Section 8.5 shall include the Landowner Parties
as indemnified parties.



     8.6 Alterations Required by Laws. If any governmental authority requires any Alteration to
the Property or the Premises as a result of Tenant’s particular use of the Premises or as a
result of any Alteration to the Premises made by or on behalf of Tenant, Tenant will pay the
cost of all such Alterations. If any such Alterations are Major Alterations, Landlord will have
the right to make the Major Alterations, provided that Landlord may first require Tenant to
deposit with Landlord an amount sufficient to pay the cost of the Major Alterations (including,
without limitation, reasonable overhead and administrative costs). If the Alterations are not
Major Alterations, Tenant will make the Alterations at Tenant’s sole cost and expense in
accordance with the foregoing provisions of this Article 8.



ARTICLE 9

RIGHTS RESERVED BY LANDLORD




     9.1 Landlord’s Entry. Landlord and its authorized representatives may at all reasonable
times and upon reasonable notice to Tenant enter the Premises to: (a) inspect the Premises; (b)
show the Premises to prospective purchasers, mortgagees and, within the last 12 months of the
Term, tenants; (c) post notices of non-responsibility or other protective notices available
under the Laws; or (d) exercise and perform Landlord’s rights and obligations under this Lease.
Landlord may in the event of any emergency enter the Premises without notice to Tenant.
Landlord’s entry into the Premises is not to be construed as a forcible or unlawful entry into,
or detainer of, the Premises or as an eviction of Tenant from all or
any part of the Premises.
Tenant will also permit Landlord to erect, install, use, maintain, replace and repair pipes,
cables, conduits, plumbing and vents, and telephone, electric and other wires or other items,
in, to and through the Premises if Landlord determines that such activities are necessary or
appropriate for properly operating and maintaining the Building.



     9.2 Control of Property. Landlord reserves all rights respecting the Property and
Premises not specifically granted to Tenant under this Lease, including without limitation the
right to: (a) change the name or street address of the Building; (b) designate and approve all
types of signs, window coverings, lighting and other aspects of the Premises that may be
visible from the exterior of the Premises; (c) grant



9









 




any party the exclusive right to conduct any business or render any service in the Property,
provided such exclusive right does not prohibit Tenant from any permitted use for which Tenant is
then using the Premises; (d) prohibit Tenant from installing vending or dispensing machines of
any kind In or about the Premises other than those Tenant reasonably installs in the Premises
solely for use by Tenant’s employees; (e) close the Building after Business Hours, except that
Tenant will be allowed to access the Premises after Business Hours in accordance with such rules
and regulations as Landlord may prescribe from time to time for security purposes; (f) install,
operate and maintain security systems that monitor, by closed circuit television or otherwise,
all persons entering or leaving the Building; (g) impose reasonable screening procedures, access
limitations, or other procedures designed to limit and control access to the Building by
unauthorized persons; (h) install and maintain pipes, ducts, conduits, wires and structural
elements in the Premises that serve other parts or other tenants of the Property; and (i) retain
and receive master keys or pass keys to the Premises and all doors in the Premises.
Notwithstanding the foregoing, Landlord is not responsible for the security of persons or
property on or about the Property and Landlord is not and will not be liable in any way
whatsoever for any criminal activity or any breach of security on or about the Property.




     9.3 Common Area. Landlord may, at Landlord’s sole and exclusive discretion, make changes to
the Common Area. Landlord’s rights regarding the Common Area include, but are not limited to,
the right to (a) restrain unauthorized persons from using the Common Area; (b) temporarily close
any portion of the Common Area; (c) change the shape and size of the Common Area; (d) add,
eliminate or change the location of any improvements located in the Common Area and construct
buildings or other structures in the Common Area; (e) place permanent or temporary kiosks,
displays, carts or stands in the Common Area and license or lease the same to vendors or
tenants; and (f) impose and revise Property Rules concerning use of the Common Area, including
without limitation any parking facilities comprising a portion of the Common Area.
Notwithstanding the foregoing, Landlord will not exercise such rights in a manner that
unreasonably interferes with Tenant’s access to and use of the Premises.



     9.4 Right to Cure. If Tenant fails to perform any of Tenant’s obligations under this Lease
Landlord may, but is not obligated to, perform any such obligation on Tenant’s part without
waiving any rights based upon such failure and without releasing Tenant from any obligations
hereunder. Tenant must pay to or reimburse Landlord for, as Additional Rent, all expenditures
reasonably made and obligations reasonably incurred by Landlord pursuant to this Section.



ARTICLE 10

INSURANCE




     10.1 Tenant’s Insurance. Tenant will at all times during the Term (and during any earlier
entry into the Premises), at Tenant’s sole cost and expense, maintain the insurance this Section
10.1 requires.



          10.1.1 Liability Insurance. Tenant will maintain commercial general liability insurance
providing coverage at least as broad as a current ISO form on an “occurrence” basis, with
minimum limits of $2,000,000 each occurrence and $5,000,000 general aggregate (which may include
umbrella coverages). Tenant’s liability insurance will (a) name the Landlord Parties and the
Landowner Parties as additional insureds with respect to all matters arising out of the
occupancy or use of the Premises or Property by Tenant; (b) be primary to any other insurance
maintained by the Landlord Parties or Landowner Parties; and (c) be placed and maintained with
companies rated at least “A/VII” by A.M. Best Insurance Service and otherwise reasonably
satisfactory to Landlord. Such insurance may have a reasonable deductible but may not include
self-insured retention in excess of $25,000. If Tenant’s liability insurance is provided under a
blanket policy, the above coverage limits must be made specifically applicable to the Premises
on a “per location” basis. Tenant will deliver an ACORD Form 27 (or equivalent) certificate or
other evidence of insurance satisfactory to Landlord (i) prior to any use or occupancy of the
Premises by Tenant, (ii) not later than 30 days prior to the expiration of any current policy or
certificate, and (iii) at such other times as Landlord may reasonably request.




          10.1.2 Property Insurance. Tenant is not required by this Lease to maintain property or
business interruption insurance. Accordingly, Tenant’s Personal Property is located at the
Property at Tenant’s sole risk, and Landlord is not liable for any damage to or loss or
destruction of such property (except as provided in the last sentence of Section 10.3.1). Tenant
is solely responsible for providing such insurance as Tenant may desire to protect Tenant and
Tenant’s Personal Property against any Casualty or other event or occurrence in the Premises or
at the Property including, without limitation, any interruption of Tenant’s business or loss of
revenues or profits arising therefrom.




          10.1.3 Other Insurance. If insurance obligations generally required of tenants in similar
space in similar buildings in the area in which the Property is located increase or otherwise
change, Landlord may similarly change Tenant’s insurance obligations under this Lease.




     10.2 Landlord’s Insurance. Landlord will at all times during the Term maintain the
insurance this Section 10.2 requires.



          10.2.1 Property Insurance. Landlord will maintain insurance on the Property providing
coverage comparable to that provided by a standard ISO special causes of loss form property
insurance policy in an amount not less than the full replacement cost of the Building (less
foundation, grading and excavation costs). Landlord may, at its option, obtain such
additional coverages or endorsements as





10









 







Landlord deems appropriate or necessary, including, without limitation, insurance covering
foundation, grading, excavation and debris removal costs; business income and rent loss
insurance; boiler and machinery insurance; ordinance or laws coverage; earthquake insurance;
flood insurance; and other coverages. Landlord may maintain such insurance in whole or in part
under blanket policies. Such insurance will cover the Tenant Improvements after they have been
installed in the Building but will not cover or be applicable to any of Tenant’s Personal
Property.




          10.2.2 Liability Insurance. Landlord will maintain commercial general liability insurance
for bodily injury, personal injury, and property damage occurring at the Property in such
amounts as Landlord deems necessary or appropriate. Such liability insurance will protect only
Landlord and, at Landlord’s option, Landlord’s lender and some or all of the Landlord Parties,
and does not protect Tenant or replace or supplement the liability insurance this Lease
obligates Tenant to carry.




          10.2.3
Other Insurance. If insurance coverages generally maintained by landlords of similar
space in similar buildings in the area in which the Property is located increase or otherwise
change, Landlord may similarly change the insurance coverages Landlord maintains under this
Lease.




     10.3 Waivers and Releases of Claims and Subrogation.



          10.3.1 Tenant’s Waiver and Release. To the fullest extent allowable under the Laws, Tenant,
on behalf of Tenant and its insurers, waives, releases and discharges the Landlord Parties and
the Landowner Parties from all Claims for any Casualty to the Premises, Property or Tenant’s
Personal Property, and any resulting loss of use or business interruption, regardless of the
cause even if (subject to the last sentence of this Section 10.3.1) such Casualty is caused by
the negligent or intentional acts, omissions, or misconduct of any Landlord Party. Tenant will
look only to any insurance coverage Tenant may elect to maintain (regardless whether Tenant
actually obtains any such coverage or whether such coverage is sufficient) with respect to the
Claims Tenant is waiving, releasing and discharging under this Section 10.3.1. Any property
insurance Tenant maintains must permit or include a waiver of subrogation in favor of the
Landlord Parties consistent with the provisions of this Section 10.3.1. Notwithstanding the
foregoing, Tenant may claim against Landlord for any Casualty to Tenant’s Personal Property
which is caused by the active negligence or willful misconduct of any Landlord Party, but (a)
only to the extent of property damage which is not covered by insurance (or is not fully
reimbursed because of an applicable policy deductible or self-insured retention amount), and (b)
only up to a maximum of $25,000 for any single occurrence.




          10.3.2 Landlord’s Waiver and Release. To the fullest extent allowable under the Laws,
Landlord, on behalf of Landlord and its insurers, waives, releases and discharges the Tenant
Parties from all Claims for any Casualty to the Premises, Property or Landlord’s Personal
Property, and any resulting loss of use or business interruption, regardless of the cause even
if (subject to the last sentence of this Section 10.3.2) such Casualty is caused by the
negligent or intentional acts, omissions, or misconduct of Tenant. Landlord will look only to
any insurance coverage Landlord may elect to maintain (regardless whether Landlord actually
obtains any such coverage or whether such coverage is sufficient) with respect to the Claims
Landlord is waiving, releasing and discharging under this Section 10.3.2. Any property insurance
Landlord maintains must permit or include a waiver of subrogation in favor of the Tenant Parties
consistent with the provisions of this Section 10.3.2. Notwithstanding the foregoing, Landlord
may claim against Tenant for any Casualty to the Premises, Property or Landlord’s Personal
Property which is caused by the active negligence or willful misconduct of Tenant, but (a) only
to the extent of property damage which is not covered by insurance (or is not fully reimbursed
because of an applicable policy deductible or self-insured retention amount), and (b) only up to
a maximum of $25,000 for any single occurrence.




          10.3.3 Limitation on Waivers of Claims. The provisions of Sections 10.3.1 and 10.3.2 apply
only with respect to the Landlord Parties and the Tenant Parties and do not limit or waive,
release or discharge any Claims that either Landlord or Tenant may have against any
“third-party” person or entity (including without limitation any contractor, service provider,
agent, licensee, or invitee which is not a Landlord Party or a Tenant Party) arising from any
Casualty to the Premises, Property, Tenant’s Personal Property or Landlord’s Personal Property
caused by any such third party.




     10.4 Tenant’s Failure to Insure. If Tenant fails to provide Landlord with evidence of
insurance as required under Section 10.1, and if such failure is not cured by Tenant within five
days of Landlord’s request therefor, Landlord may, but is not obligated to, obtain such
insurance for Landlord’s benefit without waiving or releasing Tenant from any obligation
contained in or default under this Lease. Tenant will pay to Landlord, as Additional Rent, all
costs and expenses Landlord reasonably incurs in obtaining such insurance.



     10.5 No Limitation. Landlord’s establishment of minimum liability insurance requirements
for Tenant in this Lease is not a representation by Landlord that such limits are sufficient and
does not limit Tenant’s liability under this Lease in any manner.



ARTICLE 11

DAMAGE OR DESTRUCTION




     11.1 Tenantable Within 270 Days. If any Casualty renders the whole or any material part of
the Premises untenantable and Landlord determines (in Landlord’s reasonable discretion) that
Landlord



11









 




can make the whole Premises tenantable within 270 days after the date of the Casualty, then
Landlord will notify Tenant of such determination within 60 days after the date of the Casualty.
Landlord’s notice will specify the anticipated date the Premises could be made tenantable. If
both (a) such anticipated completion date is more than 60 days after the date of Landlord’s
notice, and (b) less than 12 months will remain in the Term upon such completion date, then
either Landlord or Tenant may elect to terminate this Lease by notifying the other within 15
days after the date of Landlord’s notice, which termination will be effective 60 days after the
date of such notice of termination.




     11.2 Not Tenantable Within 270 Days. If any Casualty renders the whole or any material part
of the Premises untenantable and Landlord determines (in Landlord’s reasonable discretion) that
Landlord cannot make the whole Premises tenantable within 270 days after the date of the
Casualty, then Landlord will notify Tenant of such determination within 60 days after the date
of the Casualty. Landlord’s notice will specify the anticipated date the Premises could be made
tenantable. Landlord may, in such notice, terminate this Lease effective on the date 60 days
after the date of Landlord’s notice. If Landlord does not so terminate this Lease, and provided
the Casualty was not caused by Tenant, Tenant may terminate this Lease by notifying Landlord
within 15 days after the date of Landlord’s notice, which termination will be effective 60 days
after the date of Tenant’s notice.



     11.3 Property Substantially Damaged. If the Property is damaged or destroyed by any
Casualty (regardless whether the Premises is affected) and the damage reduces the value of the
Building by more than 50% (as Landlord reasonably determines value (absent restoration) before
and after the Casualty), then notwithstanding anything to the contrary in Sections 11.1 and
11.2, Landlord may, at Landlord’s option, by notifying Tenant within 60 days after the Casualty,
terminate this Lease effective on the date 60 days after the date of Landlord’s notice.



     11.4 Insufficient Proceeds. If Landlord does not receive sufficient insurance proceeds
(including the amount of any policy deductible) to repair all damage to the Premises or the
Property caused by any Casualty, or if Landlord’s lender does not allow Landlord to use
sufficient proceeds to repair all such damage, then notwithstanding anything to the contrary in
Sections 11.1, 11.2 and 11.3, Landlord may, at Landlord’s option, by notifying Tenant within 60
days after the Casualty, terminate this Lease effective on the date 60 days after the date of
Landlord’s notice.



     11.5
Landlord’s Repair; Rent Abatement. If this Lease is not terminated under any of
Sections 11.1 through 11.4 following a Casualty, then this Lease will remain in full force
and effect and
Landlord will repair and restore the Premises and the Property to as near their condition
prior to the
Casualty as is reasonably possible with all commercially reasonable diligence and speed.
Basic Rent
and Tenant’s Share of Property Expenses for any period during which the Premises are
untenantable as
a result of the Casualty will be abated on a per diem basis; provided that if only a
portion of the Premises
is untenantable, then any such abatement will be pro rata (based upon the rentable area of
the
untenantable portion of the Premises from time to time as compared with the rentable area
of the entire
Premises) and Tenant will continue to pay Rent for any portion of the Premises which is
tenantable. In no
event is Landlord obligated to repair or restore any Alterations that have not been
previously disclosed to
and approved by Landlord, any Supplemental Equipment, or any of Tenant’s Personal Property.
Landlord will, if necessary, equitably adjust Tenant’s Share of Property Expenses
Percentage to account
for any reduction in the rentable area of the Premises or Building resulting from a
Casualty.



     11.6 Rent Abatement If Lease Terminates. If this Lease is terminated under any of Sections
11.1 through 11.4 following any Casualty, then Basic Rent and Tenant’s Share of Property
Expenses for any period during which the Premises are untenantable as a result of the Casualty
will be abated on a per diem basis; provided that if only a portion of the Premises is
untenantable, then any such abatement will be pro rata (based upon the rentable area of the
untenantable portion of the Premises from time to time as compared with the rentable area of the
entire Premises) and Tenant will continue to pay Rent for any portion of the Premises which is
tenantable until this Lease terminates.



     11.7 Exclusive Casualty Remedy. The provisions of this Article 11 are Tenant’s sole and
exclusive rights and remedies in the event of a Casualty. To the fullest extent permitted by the
Laws, Tenant waives the benefits of any Law that provides Tenant any abatement or termination
rights (by virtue of a Casualty) not specifically described in this Article 11.



     11.8 Notice to Landlord. If any Casualty to any portion of the Premises or Property occurs,
Tenant will immediately provide written notice of such Casualty to Landlord. None of the
obligations of Landlord under this Article 11 will be deemed to have arisen unless and until
Landlord has received actual notice that the Casualty has occurred and has had a commercially
reasonable time within which to respond to such notice. Tenant is liable to Landlord for any
uninsured loss or other Claims Landlord incurs if (a) Tenant fails to timely report any Casualty
to the Premises or (to the extent Tenant has actual knowledge thereof) the Property or
Landlord’s Personal Property to Landlord, (b) Landlord does not otherwise have actual knowledge
of such Casualty, and (c) the failure to timely report such Casualty results in Landlord’s
property insurance carrier refusing to cover all or any portion of the loss.



ARTICLE 12

EMINENT DOMAIN




     12.1 Termination of Lease. If a Condemning Authority desires to effect a Taking of all or
any material part of the Property, Landlord will notify Tenant and Landlord and Tenant will
reasonably



12









 




determine whether the Taking will render the Premises unsuitable for Tenant’s intended purposes.
If Landlord and Tenant conclude that the Taking will render the Premises unsuitable for Tenant’s
intended purposes, Landlord and Tenant will document such determination and this Lease will
terminate as of the date the Condemning Authority takes possession of the portion of the
Property taken. Tenant will pay Rent to the date of termination. If a Condemning Authority takes
all or any material part of the Building or if a Taking reduces the value of the Property by 50%
or more (as reasonably determined by Landlord), regardless of whether the Premises is affected
and regardless whether the Taking will render the Premises unsuitable for Tenant’s intended
purposes, then Landlord, at Landlord’s option, by notifying Tenant prior to the date the
Condemning Authority takes possession of the portion of the Property taken, may terminate this
Lease effective on the date the Condemning Authority takes possession of the portion of the
Property taken.




     12.2 Landlord’s Repair Obligations. If this Lease does not terminate with respect to the
entire Premises under Section 12.1 and the Taking includes a portion of the Premises, this Lease
automatically terminates as to the portion of the Premises taken as of the date the Condemning
Authority takes possession of the portion taken and Landlord will, at its sole cost and expense,
restore the remaining portion of the Premises to a complete architectural unit with all
commercially reasonable diligence and speed and will reduce the Basic Rent for the period after
the date the Condemning Authority takes possession of the portion of the Premises taken to a sum
equal to the product of the Basic Rent provided for in this Lease multiplied by a fraction, the
numerator of which is the rentable area of the Premises after the Taking and after Landlord
restores the Premises to a complete architectural unit, and the denominator of which is the
rentable area of the Premises prior to the Taking. Landlord will also equitably adjust Tenant’s
Share of Property Expenses Percentage for the same period to account for the reduction in the
rentable area of the Premises or the Building resulting from the Taking. Tenant’s obligation to
pay Basic Rent and Tenant’s Share of Property Expenses will abate on a proportionate basis with
respect to that portion of the Premises remaining after the Taking that Tenant is unable to use
during Landlord’s restoration for the period of time that Tenant is unable to use such portion
of the Premises.



     12.3 Tenant’s Participation. Landlord is entitled to receive and keep all damages, awards
or payments resulting from or paid on account of a Taking. Accordingly, Tenant waives and
assigns to Landlord any interest of Tenant in any such damages, awards or payments. Tenant may
prove in separate Taking proceedings and may receive a separate award for damages to or Taking
of Tenant’s Personal Property and for moving expenses; provided however, that Tenant has no
right to receive any award for its interest in this Lease or for loss of leasehold.



     12.4 Exclusive Taking Remedy. The provisions of this Article 12 are Tenant’s sole and
exclusive rights and remedies in the event of a Taking. To the fullest extent permitted by the
Laws, Tenant waives the benefits of any Law that provides Tenant any abatement or termination
rights or any right to receive any payment or award (by virtue of a Taking) not specifically
described in this Article 12.



ARTICLE 13

TRANSFERS




     13.1 Restriction on Transfers. Except as provided in Section 13.5, Tenant will not cause
or allow a Transfer without obtaining Landlord’s prior written consent, which consent will not
be unreasonably withheld, provided that Landlord may elect to recapture any portion of the
Premises that would be affected by such Transfer as provided in Section 1.1. Tenant’s request
for consent to a Transfer must describe in detail the parties, terms, portion of the Premises,
and other circumstances involved in the proposed Transfer. Landlord will notify Tenant of
Landlord’s election to consent, withhold consent or recapture within 30 days of Landlord’s
receipt of such a written request for consent to the Transfer from Tenant. Tenant will provide
Landlord with any additional information Landlord reasonably requests regarding the proposed
Transfer or the proposed transferee. No Transfer releases Tenant from any liability or
obligation under this Lease and Tenant remains liable to Landlord after such a Transfer as a
principal and not as a surety. If Landlord consents to any Transfer, Tenant will pay to
Landlord, as Additional Rent, 50% of any amount Tenant receives on account of the Transfer (net
of Tenant’s reasonable, documented out-of-pocket leasing costs and commissions incurred in
connection with the Transfer) in excess of the amounts this Lease otherwise requires Tenant to
pay. Any attempted Transfer in violation of this Lease is null and void and constitutes an
Event of Default under this Lease.



     13.2 Recapture Right. Instead of giving or withholding consent pursuant to Section 13.1,
Landlord may, within the 30 day period provided in Section 13.1, elect by written notice to
Tenant to recapture (that is, to terminate this Lease with respect to) the Premises or, if a
proposed Transfer affects only a portion of the Premises, that portion of the Premises. If
Landlord so exercises Landlord’s recapture right, Tenant may negate such recapture by
delivering written notice to Landlord, within five days of Tenant’s receipt of Landlord’s
recapture notice, canceling the proposed Transfer and withdrawing Tenant’s request for consent
to the Transfer. If Landlord elects to recapture some or all of the Premises as set forth
above, and Tenant does not so negate the recapture, then this Lease will terminate with respect
thereto (pursuant to the provisions of this Lease, including without limitation Article 16) as
of the date the Transfer would otherwise have occurred as if the Term therefor had expired on
such date.



     13.3 Costs. Tenant will pay to Landlord, as Additional Rent, all costs and expenses
Landlord incurs in connection with any Transfer, including, without limitation, reasonable
attorneys’ fees and costs, regardless whether Landlord consents to the Transfer, provided that
such costs and expenses will not exceed $2,000 per Transfer.



13









 





     13.4 Landlord’s Consent Standards. For purposes of Section 13.1 and in addition to any
other reasonable grounds for denial, Landlord’s consent to a Transfer will be deemed reasonably
withheld if, in Landlord’s good faith judgment, any one or more of the following apply: (a) the
proposed transferee does not have the financial strength to perform the Tenant’s obligations
under this Lease; (b) the business and operations of the proposed transferee are not of
comparable quality to the business and operations being conducted by other tenants in the
Building; (c) either the proposed transferee, or any Affiliate of the proposed transferee,
occupies or is negotiating with Landlord to lease space in the Building; (d) the proposed
transferee does not have a good business reputation; (e) the presence in the Premises of the
proposed transferee would, in Landlord’s reasonable judgment, impact the Building or the
Property in a negative manner; (f) if the subject space is only a portion of the Premises and
the physical subdivision of such portion is, or would render the Premises, not regular in shape
with appropriate means of ingress and egress and facilities suitable for normal renting
purposes, or is otherwise not readily divisible from the Premises; (g) the Transfer would
require Alteration to the Building or the Property to comply with applicable Laws; (h) the
transferee is a government (or agency or instrumentality thereof); or (i) an Event of Default
exists under this Lease at the time Tenant requests consent to the proposed Transfer.



     13.5 Transfers to Affiliates. Provided that no Event of Default exists under this Lease,
Tenant may, without Landlord’s consent, assign or sublet all or a portion of this Lease or the
Premises to an Affiliate of Tenant if (a) Tenant notifies Landlord at least 30 days prior to
such Transfer; (b) Tenant delivers to Landlord, at the time of Tenant’s notice, current
financial statements of Tenant and the proposed transferee that are reasonably acceptable to
Landlord; and (c) the transferee assumes and agrees in a writing reasonably acceptable to
Landlord to perform Tenant’s obligations under this Lease and to observe all terms and
conditions of this Lease. A Transfer to an Affiliate does not release Tenant from any liability
or obligation under this Lease. Landlord’s rights to recapture or share in any profit Tenant
receives from a Transfer do not apply to any Transfer this Section 13.5 permits.



ARTICLE 14

DEFAULTS; REMEDIES




     14.1 Events of Default. The occurrence of any of the following constitutes an “Event of
Default” by Tenant under this Lease. Landlord and Tenant agree that the notices required by
this Section 14.1 are intended to satisfy any and all notice requirements imposed by the Laws
and are not in addition to any such requirements.



          14.1.1 Failure to Pay Rent. Tenant fails to pay Basic Rent, any monthly installment of
Tenant’s Share of Property Expenses or any other Additional Rent amount as and when due
and such
failure is not cured within five days after Landlord notifies Tenant of Tenant’s failure
to pay Rent when due.




          14.1.2 Failure
to Perform. Tenant breaches or fails to perform any of Tenant’s
nonmonetary obligations under this Lease and such breach or failure is not cured within 15
days after
Landlord notifies Tenant of Tenant’s breach or failure; provided that if Tenant is not
able through the use
of commercially reasonable efforts to cure such breach or failure within a 15 day period,
Tenant’s breach
or failure is not an Event of Default if Tenant commences to cure such breach or failure
within the 15 day
period and thereafter diligently pursues the cure and effects the cure within a period of
time that does not
exceed an additional 60 days after the expiration of the initial 15 day period.
Notwithstanding the
foregoing, Tenant is not entitled to any cure period before a breach or failure of this
Lease becomes an
Event of Default if either (a) the same breach or failure has previously occurred at least
two times during
the prior 12 months, or (b) the breach or failure cannot be cured by Tenant.




          14.1.3 Misrepresentation. The existence of any material misrepresentation or
omission in any financial statements, correspondence or other information provided to
Landlord by or on
behalf of Tenant or any Guarantor in connection with (a) Tenant’s negotiation or execution
of this Lease;
(b) Landlord’s evaluation of Tenant as a prospective tenant at the Property; (c) any
proposed or
attempted Transfer; or (d) any consent or approval Tenant requests under this Lease.




          14.1.4 Insolvency. The occurrence of any one or more of the following: (a) Tenant’s
filing of a petition under any chapter of the Bankruptcy Code, or under any federal, state
or foreign
bankruptcy or insolvency statute now existing or hereafter enacted, or Tenant’s making a
general
assignment or general arrangement for the benefit of creditors; (b) the filing of an
involuntary petition
under any chapter of the Bankruptcy Code, or under any federal, state or foreign
bankruptcy or
insolvency statute now existing or hereafter enacted, or the filing of a petition for
adjudication of
bankruptcy or for reorganization or rearrangement, by or against Tenant and such filing
not being
dismissed within 60 days; (c) the entry of an order for relief under any chapter of the
Bankruptcy Code, or
under any federal, state or foreign bankruptcy or insolvency statute now existing or
hereafter enacted; (d)
the appointment of a “custodian,” as such term is defined in the Bankruptcy Code (or of an
equivalent
thereto under any federal, state or foreign bankruptcy or insolvency statute now existing
or hereafter
enacted), for Tenant, or the appointment of a trustee or receiver to take possession of
substantially all of
Tenant’s assets (or Tenant’s assets located at the Premises) or of Tenant’s interest in
this Lease; or (e)
the subjection of all or substantially all of Tenant’s assets located at the Premises or
of Tenant’s interest
in this Lease to attachment, execution or other judicial seizure. If a court of competent
jurisdiction
determines that any act described in this Section 14.1.4 does not constitute an Event of
Default, and the
court appoints a trustee to take possession of the Premises (or if Tenant remains a debtor
in possession





14









 







of the Premises) and such trustee or Tenant Transfers Tenant’s interest hereunder, then Landlord
is entitled to receive the same amount of Additional Rent as Landlord would be entitled to
receive if such a Transfer had occurred pursuant to Section 13.1.




     14.2 Remedies. Upon the occurrence of any Event of Default, Landlord may at any time and
from time to time, without notice or demand and without preventing Landlord from exercising any
other right or remedy, exercise any one or more of the following remedies:



          14.2.1 Termination of Tenant’s Possession/Re-entry and Reletting Right.
Terminate Tenant’s right to possess the Premises by any lawful means with or without terminating
this Lease, in which event Tenant will immediately surrender possession of the Premises to
Landlord. In such event, this Lease continues in full force and effect (except for Tenant’s
right to possess the Premises) and Tenant continues to be obligated for and must pay all Rent as
and when due under this Lease. Unless Landlord specifically states that it is terminating this
Lease, Landlord’s termination of Tenant’s right to possess the Premises is not to be construed
as an election by Landlord to terminate this Lease or Tenant’s obligations and liabilities under
this Lease. If Landlord terminates Tenant’s right to possess the Premises, Landlord is not
obligated to, but may re-enter the Premises and remove all persons and property from the
Premises. Landlord may store any property Landlord removes from the Premises in a public
warehouse or elsewhere at the cost and for the account of Tenant, and if Tenant fails to pay the
storage charges therefor Landlord may deem such property abandoned and cause such property to be
sold or otherwise disposed of without further obligation or any accounting to Tenant. Upon such
re-entry, Landlord is not obligated to, but may relet all or any part of the Premises to a third
party or parties for Tenant’s account. Tenant is immediately liable to Landlord for all Re-entry
Costs and must pay Landlord the same within five days after Landlord’s notice to Tenant.
Landlord may relet the Premises for a period shorter or longer than the remaining Term. If
Landlord relets all or any part of the Premises, Tenant remains obligated to pay all Rent when
due under this Lease; provided that Landlord will, on a monthly basis, credit any Net Rent
received for the current month against Tenant’s Rent obligation for the next succeeding month.
If the Net Rent received for any month exceeds Tenant’s Rent obligation for the succeeding
month, Landlord may retain the surplus.




          14.2.2 Termination of Lease. Terminate this Lease effective on the date Landlord specifies
in Landlord’s notice to Tenant. Upon termination, Tenant will immediately surrender possession
of the Premises to Landlord as provided in Article 16. Such termination will not extinguish any
obligations that survive termination as provided elsewhere in this Lease. If Landlord terminates
this Lease, Landlord may recover from Tenant and Tenant will pay to Landlord on demand all
damages Landlord incurs by reason of Tenant’s default, including, without limitation, (a) all
Rent due and payable under this Lease as of the effective date of the termination; (b) any
amount necessary to compensate Landlord for any detriment proximately caused Landlord by
Tenant’s failure to perform its obligations under this Lease or which in the ordinary course
would likely result from Tenant’s failure to perform, including, but not limited to, any
Re-entry Costs and the unamortized amounts of any Improvement Allowance and real estate
commissions paid in connection with this Lease; (c) an amount equal to the amount by which (i)
the present worth, as of the effective date of the termination, of the Basic Rent for the
balance of the Term remaining after the effective date of the termination (assuming no
termination) exceeds (ii) the present worth, as of the effective date of the termination, of a
fair market Rent for the Premises for the same period (as Landlord reasonably determines the
fair market Rent); and (d) Tenant’s Share of Property Expenses to the extent Landlord is not
otherwise reimbursed for such Property Expenses. For purposes of this Section, Landlord will
compute present worth by utilizing a discount rate of 8% per annum. Nothing in this Section
limits or prejudices Landlord’s right to prove and obtain damages in an amount equal to the
maximum amount allowed by the Laws, regardless whether such damages are greater than the amounts
set forth in this Section.




          14.2.3 Present Worth of Rent. Recover from Tenant, and Tenant will pay to Landlord on
demand, an amount equal to the sum of (a) all Rent past due (together with interest thereon at
the Maximum Rate), plus (b) the then present worth, as of the date of such recovery, of the
aggregate of the Rent and any other charges payable by Tenant under this Lease for the
then-unexpired portion of the Term. Landlord will employ a discount rate of 8% per annum to
compute present worth.




          14.2.4 Other Remedies. Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state in which the Property is located. All rights and
remedies of Landlord under this Lease are cumulative and the exercise of any one or more
remedies at any time or from time to time does not limit or preclude the further exercise by
Landlord of the same or any other rights or remedies at any time or from time to time.




     14.3 Costs. Tenant will reimburse and compensate Landlord on demand and as Additional Rent
for any actual loss Landlord incurs in connection with, resulting from or related to any breach
or default of Tenant under this Lease, regardless of whether the breach or default constitutes
an Event of Default, and regardless of whether suit is commenced or judgment is entered. Such
loss includes all reasonable legal fees, costs and expenses (including paralegal fees, expert
fees, and other professional fees and expenses) Landlord incurs investigating, negotiating,
settling or enforcing any of Landlord’s rights or remedies or otherwise protecting Landlord’s
interests under this Lease. In addition to the foregoing, Landlord is entitled to reimbursement
of all of Landlord’s fees, expenses and damages, including, but not limited to, reasonable
attorneys’ fees and paralegal and other professional fees and expenses, Landlord incurs in
connection with any bankruptcy or insolvency proceeding involving Tenant including, without
limitation, any proceeding under any chapter of the Bankruptcy Code; by exercising and



15









 




advocating rights under Section 365 of the Bankruptcy Code; by proposing a plan of
reorganization and objecting to competing plans; and by filing motions for relief from stay.
Such fees and expenses are payable on demand, or, in any event, upon assumption or rejection of
this Lease in bankruptcy.




     14.4 Waiver of Re-entry Claims. Tenant waives and releases all Claims Tenant may have
resulting from Landlord’s re-entry and taking possession of the Premises pursuant to this
Article 14 by any lawful means and removing, storing or disposing of Tenant’s property as
permitted under this Lease, regardless of whether this Lease is terminated and, to the fullest
extent allowable under the Laws, Tenant releases and will indemnify, protect, defend (with
counsel reasonably acceptable to Landlord) and hold harmless the Landlord Parties and Landowner
Parties from and against any and all Claims arising therefrom. No such re-entry is to be
considered or construed as a forcible entry by Landlord.



     14.5 Landlord’s Default. Landlord will not be in default under this Lease unless Landlord
breaches or fails to perform any of Landlord’s obligations under this Lease and the breach or
failure continues for a period of 30 days after Tenant notifies Landlord in writing of
Landlord’s breach or failure; provided that if Landlord is not able through the use of
commercially reasonable efforts to cure the breach or failure within such 30 day period,
Landlord’s breach or failure is not a default as long as Landlord commences to cure its breach
or failure within the 30 day period and thereafter diligently pursues the cure to completion.



     14.6 No Waiver. No failure by either Landlord or Tenant to insist upon the performance of
any provision of this Lease or to exercise any right or remedy upon a breach or default hereof
constitutes a waiver of any such breach or default. Any such waiver may be made only by a
writing signed by the party providing the waiver. One or more waivers by a party is not to be
construed as a waiver by that party of a subsequent breach or default of the same provision.



ARTICLE 15

CREDITORS; ESTOPPEL CERTIFICATES




     15.1 Subordination. This Lease, all rights of Tenant in this Lease, and all interest or
estate of Tenant in the Property, is subject and subordinate to any existing or future Mortgage.
The automatic subordination to any future Mortgage provided for in this Section is expressly
conditioned upon the Mortgage holder’s agreement that as long as no Event of Default occurs
under this Lease, the holder of the Mortgage will not disturb Tenant’s rights of possession
under this Lease. Tenant will, upon request, execute and deliver to Landlord or to any other
person Landlord designates any instruments, releases or other documents reasonably required to
confirm the self-effectuating subordination of this Lease as provided in this Section to any
Mortgage. The lien of any existing or future Mortgage will not cover Tenant’s Personal Property.
Tenant will also execute and deliver to Landlord, concurrently with Tenant’s execution of this
Lease and delivery thereof to Landlord, a subordination, non-disturbance and attornment
agreement in the form of EXHIBIT “G” attached hereto (“SNDA Agreement”). Landlord will use its
commercially reasonable efforts to cause the Mortgage holder to execute the SNDA Agreement. Upon
receipt from the Mortgage holder of the executed SNDA Agreement, Landlord shall promptly provide
Tenant with a fully executed copy of the SNDA Agreement.



     15.2 Attornment. If any ground lessor, the holder of any Mortgage at a foreclosure sale or
any other transferee acquires Landlord’s interest in this Lease, the Premises or the Property,
Tenant will attorn to and recognize such transferee or successor as Landlord under this Lease.
Tenant waives the protection of any statute or rule of law that gives or purports to give Tenant
any right to terminate this Lease or surrender possession of the Premises upon the transfer of
Landlord’s interest.



     15.3 Mortgagee Protection Clause. Tenant will give the holder of any Mortgage, by
registered mail, a copy of any notice of default Tenant serves on Landlord, provided that
Landlord or the holder of the Mortgage previously notified Tenant (by way of notice of
assignment of rents and leases or otherwise) of the address of such holder. Tenant further
agrees that if Landlord fails to cure such default within the time provided for in this Lease,
then Tenant will provide written notice of such failure to such holder and such holder will have
an additional 30 days after the later of (a) receipt of such notice, or (b) the expiration of
Landlord’s cure period, within which to cure the default. If the default cannot be cured within
that additional 30 day period, then the holder will have such additional time as may be
necessary to effect the cure if, within the 30 day period, the holder has commenced and is
diligently pursuing the cure. If Landlord, Tenant, and the holder of any Mortgage enter into any
separate agreement regarding the matters addressed in Sections 15.1, 15.2 and 15.3 of this
Lease, then to the extent of any conflict between the provisions of such separate agreement and
the provisions of Section 15.1, 15.2 or 15.3 of this Lease, the provisions of such separate
agreement shall control.



     15.4 Estoppel Certificates.



          15.4.1 Contents. Upon Landlord’s written request, Tenant will execute, acknowledge and
deliver to Landlord a written statement in form satisfactory to Landlord certifying: (a) that
this Lease (and all guaranties, if any) is unmodified and in full force and effect (or, if
there have been any modifications, that this Lease is in full force and effect, as modified,
and stating the modifications); (b) that this Lease has not been canceled or terminated; (c)
the last date of payment of Rent and the time period covered by such payment; (d) whether there
are then existing any breaches or defaults by Landlord under this Lease known to Tenant, and,
if so, specifying the same; (e) specifying any existing claims or defenses in favor of Tenant
against the enforcement of this Lease (or of any guaranties); and (f) such





16









 







other factual statements as Landlord, any lender, prospective lender, investor or purchaser may
request. Tenant will deliver the statement to Landlord within 10 Business Days after Landlord’s
request. Landlord may give any such statement by Tenant to any lender, prospective lender,
investor or purchaser of all or any part of the Property and any such party may conclusively
rely upon such statement as true and correct.




          15.4.2 Failure to Deliver. If Tenant does not timely deliver to Landlord the statement
referenced in Section 15.4.1, Landlord and any lender, prospective lender, investor or purchaser
may conclusively presume and rely that, except as otherwise represented by Landlord, (a) the
terms and provisions of this Lease have not been changed; (b) this Lease has not been canceled
or terminated; (c) not more than one month’s Rent has been paid in advance; and (d) Landlord is
not in default in the performance of any of its obligations under this Lease.: In
such event, Tenant is estopped from later contesting any inaccuracy in such presumptions.




ARTICLE 16

SURRENDER; HOLDING OVER




     16.1 Surrender of Premises. Tenant will surrender the Premises to Landlord at the
expiration or earlier termination of this Lease in good order, condition and repair, reasonable
wear and tear, Casualty and Taking excepted, and will surrender all keys to the Premises to
Property Manager or to Landlord at the place then fixed for Tenant’s payment of Basic Rent or as
Landlord or Property Manager otherwise directs. Tenant will at such time remove all of Tenant’s
Personal Property from the Property and, if Landlord so requires, all specified Alterations
Tenant placed on the Property. Tenant will promptly repair any damage to the Premises or the
Property caused by such removal. Tenant will also inform Landlord of all combinations on locks,
safes and vaults, if any, that Tenant is allowed to leave at the Property. Tenant releases and
will indemnify, protect, defend (with counsel reasonably acceptable to Landlord) and hold
harmless Landlord from and against any Claim resulting from Tenant’s failure or delay in
surrendering the Premises in accordance with this Section, including, without limitation, any
Claim made by any succeeding occupant founded on such delay. All property of Tenant not removed
on or before the last day of the Term is deemed abandoned. Landlord may remove all such
abandoned property from the Property and cause its transportation and storage in a public
warehouse or elsewhere at the cost and for the account of Tenant, and if Tenant fails to pay the
storage charges therefor Landlord may cause such property to be sold or otherwise disposed of
without further obligation or any accounting to Tenant. Landlord will not be liable for damage,
theft, misappropriation or loss of any such property or in any other manner in respect thereto.



     16.2 Holding Over. If Tenant remains in possession of the Premises after the Term expires
or is otherwise terminated without executing a new lease but with Landlord’s prior written
consent, then unless provided otherwise by Landlord in such written consent (a) Tenant is deemed
to be occupying the Premises as a tenant from month-to-month, subject to all provisions,
conditions and obligations of this Lease applicable to a month-to-month tenancy, (b) Basic Rent
during the holdover period will equal 125% of the greater of the Basic Rent payable by Tenant in
the last year of the Term or Landlord’s then current basic rent for the Premises according to
Landlord’s rental rate schedule for prospective tenants, (c) Tenant will also pay Tenant’s Share
of Property Expenses and all other Additional Rent applicable to such holdover period as
described in this Lease, and (d) either Landlord or Tenant may terminate the month-to-month
tenancy at any time upon 30 days prior written notice to the other party. If Tenant remains in
possession of the Premises after the Term expires or is otherwise terminated without executing a
new lease and without Landlord’s prior written consent, then Tenant is deemed to be occupying
the Premises without claim of right (but subject to all provisions, conditions and obligations
of this Lease) and, in addition to Tenant’s liability for failing to surrender possession of the
Premises as provided in Section 16.1 and all other rights and remedies of Landlord related to
such holding over, Tenant will pay Landlord a charge for each day of occupancy after the Term in
an amount equal to 200% of the Basic Rent payable by Tenant in the last year of the Term (on a
daily basis), plus Tenant’s Share of Property Expenses and all other Additional Rent applicable
to such holdover period as described in this Lease.



ARTICLE 17

TENANT IMPROVEMENTS




     17.1 Base Building Improvements. Landlord will provide, as a part of the base Building and
at no cost to Tenant, the base building improvements described on the attached EXHIBIT “F”.



     17.2 Tenant improvements. Landlord will cause to be constructed, at Tenant’s sole cost and
expense (subject to the Improvement Allowance), the Tenant Improvements. The Tenant
Improvements
will be designed and constructed as described in this Article 17. Contractor will be the
general contractor
for the Tenant Improvements. Tenant will pay all direct and indirect costs Landlord incurs
in connection
with the design and construction of the Tenant Improvements. Such costs Landlord incurs may
include,
without limitation, all costs of space planning, construction document preparation, design,
construction
drawings, general conditions, labor, materials, and other construction costs, the fees (on
an hourly basis)
of Contractor’s project manager and site superintendent for the Tenant Improvements, all
costs incurred
in connection with obtaining permits for the Tenant improvements, and a fee of 12% of the
sum of all
such direct and indirect costs for Contractor’s overhead and profit. For all purposes of
ownership,
including risk of loss thereto, the Tenant Improvements will immediately upon installation
be and remain a
part of the Building and the property of Landlord.




17












 





     17.3 Improvement Allowance. Landlord will credit an amount, not to exceed the
Improvement Allowance, against Tenant’s obligation to pay for the design and construction
of the Tenant
Improvements. Landlord is not obligated to pay or incur any amounts that exceed the
Improvement
Allowance. If the cost of the Tenant Improvements exceeds the Improvement Allowance, Tenant
will pay
the excess to Landlord in cash as Additional Rent. Tenant will also pay, as Additional
Rent, all of
Landlord’s costs (including lost rent) resulting from Tenant Delay. If Landlord reasonably
estimates that
the cost of the Tenant improvements will exceed the Improvement Allowance, Landlord may
require Tenant to deposit such excess amount with Landlord before construction of the Tenant
Improvements begins.



     17.4 Space Plan. On or before March 10, 2006, Tenant will provide Landlord with a space
plan for the Tenant Improvements. The space plan must (a) be compatible with the base building (both
aesthetically and mechanically, as reasonably determined by Landlord); (b) be adequate, in
Landlord’s
reasonable discretion, for the preparation of construction drawings and specifications for the
Tenant
Improvements; (c) show, in reasonable detail, the design and appearance of the finishing materials
to be
used in connection with installing the Tenant Improvements; (d) contain such other detail or
description as
Landlord may reasonably deem necessary to adequately outline the scope of the Tenant Improvements;
(e) conform to all applicable governing codes and ordinances;
and (f) contain all information
necessary for
construction cost estimating. All space plan drawings must be not less than 1/8” scale. Without
limiting
those general requirements, the space plan must expressly specify and include (without limitation)
all of
the following: (1) wall types and heights and insulation, if needed; (2) door types and hardware
groups;
(3) door frame types; (4) ceiling heights; (5) ceiling materials; (6) floor covering materials
and locations;
(7) all wall finishes; (8) any appliances, special systems
or equipment to be furnished as a part
of the
construction; (9) any mechanical requirements beyond that provided in the base building; (10) any
fire
protection requirements beyond that provided in the base building; (11) any plumbing
requirements; (12)
all power and data locations; (13) any power required other than building standard power
distribution; (14)
any power requirements for modular furniture; (15) any emergency power requirement; (16) any
lighting
requirements beyond that provided in the base building; (17) millwork elevations and details;
(18) specific
floor material selections and designations; and (19) specific wall material selections and
designations.
Landlord will provide building standard materials, systems and capacities if not otherwise noted.
The
space plan must also include enlarged sketch layouts for any non-standard rooms, including reflected
ceiling plans, and must state the approximate usable and rentable square footage of the Premises.
If
Tenant fails to provide Landlord with a space plan meeting the foregoing requirements by the date
set
forth above in this Section, then such delay is a Tenant Delay until such space plan is delivered to
Landlord.



     17.5 Construction Drawings and Specifications. After Landlord receives Tenant’s space plan as
provided above, Landlord will provide Tenant with construction drawings and specifications for the
Tenant Improvements. Tenant will approve or disapprove (specifically describing any reasons for
disapproval) the construction drawings and specifications in writing within five Business Days
after receiving them. Any failure by Tenant to timely deliver such approval or disapproval is a
Tenant Delay until received. If Tenant disapproves the construction drawings and specifications,
Landlord will provide appropriately revised construction drawings and specifications to Tenant for
approval (or disapproval) within five Business Days on the same basis as set forth above. If the
review and approval process is not concluded (with Tenant having approved the construction
drawings and specifications) on or before April 10, 2006, then such delay is a Tenant Delay until
Tenant’s approval is received. After Tenant’s approval, Landlord will submit the construction
drawings and specifications for permits and construction bids. Tenant will not withhold any
approval except for reasonable cause and will not act in an arbitrary or capricious manner in
connection with the review, revision, approval or disapproval of the
construction drawings and
specifications. If Tenant specifies any long lead time items that would delay Substantial
Completion of the Tenant improvements, Landlord will promptly notify Tenant and Tenant will
cooperate with Landlord to select a reasonable substitute.



     17.6 Changes to Construction Drawings and Specifications. Tenant will immediately notify
Landlord if Tenant desires to make any changes to the Tenant Improvements after Tenant has
approved the construction drawings and specifications. If Landlord approves the revisions,
Landlord will notify Tenant of the anticipated additional cost and delay in completing the
Tenant Improvements that would be caused by such revisions. Tenant will approve or disapprove
the increased cost and delay within five Business Days after such notice. If Tenant approves,
Landlord will prepare, and Landlord and Tenant will execute, a change order describing the
revisions and the anticipated additional cost and delay. Any delay relating to a request for
revisions or a change order is a Tenant Delay. If Landlord reasonably estimates that the change
order will cause the cost of the Tenant Improvements to exceed the Improvement Allowance (or if
the cost of the Tenant Improvements already exceeds the Improvement Allowance), Landlord may
require Tenant to deposit such estimated additional cost with Landlord before the change order
work is performed.



     17.7 Landlord’s Approval Rights. Landlord may withhold its approval of any space plan,
construction drawings and specifications, change orders, or other work requested by Tenant
which Landlord reasonably determines may require work which: (a) exceeds or adversely affects
the structural integrity of the Building; (b) adversely affects, or exceeds Tenant’s pro rata
capacity of, any part of the heating, ventilating, air conditioning, plumbing, mechanical,
electrical, communication or other systems of the Building: (c) will increase the cost of
operation or maintenance of any of the systems of the Property; (d) does not conform to
applicable building codes or is not approved by any governmental authority with jurisdiction
over the Premises; (e) is not a building standard item or an item of equal or higher quality;
(f)



18









 







may detrimentally affect the uniform appearance of the Property; or (g) is reasonably
disapproved by Landlord for any other reason.



     17.8
Tenant’s Representative. Tenant designates Joel D. Cesario as the representative of
Tenant having authority to approve the construction drawings and specifications, request or
approve any change order, give and receive all notices, consents, approvals and directions
regarding the Tenant Improvements, and to otherwise act for and bind Tenant in all matters
relating to the Tenant Improvements.



     17.9 Substantial Completion. Landlord will use commercially reasonable efforts to achieve
Substantial Completion of the Tenant Improvements on or before the Delivery Date. If Landlord is
unable to achieve Substantial Completion on or before the Delivery Date for any reason, this
Lease remains in full force and effect and Landlord is not liable to Tenant for any resulting
loss or damage; provided, however, that Landlord will appropriately adjust the Commencement
Date.



     17.10 Punch List. Not later than Substantial Completion, Landlord and Tenant will inspect
the Premises and develop a “punch list” of any Tenant Improvement items which were either not
properly completed or are in need of repair. Landlord will complete (or repair, as the case may
be) the items listed on the punch list with commercially reasonable diligence and speed. If
Tenant does not inspect the Premises with Landlord as reasonably requested by Landlord prior to
or upon Substantial Completion, Tenant will be deemed to have accepted the Premises as
delivered, subject to any punch list items Landlord develops and Tenant’s rights under Section
17.11.



     17.11
Construction Warranty. Landlord warrants the Tenant Improvements against defective
workmanship and materials for a period of one year after Substantial Completion.
Landlord’s sole
obligation under this warranty is to repair or replace, as necessary, any defective item
caused by poor
workmanship or materials if Tenant delivers specific written notice of the defective item
to Landlord within
such one-year period. Landlord has no obligation to repair or replace any item after such
one-year period
expires. THIS EXPRESS WARRANTY IS GIVEN AS THE SOLE AND EXCLUSIVE RIGHT AND
REMEDY OF TENANT FOR INCOMPLETE OR DEFECTIVE WORKMANSHIP OR MATERIALS OR
OTHER DEFECTS IN THE PREMISES, AND AS ADDITIONAL CONSIDERATION FOR THIS
WARRANTY TENANT HEREBY WAIVES AND RELEASES ALL OTHER CLAIMS AND CAUSES OF
ACTION AGAINST LANDLORD AND ALL LANDLORD PARTIES BASED ON BREACH OF CONTRACT,
TORT, BREACH OF WARRANTY OR OTHER RIGHTS OR CLAIMS, WHETHER EXPRESS OR
IMPLIED, THAT MIGHT OTHERWISE BE AVAILABLE UNDER APPLICABLE LAW AS A
CONSEQUENCE OF ANY DEFECTS ARISING OUT OF OR RELATING TO THE CONSTRUCTION OF
THE BUILDING AND TENANT IMPROVEMENTS. ALL OTHER WARRANTIES ARE EXPRESSLY
DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.



     17.12 Tenant Finish Work. All finish work and decoration and other work desired by Tenant
and not included within the Tenant Improvements to be performed by Landlord as set forth in the
approved construction drawings and specifications (including specifically, without limitation,
the design and installation of all computer systems, telephone systems, telecommunications
systems, removable fixtures, furnishings, and equipment) will be designed, furnished and
installed by Tenant at Tenant’s sole expense and will not be chargeable against the Improvement
Allowance. Tenant will perform all such work in the same manner and following the same
procedures as are provided in this Lease for Alterations. Landlord is under no obligation to
perform, inspect, or supervise any such work, and Landlord shall have no liability or
responsibility whatsoever therefor.



     17.13 Signs. Landlord will initially provide to Tenant (a) one building standard tenant
identification sign adjacent to the entry door of the Premises and (b) one standard building
directory listing; provided, however, that the cost of such signage will be charged against the
improvement Allowance. The signs will conform to Landlord’s sign criteria.



ARTICLE 18

ADDITIONAL PROVISIONS




     18.1 Security Deposit. Concurrently with Tenant’s execution of this Lease, Tenant will
deposit with Landlord the Security Deposit. If an Event of Default occurs, Landlord may use,
apply or retain the whole or any part of the Security Deposit for the payment of any Rent due or
any other sum which Landlord expends by reason of Tenant’s default. Tenant is not entitled to
any interest on the Security Deposit. It is expressly agreed that the Security Deposit is not an
advance rental deposit or a measure of Landlord’s damages in the case of Tenant’s default. Upon
application of all or any part of the Security Deposit, Tenant must upon demand restore the
Security Deposit to its original amount. No application of the Security Deposit by Landlord will
be deemed to have cured Tenant’s default. Tenant waives all provisions of Law, now or
hereinafter in force, which restrict the amount or types of claim that a landlord may make upon
a security deposit or imposes upon a landlord (or its successors) any obligation with respect to
the handling or return of security deposits. The Security Deposit will be released to Tenant
within 45 days of the surrender of the Premises to Landlord subject to any deductions made by
Landlord pursuant to the terms of this Lease.



     18.2 Parking. During the Term of this Lease, Landlord licenses 13 covered Reserved Spaces
and 22 Unreserved Spaces to Tenant. Unless otherwise notified by Landlord, Tenant will pay
Landlord’s then-current fee for each such space as Additional Rent at the same time, place and
manner as Basic



19









 







Rent. Landlord may change its parking charges at any time on not less than 30 days prior notice
to Tenant, provided that Landlord will not change such parking charges during the initial Term.
Initially, Landlord’s parking charges will be $35 per month for each covered Reserved Space and
$0.00 per month for each Unreserved Space. Parking at the Property by Tenant is subject to the
other provisions of this Lease, including without limitation the Property Rules. In no event will
Landlord be liable for any loss, damage or theft of, to or from any vehicle at the Property.



     18.3 Expanded Development. Tenant acknowledges and agrees that the Building may be included
within a larger, integrated real estate development including additional buildings and land.
Landlord may elect, in Landlord’s sole discretion, to operate such larger or modified development
as a unit and compute any Property Expenses under Article 3 accordingly. If Landlord does so,
then Tenant’s Share of Property Expenses will be appropriately adjusted to compare the rentable
area of the Premises to the total rentable area within such development for which expenses are
included under Article 3. Nothing herein will be deemed to require Landlord to develop or
construct any such additional buildings or to combine the Building with any other buildings.



     18.4 Access to Premises Prior to Substantial Completion. So long as such entry will not
interfere with Landlord’s construction of the Tenant Improvements, Landlord will allow Tenant
limited access to the Building 30 days prior to Substantial Completion to begin installing
equipment, fixtures, furniture and cabling and/or to properly coordinate such work with the
construction of the Tenant Improvements. Any such use of the Building is also subject to, and
Tenant must comply with and observe, all applicable laws, all safety rules and procedures, and
all other terms and conditions of this Lease. In no event may Tenant conduct business in the
Building during such early access period.



     18.5
Exterior Building Signage. Provided Tenant is able to obtain all necessary Community,
governmental and quasi-governmental approvals therefor, Tenant may, at Tenant’s expense, install
a sign on the exterior of the Building displaying Tenant’s name. Tenant must pay all annual and
other permit fees therefor, must pay all costs of maintenance thereof, must keep same in good
condition, order and repair at its sole cost and expense, must remove same prior to the
expiration or earlier termination of the Term, and must repair and restore any damage to the
Building caused by such installation and/or removal. Any such sign and the display of Tenant’s
name thereon will be subject to the terms of any restrictive covenants applicable thereto and all
Laws, and will be subordinate to all building designation signs (if any). Such sign must conform
to the comprehensive sign plan prepared by Landlord and approved by the Community. Tenant may not
install such sign until it has obtained Landlord’s prior written approval as to the size,
location, design and all other aspects thereof, including the conformance thereof to such
comprehensive sign plan. When Tenant requests Landlord’s approval of such sign, Tenant will
concurrently submit to Landlord the proposed fabrication drawings thereof which will be
sufficiently detailed for Landlord to determine whether the sign complies with such comprehensive
sign plan.



     18.6 Generator. Subject to obtaining (i) all necessary Community, governmental and
quasi-governmental approvals therefor and (ii) Landlord’s prior written approval of the plans,
specifications and manner of installation of same, Tenant shall be permitted to install one
backup generator (the “Generator”) to serve the Premises at one of the locations identified on
EXHIBIT “G” attached hereto. Tenant shall, at Tenant’s sole cost and expense, maintain and repair
the Generator and keep same in good, operable condition and repair. Not less frequently than
annually, Tenant will provide to Landlord copies of all current maintenance records and permits
relating to the Generator. If Tenant fails to repair or maintain the Generator within five (5)
days after written notice thereof from Landlord, then Landlord may, but is not obligated to, make
any such maintenance or repair at Tenant’s sole cost and expense. Tenant agrees to reimburse
Landlord for all costs incurred by Landlord in connection with the Generator as Additional Rent.
Tenant’s installation and maintenance of the Generator must comply with all restrictive covenants
applicable thereto and any and all applicable Laws, and must comply with all other provisions of
this Lease. Tenant will be entitled to run the Generator to provide backup power during power
outages. Any required periodic testing of the Generator will only be performed during hours other
than Business Hours. If Landlord so requires, Tenant shall remove the Generator from the Property
at the expiration or earlier termination of the Term, and Tenant must repair any and all damage
to the Property and/or the Building resulting from such removal. Such removal and the repair of
damage caused thereby shall be at Tenant’s sole cost and expense.



     18.7 Building Compliance. Landlord will use commercially reasonable efforts to complete
Landlord’s construction of the Building and Premises in compliance with (a) the applicable
building code; (b) the Americans with Disabilities Act of 1990 (“ADA”); and (c) other applicable
Laws (including without limitation those Laws relating to asbestos, soil and ground water
condition), in each case as such matters in (a)—(c) are enforced, interpreted and applied to the
Property as of the Effective Date. Such compliance will be conclusively established by the
issuance of all governmental permits necessary for the initial occupancy of the Building.



     18.8 Access to Premises. Subject to the terms of this Lease, Tenant and its employees and
invitees may access the Premises and the parking areas after Business Hours in accordance with
such rules and regulations as Landlord may reasonably prescribe from time to time for security
purposes.



     18.9 Fuel Storage Tanks. if required for Tenant’s operation of the generator referenced in
Section 18.6 of this Lease, Tenant, at its sole cost and expense, may install, operate,
maintain and repair



20









 







an underground or aboveground fuel storage tank (“Storage Tank”) in a location determined by
Landlord in Landlord’s sole and absolute discretion, subject to the following conditions and
obligations:



          18.9.1 Installation of the Storage Tank will be deemed an Alteration (as defined in
Article 8) to the Premises and will be governed by the applicable provisions of this Lease
relating to
Alterations. Tenant will submit to Landlord, at least 20 days prior to the proposed
installation date, (i)
Tenant’s proposed plans and specifications relating to the installation, operation and use
of the Storage
Tank, and (ii) all other information required pursuant to Article 8 for such Alteration.
Tenant may not
commence any work to install a Storage Tank until it has received Landlord’s prior written
approval of all
such deliveries.




          18.9.2 Tenant will comply with Landlord’s reasonable directives and all Community,
federal, state, and local Laws, regulations, rules and guidelines relating to the
installation, operation,
maintenance and repair of the Storage Tank, including, but not limited to (i) obtaining and
maintaining, or
causing to be obtained and maintained, all applicable permits required for the
installation, operation,
maintenance and repair of the Storage Tank (ii) implementing a Spill Prevention Control
and
Countermeasures Plan (as required by Community, federal, state, or local regulations) or
best
management practices plan (iii) providing evidence of financial responsibility or insurance
covering the
Storage Tank and (iv) maintaining and inspecting the Storage Tank and related equipment and
keeping
records related thereto. Upon Landlord’s request, Tenant will promptly provide Landlord
with copies of all
records relating to the installation, operation, maintenance and repair of the Storage
Tank.




          18.9.3 If Community, federal, state or local Laws, rules or regulations require evidence
of financial responsibility or insurance, Tenant will provide Landlord with a certificate
of insurance naming
Landlord as an additional insured under such policy, or other evidence of financial
responsibility
necessary for compliance.




          18.9.4 Tenant may not use the Storage Tank for any purpose other than the use specifically
approved by Landlord and permitted under any applicable permit




          18.9.5 At any time within 30 days prior to and 30 days following the expiration or earlier
termination of the Lease, Landlord may, at Tenant’s cost and expense, perform an environmental
Investigation to determine whether a release has occurred. Prior to the expiration or earlier
termination of the Lease, Tenant will, if Landlord requests, remove the Storage Tank in
accordance with all applicable Laws and promptly repair any damage to the Premises or the
Property caused by the installation, operation and removal of the Storage Tank, including any
environmental remediation, all at Tenant’s sole cost and expense. Tenant must document the
removal of a Storage Tank with a report prepared by a qualified consultant approved by Landlord,
evidencing either no impact to soil and groundwater or that any impacted soil or groundwater has
been remediated in a manner and to a level satisfactory to Landlord in its sole discretion.




          18.9.6 Tenant will immediately report to Landlord any spill or release and any citations or
notices of violation and will provide Landlord with copies thereof. Such notification will not
relieve Tenant from its obligations to notify governmental agencies. Any cleanup or remediation
will be completed by Tenant in accordance with applicable law and in a manner and to a level
satisfactory to Landlord in its sole discretion.




          18.9.7 This provision does not modify Tenant’s permitted use of the Premises, and does not
relieve Tenant of any environmental liability under this Lease.




          18.9.8 Landlord may make periodic inspections to ensure regulatory compliance and the
proper operation, maintenance and repair of the Storage Tank. Any costs incurred by Landlord in
making inspections or other costs of compliance will be charged directly to Tenant.




          18.9.9 To the fullest extent allowable under law, Tenant (i) waives all claims it may have
against Landlord arising out of or relating to damage to or destruction of the Storage Tank and
(ii) will indemnify and defend (with counsel reasonably acceptable to Landlord) Landlord from
and against all claims, actions, demands, liabilities, damages, costs, penalties, forfeitures,
losses or expenses, including, without limitation, court costs, and reasonable attorneys fees
incurred by Landlord in connection with the foregoing or in enforcing Tenant’s obligations under
this Section 18.9, arising out of or relating to the Storage Tank, including, without
limitation, the installation, operation, repair, maintenance, and removal of the Storage Tank.




ARTICLE 19

MISCELLANEOUS PROVISIONS




     19.1 Notices. All Notices must be in writing and must be sent by personal delivery, by
United States registered or certified mail (postage prepaid), or by an independent overnight
courier service, addressed to the addresses specified in the Basic Terms or at such other place
as either party may designate to the other party by written notice given in accordance with
this Section. Notices given by mail are deemed delivered within four Business Days after the
party sending the Notice deposits the Notice with the United States Post Office. Notices
delivered by courier are deemed delivered on the next Business Day after the day the party
delivering the Notice timely deposits the Notice with the courier for overnight (next day)
delivery.



21









 





     19.2 Transfer of Landlord’s Interest. If Landlord Transfers (other than for collateral
security purposes) its ownership interest in the Premises, the transferor is automatically
relieved of all obligations on the part of Landlord accruing under this Lease from and after the
date of the Transfer, but only to the extent that (a) the transferee agrees in writing to assume
such obligations, and (b) the transferor delivers or credits to the transferee any funds the
transferor holds in which Tenant has an interest (such as a security deposit). Landlord’s
covenants and obligations in this Lease bind each successive Landlord only during and with respect
to its respective period of ownership. However, notwithstanding any such Transfer, each transferor
and its respective “Landlord Parties” remain entitled to the benefits of Tenant’s releases and
indemnity and insurance obligations (and similar obligations) under this Lease with respect to
matters arising or accruing during such transferor’s period of ownership.



     19.3 Successors. Subject to the express provisions of this Lease, the covenants and
agreements contained in this Lease bind and inure to the benefit of Landlord, its successors and
assigns, bind Tenant and its successors and assigns and inure to the benefit of Tenant and its
permitted successors and assigns.



     19.4 Captions and Interpretation. The captions of the articles and sections of this Lease
are to assist the parties in reading this Lease and are not a part of the terms or provisions of
this Lease. Whenever required by the context of this Lease, the singular includes the plural and
the plural includes the singular.



     19.5 Relationship of Parties. This Lease does not create, between the parties to this
Lease, the relationship of principal and agent, or of partnership or joint venture, or any other
association or relationship, other than that of landlord and tenant.



     19.6 Entire Agreement; Amendment. The Basic Terms and all exhibits, addenda and schedules
attached to this Lease are incorporated into and made a part of this Lease as though fully set
forth in this Lease and together with this Lease contain the entire agreement between the
parties with respect to the improvement and leasing of the Premises. All prior and
contemporaneous negotiations, including, without limitation, any letters of intent or other
proposals and any drafts and related correspondence, are merged into and superseded by this
Lease. No subsequent alteration, amendment, change or addition to this Lease (other than to the
Property Rules) is binding on Landlord or Tenant unless it is in writing and signed by the party
against whom its enforcement is sought.



     19.7 Severability. If any covenant, condition, provision, term or agreement of this Lease
is, to any extent, held invalid or unenforceable, the remaining portion thereof and all other
covenants, conditions, provisions, terms and agreements of this Lease will not be affected by
such holding, and will remain valid and in force to the fullest extent permitted by law.



     19.8 Landlord’s Limited Liability. Tenant will look solely to Landlord’s interest in the
Property for recovering any judgment or collecting any obligation from Landlord or any other
Landlord Party. Tenant agrees that neither Landlord nor any other Landlord Party will be
personally liable for any judgment or deficiency decree. In no event is Landlord or any Landlord
Party liable to Tenant or any other person for consequential, indirect, special or punitive
damages.



     19.9 Survival. All of Tenant’s obligations under this Lease accruing prior to expiration
or other termination of this Lease, or which this Lease contemplates are to survive termination,
will survive the expiration or other termination of this Lease until fully paid and/or performed
by Tenant. Interest on surviving payment obligations will continue to accrue at the rates stated
in this Lease until fully paid. Further, all of Tenant’s releases and indemnification, defense
and hold harmless obligations under this Lease survive the expiration or other termination of
this Lease until any possible Claims to which the same might apply have been absolutely barred
by all applicable statutes of limitation.



     19.10 Attorneys’ Fees. If either Landlord or Tenant commences any litigation or judicial
action to determine or enforce any of the provisions of this Lease, the prevailing party in any
such litigation or judicial action is entitled to recover all of its costs and expenses
(including, but not limited to, reasonable attorneys’ fees, costs and expenditures) from the
non-prevailing party.



     19.11 Brokers. Landlord and Tenant each represents and warrants to the other that it has
not had any dealings with any realtors, brokers, finders or agents in connection with this Lease
(except as may be specifically set forth herein) and each releases and agrees to indemnify the
other from and against any Claims based on the failure or alleged failure to pay any realtors,
brokers, finders or agents (other than any brokers specified herein) and from any cost, expense
or liability for any compensation, commission or charges claimed by any realtors, brokers,
finders or agents (other than any brokers specified herein) claiming by, through or on behalf of
it with respect to this Lease or the negotiation of this Lease. Landlord will pay any brokers
named in the Basic Terms in accordance with the applicable listing agreement executed by
Landlord for the Property.



     19.12 Chance Events. To the fullest extent allowable under the Laws, but subject to the
last sentence of this Section 19.12, Tenant agrees that the Landlord Parties are not liable to
Tenant for, and Tenant releases the Landlord Parties from and waives, any and all Claims
resulting or arising, directly or indirectly, from (a) any breakage, defect, insufficiency,
inadequacy, malfunction, interruption, failure, breakdown or similar problem in the Premises or
on the Property; or (b) any occurrence, event, situation, activity, injury, emergency,
condition or happening whatsoever at the Property, regardless of the cause



22









 







(including, without limitation, any (i) act, omission, negligence, fault or misconduct of other
tenants or occupants of, or visitors to, the Property; (ii) Force Majeure; or (iii) other cause
or reason whatsoever) and regardless whether insured or insurable. Nothing in this Section,
however, relieves Landlord from any liability to Tenant (A) for the breach of any obligation of
Landlord which is expressly set forth in this Lease; or (B) with respect to any remedy of
Tenant which is expressly set forth in this Lease.



     19.13 Governing Law. This Lease is governed by, and must be interpreted under, the internal
laws of the state in which the Property is located. Any suit against Landlord or Tenant
relating to this Lease must be brought in the county in which the Property is located or, if
the suit is brought in federal court, in any federal court appropriate for suits arising in such
county; Landlord and Tenant waive the right to bring suit against each other elsewhere. The
parties acknowledge and agree that the Premises are located on federal Indian trust lands
within the territorial jurisdiction of the Salt River Pima-Maricopa Indian Community and,
notwithstanding the foregoing provisions of this Section 19.13, as between Tenant and the
Community and/or the Master Lessor, disputes under this Lease shall be governed pursuant to the
provisions of the Ground Lease.



     19.14 Time is of the Essence. Time is of the essence with respect to the performance of
every provision of this Lease in which time of performance is a factor.



     19.15 Joint and Several Liability. All parties signing this Lease as Tenant and any
Guarantor(s) of this Lease are jointly and severally liable for performing all of
Tenant’s obligations under this Lease.



     19.16 Independent Obligations. Except for any right of offset or abatement which may be
expressly and specifically set forth in this Lease, Tenant’s covenants and obligations to
pay Rent are independent from any of Landlord’s covenants, obligations, warranties or representations
in this Lease.



     19.17 Tenant’s Organization Documents; Authority. If Tenant is an entity, Tenant will,
within 10 days after Landlord’s written request, deliver to Landlord: (a) Certificate(s) of Good
Standing from the state of formation of Tenant and, if different, the State, confirming that
Tenant is in good standing under the laws governing formation and qualification to transact
business in such state(s); and (b) a copy of Tenant’s organizational documents and any
amendments or modifications thereof, certified as true, correct and complete by an appropriate
official of Tenant. Tenant and each individual signing this Lease on behalf of Tenant represents
and warrants that they are duly authorized to sign on behalf of and to bind Tenant and that this
Lease is a duly authorized, binding and enforceable obligation of Tenant.



     19.18 Force Majeure. If either party is delayed in or prevented from performing any
obligation under this Lease (excluding, however, the payment of money) by reason of Force
Majeure, such party’s performance of such obligation will be excused for a period equal to the
period of delay actually caused by the Force Majeure event. In no event will the occurrence of
any event of Force Majeure excuse or suspend any of Tenant’s obligations to pay Rent under this
Lease after the Commencement Date has occurred.



     19.19 Management. Property Manager is authorized to manage the Property. Landlord
appointed Property Manager to act as Landlord’s agent for leasing, managing and operating the
Property. The Property Manager then serving is authorized to take actions and give notices and
demands under this Lease on Landlord’s behalf.



     19.20 Financial Statements. Tenant will, prior to Tenant’s execution of this Lease and
within
10 days after Landlord’s request at any time during the Term, deliver to Landlord
complete, accurate and
up-to-date financial statements with respect to Tenant and any Guarantor(s) or other
parties obligated
upon this Lease, which financial statements must be (a) prepared according to generally
accepted
accounting principles consistently applied, and (b) certified by an independent certified
public accountant
or by Tenant’s (or Guarantor’s, as the case may be) chief financial officer that the same
are a true,
complete and correct statement of Tenant’s (or Guarantor’s) financial condition as of the
date of such financial statements.



     19.21 No Recording. Tenant will not record this Lease or any memorandum of this Lease.



     19.22 Nondisclosure of Lease Terms. The terms and conditions of this Lease constitute
proprietary information of Landlord that Tenant will keep confidential. Tenant’s
disclosure of the terms and conditions of this Lease could adversely affect Landlord’s ability to negotiate other
leases and impair Landlord’s relationship with other tenants. Accordingly, Tenant will not, directly or
indirectly, disclose the terms and conditions of this Lease to any other tenant or prospective tenant of the
Property or to any other person or entity other than Tenant’s employees and agents who have a legitimate need
to know such information (and who will also keep the same in confidence) unless, and only to the
extent, any such disclosure is required by law or appropriate judicial order.



     19.23 Construction of Lease and Terms. The terms and provisions of this Lease are the
result of negotiations between Landlord and Tenant, each of which are sophisticated
parties and each of
which has been represented or been given the opportunity to be represented by legal
counsel and/or
Other advisors of its own choosing, and neither of which has acted under any duress or
compulsion,
whether legal, economic or otherwise. Consequently, the terms and provisions of this
Lease are to be
interpreted and construed in accordance with their usual and customary meanings, and
Landlord and



23









 







Tenant each waive the application of any rule of law that ambiguous or conflicting terms or
provisions are to be interpreted or construed against the party who drafted the same. Landlord’s
submission of this instrument to Tenant in draft or final form for examination or signature does
not constitute any reservation of, or agreement or option to lease, the Premises. When executed
by Tenant and delivered to Landlord, this Lease will be construed as an offer from Tenant to
lease the Premises on the terms set forth in this Lease. Tenant’s offer to lease may be
accepted, and a binding agreement between Tenant and Landlord created, only by Landlord’s
execution of this Lease and delivery of the fully-executed Lease to Tenant. Once so delivered by
Landlord, this Lease shall be deemed effective as of the Effective Date.



[SIGNATURE PAGE FOLLOWS]







24









 





     Landlord and Tenant have each caused this Lease to be executed and delivered by their duly
authorized representatives.



	 	 	 	 	 	 	 
	 	 	 	 	LANDLORD:
	 
	 	 	 	 	 	 
	Effective Date:

April 12, 2006

(to be completed by Landlord)	 	 	 	PC 101, INC., a Delaware corporation






	 	 	 	 	 
	 	 	 
	 	By  	                                                /s/ JOHN W. GREER
 	 
	 	 	Name:  	JOHN W. GREER    	 
	 	 	Title:  	VICE PRESIDENT 	 
	 
	 	TENANT:





SXC HEALTH SOLUTIONS, INC., a Texas corporation

 	 
	 	By  	/s/ JEFF PACK
 	 
	 	 	Name:  	JEFF PACK 	 
	 	 	Title:	SVP CFO 	 
	 




25











 






EXHIBIT “A”

DEFINITIONS



“Additional Building” means those buildings owned by Landlord at the time in question or its
Affiliate, other than the Building, within the Pima Center development located at the northwest
corner of Via de Ventura Boulevard and Loop 101 Pima Freeway in Scottsdale, Arizona.



“Additional Rent” means any charge, fee or expense (other than Basic Rent) payable by Tenant
under this Lease, however denoted.



“Affiliate” means, with respect to any person or entity, any other person or entity that,
directly or indirectly, controls, is controlled by or is under common control with such person
or entity. For purposes of this definition, “control” means possessing the power to direct or
cause the direction of the management and policies of the entity by the ownership of a
majority of the voting securities of the entity.



“Alteration” means any change, alteration, addition or improvement to the Premises or Property.



“Bankruptcy Code” means the United States Bankruptcy Code as the same now exists and as the
same may be amended, including any and all rules and regulations issued pursuant to or in
connection with the United States Bankruptcy Code now in force or in effect after the Effective
Date.



“Basic Rent” means the basic rent payable by Tenant under this Lease, initially in the amounts
specified in the Basic Terms.



“Basic Terms” means the terms of this Lease identified as the “Basic Terms” located before
Article 1 of this Lease.



“Building” means that certain office building now existing on the Land.



“Business Days” means any day other than Saturday, Sunday or a legal holiday in the state in
which the Property is located.



“Business Hours” means Monday through Friday from 7:00 a.m. to 6:00 p.m. and on Saturdays from
8:00 a.m. to 1:00 p.m., excluding holidays.



“Casualty” means any physical loss, destruction or damage to property which is caused by fire,
windstorm, hail, lightning, vandalism, theft, explosion, collision, accident, flood,
earthquake, collapse, or any other peril (including, without limitation, malfunctions or
failures of equipment, machinery, sprinkling devices, or air conditioning, heating or
ventilation apparatus; occurrences or presence of water, snow, frost, steam, gas, sewage,
sewer backup, odors, noise, hail or excessive heat or cold; broken or
falling plaster, ceiling
tiles, fixtures or signs; broken glass; or the bursting or leaking of pipes or plumbing
fixtures). “Casualty” does not include (a) any waste or excessive or unreasonable wear and
tear, or (b) any loss, destruction or damage arising or resulting from the placement, disposal
or release of Hazardous Materials in, on, under, about or from the Property by either Landlord
or Tenant.



“Certificate of Occupancy” means a certificate of occupancy, governmental sign-off or other
document, permit or approval (whether conditional, unconditional, temporary or permanent) which
must be obtained by Landlord from the appropriate governmental or quasi-governmental authority
as a condition to the lawful initial occupancy by Tenant of the Premises.



“Claims” means all claims, actions, demands, liabilities, damages, costs, penalties,
forfeitures, losses or expenses including, without limitation, reasonable attorneys’ fees and
the costs and expenses of enforcing any obligation under this Lease.



“Commencement Date” means the earlier of (a) Substantial Completion of the Tenant
Improvements, (b) the date Tenant commences business operations in the Premises, or (c) the
date Substantial Completion of the Tenant Improvements would have occurred but for Tenant
Delay.



“Common Area” means parking areas, driveways, sidewalks, landscaped areas, shared entry lobbies
and corridors, shared restrooms, and such other areas (outside of the Premises) that Landlord
may designate from time to time as common areas of the Property.



“Community” means the Salt River Pima-Maricopa Indian Community.



“Condemning Authority” means any person or entity with a statutory or other power of eminent
domain.



“Contractor” means Opus West Construction Corporation, a Minnesota corporation.



“Delivery Date” means the target date for Landlord’s delivery of the Premises to Tenant, which
initially is the delivery date specified in the Basic Terms.



“Declaration” means that certain Declaration of Easements, Covenants, Conditions and
Restrictions executed by the Master Lessor and Pima Freeway Commerce Center, L.L.C., a
Delaware limited liability


A-1









 






 company, recorded September 26, 2003 as Instrument No. 20031354273 in the office of the County
Recorder of Maricopa County, Arizona, as the same may now or hereafter be amended.



“Effective Date” means the date set forth as such by Landlord when Landlord executes this
Lease, as indicated on the signature page.



“Event of Default” means the occurrence of any of the events specified in Section 14.1 of this
Lease, or the occurrence of any other event that this Lease expressly labels as an “Event of
Default”.



“Floor Plan” means the floor plan attached to this Lease as EXHIBIT “C”.



“Force Majeure” means acts of God; strikes; lockouts; labor troubles; inability to procure
materials; acts of war; terrorist actions; inclement weather; governmental laws or regulations;
Casualty; orders or directives of any legislative, administrative, or judicial body or any
governmental department; inability to obtain any licenses, permissions or authorities (despite
commercially reasonable pursuit of such licenses, permissions or authorities); and other
similar or dissimilar causes beyond Landlord’s reasonable control.



“Ground Lease” means that certain Substitute Business Lease 8-040-IV dated July 19, 2004 by
and between the Master Lessor and MS-PFA 4, LLC, a Delaware limited liability company.



“Guarantor” means any person or entity at any time providing a guaranty of all or any part of
Tenant’s obligations under this Lease.



“Hazardous Materials” means any of the following, in any amount: (a) any petroleum or petroleum
product, asbestos in any form, urea formaldehyde and polychlorinated biphenyls; (b) any
radioactive substance; (c) any toxic, infectious, reactive, corrosive, ignitable or flammable
chemical or chemical compound; and (d) any chemicals, materials or substances, whether solid,
liquid or gas, defined as or included in the definitions of “hazardous substances,” “hazardous
wastes,” “Hazardous materials,” “extremely
hazardous wastes,” “restricted hazardous wastes,”
“toxic substances,” “toxic pollutants,” “solid waste,” or words of similar import in any
federal, state, Community or local statute, law, ordinance or regulation now existing or
existing on or after the Effective Date as the same may be interpreted by government offices
and agencies, including, without limitation, (i) trichloroethylene, tetrachloroethylene,
perchloroethylene and other chlorinated solvents, (ii) oil or any petroleum products or
fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable explosives,
(vi) urea formaldehyde, (vii) radioactive materials and waste, and (viii) infectious waste. It
is the intent of the parties hereto to construe the term “Hazardous Materials” in its broadest
sense.



“Hazardous Materials Laws” means any federal, state, Community or local laws, ordinances,
codes, statutes, regulations, administrative rules, policies and orders, and other authority,
existing now or in the future, which classify, regulate, list or define Hazardous Materials.



“Improvement Allowance” means the amount specified in the Basic Terms to be applied to the
costs of designing and installing the Tenant Improvements pursuant to the terms of Article 17.



“Land” means that certain real property legally described on the attached EXHIBIT “B”.



“Landlord” means only the ground sublessee of the Property pursuant to the Sublease at the time
in question.



“Landlord Parties” means Landlord, Property Manager, their Affiliates, and their respective
officers, directors, partners, shareholders, members and employees.



“Landlord’s Personal Property” means any trade fixtures, inventory, equipment, vehicles, or
other personal property of any type or kind located at or about the Property which is owned or
leased by, or is otherwise under the care, custody or control of, Landlord or its agents,
employees, contractors, or invitees.



“Landowner Parties” means Master Lessor, the Community and all of their respective officers,
directors, employees, attorneys, agents and their successors and assigns.



“Laws” means any law, regulation, rule, order, statute or ordinance of any governmental or
private entity including, without limitation, the Community, in effect on or after the
Effective Date and applicable to the Property or the use or occupancy of the Property,
including, without limitation, Hazardous Materials Laws, Property Rules and Permitted
Encumbrances.



“Lease” means this Multi-Tenant Lease Agreement, as the same may be amended or modified after
the Effective Date.



“Major Alterations” means Alterations involving any modifications to (a) the structural,
mechanical, electrical, plumbing, fire/life safety or heating, ventilating and air
conditioning systems of the Building, or (b) any portion of the Property outside of the
interior of the Premises.



“Master Lessor” means certain allotted owners of land within the Community as the same are
identified on Exhibit C-3 in the Ground Lease.




A-2









 







“Maximum Rate” means interest at a rate equal to the lesser of (a) 10% per annum, or (b) the
maximum interest rate permitted by law.



“Mortgage” means any mortgage, deed of trust, security interest or other security document of
like nature that at any time may encumber all or any part of the Property and any replacements,
renewals, amendments, modifications, extensions or refinancings thereof, and each advance
(including future advances) made under any such instrument.



“Net Rent” means all Rent Landlord actually receives from any reletting of all or any part of
the Premises, after first deducting the Re-entry Costs and any other amounts owed by Tenant to
Landlord.



“Notices” means all notices, deliveries, demands or requests that may be or are required to be
given, provided, demanded or requested by either party to the other as provided in this Lease,
excluding communications by Landlord regarding the Tenant Improvements which are made to the
“tenant representative” appointed by Tenant under Article 17.



“Operating Expenses” means, subject to the exclusions listed below, all costs, expenses and
charges which Landlord pays or incurs in connection with owning, managing, maintaining, repairing
and operating the Property, as reasonably determined by Landlord, including without limitation
all related to the following: (a) insurance premiums and deductible amounts under any insurance
policy; (b) steam, electricity, water, sewer, gas, telephone, cable and other utility charges;
(c) lawn care and landscaping; (d) re-painting, re-striping, seal-coating, cleaning, sweeping,
patching and repairing parking areas and other paved surfaces serving the Building; (e) snow
removal; (f) maintenance and repair of the Building and Common Areas; (g) janitorial services,
window washing, cleaning, rubbish removal and other services provided to the Property; (h)
property association fees, dues and assessments and all payments under any Permitted Encumbrance
(except Mortgages) affecting the Property; (i) wages, benefits and other related costs and
expenses payable to and associated with persons at the level of manager and below whose duties
are connected with managing, maintaining, repairing and operating the Property (but only for the
portion of such persons’ time allocable to the Property); (j) uniforms, supplies, materials and
equipment used in connection with managing, maintaining, repairing and operating the Property;
(k) replacements required for the normal maintenance, repair and operation of the Property; (I)
reasonable management fees and the costs (including rental) of maintaining a building or
management office in the Building; (m) capital improvements installed by Landlord (i) to comply
with changes in Laws or the interpretation or enforcement thereof occurring after the Effective
Date, or (ii) with a reasonable expectation of reducing energy costs or other Operating Expenses;
provided that in computing Operating Expenses Landlord will amortize the cost of such capital
improvements (including reasonable charges for interest on the unamortized amount) over the
shorter of (A) their useful life (as reasonably determined by Landlord), and (B) five years; (n)
costs, expenses and charges incurred by Landlord in connection with public sidewalks, walkways,
rights of way or other public facilities, or any easements or other appurtenances to the
Property; (o) security and access control equipment and services; and (p) such other costs,
expenses and charges as may ordinarily be incurred in connection with managing, maintaining,
repairing and operating an office building project similar to the Property.




     Operating Expenses do not include the following: (aa) the cost of capital improvements to the
Property, except as provided in clause (m) above; (bb) marketing costs, leasing commissions and
tenant expenses Landlord incurs in connection with leasing or procuring tenants or renovating space
for new or existing tenants; (cc) legal expenses incident to Landlord’s enforcement of any lease;
(dd) interest or principal payments on any Mortgage of Landlord (except as allowed under clause (m)
above); (ee) any expense for which Landlord is directly reimbursed by another tenant other than as
an Operating Expense; (ff) the cost of any repairs, restoration or other work for which Landlord is
directly reimbursed by insurance proceeds or Taking awards; (gg) any amount paid for products or
services to an entity that is an Affiliate of Landlord, but only if and to the extent such amount
exceeds the fair market value of such services and products; (hh) the costs of any utilities which
are separately metered to the Premises or to another tenant’s premises; (ii) any fines or penalties
imposed on Landlord for failing to timely perform its obligations under this Lease; (jj) salaries
of employees not related to the management, operation, repair or maintenance of the Property; (kk)
any ground rent payable under any ground lease now or hereafter affecting the Property; (II) any
bad debt loss, rental loss, or reserves for bad debts or rental loss; (mm) costs (other than the
cost of routine maintenance and monitoring) of remediation of Hazardous Materials which are in or
on the Property as of the Effective Date and which are classified as Hazardous Materials under Laws
in effect as of the Effective Date; or (nn) any costs which would allow Landlord a “double
recovery” of any other costs for which Landlord is directly reimbursed other than as an Operating
Expense.


“Permitted Encumbrances” means all easements, declarations, encumbrances, covenants,
conditions, reservations, restrictions and other matters now or after the Effective Date
affecting title to the Property, including, without limitation, the Ground Lease, the Pima II
Declaration, the Sublease and the Declaration.



“Pima II Declaration” means that certain Declaration of Covenants, Conditions and Restrictions
and Grant of Easements for Opus Pima Center Phase II recorded in the office of the County
Recorder of Maricopa County, Arizona, as Instrument Number 2051902427, as the same may now or
hereafter be amended.



“Premises” means that certain space situated in the Building shown and designated on the Floor
Plan and described in the Basic Terms.





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“Property” means, collectively, the Land, Building and all other improvements on the Land.



“Property Expenses” means the total amount of Property Taxes and Operating Expenses due and
payable with respect to the Property during any calendar year of the Term, as the same may be
adjusted pursuant to Section 3.6 of this Lease.



“Property Manager” means the property manager named in the Basic Terms or any successor
property manager Landlord may appoint from time to time to manage the Property.



“Property Rules” means those certain rules attached to this Lease as EXHIBIT “E,” as Landlord
may amend the same from time to time.



“Property Taxes” means any general real property tax, improvement tax, assessment, special
assessment, reassessment, commercial rental tax, in lieu tax, levy, charge, penalty or similar
imposition imposed by any authority having the direct or indirect power to tax, including but
not limited to, (a) any city, county, state, federal or Community entity, (b) any school,
agricultural, lighting, drainage or other improvement or special assessment district, (c) any
governmental agency, or (d) any private entity having the authority to assess the Property under
any of the Permitted Encumbrances. The term “Property Taxes” includes all charges or burdens of
every kind and nature Landlord incurs in connection with using, occupying, owning, operating,
leasing or possessing the Property, without particularizing by any known name and whether any of
the foregoing are general, special, ordinary, extraordinary, foreseen or unforeseen; any tax or
charge for fire protection, street lighting, streets, sidewalks, road maintenance, refuse,
sewer, water or other services provided to the Property. The term “Property Taxes” does not
include Landlord’s state or federal income, franchise, estate or inheritance taxes. If Landlord
is entitled to pay, and elects to pay, any of the above listed assessments or charges in
installments over a period of two or more calendar years, then only such installments of the
assessments or charges (including interest thereon) as are actually paid in a calendar year will
be included within the term “Property Taxes” for such calendar year.



“Re-entry Costs” means all costs and expenses Landlord incurs re-entering or reletting all or
any part of the Premises after an Event of Default, including, without limitation, all costs
and expenses Landlord incurs (a) maintaining or preserving the Premises; (b) recovering
possession of the Premises, removing persons and property from the Premises and storing such
property (including court costs and reasonable attorneys’ fees); (c) renovating or altering the
Premises; and/or (d) reletting the Premises (including without limitation real estate
commissions, advertising expenses and similar expenses paid or payable in connection with
reletting all or any part of the Premises). “Re-entry Costs” also includes the value of free
rent and other concessions Landlord gives in connection with re-entering or reletting all or
any part of the Premises.



“Rent” means, collectively, Basic Rent and Additional Rent



“Rent Tax” means any tax or excise on rents, all other sums and charges required to be paid by
Tenant under this Lease, and gross receipts tax, transaction privilege tax or other tax, however
described, which is levied or assessed by the United States of America, the Community, the state
in which the Building is located or any city, municipality or political subdivision thereof,
against Landlord in respect to the Basic Rent, Additional Rent or other charges payable under
this Lease or as a result of Landlord’s receipt of such rents or other charges accruing under
this Lease; provided, that “Rent Tax” does not include any federal, state or local income tax or
other tax, however denominated, which is applied to or measured by the net income of Landlord.



“Reserved Spaces” means vehicular parking spaces located in the parking facilities provided for
the Building which are designated for the exclusive use of a specific tenant, as the same may
be relocated or redesignated from time to time by Landlord.



“Security Deposit” means the security deposit to be provided to Landlord in the amount set
forth in the Basic Terms.



“Substantial Completion” means either (a) the date a Certificate of Occupancy (or all approvals
required for the issuance thereof) is obtained for the Premises, or (b) if a Certificate of
Occupancy is not required as a condition to Tenant’s lawful occupancy of the Premises, the date
that the Tenant Improvements are substantially completed (subject to punch list items), as
confirmed in writing by Landlord’s architect; provided that if either (a) or (b) is delayed or
prevented because of work Tenant is responsible for performing in the Premises, “Substantial
Completion” means the date that all of Landlord’s work which is necessary for either (a) or (b)
to occur has been performed (subject to punch list items) and Landlord has made the Premises
available to Tenant for the performance of Tenant’s work.



“Sublease”
means that certain Ground Sublease dated July 19, 2004 by
and between MS-PFA ___, LLC,
a Delaware limited liability company, and Landlord.



“Supplemental Equipment” means any of the following items that, in each case; are (a) installed
within the Premises by Tenant or at Tenant’s request, (b) serve only the Premises, and (c) are
not included by Landlord in the building standard systems, fixtures and equipment of the
Building: (i) any supplemental or specialty electrical, mechanical, plumbing, heating,
ventilation or air conditioning systems, fixtures or




A-4









 







equipment; (ii) any supplemental or specialty fire, life, safety or security systems, fixtures
or equipment; or (iii) any video, audio, communications or computer systems, fixtures or
equipment (including cabling).



“Taking” means the exercise by a Condemning Authority of its power of eminent domain on all or
any part of the Property, either by accepting a deed in lieu of condemnation or by any other
manner.



“Tenant” means the tenant identified in this Lease and such tenant’s permitted successors and
assigns. In any provision relating to the conduct, acts or omissions of “Tenant,” the term
“Tenant” includes the tenant identified in this Lease and such tenant’s agents, employees,
contractors, invitees, successors, assigns and others using the Premises or on the Property
with Tenant’s express or implied permission.



“Tenant Delay” means any delay caused or contributed to by Tenant, including, without
limitation, with respect to the Tenant Improvements, Tenant’s failure to timely prepare or
approve a space plan for the Tenant Improvements, Tenant’s failure to timely prepare or approve
construction drawings and specifications, and any delay from any revisions Tenant proposes to
the approved construction drawings and specifications. A Tenant Delay excuses Landlord’s
performance of any obligation related thereto for a period equal to (a) the duration of the
act, occurrence or omission that constitutes the Tenant Delay, or (b) if longer, the period of
delay actually caused by such Tenant Delay.



“Tenant Improvements” means the initial improvements to the Premises that are designed and
installed as provided in Article 17.



“Tenant Parties” means the tenant identified in this Lease, it’s Affiliates, and their
respective officers, directors, partners, shareholders, members and employees.



“Tenant’s Personal Property” means any trade fixtures, inventory, equipment, vehicles, or other
personal property of any type or kind located at or about the Property which is owned or leased
by, or is otherwise under the care, custody or control of, Tenant or its agents, employees,
contractors, or invitees.



“Tenant’s Share of Property Expenses” means the product obtained by multiplying the amount of
Property Expenses for the period in question by Tenant’s Share of Property Expenses Percentage.



“Tenant’s Share of Property Expenses Percentage” means the percentage computed by (a) dividing
the rentable square feet of the Premises by the total rentable square feet of the Building and
(b) multiplying the quotient by 100.



“Term” means the initial term of this Lease specified in the Basic Terms and, if applicable,
any exercised extension period then in effect.



“Transfer” means an assignment, mortgage, pledge, transfer, sublease, license or other
encumbrance or conveyance (voluntarily, by operation of law or otherwise) of this Lease or the
Premises or any right, title or interest in or created by this Lease or the Premises. The term
“Transfer” also includes any assignment, mortgage, pledge, transfer or other encumbering or
disposal (voluntarily, by operation of law or otherwise) of any ownership interest in Tenant or
any Guarantor that results or could result in a change of control of Tenant or any Guarantor.



“Unreserved Spaces” mean vehicular parking spaces located in the parking facilities provided
for the Building which are not designated for the exclusive use of a specific tenant or for use
by visitors to the Property, as the same may be relocated or redesignated from time to time by
Landlord.




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EXHIBIT “B”

LEGAL DESCRIPTION OF THE LAND




Parcel 4



A portion
of Section 31, Township 3 North, Range 5 East of the Gila and Salt River Meridian,
Maricopa County, Arizona, more particularly described as follows:



COMMENCING at a GLO cap at the North Quarter corner of said Section 31;
thence
S00001’13”E (an
assumed bearing), along the East line of the Northwest Quarter of said Section 31, for a
distance of 2638.99 feet to a Brass Cap at the Center of said
Section 31; thence N89048’40”W,
along the South line of the Northwest Quarter of said Section 31, for a distance of 1700.85
feet; thence
S00006’49”W for a distance of 786.45 feet; thence WEST for a distance of 231.27
feet to the POINT OF BEGINNING;



Thence SOUTH for a distance of 673.50 feet; thence WEST for a distance of 206.37 feet; thence
NORTH for a distance of 673.50 feet; thence EAST for a distance of 206.37 feet to the POINT OF
BEGINNING.



A gross and net area containing 3.1908 acres, more or less.




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EXHIBIT “C”

FLOOR PLAN









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EXHIBIT “D”

COMMENCEMENT DATE MEMORANDUM




     THIS MEMORANDUM is made and entered into as of                                         , 200__ by and between
PC 101, INC., a Delaware corporation, as Landlord, and SXC HEALTH SOLUTIONS, INC., a Texas
corporation, as Tenant.



RECITALS:




     A. Landlord and Tenant are parties to a certain Office Lease Agreement dated as of
                                        , 200__ (“Lease”), relating to certain premises (“Premises”) located in the building
commonly known as “Opus Pima Center II”, located at the northwest corner of Via de Ventura
Boulevard and Loop 101 Pima Freeway in Scottsdale, Arizona (“Building”).



     B. All capitalized terms not otherwise defined in this Memorandum have the meanings given
them in the Lease.



     C. Landlord and Tenant desire to confirm certain facts regarding the Lease, including the
Commencement Date, the size of the Premises and Building, the monthly Basic Rent
installment amounts, and the date the initial Term of the Lease expires and the notice date(s) and
expiration date(s) of any extension periods provided to Tenant under the Lease.



ACKNOWLEDGMENTS:




     Pursuant to Section 1.2 of the Lease and in consideration of the facts set forth in the
Recitals, Landlord and Tenant acknowledge and agree as follows:



     1. The Commencement Date under the Lease is                                         .



     2. The Premises contains                      rentable square feet and                      usable square feet.



     3. The Building contains                      rentable square feet.



     4. Monthly installments of Basic Rent:



	 	 	 
	Months	 	Basic Rent
	 
	 	 
	                    

	 	$                                        
	                    

	 	$                                        
	                    

	 	$                                        






     5. Initial Tenant’s Share of Property Expenses Percentage:                     %.



     6. The initial Term of the Lease expires on [                                        ], unless the Lease is sooner
terminated in accordance with the terms and conditions of the Lease.



     7. Tenant must exercise its right to extend the Term, if at all, by notifying Landlord no
later than                                         , subject to the conditions and limitations set forth in the Lease.]



     8. If so extended, the Term will expire on                                         , unless the Lease is sooner
terminated in accordance with the terms and conditions of the Lease.



     Landlord and Tenant have each caused this Memorandum to be executed and delivered by their
duly authorized representatives as of the day and date first written above. This Memorandum may
be executed in counterparts, each of which is an original and all of which constitute one
instrument.



	 	 	 	 	 
	 	LANDLORD:




PC 101, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TENANT:



SXC HEALTH SOLUTIONS, INC., a Texas corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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EXHIBIT “E”

PROPERTY RULES





     The following Properly Rules apply to and govern Tenant’s use of the Premises and Property.
Capitalized terms have the meanings given in the Lease, of which these Property Rules are a
part. Tenant is responsible for all Claims arising from any violation of the Property Rules by
Tenant.



     1. No awning or other projection may be attached to the outside walls of the Premises or
Property. No curtains, blinds, shades or screens visible from the exterior of the Premises
may be attached to or hung in, or used in connection with, any window or door of the Premises
without the prior written consent of Landlord. Such curtains, blinds, shades, screens or other fixtures must
be of a quality, type, design and color, and attached in a manner, approved by Landlord in writing.



     2. No sign, lettering, picture, notice or advertisement which is visible from the exterior
of the Premises or Property may be installed on or in the Premises without Landlord’s prior
written consent, and then only in such manner, character and style as Landlord may have approved in writing.



     3. Tenant will not obstruct sidewalks, entrances, passages, corridors, vestibules, halls,
or stairways in and about the Property that are used in common with other tenants or any other
portion of the Common Area. Tenant will not place objects against glass partitions or doors or windows
that would be unsightly from any of the corridors of the Property or from the exterior of the Property
and will promptly remove any such objects upon notice from Landlord.



     4. Tenant will not create or allow obnoxious or harmful fumes, odors, smoke or other
discharges that may be offensive to the other occupants of the Property or neighboring
properties, or otherwise create any nuisance.



     5. The Premises shall not be used for cooking (as opposed to heating of food), lodging,
sleeping or for any immoral or illegal purpose.



     6. Tenant will not make excessive noises, cause disturbances or vibrations or use or
operate any electrical or mechanical devices or other equipment that emit excessive sound
or other waves or disturbances or which may be offensive to the other occupants of the Property, or
that may unreasonably interfere with the operation of any device, equipment, computer, video,
radio, television broadcasting or reception from or within the Property or elsewhere, or otherwise use any
apparatus or device in or about the Premises that causes substantial noise, odor or vibration.



     7. Machines and mechanical equipment belonging to Tenant, which cause noise or vibration
that may be transmitted to the structure of the Building or to any space therein to such a
degree as to be objectionable to Landlord or to any tenants in the Building, shall be placed and maintained
by Tenant, at Tenant’s expense, on vibration eliminators or other devices sufficient to eliminate noise
or vibration.



     8. No dog or other animal or bird is allowed in the Property, except for animals assisting
the disabled.



     9. Tenant will not waste electricity, water or air conditioning and will cooperate with
Landlord to ensure the most effective operation of the Property’s heating, air conditioning,
ventilation and utility systems. Tenant will not use any method of heating or air conditioning (including without
limitation fans or space heaters) other than that supplied by Landlord or approved in writing. Tenant will not
connect any apparatus or device to electrical current or water except through the electrical and water
outlets installed by Landlord in the Premises.



     10. Tenant assumes full responsibility for protecting its space from theft, robbery and
pilferage, which includes keeping valuable items locked up and doors locked and other means of
entry to the Premises closed and secured after Business Hours and at other times the Premises is
not in use.



     11. No additional locks or similar devices shall be attached to any door or window and no
keys other than those provided by Landlord shall be made for any door. If more than two keys for
one lock are desired by the Tenant, Landlord will provide the same upon payment by the Tenant.
Upon termination of this Lease or of Tenant’s possession, Tenant will surrender all keys of the
Premises and shall explain to Landlord all combination locks on safes, cabinets and vaults.



     12. Tenant will not bring into the Property inflammables, such as gasoline, kerosene,
naphtha and benzine, or explosives or any other article of intrinsically dangerous nature.



     13. Tenant shall not bring any bicycles or other vehicles of any kind into the Building,
except for appropriate vehicles necessary for assisting the disabled.



     14. If any carpeting or other flooring is installed by Tenant using an adhesive, such
adhesive will be an odorless, releasable adhesive.



     15. If Tenant requires telegraphic, telephonic, security alarm, satellite dishes, antennae
or similar services, Tenant shall first obtain Landlord’s written approval, and comply with
Landlord’s instructions in their installation.



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     16. The water and wash closets, drinking fountains and other plumbing fixtures will not
be used for any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, coffee grounds or other substances shall be thrown therein.



     17. Tenant will not overload any utilities serving the Premises.



     18. All loading, unloading, receiving or delivery of goods, supplies, furniture or other
items will be made only through entryways provided for such purposes. Deliveries during normal
office hours shall be limited to normal office supplies and other small items. No deliveries shall be made
which impede or interfere with other tenants or the operation of the Building. No equipment, materials,
furniture, packages, supplies, merchandise or other property will be received in the Building or carried in
the passenger elevators except between such hours and in such elevators as may be designated by
Landlord.



     19. Tenant’s initial move in and subsequent deliveries of heavy or bulky items such as
furniture, safes and similar items shall be made only outside of Business Hours and only in
such manner as shall be prescribed in writing by Landlord. Landlord will in all cases have the
right to specify the proper position of any safe, equipment or other heavy article, which shall
only be used by Tenant in a manner which will not interfere with or cause damage to the Premise
or the Property, or to the other tenants or occupants of the Property. Tenant will not overload
the floors or structure of the Building.



     20. Tenant will be responsible for all Claims arising from any injuries sustained by any
person whomsoever resulting from the delivery or moving of any articles by or for Tenant.



     21. Canvassing, soliciting, and peddling in or about the Property is prohibited and
Tenant will cooperate to prevent the same.



     22. Persons may enter the Building only in accordance with such regulations as Landlord
may from time to time establish. Persons entering or departing from the Building may be
questioned as to their business in the Building, and Landlord may require the use of an
identification card or other access device or procedures, and/or the registration of persons
as to the hour of entry and departure, nature of visit, and other information deemed
necessary for the protection of the Building. All entries into and departures from the
Building shall be through one or more entrances as Landlord shall from time to time
designate. Landlord may elect not to enforce some or all of the foregoing during Business
Hours or other times, but reserves the right to do so at Landlord’s discretion. Landlord may
also, at its discretion, utilize other procedures (including without limitation screening
devices, physical inspections, and/or other means) reasonably designed to prevent weapons or
dangerous items from being brought into the Building. Tenant will cooperate with all such
procedures.



     23. In case of invasion, mob, riot, public excitement, or other commotion, Landlord
reserves the right to limit or prevent access to the Property during the continuance of the same
by closing the doors or taking other appropriate steps. Landlord will in no case be liable for damages
for any error or other action taken with regard to the admission to or exclusion from the Property of
any person at any time.



     24. Smoking is not permitted anywhere upon the Property, except in such areas (if any)
located outside of the Building as may be expressly designated as permitted smoking
areas in writing from time to time by Landlord in its sole and absolute discretion. Tenant will not allow
any smoking anywhere within the Building. All smoking materials must be disposed of in ashtrays or
other appropriate receptacles provided for that purpose.



     25. The Building directory will be provided exclusively for the display of the name and
location of tenants only and Landlord reserves the right to exclude any other names
therefrom and to limit the amount of space thereon dedicated to Tenant.



     26. Unless otherwise approved by Landlord in writing, all janitorial services for the
Property and the Premises will be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by Landlord will
be employed by Tenant or permitted to enter the Property for the purpose of performing
janitorial services. Tenant shall not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the Property.



     27. Landlord reserves the right to exclude or expel from the Property any person who, in
Landlord’s judgment, is intoxicated or under the influence of liquor or drugs or who is in
violation of any of the Property Rules or any Laws.



     28. Tenant will store all its trash and garbage in proper receptacles within its
Premises or in other facilities provided for such purpose by Landlord. Tenant will not place
in any trash box or receptacle any Hazardous Materials or any other items or materials that
cannot be safely and properly disposed of in the ordinary and customary manner of trash and
garbage disposal. All garbage and refuse disposal will be made in accordance with directions
issued from time to time by Landlord. Tenant will cooperate with any recycling program at the
Property.



     29. Tenant will not use in the Premises or Common Area of the Property any hand truck
except those equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve.



E-2









 





     30. Tenant will not use the name of the Building or the Property in connection with or in
promoting or advertising the business of Tenant except as Tenant’s address.



     31. Tenant will comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency.



     32. Tenant’s service or other requests regarding the operation of the Property will be
made by appropriate application to Landlord’s property management office for the Property by
an authorized individual.



     33. Tenant will not park or permit parking in any areas designated by Landlord for
parking by visitors to the Property or for the exclusive use of other tenants or occupants of the
Property. Only passenger vehicles may be parked in the parking areas.



     34. Parking stickers or any other device or form of identification supplied as a
condition of use of the parking facilities will remain the property of Landlord. Such parking
identification device must be displayed as requested and may not be mutilated or obstructed in any manner. Such
devices are not transferable and any device in the possession of an unauthorized holder will be void.
Landlord may charge a fee for parking stickers, cards or other parking control devices supplied by
Landlord.



     35. No overnight or extended term parking or storage of vehicles is permitted.



     36. Parking is prohibited (a) in areas not striped for parking; (b) in aisles; (c) where
“no parking” signs are posted; (d) on ramps; (e) in cross-hatched areas; (f) in loading
areas; and (g) in such other areas as may be designated by Landlord.



     37. All responsibility for damage, loss or theft to vehicles and the contents thereof is
assumed by the person parking their vehicle.



     38. Tenant and/or each user of the parking area may be required to sign a parking
agreement, as a condition to parking, which agreement may provide for the manner of payment of
any parking charges and other matters not inconsistent with this Lease and these Property Rules.



     39. Landlord reserves the right to refuse parking identification devices and parking
rights to Tenant or any other person who fails to comply with the Property Rules applicable to
the parking areas. Any violation of such rule will subject the vehicle to removal, at such
person’s expense.



     40. A third party may own, operate or control the parking areas, and such party may
enforce these Property Rules relating to parking. Tenant will obey any additional rules and
regulations governing parking that may be imposed by the parking operator or any other person
controlling the parking areas serving the Property.



     41. Tenant will be responsible for the observance of all of the Property Rules by Tenant
(including, without limitation, all employees, agents, clients, customers, invitees and
guests).



     42. Landlord may, from time to time, waive any one or more of these Property Rules for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall be construed
as a continuing waiver of such Property Rule(s) in favor of Tenant or any other tenant, nor
prevent Landlord from thereafter enforcing any such Property Rule(s) against Tenant or
any or all of the tenants of the Property.



     43. These Property Rules are in addition to, and shall not be construed to in any way
modify or amend, in whole or in part, the other terms, covenants, agreements and conditions of
the Lease. To the extent there is any conflict between a Property Rule and any express term or
provision otherwise set forth in the Lease, such other express term or provision will be
controlling.



E-3









 





EXHIBIT “F”

BASE BUILDING IMPROVEMENTS




NOT APPLICABLE




F-1









 








EXHIBIT “G”

GENERATOR LOCATIONS










G-1