Ex-10.22.1



 





EXHIBIT
10.22.1




*Certain portions of this exhibit have been omitted pursuant to a request for confidential

treatment which has been filed separately with the SEC.




SUBLEASE AGREEMENT




          THIS SUBLEASE AGREEMENT is made and entered into this ___14th___day of December, 2006
(“Effective Date”), by and between ROBERT W. BAIRD & CO. INCORPORATED, a Wisconsin corporation
(“Sublessor”) and CUMBERLAND PHARMACEUTICALS INC., a Tennessee corporation (“Sublessee”).




RECITALS





	A.	 	Sublessor is the current tenant under a certain “Office Lease Agreement” by and between
Nashville Hines Development, LLC (“Landlord”) and Sublessor, dated as of July 24, 2000 (“Prime
Lease”) for space consisting of approximately 40,000 rentable square feet on the
9th and 10th Floor in the building commonly known as 2525 West End
Avenue (the “Building”) located in Nashville, Tennessee, as more fully described in the Prime
Lease (the “Leased Premises”). A copy of the Prime Lease is attached hereto as EXHIBIT A.
	 
	B.	 	With the consent of Landlord, Sublessor has the right to sublease a part of the Leased
Premises pursuant to the terms and conditions of the Prime Lease.
	 
	C.	 	Sublessor desires to sublet to Sublessee, and Sublessee desires to sublease from Sublessor, a
portion of the Leased Premises consisting of approximately 8,606 rentable square feet of space
on the 9th Floor of the Building (the “Subleased Premises”). The Subleased
Premises are more fully described and are as situated on the floor plan attached hereto as
EXHIBIT B.
	 
	D.	 	The obligations of Sublessor and Sublessee to perform this Sublease are conditioned upon
first obtaining the written consent of Landlord to this Sublease as required under Section
8.01 of the Prime Lease and to such other conditions precedent as are herein set forth.





          IN CONSIDERATION of the above recitals and the mutual covenants contained in this Sublease,
the parties agree as follows:





	 	1.	 	Subleased Premises.






	 	1.1	 	Sublessor sublets to Sublessee and Sublessee subleases from Sublessor,
the Subleased Premises. Sublessor warrants and represents that the copy of the
Prime Lease attached hereto as EXHIBIT A is a true, correct and complete copy
thereof and that such Prime Lease represents the entire understanding and
agreement between Landlord and Sublessor with respect to the Subleased
Premises. Except as otherwise provided in this Sublease, Sublessee
acknowledges and agrees that Sublessor has made and makes no warranties or
representations of any nature whatsoever with respect to any aspect of the
condition or otherwise relative to the Subleased Premises and that Sublessee is
taking the Subleased Premises strictly in its “AS IS” condition. Sublessor
agrees to provide Sublessee with a Tenant Improvement Allowance of [***]. Such
allowance shall be paid to Sublessee as a Rent credit over the six (6) month
period of the sublease term from July 1, 2007 through December 31, 2007. As
such, Sublessee shall have the right to deduct up to one sixth
(1/6th) of the Tenant Improvement Allowance or [***] from its
monthly Rent during the six (6) month period of July 1, 2007 through December
31, 2007 of the Sublease.
	 
	 	1.2	 	As of the Effective Date, Sublessor warrants and represents to
Sublessee that: (a) Sublessor is not now, and as of the Commencement Date (as
defined below) will not be, in default or breach of any of the terms or
provisions of the Prime Lease, (b) Sublessor has no notice or knowledge of any
claim by Landlord that Sublessor is or would, with the passage of time or the
giving of notice or otherwise, be in default or breach of any of the terms or
provisions of the Prime Lease, (c) to the knowledge of Sublessor, Landlord is




1









 






	 	 	 	not in default or breach of any of the terms or provisions of the Prime Lease,
(d) to the knowledge of Sublessor, the Subleased Premises are in full
compliance with all applicable laws, statutes, ordinances, rules, regulations,
directives, orders and other requirements of any federal, state and municipal
entities, or otherwise, including without limitation the Americans with
Disabilities Act and all applicable environmental laws, rules and regulations.
	 
	 	1.3	 	Sublessor shall indemnify and hold Sublessee harmless from claims
arising from Sublessor’s breach of its representations and warranties contained
in this Sublease. This Section 1.3 shall survive the termination or expiration
of this Lease.






	 	2.	 	Sublease Subject to the Prime Lease.






	 	2.1	 	Except as otherwise provided herein, the terms, conditions and
Exhibits of the Prime Lease shall be incorporated into this Sublease. This
Sublease is subject and subordinate in all respects to the terms and conditions
of the Prime Lease and Sublessee shall comply therewith with respect to the
Subleased Premises. Sublessee agrees to be bound by and to perform all
obligations and responsibilities of Sublessor as tenant under the Prime Lease
as such obligations and responsibilities may apply to the Subleased Premises.
Except as provided herein, Sublessee shall be entitled to all rights and
benefits of Sublessor pertaining to the Subleased Premises under the Prime
Lease and be subject to the same obligations, liabilities and limitations of
Sublessor pertaining to the Subleased Premises under the Prime Lease.
Sublessee shall neither do nor permit anything to be done that would cause the
Prime Lease to be terminated or forfeited by reason of any right of termination
or forfeiture reserved or vested in Landlord under the Prime Lease.
Notwithstanding anything contained herein or otherwise to the contrary,
sections 9.03, 9.04 and 9.05 of the Prime Lease shall not be part of this
Sublease and Sublessee shall have no rights of first refusal or options to
extend with respect to the Subleased Premises, whether pursuant to the terms of
the Prime Lease or otherwise.
	 
	 	2.2	 	Sublessee acknowledges that Sublessor does not, pursuant to this
Sublease, covenant or agree to do or perform any obligations undertaken or
assumed by Landlord under the Prime Lease. Sublessor will, upon Sublessee’s
request, use its reasonable efforts to obtain performance by Landlord under the
Prime Lease provided such efforts shall be at no cost to Sublessor. In strict
compliance with the Prime Lease, Sublessor shall reasonably cooperate, at no
expense to Sublessor, with Sublessee to enable Sublessee to enforce any
obligations or covenants of Landlord under the Prime Lease. Sublessee shall be
entitled to receive the pro-rata portion attributable to the Subleased Premises
of any rent abatements or credits received by Sublessor from Landlord as result
of any interruption in, or failure by Landlord to provide, any of the services
and utilities required under the Prime Lease or any failure by Landlord to
maintain and repair the Leased Premises or the Building under the Prime Lease
or for any other reason under the Prime Lease.
	 
	 	2.3	 	Sublessor agrees to perform, according to the terms of the
Prime Lease, the obligations of Sublessor under the Prime Lease that have not
been assumed by Sublessee hereunder with respect to the Subleased Premises.
Sublessor further agrees that Sublessor shall not enter into any agreement with
Landlord to modify or terminate the Prime Lease which would affect the
Subleased Premises or to exercise any right to terminate the Prime Lease
without obtaining Sublessee’s prior written consent in each instance.
Sublessor agrees to promptly provide Sublessee with copies of all notices
received from Landlord with respect to the Subleased Premises and all
notices of default received from Landlord under the Prime Lease at the
location specified in Section 12.1 hereof.
	 
	 	2.4	 	Sublessor agrees, at no cost to Sublessor, to use reasonable
efforts to cooperate with Sublessee in obtaining for Sublessee (i) any
additional services requested by Sublessee





2









 





	 	 	 	under the Prime Lease, (ii) any
benefit to Sublessor relating to the Subleased Premises under the Prime Lease
that would directly benefit Sublessee including, without limitation any dispute
rights regarding Operating Expenses and other payments as set forth in the
Prime Lease, and (iii) Landlord’s consent to any action for which the Prime
Lease requires Landlord’s consent. Sublessor agrees to promptly forward any
request made by Sublessee to Landlord for services or consent or approval and
to provide Landlord with any information reasonably requested by Landlord in
connection therewith. If Landlord grants any consent required under the Prime
Lease, Sublessor agrees that it shall not unreasonably withhold, condition or
delay its consent with respect thereto.





          3. Term. The term of this Sublease shall commence on June 1, 2007
(“Commencement Date”) and end on October 31, 2010 (the “Term”). Prior to the Commencement Date,
Sublessee may inspect, at reasonable times agreed upon by Sublessor, the Subleased Premises. In
the event Sublessee discovers conclusive evidence that a health and/or safety hazard (“Hazard”) is
present on the Subleased Premises, Sublessee shall deliver to Sublessor a copy of the written
inspection report disclosing the Hazard and a written notice identifying the Hazard. If Sublessor
fails to cure the Hazard within ten (10) days after receipt of the written notice from Sublessee,
or such longer period as is reasonably required for Sublessor to cure the Hazard, Sublessee may
terminate this Sublease prior to the Commencement Date, upon written notice to Sublessor as
Sublessee’s sole remedy. Sublessee shall be responsible for all costs of inspection of the
Subleased Premises and shall promptly restore the Subleased Premises to the same condition existing
immediately prior to such inspection by Sublessee (except for any such Hazard). Sublessor shall
deliver possession of the Subleased Premises to Sublessee on the Commencement Date for the purpose
of installing the Sublessee Improvements in the Subleased Premises.





	 	4.	 	Rent; Security Deposit.






4.1 Commencing on the Commencement Date, and continuing thereafter on or
before the first day of each month during the Term of this Sublease, and subject to
the Rent credit to Sublessee described in Section 1.1 herein, Sublessee shall pay to
Sublessor at the address specified for notices in this Sublease, monthly rent in
advance, as follows:



	 	 	 
	Period	 	Monthly Rent
	06/01/07 – 06/30/07
	 	$0.00
	07/01/07 – 12/31/07
	 	[***]
	01/01/08 – 12/31/08
	 	[***]
	01/01/09 – 12/31/09
	 	[***]
	01/01/10 – 10/31/10
	 	[***]







	 	4.2	 	Pursuant to the Prime Lease, Landlord is responsible for paying
Operating Expenses (as defined in the Prime Lease) during any calendar year to
the extent such Operating Expenses are less than or equal to [***] per square
foot of space in the Building leased to rent paying tenants (the “Expense
Stop”) and Sublessor is responsible for paying its pro-rata share of the
Operating Expenses for any calendar year in excess of the Expense Stop.
Sublessee shall pay directly to Landlord or such other provider (i.e.,
utilities), as appropriate, or to reimburse Sublessor (for amounts actually
paid by Sublessor) for Sublessee’s proportionate share (based upon the square
footage, from time to time, of the Subleased Premises), under the Prime Lease,
of Operating Expenses for any calendar year in excess of the Operating Expenses
for 2006. Sublessor shall provide to Subtenant
copies of all statements and other documentation of such Operating Expenses
provided by Landlord under the Prime Lease and a statement prepared by
Sublessor indicating the pro-rata portion thereof payable by Sublessee
hereunder.
	 
	 	4.3	 	Security Deposit. Intentionally Deleted.




3









 











          5. Alterations to Subleased Premises. Sublessee shall not perform any
alterations to the Subleased Premises without the prior written consent of Sublessor and Landlord,
which consent by Sublessor shall not be unreasonably withheld. Sublessee shall surrender the
Subleased Premises to Sublessor upon termination or expiration of this Sublease in the condition as
upon delivery of possession to Sublessee hereunder, normal wear and tear and fire and casualty
excepted, and shall remove any of its trade fixtures and equipment from the Subleased Premises.
Notwithstanding the foregoing, Sublessee shall not be obligated to remove the Sublessee
Improvements from the Subleased Premises upon the termination or expiration of this Sublease.




          6. Parking. Sublessee shall be entitled to no more than 30 Parking Permits
(as defined in the Prime Lease) to park in the Kensington Parking Facility, on a nonreserved,
unassigned basis and upon the same terms and conditions governing Sublessor’s use of Parking
Permits under the Prime Lease.





	 	7.	 	Use.






	 	7.1	 	Sublessee shall have the right to use the Subleased Premises for the
purposes authorized under the Prime Lease and for no other purpose.
	 
	 	7.2	 	Sublessee shall obtain, at its expense, all licenses and permits
necessary for its use and occupancy of the Subleased Premises.
	 
	 	7.3	 	Sublessee’s use and occupancy of the Subleased Premises shall, during
the term of this Sublease, be in compliance with all Applicable Laws (as
defined in the Prime Lease) provided Sublessee shall not be required to make
any repairs or alterations to the Building to comply with such Applicable Laws,
except as may be required in connection with any alteration to the Subleased
Premises made by Sublessee. Sublessee shall, during the term of this Sublease,
keep and maintain the Subleased Premises in the condition required of Sublessor
(as tenant under the Prime Lease).





          8. Default. In addition to such other rights or remedies as may be
available to Sublessor at law or in equity, in the event Sublessee shall default in the performance
of any of the terms, covenants and conditions on its part to be performed under this Sublease
(after notice and expiration of any applicable cure period), then Sublessor shall have the same
rights and remedies with respect to the default as are given to Landlord with respect to defaults
by Sublessor as tenant under the Prime Lease. In the event of a breach of this Sublease by
Sublessor or Sublessee, the prevailing party shall be entitled to its costs and reasonable
attorneys fees in enforcing or seeking to enforce the terms and provision hereof. Sublessee
further agrees that Sublessor shall have no liability of any nature whatsoever to Sublessee as a
consequence of Landlord’s acts or omissions or its default under or breach of any of its duties or
obligations in connection with the Prime Lease. Any conflicts between the terms, covenants and
conditions of this Sublease and the Prime Lease shall be resolved in favor of this Sublease.





	 	9.	 	Insurance.






	 	9.1	 	Sublessee shall, at all times during the term of this Sublease,
maintain in full force and effect the insurance required of Sublessor as tenant
under the Prime Lease for comprehensive general public liability insurance. All
such insurance shall be written by responsible companies licensed to do
business in Tennessee and shall name Sublessor and Landlord as additional
insureds. Sublessee shall furnish Sublessor with a certificate of insurance
evidencing the required coverage prior to the Commencement Date, in form
satisfactory to Sublessor and Landlord. All such policies shall require at
least 30 days’ written notice to Sublessor and Landlord of any cancellation,
nonrenewal or any change
affecting Sublessor’s coverage or the Landlord’s coverage thereunder. All
insurance required to be maintained by Sublessee hereunder shall be primary
and noncontributing with any other insurance. If Sublessee fails to obtain,
maintain and/or provide evidence of insurance required hereunder (after
notice and expiration of any applicable cure period), Sublessor may obtain
the same and Sublessee shall, immediately upon demand, reimburse Sublessor
for the reasonable cost thereof. No such action by Sublessor or




4









 






	 	 	 	reimbursement from Sublessee shall be a waiver of any default or other
remedies. In no event shall the limits of any such policies of insurance be
considered as limiting the liability of Sublessee under this Sublease.
	 
	 	9.2	 	Sublessor and Sublessee each release and relieve the other and their
respective agents, partners, officers, directors, shareholders or employees,
and waive their entire rights of recovery for, loss or damage to property
located within or constituting a part of or all of the Subleased Premises, or
to any improvements thereto to the extent that the loss or damages are covered
by (a) the injured party’s insurance, or (b) the insurance the injured party is
required to carry under this Section 9, whichever is greater. This waiver
applies whether or not the loss or damage is due to the negligent acts or
omissions of Sublessor or Sublessee, or their respective agents, partners,
officers, directors, shareholders or employees, it being understood that such
parties will look solely to their insurers for reimbursement, and each such
party covenants to cause its insurers to waive such rights of subrogation
against the other party or parties.
	 
	 	9.3	 	All of Sublessee’s personal property, fixtures, trade fixtures and
equipment of any kind or description whatsoever in or about the Subleased
Premises (including without limitation the Furniture) shall be at Sublessee’s
sole risk. Sublessor and Landlord shall not be liable for any damage done to
or loss of such personal property, fixtures, trade fixtures or equipment or
damage or loss suffered by the business or occupation of Sublessee arising from
any acts or neglect of any other occupants of the building of which the
Subleased Premises are a part or of any other persons or from bursting,
overflowing or leaking of water, sewer or steampipes, or from the heating or
plumbing or sprinkler fixtures, or from electrical current or wires, or from
gas, or odors, or caused in any other manner whatsoever unless and then only to
the extent such loss or damage is caused by the intentional misconduct of
Sublessor or its agents, employees, servants, customers, clients, contractors
or invitees, or the breach of Sublessor’s obligations under this Sublease.






	 	10.	 	Indemnification.






	 	10.1	 	Except as provided in Section 9.2 above, Sublessee shall
defend, indemnify and hold Sublessor and Landlord harmless from and against any
and all claims, demands, actions, causes of action, liabilities, suits and
expenses, including without limitation reasonable attorney’s fees, for or in
connection with any injury (included without limitation death), loss or damage
in, on or about the Subleased Premises or arising out of or in connection with
(a) the use or occupancy of the Subleased Premises; or (b) negligence or
intentional act of Sublessee or Sublessee’s agents, employees, servants,
customers, clients, contractors or invitees. This indemnification and hold
harmless shall survive the termination or expiration of this Sublease but shall
not apply to any claims, demands or actions to the extent caused by the
negligence or intentional wrongdoing of Sublessor or its agents, employees,
servants, customers, clients, contractors or invitees.
	 
	 	10.2	 	Except as provided in Section 9.2 above, Sublessor shall
defend, indemnify and hold Sublessee harmless from and against any and all
claims, demands, actions, causes of action, liabilities, suits and expenses,
including without limitation reasonable attorney’s fees, for or in connection
with any injury (included without limitation death), loss or damage in, on or
about the Subleased Premises to the extent arising out of or in connection with
any negligence or intentional act of Sublessor or Sublessor’s agents,
employees, servants, customers, clients, contractors or invitees. This
indemnification and
hold harmless shall survive the termination or expiration of this Sublease
but shall not apply to any claims, demands or actions to the extent caused
by the negligence or intentional wrongdoing of Sublessee or its agents,
employees, servants, customers, clients, contractors or invitees.




5









 











          11. Brokerage. Sublessor and Sublessee each warrant and represent that it
has dealt with no real estate brokers in connection with this transaction. Sublessor and Sublessee
each indemnifies and holds the other harmless from any loss, cost, damage or expense (including
attorneys’ fees and expenses) resulting from any breach of the foregoing representation and
warranty.





	 	12.	 	Miscellaneous.






	 	12.1	 	All notices hereunder to the respective parties shall be in writing
and shall be served by personal delivery or by prepaid express mail via
reputable national delivery service, or by prepaid, registered or certified
mail, addressed to the respective parties at their addresses set forth below.
Any such notice will be deemed to be given and effective if (a) personally
delivered, then on the date of such deliver; (b) sent via express mail or
overnight courier, then 24 hours after the date such notice is sent; or (c)
sent via registered or certified mail, then three days following the day on
which such notice is deposited in the United States mail addressed as stated
below. Copies of all notices or other communications shall be delivered to the
parties as follows:





	 	 	 
	To Sublessor:

	 	Robert W. Baird & Co. Incorporated
	 

	 	777 East Wisconsin Avenue
	 

	 	Milwaukee, Wisconsin 53202
	 

	 	Attn: D. Michael Schaefer and Legal Department
	 

	 	Phone: (414) 298-2627
	 

	 	Fax: (414) 298-2405
	 
	 	 
	To Sublessee:

	 	Cumberland Pharmaceuticals Inc.
	 

	 	2525 West End Avenue, Suite 950
	 

	 	Nashville, Tennessee 37203
	 

	 	Attn: Jean W. Marstiller, VP Admin Services
	 

	 	Phone: (615) 255-0068
	 

	 	Fax: (615) 255-0094







	 	 	 	Either party may, upon prior written notice to the other, specify a
different address for the giving of notices.
	 
	 	12.2	 	This Sublease and the exhibits, if any, attached to it, set forth all
the covenants, promises, agreements, conditions and understandings between
Sublessor and Sublessee concerning the Subleased Premises and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them other than are herein set forth. No alteration,
amendment, change or addition to this Sublease shall be binding upon Sublessor
or Sublessee unless reduced to writing and signed by each party.
	 
	 	12.3	 	Sublessee may not assign this Sublease nor further sublet the
Subleased Premises in whole or in part without the prior written consent of
Sublessor and Landlord, which consent by Sublessor shall not be unreasonably
withheld. Notwithstanding anything contained in this Sublease to the contrary,
Sublessee shall have the right, without Sublessor’s prior written consent, at
any time during the Term of this Sublease, to assign or otherwise transfer this
Sublease and its rights hereunder, or sublet the Subleased Premises, in whole
or in part, to any corporation or other entity controlling, controlled by, or
under common control with, Sublessee, or to any corporation or other entity
into or with which Sublessee may be merged or consolidated, or to any
corporation or other
entity which shall be a successor of Sublessee or to any corporation or
other entity which has acquired, or is concurrently therewith acquiring,
ownership or control of all or substantially all of the business and assets
of Sublessee and has a comparable net worth of Sublessee as of the date of
this Sublease. Any assignment or subletting by Sublessee




6









 






	 	 	 	pursuant to this
Section shall not release Sublessee from its obligations under this
Sublease.
	 
	 	12.4	 	The covenants, conditions and agreements contained in this Sublease
shall be binding upon and inure to the benefit of the parties and their
respective heirs, personal representatives, successors and assigns, but in the
case of assigns, only to the extent that assignment is permitted.
	 
	 	12.5	 	This Sublease may be executed in one or more counterparts, each and
all of which is deemed an original and all of which together constitutes but
one and the same instrument.
	 
	 	12.6	 	The obligations of the parties under this Sublease are expressly
subject to and conditioned upon Landlord’s prior written consent to the terms
and conditions of this Sublease, as evidenced by its execution of the “Consent
to Sublease” set forth below.





     IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this
Agreement effective as of the day and year first set forth above.



	 	 	 	 	 	 	 	 	 	 	 
	SUBLESSOR:	 	SUBLESSEE:
	 
	 	 	 	 	 	 	 	 	 	 
	ROBERT W. BAIRD & CO. INCORPORATED	 	CUMBERLAND PHARMACEUTICALS INC.
	a Wisconsin corporation	 	a Tennessee corporation
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Russell P. Schwei
	 	 	 	By:
	 	/s/ Jean M. Marstiller	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name:

	 	Russell P. Schwei
	 	 	 	Name:
	 	Jean W. Marstiller	 	 
	Its:

	 	Managing Director
	 	 	 	Its:
	 	Vice President, Administrative Services	 	 






7









 





CONSENT TO SUBLEASE




     THIS CONSENT TO SUBLEASE (this "Consent”) is entered into to be effective as of the
Effective Date by and among Lessor, Lessee and Sublessee.



     1. General Terms.



	 	 	 	 	 
	(a)

	 	Effective Date:
	 	December 15, 2006
	 
	 	 	 	 
	(b)

	 	Lessor:
	 	Nashville Hines Development, LLC, a Delaware limited liability company
	 
	 	 	 	 
	(c)

	 	Lessee:
	 	Robert W. Baird & Co. Incorporated, a Wisconsin corporation
	 
	 	 	 	 
	(d)

	 	Sublessee:
	 	Cumberland Pharmaceuticals Inc., a Tennessee corporation
	 
	 	 	 	 
	(e)

	 	Building:
	 	2525 West End, Nashville, Tennessee
	 
	 	 	 	 
	(f)

	 	Primary Lease:
	 	Office Lease Agreement dated as of July 24, 2000. Any
capitalized term used but not defined in this Consent shall have the same meaning given
to such term in the Primary Lease.
	 
	 	 	 	 
	(g)

	 	Primary Premises:
	 	Approximately forty thousand (40,000) square feet of RSF
located on the ninth (9th) and tenth (l0th) floors of the
Building.
	 
	 	 	 	 
	(h)

	 	Sublease:
	 	Sublease dated as of December 14, 2006.
	 
	 	 	 	 
	(i)

	 	Subleased Premises:
	 	Approximately eight thousand, six hundred and six (8,606)
square feet of RSF on the ninth (9th) floor of the Building.






     2. Recitals.



     (a) Lessee is the lessee under the Primary Lease, under which Lessor leased to Lessee the
Primary Premises located in the Building.



     (b) Lessee desires to sublease the Subleased Premises to Sublessee.



     (c) The Primary Lease requires Lessor’s consent to any sublease.



     3. Lessor’s Consent.



     (a) Consent and Sublessee Acknowledgement. As of the Effective Date, Lessor consents
to the sublease of the Subleased Premises from Lessee to Sublessee pursuant to the Sublease, a copy
of which is attached to this Consent as Exhibit “A”, subject to the terms and conditions of this
Consent. Sublessee acknowledges that it has examined and is familiar with all of the terms and
provisions of the Primary Lease.



 









 





     (b) Prohibition Against Further Transfers. Lessee and Sublessee shall not, without
Lessor’s prior written consent in each instance, (i) convey, assign or encumber the Primary Lease
or the Sublease or any interest in either, directly or indirectly, voluntarily or by operation of
law, including the merger or conversion of Lessee or Sublessee with or into another entity, (ii)
sublet all or any portion of the Primary Premises or Subleased Premises, (iii) permit the use or
occupancy of any part of the Primary Premises or Subleased Premises by anyone other than Lessee or
Sublessee, as applicable (any of the foregoing actions shall be a “Prohibited Transfer"), or (iv)
amend the Sublease. If Lessee or Sublessee is other than an individual, any change in Control
(defined in the following sentence) of Lessee or Sublessee shall constitute a Prohibited Transfer.
“Control” means the direct or indirect power to direct or cause direction of the management and
policies of an entity, whether through ownership of voting securities, by contract or otherwise.
Conversely, Lessee and Sublessee shall not sublease space from, or assume the lease obligations
of, another lessee in the Building without Lessor’s prior written consent, which shall not be
unreasonably withheld or delayed. Following any Prohibited Transfer, Lessee or Sublessee, as
applicable (and any guarantors) shall remain fully liable under the Primary Lease and this
Consent, as either maybe amended with or without notice to or consent of Lessee or Sublessee (or
any guarantors), and Lessor may proceed directly under the Primary Lease or this Consent against
Lessee or Sublessee (or any guarantors) without first proceeding against any other party.
Notwithstanding the foregoing, Lessor’s consent shall not be unreasonably withheld or delayed in
the event (i) an assignee under a Prohibited Transfer shall have a net worth equal to or greater
than Lessee as evidenced by its then available most recent financial statements, and (ii) such
assignee’s use of the Primary Premises and Subleased Premises is permitted under the terms of the
Primary Lease and does not conflict with any exclusive usage rights granted to any other tenant in
the Building.



     4. Sublease Subordination. The Sublease shall be subject and subordinate at all times
to all of the covenants, agreements, terms, provisions and conditions of the Primary Lease and of
this Consent. Neither Lessee nor Sublessee shall do or permit anything to be done in connection
with the Sublease or Sublessee’s occupancy of the Subleased Premises that will violate the Primary
Lease or this Consent. As between Lessor and Sublessee, the Sublease shall automatically terminate
upon termination of the Primary Lease for any reason whatsoever, notwithstanding any other
provision of the Sublease to the contrary.



     5. Alterations. Sublessee agrees that no alterations, additions or physical changes
will be made in or to any part of the Subleased Premises without Lessor’s prior written consent in
each instance, which shall not be unreasonably withheld or delayed, except as may be permitted
under the Primary Lease.



     6. No Release. Lessor’s consent shall not be deemed in any way or manner to be a waiver
or release of Lessee or any guarantor(s) of Lessee’s obligations under the Primary Lease from the
responsibility and liability for the payment of rent under the Primary Lease and for compliance
with any and all obligations to be performed by Lessee as the Lessee under the Primary Lease.
Without limiting the scope of the preceding sentence, it is specifically understood that Lessee
shall remain fully liable for the obligation to pay Lessor for any special services provided to
Sublessee in the course of Sublessee’s use and occupancy of the Subleased Premises, whether or not
specifically provided for in the Primary Lease (including, without limitation, after-hours heating
and air conditioning of the Subleased Premises), and Lessee hereby covenants and agrees that



2









 




unless and until Lessor receives a written notice to the contrary from Lessee, Lessor may honor
Sublessee’s request for any such special services without the specific consent of Lessee. After an
event of default by Lessee under the Primary Lease, Lessor may, in addition to any other remedies
under the Primary Lease or at law, collect directly from Sublessee all rents due and owing from
Sublessee and apply any such rent against sums due to Lessor by Lessee as Lessee under the Primary
Lease. Further, Lessee authorizes and directs Sublessee to make such payments of rent directly to
Lessor upon its receipt of written notice of default from Lessor. The collection of any such rents
shall not be deemed a waiver of any rights and remedies of Lessor against Lessee as the Lessee
under the Primary Lease or constitute a novation or release of Lessee as Lessee from the further
performance of its obligations under the Primary Lease. Lessee acknowledges that the receipt by
Lessor from Sublessee of any such rents shall be a full and complete release, discharge and
acquittance of any claims by Lessee for rent against such Sublessee to the extent of any such
amount of rent so paid to Lessor. In addition, Lessee agrees that it forfeits its rights to any
excess consideration to which it may otherwise be entitled during any period when Lessee is in
default under the Primary Lease, and any such excess consideration shall be payable to Lessor.




     7. Lessor’s Obligations. Notwithstanding anything to the contrary contained in the
Sublease, neither the Sublease nor this Consent shall (i) enlarge or increase Lessor’s obligations
or liability, or (ii) reduce or decrease Lessor’s rights, under the Primary Lease or otherwise.
Lessor is not a party to the Sublease and, therefore, is not bound by the Sublease or any of its
terms. Lessor shall have no responsibility or obligation to Sublessee for the performance by
Lessee of its obligations under the Sublease. Similarly, Lessor shall have no responsibility or
obligation to Sublessee for the performance of any obligations Lessor may owe to Lessee under the
Primary Lease.



     8. Excess Rents. In the event that the rental and other consideration payable to
Lessee by Sublessee under the Sublease exceed the rental payable under the Primary Lease with
respect to the Subleased Premises, then Lessee shall be bound and obligated to pay Lessor fifty
percent (50%) of such excess rental within thirty (30) days of Lessee’s receipt of the same from
Sublessee. Lessee’s failure to pay to Lessor such amounts when due shall be an event of default
under the Primary Lease.



     9. Options. Sublessee acknowledges and agrees that Sublessee shall not have the right
to exercise any renewal, expansion, right of first refusal or other similar options or rights
afforded to Lessee under the Primary Lease.



     10. Brokerage. Lessee and Sublessee each agree to indemnify, defend and hold Lessor
and its designated property management, construction and marketing firms harmless from and against
any and all damage, loss, cost or expense, including, without limitation, all attorneys’ fees and
disbursements, incurred by reason of any claim of or liability to any broker or other person for
commissions or other compensation or charges with respect to the negotiation, execution and
delivery of the Sublease. The obligations of Lessee and Sublessee under this Paragraph shall
survive the expiration or earlier termination of the Sublease.



3









 





11. Miscellaneous.




     (a) Attorneys’ Fees. In the event of any action to enforce this Consent, the
prevailing party shall be entitled to receive from the other party(ies) all costs and expenses,
including all attorneys’ fees and costs of court (or other venue of dispute resolution), incurred
in connection with such action.



     (b) Other Agreements. Other than the Sublease, the Primary Lease and this Consent,
there are no other agreements or understandings, whether written or oral, between Lessee and
Sublessee with respect to Sublessee’s use and occupancy of the Subleased Premises or any property
of Lessee located in the Building. No compensation or consideration is payable or will become due
and payable to Lessee or any affiliate of Lessee in connection with the Sublease other than the
rentals expressly set forth in the Sublease. This Consent shall not be amended orally, but only by
an agreement in writing signed by all parties to this Consent.



     (c) Successors and Assigns. This Consent shall be binding upon and inure to the
benefit of Lessor, Lessee and Sublessee and their respective successors and permitted assigns.



     (d) Recording. Neither this Consent nor the Sublease may be recorded without Lessor’s
prior written consent.



     (e) Conflicts. In the event of any conflicts among the provisions of the Primary
Lease, the Sublease and this Consent, the provisions of this Consent and the Primary Lease shall
control; and in the event of any conflicts between the provisions of the Primary Lease and this
Consent, the provisions of this Consent shall control.



     (f) Counterparts. This Consent may be executed in any number of counterparts, each of
which shall be an original and all of which taken together shall be one instrument.



[Remainder of Page Intentionally Left Blank]




4









 








     IN WITNESS WHEREOF, this Consent to Sublease has been executed by the parties to be effective
as of the Effective Date.



Lessor:




Nashville Hines Development, LLC, a Delaware

limited liability company




	 	 	 
	By:

	 	Cash Flow Asset Management, L.P., a Texas limited
partnership, its General Partner






	 	 	 
	By:

	 	CFAM GP, L.L.C., a Texas limited
liability company, its sole general
partner






	 	 	 	 	 
	 	 	 
	 	By:  	                           /s/ Joanne M. Johnson
 	 
	 	 	Joanne M. Johnson, 	 
	 	 	Vice President 	 
	 



Lessee:




Robert W. Baird & Co. Incorporated, a Wisconsin

corporation




	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Russell P. Schwei
 	 
	 	 	Russell P. Schwei, Managing Director 	 
	 	 	 	 
	 



Sublessee:




Cumberland Pharmaceuticals, Inc, a Tennessee

corporation




	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Jean W. Marstiller
 	 
	 	 	Jean W. Marstiller, Vice President,	 
	 	 	Administrative Services 	 



5









 






	 	 	 	 	 



Exhibit “A”




(Sublease Agreement)




[Intentionally
omitted. See Sublease Agreement immediately preceding Consent to
Sublease.]





6










 





EXHIBIT
A TO SUBLEASE

PRIME LEASE














 





Exhibit “A”






2525 WEST END




OFFICE LEASE AGREEMENT




BY AND BETWEEN




NASHVILLE HINES DEVELOPMENT, LLC

AS LANDLORD




AND




ROBERT W. BAIRD & CO. INCORPORATED

AS TENANT




 









 





BASIC LEASE INFORMATION




	 	 	 
	Lease Date:

	 	July 24, 2000
	 
	 	 
	Tenant:

	 	Robert W. Baird & Co. Incorporated
	 
	 	 
	Address of Tenant:

	 	777 East Wisconsin Avenue
	 

	 	Milwaukee, Wisconsin 53202
	 
	 	 
	Primary Contact:

	 	D. Michael Schaefer
	 

	 	First Vice President
	 

	 	Manager of Real Estate and Facilities
	 
	 	 
	Landlord:

	 	Nashville Hines Development, LLC
	 
	 	 
	Address of Landlord:

	 	2800 Post Oak Boulevard
	 

	 	Houston, Texas 77056-6190
	 

	 	Attention: Profit Center Office/Central Division
	 
	 	 
	Leased Premises:

	 	Approximately 40,000 square feet of RSF located on all of Floor 10 and a portion of Floor 9.
	 
	 	 
	Estimated Commencement Date:

	 	November 1, 2000
	 
	 	 
	Lease Term:

	 	Ten (10) years
	 
	 	 
	Base Rental:

	 	$23.90 per RSF, increasing by 3% annually beginning on the first year anniversary
	 
	 	 
	Floor Ready Date:

	 	July 1, 2000
	 
	 	 
	Construction Allowance:

	 	$31.00 per square foot of RSF subject. to adjustment as provided herein





The foregoing Basic Lease Information is hereby incorporated into and made a part of the Lease
identified above. In the event of any conflict between any Basic Lease Information and the Lease,
the Lease shall control.




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE I.	 	 	 	 
	 
	 	1.01.	 	Leased Premises	 	 	1	 
	 
	 	1.02.	 	Term	 	 	4	 
	 
	 	1.03.	 	Use	 	 	4	 
	 
	 	1.04.	 	Intentionally Deleted	 	 	4	 
	 
	 	1.05.	 	Surrender of Premises	 	 	4	 
	 
	 	1.06.	 	Survival	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II.	 	 	 	 
	 
	 	2.01.	 	Rental Payments	 	 	6	 
	 
	 	2.02.	 	Base Rental	 	 	6	 
	 
	 	2.03.	 	Additional Rental	 	 	7	 
	 
	 	2.04.	 	Operating Expenses	 	 	8	 
	 
	 	2.05.	 	Intentionally Deleted	 	 	13	 
	 
	 	2.06.	 	Intentionally Deleted	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III.	 	 	 	 
	 
	 	3.01.	 	Services	 	 	14	 
	 
	 	3.02.	 	Keys and Locks	 	 	16	 
	 
	 	3.03.	 	Graphics, Building Directory and Name	 	 	16	 
	 
	 	3.04.	 	Parking	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV.	 	 	 	 
	 
	 	4.01.	 	Care of Leased Premises	 	 	18	 
	 
	 	4.02.	 	Entry for Repairs and Inspection	 	 	18	 
	 
	 	4.03	 	Nuisance	 	 	18	 
	 
	 	4.04.	 	Laws and Regulations; Encumbrances; Rules of Building.	 	 	18	 
	 
	 	4.05.	 	Legal Use and Violations of Insurance Coverage	 	 	18	 
	 
	 	4.06.	 	Hazardous Substances	 	 	19	 
	 
	 	4.07.	 	Tenant Taxes	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V.	 	 	 	 
	 
	 	5.01.	 	Leasehold Improvements	 	 	20	 
	 
	 	5.02.	 	Repairs by Landlord	 	 	21	 
	 
	 	5.03.	 	Repairs by Tenant	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI.	 	 	 	 
	 
	 	6.01.	 	Condemnation	 	 	22	 
	 
	 	6.02.	 	Damages from Certain Causes	 	 	22	 
	 
	 	6.03.	 	Casualty Clause	 	 	23	 






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	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.04.	 	Casualty Insurance	 	 	24	 
	 
	 	6.05.	 	Liability Insurance	 	 	24	 
	 
	 	6.06.	 	Hold Harmless	 	 	25	 
	 
	 	6.07.	 	Waiver of Subrogation Rights	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII.	 	 	 	 
	 
	 	7.01.	 	Default and Remedies	 	 	26	 
	 
	 	7.02.	 	Insolvency or Bankruptcy	 	 	29	 
	 
	 	7.03.	 	Late Payments	 	 	30	 
	 
	 	7.04.	 	Attorney's Fees	 	 	30	 
	 
	 	7.05.	 	Waiver of Homestead	 	 	30	 
	 
	 	7.06.	 	No Waiver of Rights	 	 	30	 
	 
	 	7.07.	 	Holding Over	 	 	30	 
	 
	 	7.08.	 	Subordination	 	 	31	 
	 
	 	7.09.	 	Estoppel Certificate	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII.	 	 	 	 
	 
	 	8.01.	 	Sublease or Assignment by Tenant	 	 	33	 
	 
	 	8.02.	 	Assignment by Landlord	 	 	36	 
	 
	 	8.03.	 	Peaceful Enjoyment	 	 	36	 
	 
	 	8.04.	 	Limitation of Landlord's Personal Liability.	 	 	36	 
	 
	 	8.05.	 	Force Majeure	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX.	 	 	 	 
	 
	 	9.01.	 	Notices	 	 	37	 
	 
	 	9.02.	 	Miscellaneous	 	 	38	 
	 
	 	9.03.	 	Tenant's Right of First Offer	 	 	40	 
	 
	 	9.04.	 	Renewal Option	 	 	42	 
	 
	 	9.05.	 	Satellite Dish	 	 	42	 






EXHIBIT A — SITE PLAN AND LOCATION OF THE BUILDING

EXHIBIT A-1 — DESCRIPTION OF LAND

EXHIBIT B — FLOOR PLAN OF LEASED PREMISES

EXHIBIT C — BASE BUILDING SHELL CONDITION

EXHIBIT E — AIR CONDITIONING AND HEATING SERVICES

EXHIBIT F — BUILDING RULES AND REGULATIONS

EXHIBIT G — RENTABLE SQUARE FEET AND COMMENCEMENT DATE

EXHIBIT H — BASE RENTAL

EXHIBIT I — RULES APPLICABLE TO SATELLITE DISHES

EXHIBIT J — VISITOR PARKING AREA




-ii-









 





2525 WEST END

OFFICE LEASE AGREEMENT




          THIS LEASE AGREEMENT (“Lease”) is made and entered into on this 24th day of
July, 2000, by and between NASHVILLE HINES DEVELOPMENT, LLC, a limited partnership organized under
the laws of the State of Delaware, whose address for purposes hereof is 2800 Post Oak Boulevard,
Houston, Texas 77056-6190 Attention: Profit Center Office/Central Division (hereinafter called
“Landlord”), and ROBERT W. BAIRD & CO. INCORPORATED, a corporation organized under the laws of the
State of Wisconsin, whose address for purposes hereof is 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202, Attention: D. Michael Shaefer, First Vice President and Manager of Real Estate and
Facilities, prior to the commencement of the term of this Lease, and thereafter shall be 2525 West
End Avenue, Suite 1000, Nashville, Tennessee 37203 (the address of the leased premises within the
Building) (hereinafter called “Tenant”).




ARTICLE I.




     1.01. Leased Premises.



          (a) Landlord has constructed or intends to construct certain improvements on a certain tract
or parcel of land located on West End Avenue: in Nashville, Davidson County, Tennessee, and more
particularly described in Exhibit A-1, attached hereto and incorporated herein by this
reference (the “Land”). The improvements contemplated shall include an office building with a
retail area included within it known as 2525 West End Avenue or such other name as Landlord may
determine (the `Building’.”) and the Parking Facility (as defined herein). The Building, the
Parking Facility, and the Land together with all common areas not specifically made a part of the
Building or the Parking Facility, and all other improvements from time to time located thereon or
related thereto are hereinafter collectively referred to as the “Project.” Subject to and upon the
terms hereinafter set forth, and in consideration of the sum of Ten Dollars ($10.00), the premises,
and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby
acknowledged, Landlord does. hereby lease and demise to Tenant and Tenant does hereby lease and
take from Landlord (subject to all matters of record in Davidson County, Tennessee, that affect the
Project) those certain premises (hereinafter sometimes called the “Leased Premises”) located in the
Building as shown on Exhibit A, attached hereto and incorporated herein, such Leased
Premises being more particularly described as follows:




          Approximately 40,000 square feet of contiguous rentable square feet on the 10th and a portion
of the 9th Floor of the Building and as generally described or depicted on Exhibit B,
attached hereto and incorporated herein (“Leased Premises”).




          (b) The terms “Rentable Square Feet” and “RSF”, as used herein, shall be based on BOMA
standards and refer to (i) in the case of a floor leased to a single tenant, the total square




1









 




footage of all floor area measured from the inside surface of the exterior glass line of the
Building to the inside surface of the opposite exterior glass line, excluding only Service Areas
(defined below) and General Common Areas (defined below), plus an allocation of the square footage
of the General Common Areas, and (ii) in the case of a floor leased to more than one tenant, the
total square footage of all floor areas within the inside surface of the exterior glass line of the
Building enclosing the Leased Premises and measured to the mid-point of demising walls (i.e., walls
separating the Leased Premises from areas leased to or held for lease to other tenants, from
On-Floor Common Areas (defined below), and from General Common Areas), excluding only Service
Areas, plus an allocation of the square footage of the General Common Areas and an allocation of
the square footage of the On-Floor Common Areas. No deductions from Rentable Square Feet shall be
made for columns or projections.




          “Service Areas” shall mean the areas within (and measured from the exterior surface of the
interior walls enclosing, or from the inside surface of the-exterior glass or wall enclosing, as
the case may be) Building stairs, elevator shafts, flues, vents, stacks, pipe shafts and vertical
ducts. Areas for the specific use of Tenant or other tenants of the Building or installed at the
request of Tenant such as special stairs or elevators are not included within the definition of
Service Areas.




          “General Common Areas” shall mean those areas ‘within (and measured from the midpoint of the
walls or from the inside surface of the exterior glass enclosing). the Building’s elevator machine
rooms, main mechanical rooms, electrical rooms, and public lobbies, engineering and cleaning
staging areas, and other areas not leased or held for lease within the Building but which are
reasonably necessary for the proper utilization of the Building or to provide customary services to
the Building, plus an allocation of any On-Floor Common Areas to the General Common Areas on the
floor for floors that contain General Common Areas. The allocation of the square footage of the
General Common Areas shall be equal to the total square footage of the General Common Areas
multiplied by a fraction, the numerator of which is the Rentable Square Kept of the Leased Premises
(excluding the total square footage of the General Common Areas) and the denominator of which is
the total of all Rentable Square Feet contained in the Building (excluding the
allocation. of the General Common Areas).




          “On-Floor Common Areas” shall mean the total square footage of all areas within (and measured
from the midpoint of the walls enclosing) public corridors, elevator foyers, rest rooms, mechanical
rooms, janitor closets, telephone and equipment rooms, and other similar facilities for the use of
all tenants on the floor on which the Leased Premises are located. The allocation of the square
footage of the On-Floor Common Areas shall be equal to the total On-Floor Common Areas on said
floor multiplied by a fraction, the numerator of which is the Rentable Square Feet of the portion
of the Leased Premises (excluding the allocations of General Common Areas and On-Floor Common
Areas) located on said floor and the denominator of which is the total of all Rentable Square Feet
on said floor (excluding the allocations of General .Common Areas and On-Floor Common Areas on the
floor).




          “Parking Facility” shall mean the parking structure that is constructed and located
adjacent to the Building (the “Adjacent Parking Facility”), the surface parking area adjacent to
the Building (the “Surface Parking Area”), and the existing garage located across Kensington Place
(the




2









 




“Kensington Parking Facility”) as shown and labeled on Exhibit A (which shall only be
used by Tenant as parking for Tenant’s employees and the employees of other office tenants, not
customer parking), together with any connecting walkways, covered walkways, or other means of
access to said building or buildings, the grounds related thereto and any additional improvements
at any time related thereto. The Parking Facility may be operated by a parking contractor charging
commercially reasonable rates as designated from time to time by Landlord.




          (c) Within twenty (20) days after the Commencement Date -(defined below),
Landlord shall deliver to Tenant Exhibit G, attached hereto and incorporated herein, which
shall contain an acknowledgment of the date upon which the Commencement Date (defined below) of
this Lease occurred, Landlord’s calculation of the exact number of square feet of Rentable Square
Feet within the Leased Premises, including a breakdown of Landlord’s calculations with regard to
Service Areas, General Common Areas and On-Floor Common Areas, and such other information regarding
this Lease and the Leased Premises as Landlord shall then reasonably stipulate. Tenant shall have
the right to object to Exhibit G by delivering written notice to Landlord within twenty
(20) days after Landlord delivers Exhibit G to Tenant, failing which Tenant shall be deemed
to have agreed that all information contained in Exhibit G is correct. If Tenant objects to
Exhibit G within said twenty (20) day period, Landlord and Tenant shall work together to
resolve their differences and, after such differences have been resolved, Landlord shall execute
Exhibit G and deliver same to Tenant and Tenant shall have a period of five (5) days to
give written notice to Landlord objecting to Exhibit G, failing which Tenant shall be
deemed to have agreed that Exhibit G is correct. Upon Tenant agreeing or being deemed to
have agreed. that all information contained in Exhibit G is correct, the Commencement Date
as shown on Exhibit G shall be the Commencement Date for purposes of Section 1.02(a) of
this Lease and for all other purposes under this Lease and the Rentable Square Feet of the Leased
Premises as shown on Exhibit G shall replace the Rentable Square Feet of the Leased
Premises as shown in Section 1.01(a) and as defined in Section 1.01(b) and shall be deemed to be
the Rentable Square Feet of the Leased Premises for all purposes under this Lease. All payments of
Rental (hereinafter defined) shall be made as. and when required herein, notwithstanding any
unresolved objections to Exhibit G. All such payments shall be based upon the Exhibit
G prepared by Landlord until such objections have been finally resolved, whereupon any
overpayment or any underpayment theretofore made shall be adjusted by increasing or reducing, as
the case may be, the next installment of Base Rental coming due. At any time after the execution of
this Lease, Landlord shall also provide Tenant with a subordination, non-disturbance and attornment
agreement in accordance with Section 7.08 of this Lease.




          (d) This Lease does not grant Tenant any rights, to light, air or view over or
about the Land or any other real property. Landlord specifically excepts and reserves to itself all
rights to and the use of any roofs, the exterior portions of the Leased Premises, the Land,
improvements and air and other rights below the improved floor level of the Leased Premises, the
improvements and air and other rights above the improved ceiling of Leased Premises, the
improvements and air and other rights located outside the demising walls of the Leased Premises and
such areas within the Leased Premises as are required for installation of utility lines and other
installations required to serve the Building or any occupants of the Building, and Landlord
specifically reserves to itself the




3









 




right to use, maintain and repair same, and no rights with respect thereto are conferred
upon Tenant, unless otherwise specifically provided herein. Provided, however, Landlord shall not
construct additional improvements to the Leased Premises which reduce the volume of Tenant’s space.




          (e) Tenant’s taking possession of the Leased Premises or any portion thereof shall be
conclusive evidence against Tenant that such portion of the Leased Premises was then in good order
and satisfactory condition. Tenant acknowledges that no promise by or on behalf of Landlord, any of
Landlord’s beneficiaries, the managing agent of the Building, the leasing agent of the Building or
any of their respective agents, partners or employees to alter, remodel, improve, repair, decorate
or clean the Leased Premises has been made to or relied upon by Tenant, and that no representation
respecting the condition of the Leased Premises or the Building by or on behalf of Landlord, any of
Landlord’s beneficiaries, the managing agent of the Building, the leasing agent of the Building or
any of their respective agents, partners or employees has been made to or relied upon by Tenant,
except, to the extent expressly set forth in this Lease.




     1.02. Term.



          (a) Subject to and upon the terms and conditions set forth herein, or in any exhibit hereto,
the term of this Lease shall commence on the Commencement Date (defined below) and shall expire on
the last day of the month that is one hundred twenty (120) calendar months after the Commencement
Date at 6:00 P.M.




          (b) As used herein, “Commencement Date” means the earlier to occur of (i) the date Tenant
occupies the Leased Premises for the purpose of conducting business; or (ii) November 1, 2000.




          1.03. Use. The Leased Premises are to be used and occupied by Tenant (and its permitted
assignees and subtenants) solely for the purpose of office space and for no other purpose. The
Leased Premises shall not be used for any purpose which would create unreasonable elevator loads or
otherwise unreasonably interfere with Building operations, and Tenant shall not engage in any
activity which is not in keeping with the first class standards of the Building. In no event shall
the Leased Premises be used for the purpose of installing, marketing, operating, or providing
electronic telecommunications, information or data processing, storage or transmissions, or other
electronic office services or equipment for tenants or other occupants of the Building on a
shared-usage basis through a central switch or a local area network.




          1.04. Intentionally Deleted




          1.05. Surrender of Premises.




          (a) Upon the termination of this Lease by lapse of time or otherwise or upon the earlier
termination of Tenant’s right of possession, Tenant shall quit and surrender possession of the
Leased Premises to Landlord, broom clean, in the same condition as upon delivery of possession to
Tenant hereunder, normal wear and tear and fire and casualty excepted; provided, however, Tenant
shall deliver to Landlord any and all insurance proceeds Tenant receives for damage to its
Tenant’s




4









 




improvements to the Leased Premises. Before surrendering possession of the Leased
Premises, Tenant shall, without expense to Landlord, remove all signs, furnishings, equipment
(including all communication and other cables), trade fixtures, merchandise and other personal
property installed or placed in the Leased Premises and all debris and rubbish, and Tenant shall
repair all damage to the Leased Premises resulting from such removal; provided if Tenant is then in
default under this Lease, Tenant shall not remove any such item unless Tenant receives written
directions from Landlord authorizing or directing the removal thereof. If Tenant fails to remove
any of the signs, furnishings, equipment, trade fixtures, merchandise and other personal property
installed or placed in the Leased Premises by the expiration or termination of this Lease, then
Landlord may, after written notice to Tenant, at its sole option, (i) treat Tenant as a holdover,
in which event the provisions of this Lease regarding holding over shall apply, (ii) deem any or
all of such items abandoned and the sole property of Landlord, or (iii) remove any and all such
items and dispose of same in any manner. Tenant shall pay Landlord on demand any and all expenses
incurred by Landlord in the removal of such items, including, without limitation, the cost of
repairing any damage to the Leased Premises or the Building caused by such removal and storage
charges. (if Landlord elects to store such property).




          (b) All installations, additions, partitions, hardware, cables, wires, fixtures and
improvements, temporary or permanent (including, but not limited to, Tenant’s Extra Work), except
for Tenant’s signs, furnishings, equipment, communication cables, telephone switches, trade
fixtures, merchandise and other personal property, in or upon the Leased Premises, whether placed
there by Tenant or Landlord, shall, upon the termination of this lease by lapse of time or
otherwise or upon the earlier termination of Tenant’s right of possession, become Landlord’s
property and shall remain upon the Leased Premises, all without compensation, allowance or credit
to Tenant; provided,. however, that if at the time Landlord consents to Tenant’s installation of
any installations, additions, partitions, hardware, cables, wires, fixtures and improvements or at
any time prior to termination of this Lease, Landlord requires removal of the same upon
termination, then Tenant,. at Tenant’s sole cost and expense, upon termination of this Lease by
lapse of time or otherwise or upon the earlier termination of Tenant’s right of possession, shall
promptly remove such designated items placed in or upon the Leased Premises by ‘or on behalf of
Tenant and, repair any damage to the Leased Premises or the Building caused by such removal,
failing which Landlord may remove the same and repair the Leased Premises or the Building, as the
case maybe, and Tenant shall pay the actual cost of such removal thereof to Landlord on written
demand.




          1.06. Survival. Any claim, cause of action, liability or obligation arising under the
term of this Lease and under the provisions hereof in favor of a party hereto against or obligating
the other party hereto and all of Tenant’s indemnification obligations hereunder shall survive the
expiration or any earlier termination of this Lease.





5









 





ARTICLE II.




     2.01. Rental Payments.



          (a) Commencing on the Commencement Date and continuing thereafter throughout the full term of
this Lease, Tenant hereby agrees to pay the Base Rental (defined below), and Tenant’s Forecast
Additional Rental (defined below) and Tenant’s Additional Rental Adjustment (defined below) in
accordance with this Article. The Base Rental and Tenant’s Forecast Additional Rental shall be due
and payable in equal monthly installments on the first day of each calendar month during the
initial term of this Lease and any extensions or renewals hereof, and Tenant hereby agrees to so
pay such rent to Landlord at Landlord’s address as provided herein (or such other address as may be
designated by Landlord from time to time) monthly in advance.




          (b) If the Commencement Date is other than the first day of a calendar month, then the
installments of Base Rental and Tenant’s Forecast Additional Rental for such month shall be
prorated and the installment or installments so prorated shall be paid in advance. Said
installments for such prorated month shall be calculated by multiplying the equal monthly
installment by a fraction, the numerator of which shall be the number of days of the Lease term
occurring during said commencement or expiration month, as the case maybe, and the denominator of
which shall be thirty (30). If the term of this Lease commences or expires on other than , the
first day of a calendar year, Tenant’s Forecast Additional Rental and Tenant’s Additional Rental
shall be prorated for such commencement or expiration year, as the case may be, by multiplying
Tenant’s Forecast Additional Rental and Tenant’s Additional Rental by a fraction, the numerator of
which shall be the-number of whole and partial months of the Lease term during the commencement or
expiration year, as the case may be, and the denominator of which shall be. twelve (12). In such
event the Tenant’s Additional Rental Adjustment shall be made as soon as reasonably possible after
the termination of this Lease.




          (c) For purposes hereof, the term “Rental” shall mean and collectively refer to the Base
Rental, Tenant’s Forecast Additional Rental, Tenant’s Additional Rental Adjustment and other sums
payable by Tenant hereunder. Tenant agrees to pay all Rental at the times and in the manner
provided in this Lease, without abatement, demand, notice, set-off, deduction or counterclaim, and
all sums payable under this Lease by Tenant shall be deemed to be rent due and owing hereunder. All
Rental shall bear interest from the fifth (5th) day after the date due thereof until paid at the
lesser of (i) a per annum rate equal to the “prime rate” announced by Chase Manhattan Bank, New
York, New York, or its successor, (or if the “prime rate” is discontinued, the rate announced as
that being charged to the most credit-worthy commercial borrowers) plus two percent (2%) or (ii)
the maximum interest rate per annum allowed by law; provided, however, Landlord shall, no more than
two (2) times per twelve (12) month period, provide Tenant with written notice of its failure to
timely, pay the Rental due hereunder prior to imposing the interest penalty set forth in this
subsection 2.01(c).




     2.02. Base Rental. Throughout the full term of this Lease, Tenant hereby agrees
to pay a base annual rental (the “Base Rental”) in accordance with the schedule attached hereto as
Exhibit



6









 




H, as such dollar amount may be adjusted from lease year to lease year pursuant to the
terms of this Lease.




     2.03. Additional Rental.



          (a) Commencing with the calendar year in which the Commencement Date occurs and continuing
thereafter for each calendar year during the full term of this Lease, Landlord shall present to
Tenant prior to the beginning of said calendar year (or for the calendar year in which the Lease
term commences, on the Commencement Date) a statement of Tenant’s Forecast Additional Rental.
Landlord’s failure to deliver such a statement of Tenant’s Forecast Additional Rental shall not
operate to excuse Tenant from the payment of the monthly installment of Tenant’s Forecast
Additional Rental due under Section 2.01(a). Rather, Tenant shall continue to pay the monthly
installment of Tenant’s Forecast Additional Rental based on Landlord’s most recent calculation
thereof until such a statement is delivered to Tenant, with such statement being applied
retroactively to the beginning of the calendar year and Tenant making up any under payments
immediately upon its receipt of such statement. Landlord may, from time to time, but not more than
two (2) times per year, recalculate Tenant’s Forecast Additional Rental in order to more accurately
reflect Landlord’s good faith estimate of Tenant’s Additional Rental, and Tenant shall commence
paying the recalculated Tenant’s Forecast Additional Rental, in accordance with Section 2.01(a)
hereof, immediately after receiving notice thereof.




          (b) As used herein, “Tenant’s Forecast Additional Rental” shall mean Landlord’s reasonable
estimate of Tenant’s Additional Rental (defined below) for the coming calendar year (or, in the
calendar year in which the lease term commences, for such calendar year).




          (c) Landlord shall absorb and be responsible for paying Operating Expenses (defined below)
during any calendar year to the extent such Operating Expenses are less than or equal to Six and
90/100 Dollars ($6.90) per square foot of space in the Building leased to rent paying tenants (the
“Expense Stop”). As part of Tenant’s Additional Rental, Tenant shall be responsible for paying its
pro rata share of the Operating Expenses for any calendar year in excess of the Expense Stop. For
purposes hereof, “Tenant’s Additional Rental” for any calendar year shall mean Tenant’s Percentage
Share (defined below) of the Operating Expenses for such calendar year in excess of the Expense
Stop. As used herein, “Tenant’s Percentage Share” shall mean a fraction, the numerator of which is
the total number of square feet of Rentable Square Feet within the Leased Premises and the
denominator of which is the greater of (i) ninety-five percent (95%) of the total square footage of
all Rentable Square Feet in the Building (exclusive of any retail space) held for lease, or (ii)
the total square footage of all Rentable Square Feet in the Building (exclusive of any retail
space) actually leased to rent paying tenants.




          (d) Landlord shall use reasonable efforts. to provide Tenant, within one hundred twenty
(120) days after the end of the calendar year in which the Commencement Date occurs and of each
calendar year thereafter during the term of this Lease, with a statement detailing the Operating
Expenses for each such calendar year (the “Annual Operating Expense Statement”) and





7









 






a statement prepared by Landlord comparing Tenant’s Forecast Additional Rental with Tenant’s
Additional Rental. In the event that Tenant’s Forecast Additional Rental exceeds Tenant’s
Additional Rental for said calendar year, Landlord shall, within thirty (30) days, pay Tenant (in
the form of a credit against rentals next due or, upon expiration of this Lease, in the form of
Landlord’s check) an amount equal to such excess. In the event that the Tenant’s Additional Rental
exceeds Tenant’s Forecast Additional Rental for said calendar year, Tenant hereby agrees to pay
Landlord, within thirty (30) days of receipt of the statement, an amount equal to such difference
(“Tenant’s Additional Rental Adjustment”).




          (e) Tenant, at Tenant’s sole cost and expense, shall have the right, to be exercised by
written notice given to Landlord within sixty (60) days after receipt of the Annual Operating
Expense Statement for any calendar year, to audit Landlord’s books and records pertaining only to
the Operating Expenses for such calendar year, provided such audit must commence within sixty (60)
days after Tenant’s notice to Landlord and thereafter proceed regularly and continuously to
conclusion and, provided, further, that such audit must be conducted by a nationally recognized
independent public accounting firm in a manner that does not unreasonably interfere with the
conduct of Landlord’s business. Notwithstanding the foregoing, Tenant shall not have the right to
audit Landlord’s books and records regarding the Operating Expenses for any calendar year if (i)
the Annual Operating Expense Statement for such calendar year was prepared by a nationally
recognized independent public accounting firm, or (ii) Tenant is in default under the terms of this
Lease or any circumstance exists which with the giving of notice, the passage of time, or both,
would constituted such a default. Landlord agrees to cooperate in good faith with Tenant in the
conduct of any such audit. Tenant (and its agents, employees and accountants) shall hold the
results of such audits in strict confidence and not disclose the same to any third party, except as
is necessary during any dispute between Landlord and Tenant related thereto or as required by law.
A copy of the results of any such audit shall be promptly provided to Landlord, and Landlord may
conduct an independent review of the same. If there is any disagreement regarding the results of
any such audit, the parties shall select a third party auditor to resolve the dispute.




     2.04. Operating Expenses.



          (b) “Operating Expenses”, for each calendar year, shall consist of (i) all Operating Costs
(defined below) for the Building, plus (ii) an amount equal to the sum of the total ownership,
management, maintenance, repair, replacement and operating costs accruing during each such calendar
year for portions of the Project not within the Building that are designated or maintained from
time to time as common areas, including, but not limited to, fifty (50%) percent of the cost of
maintaining the Kensington Place roadway adjoining the Project and those areas which are for the
benefit of the occupants of the Project whether or not so designated or maintained as common areas
(net of any contribution received from time to time from the owners of the other portions of the
Project for such expenses):




          (b) For the purposes of this Lease, “Operating Costs” shall mean all expenses, costs and
accruals (excluding therefrom, however, specific costs billed to or otherwise incurred for the
particular benefit of specific tenants of the Building) of every kind and nature, computed on an
accrual basis, incurred or accrued in connection with, or relating to, the ownership, operation,





8









 






management, maintenance, repair and replacement of the Building during each calendar year,
including, but not limited to, the following:





	 	(i)	 	wages and salaries, including taxes, insurance
and benefits, of all on and off-site employees engaged in operations,
management, maintenance, repair, replacement or access control, as
reasonably allocated by Landlord and rent for the Building’s management
office exclusive of that portion of such office used for leasing;
	 
	 	(ii)	 	cost of all supplies, tools, equipment and
materials to the extent used in operations, management, maintenance,
repairs or replacements, as reasonably allocated by Landlord;
	 
	 	(iii)	 	cost of all utilities, including, but not
limited to, the cost of electricity, the cost of water and the cost of
power for heating, lighting, air conditioning and ventilating;
	 
	 	(iv)	 	the cost of trash and garbage removal,
cleaning, vermin extermination, snow, ice and debris removal, and other
services;
	 
	 	(v)	 	cost related to and fees payable under all
maintenance, management and service agreements, including, but not
limited to, a management fee contribution equal to three percent (3%)
of the gross revenues;
	 
	 	(vi)	 	costs related to those agreements related to
access control services, garage operations, window cleaning, elevator
maintenance, janitorial service, pest control and landscaping
maintenance;
	 
	 	(vii)	 	cost of inspections, repairs, maintenance and
replacements (except to the extent covered by proceeds of insurance);
provided the cost of capital repairs and replacements shall be
amortized over such reasonable period of time as Landlord shall
reasonably determine and only the portion of such costs allocable to
any calender year (plus interest on the unpaid balance of such costs)
may be included in the Operating Costs for such calendar year;
	 
	 	(viii)	 	the reasonable cost of legal and accounting services incurred by
Landlord relating to management and maintenance of the Building but not
including any such expenses related to leasing of space in the
Building;
	 
	 	(ix)	 	amortization of the cost (plus interest on the unpaid balance of
such costs) of any system, apparatus, device, or equipment which is
installed




9









 





	 	 	 	for the principal purpose of (i) reducing
Operating Expenses, (ii) promoting safety or (iii) complying with
governmental requirements;






	 	(x)	 	the cost of all insurance, including, but not
limited to, the cost of casualty, rental loss and liability insurance,
and insurance on Landlord’s personal property, plus the cost of all
deductible and co-insurance payments made by Landlord in connection
therewith;
	 
	 	(xi)	 	amounts due under easements, operating
agreements, parking operating agreements, declarations, covenants or
instruments encumbering the Land;
	 
	 	(xii)	 	reasonable replacement reserves;
	 
	 	(xiii)	 	cost of maintaining, striping, repairing, replacing, repaving and
lighting grounds, streets, parking areas, sidewalks, curbs, walkways,
landscaping, drainage and lighting facilities; and
	 
	 	(xiv)	 	all taxes, assessments and governmental charges, whether or not
directly paid by Landlord, whether federal, state, county or municipal
and whether they be by taxing districts or authorities presently taxing
the Building and said common areas or by others subsequently created or
otherwise, and any other taxes, assessments and governmental charges
attributable to the Building and that portion of the common areas or
their operation, excluding, however, taxes and assessments attributable
to the personal property of other tenants, federal and state taxes on
income, death taxes, franchise taxes, and any taxes imposed or measured
on or by the income of Landlord from the operation of the Building or
imposed in connection with any change of ownership of the Building;
provided, however, that if at any time during the term of this Lease,
the present method of taxation or assessment shall be so changed that
the whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and the
improvements thereon shall be discontinued and as a substitute
therefor, or in lieu of or in addition thereto, taxes, assessments,
levies, impositions or charges shall be levied, assessed or imposed,
wholly or partially, as a capital levy or otherwise, on the rents
received from the Building or the rents reserved herein or any part
thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed
with respect to the Building, shall be deemed to be included within the
Operating Costs. Consultation, legal fees and costs resulting from any
challenge of tax assessments as reasonably allocated by Landlord shall
also be included in Operating Costs. It is agreed that Tenant will be
responsible for ad valorem taxes on its personal property and on the
value of the leasehold improvements in the Leased Premises




10









 





	 	 	 	to the extent that the same exceed the Tenant Improvement
Allowance (and if the taxing authorities do not separately assess
Tenant’s leasehold improvements, Landlord may make a reasonable
allocation of the ad valorem taxes allocated to the Building to give
effect to this sentence). In the case of special taxes and
assessments which may be payable in installments, only the amount of
each installment accruing during a calendar year shall be included
in the Operating Costs for such year.





          (c) Notwithstanding any language contained herein to the contrary, Tenant hereby agrees that,
during any calendar year in which the entire Building is not provided with Building Standard
Services or is not completely occupied, Landlord shall compute all Variable Operating Costs
(defined below) for such calendar year as though the entire Building were provided with Building
Standard Services and were completely occupied. For purposes of this Lease the term “Variable
Operating Costs” shall mean any operating cost that is variable with the level of occupancy of the
Building (e.g. utilities and cleaning services). In the event that Landlord excludes from
“Operating Costs” any specific costs billed to or otherwise incurred for the particular benefit of
specific tenants of the Building or to other buildings or projects on the Land, Landlord shall have
the right to increase “Operating Costs” by an amount equal to the cost of providing standard
services similar to the services for which such excluded specific costs were billed or incurred. In
no event shall Landlord receive from all tenants of the Building more than one hundred percent
(100%) of any Operating Costs.




          (d) Except as expressly provided in Section 2.05(b), Operating Costs shall not include:





	 	(i)	 	costs of alterations and other leasehold
improvements (including the supervision and administration of such
construction) and relocations of the premises of tenants of the
Building;
	 
	 	(ii)	 	the cost of construction of the Base Building;
	 
	 	(iii)	 	the cost of correcting defects in the initial
construction of the Base Building, other than (1) normal repair and
maintenance, or (2) minor. repairs equivalent to those
normally undertaken by Landlord whether or not resulting from a
construction defect;
	 
	 	(iv)	 	interest and principal payments on mortgages or
any loan fees or _other loan related costs or expenses payable in
connection therewith;
	 
	 	(v)	 	ground rental payments;




11









 











	 	(vi)	 	legal fees in connection with negotiating
leases with tenants in the Building or in connection with enforcing
lease obligations of tenants in the Building;
	 
	 	(vii)	 	interest, fines and penalties on late
payments;
	 
	 	(viii)	 	real estate brokerage and leasing commissions;
	 
	 	(ix)	 	costs and expenses attributable to leased
retail or storage areas (as reasonably determined by Landlord) and
which are directly reimbursable by retail or storage tenants in the
Building;
	 
	 	(x)	 	any expenditures for which Landlord has been
directly reimbursed by tenants of the Building (other than pursuant to
rent escalation or tax and operating expense reimbursement provisions
in leases);
	 
	 	(xi)	 	the costs of providing services to other
tenants of the Building without a charge (i.e., excluding any services
paid for by such tenants through payment of operating expenses and
taxes) that are in excess of those services provided or made available
to Tenant without a charge (i.e., excluding any services provided to
Tenant and paid for through payment of operating expenses), to the
extent of such excess;
	 
	 	(xii)	 	legal, appraisal and accounting fees,
disbursements and charges incurred in connection with the leasing, sale
or refinancing of the Building;
	 
	 	(xiii)	 	legal, appraisal and accounting fees, disbursements and charges
incurred in connection with disputes with tenants or occupants of the
Building;
	 
	 	(xiv)	 	costs of investigating the presence of,
removal or other remediation of hazardous substances existing in the
Building on the Commencement Date and required by environmental laws in
effect on the Commencement Date;
	 
	 	(xv)	 	salaries paid to any executive employees above the grade of
regional building manager and regional building engineer (which are
includable only to the extent that such regional building manager and
regional building engineer are engaged in servicing the Building);
	 
	 	(xvi)	 	expenses for repairs, maintenance or
replacements for which Landlord is reimbursed from or pursuant to
insurance or condemnation proceeds (or for which Landlord would have
been so reimbursed had it maintained the insurance required hereunder);




12









 











	 	(xvii)	 	advertising, entertainment and promotional expenditures relating
to leasing of space at the Building;
	 
	 	(xviii)	 	costs of capital improvements made to cure violations of laws
existing as of the Commencement Date, including any fines or penalties
imposed by legal authorities having jurisdiction thereof by reason of
such existing violations;
	 
	 	(xix)	 	costs of electricity furnished to individual
tenant spaces, to the extent such costs are separately charged and
payable by such tenants (other than pursuant to provisions in such
tenants’ leases providing for reimbursement of operating expenses and
taxes of the Building);
	 
	 	(xx)	 	overhead and profit increment paid to
subsidiaries or affiliates of Landlord for services to the Building, to
the extent only that the costs of such services exceed the competitive
cost of such services were they not so rendered by a subsidiary or
affiliate (provided that this exclusion shall in no way reduce or
affect the management or administration fees otherwise permitted
hereunder);
	 
	 	(xxi)	 	cost of acquisition of sculptures, paintings
or other works of art displayed in. the public areas of the Building;
	 
	 	(xxii)	 	damages awarded .to a tenant. of the Building against Landlord by
reason of Landlord’s breach of that tenant’s lease or Landlord’s
negligent or willful conduct;
	 
	 	(xxiii)	 	costs for repairs, maintenance, replacements or services for which
Landlord is directly reimbursed from warranties, guaranties or any
other source (other than payments by tenants of operating expenses);
and
	 
	 	(xxiv)	 	the costs of any judgment, settlement or arbitration award resulting
from Landlord’s liability for failure to perform its obligations under
any lease or other contract by which it may be bound.





          2.05. Intentionally Deleted.




          2.06. Intentionally Deleted.





13









 







ARTICLE III.




     3.01. Services. Landlord shall furnish the following services to Tenant during the
term of this Lease (“Building Standard Services”):



          (a) Hot and cold domestic water to common use rest rooms and toilets, in commercially
reasonable amounts.




          (b) Subject to curtailment as required by governmental laws, rules or mandatory regulations,
central heat and air conditioning in season, at such temperatures and in such amounts as are
reasonably determined by Landlord and on such dates and at such times as are more particularly
described on Exhibit E attached hereto and incorporated herein.




          (c) Electric lighting service for all public areas and special service areas of the Building
in such amounts and locations as are reasonably determined by Landlord.




          (d) Janitor service shall be provided five (5) days per week, exclusive of holidays, in such
manner as Landlord reasonably. determines, but similar to other suburban Nashville Class A
buildings; provided, however, if Tenant’s floor coverings or other improvements are other than
building standard commercial grade, Tenant shall pay one hundred and fifteen percent (115%) of the
actual additional cleaning cost, if any, attributable thereto. Landlord shall inform Tenant upon
completion of Tenant’s improvements whether any such improvements require janitorial services in
excess of building standard.




          (e) Access control for the Building shall be provided to the extent and in the manner
reasonably determined by Landlord; provided, however, Landlord shall have no responsibility to
prevent, and shall not be liable to Tenant for, any liability or loss to Tenant, its agents,
employees and visitors arising out of losses .due .to theft, burglary, or damage or injury to
persons or property caused by persons gaining access to the Leased Premises, and Tenant hereby
releases Landlord from all liability for such losses, damages or injury, Landlord’s gross
negligence and willful misconduct excepted.




          (f) Electrical service shall be provided to Tenant as specified in Exhibit C
hereto.




          Should Tenant’s total rated electrical design load exceed the Building Standard rated
electrical design load for either low or high voltage electrical consumption, or if Tenant’s
electrical design requires low voltage or high voltage circuits in excess of Tenant’s share of the
Building Standard Shell Condition circuits, Landlord will (at Tenant’s expense) install one (1)
additional high voltage panel and/or one (1) additional low voltage panel with associated
transformer, space for which has been provided in the base building electrical closets based on a
maximum of two (2) such additional panels per floor for all tenants on the floor (which additional
panels and transformers shall be hereinafter referred to as the “additional electrical equipment”).
If the additional electrical equipment is installed because Tenant’s low or high voltage rated
electrical design load exceeds the





14









 






applicable Building Standard rated electrical design load, then a meter shall also be added
(at Tenant’s expense for the actual cost of such separately metered electricity and after notice to
Tenant) to measure the electricity used through the additional electrical equipment.




     The design and installation of any additional electrical equipment (or any related meter)
required by Tenant shall be subject to the prior approval of Landlord (which approval shall not be
unreasonably withheld). All expenses incurred by Landlord in connection with the review and
approval of any additional electrical equipment shall also be reimbursed to Landlord by Tenant.
Tenant shall also pay on demand the actual metered cost of electricity consumed through the
additional electrical equipment (if applicable), plus any actual accounting expenses incurred by
Landlord in connection with the metering thereof.



     If any of Tenant’s electrical equipment requires conditioned air in excess of Building
Standard Shell Condition air conditioning, the same shall, after written notice to Tenant, be
installed by Landlord (on Tenant’s behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.



     If Tenant requires that certain areas within Tenant’s demised premises must operate in excess
of the normal Building Operating Hours (as defined in Exhibit E attached hereto), the electrical
service to such areas shall, after written notice to Tenant, be separately circuited and metered
such that Tenant shall be billed the costs associated with electricity consumed during hours other
than Building Operating Hours.



     (g) All Building Standard fluorescent bulb replacement in all areas and all incandescent bulb
replacement in General Common Areas, Service Areas and On-Floor Common Areas.



     (h) Non-exclusive multiple cab passenger service to the Leased Premises during Building
Operating Hours (as defined in Exhibit E) and at least one (1) cab passenger service to the
Leased Premises twenty-four (24) hours per day and non-exclusive freight elevator service during
Building Operating Hours (all subject to temporary cessation for ordinary repair and maintenance
and during times when life safety systems override normal building operating systems) with such
freight elevator service available at other times upon reasonable prior notice and the payment by
Tenant to Landlord of any additional expense actually incurred by Landlord in connection therewith.



     To the extent the services described in subsection (a), (b), (c), (f) and (h) above
require electricity and water supplied by public utilities, Landlord’s covenants thereunder shall
only impose on Landlord the obligation to use its good faith, reasonable efforts to cause the
applicable public utilities. to furnish the same. Failure by Landlord to furnish the services
described in this Section, or any cessation thereof, shall not render Landlord liable for damages
to either person or property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof. In addition to the
foregoing, should any of the equipment or machinery, for any cause except Landlord’s gross
negligence, fail to operate, or



15









 




function properly, Tenant shall have no claim for rebate of rent or damages on account of an
interruption in service occasioned thereby or resulting therefrom and Tenant shall rely on its own
business interruption insurance; provided, however, Landlord agrees to use reasonable efforts to
repair said equipment or machinery promptly and to restore said services.




     3.02. Keys and Locks. Landlord shall install a card reader on the elevator servicing
the Leased Premises that restricts after hours access to the Leased Premises. Landlord shall also
supply Tenant with two (2) keys for. each Building Standard lockset on code required doors entering
the Leased Premises from public areas. Additional keys will be furnished by Landlord upon an order
signed by Tenant and at Tenant’s expense, which shall be at Landlord’s actual cost plus ten percent
(10%). All such keys shall remain the property of Landlord. No additional locks shall be allowed on
any door of the Leased Premises without Landlord’s permission, and Tenant shall not make or permit
to be made any duplicate keys. Upon termination of this Lease, Tenant shall surrender to Landlord
all keys to any locks on doors entering or within the Leased Premises, and give to Landlord the
explanation of the combination of all locks for safes, safe cabinets and vault doors, if any, in
the Leased Premises.



     3.03. Graphics, Building Directory and Name. Landlord shall provide and install all
graphics, letters, and numerals at the entrance to the Leased Premises on multi-tenant floors, if
any (it being understood that Tenant shall be responsible for all graphics on full floors occupied
by Tenant. Landlord shall maintain an electronic directory in such main lobby which shall include
such information relating to Tenant, including the names of Tenant’s officers and senior employees.
All such letters and numerals shall be in the Building standard graphics (font. size to
be approved by Landlord). Tenant agrees that Landlord shall not- be liable for any inconvenience or
damage occurring as a result of any error or omission in any directory or graphics. Tenant at
Tenant’s sole cost and expense, upon prior written consent of Landlord which shall not be
unreasonably withheld, shall be entitled to install signage incorporating the firm’s name and
standard logo within the Leased Premises, or within the elevator lobby for any floor or floor which
Tenant occupies an entire floor. Tenant shall be responsible for removing such signage from the
elevator lobby or lobbies prior to the expiration of this Lease. No signs, numerals, letters or
other graphics shall be used or permitted on the exterior of, or may be visible from outside, the
Leased Premises, unless approved in writing by Landlord. All on-floor graphics for full-floor
tenants shall be removed by Tenant upon lease expiration.



     3.04. Parking.



          (a) Subject to the other provisions hereof, Landlord hereby agrees to make available,
or to cause the lessee or operator of the Parking Facility (the “Garage Operator”), to make
available to Tenant up to one (1) permit per two hundred and fifty (250) RSF to park in the
Kensington Parking Facility upon Terms and conditions set forth below (the “Parking Permits”).
Landlord shall also provide (or cause the Garage Operator to provide) visitor parking in a portion
of the Parking Facility on a “first come-first served” pay basis at such published rates and upon
such conditions as Landlord or the Garage Operator, as applicable, shall establish from time to
time, as shown on Exhibit J. At any time during the Term, Tenant may elect to relinquish up
to fifteen (15) Parking Permits by giving thirty (30) days prior written notice to Landlord (or





16









 






its designee), in which event Tenant shall have no further right to or interest in such
relinquished Parking Permits and Landlord shall have no further obligation to provide such Parking
Permits in order to meet the ratio set forth hereinabove.




          (b) Tenant shall notify Landlord within thirty (30) days following the Commencement Date of
the number of Parking Permits that it intends to utilize. Neither Landlord nor the Garage Operator
shall be obligated to hold any Parking Permits that Tenant does not elect to utilize.




          (c) Tenant shall pay as rental for the Parking Permits at the rate charged from time to time
by Landlord (or the Garage Operator), in its sole and absolute discretion; provided the rate
charged for the Parking. Permits shall be prorated for any partial months during the
term of this Lease. The initial charge to Tenant for each Parking Permit shall be Forty Dollars
($40.00) per month. In the event the rate charged for the Parking Permits is increased, Tenant may
elect as its sole remedy with respect to such increase to relinquish all or a portion of the
Parking Permits by giving written notice to Landlord (or its designee) within thirty (30) days
after receiving notice of such increase, in which event Tenant shall have no further right to or
interest in such Parking Permit and neither Landlord nor the Garage Operator shall have any
obligation to provide replacement parking for Tenant. If the rate charged for the Parking Permits
is increased and Tenant fails to notify Landlord, in writing, of its election to relinquish all or
a portion of the Parking Permits within thirty (30) days after receiving notice of such increase,
then Tenant shall be deemed to have agreed to such increase and shall have no further right to
relinquish its Parking Permits on account thereof. Unless Landlord directs otherwise, Tenant shall
pay the monthly charges established from time to time in accordance with this Lease by the Garage
Operator for parking in the Kensington Parking Facility to Landlord and Landlord shall collect such
payments, on behalf of the Garage Operator, monthly in advance, at the same time and place as
Tenant makes payments of Base Rent under the terms of this Lease.




          (d) In the event the parking spaces covered by the Parking Permits are not available to Tenant
due to causes beyond the control of Landlord or the Garage Operator and Landlord is unable to
provide replacement parking to Tenant, neither Landlord nor Garage Operator shall be liable for any
damages that Tenant suffers on account thereof, nor shall such fact be construed as a constructive
eviction of Tenant, entitle Tenant to an abatement of any Rental, or relieve Tenant from
fulfillment of any covenant or agreement hereof.




          (e) Landlord or the Garage Operator may make, modify and enforce reasonable rules and
regulations relating to the parking of vehicles in the Parking Facility, and Tenant agrees to abide
by such rules and regulations; provided such rules and regulations do not materially reduce
Tenant’s parking rights provided hereunder. Except as expressly provided herein, this Lease does
not grant Tenant (or its agents, employees, contractors and visitors) the right to use the Parking
Facilities or any other parking areas located on the Land or serving the Building. So long as
Landlord ensures that there is sufficient parking available in the Parking Facilities to
accommodate the holders of the Parking Permits, Landlord or the Garage Operator may, from





17









 






time to time, designate specific portions of the Parking Facilities as reserved areas and
Tenant shall have no right to park in such reserved areas, except Tenant may park in reserved areas
made available to tenants of the Building to the extent Tenant has purchased Parking Permits
specifically entitling Tenant to use the same. Landlord agrees to make (or cause the Garage
Operator to make) parking for Tenant’s guests and visitors available on a non-exclusive basis in
the Parking Facility. Landlord or the Garage Operator may restrict Tenant’s right to utilize the
Parking Permits on weekends and after 6:00 p.m. in the evening when athletic events are scheduled
in the nearby athletic facilities.




ARTICLE IV.




     4.01. Care of Leased Premises. Tenant shall not commit or allow to be committed by
Tenant’s employees, agents or contractors, any waste or damage to any portion of the Leased
Premises or the Building. Upon the expiration or any earlier termination of this Lease, Landlord
shall have the right to re-enter and resume possession of the Leased Premises immediately.



     4.02. Entry for Repairs and Inspection. Tenant shall permit Landlord and its
contractors, agents or representatives to enter into and upon any part of the Leased Premises
during reasonable hours to inspect or clean the same, make repairs, alterations or additions
thereto, and, upon reasonable prior notice to Tenant, for the purpose of showing the same to
prospective tenants or purchasers and Tenant shall not be entitled to any abatement or reduction of
rent by reason thereof. Landlord shall use its reasonable efforts not to interfere materially with
the operation of Tenant’s business during any such entry.



     4.03. Nuisance. Tenant shall conduct its business and control its agents, employees,
invitees, contractors and visitors in such a manner as not to create any nuisance, or interfere
with, annoy or disturb any other tenant or Landlord in its operation of the Building.



     4.04. Laws and Regulations: Encumbrances; Rules of Building. Tenant shall comply with,
and Tenant shall cause its employees, contractors and agents to comply with, and shall use its best
efforts to cause its visitors and invitees to comply with, (i) all laws, ordinances, orders, rules
and regulations of all state, federal, municipal and other governmental or judicial agencies or
bodies relating to the use, condition or occupancy of the Leased Premises, (ii) all recorded
easements, operating agreements, parking agreements, declarations, covenants and instruments
encumbering the Leased Premises, and (iii) the rules of the Building reasonably adopted and altered
by Landlord from time to time for the safety, care and cleanliness of the Leased Premises and
Building and for the preservation of good order therein. The initial rules of the Building are
attached hereto and incorporated herein as Exhibit F. Landlord warrants that the Building
shall be in compliance in all material respects with applicable municipal, county, state and
federal laws, codes and requirements as of the Commencement Date.



     4.05. Legal Use and Violations of Insurance Coverage. Tenant shall not occupy or
use the Leased Premises, or permit any portion of the Leased Premises to be occupied or used, for
any business or purpose which is unlawful or knowingly deemed to be hazardous in any manner, or



18









 




permit anything to be done which would in any way increase the rate of fire, liability, or any
other insurance coverage on the Building or its contents.




     4.06. Hazardous Substances. Tenant shall comply, at its sole expense, with all laws,
ordinances, orders, rules and regulations of all state, federal, municipal and other governmental
or judicial agencies or bodies relating to the protection of public health, safety, welfare or the
environment (collectively, “Environmental Laws”) in the use, occupancy and operation of the Leased
Premises. Tenant agrees that no Hazardous Substances (as hereinafter defined) shall be used,
located, stored or processed on the Leased Premises or be brought onto any other portion of the
Building by Tenant or any of its agents, employees, contractors, assigns, subtenants, guests or
invitees, and no Hazardous Substances will be released or discharged from the Leased Premises
(including, but not limited to, ground water contamination). The term “Hazardous Substances” shall
mean and include all hazardous and toxic substances, waste or materials, any pollutant or
contaminant, including, without limitation, PCB’s, asbestos and raw materials that include
hazardous constituents or any other similar substances or materials that are now or hereafter
included under or regulated by any Environmental Laws or that would pose a health, safety or
environmental hazard. Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and
against any and all losses, liabilities (including, but not limited to, strict liability), damages,
injuries, expenses (including, but not limited to, court costs, litigation expenses,
reasonable attorneys’ fees and costs of settlement or judgment), suits and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by any person, entity
or governmental agency for, with respect to, or as a direct or indirect result of, the presence in
or the escape, leakage, spillage, discharge, emission or release from the Leased Premises of any
Hazardous Substances or the presence of any Hazardous Substances placed on or discharged from the
Building by Tenant or any of its agents, employees, contractors, assigns, subtenants, guests or
invitees, including, without limitation, any losses, liabilities (including, but not limited to,
strict liability), damages, injuries, expenses (including, but not limited to, court costs,
litigation expenses, reasonable attorneys’ fees and costs of settlement or judgment), suits and
claims asserted or arising under the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”), any so-called federal, state or local “Superfund” or “Superlien” laws or
any other Environmental Law.



     Landlord hereby confirms that, to its knowledge, there are no Hazardous Substances (as
now defined) existing at the Building in violation of applicable environmental laws (as now
existing). Without limitation of the foregoing, Landlord agrees, as to any Hazardous Substances (as
now defined) existing in the Leased Premises or the Building or the Land on the Commencement Date,
to remove or otherwise remediate such Hazardous Substances to the extent required by law (as now
existing), at Landlord’s sole cost and expense. Tenant shall cooperate with Landlord in allowing
proper access to the Leased Premises to perform the foregoing removal or remediation activities,
and shall use reasonable efforts not to take any action which may worsen any such environmental
condition once discovered. Landlord shall restore any damage caused to the Leased Premises as a
result of such access by Landlord under this Section 4.06, to the extent such damage was not caused
by Tenant’s negligence or willful misconduct or Tenant’s breach of its obligations hereunder. In
any



19









 




entry into the Leased Premises under this Section 4.06, Landlord shall use commercially
reasonable efforts to minimize interference with Tenant’s business operations at the Leased
Premises.




     4.07. Tenant Taxes. Tenant shall pay promptly when due all taxes directly or
indirectly imposed or assessed upon Tenant’s gross sales, business operations, machinery,
equipment, trade fixtures and other personal property or assets, whether such taxes are assessed
against Tenant, Landlord or the Building. In the event that such taxes are imposed or assessed
against Landlord or the Building, Landlord shall furnish Tenant with all applicable tax bills,
public charges and other assessments or impositions and Tenant shall forthwith pay the same either
directly to the taxing authority or, at Landlord’s option, to Landlord.



ARTICLE V.




     5.01. Leasehold Improvements.



          (a) Tenant shall receive a tenant improvement allowance of $31.00 per square foot of Rentable
Square Feet (the “Tenant Improvement Allowance”), to be paid in installments in accordance with
Exhibit D, no more often than once per month. Tenant may elect to increase the Tenant
Improvement Allowance by up to an additional $5.00 per square foot of Rentable Square Feet by
giving written notice of its desire to do so to Landlord on or before the Floor Ready Date, in
which event the Initial Base Rental payable hereunder shall increase by $0.18 per Rental Square
Foot per annum for each dollar of increase of Tenant Improvement Allowance which Tenant elects to
use above the primary allowance of $31.00 per RSF. Tenant hereby agrees that the provisions of
Exhibit D shall govern the construction of Tenant’s initial leasehold improvements. Tenant
shall not install any improvements which are not compatible with Landlord’s plans and
specifications for the Building or which are not approved by Landlord or Landlord’s architect.
Landlord shall at Landlord’s cost provide to Tenant on-floor improvements as described in
Exhibit C “Base Building Shell Condition.”




          (b) Notwithstanding any language contained herein or in Exhibit D to the contrary, if
for any reason the Leased Premises should not be ready for occupancy by the Commencement Date,
Landlord shall not be liable or responsible for any claims, damages or liabilities in connection
therewith or by reason thereof.




          (c) Tenant shall not make or allow to be made any alterations or physical additions in or to
the Leased Premises, or place safes, vaults or other heavy furniture or equipment within the Leased
Premises, without first obtaining the written consent of Landlord which consent shall not be
unreasonably withheld so long as said alterations do not impact on Building systems or structure
and are not visible from outside the Leased Premises. Tenant shall deliver to Landlord a copy of
the record drawings for all alterations or physical additions so made in or to the Leased Premises.
Tenant further specifically agrees that no food, soft drink or other vending machine will be
installed within the Leased Premises without the written consent of Landlord, which consent will
not be unreasonably withheld, delayed or conditioned, provided that Tenant shall be allowed to
install such vending machines for the sole use of Tenant’ s employees so long as the vending
machine is not visible from outside of the Leased Premises.





20









 







          (d) Tenant shall indemnify and hold Landlord harmless from and against all costs (including
reasonable attorneys’ fees and costs of suit), losses, liabilities, or causes of action arising out
of or relating to any alterations, additions or improvements made by Tenant to the Leased Premises,
including, but not limited to, any mechanics’ or materialmen’s liens asserted in connection
therewith. No portion of Landlord’s interest in the Building shall be subject to attachment on
account of any work performed by or on account of Tenant, and Tenant shall provide written notice
of same to all of its contractors.




          (e) Should any mechanic’s or other liens be filed against any portion of the Building by
reason of Tenant’s acts or omissions or because of a claim against Tenant, Tenant shall cause the
same to be canceled or discharged of record by bond or otherwise within thirty (30) days after
notice by Landlord. If Tenant shall fail to cancel or discharge said lien or liens, within said
thirty (30) day period, Landlord may, at its sole option, cancel or discharge the same and upon
Landlord’s demand, Tenant shall promptly reimburse Landlord for all reasonable costs incurred in
canceling or discharging such liens, and if canceling or discharging such liens requires active
managerial oversight by Landlord, Landlord shall be entitled to collect an administrative fee equal
to fifteen percent (15%) of the cost thereof.




     5.02. Repairs by Landlord. All repairs, alterations or additions that affect the
Building’s structural components or the Building’s mechanical, electrical and plumbing systems
shall be made solely by Landlord or its contractor, and Landlord shall timely cause such repairs to
be made. In the event of any damage to such components or systems or any other portion of the
Building caused by Tenant or Tenant’s agents, contractors, employees, visitors or invitees, the
cost of repair or restoration of such damage shall be paid for solely by Tenant in an amount equal
to Landlord’s costs plus ten percent (10%) for administrative cost recovery. Landlord shall make
such repairs to Building Standard Shell Condition improvements as may be deemed necessary by
Landlord for normal maintenance operations and Landlord shall not otherwise be obligated to make
improvements to, or repairs of, the Leased Premises.



     5.03. Repairs by Tenant. Subject to Section 5.02 and 6.03, Tenant shall at its own
cost and expense, keep the Leased Premises and all leasehold improvements in a condition similar to
the condition as of the Commencement Date, normal wear and tear excepted, and Tenant shall perform
all maintenance, repairs and replacements necessary to accomplish the same. In addition, Tenant
shall perform all maintenance, repairs, replacements and improvements required by any governmental
law, ordination, rule or regulation. If Tenant fails to commence any maintenance, repairs,
replacements or improvements which it is required to perform hereunder within ten (10) days after
written notice from Landlord to Tenant and thereafter diligently proceed with such work until
completion, Landlord may, at its option, perform any such maintenance, repairs, replacements or
improvements deemed necessary by Landlord, and Tenant shall pay to Landlord on demand Landlord’s
cost thereof plus a charge of ten percent (10%) for administrative cost recovery.



21









 





ARTICLE VI.




     6.01. Condemnation. If all or substantially all of the Leased Premises, or such
portion of the Leased Premises or the Building as would render, in Landlord’s reasonable judgment,
the continuance of Tenant’s business from the Leased Premises impracticable, shall be permanently
taken or condemned for any public purpose, then this Lease, at the option of Tenant or Landlord
upon the giving of written notice to the other party within ten (10) days from the date of such
condemnation or taking, shall forthwith cease and terminate. If less than all or substantially all
of the Leased Premises or any portion of the Building shall be permanently taken or condemned for
any public purpose, then Landlord shall have the option of terminating this Lease by written notice
to Tenant within ten (10) days from the date of such condemnation or taking. If this Lease is
terminated as provided above, this Lease shall cease and expire as if the date of transfer of
possession of the Leased Premises, the Building, or any portion thereof, was the expiration date of
this Lease. In the event that this Lease is not terminated by either Landlord or Tenant as
aforesaid, Tenant shall pay the Rental up to the date of transfer of possession of such portion of
the Leased Premises so taken or condemned and this Lease shall thereupon cease and terminate with
respect to such portion of the Leased Premises so taken or condemned as if the date of transfer of
possession of the Leased Premises was the expiration date of the term of this Lease relating to
such portion of the Leased Premises. Thereafter the Base Rental, Tenant’s Forecast Additional
Rental and Tenant’s Additional Rental shall be adjusted on a pro rata, net rentable square foot
basis. In the event of any such condemnation or taking and this Lease is not so terminated,
Landlord shall promptly repair the Leased Premises or the Building, as the case may be, to Building
Standard Shell Condition so that the remaining portion of the Leased Premises or Building, as the
case may be, shall constitute an architectural unit, fit for Tenant’s occupancy and business;
provided, however, that Landlord’s obligation to repair hereunder shall be limited to the extent of
the net proceeds made available to Landlord for such repair from any such condemnation or taking.
In the event of any temporary taking or condemnation for any public purpose of the Leased Premises
or any portion thereof, then this Lease shall continue in full force and effect except that Base
Rental, Tenant’s Forecast Additional Rental, and Tenant’s Additional Rental shall be adjusted on a
pro rata net rentable square foot basis for the period of time that the Leased Premises are so
taken as of the date of transfer of possession of the Leased Premises and Landlord shall be under
no obligation to make any repairs or alterations. In the event of any condemnation or taking of the
Leased Premises, Tenant hereby assigns to Landlord the value of all or any portion of the unexpired
term of the Lease and all leasehold improvements and Tenant may not assert a claim for a
condemnation award therefor; provided, however, Tenant may pursue a separate attempt to recover an
award or compensation against or from the condemning authority provided such pursuit does not
reduce Landlord’s award.



     6.02. Damages from Certain Causes. Landlord shall not be liable or responsible to
Tenant for any loss or damage to any property or person occasioned by theft, fire, act of God,
public enemy, riot, strike, insurrection, war, act or omission of any tenant or occupant of the
Building, any nuisance or interference caused or created by any tenant or occupant of the Building,
requisition or order of governmental body or authority, court order or injunction, or any cause
beyond Landlord’s control or, except in the case of the gross negligence or intentional misconduct
of Landlord, for any damage



22









 




or inconvenience which may arise through repair or alteration of any part of the
Building. Tenant shall notify Landlord of any damage to the Leased Premises, regardless of the
cause of such damage.




     6.03. Casualty Clause.



          (a) In the event any portion of the Leased Premises or any portion of the General Common Areas
is damaged by fire or other casualty, earthquake or flood or by any other cause of any kind or
nature (hereinafter collectively referred to as the “damaged property”) and the damaged property
can, in the opinion of the Landlord’s architect, be repaired within ninety (90) calendar days from
the date of notice of Landlord’s architect’s opinion, then Landlord shall proceed to rebuild or
restore the damaged property to Building Standard Shell Condition, subject to subsection (e)
hereof.




          (b) In the event the damaged property can not, in the reasonable opinion of Landlord’s
architect, be repaired within ninety (90) days from the date of notice of Landlord’s architect’s
opinion, but can be repaired within one hundred eighty
(180) days from the date of notice
of Landlord’s architect’s opinion, Landlord, at Landlord’s sole option, shall have the right (i) to
terminate this Lease by notifying Tenant of such termination within twenty (20) days of receipt of
Landlord’s architect’s opinion, or (ii) to restore or rebuild the damaged property to Building
Standard Shell Condition, subject to subsection (e) hereof.




          (c) If, in the opinion of Landlord’s architect, damage to the damaged property cannot be
repaired within one hundred eighty (180) days from the date of notice of Landlord’s
architect’s opinion, then both Landlord and Tenant shall have the right to terminate this Lease by
notifying the other party in writing of such termination within twenty (20) days of receipt of
Landlord’s architect’s opinion.




          (d) Notwithstanding any language herein to the contrary, if at the time of any such damage,
less than one (1) year remains in the term of this Lease, exclusive of any renewal options, then
Landlord, at Landlord’s sole option, shall have the right to terminate this Lease.




          (e) If at anytime during the term of this Lease the Building is damaged and the cost of
repairing and restoring the same exceeds twenty-five percent (25%) of the replacement cost of the
improvements comprising the Building, then Landlord, at Landlord’s sole option, shall have the
right to terminate this Lease.




          (f) Notwithstanding any language contained herein to the contrary, in the event this
Lease is not terminated as provided hereunder (i) Landlord shall be obligated to rebuild or restore
the damaged property only to the extent of the net insurance proceeds available to Landlord for the
purpose of rebuilding and restoration, (ii) if the damaged property is all or any
portion of the Leased Premises Landlord shall be obligated to rebuild or restore the damaged
property only to Building Standard Shell Condition, except that Tenant shall have the right to
require Landlord to rebuild or restore the damaged property substantially to the condition which
existed immediately prior to such damage, provided that Tenant shall bear all costs and expenses,
including without




23









 






limitation, rentals that are lost due to extended construction time, in excess of the lesser
of (A) any net insurance proceeds available to Landlord for the purpose of rebuilding or
restoration, or (B) the cost to Landlord of rebuilding and restoring the damaged property to
Building Standard condition (with Building Standard Tenant Allowances); and (iii) if Landlord is
able to obtain rental loss insurance on reasonable terms and conditions (and Landlord shall carry
such rental loss insurance so long as it is reasonably available), then Tenant shall be entitled to
a pro rata abatement of Base Rental, Tenant’s Forecast Additional Rental, and Tenant’s Additional
Rental during the period of time the Leased Premises, or any portion thereof, are untenantable due
to such damage. Landlord’s architect’s opinion shall be delivered to both Landlord and Tenant
within thirty (30) days from the date of any such damage. In the event of any termination of this
Lease under this Section, this Lease shall cease and terminate as if the date of such damage was
the expiration date of the term of this Lease. Notwithstanding any contrary language in this
Section, if the Leased Premises, the Building, or any portion thereof shall be damaged through the
negligence or willful misconduct of Tenant and the cost of repairing the same is not covered by
Landlord’s insurance, such damage shall be repaired by Landlord at the sole expense of Tenant and
rent shall continue hereunder unabated.




          (g) If any portion of Tenant’s leasehold improvements (including, but not limited to, Tenant’s
Extra Work), alterations, additions, improvements, fixtures, furnishing, equipment or trade
fixtures are damaged by fire or other casualty, earthquake or flood or by any other cause of any
kind or nature, Tenant shall immediately restore the same to the condition existing immediately
prior to such damage, unless such damage is so extensive as to permit termination of this Lease as
provided herein and the Lease is terminated in accordance with such provisions.




     6.04. Casualty Insurance. Landlord shall maintain all-risk property insurance on
the Building and on all Building Standard Shell Condition improvements. Said insurance shall be
maintained with an insurance company authorized to do business in Tennessee, at full replacement
cost and payments for losses thereunder shall be made solely to Landlord. Tenant shall maintain at
its expense business interruption insurance and all-risk property insurance on the full replacement
cost of all its personal property, including removable trade fixtures, located in the Leased
Premises and on Tenant’s Extra Work and all other, additions and improvements (including fixtures)
made by Tenant and not required to be insured by Landlord above, regardless of whether such
improvements were made at Landlord’s or Tenant’s expense. If the annual premiums to be paid by
Landlord shall exceed the standard rates because of Tenant’s operations within, or contents of, the
Leased Premises or because the improvements to the Leased Premises are in excess of improvements
contemplated by the Tenant Improvement Allowance, Tenant shall either (i) promptly pay the excess
amount of the premium upon request by Landlord (and if necessary, Landlord may allocate the
insurance costs of the Building to give effect to this sentence), or (ii), if the insurance company
agrees to reduce the premium to the premium prior to the increase due to Tenant’s operations, cease
the operation that caused the increase in insurance premiums. Upon the request of Landlord, a duly
executed certificate of insurance, reflecting Tenant’s maintenance of the insurance required under
this Section 6.04 and Section 6.05, shall be delivered to Landlord.



     6.05. Liability Insurance. Landlord and Tenant shall each maintain a policy or
policies of commercial general liability insurance with the premiums thereon fully paid on or
before the due dates, issued by and binding upon a solvent insurance company authorized to transact
business in



24









 




Tennessee. Such insurance shall be written on an occurrence basis and shall afford minimum
protection (which may be affected by primary and/or excess coverage) of not less than $2,000,000.00
combined single limit for bodily injury and property damage in any one occurrence; provided,
however, Tenant shall carry such greater limits of coverage as Landlord may reasonably request from
time to time so long as Landlord maintains similar limits of coverage.




     6.06. Hold Harmless. Landlord shall not be liable to Tenant, its agents, servants,
employees, contractors, customers or invitees for any damage to person or property caused by any
act, omission or neglect of Tenant. Without limiting or being limited by any other indemnity in
this Lease, but rather in confirmation and furtherance thereof, Tenant agrees to indemnify, defend
by its in house or outside counsel, and hold Landlord, Landlord’s beneficiaries (if Landlord is a
land trust), the managing agent of the Building, the leasing agent of the Building and their
respective agents, partners, shareholders, officers, directors and employees of the Building
harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and
expenses (including, but not limited to, court costs, reasonable attorneys’ fees and litigation
expenses) in connection with injury to or death of any person or damage to or theft, loss or loss
of the use of any property occurring in or about the Leased Premises or the Building arising from
Tenant’s occupancy of the Leased Premises, or the conduct of its business or from any activity,
work, or thing done, permitted or suffered by Tenant in or about the Leased Premises or the
Building, or from any breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or due to any
other act or omission or willful misconduct of Tenant or any of its agents, employees, contractors,
assigns, subtenants, guest or invitees.



     6.07. Waiver of Subrogation Rights. Anything, in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all rights of recovery, claim,
action or cause of action, against the other, its agents, servants, partners, shareholders,
officers or employees, for personal injury, loss or damage to business, and loss or damage that may
occur to the Leased Premises, the Building or any improvements thereto or thereon or any personal
property of such party therein or thereon by reason of fire, the elements, or any other cause to
the extent such loss or damage is covered by terms of the all-risk property insurance policies
referred to in Section 6.04 hereof or any other insurance policy maintained by Landlord or Tenant,
as applicable, regardless of cause or origin, including negligence of the other party hereto, its
agents, officers, partners, shareholders, servants or employees, and covenants that no insurer
shall hold any right of subrogation against such other party. The foregoing waiver shall apply
regardless of the cause or origin of such claim, including but not limited to the negligence of a
party, or such party’s agents, officers, employees or contractors, but shall not apply if it would
have the effect, but only to the extent of such effect, of invalidating any insurance coverage of
Landlord or Tenant. Each party shall obtain any special endorsements, if any, required by their
respective insurers to evidence compliance with the aforementioned waiver.




25










 





ARTICLE VII.




     7.01. Default and Remedies.



          (a) The occurrence of any of the following shall constitute a default under and breach of this
Lease by Tenant (an “Event of Default”):





	 	(i)	 	Failure by Tenant to pay any Rental within (5)
days after the same becomes due hereunder; provided that no more than
two (2) times per twelve (12) month period Landlord shall deliver
written notice to Tenant that the Rental is more than five (5) days
past due and Tenant shall have (5) days from the date such notice is
sent to pay such Rental;
	 
	 	(ii)	 	The Leased Premises are deserted, vacated for
more than thirty (30) days, or not used as regularly or consistently as
would normally be expected for similar premises put to general office
use, even though the Tenant continues to pay the stipulated monthly
rent;
	 
	 	(iii)	 	Failure by Tenant to observe or perform any of
the covenants in respect of assignment and subletting set forth in
Article VIII;
	 
	 	(iv)	 	Failure by Tenant to cure forthwith,
immediately after receipt of notice from Landlord, any hazardous
condition which Tenant has created or permitted in violation of law or
of this Lease;
	 
	 	(v)	 	Failure by Tenant to complete, execute and
deliver any instrument or document required to be completed, executed
and delivered by Tenant pursuant to Section 7.08 or Section 7.09 of
this Lease, within ten (10) days after the initial written demand
therefor to Tenant;
	 
	 	(vi)	 	Failure by Tenant to observe or perform any
other covenant, agreement, condition or provision of this Lease, if
such failure shall continue for thirty (30) days after written notice
thereof from Landlord to Tenant; provided that such thirty (30) day
period shall be extended for the time reasonably required to complete
such cure, if such failure cannot reasonably be cured within said
thirty (30) day period and Tenant commences to cure such failure within
said thirty (30) day period and thereafter diligently and continuously
proceeds to cure such failure;
	 
	 	(vii)	 	The levy upon execution or the attachment by legal process of
the leasehold interest of Tenant, or the filing or creation of a lien
in respect of such leasehold interest, which lien shall not be released
or discharged within fifteen (15) days from the date of such filing;





26









 






	 	(viii)	 	Tenant or any guarantor of Tenant’s obligations under this Lease
becomes insolvent or bankrupt or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the benefit
of creditors, or applies for or consents to the appointment of a
trustee or receiver for all or a major part of its property;
	 
	 	(ix)	 	A trustee or receiver is appointed for Tenant,
any guarantor of Tenant’s obligations under this Lease or for a major
part of either party’s property and is not discharged within ninety
(90) days after such appointment;
	 
	 	(x)	 	Any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding for relief
under any bankruptcy law or similar law for the relief of debtors, is
instituted (A) by Tenant or any guarantor of Tenant’s obligations under
this Lease, or (B) against Tenant or any guarantor of Tenant’s
obligations under this Lease and is allowed against it or is consented
to by it or is not dismissed within sixty (60) days after such
institution;
	 
	 	(xi)	 	Tenant’s repeated or continued failure to
timely pay any Rental due Landlord hereunder where such failure shall
continue or be repeated for two (2) consecutive months, or for a total
of four (4) months in any period of twelve (12) consecutive months; or
	 
	 	(xii)	 	Tenant’s repeated failure to observe or
perform any of the other covenants; terms or conditions hereof more
than six (6) times, in the aggregate, in any period of twelve (12)
consecutive months.





          (b) Upon the occurrence of an Event of Default, Landlord shall have the option to do and
perform any one or more of the following in addition to, and not in limitation of, any other remedy
or right permitted it by law or in equity or by this Lease:





	 	(i)	 	Landlord, with or without terminating this Lease, may immediately
or at any time thereafter re-enter the Leased Premises and correct or
repair any condition which shall constitute a failure on Tenant’s part
to keep, observe, perform, satisfy, or abide by any term, condition,
covenant, agreement, or obligation of this Lease or of the Rules and
Regulations now in effect or hereafter adopted or of any notice given
Tenant by Landlord pursuant to the terms of this Lease, and Tenant
shall fully reimburse and compensate Landlord on demand.
	 
	 	(ii)	 	Landlord, with or without terminating this Lease, may
immediately or at any time thereafter demand in writing that Tenant
vacate the





27









 






	 	 	 	Leased Premises and thereupon Tenant shall vacate the Leased Premises
and remove therefrom all property thereon belonging to or placed on the
Leased Premises by, at the direction of, or with consent of Tenant
within ten (10) days of receipt by Tenant of such notice from Landlord,
whereupon Landlord shall have the right to re-enter and take possession
of the Leased Premises. Any such demand, re-entry and taking possession
of the Leased Premises by Landlord shall not of itself constitute an
acceptance by Landlord of a surrender of this Lease or of the Leased
Premises by Tenant and shall not of itself constitute a termination of
this Lease by Landlord.
	 
	 	(iii)	 	Landlord, with or without terminating this
Lease, may immediately or at any time thereafter, re-enter the Leased
Premises and remove therefrom Tenant and all property belonging to or
placed on the Leased Premises by, at the direction of, or with consent
of Tenant. Any such re-entry and removal by Landlord shall not of
itself constitute an acceptance by Landlord of a surrender of this
Lease or of the Leased Premises by Tenant and shall not of itself
constitute a termination of this Lease by Landlord.
	 
	 	(iv)	 	Landlord, with or without terminating this
Lease, may immediately or at any time thereafter relet the Leased
Premises or any part thereof for such time or times, at such rental or
rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable, and Landlord may make any
alterations or repairs to the Leased Premises which it may deem
necessary or proper to facilitate such reletting; and Tenant shall pay
all costs of such reletting including but not limited to the cost of
any such alterations and repairs to the Leased Premises, attorneys’
fees, leasing inducements, and brokerage commissions; and if this Lease
shall not have been terminated, Tenant shall continue to pay all rent
and all other charges due under this lease up to and including the date
of beginning of payment of rent by any subsequent tenant of part or all
of the Leased Premises, and thereafter Tenant shall pay monthly during
the remainder of the term of this Lease the difference, if any, between
the rent and other charges collected from any such subsequent tenant or
tenants and the rent and other charges reserved in this Lease, but
Tenant shall not be entitled to receive any excess of any such rents
collected over the rents reserved herein.
	 
	 	(v)	 	Landlord may immediately or at any time
thereafter terminate this Lease, and this Lease shall be deemed to have
been terminated upon receipt by Tenant of written notice of such
termination; upon such termination Landlord shall recover from Tenant
all damages Landlord may suffer by reason of such termination
including, without




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	 	 	 	limitation, unamortized sums expended by Landlord for leasing
commissions and construction of tenant improvements, all arrearages
in rentals, costs, charges, additional rentals, and reimbursements,
the cost (including court costs and attorneys’ fees) of recovering
possession of the Leased Premises, the cost of any alteration of or
repair to the Leased Premises which is necessary or proper to
prepare the same for reletting and, in addition thereto, Landlord at
its election shall have and recover from Tenant either (A) an amount
equal to the excess, if any, of the total amount of all rents and
other charges to be paid by Tenant for the remainder of the term of
this Lease over the then reasonable rental value of the Leased
Premises for the remainder of the term of this Lease, or (B) the
rents and other charges which Landlord would be entitled to receive
from Tenant pursuant to the provisions of Section 7.01(b)(iv) if the
Lease were not terminated. Such election shall be made by Landlord
by serving written notice upon Tenant of its choice of one of the
two said alternatives within thirty (30) days of the notice of
termination.





          (c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the
provisions of this Lease, Tenant hereby waives all claims for damages which may be caused by such
re-entry or termination by Landlord. Tenant shall and does hereby indemnify and hold Landlord
harmless from any loss, cost (including court costs and attorneys’ fees), or damages suffered by
Landlord by reason of such re-entry or termination. No such re-entry or termination shall be
considered or construed to be a forcible entry.




          (d) The exercise by Landlord of any one or more of the rights and remedies provided in this
Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights
and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at
the election of Landlord, be exercised alternatively, successively, or in any other manner and are
in addition to any other rights provided for or allowed by law or in equity.




          (e) No act by Landlord with respect to the Leased Premises shall terminate this Lease,
including, but not limited to, acceptance of the keys, institution of an action for detainer or
other dispossessory proceedings, it being understood that this Lease may only be terminated by
express written notice from Landlord to Tenant, and any reletting of the Leased Premises shall be
presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides
otherwise in writing to Tenant.




     7.02. Insolvency or Bankruptcy. The appointment of a receiver to take possession
of all or substantially all of the assets of Tenant or any guarantor of Tenant’s obligations under
this Lease, or any general assignment by Tenant or any guarantor of Tenant’s obligations under this
Lease for the benefit of creditors, or any action taken or suffered by Tenant or any guarantor of
Tenant’s obligations under this Lease under any insolvency, bankruptcy, or reorganization act,
shall, at



29









 




Landlord’s option, constitute a breach of this Lease by Tenant. Upon the happening of any such
event or at any time thereafter, this Lease shall terminate five (5) days after written notice of
termination from Landlord to Tenant. In no event shall this Lease be assigned or assignable by
operation of law or by voluntary or involuntary bankruptcy proceedings or otherwise and in no event
shall this Lease or any rights or privileges hereunder be an asset of Tenant under any bankruptcy,
insolvency, or reorganization proceedings.




     7.03. Late Payments. Tenant shall pay, as a one (1) time late charge on each
installment of any Rental owed by Tenant hereunder that is not paid when due, an amount equal to
five percent (5%) of the amount due for each and every thirty (30) day period that said amount
remains unpaid (but in no event shall the amount of such late charge exceed an amount based upon
the highest legally permissible rate chargeable at any time by Landlord under the circumstances).
Should Tenant make a partial payment of past due amounts, the amount of such partial payment shall
be applied first to reduce all accrued and unpaid late charges, in inverse order of their maturity,
and then to reduce all other past due amounts, in inverse order of their maturity.



     7.04. Attorney’s Fees. If either party initiates any action to enforce its rights
under this Lease or the terms hereof, the prevailing party shall be entitled to collect from the
non-prevailing party all court costs, reasonable attorneys fees and litigation expenses, including,
but not limited to, costs of depositions and expert witnesses, that Landlord incurs in connection
with such action.



     7.05. Waiver of Homestead. Tenant hereby waives and renounces all homestead or
exemption rights which Tenant may have under or by virtue of the Constitutions and Laws of the
United States, the State of Tennessee, and any other State as against any debt or sum Tenant may
owe Landlord under this Lease and hereby transfers, conveys, and assigns to Landlord all homestead
or exemption rights which maybe allowed or set apart to Tenant, including such as may be set apart
in any bankruptcy proceeding, to pay any debt or sum owing by Tenant to Landlord hereunder.



     7.06. No Waiver of Rights. No failure or delay of Landlord to exercise any right or
power given it herein or to insist upon strict compliance by Tenant of any obligation imposed on it
herein and no custom or practice of either party hereto at variance with any term hereof shall
constitute a waiver or a modification of the terms hereof by Landlord or any right it has herein to
demand strict compliance with the terms hereof by Tenant. No waiver of any right of Landlord or any
default by Tenant on one occasion shall operate as a waiver of any of Landlord’s other rights or of
any subsequent default by Tenant. No express waiver shall affect any condition, covenant, rule,
or regulation other than the one specified in such waiver and then only for the time and
in the manner specified in such waiver. No person has or shall have any authority to waive any
provision of this Lease unless such waiver is expressly made in writing and signed by an authorized
officer of Landlord.



     7.07. Holding Over. In the event of holding over by Tenant after expiration or
termination of this Lease without the written consent of Landlord, Tenant shall pay as liquidated
damages, solely for such holding over, one hundred and fifty percent of the Rental that would have
been payable if this Lease had not so terminated or expired for the first two (2) months of the
holdover period, and double the Rental for the remainder of the holdover period. No holding over by
Tenant after the



30









 




term of this Lease shall be construed to extend this Lease, and Tenant shall be deemed a
tenant at will, terminable on five (5) days notice from Landlord. In the event of any unauthorized
holding over, Tenant shall indemnify Landlord against all claims for damages by any other tenant to
whom Landlord shall have leased all or any part of the Leased Premises effective upon the
termination of this Lease. Any holding over with the express written consent of Landlord shall
thereafter constitute this Lease to be a lease from month to month (terminable by either party on
thirty (30) days notice) at a Base Rental, Tenant’s Forecast Additional Rental, and all other sums
required to be paid by Tenant prior to the expiration or termination of this Lease as may be
determined by Landlord.




     7.08. Subordination.



          (a) Landlord may have heretofore or may hereafter encumber with a mortgage, deed of trust,
deed to secure debt, financing statement or other security interests (collectively, a “Mortgage”)
the Land, the Project or any part thereof or any interest therein, may sell and lease back the
Land, the Project or any part thereof, and may encumber the leasehold estate under such a sale and
leaseback arrangement with a Mortgage. (The holder of any Mortgage is herein called a “Mortgagee.”
A lease creating Landlord’s interest in the Land, the Project or part thereof is herein called a
“Ground Lease” and the lessor under any such Ground Lease is herein called a “Ground Lessor.”) This
Lease and the rights of Tenant hereunder shall be and are hereby expressly made subject to and
subordinate at all times to any Mortgage and to any Ground Lease now or hereafter existing, and to
all amendments, modifications, renewals, extensions, consolidations and replacements thereof, and
to all advances made or hereafter to be made upon the security thereof, provided, however, that the
Mortgagee or Ground Lessor shall not, so long as Tenant shall not be in default under this Lease,
disturb Tenant in its possession of the Leased Premises or terminate Tenant’s rights hereunder.
Tenant agrees to execute and deliver to Landlord such further instruments, including a
subordination, nondisturbance and attornment agreement in a form acceptable to the Mortgagee or
Ground Lessor, consenting to or confirming the subordination of this Lease to any Mortgage and to
any Ground Lease and containing such other provisions which may be requested in writing by Landlord
within ten (10) days after Tenant’s receipt of such written request.




          (b) Tenant agrees that if Landlord defaults in the performance or observance of any covenant
or condition of this Lease required to be performed or observed by Landlord hereunder, Tenant will
give written notice specifying such default by certified or registered mail, postage prepaid, to
any Mortgagee or Ground Lessor of which Tenant has been notified in writing, and before Tenant
exercises any right or remedy which it may have on account of any such default of Landlord, such
Mortgagee or Ground Lessor shall have a reasonable amount of time to cure such default of Landlord,
if such default can be cured without such Mortgagee or Ground Lessor taking possession of the
mortgaged or leased estate, or to obtain possession of the mortgaged or leased estate and then
to cure such default of Landlord, if such default cannot be cured without such Mortgagee
or Ground Lessor taking possession of the mortgaged or leased estate.




          (c) If any Mortgage is foreclosed, or Landlord’s interest under this Lease is conveyed or
transferred in lieu of foreclosure, or if any Ground Lease is terminated:




31









 






	 	(i)	 	No person or entity which as the result of any of the foregoing has
succeeded to the interest of Landlord in this Lease (any such person
or entity being hereafter called a “Successor”) shall be liable for
any default by Landlord or any other matter which occurred prior to
the date such Successor succeeded to Landlord’s interest in this
Lease, nor shall such Successor be bound by or subject to any
offsets or defenses which Tenant may have against Landlord or any
other predecessor in interest to such Successor.
	 
	 	(ii)	 	Upon request of any Successor assuming the
rights of Landlord hereunder, Tenant will attorn to such Successor, as
Landlord under this Lease, subject to the provisions of this Section
7.08(c) and Section 7.08(e), and will execute and deliver such
instruments as may be necessary or appropriate to evidence such
attornment within ten (10) days after receipt of a written request to
do so.
	 
	 	(iii)	 	No Successor shall be bound to recognize any
prepayment by more than thirty (30) days of any Rental payable by
Tenant hereunder.





          (d) Notwithstanding anything to the contrary contained herein, any Mortgagee may subordinate,
in whole or in part, its Mortgage to this Lease by sending Tenant notice in writing subordinating
all or any part of such Mortgage to this Lease, and Tenant agrees to execute and deliver to such
Mortgagee such further instruments consenting to or confirming the subordination of all or any
portion of its Mortgage to this Lease and containing such other provisions which may be requested
in writing by such Mortgagee within ten (10) days after Tenant’s receipt of such written request.




          (e) Whether or not any Mortgage is foreclosed or any Ground Lease is terminated, or any
Mortgagee or Ground Lessor succeeds to any interest of Landlord under this Lease, no Mortgagee or
Ground Lessor shall, have any liability to Tenant for any security deposit paid to Landlord by
Tenant hereunder, unless such security deposit has actually been received by such Mortgagee or
Ground Lessor.




          (f) Should any prospective Mortgagee or Ground Lessor require a modification or modifications
of this Lease, which modification or modifications will not cause an increased cost or expense to
Tenant or in any other way materially and adversely change the rights and obligations of Tenant
hereunder, in the reasonable judgment of Tenant, then and in such event, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents are required therefor and deliver
the same to Landlord within ten (10) days following written request therefor. Should any
prospective Mortgagee or Ground Lessor require execution of a short form of this Lease for
recording (containing, among other customary provisions, the names of the parties, a description of
the Premises and the term of this Lease), Tenant agrees to execute such short form of lease and
deliver the same to Landlord within ten (10) days following the request therefor. Landlord will
reimburse Tenant for Tenant’s reasonable attorneys fees, not to exceed $500.00, for reviewing such
required short form pursuant to this subsection (f).




32









 





          (g) No Mortgagee or Ground Lessor of which Tenant has been notified, in writing, shall be
bound any amendment or modification of this Lease made without the written consent of such
Mortgagee or Ground Lessor.




     7.09. Estoppel Certificate. Tenant agrees that, from time to time upon not less than
fifteen (15) days’ prior request by Landlord, or any existing or prospective Mortgagee or Ground
Lessor, Tenant will, and Tenant will cause any subtenant, licensee, concessionaire or other
occupant of the Leased Premises claiming by, through or under Tenant, to complete, execute and
deliver to Landlord or Landlord’s designee or to any existing or prospective mortgagee or ground
lessor, a written estoppel certificate certifying (i) that this Lease is unmodified and is in full
force and effect (or if there have been modifications, that this Lease, as modified, is in full
force and effect and setting forth the modifications); (ii) the amounts of the monthly installments
of Base Rental, Tenant’s Forecast Additional Rental, Tenant’s Additional Rental Adjustment and
other sums then required to be paid under this Lease by Tenant; (iii) the date to which the Base
Rental, Tenant’s Forecast Additional Rental, Tenant’s Additional Rental Adjustment and other sums
required to be paid under this Lease by Tenant have been paid; (iv) that Landlord is not in default
under any of the provisions of this Lease, or if in default, the nature thereof in detail and what
is required to cure same; and (v) such other information concerning the status of this Lease or the
parties’ performance hereunder reasonably requested by Landlord or the party to whom such estoppel
certificate is to be addressed. If Tenant fails to execute such estoppel certificate within the
time permitted then Landlord shall give written notice thereof to Tenant and if Tenant fails to
execute the same or furnish specific written objections to such certificate within five (5) days
after such notice, then the facts contained therein shall be conclusively presumed to be correct.



ARTICLE VIII.




     8.01. Sublease or Assignment by Tenant.



          (a) The Tenant shall not, without the Landlord’s prior written consent, (i) assign, convey,
mortgage, pledge, encumber, or otherwise transfer (whether voluntarily, by operation of law, or
otherwise) this Lease or any interest hereunder; (ii) allow any lien to be placed upon Tenant’s
interest hereunder; (iii) sublet the Leased Premises or any part thereof; or (iv) permit the use or
occupancy of the Leased Premises or any part thereof by any one other than Tenant. Any attempt to
consummate any of the foregoing without Landlord’s consent shall be void and of no force or effect.
For purposes hereof, the transfer of the ownership or voting rights in a controlling interest of
the voting stock of Tenant (if Tenant is a corporation) or the transfer of a general partnership
interest or a majority of the limited partnership interest in Tenant (if Tenant is a partnership),
at any time throughout the term of this Lease, shall be deemed to be an assignment of this Lease.
Notwithstanding anything to the contrary contained herein, Tenant may assign this lease to an
affiliate, subsidiary, parent company with the same financial strength or Northwestern Mutual Life
Insurance Company (each a “Permitted Transferee”) without the prior consent of, but upon prior
written notice (including, as applicable, financial statements and other documentation of
affiliation) to, Landlord.




33









 





          (b) Notwithstanding anything herein to the contrary, if at any time or from time to time
during the term of this Lease, Tenant desires to sublet all or any portion of the Leased Premises
or assign all or any portion of Tenant’s interest in this Lease, Tenant shall notify Landlord in
writing (hereinafter referred to in this Section as the “Notice”) of the terms of the proposed
subletting or assignment, the identity of the proposed sublessee or assignee, the area proposed to
be sublet or covered by the assignment (hereinafter referred to as “Sublet Space”), and such other
information as Landlord may reasonably request to evaluate Tenant’s request to sublet or assign.
Landlord shall then have the option (i) to terminate this Lease as to the Sublet Space as provided
in subsection (d) hereof or (ii) to allow the proposed sublease or assignment subject only to the
final review for approval as provided in subsection (e) hereof. Landlord’s option to sublet, to
terminate, or to allow the proposed sublease or assignment subject to final review, as the case may
be, shall be exercisable by Landlord in writing within a period of thirty (30) calendar days after
receipt of the Notice and any failure by Landlord to exercise any of such options within said
thirty (30) day period shall be deemed to constitute the election of option (ii) above.




          (c) Intentionally deleted.




          (d) If Landlord elects to terminate this Lease pursuant to Landlord’s options set forth above,
then this Lease shall terminate as to the Sublet Space on the date set forth in Landlord’s notice
to Tenant, which date shall be no less than thirty (30) days and no more than ninety (90) days
after the date of such notice. If the Sublet Space does not constitute the entire Leased Premises
and Landlord exercises its option to terminate this Lease with respect to the Sublet Space, as to
that portion of the Leased Premises which is not part of the Sublet Space, this Lease shall remain
in full force and effect except that Base Rental, Tenant’s Forecast Additional Rental, and Tenant’s
Additional Rental shall be calculated on the difference between the Rentable Square Feet prior to
such termination and the Rentable Square Feet of the Sublet Space. Notwithstanding anything to the
contrary in this subsection (d), if Landlord elects this option to terminate the Lease, Tenant
shall: have a maximum of five (5) days after the date that the notice of such election to terminate
is sent to Tenant in which to rescind its notice of its desire to sublet the Sublet Space.




          (e) If Landlord elects or is deemed to have elected to allow the proposed sublease or
assignment subject to final review, Tenant shall submit to Landlord, within ten (10) calendar days
after receipt of Landlord’s notice of election (or the expiration of said thirty (30)-day period if
no such election is made), a copy of the proposed sublease or assignment, which sublease or
assignment must provide for the assumption of all of Tenant’s obligations under this Lease, and
such additional information concerning the business, reputation and credit-worthiness of the
proposed sublessee or assignee as shall be sufficient to allow Landlord to form a commercially
reasonable judgment with respect thereto. Landlord agrees not to unreasonably withhold its approval
of any proposed sublease or assignment and, in the event Landlord fails to approve or disapprove
any such sublease or assignment within thirty (30) days after Landlord’s receipt of such submission
from Tenant, such sublease or assignment shall be deemed to be approved; provided, however, that if
Landlord approves any proposed sublease or assignment, Landlord shall receive from Tenant as
additional rent hereunder fifty percent (50%) of any rents or other sums received by Tenant
pursuant to said sublease or assignment in excess of the rentals payable to Landlord by Tenant
under this Lease with respect to the Sublet Space (after deducting all of Tenant’s reasonable costs
associated therewith,




34









 




including reasonable brokerage fees and the reasonable cost of remodeling or otherwise improving
the Leased Premises for said sublessee or assignee), as such rents or other sums are received by
Tenant from the approved sublessee or assignee. Landlord may require that any rent or other sums
paid by a sublessee or assignee be paid directly to Landlord. If Landlord approves in writing the
proposed sublessee or assignee and the terms of the proposed sublease or assignment, but a fully
executed counterpart of such sublease or assignment is not delivered to Landlord within sixty (60)
calendar days after the date of Landlord’s written approval, then Landlord’s approval of the
proposed sublease or assignment shall be deemed null and void and Tenant shall again comply with
all the conditions of this Section as if the Notice and options hereinabove referred to had not
been given, received or exercised. If Landlord fails to approve the form of sublease or assignment
or the sublessee or assignee, Landlord shall notify Tenant of its reason not to approve such form
of sublease or assignment and Tenant shall have the right to submit amended forms or other
sublessees or assignees to Landlord to review for approval.




          (f) Notwithstanding the giving by Landlord of its consent to any sublease or assignment with
respect to the Leased Premises, no sublessee or assignee, except a Permitted Transferee, may
exercise any expansion option, right of first refusal option, or renewal option under this Lease
except in accordance with a separate written agreement entered into directly between such sublessee
or assignee and Landlord, and Tenant may not exercise any such right with respect to any space that
Tenant has sublet or assigned, except as to space that Tenant has sublet or assigned to a Permitted
Transferee.




          (g) Notwithstanding the giving by Landlord of its consent to any subletting, assignment or
occupancy as provided hereunder or any language contained in such lease, sublease or assignment to
the contrary, unless this Lease is expressly terminated by Landlord, Tenant shall not be relieved
of any of Tenant’s obligations or covenants under this Lease and Tenant shall remain fully liable
hereunder.




          (h) If, with the consent of the Landlord, the Leased Premises or any part thereof is sublet or
occupied by other than Tenant or this Lease is assigned, Landlord may, after default by Tenant,
collect rent from the subtenant, assignee or occupant, and apply the net amount collected to the
Rental herein reserved. No such subletting, assignment, occupancy, or collection shall be deemed
(i) a waiver of any of Tenant’s covenants contained in this Lease, (ii) a release of Tenant from
further performance by Tenant of its covenants under this Lease, or (iii) a waiver of any of
Landlord’s other rights hereunder.




          (i) In no event shall Tenant assign this Lease or enter into any sublease, license, concession
or other agreement for use, occupancy or utilization of any part of the Leased Premises which
provides for a rental or other payment for such use, occupancy or utilization based in whole or in
part on the income or profits derived by any person from the Leased Premises leased, used, occupied
or utilized (other than an amount based on a fixed percentage or percentages of gross receipts of
sales), and Tenant agrees that all assignments, subleases, licenses, concessions or other
agreements for use, occupancy or utilization of any part of the Leased Premises shall provide that




35









 




the person having an interest in the possession, use, occupancy or utilization of the Leased
Premises shall not enter into any lease, sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Leased Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the income or profits
derived by any person from the Leased Premises leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of gross receipts of sales) and any such
purported assignment, sublease, license, concession or other agreement shall be absolutely void and
ineffective as a conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Leased Premises.




     8.02. Assignment by Landlord. Landlord shall have the right to transfer and assign, in
whole or in part, all its rights and obligations hereunder, in the Building, the Land and all other
property referred to herein, and in such event and upon such transfer and transferee’s assumption
of Landlord’s obligations hereunder (any such transferee to have the benefit of, and be subject to,
the provisions of Sections 8.03 and 8.04 hereof) no further liability or obligation shall
thereafter accrue against Landlord hereunder.



     8.03. Peaceful Enjoyment. Landlord covenants that Tenant shall and may peacefully
have, hold and enjoy the Leased Premises free from hindrance by Landlord or any person claiming by,
through or under Landlord but subject to the other terms hereof, provided that Tenant pays the
rental and other sums herein recited to be paid by Tenant and performs all of Tenant’s covenants
and agreements herein contained. It is understood and, agreed that this covenant and any and all
other covenants of Landlord contained in this Lease shall be binding upon Landlord and its
successors only with respect to breaches occurring during the ownership of the Landlord’s interest
hereunder.



     8.04. Limitation of Landlord’s Personal Liability. Tenant specifically agrees to look
solely to Landlord’s equity interest in the Building for the recovery of any monetary judgment
against Landlord, it being agreed that Landlord (and its partners and shareholders) shall never be
personally liable for any such judgment. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or Landlord’s successors in interest or any suit or action in connection
with enforcement or collection of amounts which may become owing or payable under or on account of
insurance maintained by Landlord.



     8.05. Force Majeure. Landlord and Tenant (except with respect to the payment of Rental
or any other monetary obligation under this Lease, including any obligations arising pursuant to
Exhibit D hereto) shall be excused for the period of any delay and shall not be deemed in
default with respect to the performance of any of the terms, covenants and conditions of this Lease
when prevented from so doing by a cause or causes beyond the Landlord’s or Tenant’s (as the case
may be) control (excluding financial inability to perform), which shall include, without
limitation, all labor disputes, governmental regulations or controls, fire or other casualty,
inability to obtain any material or services, acts of God, or any other cause not within the
reasonable control of Landlord or Tenant (as the case maybe); provided, however, that any delay or
prevention caused by Tenant Delay Items (defined in Exhibit D) shall be deemed to be due to
a cause or causes within Tenant’s control.



36









 





ARTICLE IX.




     9.01. Notices. Any notice or other communications required or permitted to be given
under this Lease must be in writing and shall be effectively given or delivered if (i) hand
delivered to the addresses for Landlord and Tenant stated below, (ii) sent by certified or
registered United States Mail, return receipt requested, to said addresses, or (iii) sent by
nationally recognized overnight courier (such as Federal Express, UPS Next Day Air or Airborne
Express), with all delivery charges paid by the sender and signature required for delivery, to said
address. Any notice mailed shall be deemed to have been given upon receipt or refusal thereof.
Notice effected by hand delivery shall be deemed to have been given at the time of actual delivery.
Either party shall have the right to change its address to which notices shall thereafter be sent
and the party to whose attention such notice shall be directed by giving the other party notice
thereof in accordance with the provisions of this Section 9.01. The initial addresses of the
parties for purposes of this Lease are:




			
	               To:                     	 	Hines Interests Limited Partnership

70 West Madison, Suite 440

Chicago, IL 60602-4205

Attn: C. Kevin Shanahan and Thomas J. Danilek

Telecopy: (312) 346-4180






			
	               With a copy to:	 	Hines Interests Limited Partnership

2800 Post Oak Boulevard, 50th Floor

Houston, TX 77056-6118

Attn: Jeffrey C. Hines and C. Hastings Johnson

Telecopy: (713) 966-2020






			
	               With copy to:   	 	Nashville Hines Development, LLC

Property Management Office

2525 West End Avenue

Nashville, TN 37203

Attn: Project Manager






			
	               Tenant:              	 	Robert W. Baird & Co. Incorporated

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

Attn: D. Michael Schaefer, First Vice President






			
	               With a copy to:	 	Robert W. Baird & Co. Incorporated

2525 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Attn: Branch Manager





37









 




Tenant shall also send a copy of each such notice to each Mortgagee that notifies Tenant in writing
of its interest and the address to which notices are to be sent.




     9.02. Miscellaneous.



          (a) This Lease shall be binding upon and inure to the benefit of the successors and assigns of
Landlord, and shall be binding upon and inure to the benefit of Tenant, its successors, and, to the
extent assignment may be approved by Landlord hereunder, Tenant’s assigns. Where appropriate the
pronouns of any gender shall include the other gender, and either the singular or the plural shall
include the other.




          (b) All rights and remedies of Landlord and Tenant under this Lease shall be cumulative and
none shall exclude any other rights or remedies allowed by law. This Lease is declared to be a
Tennessee contract, and all of the terms hereof shall be construed according to the laws of the
State of Tennessee.




          (c) This Lease may not be altered, changed or amended, except by an instrument in writing
executed by all parties hereto. Further, the terms and provisions of this Lease shall not be
construed against or in favor of a party hereto merely because such party is the “Landlord” or the
“Tenant” hereunder or such party or its counsel is the draftsman of this Lease.




          (d) If Tenant is a corporation, partnership or other entity, Tenant warrants that all consents
or approvals required of third parties (including but not limited to its Board of Directors or
partners) for the execution, delivery and performance of this Lease have been obtained and that
Tenant has the right and authority to enter into and perform its covenants contained in this Lease.
Likewise, if Landlord is a corporation, partnership or other entity, Landlord warrants that all
consent or approvals required of third parties (including but not limited to its Board of Directors
or partners) for the execution, delivery and performance of this Lease have been obtained and that
Landlord has the right and authority to enter into and perform its covenants contained in this
Lease.




          (e) IN THE EVENT LANDLORD COMMENCES ANY PROCEEDINGS FOR NONPAYMENT OF RENT OR ANY OTHER
AMOUNTS PAYABLE HEREUNDER, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE OR
DESCRIPTION IN ANY SUCH PROCEEDING, UNLESS THE FAILURE TO RAISE THE SAME WOULD CONSTITUTE A WAIVER
THEREOF. THIS SHALL NOT, HOWEVER, BE CONSTRUED AS A WAIVER OF TENANT’S RIGHT TO ASSERT SUCH CLAIMS
IN ANY SEPARATE ACTION BROUGHT BY TENANT.




          (f) Wherever in this Lease there is imposed upon Landlord the obligation to use best or
reasonable efforts or due diligence, Landlord shall be required to do so only to the extent the
same is economically feasible and otherwise will not impose upon Landlord extreme financial or
other burdens.




          (g) If any term or provision of this Lease, or the application thereof to any person or
circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the




38









 




application of such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be
valid and shall be enforceable to the extent permitted by law.




          (h) Time is of the essence in this Lease.




          (i) This Lease agreement shall not convey any leasehold estate from Landlord to Tenant.
Landlord and Tenant hereby agree that this Lease creates only the interest of a usufruct in Tenant
which may not be levied upon or assigned without Landlord’s permission.




          (j) Tenant represents and warrants to Landlord that Tenant did not deal with any broker in
connection with this Lease other than The John Buck Company and Eakin & Smith Real Estate
(collective referred to herein as “Broker”), who shall be paid by Landlord. Tenant shall indemnify,
defend and hold Landlord, Landlord’s beneficiaries, the managing agent of the Building, the leasing
agent of the Building and their respective agents, partners and employees and the Building harmless
of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses
(including, without limitation, court costs, reasonable attorneys’ fees and litigation expenses)
arising from any claims or demands of any other broker or brokers or finders for any
commission alleged to be due such other broker or brokers or finders claiming to have dealt with
Tenant in connection with this Lease or with whom Tenant hereafter deals or whom Tenant employs.
The provisions of this subsection shall survive the expiration or earlier termination of this
Lease.




          (k) If Tenant comprises more than one person, corporation, partnership, limited liability
company or other entity, the liability hereunder of all such persons, corporations, partnerships or
other entities shall be joint and several.




          (1) Landlord’s receipt of any Rental payable by Tenant hereunder with knowledge of the breach
of a covenant or agreement contained in this Lease shall not be deemed a waiver of the breach. No
acceptance by Landlord of a lesser amount than the installment of Rental which is due shall
be considered, nor shall any endorsement or statement on any check or any letter accompanying
any check or payment be deemed, an accord and satisfaction. Landlord may accept a check or payment
without prejudice to Landlord’s right to recover the balance due or to pursue any other remedy
provided in this Lease.




          (m) Wherever Landlord’s consent or approval is required pursuant to the terms of this Lease,
unless provided otherwise in the specific provision, Landlord may grant or withhold the same in
Landlord’s sole and absolute discretion, except as otherwise expressly provided herein.




          (n) Tenant covenants and agrees to keep strictly confidential all of the financial terms of
this Lease and not to disseminate any such information to any third parties without the prior
written consent of Landlord. Tenant further covenants and agrees that, at all times after the date
of this Lease and prior to the Commencement Date, unless consented to in writing by Landlord, no
press release or other public disclosure concerning this Lease shall be made by Tenant.




39









 





          (o) Submission of this instrument for examination shall not constitute a reservation of or
option to lease the Leased Premises or in any manner bind Landlord, and no lease or obligation on
Landlord shall arise until this instrument is signed and delivered by Landlord and Tenant;
provided, however, the execution and delivery by Tenant of this Lease to Landlord, or the managing
agent of the Building or the leasing agent of the Building shall constitute an irrevocable offer by
Tenant to lease the Premises on the terms and conditions herein contained, which offer may not be
revoked for fifteen (15) days after such delivery.




          (p) Financial Statements. Tenant shall, upon Landlord’s reasonable requests from time
to time, deliver to Landlord such financial information regarding Tenant as may be reasonably
available.




     9.03. Tenant’s Right of First Offer. Provided at the time Tenant exercises its Right
of First Offer, Tenant shall not be in default of any of its obligations under this Lease and no
material adverse change shall have occurred in Tenant’s financial condition, Landlord agrees that
it shall not lease any of the remaining space on the ninth floor of the Building, containing
approximately 11,000 RSF, prior to August 1, 2000, and during such time Tenant shall have the
option to lease all of such space on the same terms and conditions as are set
forth herein for the initial Leased Premises. If Tenant has not elected to lease such space,
Landlord may lease the same after August 1, 2000, provided that Landlord shall notify Tenant if
Landlord intends to enter into a lease for any of such space prior to September 1, 2000, and Tenant
shall have five (5) business days after its receipt of such notice to elect to lease the balance of
the ninth floor on the terms and conditions set forth herein for the Initial Leased Premises. If
Tenant does not exercise such right by September 1, 2000, such right shall terminate. Landlord
hereby agrees that after September 1, 2000, Landlord shall not enter into a lease for the remaining
space on the Ninth Floor with any other tenant with a term of longer than five (5) years (a “Ninth
Floor Lease”). If Landlord does enter into such a Ninth Floor Lease, Tenant shall have a one (1)
time right of first offer (the “Right of First Offer”), to lease the leased premises as defined in
such Ninth Floor Lease (excluding any roof or storage space rights contained in such Ninth Floor
Lease)(an “Available Space”) subject to the following:



     (a) At the time Tenant exercises a Right of First Offer and at the time the Available Space is
available for leasing by Tenant:




(i) Tenant shall not be in default of any of its obligations under this Lease.




(ii) No material adverse change shall have occurred in Tenant’s financial condition.



     (b) Landlord shall not offer any such Available Space on the open market unless and until
Landlord has first notified Tenant in writing (the “Offer Notice”) at least ten (10) months prior
to the Ninth Floor Lease expiration date that the Ninth Floor Lease is set to expire and Landlord
intends to offer the designated Available Space to third parties. Within five (5) business days
after a request from Tenant, Landlord shall advise Tenant of the then current Market Rental Rate
for such space. Landlord shall not offer such Available Space on the open market until



40









 




thirty (30) days have lapsed from the date of the Offer Notice without Tenant having notified
Landlord in writing of Tenant’s desire to lease all of the designated Available Space (“Tenant’s
Acceptance”). The Offer Notice shall:





(i) Describe the amount and location of the Available Space that will become
available and attach a floor plan showing the Available Space cross-hatched; and




(ii) Contain the date on which the Available Space will be available for leasing by
Tenant.



          (c) If Tenant delivers Tenant’s Acceptance within the thirty (30) days following the Offer
Notice, the Available Space shall become a part of the Leased Premises and shall be leased by
Tenant at the then current Market Rental Rate for similar expansion space. Market Rental Rate shall
be mutually agreed upon by Landlord and Tenant, taking into account floor location, leasehold
improvements, allowances for expansion space in the Building, the remaining term of the Lease, age
and location of the Building within the market, and the total square footage within the Building
leased and occupied by Tenant. The commencement date of the lease for each particular Available
Space shall be the earlier of (i) ninety (90) days after delivery of such Available Space if it is
first generation space, or sixty (60) days after delivery if it has previously been occupied by a
tenant; or (ii) Tenant’s occupancy of the Available Space, and the termination date shall be the
same as for the Leased Premises. The Available Space shall be delivered to the Tenant broom clean,
free of tenants or other occupants. If the Available Space has not previously been leased then it
shall be delivered to Tenant in Base Building Shell Condition.




          (d) If Tenant declines or fails to effectively exercise the Right of First Offer as provided
herein, Landlord shall thereafter be free to offer the Available Space on the open market and to
lease some or all of that Available Space at any time without regard to the restrictions in this
Section and on whatever terms Landlord may decide in its sole discretion.




          (e) Landlord shall use commercially reasonable efforts to remove any holdover tenants or other
occupants from the Available Space Tenant leases under this Section. Although Landlord shall not be
liable for any damages for any holdover tenant or other occupant (unless Landlord is not using
commercially reasonable efforts to remove the holdover tenant or other occupant), all of Tenant’s
obligations regarding the Available Space shall be abated until the holdover tenant or other
occupant is removed and the commencement date for the Available Space shall be delayed until the
holdover tenant or other occupant is removed, following which Tenant’s occupancy shall commence as
provided in Section 9.03(d), above.




     9.04. Renewal Option. Subject to the provisions hereinafter set forth, Landlord
hereby grants to Tenant an option to extend the Term of this Lease on the same terms, conditions
and provisions as contained in this Lease, except as otherwise provided herein, for one period of
five (5)



41









 




years (the “Renewal Period”) after the expiration of the initial Term, which Renewal Period
shall commence on the day after the expiration date for the initial ten (10) year term (the
“Renewal Period Commencement Date”) and end on the day before the fifth (5) anniversary thereof.





     (a) Said option shall be exercisable by written notice from Tenant to Landlord of
Tenant’s election to exercise said option given not earlier than the date which is
twenty-four (24) months prior to the Renewal Period Commencement Date, nor later than twelve
(12) months prior to such date, time being of the essence. If Tenant’s option is not so
exercised, said option shall thereupon expire.




     (b) Tenant may only exercise said option, and an exercise thereof shall only be
effective, if at the time of Tenant’s exercise of said option and on the Renewal Period
Commencement Date this Lease is in full force and effect and Tenant is not in Default under
this Lease. No sublessee shall be entitled to exercise the renewal option under this Section
9.04.




     (c) Rent per Rentable Square Foot of the Leased Premises payable during the Renewal
Period with respect to all space included in the Leased Premises as of the Renewal Period
Commencement Date shall be equal to the Market Rental Rate for the Building, taking into
account other pecuniary concessions such as rent abatement and tenant improvement
allowances. Landlord shall give Tenant written notice of the proposed Market Rental Rate
within thirty (30) days following written request by Tenant made not earlier than fourteen
(14) months prior to the Renewal Period Commencement Date.




     (d) If Tenant has validly exercised said option, within thirty (30) days after request
by either party hereto Landlord and Tenant shall enter into a written amendment to this
Lease confirming the terms, conditions and provisions applicable to the Renewal Period as
determined in accordance herewith, with such revisions to the rental provisions of this
Lease as may be necessary to conform such provisions to the Market Rental Rate.



     9.05. Satellite Dish Subject to the terms and conditions hereinafter set forth,
Landlord grants to Tenant, during the Term, the right to install, maintain, repair and replace one
(1) satellite or microwave dish relating to Tenant’s business in the Leased Premises on the roof of
the Building where designated by Landlord, for receiving signals relayed by satellite and, except
as otherwise provided, to connect such equipment through existing mechanical shafts to the Leased
Premises. Such satellite dish or microwave dish shall be no greater than twenty-four (24) inches in
diameter.



     (a) If Tenant desires to exercise such right, Tenant shall give a written notice to that
effect to Landlord (a “Satellite Notice”). The Satellite Notice shall specify in detail the
requirements of such installation, all of which shall be subject to the approval of Landlord.
Landlord shall not unreasonably withhold its approval provided that the use of the roof for such
purposes shall (i) be compatible with Landlord’s use of the roof, (ii) be subject to Landlord’s
supervision, (iii) be non-penetrating and shall not adversely affect the structural safety or
integrity of the Building, (iv) meet reasonable aesthetic and other standards of Landlord and
Landlord’s architect and (v) satisfy other



42









 




conditions hereinafter set forth. If Landlord approves Tenant’s use of the roof for such
purposes, Landlord shall designate by written notice to Tenant an appropriate area for such
installation (“Installation Area”). Landlord shall use good faith efforts to select an Installation
Area which will be consistent with adequate reception. The right granted to Tenant under this
Section shall be subject to the following conditions precedent: (1) there must be available space
on the roof and existing mechanical shafts from the roof to the Leased Premises for Tenant’s
proposed installation; (2) Landlord’s architect shall approve of the location of the Installation
Area and the appearance of those portions of the equipment to be visible to the public; (3)
Landlord’s structural engineer shall approve of the location of the Installation Area, the design
and specifications of the equipment, the load caused on the roof of the Building by such equipment,
and other structural requirements of the installation; (4) the installation must comply with the
applicable requirements of any covenant, condition or restriction of record and any municipal,
county, state, federal or other governmental ordinance, law, rule or regulation including, but not
limited to zoning ordinances; and (5) the installation and operation of such equipment shall not
interfere with the safety or operations of the Building or reduce or affect its structural
integrity, and shall comply with the terms of this lease.




     (b) Tenant shall pay all costs and expenses of any kind related to the installation,
operation, maintenance or removal of its communication equipment, including any reasonable
architect’s or engineering fees incurred in connection with required approvals, but Tenant shall
not be obligated to pay any fee for the roof or access thereto. Tenant shall maintain all such
equipment in good repair. Tenant shall be responsible for any damage, loss or injury to the
Building or other property and for any injury to persons caused by installation, operation,
maintenance or removal of such equipment. Upon the expiration or earlier termination of this Lease,
Tenant shall, at its sole cost and expense, (i) remove the communication equipment and restore that
portion of the roof of the Building where the communications equipment was located to its condition
existing prior to the installation thereof, ordinary wear and tear excepted, and (ii) repair any
damage or destruction caused by such removal. Restoration and repair herein required to be
performed by Tenant shall be completed under the supervision of Landlord or Landlord’s
representative. Notwithstanding the fore-going, Tenant shall not remove, and shall not be
reimbursed for the cost thereof, any portion of the communication equipment which is
embedded or permanently attached in or to the Building including, but not limited
to, cables and other wiring, unless Landlord so directs otherwise. Tenant shall enter into such
roof license agreement with respect to Tenant’s roof rights under this Section 9.05 as may be
reasonably required by Landlord. To the extent not expressly prohibited by law, Tenant agrees to
hold Landlord and its constituent members, and each such party’s respective agents, servants and
employees, harmless and to indemnify each of them against claims and liabilities, including
reasonable attorney’s fees, for injuries to persons and damage to or theft, misappropriation or
loss of property occurring in or about the Building and arising out of the installation,
maintenance, operation, removal or other use of the communications equipment installed hereunder.



43









 





          IN WITNESS WHEREOF, the parties hereto have executed and sealed this Lease as of the date
aforesaid.



	 	 	 	 	 
	 	LANDLORD:

NASHVILLE HINES DEVELOPMENT, LLC

 	 
	 	By:  	/s/ Tom Owens 	 
	 
	 	Name:  	Tom Owens 	 
	 
	 	Title:  	Manager 	 
	 
	 
	 	TENANT:

ROBERT W. BAIRD & CO. INCORPORATED
 	 
	 	By:  	/s/ James D. Bell 	 
	 
	 	Name:  	James D. Bell 	 
	 
	 	Title:  	Man. Dir. & CAO 	 
	 



44








 





EXHIBIT A — SITE PLAN AND LOCATION OF THE BUILDING




Exhibit A — Page 1





 









 







EXHIBIT A-1— DESCRIPTION OF LAND




Tract 1 / 3.01 Acres



Being a parcel of land in Nashville, First Civil District, Eighteenth Councilmanic District,
Davidson County, Tennessee, generally located on the southerly side of West End Avenue between
Twenty-Fifth Avenue South and Natchez Trace, being part of Lot 1, Vanderbilt University
Consolidation Plat of record in Plat Book 9700, page 522, R.O.D.C. and being more particularly
described as follows:



Beginning at a mag nail (new) in the westerly right-of-way line of Twenty-Fifth Avenue South
(50-foot right-of-way) at the southerly terminus of a curve return to the southerly right-of-way
line of West End Avenue (right-of-way varies);



THENCE, along said westerly right-of-way line of Twenty-Fifth Avenue South, S 36° 59' 53" E, 179.61
to an iron pipe (old) at the northeast corner of property conveyed to Vanderbilt University by deed
of record in Book 5157, page 991, R.O.D.C.;



THENCE, along the northerly line of said property, S 53° 09' 57" W, 150.00 feet to an “x” in conc.
wall;



THENCE, along the westerly line of said property, S 36° 59' 53" E, 179.81 feet to an iron pin (set)
in the northerly line of a fifty foot wide ingress and egress easement;



THENCE, along the northerly line of said ingress and egress easement the following calls; S 53° 08'
25" W, 90.85 feet to an iron pin (set) at the beginning of a curve to the left;



Along said curve to the left, 136.18 feet to a railroad spike (new), said curve-having a central
angle of 17° 56' 44", a radius of 434.80 feet, a tangent of 68.65 feet and a chord of S 44° 10'
03." W, 135.63 feet;



S 35° 11' 41" W, 8.07 feet to a mag nail (new);



THENCE, leaving the northerly line of said ingress .and egress easement and along a severance line
the following calls:



N 36° 59' 13" W, 103.37 feet to a mag nail (new);



S 53° 00' 47" W, 43.57 feet to a mag nail (new);



N 36° 59' 13" W, 3.57 feet to a mag nail (new);



S 53° 00' 47" W, 12.00 feet to a mag nail (new);



N 36° 59' 13" W, 285.90 feet to a mag nail (new) in the southerly right-of-way line of West End
Avenue; THENCE, along said right-of-way the following calls;



N 54° 13' 39" E, 33.07 feet to a mag nail (new);

N 53° 00' 47" E, 394.99 feet to an “x” in conc. (new) at the westerly terminus of a curve
return to the right to the westerly right-of-way line of Twenty-Fifth Avenue South; Along said
curve to the right 15.71 feet to




Exhibit A-1 — Page 1





 









 






the point of beginning, said curve having a central angle of 89° 59' 19", a radius of 10.00
feet, a tangent of 10.00 feet and a chord of S 81° 59' 33" E, 14.14 feet;



Containing 3.01 acres, more or less.




Exhibit A-1 — Page 2





 









 







EXHIBIT B — FLOOR PLAN OF LEASED PREMISES




Exhibit B — Page 1





 









 













 









 













 









 







EXHIBIT C   BASE BUILDING SHELL CONDITION



The following Base Building Condition shall be provided by Landlord at Landlord’s sole cost and
shall not be deducted from the Tenant Construction Allowance:



1. Service Core





	 	a.	 	Stairways in compliance with code.
	 
	 	b.	 	Electrical, telephone, and mechanical rooms.
	 
	 	c.	 	Finished men’s and women’s washrooms.
	 
	 	d.	 	Domestic water and drainage.




2. Core Doors





	 	a.	 	Building standard core doors for stairwells, electrical, mechanical, and
telephone rooms and all washrooms.
	 
	 	b.	 	Doors finished and complete with frame, trim, hardware, locking devices,
electric door releases and closers (where applicable).




3. Wall and Windows





	 	a.	 	Curtain wall installed and sealed.
	 
	 	b.	 	Exterior windows installed and sealed.
	 
	 	c.	 	Insulation. from. slab-to-slab installed and sealed.
	 
	 	d.	 	Core walls and elevator lobby walls all installed, sheet rocked, taped, sanded,
patched, filled, dusted and ready to receive primer or other finish.
	 
	 	e.	 	Window blinds,. stacked on the floor, for all exterior windows.




4. Floors





	 	a.	 	Smooth concrete floors with troweled finish within a tolerance of 1/2 inch in
10 feet non-cumulative.
	 
	 	b.	 	Design to support minimum live load of 50 lbs. per square foot, plus 20-lbs.
partition load. Interior core areas are designed for 100 lbs. per square foot live
load.




5. Heating, Ventilating and Conditioned Air (HVAC)





	 	a.	 	Central HVAC systems in place with 11 perimeter zones per floor.

b. HVAC systems to service core.
	 
	 	c.	 	Main air distribution system with primary air loop around the floor; connected
to core; all required fire dampers.
	 
	 	d.	 	Condenser water taps available.
	 
	 	e.	 	Access to general exhaust system for any use by tenant requiring special
exhaust.




6. Electrical service to floors with plug-in type bus risers sized to provide 8.0 watts per useable
square foot of electrical connected load capacity for tenant use above and beyond




Exhibit C — Page 1





 









 








the base building electrical requirements. Of that, 6.0 watts per useable square foot of
electrical connected load capacity will be available in 480/277V panels for tenant use
leaving 2.0 watts per useable square foot available in the bus riser for future tenant
electrical loads. Of the 6.0 watts per useable square foot, 3.0 watts per useable square
foot of electrical connected load capacity will be available in 208/120V panels for tenant
use leaving 3.0 watts per useable square foot of capacity in the 480/277V panels for future
tenant electrical loads. This capacity is part of the 6.0 watts per useable square foot of
power for tenant’s use noted above.


7. Life Safety





	 	a.	 	Sprinkler system installed to code, main loop connected to core and drops in
place with heads installed pursuant to code for an unoccupied floor.
	 
	 	b.	 	Firehouse and extinguisher cabinets installed at each stairwell (or as
otherwise required by code for an unoccupied floor).
	 
	 	c.	 	Exit signs at all stairwells.
	 
	 	d.	 	Smoke detectors, fire extinguishers, fire horns, electric door releases,
speakers, cameras and any other life safety equipment required by code for an
unoccupied floor.






Sleeves in core telephone rooms for telephone access.


All work contained within the core of the floor (i.e., restrooms, HVAC, electrical, condenser
water, elevators, etc.) will be complete prior to tenant’s occupancy but not on the delivery of the
premises for tenant’s construction if delivery occurs prior to September 1, 2000. Connection points
for electrical service, condenser water, HVAC and telecommunications-will be available on the
delivery date but may not be operational until September 1, 2000. Additionally, prior to August 15,
the southwest corner of the floors may be open for the external hoist access. Landlord will use
reasonable efforts during its completion of the Base Building not to interfere with Tenant’s Work.




Exhibit C — Page 2





 









 







EXHIBIT D — CONSTRUCTION OF INITIAL LEASEHOLD IMPROVEMENTS



I. SCHEDULE OF CRITICAL DATES




          The following is a schedule of certain critical dates relating to Landlord’s and Tenant’s
respective obligations with respect to construction of the leasehold improvements for the Leased
Premises.





	 	1.	 	Within five (5) days after the execution of this Lease, (“Initial Space Plan
Delivery Date”) Landlord shall furnish Tenant with its outline building specifications
consistent with Exhibit C sufficient for use by Tenant’s space planner. On or before
the Initial Space Plan Delivery Date, Tenant will prepare and submit for Landlord’s
review a space plan consistent with the requirements of Article IV below (the “Space
Plan”), which Space Plan will be used to prepare the Tenant Working Drawings (defined
below).
	 
	 	2.	 	Within five (5) business days after the Initial Space Plan Delivery Date,
Landlord will advise Tenant of any required changes to. the Initial Space Plan.
Additionally, at Tenant’s request Landlord will meet with Tenant on or before the
Initial Space Plan Review Date to confer informally on certain estimated costs and/or
potential time delays which Landlord may have identified with respect to any
improvements depicted in the initial Space Plan other than the Base Building Shell
Condition described in Exhibit C.
	 
	 	3.	 	Tenant will prepare and deliver to Landlord working drawings for the Leased
Premises consisting of complete sets. of detailed architectural, structural,
mechanical, electrical and plumbing plans and specifications consistent with the
requirements of Article V below (“Tenant Working Drawings”).
	 
	 	4.	 	Within five (5) business days from Landlord’s receipt of the Tenant Working
Drawings, Landlord will review the Tenant Working Drawings as they relate to
coordination with the Building Standard Shell Condition improvements to be constructed
by Landlord. Landlord’s review shall not assess the accuracy or constructability of
the Tenant Working Drawings.
	 
	 	5.	 	Upon receipt of Landlord’s review of the Tenant Working Drawings, Tenant will
revise the Working Drawings to incorporate such revisions into the Final Working
Drawings. The Final Working Drawings shall be submitted to Landlord no later than the
Final Working Drawing Delivery Date. Landlord’s approval of the Tenant Working
Drawings shall acknowledge that the Tenant Working Drawings correctly depict the
proper layout of all improvements desired by Tenant for the Leased Premises.





Exhibit D — Page 1





 









 








	 	6.	 	Tenant may elect to engage Landlord to perform construction coordination
services for a fee not to exceed five percent (5%) of the cost of Tenant’s
Improvements.




II. CERTAIN PROVISIONS RELATING TO CONSTRUCTION





	 	1.	 	The failure of Tenant to comply with the requirements of this Exhibit
D shall constitute a default by Tenant under this Lease.
	 
	 	2.	 	The following provisions shall apply to all work necessary or desirable to
prepare the Leased Premises for initial occupancy by Tenant (the “Tenant Work”):






	 	(a)	 	Tenant’s Work shall be completed by Tenant. Landlord shall
provide the following in connection with Tenant’s Work at reasonable and
competitive rates, but the cost thereof shall be paid by Tenant as a part of
the costs of Tenant’s Work: after hour hoisting ($76.00 per hour) and
electrical power ($200.00 per floor per week)(there will be no fee charged for
vertical transportation during Tenant’s build-out, move-in or move-out in
excess of Landlord’s actual out-of-pocket costs), as provided by the General
Contractor constructing the Base Building.
	 
	 	(b)	 	The architects, engineers and contractors selected by Tenant to
perform Tenant’s Work shall be subject to the reasonable approval of Landlord.
Tenant’s Contractor shall perform Tenant’s Work in a first-class, workmanlike
manner, using only good commercial grades of materials, in accordance with this
Lease and the plans and specifications reasonably (where Landlord may consider,
without limitation, the compatibility and consistency with other tenant’s.
plans) approved hereunder, Landlord’s insurance requirements and with all
applicable governmental laws, ordinances, codes, rules and regulations, and
Tenant’s Work shall be subject to Landlord’s reasonable administrative
supervision. Tenant’s Work shall not commence until the Tenant’s Contractor has
delivered to Landlord a copy of the building permit issued for the Tenant’s
Work and evidence of insurance, both of which are satisfactory to Landlord in
all respects. Upon completion of Tenant’s Work, Tenant shall deliver to
Landlord evidence of payment, contractors’ affidavits and sworn statements,
full and final waivers of lien from contractors and subcontractors for labor,
services and materials and all other documents required by Landlord, together
with record drawings, in both electronic and paper form, reflecting as built
conditions of the Leased Premises.
	 
	 	(c)	 	Tenant shall indemnify, defend by counsel reasonably
acceptable to Landlord and hold harmless Landlord, Landlord’s beneficiaries,
the managing agent of the Project and their respective agents, partners and





Exhibit D — Page 2





 









 








	 	 	 	employees and the Project of, from and against any and all liabilities,
losses, costs, charges, claims, damages, liens, fees and expenses, including
without limitation reasonable attorneys’ fees and expenses, relating to the
Tenant’s Work. Landlord shall permit Tenant and Tenant’s Contractor to have
reasonable access to the Leased Premises immediately upon completion of the
Base Building Shell Condition for purposes of constructing Tenant’s Work,
provided that Tenant and Tenant’s Contractor shall abide by the rules of the
site applicable to all contractors, shall coordinate and schedule their
access to the Premises for labor and materials delivery through the general
contractor for the Building, or the managing agent of the Project if so
directed by Landlord, and shall not interfere with or delay the work of the
general contractor for the Building or any other contractor working in
connection with the Project.
	 
	 	(d)	 	Any entry to the Project, the Building or the Premises by or on
behalf of Tenant or Tenant’s Contractor prior to the Commencement Date shall be
under and subject to all of the terms and provisions of this Lease, the same as
if the Commencement Date had occurred, except that Tenant shall not be
obligated to pay any Base Rent or Additional Rent prior to the Commencement
Date. To the extent not prohibited by law, all entry to the Project, the
Building or the Premises by or on behalf of Tenant or Tenant’s Contractor prior
to the Commencement Date shall be solely at the risk of Tenant and Tenant’s
Contractor, and Landlord, Landlord’s beneficiaries, the managing agent of the
Project and their respective agents, partners and employees shall not be liable
in any way, and Tenant hereby waives and releases them from any liability, for
any injury or damage to or theft, robbery, pilferage, loss or loss of the use
of any property of. Tenant, Tenant’s Contractor or any other person or entity
or any of the Tenant’s Work in or about the Premises or the Project which
occurs during. such period; provided, however, Landlord, Landlord’s
beneficiaries, the managing agent of the Project and their respective. agents,
partners and employees shall be liable, and Tenant does not waive or release
them from liability, for their respective negligence or willful misconduct
which occurs during such period and causes any injury to or death of any
person. The foregoing waiver and release of claim shall be in addition to and
shall not limit or be limited by any other releases or waivers of claims in
this Lease.






	 	3.	 	Except as provided in Paragraph 5, below, Tenant shall pay the cost of all the
Tenant’s Work, including without limitation the cost of all items necessary or
desirable to complete the Tenant’s Work, such as the fees and expenses arising out of
the preparation of Tenant’s Plans and Specifications, the fees and expenses of Tenant’s
Contractor, and the cost of the items described in the second sentence of Paragraph
3(a), above.





Exhibit D — Page 3





 









 








	 	4.	 	Landlord shall pay the Tenant Improvement Allowance to Tenant as follows:
installments of Tenant Improvement Allowance shall be paid by Landlord pro rata on the
basis of the total estimated cost for Tenant’s Work as such costs are incurred by
Tenant; provided, however; it shall be a condition to the obligation of Landlord to pay
amounts pursuant to this Paragraph 5 or Section 5.01(a) that Tenant shall have provided
Landlord with appropriate requests for payment, invoices, contractors’ affidavits and
sworn statements, contractors’ and subcontractors’ lien waivers, and other documents as
may be reasonably required (i) by Landlord to demonstrate the correctness of the amount
requested by Tenant, (ii) to induce the issuer of the policy of title insurance
insuring Landlord’s interest in the Development to issue an endorsement to the policy
of title insurance insuring Landlord’s interest in the Development to be subject to no.
mechanics’ liens or claims therefor resulting from the Tenant’s Work and (iii) to
satisfy any other conditions (including that Tenant demonstrate that it has sufficient
funds in addition to Tenant Improvement Allowance to complete the Tenant’s Work and pay
any invoiced amounts for Tenant’s Work in excess of Tenant’s Improvement Allowance) as
may be reasonably imposed by Landlord. Upon completion of Tenant’s Work, and provided
that Tenant has satisfied all of the conditions for payment of Tenant Improvement
Allowance described in this Paragraph 5 and Section 5.01(a) of the Lease and has taken
possession of all of the Leased Premises for purposes of conducting its business,
Tenant may elect, upon written notice thereof to Landlord delivered within three (3)
months after the Commencement Date, to apply any portion of the Tenant Improvement
Allowance not needed for the payment in full of the cost of Tenant’s Work (such amount
being hereafter referred to as the “Balance”) towards (x) the cost of moving,
installation of telephone, data systems and cabling, furniture, plans and
specifications and professional services, to the extent the same are related to this
lease or Tenant’s moving into the Premises, or until the Balance is applied in full (y)
an abatement of Rent payable under the Lease (after the initial month’s Rent) until the
Balance is applied in full, provided that if Tenant is in default under this Lease at
the time when an installment of Rent is due, such abatement shall instead be deferred
and applied against the next portion of Rent coming due after such default has been
cured.




III. MINIMUM INFORMATION REQUIRED FOR SPACE PLAN




     The Space Plan shall include drawings, plans and specifications prepared by Tenant’s architect
showing the intended design, character and finishes of the Leased Premises, including partitions
and door locations, all in sufficient detail to enable the Tenant Working Drawings to be prepared.


IV. MINIMUM INFORMATION REQUIRED OF INITIAL WORKING DRAWINGS



Floor Plans Indicating:




Exhibit D — Page 4





 









 








	 	1.	 	Location and type of all partitions.
	 
	 	2.	 	Location and types of all doors — indicate hardware and provide keying
schedule.
	 
	 	3.	 	Location and type of glass partitions, windows and doors — indicate framing if
not part of Building Standard Shell Condition.
	 
	 	4.	 	Location of telephone equipment room accompanied by an approval of the
telephone company if required.
	 
	 	5.	 	Indicate critical dimensions necessary for construction, such as millwork,
special partitions, etc.
	 
	 	6.	 	Location of all electrical items — outlets, switches, telephone outlets.
	 
	 	7.	 	Location and type of all non-building electrical items, including lighting.
	 
	 	8.	 	Location and type of equipment that will require special electrical
requirements. Provide manufacturers’ specifications for use and operation.
	 
	 	9.	 	Location, weight per square foot and description of any exceptionally heavy
equipment or filing system exceeding 50 psf live load except in areas designed
specifically for special Tenant loads.
	 
	 	10.	 	Requirement for special air conditioning or ventilation.
	 
	 	11.	 	Type and locations of all finishes.
	 
	 	12.	 	Location and type of plumbing equipment and services.
	 
	 	13.	 	Location and type of kitchen equipment and services.
	 
	 	14.	 	Location of all HVAC controls, fire alarm, security and life safety equipment.
	 
	 	15.	 	Location and type of all graphics. and signage.
	 
	 	16.	 	Location of all Tenant fixtures, furniture and equipment (“FF&E”).
	 
	 	17.	 	Location and size of any floor openings required. Also include structural
loading data for vaults, vault walls, slab depressions, special stairs, file rooms,
elevators, libraries, etc.




Details Showing:





	 	1.	 	All millwork with dimensions and dimensions of all equipment to be built-in.

	 
	 	2.	 	Corridor entrance.
	 
	 	3.	 	Bracing or support of special walls, glass partitions, etc., if desired. If not
included with the Tenant Space Plan, the Building architect will design, at Tenant’s
expense, all support or bracing required.




VI. DEFINITIONS





	 	1.	 	“Initial Space Plan Delivery Date” shall mean the date Tenant delivers to
Landlord a copy for its review and comment an Initial Space Plan as defined for all of
Tenant’s Leased Premises (“Tenant’s Space Plans”).
	 
	 	2.	 	“Initial Space Plan Review Date” shall mean the date Landlord provides Tenant
comments on the Tenant’s initial Space Plan consistent with Section IV, above.





Exhibit D — Page 5





 









 








3. “Final Space Plan Delivery Date” shall mean the date Tenant delivers to Landlord its
final version of Tenant’s Space Plan (“Tenant’s Final Space Plan”), revised to reflect
Landlord’s comments.




4. “Initial Working Drawing Delivery Date” shall mean the date Tenant delivers to Landlord a
fully coordinated and complete set of detailed architectural, structural, mechanical,
electrical and plumbing plans and specifications (“Tenant’s Working Drawings”) based upon
the Tenant’s Final Space Plan.




5. “Initial Working Drawing Review Date” shall mean the date Landlord provides Tenant
comments on Tenant’s initial Working Drawings.




6. “Final Working Drawing Delivery Date” shall mean the date Tenant provides Landlord
Tenant’s Working Drawings revised to incorporate comments made in Landlord’s Initial Working
Drawing Review (“Tenant’s Final Working Drawings”).



Exhibit D — Page 6





 










 





EXHIBIT E — AIR CONDITIONING AND HEATING SERVICES




          Subject to the provisions of Section 3.01(b), Landlord will furnish Building Standard air
conditioning and heating between 8 a.m. and 6 p.m. on weekdays (from Monday through Friday,
inclusive) and between 8 a.m. and 1:00 p.m. on Saturdays, all exclusive of Holidays as defined
below (the “Building Operating Hours”). Upon request of Tenant made in accordance with the rules
and regulations for the Building, Landlord will furnish air conditioning and heating at other times
(that is, at times other than the times specified above), in which event Tenant shall reimburse
Landlord for Landlord’s actual cost of furnishing such services, plus an amount equal to fifteen
percent (15%) of such costs to cover Landlord’s administrative costs.




          The Building Standard heating, ventilation and air conditioning system shall meet the
following design conditions, at the stated outside design conditions, based on one person per 100
square feet:





	 	1.	 	Summer — Outdoor conditions 92 degrees Fahrenheit dry bulb, 75
degrees Fahrenheit wet bulb; indoor conditions 75 degrees Fahrenheit dry bulb,
50% relative humidity at design condition.
	 
	 	2.	 	Winter — Outdoor conditions. minus 16 degrees Fahrenheit dry
bulb; indoor conditions 72 degrees Fahrenheit dry bulb.





     The following dates shall constitute “Holidays” as said term is used in this Lease:




	 	(a)	 	New Year’s Day
	 
	 	(b)	 	Memorial Day
	 
	 	(c)	 	Independence Day
	 
	 	(d)	 	Labor Day
	 
	 	(e)	 	Thanksgiving Day
	 
	 	(f)	 	Christmas





     Building standard hours of operation shall include all days that the New York Stock Exchange
is open for business.



Exhibit E — Page 1




 









 





EXHIBIT F — BUILDING RULES AND REGULATIONS





	1.	 	Sidewalks, doorways, vestibules, halls, stairways, and other similar areas shall not be
used for the disposal of trash, be obstructed by tenants, or be used by tenants for any
purpose other than entrance to and exit from the Leased Premises and for going from one
part of the Building to another part of the Building.
	 
	2.	 	Plumbing fixtures shall be used only for the purposes for which they are designed, and no
sweepings, rubbish, rags or other unsuitable materials shall be disposed into them. Damage
resulting to any such fixtures from misuse by a tenant shall be the liability of said
tenant.
	 
	3.	 	Signs, advertisements, or notices visible in or from public corridors or from outside the
Building shall be subject to Landlord’s prior written approval.
	 
	4.	 	Movement in or out of the Building of furniture, office equipment, or any other bulky or
heavy materials shall be restricted to such hours as Landlord shall reasonably designate.
Landlord will determine the method and routing of said items so as to ensure the safety of
all persons and property concerned. Advance written notice of intent to move such items must
be made to the Building management office.
	 
	5.	 	All routine deliveries to a tenant’s Leased Premises during 8:00 a.m. to 5:00 p.m. weekdays
shall be made through the freight elevators. Passenger elevators are to be used only for the
movement of persons, unless an exception is approved by the Building management office.
Delivery vehicles shall be permitted only in such areas as are designated by Landlord, from
time to time, for deliveries to the Building.
	 
	6.	 	Building management shall have the authority to prescribe the manner that heavy furniture
and equipment are positioned.
	 
	7.	 	Corridor doors, when not in use, shall be kept closed. Tenant space that is visible from
public areas must be kept neat and clean.
	 
	8.	 	Tenant Space that is visible from public areas must be kept neat and clean.
	 
	9.	 	All freight elevator lobbies are to be kept neat and clean. The disposal of trash or
storage of materials in these areas is prohibited.
	 
	10.	 	No animals shall be brought into or kept in, on or about the Building, except for
seeing-eye dogs.
	 
	11.	 	Tenant shall not tamper with or attempt to adjust temperature control thermostats in the
Leased Premises. Landlord shall adjust thermostats as required to maintain the Building
standard temperature.





Exhibit F — Page 1




 









 






	12.	 	Tenant will comply with all security procedures during business hours and after hours and on
weekends.
	 
	13.	 	Tenants are requested to lock all office doors leading to corridors and to turn out all
lights at the close of their working day.
	 
	14.	 	All requests for overtime air conditioning or heating must be submitted in writing to the
Building management office by 2:00 p.m. on the day desired for weekday requests, by 2:00 p.m.
Friday for weekend requests and by 2:00 p.m. on the preceding business day for holiday
requests.
	 
	15.	 	No flammable or explosive fluids or materials shall be kept or used within the Building
except in areas approved by Landlord, and Landlord and Tenant shall comply with all applicable
building and fire codes relating thereto.
	 
	16.	 	Tenant may not place any items on the balconies of the Building that alter the exterior
appearance of the Building without obtaining Landlord’s prior written consent.
	 
	17.	 	Any motor vehicle exceeding the height restrictions of the Parking Facility shall not be
parked at any location on the Land or Parking Area.
	 
	18.	 	Tenant may not make any modifications, additions or repairs to the Leased Premises and may
not install any furniture, fixtures or equipment in the Leased Premises which is in violation
of any applicable building and/or fire code governing the Leased Premises or the Building.
	 
	19.	 	Except in those areas designated by Landlord, if any, smoking is prohibited in the Building
(including, but not limited to, the Leased Premises, the main building lobby, public
corridors, elevator lobbies, service elevator vestibules, stairwells, restrooms and other
common areas within the Building).
	 
	20.	 	All Tenant contractors shall abide by the contractor’s rules and regulations promulgated by
Landlord from time to time.




Landlord reserves the right to rescind any of these rules and regulations and to make such other
and further rules and regulations as in its. reasonable judgment shall, from time to time, be
required for the safety, protection, care and cleanliness of the Building, the operation thereof,
the preservation of good order therein and the protection and comfort of the tenants and their
agents, employees and invitees. Such rules and regulations, when made and written notice thereof is
given to a tenant, shall be binding upon it in like manner as if originally herein prescribed.




Exhibit F — Page 2




 









 





EXHIBIT G RENTABLE SQUARE FEET AND COMMENCEMENT DATE




Rentable Square Feet of Leased Premises: 40,000 square feet




          The above Calculation represents Landlord’s final determination of the Rentable Square Feet
of Tenant’s Leased Premises and shall be used to define the Rentable Square Feet of the Leased
Premises for purposes of Section 1.01(c) of the Lease between Landlord and Tenant to which this
Exhibit G is attached.




          The below date represents Landlord’s determination of the Commencement Date, as defined in
Section 1.02(b) of the Lease between Landlord and Tenant to which this Exhibit G is
attached, and shall be deemed to be the Commencement Date for all purposes under the Lease.




          Commencement Date: November 1, 2000




	 	 	 	 	 
	 	LANDLORD:

NASHVILLE HINES DEVELOPMENT, LLC

 	 
	 	By:  	/s/ Thomas J. Danilek 
	 
	 
	 	Name:  	Thomas J. Danilek 
	 
	 
	 	Title:  	Senior Vice President 
	 
	 
	 
	 	TENANT:

ROBERT W. BAIRD & CO. INCORPORATED
 	 
	 	By:  	/s/ James D. Bell 
	 
	 
	 	Name:  	James D. Bell 
	 
	 
	 	Title:  	Managing Director / CAO 
	 
	 




 









 





EXHIBIT H — BASE RENTAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Year	 	Commencing	 	 	Rent	 	 	Rentable Square Feet*	 	Base Rental	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1
	 	 	 	 	 	$	23.90	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	2
	 	 	 	 	 	$	24.62	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	3
	 	 	 	 	 	$	25.36	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	4
	 	 	 	 	 	$	26.12	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	5
	 	 	 	 	 	$	26.90	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6
	 	 	 	 	 	$	27.71	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	7
	 	 	 	 	 	$	28.54	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	8
	 	 	 	 	 	$	29.39	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	9
	 	 	 	 	 	$	30.28	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	10
	 	 	 	 	 	$	31.18	 	 	40,000	 	$	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	*	 	Actual rentable square footage to be determined in accordance with the Lease





Exhibit H — Page 1




 









 





EXHIBIT I — RULES APPLICABLE TO SATELLITE DISHES




Rules and Regulations Regarding the Location of Satellite Dish Antenna on Roof




     A satellite dish antenna (“Antenna”) will be permitted in the area of the roof of the
building designated in Section 9.06 of the Lease for so long as the Tenant occupies the Leased
Premises, provided that the Tenant agrees to comply with the following requirements:



     1. Tenant will pay all costs and expenses related to the installation of the Antenna.



     2. Prior to the installation of the equipment, Tenant shall submit to Landlord for Landlord’s
prior written approval, which approval shall not be unreasonably withheld or delayed so long as
the equipment cannot be seen from the ground or from any tenant space, (i) reasonably detailed
plans and specifications showing all alterations and improvements to the roof (including, but not
limited to, all work relating to the installation of the Antenna on the roof) and (ii) the name of
Tenant’s contractor. Landlord shall have the right to request such other information relating to
the Antenna as Landlord may reasonably determine to be necessary.



     3. Tenant shall obtain, and shall maintain during the term of this agreement, at its sole
cost and expense, all governmental approvals, consents, permits and licenses required to install,
maintain, transmit and/or operate the Antenna and shall pay any penalties imposed by reason of
violations. of laws, ordinances, rules.. and regulations. Tenant shall deliver copies of all such
approvals, consents, permits and/or licenses to Landlord prior to the installation of the Antenna.



     4. Tenant shall maintain, repair and replace the Antenna at its sole cost and expense. Upon
the expiration of the Tenant’s lease, Tenant shall remove the Antenna and all conduits and cables.
appurtenant thereto, and shall restore the building’s roof to the condition existing prior to said
installation, less ordinary wear and tear.



     5. Landlord
hereby grants to Tenant the right, upon reasonable prior notice to Landlord, to
enter upon the building’s roof in connection with the installation, maintenance, inspection,
repair, replacement and/or removal of the Antenna so long as a representative of the Landlord
accompanies the Tenant or its agents.



     6. Tenant hereby agrees to hire Landlord’s base building roof contractor to do all work
involving the building’s roof, and any penetrations thereto, and warrants that such work shall not
violate the provisions of any warranty relating to the roof.



     7. Tenant acknowledges and agrees that, in connection with an assignment of the lease or
sublease of all or part of the premises, Tenant shall not have the right to assign its rights
under this Exhibit or grant permission to any person or entity to use the Antenna without
obtaining the prior



Exhibit I — Page 1




 









 




written consent of Landlord in each instance, which consent Landlord may withhold in its discretion
except with respect to parents, subsidiaries or affiliates of Tenant.




     8. Tenant covenants and agrees that the Antenna shall be used solely for the transmission and
receipt of information relating to Tenant’s operations at the Project. Tenant covenants and agrees
further that the Tenant shall not permit any other person or entity to use the equipment for
transmitting or receiving information or data, and that Tenant shall not sell such information,
data or data processing services to any person or entity.



     9. Tenant shall indemnify and defend Landlord against any and all claims, loss, costs,
damages, expenses or liabilities, including, without limitation, reasonable attorney’s fees and
disbursements for any injury or damage to any person or property whatsoever, when such injury or
damage has been caused in part or in whole by any act, fault or omission of Tenant, its agents,
employees, or invitees, or arises out of or in connection with the operation, use, maintenance,
repair, replacement and/or removal of the Antenna.



     10. Tenant shall not in any way interfere with the transmission or reception of antennas,
dishes or other microwave equipment located on the roof of the building which existed prior to the
installation of the Antenna. Tenant agrees that if the Antenna interferes with the transmission or
reception of any antenna, dish or other microwave equipment installed prior to the installation of
the Antenna, then Tenant shall relocate promptly, or cause to be relocated. promptly, the Antenna
at its sole cost and expense.



     11. If any antenna, dish or other microwave equipment installed on the roof of the building
after the installation of the Antenna interferes with the transmission or reception of the Antenna,
then Landlord agrees. to cause said antenna,- dish or other microwave equipment to be relocated:.
In addition,. if the method, type or direction of transmission from, or the reception by, any
antenna, dish or other microwave equipment on the roof of the building is altered. or changed after
the installation of the Antenna, and if such alteration or change results in said antenna, dish. or
other microwave equipment interfering with the transmission or the reception of the Antenna, . then
Landlord agrees to cause said antenna, dish or other microwave equipment to be relocated promptly
or to cause the owner of said antenna, dish or other microwave equipment to undo promptly the
alteration or change.



     12. All notices provided for in this Exhibit shall be in writing and given to the parties at
the addresses set forth in the Lease Agreement, or at such address as the parties hereto may
hereinafter specify in writing.



     13. If any provision of this Exhibit shall be held invalid or unenforceable according to law,
the remaining provisions herein shall not be affected thereby and shall continue in full force and
effect.



Exhibit I — Page 2




 









 





EXHIBIT J — VISITOR PARKING AREA




Exhibit I — Page 3




 









 










 









 










 









 











 










 





EXHIBIT
B TO SUBLEASE

SUBLEASED PREMISES














 





EXHIBIT B