**Exhibit 10.2**

 

OFFICE LEASE AGREEMENT

 

 

**Between**

 

 

**Landlord: V.V. GEORGIA, L.P., a Delaware limited partnership**

** **

** **

**and**

 

 

**Tenant: TRIS SECURITY CORPORATION, a Georgia corporation**

 

**Dated:   June 29, 2005**

 

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**TABLE OF CONTENTS**

 

**LEASE AGREEMENT**

 
| **A.** | **PREMISES/TERM/POSSESSION**                  | ** ** |
|--------|-----------------------------------------------|------------|
|   |                                          |       |
| 1.     | PREMISES                                      |       |
| 2.     | LEASE TERM                                    |       |
| 3.     | LANDLORD’S  FAILURE TO GIVE POSSESSION   |       |
| 4.     | QUIET ENJOYMENT                               |       |
|   |                                          |       |
| **B.** | **RENT/PAYMENT/SECURITY DEPOSIT**             | ** ** |
|   |                                          |       |
| 5.     | BASE RENT                                     |       |
| 6.     | RENT PAYMENT                                  |       |
| 7.     | OPERATING  EXPENSES/TAXES/ELECTRICITY         |       |
| 8.     | LATE CHARGE                                   |       |
| 9.     | PARTIAL PAYMENT                               |       |
| 10.    | SECURITY DEPOSIT                              |       |
|   |                                          |       |
| **C.** | **USE/LAWS/RULES**                            | ** ** |
|   |                                          |       |
| 11.    | USE OF PREMISES                               |       |
| 12.    | COMPLIANCE WITH LAWS                          |       |
| 13.    | WASTE DISPOSAL                                |       |
| 14.    | RULES AND REGULATIONS                         |       |
|   |                                          |       |
| **D.** | **SERVICES/TENANT BUILDOUT**                  | ** ** |
|   |                                          |       |
| 15.    | SERVICES                                      |       |
| 16.    | TELEPHONE AND DATA  EQUIPMENT                 |       |
| 17.    | SIGNS                                         |       |
| 18.    | PARKING                                       |       |
| 19.    | STORAGE                                       |       |
| 20.    | BUILDOUT  ALLOWANCE AND TENANT FINISHES       |       |
| 21.    | FORCE MAJEURE                                 |       |
|   |                                          |       |
| **E.** | **REPAIRS/ALTERATIONS/CASUALTY/CONDEMNATION** | ** ** |
|   |                                          |       |
| 22.    | REPAIRS BY LANDLORD                           |       |
| 23.    | REPAIRS BY TENANT                             |       |
| 24.    | ALTERATIONS AND  IMPROVEMENTS/LIENS           |       |
| 25.    | DESTRUCTION OR DAMAGE                         |       |
| 26.    | EMINENT DOMAIN                                |       |
| 27.    | DAMAGE OR THEFT OF  PERSONAL PROPERTY         |       |
|   |                                          |       |
| **F.** | **INSURANCE/INDEMNITIES/WAIVER/ESTOPPEL**     | ** ** |
|   |                                          |       |
| 28.    | INSURANCE; WAIVERS                            |       |
| 29.    | INDEMNITIES                                   |       |
| 30.    | ACCEPTANCE AND WAIVER                         |       |
| 31.    | ESTOPPEL                                      |       |
|   |                                          |       |
| **G.** | **DEFAULT/REMEDIES/SURRENDER/HOLDING  OVER**  | ** ** |
|   |                                          |       |
| 32.    | NOTICES                                       |       |
| 33.    | ABANDONMENT OF PREMISES                       |       |
| 34.    | DEFAULT                                       |       |

 

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| 35.     | REMEDIES                                                        |       |
|---------|-----------------------------------------------------------------|------------|
| 36.     | SERVICE OF NOTICE                                               |       |
| 37.     | ADVERTISING                                                     |       |
| 38.     | SURRENDER OF PREMISES                                           |       |
| 39.     | CLEANING PREMISES                                               |       |
| 40.     | REMOVAL OF FIXTURES                                             |       |
| 41.     | HOLDING OVER                                                    |       |
| 42.     | ATTORNEY’S FEES                                            |       |
| 43.     | MORTGAGEE’S RIGHTS                                         |       |
|    |                                                            |       |
| **H.**  | **LANDLORD ENTRY/RELOCATION/ASSIGNMENT  AND SUBLETTING**        | ** ** |
|    |                                                            |       |
| 44.     | ENTERING PREMISES                                               |       |
| 45.     | RELOCATION                                                      |       |
| 46.     | ASSIGNMENT AND SUBLETTING                                       |       |
|    |                                                            |       |
| **I.**  | **SALE OF BUILDING; LIMITATION  OF LIABILITY**                  | ** ** |
|    |                                                            |       |
| 47.     | SALE                                                            |       |
| 48.     | LIMITATION OF LIABILITY                                         |       |
|    |                                                            |       |
| **J.**  | **BROKERS/CONSTRUCTION/AUTHORITY**                              | ** ** |
|    |                                                            |       |
| 49.     | BROKER DISCLOSURE                                               |       |
| 50.     | DEFINITIONS                                                     |       |
| 51.     | CONSTRUCTION OF THIS  AGREEMENT                                 |       |
| 52.     | NO ESTATE IN LAND                                               |       |
| 53.     | PARAGRAPH TITLES;  SEVERABILITY                                 |       |
| 54.     | CUMULATIVE RIGHTS                                               |       |
| 55.     | WAIVER OF JURY TRIAL                                            |       |
| 56.     | ENTIRE AGREEMENT                                                |       |
| 57.     | SUBMISSION OF AGREEMENT                                         |       |
| 58.     | AUTHORITY                                                       |       |
| 59.     | GUARANTY                                                        |       |
|    |                                                            |       |
| **K.**  | **SPECIAL  STATE LAW REQUIREMENTS/SPECIAL TENANT STIPULATIONS** | ** ** |
|    |                                                            |       |
| 60.     | STATE OR LOCAL LAW PROVISIONS                                   |       |
| 61.     | SPECIAL STIPULATIONS                                            |       |
| 62.     | OFAC CERTIFICATION                                              |       |
|    |                                                            |       |
|    | **LIST OF EXHIBITS**                                            |       |
|    |                                                            |       |
| **A**   | Legal Description                                               |       |
| **A-1** | Plan of Premises                                                |       |
| **B**   | Work Letter                                                     |       |
| **C**   | Substantial Completion/Acceptance  Letter                       |       |
| **D**   | Rules and Regulations                                      |       |
| **E**   | HVAC Specifications                                             | ** ** |
| **F**   | INTENTIONALLY OMITTED                                           |       |
| **G**   | INTENTIONALLY OMITTED                                           |       |
| **H**   | Special Stipulations                                            |       |
| **I**   | INTENTIONALLY OMITTED                                           |       |

 

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**BASIC LEASE PROVISIONS**

 

Thefollowing sets forth some of the Basic Provisions of the Lease. In the event ofany conflict between the terms of these Basic Lease Provisions and thereferenced Sections of the Lease, the referenced Sections of the Lease shallcontrol. In addition to the following Basic Lease Provisions, all of the otherterms and conditions and sections of the Office Lease Agreement hereinafter setforth are hereby incorporated as an integral part of this Summary.

 
| 1.         |       | Building (See Section 1):                        |       | 11675 Great Oaks Way  Alpharetta, Georgia 30022   |
|------------|------------|-------------------------------------------------------|------------|---------------------------------------------------|
|       |       |                                                  |       |                                              |
| 2.         |       | Premises (See  Section 1):                       |       |                                              |
|       |       |                                                  |       |                                              |
|       |       | Suite:                                                |       | 120                                               |
|       |       | Floor:                                                |       | 1st                                               |
|       |       | Rentable Square Feet:                                 |       | 2,675                                             |
|       |       |                                                  |       |                                              |
| 3.         |       | Term (See Section 2):                            |       | 39 full calendar months                           |
|       |       | Target Commencement Date:                             |       | September 1, 2005  subject to Section 2 |
|       |       | Target Expiration Date:                               |       | November 30, 2008  subject to Section 2 |
|       |       |                                                  |       |                                              |
| 4.         |       | Base Rent (See Section 5):                       |       |                                              |
|       |       |                                                  |       |                                              |
| ** ** | ** ** | ** **                                            | ** ** | **Rate Per Rentable**                             | ** ** | ** ** | ** ** |
| ** ** | ** ** | ** **                                            | ** ** | **Square Foot of**                                | ** ** | **Monthly** | ** ** |
| ** ** | ** ** | **Lease Term**                                        | ** ** | **Premises**                                      | ** ** | **Installment** | ** ** |
|       |       | September 1, 2005 –  November 30, 2005 |       | $                                                 | 0.00 |   | $ | 0.00 |   |
|       |       | December 1, 2005 –  August 31, 2006    |       | $                                                 | 18.50 |   | $ | 4,123.96 |   |
|       |       | September 1, 2006 –  August 31, 2007   |       | $                                                 | 19.06 |   | $ | 4,247.68 |   |
|       |       | September 1, 2007 –  August 31, 2008   |       | $                                                 | 19.63 |   | $ | 4,376.26 |   |
|       |       | September 1, 2008 –  November 30, 2008 |       | $                                                 | 20.22 |   | $ | 4,507.38 |   |
|       |       |                                                  |       |                                              |   |   |   |
| 5.         |       | Rent Payment Address (See  Section 5)            |       |                                              |   |   |   |
|       |       | Jones Lang LaSalle as  agent for Royal Centre One     |       |                                              |   |
|       |       | 11675 Great Oaks Way,  Suite 144B                |       |                                              |   |   |   |
|       |       | Alpharetta, Georgia 30022                             |       |                                              |   |   |   |
|       |       |                                                  |       |                                              |   |   |   |
| 6.         |       | Base Year (See  Section 7)                       |       |                                              |   |   |   |
|       |       |                                                  |       |                                              |   |   |   |
|       |       | Tax Base Year:                                        |       | 2005                                              |   |   |   |   |   |
|       |       | Operating Expense Base  Year:                         |       | 2005                                              |   |   |   |   |   |
|       |       | Electricity Cost Base  Year:                          |       | 2005                                              |   |   |   |   |   |
|       |       |                                                  |       |                                              |   |   |   |   |   |
| 7.         |       | Tenant’s Share (See  Section 7):            |       | 1.759                                             | % |   |   |   |   |
|            |            |                                                       |            |                                                   |  |  |  |  |  |  |  |

 

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| 8.         |       | Security Deposit (See  Section 10):                                                                                                  |       | $8,247.92                                                                       |       |
|------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------|------------|
|       |       |                                                                                                                                      |       |                                                                            |       |
| 9.         |       | Parking Spaces (See  Section 18):                                                                                                    |       | 5.5 unreserved spaces per  1,000 rentable square feet of Premises               |
|       |       |                                                                                                                                      |       |                                                                            |       |
| 10.        |       | Tenant Improvement  Allowance (See Section 20):                                                                                      |       | $8.00 per rentable square  foot                                                 |       |
|       |       |                                                                                                                                      |       |                                                                            |       |
| 11.        |       | Tenant’s Liability  Insurance (See Section 28):                                                                                 |       | $2,000,000.00                                                                   |       |
|       |       |                                                                                                                                      |       |                                                                            |       |
| 12.        |       | Landlord’s Broker (See  Section 49):                                                                                            |       | Jones Lang LaSalle  Americas, Inc.                                         |       |
|       |       |                                                                                                                                      |       |                                                                            |       |
|       |       | Tenant’s Broker (See  Section 49):                                                                                              |       | Coldwell Banker Commercial  NRT                                                 |       |
|       |       |                                                                                                                                      |       |                                                                            |       |
| 13.        |       | Notice Address (See  Section 32)                                                                                                     |       |                                                                            |       |   |   |
|       |       |                                                                                                                                      |       |                                                                            |       |   |   |
| ** ** | ** ** | **Landlord**                                                                                                                              | ** ** | **Tenant**                                                                      | ** ** |
|       |       |                                                                                                                                      |       |                                                                            |       |
|       |       | VV Georgia, L.P.  c/o Invesco Real Estate  1166 Avenue of the Americas  26th Floor  New York, New York 10036-2727  Attn: VV Asset Manager |       | Tri-S Security  11675 Great Oaks Way  Suite 120  Alpharetta, Georgia 30022 |       |
|       |       |                                                                                                                                      |       |                                                                            |       |
| 14.        |       | Guarantor (See  Section 59):                                                                                                         |       | INTENTIONALLY OMITTED                                                           |       |

 

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IN WITNESSWHEREOF, Landlord and Tenant have executed this instrument as of the date setforth on the first page hereof.

 
|    | LANDLORD:                                                         |
|---------|-------------------------------------------------------------------|
|    |                                                              |
|    | V.V. GEORGIA, L.P., a  Delaware  limited partnership              |
|    |                                                              |
|    | By:       INVESCO  Real Estate |
|    | Germany, L.P - Asset  Manager                                     |
|    |                                                              |
|    |                                                              |
|    |                                                              |   |
| Witness | By:                                                               | /s/ Cavarly E.B. Garrett |   |
|    | Name:                                                             | Cavarly E.B. Garrett |
|    | Title:                                                            | Authorized Agent |
|    |                                                              |
|    |                                                              |
|    | TENANT:                                                           |
|    |                                                              |
|    | TRIS SECURITY CORPORATION,  a                                     |
|    | Georgia corporation                                               |
|    |                                                              |
|    |                                                              |   |
| Witness | By:                                                               | /s/ Wayne  Stallings |   |
|    |                                                              | FTS: CFO |   |
|         |                                                                   |  |  |  |  |

 

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**OFFICE LEASE AGREEMENT**

 

THISOFFICE LEASE AGREEMENT (hereinafter called the “Lease”) is made and enteredinto as of the date appearing on the first page hereof by and between theLandlord and Tenant identified above.

 

**A.            Premises/Term/Possession**

 

1.             **Premises.**Landlord does hereby rent and lease to Tenant and Tenant does hereby rent andlease from Landlord, for general office purposes of a type customary for first-classoffice buildings, the Premises located in the Building identified in the BasicLease Provisions, situated on the real property described in Exhibit “A”attached hereto (the “Property”), such Premises as all further shown bydiagonal lines on the drawing attached hereto as Exhibit “A-1” andmade a part hereof by reference. The Premises shall be prepared for Tenant’soccupancy in the manner and subject to the provisions of Exhibit “B”attached hereto and made a part hereof. Landlord and Tenant agree that thenumber of rentable square feet described in Paragraph 2 of the Basic LeaseProvisions has been confirmed and conclusively agreed upon by the parties. Noeasement for light, air or view is granted hereunder or included within orappurtenant to the Premises.

 

2.             **LeaseTerm.**  Tenant shall haveand hold the Premises for the term (“Term”) identified in the Basic LeaseProvisions commencing on the date (the “Commencement Date”) which is theearlier of (i) five (5) days after the date on which Landlordnotifies Tenant that the Premises are substantially complete (or would havebeen substantially complete but for any delays caused by Tenant, its agents andemployees) or (ii) the date Tenant first occupies all or any portion ofthe Premises for the conduct of its business, and shall terminate at midnighton the last day of the Term (the “Expiration Date”), unless sooner terminatedor extended as hereinafter provided. Promptly following the Commencement Date,Landlord and Tenant shall enter into a letter agreement in the form attachedhereto as Exhibit “C”, specifying and/or confirming theCommencement Date and the Expiration Date (and the number of rentable squarefeet contained within the Premises and the amount of Base Rent payablehereunder for each Lease Year (as defined in Section 5 below), if suchnumbers as finally determined differ from those set forth in the Basic LeaseProvisions).

 

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

 

4.             **Quiet Enjoyment.** Tenant, upon payment in full of therequired Rent and full performance of the terms, conditions, covenants andagreements contained in this Lease, shall peaceably and quietly have, hold andenjoy the Premises during the Term hereof. Landlord shall not be responsiblefor the acts or omissions of any other tenant, Tenant or third party that mayinterfere with Tenant’s use and enjoyment of the Premises.

 

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**B.            Rent/Payment/SecurityDeposit.**

 

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

 

6.             **RentPayment.**  The Base Rentfor each Lease Year shall be payable in equal monthly installments, due on thefirst day of each calendar month, in advance, in legal tender of the UnitedStates of America, without abatement, demand, deduction or offset whatsoever,except as may be expressly provided in this Lease. One full monthly installmentof Base Rent shall be due and payable on the date of execution of this Lease byTenant and shall be applied to the first month’s Base Rent, and a like monthlyinstallment of Base Rent shall be due and payable on or before the first day ofeach calendar month following the Commencement Date during the Term hereof(provided, that if the Commencement Date should be a date other than the firstday of a calendar month, the monthly Base Rent installment paid on the date ofexecution of this Lease by Tenant shall be prorated to that partial calendarmonth, and the excess shall be applied as a credit against the next monthlyBase Rent installment). Tenant shall pay, as Additional Rent, all other sumsdue from Tenant under this Lease (the term “Rent”, as used herein, means allBase Rent, Additional Rent and all other amounts payable hereunder from Tenantto Landlord).

 

7.             **OperatingExpenses/Taxes/Electricity Costs.**

 

(a)           Tenant agrees to reimburse Landlord throughout the Term,as Additional Rent hereunder, for Tenant’s Share (as defined below) of: (i) theannual Operating Expenses (as defined below) in excess of the OperatingExpenses for the Operating Expense Base Year set forth in the Basic LeaseProvisions (hereinafter called the “Base Year Expense Amount”); (ii) theannual Taxes (as defined below) in excess of the Taxes for the Tax Base Yearset forth in the Basic Lease Provisions (hereinafter called the “Base Year TaxAmount”); and (iii) the annual Electricity Costs (as defined below) inexcess of the Electricity Costs for the Electricity Cost Base Year set forth inthe Basic Lease Provisions (hereinafter called the “Base Year Electricity Costs”).The term “Tenant’s Share” as used in this Lease shall mean the percentagedetermined by dividing the rentable square footage of the Premises by therentable square footage of the Building. Landlord and Tenant hereby agree thatTenant’s Share with respect to the Premises initially demised by this Lease isthe percentage amount set forth in the Basic Lease Provisions. Tenant’s Shareof excess Operating Expenses, excess Taxes and excess Electricity Costs for anycalendar year shall be appropriately prorated for any partial year occurringduring the Term.

 

(b)           “Operating Expenses” shall mean allof those expenses of operating, servicing, managing, maintaining and repairingthe Property, Building, and all parking areas and all related common areas (aswell as the reasonable allocation by Landlord of any expenses incurred and

 

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relatedto facilities located on other property but serving the Property, if theProperty is part of a project involving more than one building and/orproperty). Operating Expenses shall include, without limitation, the following:(1) insurance premiums and deductible amounts, including, withoutlimitation, for commercial general liability, “all risks” property, rent lossand other coverages carried by Landlord on the Building and Property; (2) allcosts related to the providing of water, heating, lighting, ventilation,sanitary sewer, air conditioning and other utilities in the Building, butspecifically excluding the costs of electricity or power charges incurred inconnection with such services or the costs of providing electricity or powerthroughout the Building, and further excluding those utility charges actuallypaid separately by Tenant or any other tenants of the Building; (3) janitorialand maintenance expenses, including: (a) janitorial services andjanitorial supplies and other materials used in the operation and maintenanceof the Building; and (b) the cost of maintenance and service agreements onequipment, window cleaning, grounds maintenance, pest control, security, trashand snow removal, and other similar services or agreements; (4) managementfees (or a charge equal to fair market management fees if Landlord provides itsown management services) and the market rental value of a management office; (5) thecosts, including interest, amortized over the applicable useful life, of anycapital improvement made to the Building by or on behalf of Landlord which isrequired under any governmental law or regulation (or any judicialinterpretation thereof) that was not applicable to the Building as of the dateof this Lease, and of the acquisition and installation of any device orequipment designed to improve the operating efficiency of any system within theBuilding which is reasonably intended to reduce Operating Expenses or which isacquired to improve the safety of the Building or Property; (6) allservices, supplies, repairs, replacements or other expenses directly andreasonably associated with servicing, maintaining, managing and operating theBuilding, including, but not limited to the lobby, vehicular and pedestrian trafficareas and other common use areas; (7) wages and salaries of Landlord’semployees (not above the level of Building or Property Manager or whatevertitle represents the on-site management representative primarily responsiblefor management of the Building) engaged in the maintenance, operation, repairand services of the Building, including taxes, insurance and customary fringebenefits; (8) legal and accounting costs (but not including legal costsincurred in collecting delinquent rent from any occupants of the Property); (9) coststo maintain and repair the Building and Property; (10) landscaping and security costs unless Landlord hires a thirdparty to provide such services pursuant to a service contract and the cost ofthat service contract is already included in Operating Expenses as describedabove; (11) if the Building is part of a multi-building project, the Building’sallocated share (as reasonably determined by Landlord) of those expensesincurred on a project-wide basis benefiting the Building and/or Propertyincluding, without limitation, costs in connection with (i) landscaping, (ii) utilityand road repairs, (iii) security, and (iv) signage installation,replacement and repair; (12) costs and expenses of repair or replacement ofcommon area finishes.

 

OperatingExpenses shall specifically further exclude, however, the following: (1) costsof alterations of tenant spaces (including all tenant improvements to suchspaces); (2) costs of capital improvements, except as provided in thepreceding paragraph; (3) depreciation, interest and principal payments onmortgages, and other debt costs, if any; (4) real estate brokers’ leasingcommissions or compensation and advertising and other marketing expenses; (5) paymentsto affiliates of the Landlord for goods and/or services in excess of what wouldbe paid to non-affiliated parties for such goods and/or services in an arm’slength transaction; (6) costs or other

 

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services or work performed forthe singular benefit of another tenant or occupant (other than for common areasof the Building); (7) legal, space planning, construction, and otherexpenses incurred in procuring tenants for the Building or renewing or amendingleases with existing tenants or occupants of the Building; (8) costs ofadvertising and public relations and promotional costs and attorneys’ feesassociated with the leasing of the Building; (9) any expense for whichLandlord actually receives reimbursement from insurance, condemnation awards,other tenants or any other source; (10) costs incurred in connection withthe sale, financing, refinancing, mortgaging, or other change of ownership ofthe Building; (11) all expenses in connection with the installation, operationand maintenance of any observatory, broadcasting facilities, luncheon club,athletic or recreation club, cafeteria, dining facility, or other facility notgenerally available to all office tenants of the Building, including Tenant;(12) Taxes; and (13) rental under any ground or underlying lease or leases.

 

(c)           “Taxes” shall mean all taxes and assessments of every kindand nature which Landlord shall become obligated to pay with respect to eachcalendar year of the Term or portion thereof because of or in any way connectedwith the ownership, leasing, and operation of the Building and the Property,subject to the following: (i) the amount of ad valorem real and personalproperty taxes against Landlord’s real and personal property to be included inTaxes shall be the amount required to be paid for any calendar year,notwithstanding that such Taxes are assessed for a different calendar year (theamount of any tax refunds received by Landlord during the Term of this Leaseshall be deducted from Taxes for the calendar year to which such refunds areattributable); (ii) the amount of special taxes and special assessments tobe included shall be limited to the amount of the installments (plus anyinterest, other than penalty interest, payable thereon) of such special tax orspecial assessment payable for the calendar year in respect of which Taxes arebeing determined; (iii) the amount of any tax or excise levied by theState or the City where the Building is located; any political subdivision ofeither, or any other taxing body, on rents or other income from the Property(or the value of the leases thereon) to be included shall not be greater thanthe amount which would have been payable on account of such tax or excise byLandlord during the calendar year in respect of which Taxes are beingdetermined had the income received by Landlord from the Building [excludingamounts payable under this subparagraph (iii)] been the sole taxable income ofLandlord for such calendar year; (iv) there shall be excluded from Taxesall income taxes [except those which may be included pursuant to the precedingsubparagraph (iii) above], excess profits taxes, franchise, capital stock,and inheritance or estate taxes; (v) if any portion of the Taxes in theTax Base Year includes an assessment which is no longer payable in a subsequentcalendar year, the Taxes for the Tax Base Year shall be adjusted to eliminatethe amount of the annual assessment originally included therein; and (vi) Taxesshall also include Landlord’s reasonable costs and expenses (including reasonableattorneys’ fees) in contesting or attempting to reduce any Taxes assessed for adifferent calendar year. Landlord agrees to consult with a real estate taxconsultant or advisor engaged by it from time to time and in the exercise ofreasonable and prudent ownership judgment contest any unreasonable taxassessment to the extent such tax counsel advises Landlord that a reasonablebasis exists therefor.

 

(d)           “Electricity Costs” shall mean all ofthose costs and expenses of every kind and nature whatsoever which Landlordshall incur in connection with providing various electricity and power servicesto the Building, or any portion thereof, or to the tenant spaces locatedtherein,

 

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includingthe Premises, with respect to each calendar year of the Term or portionthereof, but specifically excluding electricity or power charges actually paidby Tenant or other tenants of the Building directly to the provider of suchservices or paid to Landlord on account of excess usage or overtime charges.

 

(e)           Landlord shall, on or before the Commencement Date and assoon as reasonably possible after the commencement of each calendar yearthereafter, provide Tenant with a statement of the estimated monthlyinstallments of Tenant’s Share of excess Operating Expenses, excess Taxes andexcess Electricity Costs which will be due for the remainder of the calendaryear in which the Commencement Date occurs or for the next ensuing calendaryear, as the case may be. Landlord agrees to keep books and records showing theOperating Expenses in accordance with generally accepted accounting principles(as modified for office buildings in a manner comparable to other similarbuildings in the commercial area where the Building is located) and practicesconsistently maintained on a year-to-year basis in compliance with suchprovisions of this Lease as may affect such accounts, and Landlord shalldeliver to Tenant within one hundred twenty (120) days after the close of eachcalendar year (subject to any delays beyond the reasonable control of Landlordto prevent) (including the calendar year in which this Lease terminates), astatement (“Landlord’s Statement”) containing the following: (1) astatement that the books and records covering the operation of the Buildinghave been maintained in accordance with the requirements in this subparagraph(e); (2) the amount of any increases in the Operating Expenses for suchcalendar year in excess of the Operating Expenses for the Operating ExpenseBase Year; (3) the amount of any increases in the Taxes for such calendaryear in excess of the Taxes for the Tax Base Year; and (4) the amount ofany increases in the Electricity Costs for such calendar year in excess of theElectricity Costs for the Electricity Cost Base Year. Upon reasonable priorwritten request given not later than thirty (30) days following the dateLandlord’s Statement is delivered to Tenant, Landlord will provide Tenantdetailed documentation to support such Landlord’s Statement or provide Tenantwith the opportunity to review such supporting information. If Tenant does notnotify Landlord of any objection to Landlord’s Statement within ninety (90)days after the later of delivery of Landlord’s Statement or such requestedsupporting documentation, Tenant shall be deemed to have accepted Landlord’sStatement as true and correct and shall be deemed to have waived any right todispute the excess Operating Expenses, Taxes and/or Electricity Costs duepursuant to that Landlord’s Statement.

 

(i)            Tenant shall pay to Landlord,together with its monthly payment of Base Rent as provided in Section 5above, as Additional Rent hereunder, the estimated monthly installment ofTenant’s Share of the excess Operating Expenses, Taxes and Electricity Costsfor the calendar year in question. At the end of any calendar year, if Tenanthas paid to Landlord an amount in excess of Tenant’s Share of excess OperatingExpenses, Taxes and Electricity Costs for such calendar year, Landlord shallreimburse to Tenant any such excess amount (or shall apply any such excessamount to any amount then owing to Landlord hereunder, and if none, to the nextdue installment or installments of Additional Rent due hereunder, at the optionof Landlord). At the end of any calendar year if Tenant has paid to Landlordless than Tenant’s Share of excess Operating Expenses, Taxes and ElectricityCosts for such calendar year, Tenant shall pay to Landlord any such deficiencywithin thirty (30) days after Tenant receives the annual statement.

 

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(ii)           For the calendar year in which thisLease terminates and is not extended or renewed, the provisions of this Section shallapply, but Tenant’s Share for such calendar year shall be subject to a pro rataadjustment based upon the number of days prior to the expiration of the Term ofthis Lease. Tenant shall make monthly estimated payments of the pro rataportion of Tenant’s Share for such calendar year (in the manner provided above)and when the actual prorated Tenant’s Share for such calendar year isdetermined, Landlord shall send Landlord’s Statement to Tenant for such yearand if such Statement reveals that Tenant’s estimated payments for the proratedTenant’s Share for such calendar year exceeded the actual prorated Tenant’sShare for such calendar year, Landlord shall include a refund for that amountalong with the Statement (subject to offset in the event Tenant is in defaulthereunder). If Landlord’s Statement reveals that Tenant’s estimated paymentsfor the prorated Tenant’s Share for such calendar year were less than theactual prorated Tenant’s Share for such calendar year, Tenant shall pay theshortfall to Landlord within thirty (30) days after the date of receipt ofLandlord’s Statement.

 

(iii)          If the Building is less than ninety-fivepercent (95%) occupied throughout any calendar year of the Term, then theactual Operating Expenses for the calendar year in question (as well as theOperating Expenses for the Operating Expense Base Year) which vary withoccupancy levels in the Building (e.g. elevator maintenance, management fees)shall be increased to the amount of Operating Expenses which Landlordreasonably determines would have been incurred during that calendar year if theBuilding had been at least 95% occupied throughout such calendar year. If theprovisions of this subsection are applied in any calendar year, the BaseExpense Amount shall likewise be adjusted to reflect such level of occupancy.

 

8.             **LateCharge.**  Other remediesfor non-payment of Rent notwithstanding, if any monthly installment of BaseRent or Additional Rent is not received by Landlord on or before the date due,or if any payment due Landlord by Tenant which does not have a scheduled duedate is not received by Landlord on or before the tenth (10th) day followingthe date Tenant was invoiced, a late charge of five percent (5%) of such pastdue amount shall be immediately due and payable as Additional Rent and interestshall accrue on all delinquent amounts from the date past due until paid at thelower of a rate of one and one-half (1-1/2%) percent per month or fractionthereof from the date such payment is due until paid (Annual Percentage Rate =18%), or the highest rate permitted by applicable law.

 

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

 

10.           **SecurityDeposit.**  Tenant shall payLandlord the amount identified as the Security Deposit in the Basic LeaseProvisions (hereinafter referred to as “Security Deposit”) as evidence of goodfaith on the part of Tenant in the fulfillment of the terms of this Lease,which shall be held by the Landlord during the Term of this Lease, or anyrenewal thereof. Under no circumstances will Tenant be entitled to any intereston the Security Deposit. The Security

 

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Deposit may be used byLandlord, at its discretion, to apply to any amount owing to Landlordhereunder, or to pay the expenses of repairing any damage to the Premises,except natural wear and tear occurring from normal use of the Premises, whichexists on the day Tenant vacates the Premises, but this right shall not beconstrued to limit Landlord’s right to recover additional sums from Tenant fordamages to the Premises. In addition to any other rights available to Landlordhereunder, the Security Deposit shall be forfeited in any event if Tenant failsto occupy the Premises for the full Term of this Lease, or if this Lease shouldfor any reason whatsoever be terminated prior to the Expiration Date of theTerm, or of any renewal thereof. If there are no payments to be made from theSecurity Deposit as set out in this paragraph, or if there is any balance ofthe Security Deposit remaining after all payments have been made, the SecurityDeposit, or such balance thereof remaining, will be refunded to the Tenantwithin thirty (30) days after fulfillment by Tenant of all obligationshereunder (including payment of the balance of any year-end reconciliation). Inno event shall Tenant be entitled to apply the Security Deposit to any Rent duehereunder. In the event of an act of bankruptcy by or insolvency of Tenant, or the appointment of a receiver for Tenant or ageneral assignment for the benefit of Tenant’s creditors, then the SecurityDeposit shall be deemed immediately assigned to Landlord. The right to retainthe Security Deposit shall be in addition and not alternative to Landlord’sother remedies under this Lease or as may be provided by law and shall not beaffected by summary proceedings or other proceedings to recover possession ofthe Premises. Upon sale or conveyance of the Building, Landlord may transfer orassign the Security Deposit to any new owner of the Premises, and upon suchtransfer all liability of Landlord for the Security Deposit shall terminate.Landlord shall be entitled to commingle the Security Deposit with its otherfunds.

 

**C.            Use/Laws/Rules.**

 

11.           **Use of Premises.**

 

(a)           Tenant shall use and occupy thePremises for general office purposes of a type customary for office buildingsof the same type and quality as the Building and for no other purpose. ThePremises shall not be used for any illegal purpose, nor in violation of anyvalid regulation of any governmental body, nor in any manner to create anynuisance or trespass, nor in any manner which will void the insurance orincrease the rate of insurance on the Premises or the Building, nor in anymanner inconsistent with the first-class nature of the Building.

 

(b)           Tenant shall not cause or permit thereceipt, storage, use, location or handling on the Property (including theBuilding and Premises) of any product, material or merchandise which isexplosive, highly inflammable, or a “hazardous or toxic material,” as that termis hereafter defined. “Hazardous or toxic material” shall include all materialsor substances which have been determined to be hazardous to health or the environmentand are regulated or subject to all applicable laws, rules and regulationsfrom time to time, including, without limitation hazardous waste (as defined inthe Resource Conservation and Recovery Act); hazardous substances (as definedin the Comprehensive Emergency Response, Compensation and Liability Act, asamended by the Superfund Amendments and Reauthorization Act); gasoline or anyother petroleum product or by-product or other hydrocarbon derivative; toxicsubstances, (as defined by the Toxic Substances Control Act); insecticides,fungicides or rodenticide, (as defined in the Federal Insecticide, Fungicide,and Rodenticide Act); asbestos and radon and

 

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substancesdetermined to be hazardous under the Occupational Safety and Health Act orregulations promulgated thereunder. Notwithstanding the foregoing, Tenant shallnot be in breach of this provision as a result of the presence in the Premisesof minor amounts of hazardous or toxic materials which are in compliance withall applicable laws, ordinances and regulations and are customarily present ina general office use (e.g., copying machine chemicals and kitchen cleansers).

 

(c)           Without limiting in any way Tenant’sobligations under any other provision of this Lease, Tenant and its successorsand assigns shall indemnify, protect, defend (with counsel approved byLandlord) and hold Landlord, its partners, officers, directors, shareholders,employees, agents, lenders, contractors and each of their respective successorsand assigns (the “Indemnified Parties”) harmless from any and all claims,damages, liabilities, losses, costs and expenses of any nature whatsoever,known or unknown, contingent or otherwise (including, without limitation,attorneys’ fees, litigation, arbitration and administrative proceedings costs,expert and consultant fees and laboratory costs, as well as damages arising outof the diminution in the value of the Premises or any portion thereof, damagesfor the loss of the Premises, damages arising from any adverse impact on themarketing of space in the Premises, and sums paid in settlement of claims),which arise during or after the Term in whole or in part as a result of thepresence or suspected presence of any hazardous or toxic materials, in, on,under, from or about the Premises due to Tenant’s acts or omissions, on orabout the Premises, unless such claims, damages, liabilities, losses, costs andexpenses arise out of or are caused by the negligence or willful misconduct ofany of the Indemnified Parties. Landlord and its successors and assigns shallindemnify and hold Tenant and its successors and assigns harmless against allsuch claims or damages if arising out of or caused by the negligence or willfulmisconduct of Landlord, its agents or employees. The indemnities containedherein shall survive the expiration or earlier termination of this Lease.

 

12.           **Compliance with Laws.** Tenant and Landlord shall operate thePremises and Building respectively in compliance with all applicable federal,state, and municipal laws, ordinances and regulations (including, withoutlimitation, the Americans with Disabilities Act) and shall not knowingly,directly or indirectly, make any use of the Premises or Building which isprohibited by any such laws, ordinances or regulations.

 

13.           **Waste Disposal.**

 

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

 

(b)           Tenant shall be responsible for theremoval and disposal of any waste deemed by any governmental authority havingjurisdiction over the matter to be hazardous or infectious waste or wasterequiring special handling, such removal and disposal to be in accordance withany and all applicable governmental rules, regulations, codes, orders orrequirements. Tenant agrees to separate and mark appropriately all waste to beremoved and disposed of through the janitorial service pursuant to (a) aboveand hazardous, infectious or special waste to be removed and disposed of byTenant pursuant to this subparagraph (b). Tenant hereby indemnifies and holdsharmless Landlord from and against any loss, claims,

 

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demands,damage or injury Landlord may suffer or sustain as a result of Tenant's failureto comply with the provisions of this subparagraph (b).

 

14.           **Rules and Regulations**. The rules and regulations in regardto the Building, a copy of which is attached hereto as Exhibit “D,”and all reasonable rules and regulations and modifications thereto whichLandlord may hereafter from time to time adopt and promulgate after noticethereof to Tenant, for the government and management of the Building, arehereby made a part of this Lease and shall during the Term be observed andperformed by Tenant, its agents, employees and invitees.

 

**D.            Services/Tenant Buildout.**

 

15.           **Services**.

 

(a)           The normal business hours of theBuilding shall be from 8:00 A. M. to 6:00 P.M. on Monday through Friday,and at such other hours and times as determined by Landlord to be required forthe majority of the occupants of the Building, exclusive of Building holidaysas reasonably designated by Landlord (“Building Holidays”). Initially and untilfurther notice by Landlord to Tenant, the Building Holidays shall be: New Year’sDay, Memorial Day, Independence Day, Labor Day, Thanksgiving (and the day afterThanksgiving) and Christmas. Landlord shall furnish the following servicesduring the normal business hours of the Building except as noted:

 

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

 

(ii)           Air conditioning reasonably adequateto cool the Premises and heat reasonably adequate to warm the Premises inaccordance with the standards set forth on the HVAC Specifications shown on Exhibit “E”attached hereto and made a part hereof, subject to governmental regulations (solong as the occupancy level of the Premises and the heat generated byelectrical lighting and fixtures do not exceed the thresholds set forth on Exhibit “E”).

 

(iii)          Hot and cold running water for allrestrooms and lavatories;

 

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

 

(v)           Janitorial service Monday throughFriday, in keeping with the standards generally maintained in similar officebuildings in the city where the Building is located;

 

(vi)          Custodial, electrical and mechanical maintenanceservices in the Building;

 

(vii)         Electric power for lighting and outletsnot in excess of the total watts per rentable square foot of the Premises setforth on Exhibit ”E” at 100% connected load (Tenant shall pay forany electrical service in excess of such amount);

 

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(viii)        Replacement of Building standard lampsand ballasts as needed from time to time;

 

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

 

(x)            General Buildingmanagement, including supervision, inspections, recordkeppeing, accounting,leasing and related management functions.

 

(b)           Tenant shall have no right to anyservices in excess of those provided herein. If Tenant uses services in anamount or for a period in excess of that provided for herein, then Landlordreserves the right to charge Tenant as Additional Rent hereunder a reasonablesum as reimbursement for the direct cost of such added services, and to chargeTenant for the cost of any additional equipment or facilities or modificationsthereto which are necessary to provide the additional services, and/or to discontinueproviding such excess services to Tenant.

 

(c)           Landlord shall not be liable for anydamages directly or indirectly resulting from the interruption in any of theservices described above, nor shall any such interruption entitle Tenant to anyabatement of Rent or any right to terminate this Lease. Landlord shall use allreasonable efforts to furnish uninterrupted services as required above.Notwithstanding the foregoing, in the event that any interruption ordiscontinuance of services provided pursuant to this Section 15 was withinthe reasonable control of Landlord to prevent and such interruption ordiscontinuance continues beyond three (3) business days after writtennotice to Landlord and materially and adversely affects Tenant’s ability toconduct business in the Premises, or any portion thereof, and on account ofsuch interruption or disturbance Tenant ceases doing business in the Premises,Base Rent and Additional Rent shall thereafter abate proportionately for solong as Tenant remains unable to conduct its business in the Premises or suchportion thereof. To the extent within Landlord’s reasonable control, Landlordagrees to use reasonable efforts to restore such interrupted or discontinuedservice as soon as reasonably practicable.

 

16.           **Telephoneand Data Equipment.**  Landlordshall have no responsibility for providing to Tenant any telephone equipment,including wiring, within the Premises or for providing telephone service orconnections from the utility to the Premises, except as required by law. Tenantshall not alter, modify, add to or disturb any telephone or data wiring in thePremises or elsewhere in the Building without the Landlord’s prior writtenconsent. Tenant shall be liable to Landlord for any damage to the telephone ordata wiring in the Building due to the act, negligent or otherwise, of Tenantor any employee, contractor or other agent of Tenant. Tenant shall have noaccess to the telephone closets within the Building, except in the manner andunder procedures established by Landlord. Tenant shall promptly notify Landlordof any actual or suspected failure of telephone or data service to thePremises. All costs incurred by Landlord for the installation, maintenance,repair and replacement of telephone wiring within the Building shall be anOperating Expense unless Landlord is reimbursed for such costs by other tenantsof the Building. Landlord shall not be liable to Tenant and Tenant waives allclaims against Landlord whatsoever, whether for personal injury, propertydamage, loss of use of the Premises, or otherwise, due to the interruption orfailure of telephone services to the Premises.

 

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Tenant hereby holds Landlordharmless and agrees to indemnify, protect and defend Landlord from and againstany liability for any damage, loss or expense due to any failure orinterruption of telephone or data service to the Premises for any reason.Tenant agrees to obtain loss of rental insurance adequate to cover any damage,loss or expense occasioned by the interruption of telephone or data service.

 

17.           **Signs.** A Building standard suite entryshall be installed on the door to the Premises or adjacent to the entry to thePremises as part of the Work described in Section 20 below, and the costthereof shall be paid out of the Tenant Improvement Allowance described in Section 20below. Otherwise, Tenant shall not paint or place any signs, placards, or otheradvertisements of any character upon the windows or inside walls of thePremises (except with the prior consent of Landlord, which consent may bewithheld by Landlord in its absolute discretion), and Tenant shall place nosigns upon the outside walls, common areas or the roof of the Building.

 

18.           **Parking.** No rights to specific parking spaces aregranted under this Lease; however, subject to Landlord’s rights pursuant to thelast sentence of this Section 18, Tenant shall be entitled to use up tothe total number of parking spaces set forth in the Basic Lease Provisions inthe parking facilities located on the Property. All parking spaces provided toTenant shall be unreserved (unless otherwise specified on Exhibit “H”attached hereto) and are to be used by Tenant, its employees and invitees incommon with the other tenants of the Building and their employees and invitees.Landlord reserves the right to build improvements upon, reduce the size of,relocate, reconfigure, eliminate, and/or make alterations or additions to suchparking facilities at any time. The use of the parking spaces is provided byLandlord to Tenant at the published rates charged by Landlord to third partiesfrom time to time. Such payments for parking shall be considered AdditionalRent. Tenant shall not have the right to surrender or return parking spaces andshall be obligated to pay for all of the allocated parking spaces throughoutthe Term.

 

19.           **Storage**. If Landlord makes available to Tenantany storage space outside the Premises, anything stored therein shall be whollyat the risk of Tenant, and Landlord shall have no responsibility or liabilityfor the items stored therein.

 

20.           **BuildoutAllowance and Tenant Finishes.**

 

(a)           Landlord will provide to Tenant anallowance (“Tenant Improvement Allowance”) per rentable square foot containedwithin the Premises as set forth in the Basic Lease Provisions to be applied tothe cost of the Work and Additional Work described in Exhibit “B”. Tenantand Landlord agree that all costs of the Work and Additional Work in excess ofsuch Tenant Improvement Allowance which are requested by Tenant and approved byLandlord shall be paid by Tenant to Landlord as follows: twenty-five (25%)percent of such excess costs prior to the commencement of the Work, fiftypercent (50%) of such excess costs within five (5) business days ofLandlord’s notice that fifty percent (50%) of the Work is complete and thebalance (i.e. 25%) of actual costs upon substantial completion and prior tooccupancy. The amount due for each installment shall be set forth in a writteninvoice from Landlord. Should Tenant fail to pay for such excess costs when dueas herein provided, such amount due shall

 

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accrue interest at the lesserof a rate of one and one-half (1-1/2%) percent per month or fraction thereoffrom the date such payment is due until paid (Annual Percentage Rate = 18%), orthe highest rate permitted by applicable law, and the failure to pay suchamount when due shall be a default, subject to the provisions of Section 34below.

 

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

 

21.           **Force Majeure**. In the event of a strike, lockout, labortrouble, civil commotion, an act of God, or any other event beyond Landlord’scontrol (a “force majeure event”) which results in the Landlord being unable totimely perform its obligations hereunder to repair the Premises, provideservices, or complete Work (as provided in Exhibit “B”), so long asLandlord diligently proceeds to perform such obligations after the end of suchforce majeure event, Landlord shall not be in breach hereunder, this Leaseshall not terminate, and Tenant’s obligation to pay any Base Rent, additionalrent, or any other charges and sums due and payable shall not be excused.

 

**E.             Repairs/Alterations/Casualty/Condemnation.**

 

22.           **Repairs By Landlord.** Tenant, by taking possession of thePremises, shall accept and shall be held to have accepted the Premises assuitable for the use intended by this Lease. In no event shall Tenant beentitled to compensation or any other damages or any other remedy againstLandlord in the event the Premises are not deemed suitable for Tenant’s use.Landlord shall not be required, after possession of the Premises has beendelivered to Tenant, to make any repairs or improvements to the Premises,except as set forth in this Lease. Except for damage caused by casualty andcondemnation (which shall be governed by Section 25 and 26 below), andsubject to normal wear and tear, Landlord shall maintain in good repair theexterior walls, roof, common areas, foundation, structural portions and theBuilding’s mechanical, electrical, plumbing and HVAC systems, provided suchrepairs are not occasioned by Tenant, Tenant’s invitees or anyone in the employor control of Tenant.

 

23.           **Repairs By Tenant.**  Except as described in Section 22 above,Tenant shall, at its own cost and expense, maintain the Premises in good repairand in a neat and clean, first-class condition, including making all necessaryrepairs and replacements. Tenant shall further, at its own cost and expense,repair or restore any damage or injury to all or any part of the Buildingcaused by Tenant or Tenant’s agents, employees, invitees, licensees, visitorsor contractors, including but not limited to any repairs or replacementsnecessitated by (i) the construction or installation of improvements tothe Premises by or on behalf of Tenant, and (ii) the moving of any propertyinto or out of the Premises. If Tenant fails to make such repairs orreplacements promptly, Landlord may, at its option, upon prior reasonablenotice to Tenant (except in an emergency) make the required repairs andreplacements and the costs of such repair or replacements shall be charged toTenant as Additional Rent and shall become due and payable by Tenant with themonthly installment of Base Rent next due hereunder.

 

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24.           **Alterationsand Improvements/Liens.**

 

(a)           Except for minor, decorativealterations which do not affect the Building structure or systems, are notvisible from outside the Premises and do not cost in excess of $10,000.00 inthe aggregate, Tenant shall not make or allow to be made any alterations,physical additions or improvements in or to the Premises without firstobtaining in writing Landlord’s written consent for such alterations oradditions, which consent may be granted or withheld in Landlord’s solediscretion if the alterations will affect the Building structure or systems orwill be visible from outside the Premises, but which consent shall not beunreasonably withheld if the alterations will not affect the Building structureor systems and will not be visible from outside the Premises. Upon Landlord’srequest, Tenant will deliver to Landlord plans and specifications for anyproposed alterations, additions or improvements and shall reimburse Landlordfor Landlord’s reasonable cost to review such plans. Any alterations, physical additionsor improvements shall at once become the property of Landlord; provided,however, that Landlord, at its option, may require Tenant to remove anyalterations, additions or improvements in order to restore the Premises to thecondition existing on the Commencement Date (if Landlord notified Tenant at thetime of Landlord’s consent to any such alterations, additions or improvementsthat Landlord reserved the right to require the removal thereof). All costs ofany such alterations, additions or improvements shall be borne by Tenant. Allalterations, additions or improvements shall be made in a good, first-class,workmanlike manner and in a manner that does not disturb other tenants (i.e.,any loud work must be performed during non-business hours) and Tenant mustmaintain appropriate liability and builder’s risk insurance throughout theconstruction. Tenant does hereby indemnify and hold Landlord harmless from andagainst any and all claims for damages or death of persons or damage ordestruction of property arising out of or relating to the performance of anysuch alterations, additions or improvements made by or on behalf of Tenant.Under no circumstances shall Landlord be required to pay, during the Term ofthis Lease and any extensions or renewals thereof, any ad valorem or Propertytax on such alterations, additions or improvements, Tenant hereby covenantingto pay all such taxes when they become due. In the event any alterations,additions, improvements or repairs are to be performed by contractors orworkmen other than Landlord’s contractors or workmen, any such contractors orworkmen must first be approved, in writing, by Landlord (which approval willnot be unreasonably withheld). Landlord agrees to assign to Tenant any rightsLandlord may have against the contractor of the Premises with respect to anywork performed by such contractor in connection with improvements made byLandlord at the request of Tenant.

 

(b)           Nothing contained in this Lease shallauthorize or empower Tenant to do any act which shall in any way encumberLandlord’s title to the Building, Property, or Premises, nor in any way subjectLandlord’s title to any claims by way of lien or encumbrance whether claimed byoperation of law or by virtue of any expressed or implied contract of Tenant,and any claim to a lien upon the Building or Premises arising from any act oromission of Tenant shall attach only against Tenant’s interest and shall in allrespects be subordinate to Landlord’s title to the Building, Property, andPremises. If Tenant has not removed any such lien or encumbrance or (providedthat Tenant in contesting such lien or encumbrance) delivered to Landlord atitle indemnity, bond or other security reasonably satisfactory to Landlord,within fifteen (15) days after written notice to Tenant by Landlord, Landlordmay pay the amount necessary to remove such lien or encumbrance, without beingresponsible for making any investigation as to the

 

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validitythereof, and the amount so paid shall be deemed additional rent reserved underthis Lease due and payable forthwith.

 

25.           **Destruction or Damage.**

 

(a)           If the Building or the Premises aretotally destroyed by storm, fire, earthquake, or other casualty, or damaged tothe extent that, in Landlord’s reasonable opinion, the damage cannot berestored within one hundred eighty (180) days of the date Landlord providesTenant written notice of Landlord’s reasonable estimate of the time necessaryto restore the damage, or if the damage is not covered by standard “all risks”property insurance, or if the Landlord’s lender requires that the insuranceproceeds be applied to its loan, Landlord shall have the right to terminatethis Lease effective as of the date of such destruction or damage by writtennotice delivered to Tenant on or before thirty (30) days following Landlord’snotice described in the next sentence and Rent shall be accounted for asbetween Landlord and Tenant as of that date. Landlord shall provide Tenant withwritten notice no later than sixty (60) days following the date of such damageof the estimated time needed to restore, whether the loss is covered byLandlord’s insurance coverage and whether or not Landlord’s lender requires theinsurance proceeds be applied to its loan.

 

(b)           If the Premises are damaged by anysuch casualty or casualties but Landlord is not entitled to or does notterminate this Lease as provided in subparagraph (a) above, this Leaseshall remain in full force and effect, Landlord shall notify Tenant in writingno later than sixty (60) days after the date of such damage that such damagewill be restored (and will include Landlord’s good faith estimate of the datethe restoration will be complete), in which case Rent shall abate as to anyportion of the Premises which is not usable for the period of suchuntenantability, and Landlord shall promptly commence to diligently restore thePremises to substantially the same condition as before such damage occurred assoon as practicable, whereupon full Rent shall recommence.

 

(c)           If such damage occurs within the lasttwelve (12) months of the Term, either party shall have the right, upondelivery of written notice to the other party within thirty (30) days followingsuch damage, to cancel and terminate this Lease as of the date of such damage,provided, however, that Tenant may not elect to terminate this Lease if suchdamage was caused by the intentional act of Tenant, its agents, servants,employees or invitees.

 

(d)           Tenant agrees that Landlord’s obligation to restore, andthe abatement of Rent provided herein, or Tenant’s right to terminate as aboveset forth in this Section 24, shall be Tenant’s sole recourse in the eventof such damage, and waives any other rights Tenant may have under anyapplicable Law to terminate the Lease by reason of damage to the Premises orProperty. If prior to any such election to terminate Tenant has elected toextend the Term pursuant to the provisions of this Lease and such election maynot then according to its terms be rescinded or terminated, then for purposesof this Section 25 the Term shall be deemed to expire on such extendeddate.

 

26.           **Eminent Domain.** If the whole of the Building orPremises, or such portion thereof as will make the Building or Premisesunusable in the reasonable judgment of Landlord

 

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for their intended purposes, iscondemned or taken by any legally constituted authority for any public use orpurpose, then in either of such events, this Lease shall terminate and the Termhereby granted shall cease from that time when possession thereof is taken bythe condemning authorities, and Rent shall be accounted for as between Landlordand Tenant as of such date. If a portion of the Building or Premises is sotaken, but not such amount as will make the Premises unusable in the reasonablejudgment of Landlord for the purposes herein leased, or if this Lease has notterminated, this Lease shall continue in full force and effect and the Rentshall be reduced prorata in proportion to the amount of the Premises so taken.Tenant shall have no right or claim to any part of any award made to orreceived by Landlord for such condemnation or taking, and all awards for suchcondemnation or taking shall be made solely to Landlord, provided however thatTenant shall have the right to pursue any separate award for loss of itsequipment and trade fixtures and for moving expenses so long as such actiondoes not reduce the award to which Landlord is entitled.

 

27.           **Damage or Theft of Personal Property.** All personal property brought into thePremises shall be at the risk of the Tenant only and Landlord shall not beliable for theft thereof or any damage thereto occasioned by any acts ofcotenants, or other occupants of the Building, or any other person, except,with respect to damage to the Premises, as may be occasioned by the negligentor willful act of the Landlord, its employees and agents (but subject to theinsurance and waiver of subrogation provisions set forth in Section 28below).

 

**F.             Insurance/Indemnities/Waiver/Estoppel.**

 

28.           **Insurance; Waivers.**

 

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

 

(i)            Commercial General Liability (“CGL”)Insurance written on an occurrence basis, covering the Premises and alloperations of the Tenant in or about the Premises against claims for bodilyinjury, property damage and product liability and to include contractualliability coverage insuring Tenant’s indemnification obligations under thisLease, to be in combined single limits of not less than $1,000,000 eachoccurrence for bodily injury and property damage, $1,000,000 forproducts/completed operations aggregate, $1,000,000 for personal injury, and tohave general aggregate limits of not less than $2,000,000 (per location) andUmbrella Liability Insurance in an amount not less than $5,000,000 for eachpolicy year. The general aggregate limits under the Commercial GeneralLiability insurance policy or policies shall apply separately to the Premisesand to Tenant’s use thereof (and not to any other location or use of Tenant)and such policy shall contain an endorsement to that effect. The certificate ofinsurance evidencing the CGL form of policy shall specify all endorsementsrequired herein and shall specify on the face thereof that the limits of suchpolicy apply separately to the Premises.

 

(ii)           Insurance covering all of the itemsincluded in Tenant’s leasehold improvements, heating, ventilating and airconditioning equipment maintained by Tenant, trade

 

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fixtures, merchandise andpersonal property from time to time in, on or upon the Premises, andalterations, additions or changes made by Tenant pursuant to Section 24,in an amount not less than one hundred percent (100%) of their full replacementvalue from time to time during the Term, providing protection against perilsincluded within the standard form of “all-risks” fire and casualty insurancepolicy. Any policy proceeds from such insurance shall be held in trust byTenant’s insurance company for the repair, construction and restoration orreplacement of the property damaged or destroyed unless this Lease shall ceaseand terminate under the provisions of Section 25 of this Lease.

 

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

 

(iv)          Business Interruption Insurance equalto not less than fifty percent (50%) of the estimated gross earnings (asdefined in the standard form of business interruption insurance policy) ofTenant at the Premises which insurance shall be issued on an “all risks” basis(or its equivalent).

 

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

 

(i)            shall nameLandlord as an additional insured (as well as any mortgagee of Landlord and anyother party reasonably designated by Landlord), except with respect to theinsurance described in Section 28(a)(iii) above;

 

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

 

(iii)          shall contain a provision that theinsurer will give to Landlord and such other parties in interest at leastthirty (30) days notice in writing (and ten days in the case of nonpayment) inadvance of any material change, cancellation, termination or lapse, or theeffective date of any reduction in the amounts of insurance; and

 

(iv)          shall bewritten as a primary policy which does not contribute to and is not in excessof coverage which Landlord may carry.

 

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

 

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(i)                                     Landlord and any other parties in interestfrom time to time designated by Landlord to Tenant shall be named as anadditional insured thereunder as its interest may appear;

 

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

 

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

 

(d)                                 During the Term hereof, Landlord shall in amanner comparable to other comparable office buildings in the commercial marketwhere the Building is located keep in effect (i) commercial propertyinsurance on the Building, its fixtures and equipment, and rent loss insurancefor a period and amount of not less than one (1) year of rent (suchcommercial property insurance policy shall, at a minimum, cover the perils insuredunder the ISO special causes of loss form which provides “all risk” coverage,and include replacement cost coverage), and (ii) a policy or policies ofcommercial general liability insurance insuring against liability arising outof the risks of death, bodily injury, property damage and personal injuryliability with respect to the Building and Property.

 

(e)                                  Notwithstanding anything to the contrary setforth hereinabove, Landlord and Tenant do hereby waive any and all claimsagainst one another for damage to or destruction of real or personal propertyto the extent such damage or destruction can be covered by “all risks” propertyinsurance of the type described in Section 28(a)(ii) andSection 28(d)(i) above. The risk to be borne by each party shall alsoinclude the satisfaction of any deductible amounts required to be paid underthe applicable “all risks” fire and casualty insurance carried by the partywhose property is damaged, and each party agrees that the other party shall notbe responsible for satisfaction of such deductible. These waivers shall applyif the damage would have been covered by a customary “all risks” insurancepolicy, even if the party fails to obtain such coverage. The intent of thisprovision is that each party shall look solely to its insurance with respect toproperty damage or destruction which can be covered by “all risks” insurance ofthe type described in Section 28(a)(ii) and Section 28(d)(i).Each such policy shall include a waiver of all rights of subrogation by the insurancecarrier against the other party, its agents and employees with respect toproperty damage covered by the applicable “all risks” fire and casualtyinsurance policy.

 

29.                                 **Indemnities.** Tenant does hereby indemnify and saveharmless Landlord against all claims for damages to persons or property whichare caused anywhere in the Building or on the Property by the negligence orwillful misconduct of Tenant, its agents or employees or which occur in thePremises (or arise out of actions taking place in the Premises) unless suchdamage is caused by the negligence or willful misconduct of Landlord, itsagents, or employees. Landlord does hereby indemnify and hold Tenant harmlessagainst all claims for damage to persons or property caused by the negligenceor willful misconduct of Landlord, its agents or employees which occur on theProperty or common areas of the Building unless such damage is caused by thenegligence or willful misconduct of Tenant, its agents or employees. Theindemnities set forth hereinabove shall include the application to payreasonable expenses incurred by the

 

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indemnifiedparty, including, without limitation, reasonable, actually incurred attorney’sfees. The indemnities contained herein do not override the waivers contained inSection 28(e) above.

 

30.                                 **Acceptanceand Waiver.**  Except to the extent caused by the negligenceor willful misconduct of Landlord, its agents and employees (but subject to theinsurance provisions in Section 28 above), Landlord shall not be liable toTenant, its agents, employees, guests or invitees (and, if Tenant is acorporation, its officers, agents, employees, guests or invitees) for anydamage caused to any of them due to the Building or any part or appurtenancesthereof being improperly constructed or being or becoming out of repair, orarising from the leaking of gas, water, sewer or steam pipes, or fromelectricity, but Tenant, by moving into the Premises and taking possessionthereof, shall accept, and shall be held to have accepted the Premises assuitable for the purposes for which the same are leased, and shall accept andshall be held to have accepted the Building and every appurtenances thereof,and Tenant by said act waives any and all defects therein; provided, however,that this Section shall not preclude Tenant from seeking recovery from anythird party responsible for such damage or injury.

 

31.                                 **Estoppel.** Tenant shall, from time to time, upon not less than ten (10) daysprior written request by Landlord, execute, acknowledge and deliver to Landlorda written statement certifying that this Lease is unmodified and in full forceand effect (or, if there have been modifications, that the same is in fullforce and effect as modified and stating the modifications), the dates to whichthe Rent has been paid, that Tenant is not in default hereunder and whetherTenant has any offsets or defenses against Landlord under this Lease, andwhether or not to the best of Tenant’s knowledge Landlord is in default hereunder(and if so, specifying the nature of the default), it being intended that anysuch statement delivered pursuant to this paragraph may be relied upon by aprospective purchaser of Landlord’s interest or by a mortgagee of Landlord’sinterest or assignee of any security deed upon Landlord’s interest in thePremises.

 

**G.****                                   ****Default/Remedies/Surrender/HoldingOver.**

 

32.                                 **Notices.**  Anynotice which is required or permitted to be given by either party under thisLease shall be in writing and must be given only by certified mail, returnreceipt requested, by hand delivery or by nationally recognized overnightcourier service at the addresses set forth in Paragraph 13 of the Basic LeaseProvisions. Each party shall further use reasonable efforts to provide the otherparty with a courtesy copy of any notice by fax and by electronic mail. Anysuch notice shall be deemed given on the earlier of two business days after thedate sent in accordance with one of the permitted methods described above orthe date of actual receipt thereof, provided that receipt of notice solely byfax or electronic mail shall not be deemed to be delivery of notice hereunder.The time period for responding to any such notice shall begin on the date thenotice is actually received, but refusal to accept delivery or inability toaccomplish delivery because the party can no longer be found at the thencurrent notice address, shall be deemed receipt. Either party may change itsnotice address by notice to the other party in accordance with the terms ofthis Section 32. The initial notice addresses for each party are set forthin the Basic Lease Provisions.

 

33.                                 **Abandonmentof Premises.**  Tenant agrees not to abandon or vacate thePremises during the Term of this Lease. If Tenant does abandon or vacate thePremises for more

 

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than ninety (90) days, Landlord may terminatethis Lease, by written notice to Tenant at any time prior to Tenant reoccupyingthe Premises, but such termination shall not entitle Landlord to pursue anyother remedies unless an uncured Default then exists, in which case Landlordmay pursue any and all remedies provided by this Lease, at law or in equity.

 

34.                                 **Default****.**  IfTenant shall default in the payment of Rent herein reserved when due and failsto cure such default within ten (10) days after written notice of suchdefault is given to Tenant by Landlord; or if Tenant shall be in default inperforming any of the terms or provisions of this Lease other than theprovisions requiring the payment of Rent, and fails to cure such nonmonetarydefault within thirty (30) days after written notice of such default is givento Tenant by Landlord, providedhowever that if such nonmonetarydefault is of such a nature that it cannot through the exercise of diligent andreasonable efforts be cured within thirty (30) days, then Tenant shall not bein default in such instance if Tenant promptly commences and diligently pursuesthe cure of such nonmonetary default to completion as soon as possible and inall events within ninety (90) days after such initial notice; or if Tenant isadjudicated a bankrupt; or if a permanent receiver is appointed for Tenant’sproperty and such receiver is not removed within sixty (60) days afterappointment thereof; or if, whether voluntarily or involuntarily, Tenant takesadvantage of any debtor relief proceedings under any present or future laws,whereby the Rent or any part thereof, is, or is proposed to be, reduced orpayment thereof deferred; or if Tenant’s effects should be levied upon orattached and such levy or attachment is not satisfied or dissolved withinthirty (30) days after such levy or attachment; or, if Tenant is an individual,in the event of the death of the individual and the failure of the executor,administrator or personal representative of the estate of the deceasedindividual to have assigned the Lease within three (3) months after suchdeath to an assignee approved by Landlord; then, and in any of such events,Landlord, at its option, may exercise any or all of the remedies set forth in Section 35below.

 

35.                                 **Landlord’sRemedies****.**  Uponthe occurrence of any default set forth in Section 34 above which is notcured by Tenant within the applicable cure period provided therein, if any,Landlord may exercise all or any of the following remedies:

 

(a)                                  terminate this Lease by giving Tenant writtennotice of termination, in which event this Lease shall terminate on the datespecified in such notice and all rights of Tenant under this Lease shall expireand terminate as of such date, Tenant shall remain liable for all obligationsunder this Lease up to the date of such termination and Tenant shall surrenderthe Premises to Landlord on the date specified in such notice; and if Tenantfails to so surrender, Landlord shall have the right, without notice, to enterupon and take possession of the Premises and to expel and remove Tenant and itseffects without being liable for prosecution or any claim of damages therefor;

 

(b)                                 terminate this Lease as provided in theimmediately preceding subsection and recover from Tenant all damagesLandlord may incur by reason of Tenant’s default, including without limitation,the then present value (discounted at a rate equal to the then issued treasurybill having a maturity approximately equal to the remaining Term of this Leasehad such default not occurred) of (i) the total Rent which would have beenpayable hereunder by Tenant for the period beginning with the day following thedate of such termination and ending with the Expiration Date of the Term asoriginally scheduled hereunder, minus (ii) the aggregate

 

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reasonable rental value ofthe Premises for the same period (as determined by a real estate brokerselected by Landlord who is licensed in the state where the Building islocated, who has at least ten (10) years experience immediately prior tothe date in question in evaluating commercial office space, taking into accountall relevant factors including, without limitation, the length of the remainingTerm, the then current market conditions in the general area, the likelihood ofreletting for a period equal to the remainder of the Term, net effective ratesthen being obtained by landlords for similar type space in similar buildings inthe general area, vacancy levels in the general area, current levels of newconstruction in the general area and how that would affect vacancy and rentalrates during the period equal to the remainder of the Term and inflation), plus(iii) the costs of recovering the Premises, and all other expensesincurred by Landlord due to Tenant’s default, including, without limitation,reasonable attorneys’ fees, plus (iv) the unpaid Rent earned as of thedate of termination, plus interest, all of which sum shall be immediately dueand payable by Tenant to Landlord;

 

(c)                                  without terminating this Lease, and withoutnotice to Tenant, Landlord may in its own name, but as agent for Tenant enterinto and take possession of the Premises and re-let the Premises, or anyportion thereof, as agent of Tenant, upon any terms and conditions as Landlordmay deem necessary or desirable (Landlord shall have no obligation to attemptto re-let the Premises or any part thereof except to the extent required byapplicable law). Upon any such re-letting, all rentals received by Landlordfrom such re-letting shall be applied first to the costs incurred by Landlordin accomplishing any such re-letting, and thereafter shall be applied to theRent owed by Tenant to Landlord during the remainder of the Term of this Leaseand Tenant shall pay any deficiency between the remaining Rent due hereunderand the amount received by such re-letting as and when due hereunder;

 

(d)                                 allow the Premises to remain unoccupied (solong as Landlord satisfies any duty established by applicable law to mitigateits damages) and collect Rent from Tenant as it becomes due; or

 

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

 

36.                                 **Serviceof Notice**  Except as otherwise provided by law, Tenant herebyappoints as its agent to receive the service of all dispossessory or distraintproceedings and notices thereunder, the person in charge of or occupying thePremises at the time of such proceeding or notice; and if no person be incharge or occupying the Premises, then such service may be made by attachingthe same to the front entrance of the Premises.

 

37.                                 **Advertising.**  Landlord may advertise thePremises as being “For Rent” at any time following a default by Tenant whichremains uncured and at any time within one hundred eighty (180) days prior tothe expiration, cancellation or termination of this Lease for any reason andduring any such periods Landlord may exhibit the Premises to prospectivetenants upon prior reasonable notice to Tenant.

 

38.                                 **Surrenderof Premises.**  Whenever under the terms hereof Landlord isentitled to possession of the Premises, Tenant at once shall surrender thePremises and the keys thereto to Landlord in the same condition as on theCommencement Date hereof, natural wear and tear only

 

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excepted, and Tenant shallremove all of its personal property therefrom and shall, if directed to do soby Landlord, remove all improvements and restore the Premises to its originalcondition prior to the construction of any improvements which have been madetherein by or on behalf of Tenant, including any improvements made prior to theCommencement Date. Landlord may forthwith re-enter the Premises and repossessitself thereof and remove all persons and effects therefrom, using such forceas may be reasonably necessary without being guilty of forcible entry,detainer, trespass or other tort. Tenant’s obligation to observe or performthese covenants shall survive the expiration or other termination of the Termof this Lease. If the last day of the Term of this Lease or any renewal fallson a Saturday, Sunday or a legal holiday, this Lease shall expire on thebusiness day immediately preceding.

 

39.                                 **CleaningPremises.**  Uponvacating the Premises, Tenant agrees to return the Premises to Landlord broomclean and in the same condition when Tenant’s possession commenced, naturalwear and tear excepted, regardless of whether any Security Deposit (as definedin Section 10 above) has been forfeited.

 

40.                                 **Removalof Fixtures.**  IfTenant is not in default hereunder, Tenant may, prior to the expiration of theTerm of this Lease, or any extension thereof, removeany fixtures and equipment which Tenant has placed in the Premises which can beremoved without significant damage to the Premises, provided Tenant promptlyrepairs all damages to the Premises caused by such removal.

 

41.                                 **HoldingOver.**  In theevent Tenant remains in possession of the Premises after the expiration of theTerm hereof, or of any renewal term, with Landlord’s written consent, Tenantshall be a tenant at will and such tenancy shall be subject to all theprovisions hereof, except that the monthly rental shall be at the higher of150% of the monthly Base Rent payable hereunder upon such expiration of theTerm hereof, or of any renewal term, or 150% of the then current fair marketrental value of the Premises as the same would be adjusted pursuant to theprovisions of Section 7 hereof, which monthly rental shall increase from150% to 200% of such monthly Base Rent (or current fair market rental value, asthe case may be) if such holding over continues more than thirty (30) days. Inthe event Tenant remains in possession of the Premises after the expiration ofthe Term hereof, or any renewal term, without Landlord’s written consent,Tenant shall be a tenant at sufferance and may be evicted by Landlord withoutany notice, but Tenant shall be obligated to pay rent for such period thatTenant holds over without written consent at the same rate provided in theprevious sentence and shall also be liable for any and all other damagesLandlord suffers as a result of such holdover including, without limitation,the loss of a prospective tenant for such space. There shall be no renewal ofthis Lease by operation of law or otherwise. Nothing in this Section shallbe construed as a consent by Landlord for any holding over by Tenant after theexpiration of the Term hereof, or any renewal term.

 

42.                                 **Attorney’sFees.**  In caseLandlord shall, without fault on its part, be made a party to any litigationcommenced by or against Tenant, then Tenant shall pay all costs, expenses andreasonable attorneys’ fees incurred or paid by Landlord in connection with suchlitigation. In the event of any action, suit or proceeding brought by Landlordor Tenant to enforce any of the other’s covenants and agreements in this Lease,the prevailing party shall be entitled to recover from the

 

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non-prevailingparty any costs, expenses and reasonable attorneys’ fees incurred in connectionwith such action, suit or proceeding.

 

43.                                 **Mortgagee’sRights.**

 

(a)                                  Tenant agrees that this Lease shall besubject and subordinate (i) to any mortgage, deed of trust or othersecurity interest now encumbering the Property and to all advances which may behereafter made, to the full extent of all debts and charges secured thereby andto all renewals or extensions of any part thereof, and to any mortgage, deed oftrust or other security interest which any owner of the Property may hereafter,at any time, elect to place on the Property; (ii) to any assignment ofLandlord’s interest in the leases and rents from the Building or Property whichincludes the Lease which now exists or which any owner of the Property mayhereafter, at any time, elect to place on the Property; and (iii) to anyUniform Commercial Code Financing Statement covering the personal propertyrights of Landlord or any owner of the Property which now exists or any ownerof the Property may hereafter, at any time, elect to place on the foregoingpersonal property (all of the foregoing instruments set forth in (i), (ii) and(iii) above being hereafter collectively referred to as “SecurityDocuments”). Tenant agrees upon request of the holder of any Security Documents(“Holder”) to hereafter execute any documents which the counsel for Landlord orHolder may reasonably deem necessary to evidence the subordination of the Leaseto the Security Documents. Within ten (10) days after request therefor, ifTenant fails to execute any such requested documents, Landlord or Holder ishereby empowered to execute such documents in the name of Tenant evidencingsuch subordination, as the act and deed of Tenant, and this authority is herebydeclared to be coupled with an interest and not revocable.

 

(b)                                 In the event of a foreclosure pursuant to anySecurity Documents, Tenant shall at the election of the Landlord, thereafterremain bound pursuant to the terms of this Lease as if a new and identicalLease between the purchaser at such foreclosure (“Purchaser”), as landlord, andTenant, as tenant, had been entered into for the remainder of the Term hereofand Tenant shall attorn to the Purchaser upon such foreclosure sale and shallrecognize such Purchaser as the Landlord under the Lease. Such attornment shallbe effective and self-operative without the execution of any further instrumenton the part of any of the parties hereto. Tenant agrees, however, to executeand deliver at any time and from time to time, upon the request of Landlord orof Holder, any instrument or certificate that may be necessary or appropriatein any such foreclosure proceeding or otherwise to evidence such attornment.

 

(c)                                  If the Holder of any Security Document or thePurchaser upon the foreclosure of any of the Security Documents shall succeedto the interest of Landlord under the Lease, such Holder or Purchaser shallhave the same remedies, by entry, action or otherwise for the non-performanceof any agreement contained in the Lease, for the recovery of Rent or for anyother default or event of default hereunder that Landlord had or would have hadif any such Holder or Purchaser had not succeeded to the interest of Landlord.Any such Holder or Purchaser which succeeds to the interest of Landlordhereunder, shall not be (a) liable for any act or omission of any priorLandlord (including Landlord) unless such act or omission is of a continuingnature; or (b) subject to any offsets or defenses which Tenant might haveagainst any prior Landlord (including Landlord); or (c) bound by any Rentwhich Tenant might have paid for

 

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more than thecurrent month to any prior Landlord (including Landlord); or (d) bound byany amendment or modification of the Lease made without its consent.

 

(d)                                 Notwithstanding anything to the contrary setforth in this Section 43, the Holder of any Security Documents shall havethe right, at any time, to elect to make this Lease superior and prior to itsSecurity Document. No documentation, other than written notice to Tenant, shallbe required to evidence that the Lease has been made superior and prior to suchSecurity Documents, but Tenant hereby agrees to execute any documentsreasonably requested by Landlord or Holder to acknowledge that the Lease hasbeen made superior and prior to the Security Documents.

 

**H.            Landlord Entry/Relocation/Assignmentand Subletting.**

 

44.                                 **EnteringPremises.**  Landlordmay enter the Premises at reasonable hours provided that Landlord’s entry shallnot unreasonably interrupt Tenant’s business operations and that prior noticeis given when reasonably possible (and, if in the opinion of Landlord anyemergency exists, at any time and without notice): (a) to make repairs,perform maintenance and provide other services described in Section 22above (no prior notice is required to provide routine services) which Landlordis obligated to make to the Premises or the Building pursuant to the terms ofthis Lease or to the other premises within the Building pursuant to the leasesof other tenants; (b) to inspect the Premises in order to confirm thatTenant is complying with all of the terms and conditions of this Lease and withthe rules and regulations hereof, (c) to remove from the Premises anyarticles or signs kept or exhibited therein in violation of the terms hereof; (d) torun pipes, conduits, ducts, wiring, cabling or any other mechanical,electrical, plumbing or HVAC equipment through the areas behind the walls,below the floors or above the drop ceilings in the Premises and elsewhere inthe Building; and (e) to exercise any other right or perform any otherobligation that Landlord has under this Lease. Landlord shall be allowed totake all material into and upon the Premises that may be required to make anyrepairs, improvements and additions, or any alterations, without in any waybeing deemed or held guilty of trespass and without constituting a constructiveeviction of Tenant. The Rent reserved herein shall not abate while suchrepairs, alterations or additions are being made and Tenant shall not beentitled to maintain a set-off or counterclaim for damages against Landlord byreason of loss from interruption to the business of Tenant because of theprosecution of any such work. Unless any work would unreasonably interfere withTenant’s use of the Premises if performed during business hours, all suchrepairs, decorations, additions and improvements shall be done during ordinarybusiness hours, or, if any such work is at the request of Tenant to be done duringany other hours, the Tenant shall pay all overtime and other extra costs.

 

45.                                 **Relocation****.**  At any time or from time to timeduring the Term or any renewal thereof, Landlord shall have the unrestrictedright to relocate Tenant from the Premises to any other reasonably comparableoffice space in the Building. Landlord shall provide Tenant at least sixty (60)days’ prior written notice of any such relocation and Landlord shall reimburseTenant for all reasonable expenses incurred by Tenant in connection with suchrelocation including moving expenses, telecommunications and data cabling andhookup and the cost of a reasonable supply of replacement stationery. Landlordshall, at its sole expense, renovate or construct improvements in therelocation space that are substantially similar to those in the Premises.

 

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Following any such relocation, Landlord and Tenant shall enter into anamendment to this Lease to reflect that the Premises consistsof such relocation space. All other terms and conditions of the Lease shallremain unchanged following such relocation.

 

46.                                 **Assignmentand Subletting**  Tenantmay not, without the prior written consent of Landlord, which consent may bewithheld by Landlord in its sole discretion (except to the extent expresslyrequired otherwise by applicable law), assign this Lease or any interesthereunder, or sublet the Premises or any part thereof, or permit the use of thePremises by any party other than Tenant. In the event that Tenant is acorporation or entity other than an individual, any transfer of a majority orcontrolling interest in Tenant (whether by stock transfer, merger, operation oflaw or otherwise) shall be considered an assignment for purposes of thisparagraph and shall require Landlord’s prior written consent. Consent to oneassignment or sublease shall not destroy or waive this provision, and all laterassignments and subleases shall likewise be made only upon the prior writtenconsent of Landlord. Subtenants or assignees shall become liable to Landlordfor all obligations of Tenant hereunder, without relieving Tenant’s liabilityhereunder and, in the event of any default by Tenant under this Lease, Landlordmay, at its option, but without any obligation to do so, elect to treat suchsublease or assignment as a direct Lease with Landlord and collect rentdirectly from the subtenant. In addition, upon any request by Tenant forLandlord’s consent to an assignment or sublease, Landlord may elect toterminate this Lease and recapture all of the Premises (in the event of anassignment request) or the applicable portion of the Premises (in the event ofa subleasing request); provided, however, if Landlord notifies Tenant thatLandlord elects to exercise this recapture right, Tenant may, within five (5) businessdays of its receipt of Landlord’s recapture notice, notify Landlord that Tenantwithdraws its request to sublease or assign, in which case Tenant shallcontinue to lease all of the Premises, subject to the terms of this Lease andLandlord’s recapture notice shall be null and void. If Tenant desires to assignor sublease, Tenant shall provide written notice to Landlord describing theproposed transaction in detail and providing all documentation (includingdetailed financial information for the proposed assignee or subtenant)reasonably necessary to permit Landlord to evaluate the proposed transaction.Landlord shall notify Tenant within twenty (20) days after Landlord’s receiptof such notice whether Landlord elects to exercise Landlord’s recapture rightand, if not, whether Landlord consents to the requested assignment or sublease.If Landlord fails to respond within such twenty (20) day period, Landlord willbe deemed not to have elected to recapture and to have consented to theassignment or sublease. If Landlord does consent or is deemed to have consentedto any assignment or sublease request and the assignee or subtenant pays toTenant an amount in excess of the Rent due under this Lease (after deductingTenant’s reasonable, actual expenses in obtaining such assignment or sublease,amortized in equal monthly installments over the then remainder of the Term),Tenant shall pay 70% of such excess to Landlord as and when the monthlypayments are received by Tenant. Any subletting or assignment hereunder shallnot release or discharge Tenant of or from any liability, whether past, presentor future, under this Lease, and Tenant shall continue fully liable thereunder.Any subtenant or subtenants or assignee shall agree in a form reasonablysatisfactory to Landlord to comply with and be bound by all of the terms,covenants, conditions, provisions and agreements of this Lease to the extent ofthe space sublet or assigned, and Tenant shall deliver to Landlord promptlyafter execution, an executed copy of each such sublease or assignment and anagreement of compliance by each such subtenant or assignee. Tenant agrees topay to Landlord all reasonable out-of-pocket costs incurred by Landlord(including fees paid to consultants (as may be required)

 

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and attorneys) inconnection with any request by Tenant for Landlord to consent to any assignmentor subletting by Tenant.

 

**I.****                                        ****Sale of Building; Limitation ofLiability.**

 

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

 

48.                                 **Limitationof Liability.** Landlord’s obligations and liability with respect to this Lease shall belimited solely to Landlord’s interest in the Building, as such interest isconstituted from time to time, and neither Landlord nor any partner ofLandlord, or any officer, director, shareholder, or partner or member of anypartner or member of Landlord, shall have any individual or personal liabilitywhatsoever with respect to this Lease.

 

**J.****                                     ****Brokers/Construction/Authority.**

 

49.                                 **BrokerDisclosure****.**  The Landlord’s Broker identified inthe Basic Lease Provisions, who is a real estate broker licensed in the Statewhere the Building is located, has acted as agent for Landlord in thistransaction and is to be paid a commission by Landlord pursuant to a separateagreement. The Tenant’s Broker identified in the Basic Lease Provisions, who isa real estate broker licensed in the State where the Building is located, hasacted as agent for Tenant in this transaction and is to be paid a commission byLandlord pursuant to a separate agreement. Landlord represents that Landlordhas dealt with no other broker other than the broker(s) identified herein.Landlord agrees that, if any other broker makes a claim for a commission basedupon the actions of Landlord, Landlord shall indemnify, defend and hold Tenantharmless from any such claim. Tenant represents that Tenant has dealt with no brokerother than the broker(s) identified herein. Tenant agrees that, if any otherbroker makes a claim for a commission based upon the actions of Tenant, Tenantshall indemnify, defend and hold Landlord harmless from any such claim. Tenantwill cause Tenant’s broker to execute a customary lien waiver, adequate underapplicable law, to extinguish any lien claims such broker may have inconnection with this Lease.

 

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

 

51.                                 **Construction of this Agreement.**  No failure of Landlord to exercise any power given Landlordhereunder, or to insist upon strict compliance by Tenant of its obligations

 

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hereunder, and nocustom or practice of the parties at variance with the terms hereof shallconstitute a waiver of Landlord’s right to demand exact compliance with theterms hereof.  Time is of the essence ofthis Lease.

 

52.                                 **NoEstate In Land****.**  Thiscontract shall create the relationship of landlord and tenant between Landlordand Tenant; no estate shall pass out of Landlord; Tenant has only a right ofuse, not subject to levy or sale, and not assignable by Tenant except withLandlord’s consent.

 

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

 

54.                                 **CumulativeRights.**  Allrights, powers and privileges conferred hereunder upon the parties hereto shallbe cumulative but not restrictive to those given by law.

 

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

 

56.                                 **EntireAgreement.**  ThisLease contains the entire agreement of the parties and no representations,inducements, promises or agreements, oral or otherwise, between the parties notembodied herein shall be of any force or effect.

 

57.                                 **Submissionof Agreement.**  Submissionof this Lease to Tenant for signature does not constitute a reservation of spaceor an option to acquire a right of entry. This Lease is not binding oreffective until execution by and delivery to both Landlord and Tenant.

 

58.                                 **Authority****.**  If Tenant or Landlord executesthis Lease as a corporation, limited partnership, limited liability company orany other type of entity, each of the persons executing this Lease on behalf ofTenant or Landlord, as the case may be, does hereby personally represent andwarrant that Tenant or Landlord, as the case may be, is a duly organized andvalidly existing corporation, limited partnership, limited liability company orother type of entity, that Tenant or Landlord, as the case may be, is qualifiedto do business in the state where the Building is located, that Tenant orLandlord, as the case may be, has full right, power and authority to enter intothis Lease, and that each person signing on behalf of Tenant or Landlord, asthe case may be, is authorized to do so. In the event any such representationand warranty is false, all persons who execute this Lease shall beindividually, jointly and severally, liable as Tenant or Landlord, as the casemay be. Upon Landlord’s or Tenant’s request, as the case may be, the requestedparty shall provide to the requesting party evidence reasonably satisfactory tothe requesting party confirming the foregoing representations and warranties.

 

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59.           **Guaranty.**

 

Tenantshall cause the Guarantor identified in the Basic Lease Provisions to execute aGuaranty of the obligations of Tenant under this Lease in the form of Exhibit “F”attached hereto and made a part hereof.

 

**K.            Special State/LocalLaw Requirements/Special Stipulations.**

 

60.           **State orLocal Law Provisions.**  The State/Local Law Provisions,if any, attached hereto as Exhibit “G” are modifications to theterms of this Lease and, if conflicting, such State/Local Law Provisions shallcontrol in the event of any conflict with the other provisions of this Lease orany exhibits hereto.

 

61.           **SpecialStipulations.**  The Special Stipulations, if any, attachedhereto as Exhibit “H” are modifications to the terms of this Leaseand, if conflicting, such Special Stipulations shall control in the event ofany conflict with the other provisions of this Lease or any exhibits hereto.

 

62.           **OFAC Certification.**

 

(a)           Certification. Tenantcertifies that:

 

(i)            It is not acting,directly or indirectly, for or on behalf of any person, group, entity, ornation named by any Executive Order or the United States Treasury Department asa terrorist, “Specially Designated National and Blocked Person,” or otherbanned or blocked person, entity, nation, or transaction pursuant to any law,order, rule or regulation that is enforced or administered by the Officeof Foreign Assets Control; and

 

(ii)           It is not engagedin this transaction, directly or indirectly on behalf of, or instigating orfacilitating this transaction, directly or indirectly on behalf of, any suchperson, group, entity or nation.

 

(b)           Indemnification. Tenant herebyagrees to defend, indemnify and hold harmless Landlord from and against any andall claims, damages, losses, risks, liabilities and expenses (includingattorney’s fees and costs) arising from or related to any breach of theforegoing certification.

 

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EXHIBIT“A”

 

PROPERTY

 

**LEGAL DESCRIPTION**

**Royal Centre One**

11675 GreatOaks Way, Alpharetta, GA 30022

(Site 15, Royal400 Business Park)

 

*(Asrecorded in Deed Book 21282, pages 126, 127 and 132, Fulton County, Georgia)*

 

ALL THAT TRACT OR PARCEL OF LAND lying and beingin Land Lots 857, 858, and 907 of the 1st District, 2nd Section, Fulton County,Georgia and being more particularly described as follows:

 

TO FIND THE TRUE POINT OF BEGINNING, commence atthe intersection of the easterly right-of-way line of Kimball Bridge Roadand the northerly right-of-way line of North Point Parkway and run in agenerally northeasterly direction along said northerly right-of-way line ofNorth Point Parkway a distance of 4,244.35 feet to a point; thence leaving thesaid northerly right-of-way line of North Point Parkway run North 71 degrees 39minutes 20 seconds West a distance of 170.16 feet to a point; thence run 206.90feet along the arc of a curve to the left said curve having a radius of1,435.00 feet and being subtended by a chord of North 75 degrees 47 minutes 10seconds West a distance of 206.72 feet to the TRUE POINT OF BEGINNING; FROMSAID TRUE POINT OF BEGINNING AS THUS ESTABLISHED, run South 00 degrees 00minutes 00 seconds West a distance of 276.88 feet to a point; thence run South53 degrees 47 minutes 46 seconds West a distance of 408.06 feet to a point;thence run South 75 degrees 05 minutes 22 seconds West a distance of 173.66feet to a point; thence urn South 46 degrees 50 minutes 30 seconds West adistance of 89.39 feet to a point; thence run South 73 degrees 48 minutes 57seconds West a distance of 97.58 feet to a point; thence run South 64 degrees23 minutes 04 seconds Wet a distance of 61.26 feet to a point; thence run North66 degrees 51 minutes 29 seconds West a distance of 69.50 feet to a point;thence run North 45 degrees 03 minutes 22 seconds West a distance of 56.00 feetto a point; thence run North 66 degrees 40 minutes 58 seconds West a distanceof 110.30 feet to a point; thence run North 86 degrees 53 minutes 02 secondsWets a distance of 60.16 feet to a point; thence run North 32 degrees 45minutes 29 seconds West a distance of 55.29 feet to a point; thence run North64 degrees 47 minutes 27 seconds West a distance of 66.28 feet to a point;thence run North 08 degrees 56 minutes 48 seconds West a distance of 82.08 feetto a point; thence run North 50 degrees 51 minutes 11 seconds West a distanceof 111.84 feet to a point on the proposed northeasterly right-of-way of a “ProposedRoad (R/W varies)”; thence run in a generally northeasterly direction along thesaid proposed northeasterly right-of-way of the Proposed Road the followingcourses and distances: along the arc of a 1,182.92 foot radius curve to theright an arc distance of 170.47 feet (said arc being subtended by a chordbearing North 58 degrees 40 minutes 52 seconds East a distance of 170.32 feet)to a point; North 54 degrees 33 minutes 09 seconds East a distance of 268.3feet to a point; along the arc of a 1,004.74 foot radius curve to the right anarc distance of 739.45 feet to a point (said arc being subtended by a chordbearing

 

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North 75 degrees 38 minutes 11 seconds East achord distance of 722.88 feet) to a point; South 74 degrees 16 minutes 45seconds East a distance o 104.91 feet to a point; thence leaving the proposednortheasterly right-of-way of a Proposed Road, run thence South 00 degrees 00minutes 00 seconds West a distance of 57.97 feet to a point, which point is theTRUE POINT OF BEGINNING.

 

The above-described property contains 12.8388acres, more or less, and is shown on and described according to that certainALTA/ACSM Survey for Opus South Corporation, et. Al., prepared by Travis Pruitt &Associates, P.C., dated March 21, 1996, last revised August 6, 1996,which survey is hereby incorporated herein by this reference.

 

TOGETHER WITH easements appurtenant to the above-describedproperty contained in the following-described documents:

 

1.                                       EasementAgreement between Royal 400 Land Company I, L.L.C., a Delaware limitedliability company and Opus South Corporation, a Florida corporation, dated August 7,1996, recorded in Deed Book 21282, page 144, Fulton County, Georgia,Records.

 

2.                                       SoilFill Easement Agreement between Royal 400 Land Company I, L.L.C., a Delawarelimited liability company and Opus South Corporation, a Florida corporation,dated August 7, 1996, recorded in Deed Book 21282, page 157, FultonCounty, Georgia, Records.

 

3.                                       SignEasement Agreement between Royal 400 Land Company I, L.L.C., a Delaware limitedliability company and Opus South Corporation, a Florida corporation, dated August 7,1996, recorded in Deed Book 21282, page 166, Fulton County, Georgia,Records.

 

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EXHIBIT “A-I”

 

PREMISES

 

 

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EXHIBIT “B”

 

(WORK LETTER)

 

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

 

1.             Landlord shall construct, or cause to be constructed,leasehold improvements to the Premises (the “Work”) in accordance with thePlans (hereinafter defined). Landlord shall cause a preliminary layout to be preparedwith Tenant’s cooperation and for Tenant’s approval. Tenant’s failure toapprove or disapprove the layout within five (5) days of its submissionshall be deemed an approval. Upon approval of the layout, Landlord shallprepare, or cause to be prepared, working drawings for the construction of thestandard building items and improvements, adequate in detail to perform theWork and shall have mechanical (sprinkler, air conditioning, heating,electrical and plumbing) drawings prepared by Landlord’s mechanical engineercovering mechanical elements of the Work (together with the preliminary layout,the drawings are referred to as the “Plans”). The Plans (and any modificationsthereof) shall comply with all governmental standards, regulations andrequirements and shall be subject to Landlord’s approval (which approval shallnot be unreasonably withheld). Tenant’s failure to approve or disapprove thePlans within five (5) days of submission shall be deemed an approval.Tenant shall not unreasonably withhold its approval of the Plans or any partthereof.

 

2.             Any other work desired by Tenant, and approved byLandlord (which approval shall not be unreasonably withheld), shall beperformed by Landlord or Landlord’s contractors, unless Landlord otherwiseconsents in writing. If Tenant desires any work in addition to the Workdescribed in Section 1 hereof (“Additional Work”), Tenant shall cause thenecessary drawings, plans and specifications for the Additional Work to beincluded on the Plans, or shall submit to Landlord or Landlord’s agent (atTenant’s sole cost and expense) the necessary drawings, plans andspecifications for the Additional Work within five (5) days of submissionof the Plans to Tenant for approval. Prior to commencing any such AdditionalWork requested by Tenant, Landlord or Landlord’s agent shall submit to Tenant awritten estimate of the cost of such Additional Work. If Tenant shall fail toapprove said estimate within seven (7) days from the receipt thereof, thesame shall be deemed disapproved in all respects by Tenant and Landlord shallnot be authorized to proceed thereon. If Tenant desires any changes in theAdditional Work after having approved the initial plans and cost estimate,Tenant shall be required to sign such field order changes requested by Landlordor Landlord’s contractors or agents to evidence any such change desired byTenant. Tenant acknowledges that no cost estimate will be given for any changesin the Additional Work after the initial cost estimate has been approved byTenant, and Tenant shall be responsible for any and all costs associated withany such change.

 

3.             (a)           TheTenant Improvement Allowance provided in Section 20 of the Lease (whichTenant Improvement Allowance shall be applied toward the cost of the Work andthe excess, if any, toward the Additional Work), includes funds to be appliedtoward the cost of preparing the Plans, the cost of any changes to the Plansand any costs necessary to file the Plans

 

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with, and obtain the necessary permits and approvals of, anygovernmental authority having jurisdiction thereof.

 

(b)           Anyadditional costs in excess of the funds allocated by Landlord in the TenantImprovement Allowance for Plan preparation shall be due and payable by Tenantto Landlord within ten (10) days after receipt by Tenant of a statementtherefor. Any costs of the Work and Additional Work in excess of the TenantImprovement Allowance specified in the Lease shall be due and payable asprovided in the Lease.

 

4.             Landlord, at Landlord’s discretion, may permit Tenantand Tenant’s agents to enter the Premises prior to the Commencement Date of theTerm of the Lease in order that Tenant may do such other work as may berequired by Tenant to make the Premises ready for Tenant’s use and occupancy.If Landlord permits such entry prior to such Commencement Date, such permissionis conditioned upon Tenant and its agents, contractors, employees and inviteesworking in harmony and not interfering with Landlord and its agents,contractors and employees in doing the Work and the Additional Work or forother tenants and occupants of the Building. If at any time such entry shallcause or threaten to cause disharmony or interference, Landlord shall have theright to withdraw such permission upon 24 hours notice to Tenant. Tenant agreesthat any such entry into and occupation of the Premises shall be deemed to beunder all of the terms, covenants, conditions and provisions of the Leaseexcept as to the covenant to pay the rent, and further agrees Landlord shallnot be liable in any way for any injury, loss or damage which may occur to anyof Tenant’s work and installations made in the Premises or to properties placedtherein prior to the Commencement Date of the term of the Lease, the same beingat Tenant’s sole risk.

 

5.             Substantial completion of the Work shall be deemed tooccur on the date when the Work has been completed (except for punchlist itemswhich do not materially, adversely affect Tenant’s use) and a Certificate ofOccupancy has been issued for the Premises. If the substantial completion ofthe Premises by Landlord is delayed due to any act or omission of Tenant orTenant’s representatives, including any delays by Tenant in the submission ofplans, drawings, specifications or other information or in approving anydrawings or estimates or in giving any authorization or approval, the Premisesshall be deemed substantially completed on the date when the Work would havebeen substantially completed but for such delay.

 

6.             Tenant agrees to pay to Landlord as a constructionmanagement fee an amount equal to 6% of the costs of the Work and AdditionalWork, which fee shall be deducted from the Tenant Improvement Allowance byLandlord from time to time upon completion of the various portions of the Workand Additional Work.

 

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EXHIBIT “C”

 

SUBSTANTIALCOMPLETION/ACCEPTANCE LETTER

 

Date 

 

Re:                               Leasedated as of                  ,       , by and between Landlord, and                                   ,as Tenant, for                  rentable square feet on the                  floor of the Building located at                                    .

 

Dear                  :

 

In accordancewith the terms and conditions of the above referenced Lease, Tenant acceptspossession of the Premises and agrees:

 

1.             The Commencement Date of the Term of the Lease is                  ;

 

2.             The Termination Date of the Term of the Lease is                  .

 

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

 
| Sincerely,        | Agreed and Accepted: |
|-------------------|----------------------|
|              |                 |
|              |                 |
|              |                 | Tenant: |   |   |
| Property  Manager |                 |
|              |                 |
|              | By:                  |   |   |
|              | Name:                |   |   |
|              | Title:               |   |   |
|              | Address:             |   |
|              |                 |   |   |
|              |                 |   |   |
|                   |                      |  |  |  |  |

 

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EXHIBIT “D”

 

RULES ANDREGULATIONS

 

1.             The sidewalks, entry passages, corridors, halls,elevators and stairways shall not be obstructed by Tenant or used for anypurpose other than that of ingress and egress. The floors, skylights andwindows that reflect or admit light into any place in the Building shall not becovered or obstructed by Tenant. The toilets, drains and other water apparatusshall not be used for any other purpose than those for which they wereconstructed and no rubbish or other obstructing substances shall be throwntherein.

 

2.             No advertisement, signs, pictures, placards or othernotice shall be inscribed, painted or affixed on any part of the outside orinside of the Building, except upon the doors, and of such order, size andstyle, and at such places, as shall be approved and designated by Landlord.Interior signs on doors will be ordered for Tenant by Landlord, the costthereof to be charged to and paid for by Tenant.

 

3.             Tenant shall not do or permit to be done in thePremises, or bring or keep anything therein, which shall in any way increasethe rate of insurance carried by Landlord on the Building, or on the Property,or obstruct or interfere with the rights of other tenants or in any way injureor annoy them, or violate any applicable laws, codes or regulations. Tenant,its agents, employees or invitees shall maintain order in the Premises and theBuilding, shall not make or permit any improper noise in the Premises or theBuilding or interfere in any way with other tenants, or those having businesswith them. Nothing shall be thrown by Tenant, its clerks or servants, out ofthe windows or doors, or down the passages or skylights of the Building. Norooms shall be occupied or used as sleeping or lodging apartments at any time.No part of the Building shall be used or in any way appropriated for gambling,immoral or other unlawful practices, and no intoxicating liquor or liquorsshall be sold in the Building.

 

4.             Tenant shall not employ any persons other than thejanitors of Landlord (who will be provided with pass-keys into the offices) forthe purpose of cleaning or taking charge of the Premises, except as may be specificallyprovided otherwise in the Lease.

 

5.             No animals, birds, bicycles or other vehicles shall beallowed in the offices, halls, corridors, elevators or elsewhere in theBuilding, without the approval of Landlord.

 

6.             No painting shall be done, nor shall any alterations bemade to any part of the Building or the Premises by putting up or changing anypartitions, doors or windows, nor shall there be any nailing, boring orscrewing into the woodwork or plastering, nor shall any connection be made inthe electric wires or gas or electric fixtures, without the consent in writingon each occasion of Landlord. All glass, locks and trimmings in or upon thedoors and windows of the Building shall be kept whole and, when any partthereof shall be broken by Tenant or Tenant’s agent, the same shall beimmediately replaced or repaired by Tenant (subject to Tenant’s compliance withSection 23 of the Lease) and put in order under the direction and to thesatisfaction of Landlord, or its agents, and shall be kept whole and in goodrepair. Tenant shall

 

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not injure, overload, or deface the Building, the woodwork orthe walls of the Premises, nor carry on upon the Premises any noxious, noisy oroffensive business.

 

7.             Two (2) keys will be furnished Tenant withoutcharge. No additional locks or latches shall be put upon any door and no locksshall be changed without the written consent of Landlord. Tenant, at thetermination of their Lease, shall return to Landlord all keys to doors in theBuilding. Tenant shall not alter locks or install new locks without approvalfrom Landlord.

 

8.             Landlord in all cases retains the power to prescribe theweight and position of iron safes or other heavy articles. Tenant shall makearrangements with the superintendent of the Building when the elevator isrequired for the purpose of the carrying of any kind of freight.

 

9.             The use of burning fluid, camphene, benzine, kerosene oranything except gas or electricity, for lighting the Premises, is prohibited.No offensive gases or liquids will be permitted.

 

10.           If Tenant desires blinds, coverings or drapes over thewindows, they must be of such shape, color and material as may be prescribed byLandlord, and shall be erected only with Landlord’s consent and at the expenseof Tenant. No awnings shall be placed on the Building. Window covering shall beclosed when the effect of sunlight would impose unnecessary loads on the airconditioning system.

 

11.           All wiring and cabling work shall be done only bycontractors approved in advance by Landlord and Landlord shall have the rightto have all such work supervised by Building engineering/maintenance personnel.No antenna or cabling shall be installed on the roof or exterior walls of theBuilding.

 

12.           At Landlord’s discretion, Landlord may hire securitypersonnel for the Building, and every person entering or leaving the Buildingmay be questioned by such personnel as to the visitor’s business in theBuilding and shall sign his or her name on a form provided by the Building forso registering such persons. Landlord shall have no liability with respect tobreaches of the Building security, if any.

 

13.           Landlord shall have the right, exercisable without noticeand without liability to Tenant, to change the name or street address of theBuilding or the room or suite number of the Premises.

 

14.           The freight elevator shall be available for use by alltenants in the Building subject to such reasonable scheduling as Landlord inits discretion shall deem appropriate. The persons employed to move suchequipment in or out of the Building must be acceptable to Landlord and anycosts incurred by Landlord shall be reimbursed by Tenant.

 

15.           Canvassing, peddling, soliciting and distribution ofhandbills or any other written materials in the Building are prohibited andeach tenant shall cooperate to prevent the same.

 

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16.           Each tenant shall ensure that all doors to its premisesare locked and all water faucets or apparatus and office equipment are shut offbefore the tenant or its employees leave such premises at night. On multipletenancy floors, all tenants shall keep the doors to the Building corridorsclosed at all times except for ingress and egress.

 

17.           The toilets, urinals, wash bowls and other restroomfacilities shall not be used for any purpose other than for which they wereconstructed, no foreign substance of any kind whatsoever may be thrown thereinand the expense of any breakage, stoppage or damage resulting from aviolation of this rule shall be borne by the tenant who, or whoseemployees or invitees, shall have caused it.

 

18.           Each tenant shall store its refuse within its Premises. Nomaterial shall be placed in the refuse boxes or receptacles if such material isof such a nature that it may not be disposed of in the ordinary and customarymanner of removal without being in violation of any law or ordinance governingsuch disposal.

 

19.           Landlord reserves the right to make such other andreasonable rules and regulations as in its judgment may from time to timebe needed for the safety, care and cleanliness of the Building and for thepreservation of good order therein.

 

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EXHIBIT “E”

 

HVAC SPECIFICATIONS

 

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

 
| **Inside Conditions**         | ** ** | **Outside Conditions**          |
|-------------------------------|------------|---------------------------------|
|                          |       |                            |
| 78° F (dry bulb)         |       | up to 95° F  (dry bulb)    |
|                          |       | up to 75° F  (wet bulb)    |
|                          |       |                            |
| 72° F                    |       | down to -2°  F             |
| 65° F                    |       | down to -10°  F            |
|                          |       |                            |
| Occupant Load                 |       | 1 person per  100 sq. ft.       |
|                          |       | (usable)                        |
|                          |       |                            |
| Equipment & Lighting Load |       | 3.0 watts  per sq. ft. (usable) |

 

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EXHIBIT “F”

 

INTENTIONALLY OMITTED

 

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EXHIBIT “G”

 

INTENTIONALLY OMITTED

 

 

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EXHIBIT “H”

 

SPECIAL STIPULATIONS

 

1.             SecurityDeposit Reduction 

 

If no event of monetary default occurs duringthe first eleven months of the lease term, Landlord shall apply one half of thesecurity deposit ($4,123.96) against base rent in the twelfth month.

 

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EXHIBT “I”

 

INTENTIONALLY OMITTED

 

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