Exhibit 10.1


 


LEASE


 


THIS LEASE (the “Lease”) is executed this 19th day of November, 2008, by and between SLP I,
LLC, SLP II, LLC, and SLP III, LLC, Delaware limited liability companies (“Landlord”),
and Surface Systems, Inc., a Missouri corporation (“Tenant”).


 


ARTICLE 1 -
LEASE OF PREMISES


 


Section 1.01. Basic Lease Provisions and Definitions.


 


(a)                                  Leased Premises (shown outlined on Exhibit A attached hereto):
1862-1866 Craig Park Court, St. Louis, Missouri 63146 (“Premises”). 1842-1866
Craig Park Court, St. Louis, Missouri 63146 is the building/property location (“Building”)
of which the Premises comprise a portion, such Building and the other
improvements thereon located on the land legally described or shown on Exhibit A-l attached hereto
and made a part hereof being hereinafter referred to collectively as the “Project”.


 


(b)                                 Rentable Area of the Premises: approximately
9,669 square feet.


 


(c)                                  Tenant’s Proportionate Share: (9,669 s.f. -*-
42,210 s.f. (“Rentable Area of the Building”) = 22.91%),


 


provided
that, anything to the contrary contained in this Lease notwithstanding, if
Landlord adds to or reduces the Rentable Area of the Building at any time, then
Tenant’s Proportionate Share shall be proportionately adjusted, using the same
method of calculating Rentable Area as was used to determine the Rentable Area
of the Building and Rentable Area of the Leased Premises.


 


(d)                                 Intentionally Omitted.


 


	
  (e)

  	
   

  	
  Months

  	
   

  	
  Base Rent Per

  Square Foot

  	
   

  	
  Base Rent

  Monthly Installment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lease Months 1-5

  	
   

  	
  $

  	
  -0-

  	
   

  	
  $

  	
  -0-

  	
   

  
	
   

  	
   

  	
  Lease Months
  6-29

  	
   

  	
  $

  	
  10.00 psf

  	
   

  	
  $

  	
  8,057.50 per month

  	
   

  
	
   

  	
   

  	
  Lease Months
  30-53

  	
   

  	
  $

  	
  10.50 psf

  	
   

  	
  $

  	
  8,460.38 per month

  	
   

  
	
   

  	
   

  	
  Lease Months
  54-65

  	
   

  	
  $

  	
  11.00 psf

  	
   

  	
  $

  	
  8,863.25 per month

  	
   

  



 


Tenant shall be required to pay Landlord all
Operating Expenses, HVAC maintenance, additional rent, utilities, and services,
if and to the extent provided for pursuant to the Lease throughout the entire
Lease Term, including any time in which the Base Rent equals $-0-, except to
the extent otherwise herein provided.


 


(f)            Base Year for Real Estate Taxes and Insurance
Premiums: 2009.


 


(g)           Estimated Initial Monthly Additional Rent:
$1.32 per square foot per month (such amount only includes Operating Expenses
as such term is defined in Section 3.02(b’) herein).


 


(h)           Commencement Date: The later of (a) February 1,
2009 and (b) the substantial completion of the Landlord’s Work (as
hereinafter defined).


 


(i)            Lease Term: sixty-five (65) months, (j)


 


Security Deposit: $-0-.


 


(k)           Broker(s): Block Hawley Commercial Real
Estate Services, Agents Jeff Hawley and Jeff Eisenhart were the Landlord’s
Agent (the “Listing Broker”) and were serving solely as Agents for the Landlord
in connection with this Lease. CresaPartners, St. Louis, Real Estate Agents
Douglas W. Bock and Christopher A. Schmidt were the Tenant’s Agent and were
serving solely as Agent for Tenant in connection with this Lease. Landlord and
Tenant acknowledge that this disclosure has been previously made to them.
Landlord will pay Tenant’s Agent a commission of four percent (4%), being
$20,112.72, (“Fee”). The Fee shall be paid upon Lease execution.


 


(1)           Permitted Use: General office use and
engineering, operations service area, including engineering prototype
fabrication and testing, and, to the extent hereinafter provided, outdoor RWIS
tower, and, subject to Landlord’s consent, such consent not to be unreasonably
withheld, delayed or conditioned, any other lawful use.


 

















 


(m)                               Address for notices and payments are as follows:


 


	
  Landlord:

  	
  CB Richard Ellis

  
	
   

  	
  8235 Forsyth Blvd #1000

  
	
   

  	
  Clayton, MO 63105

  
	
   

  	
   

  
	
  With copy to:

  	
  St. Louis Portfolio
  Management Co, LLC

  
	
   

  	
  101 N. Brand Blvd., #940
  Glendale,

  
	
   

  	
  California 91203

  
	
   

  	
   

  
	
  With Rental Payments to:

  
	
   

  
	
   

  	
  St. Louis Portfolio
  Management Company

  
	
   

  	
  Lockbox #774266 4266
  Solutions Center

  
	
   

  	
  Chicago, IL 60677-4002

  
	
   

  	
   

  
	
  Tenant:

  	
   

  
	
   

  	
   

  
	
  Prior to Commencement Date:

  
	
   

  	
   

  
	
   

  	
  Surface Systems, Inc.
  11612

  
	
   

  	
  Lilburn Park Road St.
  Louis,

  
	
   

  	
  MO 63146 Attention: Paula
  Hayes

  
	
   

  	
   

  
	
  After Commencement Date:

  
	
   

  	
   

  
	
   

  	
  Surface Systems, Inc.
  1862-

  
	
   

  	
  1866 Craig Park Court St.

  
	
   

  	
  Louis, MO 63146

  
	
   

  	
  Attention: Paula Hayes

  
	
   

  	
   

  
	
  With a copy in both cases to:

  
	
   

  	
   

  
	
   

  	
  Quixote Corporation

  
	
   

  	
  35 East Wacker Drive, Suite 1100

  
	
   

  	
  Chicago, IL 60601

  
	
   

  	
  Attention: JoanRiley

  



 


	
  (n)

  	
  Guarantor:

  	
  Quixote Corporation, a
  Delaware corporation

  



 


EXHIBITS


	
  Exhibit A -

  	
  Site Plan of Leased Premises

  
	
  Exhibit A-1 -

  	
  Project

  
	
  Exhibit A-2 -

  	
  Right of First Offer Space Per Paragraph 16.16

  
	
  Exhibit B -

  	
  Work Letter

  
	
  Exhibit C -

  	
  Letter of Understanding

  
	
  Exhibit D -

  	
  Rules and Regulations

  
	
  Exhibit E -

  	
  Covenants

  
	
  Exhibit F -

  	
  Guaranty of Lease

  



 


Section 1.02. Lease of Premises. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Leased Premises, under the terms and conditions
herein, together with a non-exclusive right, in common with others, to use the
following (collectively, the “Common Areas”): the areas of the Building and the
underlying land and improvements thereto that are designed for use in common by
all tenants of the Building and their respective employees, agents, customers,
invitees and others.


 


ARTICLE 2 -
TERM AND POSSESSION


 


Section 2.01(a^) Term. The Commencement Date and Lease Term
shall be as set forth in Sections 1.0100 and l.Ol(i) above.


 


(b) Acceptance. Except to the extent
otherwise herein provided, Tenant  accepts the Premises in its condition as of the Commencement Date,
subject to Section 2.02 hereinbelow, and further subject to all applicable
laws, ordinances, and regulations. Except to the extent otherwise herein
provided, Tenant acknowledges that Landlord has made no representation or warranty
as to the suitability of the Premises for the conduct of Tenant’s business, and
Tenant waives any implied warranty


 


2

















 


that
the Premises are suitable for Tenant’s intended purposes. In no event shall Landlord
be responsible for any defects in the Premises or for any limitation on its
use, other than as expressly provided in this Lease.


 


(c) Delay in Delivery. If this Lease is
executed before the Premises  become vacant or otherwise ready for occupancy by Tenant or if any
present occupant holds over, and Landlord cannot acquire possession of the
Premises before the Commencement Date, then (i) Tenant’s obligation to pay
Base Rent and Additional Rent hereunder shall be waived until Landlord tenders
possession of the Premises to Tenant as required hereby; (ii) the Lease
Term shall be extended by the time between the scheduled Commencement Date and
the date on which Landlord tenders possession of the Premises to Tenant as
required hereby (which date will then be defined as the Commencement Date); (iii) Landlord
shall not be in default hereunder or be liable for .damages therefor; and (iv) Tenant
shall accept possession of the Premises when Landlord tenders possession
thereof to Tenant in accordance with the terms hereof. Tenant shall execute and
deliver to Landlord, within 5 days after Landlord’s written request, a letter
in the form of Exhibit C attached
hereto and made a part hereof, to the extent true. Notwithstanding any of the
foregoing language to the contrary, except if the delay is caused by Tenant,
but without extension for force majeure or the provisions of Section 13.03
below, in the event that Landlord fails to deliver possession of the Premises
as required hereby on or before May 1, 2009, then Tenant may terminate
this Lease, whereupon no further rights or obligations shall exist with respect
to either party except for any breach of this Lease that occurred prior to such
termination.


 


(d) Early Possession. Tenant shall have
fourteen (14) days immediately prior to the Commencement Date to install
fixtures, furniture and equipment in the Premises with no rent (which term as
used herein shall include Base Rent and Additional Rent) owed by Tenant. This
Lease shall be in full force and effect, including, but not limited to, the
insurance and indemnification provisions, during the fourteen (14) day period
that Tenant is allowed to do the fixturing work and/or Tenant’s work to the
Premises. If Tenant commences business prior to the Commencement Date, then
Tenant shall pay Base Rent at the rate of $10.00 per rentable square foot and
such other charges as set forth herein from the date Tenant begins doing
business prior to the Commencement Date, and said payment shall be due on the
Commencement Date.   The end of the Lease
Term shall not be affected by such early occupancy. Landlord agrees to
reasonably cooperate with Tenant in such installations.


 


Section 2.02. Construction of Tenant Improvements. Landlord shall construct and install all
leasehold improvements to the Leased Premises (collectively, the “Tenant
Improvements”) in accordance with Exhibit B
attached hereto and made a part hereof. Landlord shall complete the
Landlord’s Work on or before the Commencement Date.


 


Section 2.03. Surrender of the Premises. Upon the expiration or earlier termination
of this Lease, Tenant shall, at its sole cost and expense, immediately (a) surrender
the Leased Premises to Landlord in the same order, condition and repair as when
delivered to Tenant or after any work which Tenant is not obligated to remove
(subject to Tenant’s right to remove the same) is completed, ordinary wear,
loss or damage by fire or other casualty, damage or loss from a taking or sale
in lieu thereof, damage not resulting from the act or omission of Tenant, its
agents, employees, contractors or invitees or resulting from the act or
omission of Landlord or its employees, contractors, agents, invitees or
licensees and any other maintenance, repairs and replacements for which
Landlord is responsible or Tenant is excused under this Lease excepted, (b) remove
from the Leased Premises (i) Tenant’s Property (as defined in Section 8.01
below), (ii) all data and communications wiring and cabling (including
above ceiling, below raised floors and behind walls) installed by or for Tenant
(other than as part of the Landlord’s Work), and (iii) any alterations
required to be removed pursuant to Section 7.03 below, and (c) repair
any damage caused by any such removal. All of Tenant’s Property that is not
removed within ten (10) days following Landlord’s written demand therefor
shall be conclusively deemed to have been abandoned and Landlord shall be
entitled to dispose of such property at Tenant’s cost without incurring any
liability to Tenant. This Section 2.03 shall survive the expiration
or any earlier termination of this Lease.


 


Section.2.04. Holding Over. If Tenant retains possession of the Leased Premises after the
expiration or earlier termination of this Lease, Tenant shall be a tenant at
sufferance at one hundred and fifty percent (150%) of the monthly Base Rent
installments provided for above (the “Monthly Rental Installments”) and one
hundred percent (100%) of the Annual Rental Adjustment (as hereinafter defined)
for the Leased Premises in effect upon the date of such expiration or earlier
termination, and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease,
nor shall such acceptance create a month-to-month tenancy. In the event a
month-to-month tenancy is created by operation of law, either party shall have
the right to terminate such month-to-month tenancy upon thirty (30) days’ prior
written notice to the other, whether or not said notice is given on the rent
paying date. This Section 2.04 shall in no way constitute a consent
by Landlord to any holding over by Tenant upon the expiration or earlier
termination of this Lease, nor limit Landlord’s remedies in such event. The
foregoing notwithstanding, in no event shall Tenant be liable to Landlord for
any damages for the first fifteen (15) days of such holdover other than the
rent specified in the first sentence of this Section 2.04).


 


3

















 


ARTICLE 3 -
RENT


 


Section 3.01. Base Rent. Tenant shall pay to Landlord the Base Rent in the Monthly Rental
Installments in advance, without demand, deduction or offset, except as
otherwise herein provided, on the Commencement Date and on or before the first
day of each and every calendar month thereafter during the Lease Term. The
Monthly Rental Installments for partial calendar months shall be prorated.
Tenant shall be responsible for delivering the Monthly Rental Installments to
the payment address set forth in Section 1.01(1”) above in
accordance with this Section 3.01.


 


Section 3.02. Annual Rental Adjustment Definitions.


 


(a)                                  “Annual Rental Adjustment” shall mean the amount of Tenant’s
Proportionate Share of Operating Expenses, Real Estate Taxes and Insurance
Premiums for a particular calendar year.


 


(b)                                 “Operating Expenses” shall mean the amount of all of Landlord’s
reasonable costs and expenses paid or incurred in operating, repairing,
replacing and maintaining the Building and the Common Areas in good condition
and repair for a particular calendar year (including all additional costs and
expenses that vary with occupancy (excluding Real Estate Taxes) which Landlord
reasonably determines that it would have paid or incurred during such year if
the Building had been fully occupied), including by way of illustration and not
limitation, the following: insurance deductibles; water, sewer, electrical and
other utility charges other than the separately billed electrical and other
charges paid by Tenant as provided in this Lease (or other tenants in the
Building); painting; stormwater discharge fees; tools and supplies; repair
costs; landscape maintenance costs; access patrols; license, permit and inspection
fees; management fees; administrative fees; supplies, costs, wages and related
employee benefits payable for the management, maintenance and operation of the
Building; maintenance, repair and replacement of the driveways, parking areas,
curbs and sidewalk areas (including snow and ice removal), landscaped areas,
drainage strips, sewer lines, exterior walls, foundation, structural frame,
roof, gutters and lighting; and maintenance and repair costs, dues, fees and
assessments incurred under any covenants, trust indentures or charged by any owners
association. The cost of any Operating Expenses that are capital in nature
shall be amortized over the useful life of the improvement (as reasonably
determined by Landlord), and only the amortized portion shall be included in
Operating Expenses.


 


The foregoing notwithstanding, Operating Expenses shall exclude the
following:


 


1.                    interest and principal payments on mortgage
debt and any costs of financing or refinancing or sale or other change in
ownership or control of the Building;


 


2.                    ground rental payments;


 


3.                    the costs of painting, decorating, repairs,
replacements or alterations to the Leased Premises or the leased premises of
other tenants of the Building, or the cost of any work furnished by Landlord
without charge as an inducement for a tenant to lease space (i.e., free rent,
improvement allowances);


 


4.                    a property management fee in excess of four
percent (4%) of the gross rental proceeds;


 


5.                    depreciation or amortization costs (except as
provided in above);


 


6.                    expenses, including rent, associated with
maintaining a leasing or marketing office;


 


7.                    salaries and other compensated personnel over
the level of regional asset manager;


 


8.                    the costs associated with utilities, services
or amenities not available to all tenants or occupants provided to any tenant
or occupant to a materially greater extent or more favorable manner than
generally provided to other tenants;


 


9.         the costs of correcting latent defects and
defects in design, construction or equipping of the Building or its systems or
equipment including any environmental defects;


 


10.       the cost of any work performed or service
provided for which fees or other compensation received;


 


11.       legal expenses, auditing expenses, space
planner fees or other costs incurred in connection with tenant leases including,
without limitation, negotiations with prospective tenants and enforcing
provisions of this Lease or other leases in the Building or in connection with
disputes and claims with other tenants or occupants of the Building or with
other third persons (a) except as specifically otherwise provided in the
Lease, and (b) except those costs and other expenditures incurred in
connection with negotiations, disputes and claims relating to items of
Operating Expenses, enforcement of rules and regulations of the Building
and such other matters which relate to the maintenance of standards;


 


4

















 


12.              Intentionally
Omitted.


 


13.              real
estate brokerage and leasing commissions; or other compensation, other expenses
incurred in leasing or in procuring or attempting to procure tenants or
occupants, or renewing or amending leases with existing tenants or occupants of
the Building;


 


14.              any
compensation paid to clerks, attendants or other persons in commercial concessions
operated by Landlord;


 


15.              Landlord’s
general overhead not related to management of the Building;


 


16.              bad
debt loss, rent loss or reserves for bad debt or rent loss;


 


17.              the
cost of capital improvements to the Building, except those which are intended
to reduce Operating Expenses to the extent during the applicable calendar year
Operating Expenses are so reduced as a result thereof, or are incurred to
comply with any governmental law, rule, order, statute or regulation in effect
after, the date of this Lease or interpreted differently after the date of this
Lease or expenditures to the Building including structural repairs and
replacements, and casualty damage and condemnation repairs and replacements and
lease payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased;


 


18.              any
fines, interest, penalties or other costs assessed against Landlord for
Landlord’s violation of any applicable laws, ordinances, rules, regulations or
orders or the late payment of taxes, utility bills and other costs incurred as
a result of Landlord’s failure to make such payments when due, so long as
Tenant has been timely in the payment of its bills to Landlord;


 


19.              any
expense for which Landlord receives payment from insurance proceeds, condemnation
awards or from any other source;


 


20.              Intentionally
Omitted;


 


21.              costs
reimbursed by warranties or guarantees or otherwise (other than pursuant to
this Article 3 or provisions in other leases requiring the tenants thereunder
to pay a share of expenses associated with the Building); and


 


22.              Operating
Expense reserves;


 


23.              payments
to affiliates of the Landlord for goods and/or services in excess of what would
be paid to unrelated third parties for such goods and/or services in an arm’s
length transaction;


 


24.              expenses
for sculptures, paintings or other artwork located within the Building (except that
there shall not be excluded the costs of maintaining such objects in the public
areas of the Building nor shall there be excluded the costs of repairing and
insuring such objects);


 


25.              all
expenses in connection with the installation, operation and maintenance of
athletic or recreation club, cafeteria, dining facility, restaurant or other
facility not strictly related to the operation of the office section of the
Building;


 


26.              Intentionally
Omitted; and


 


27.              to
the extent not excluded from Operating Expenses by any of the foregoing,
anything that would be excluded by generally accepted accounting and management
principles or customarily excluded from such calculations by similar quality
buildings located within the St. Louis office market.


 


(c)                                  “Tenant’s Proportionate Share of Operating
Expenses, Real Estate Taxes and Insurance Premiums” shall mean an amount equal to (i) the
product of Tenant’s Proportionate Share times the Operating Expenses, plus (ii) the
product of Tenant’s Proportionate Share times any increase in Real Estate Taxes
and Insurance Premiums over the Base Year of 2009.


 


(d)                                 “Real Estate Taxes” shall mean any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, franchise, capital stock, income, profits, succession, or gift or
estate taxes) imposed upon the Building or Common Areas, or against Landlord’s
business of leasing the Building, by any authority having the power to so
charge or tax, to the extent that such items other than real estate taxes and
assessments would be payable if the Building were the only property of Landlord
subject thereto and the income received by Landlord from the Building were the
only income of Landlord (provided that Tenant’s Proportionate Share thereof
shall be based on its rent compared to the rent


 


5

















 


received from all tenants of the Building if such tax is calculated in
that manner) together with costs and expenses of contesting the validity or
amount of the Real Estate Taxes, which Landlord shall do if reasonably prudent.


 


Notwithstanding the year for which any such Real Estate Taxes are
levied, in the case of Real Estate Taxes which may be paid in installments, the
minimum installment, plus any interest payable thereon, so payable during a
calendar year shall be included in Real Estate Taxes for that year Except as
otherwise provided herein, all references to Taxes “for” a calendar particular
year shall be deemed to refer to taxes payable for such year without regard to(1) when
such taxes are levied, assessed or imposed.


 


If there shall be any refund of any Operating Expenses at any time
during or after the Lease Term for any Operating Expenses incurred during the
Lease Term, Tenant shall be entitled to it pro rata share of the refund, after
Landlord deducts from the refund Landlord’s reasonable pro rata costs and
expenses in obtaining the same, and Landlord shall promptly pay Tenant the
same.


 


(e)                                  “Insurance Premiums” shall mean insurance premiums for insurance
coverage on the Building or Common Areas and shall include all fire and
extended coverage insurance on the Building and all liability insurance
coverage on the Common Areas of the Building, and the grounds, sidewalks,
driveways and parking areas related thereto, together with such other insurance
coverages, including, but not limited to, rent interruption insurance, as are
from time to time obtained by Landlord.


 


Section 3.03. Payment of Additional Rent.


 


(a)                                  Any amount required to be paid by Tenant
hereunder (in addition to Base Rent) and any charges or expenses incurred by
Landlord on behalf of Tenant under the terms of this Lease shall be considered “Additional
Rent” payable in the same manner and upon the same terms and conditions as the Base
Rent reserved hereunder, except as set forth herein to the contrary. Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due, and the continuance of such failure for any applicable grace
or cure period, shall entitle Landlord to the remedies available to it for non payment
of Base Rent.


 


(b)                                 In addition to the Base Rent specified in
this Lease, commencing as of the Commencement Date, Tenant shall pay to
Landlord as Additional Rent for the Leased Premises, in each calendar year or
partial calendar year during the Lease Term, an amount equal to the Annual
Rental Adjustment for such calendar year. Landlord shall reasonably estimate
the Annual Rental Adjustment annually, and written notice thereof in reasonable
detail shall be given to Tenant prior to the beginning of each calendar year.
Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment
is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental
Adjustment. Tenant shall be responsible for delivering the Additional Rent to
the payment address set forth in Section 1.01(1”) above in accordance
with this Section 3.03. If Operating Expenses increase or decrease
during a calendar year, Landlord may increase or decrease the estimated Annual
Rental Adjustment during such year by giving Tenant written notice to that
effect in reasonable detail, and thereafter Tenant shall pay to Landlord, in
each of the remaining months of such year, the first of which is at least
fifteen (15) days after such notice, an amount equal to the amount of such
increase or decrease in the estimated Annual Rental Adjustment divided by the
number of months remaining in such year. Within a reasonable time (but no later
than the next June 1) after the end of each calendar year, Landlord shall
prepare and deliver to Tenant a statement showing the actual Annual Rental
Adjustment for that year in reasonable detail. Within thirty (30) days after
receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord
shall credit against the next rent payment or payments due from Tenant or pay
such amount to Tenant if this Lease has expired and the full amount thereof has
not been so fully credited, as the case may be, the difference between the
actual Annual Rental Adjustment for the preceding calendar year and the
estimated amount paid by Tenant during such year. This Section 3.03
shall survive the expiration or any earlier termination of this Lease.


 


Tenant and its designees shall have the right to inspect, at reasonable
times and in a reasonable manner, during the ninety (90) day period following
the delivery of Landlord’s statement of the actual amount of the Annual Rental
Adjustment, such of Landlord’s books of account and records as pertain to and
contain information concerning sucfy costs and expenses in order to verify the
amounts thereof, which books and records Landlord agrees to keep or cause to be
kept in accordance with sound accounting and management practices for a
reasonable period of time. Tenant’s failure to exercise its rights hereunder
within said ninety (90) day period shall be deemed a waiver of its right to
inspect or contest the method,’ accuracy or amount of the Annual Rental
Adjustment. In the event of any undisputed error, Landlord shall make a
correcting payment in full to Tenant within thirty (30) days after the
determination of the amount of such error. In the event of any errors on the
part of Landlord which Landlord agrees (or it is determined as provided below
in this Section 3.03) were errors in excess of five percent (5%) of Tenant’s
actual operating expense liability for any calendar year, Landlord will also
reimburse Tenant for costs (in an amount not to exceed $1,000.00) of an audit
reasonably incurred by Tenant within the above thirty (30) day period. If
within the period aforesaid, Tenant provides Landlord with its notice disputing
the correctness of the statement, and if such dispute shall have not been
settled by agreement, Landlord shall


 


6

















 


submit the dispute to a reputable firm of independent certified public
accountants selected by Landlord and approved by Tenant, such approval shall
not be unreasonably withheld or delayed, and the decision of such accountants
shall be conclusive and binding upon the parties. If such accountant decides
that there was an error, the owing party will promptly make correcting payment.
The fees and expenses involved in such decision shall be borne by the
unsuccessful party.


 


With respect to any calendar year which does not fall entirely within
the Lease Term, Tenant shall be obligated to pay as an Annual Rental Adjustment
for such year only a pro rata share of Annual Rental Adjustment as hereinabove
determined, based upon the number of days of the Lease Term falling within such
year. Any payment made pursuant to this Section 3.03 shall be made without
prejudice to any right of the Tenant to dispute any items as billed pursuant to
the provisions hereof.


 


Section 3.04. Late Charges. Tenant acknowledges that Landlord shall
incur certain additional unanticipated administrative and legal costs and
expenses if Tenant fails to pay timely any payment required hereunder.
Therefore, in addition to the other remedies available to Landlord or Tenant
hereunder, if any payment required to be paid by Tenant to Landlord or Tenant
hereunder (other than accelerated rent that may be due after a Default by
Tenant hereunder) shall become overdue after any applicable grace or cure
period, such unpaid amount shall bear interest from the due date thereof to the
date of payment at the prime rate of interest, as reported in the Wall Street
Journal (the “Prime Rate”) plus six percent (6%) per annum.


 


ARTICLE 4 -
SECURITY DEPOSIT


 


Upon execution and delivery of this Lease by Tenant, Tenant shall
deposit the Security Deposit with Landlord as security for the performance by
Tenant of all of Tenant’s obligations contained in this Lease. In the event of
a default by Tenant, Landlord may apply all or any part of the Security Deposit
to cure all or any part of such default; provided, however, that any such
application by Landlord shall not be or be deemed to be an election of remedies
by Landlord or considered or deemed to be liquidated damages. Tenant agrees
promptly, upon demand, to deposit such additional sum with Landlord as may be
required to maintain the full amount of the Security Deposit. All sums held by
Landlord pursuant to this Article 4 shall be without interest and
may be commingled by Landlord. At the end of the Lease Term, provided that
there is then no uncured default or any repairs required to be made by Tenant
pursuant to Section 2.03 above or Section 7.03 below,
Landlord shall return the Security Deposit to Tenant.


 


ARTICLE 5 -
OCCUPANCY AND USE


 


Section 5.01. Use. Tenant shall use the Leased Premises for the Permitted Use and for no
other purpose without the prior written consent of Landlord.


 


Section 5.02. Covenants of Tenant Regarding Use.


 


(a)                             Tenant shall (i) use and, as herein required, maintain the Leased
Premises and conduct its business thereon in a safe, careful, reputable and
lawful manner, (ii) cause its use to comply with all current covenants
that encumber the Building (all of which Landlord hereby represents and
warrants to Tenant are referenced on Exhibit E attached hereto and
made a part hereof) and any reasonable modifications thereto or new covenants
that do not unreasonably interfere with Tenant’s use and enjoyment of the
Leased Premises and the Common Areas, and all laws, rules, regulations, orders,
ordinances, directions and requirements of any governmental authority or
agency, now in force or which may hereafter be in force, including, without
limitation, those which shall impose upon Landlord or Tenant any duty with
respect to or triggered by a change in the use or occupation of, or any improvement
or alteration to, the Leased Premises, and (iii) comply with and obey all
reasonable directions, rules and regulations of Landlord, including the
Building Rules and Regulations attached hereto as Exhibit P
and made a part hereof, as may be reasonably modified from time to time by
Landlord on reasonable notice to Tenant.


 


(b)                            Tenant shall not do or permit anything to be done in or about the
Leased Premises that will in any way cause a nuisance, obstruct or interfere
with the rights of other tenants or occupants of the Building of which Tenant
is aware and which are not contrary to the rights granted Tenant under this Lease
or injure or annoy them. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Building of any of
Landlord’s directions, rules and regulations, but agrees that any
enforcement thereof shall be done uniformly and agrees to take reasonable
measures to assure such other tenant’s and occupants compliance. Tenant shall
not overload the floors of the Leased Premises. All damage to the floor
structure or foundation of the Building due to improper positioning or storage
of items or materials by Tenant shall be repaired by Landlord at the sole
expense of Tenant, who shall reimburse Landlord within five (5) business
days after notice from Landlord with reasonable evidence thereof therefore upon
demand. Tenant shall not use the Leased Premises, nor allow the Leased Premises
to be used, for any purpose or in any manner that would (i) invalidate any
commercially reasonable policy of insurance now or hereafter carried by
Landlord on the Building, or (ii) increase the


 


7

















 


rate of premiums payable on any such insurance
policy unless Tenant reimburses Landlord for any increase in premium charged.


 


Section 5.03. Landlord’s Rights Regarding Use. Without limiting any of Landlord’s rights
specified elsewhere in this Lease, so long as the same does not materially
adversely affect Tenant’s access to or use of the Leased Premises and the
Common Areas (a) Landlord shall have the right at any time, without notice
to Tenant, to control, change or otherwise alter the Common Areas in such
manner as it reasonably deems necessary or proper, and (b) Landlord, its
agents, employees and contractors and any mortgagee of the Building shall have
the right to enter any part of the Leased Premises at reasonable times upon
reasonable notice (except in the event of an emergency not allowing for any
advance notice where no notice shall be required) accompanied by an employee or
representative of Tenant, if available, for the purposes of examining or
inspecting the same (including, without limitation, testing to confirm Tenant’s
compliance with this Lease), showing the same to prospective purchasers,
mortgagees or, during the last twelve (12) months of Lease Term only, tenants,
and making such repairs, alterations or improvements to the Leased Premises or
the Building as Landlord may reasonably deem necessary or desirable, provided,
however, that any repairs made by Landlord shall be at Landlord’s expense
except as provided in Section 7.02 hereof. So long as the same does not
materially affect Tenant’s access to or use of the Leased Premises or Common
Areas, Landlord shall incur no liability to Tenant for such entry, nor shall
such entry constitute an eviction of Tenant or a termination of this Lease, or
entitle Tenant to any abatement of rent therefor.


 


ARTICLE 6 -
UTILITIES


 


Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises.
However, if any services or utilities are jointly metered with other property,
Landlord shall make a reasonable determination of Tenant’s proportionate share
of the cost of such utilities and services (at rates that would have been
payable if such utilities and services had been directly billed by the
utilities or services providers) and Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord’s written statement.
Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility or other Building service and no such failure or
interruption shall entitle Tenant to terminate this Lease or withhold sums due
hereunder, provided that, (a) if any such utilities or services are
interrupted, discontinued or diminished as a result of the negligence or
intentional misconduct of Landlord or its agents, employees, contractors or
invitees such that the Leased Premises are untenantable (meaning that Tenant’s
business in the Leased Premises for the Permitted Use has been adversely
affected thereby) for more than five (5) consecutive business days, then
Tenant shall notify Landlord in writing that Tenant intends to abate rent, and (b) if
such utilities or services have not been restored within five (5) days of
Landlord’s receipt of Tenant’s notice, without extension for force majeure and
without regard to Section 13.03 below, then Base Rent and Additional Rent
shall abate proportionately on a per diem basis for each day during which the
Leased Premises was so untenantable and, if such interruption, diminution,
delay or discontinuance of such utilities or services is material and continues
beyond thirty (30) days, without extension for force majeure and without regard
to the provisions of Section 13.03 below, Tenant shall be entitled to
terminate this Lease at any time thereafter upon notice to Landlord. Landlord
agrees to cooperate reasonably with Tenant to restore any such interrupted,
diminished or discontinued service as soon as reasonably practicable. Tenant
shall obtain in its own name and pay directly to the appropriate supplier the
cost of all janitorial/cleaning services for the Leased Premises.


 


ARTICLE 7 -
REPAIRS. MAINTENANCE AND ALTERATIONS


 


Section 7.01. Repair and Maintenance of Building. Landlord shall maintain and make all
reasonably necessary repairs and replacements to the roof, exterior and
load-bearing walls,, exterior doors, windows, corridors, all structural
elements of the Building, including floor and ceiling slabs, columns, joists,
girders, floor (but not floor coverings), footings, foundation, common Building
mechanical, plumbing, electrical, telecommunication, fire protection and HVAC
systems, and other Common Areas and all other areas of the Project to the
extent such other areas service or are of benefit to the Leased Premises or are
visible from the Common Areas or the Leased Premises, and Landlord shall keep
the Project in a safe, clean and neat condition and use reasonable efforts to
keep all equipment used in common with other tenants in good condition and
repair. The cost of such repairs, replacements and maintenance shall be
included in Operating Expenses to the extent provided in Section 3.02;
provided however, to the extent any such repairs, replacements or maintenance
are required because.of the negligence, misuse or Default of Tenant, its
employees, agents, contractors, customers or invitees, Landlord shall make such
repairs at Tenant’s sole reasonable expense.


 


Section 7.02. Repair and Maintenance of Leased Premises. Subject to the requirements of Section 7.01,
Tenant shall, at its own cost and expense, maintain the interior of Leased
Premises in as good condition, as received, plus any subsequent alterations
made by or for the benefit of Tenant, including the Landlord’s Work (subject to
Tenant’s right to remove the same as herein provided), ordinary wear and tear
and, casualty damage and other damage not caused by Tenant or its employees,
agents,


 


8

















 


contractors or invitees, damage or loss from a taking or sale in lieu
thereof, and damage resulting from the act or omission of Landlord or its
employees, agents or contractors and any other maintenance, repairs and
replacements for which Landlord is responsible or Tenant is excused under this
Lease excepted, regularly servicing and promptly making all repairs and
replacements required of it thereto, including but not limited to the
electrical systems, heating and air conditioning systems, plate glass, floors,
windows and doors, and plumbing systems. Tenant shall obtain a preventive
maintenance contract on the heating, ventilating and air-conditioning systems (“HVAC”)
and provide Landlord with a copy thereof. The preventive maintenance contract
shall meet or exceed Landlord’s standard maintenance criteria, and shall
provide for the inspection and maintenance of the heating, ventilating and air
conditioning system on at least a semi-annual basis.


 


Section 7.03. Alterations. Tenant shall not permit alterations in or to
the Leased Premises unless and until Landlord has approved the plans therefor
in writing. As a condition of such approval, Landlord may require Tenant to
remove the alterations and restore the Leased Premises upon termination of this
Lease; otherwise, all such alterations shall become a part of the realty and
the property of Landlord, and shall not be removed by Tenant, unless Tenant, at
its option, removes the same prior to the end of the Lease Term and repairs any
damage caused by such removal, and provided that Tenant shall not be required
to remove any of the Landlord’s Work. Notwithstanding the foregoing, Landlord’s
consent shall not be required for alterations to painting and carpeting or
other non-structural alterations, so long as the alterations do not affect the
Building systems, Tenant uses contractors reasonably approved by Landlord,
Tenant provides Landlord with “as built” or working drawings for any material
modifications and Tenant notifies Landlord prior to making such alterations.
Tenant shall ensure that all alterations shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Leased Premises. No person shall be entitled to any lien derived through or
under Tenant for any labor or material furnished to the Leased Premises, and
nothing in this Lease shall be construed to constitute Landlord’s consent to
the creation of any lien. If any lien is filed against the Leased Premises for
work claimed to have been done for or material claimed to have been furnished
to Tenant, Tenant shall cause such lien to be discharged of record or provide
reasonable security to Landlord for and contest the same by appropriate
proceedings within thirty (30) days after notice from Landlord to Tenant of the
same. Tenant shall indemnify Landlord from all costs, losses, expenses and
attorneys’ fees in connection with any damage or injury arising from any
construction or alteration by Tenant and any related lien caused or suffered by
Tenant, subject to the immediately preceding sentence.


 


ARTICLE 8 -
INDEMNITY AND INSURANCE


 


Section 8.01. Release. All of Tenant’s trade fixtures, merchandise, inventory and all other
personal property in or about the Leased Premises, the Building or the Common
Areas, which is deemed to include the trade fixtures, merchandise, inventory
and personal property of others located in or about the Leased Premises or
Common Areas at the invitation, direction or acquiescence (express or implied)
of Tenant (all of which property shall be referred to herein, collectively, as “Tenant’s
Property”), shall be and remain at Tenant’s sole risk. Landlord shall not be
liable to Tenant or to any other person for, and Tenant hereby releases
Landlord from (a) any and all liability for theft or damage to Tenant’s
Property, and (b) any and all liability for any injury to Tenant or its
employees, agents, contractors, guests and invitees in or about the Leased
Premises, the Building or the Common Areas, except to the extent of personal
injury (but not property loss or damage) caused by the negligence or willful
misconduct of Landlord, its agents, employees or contractors. Nothing contained
in this Section 8.01 shall limit (or be deemed to limit) the
waivers contained in Section 8.06 below. In the event of any
conflict between the provisions of Section 8.06 below and this Section 8.01.
the provisions of Section 8.06 shall prevail. This Section8.01
shall survive the expiration or earlier termination of this Lease.


 


Section 8.02. Indemnification by Tenant. Subject to the other terms of this Lease,
Tenant shall protect, defend (with counsel reasonably acceptable to Landlord),
indemnify and hold harmless Landlord, its agents, employees and contractors
from and against any and all claims, damages, demands, penalties, costs,
liabilities, losses, and expenses (including reasonable attorneys’ fees and
expenses at the trial and appellate levels) to the extent (a) arising out
of or relating to any act, omission, negligence, or willful misconduct of
Tenant or Tenant’s agents, employees, contractors, customers or invitees in or
about the Leased Premises, the Building or the Common Areas, or (b) arising
out of or relating to any of Tenant’s Property, or (c) arising out of any
other act or occurrence within the Leased Premises, in all such cases except to
the extent of personal injury (but not property loss or damage) caused by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. Nothing contained in this Section 8.02 shall limit (or
be deemed to limit) the waivers contained in Section 8.06 below. In
the event of any conflict between the provisions of Section 8.06 below and
this Section 8.02. the provisions of Section 8.06 shall
prevail. This Section 8.02 shall survive the expiration or earlier
termination of this Lease.


 


Section 8.03. Indemnification by Landlord. Subject to the other terms of this Lease,
Landlord shall protect, defend (with counsel reasonably acceptable to Tenant),
indemnify and hold harmless Tenant, its agents, employees and contractors from
and against any and all claims, damages, demands,


 


9

















 


penalties, costs, liabilities, losses and expenses (including
reasonable attorneys’ fees and expenses at the trial and appellate levels) to
the extent arising out of or relating to any act, omission, negligence or
willful misconduct of Landlord or Landlord’s agents, employees or contractors.
Nothing contained in this Section 8.03 shall limit (or be deemed to
limit) the waivers contained in Section 8.06 below. In the event of
any conflict between the provisions of Section 8.06 below and this Section 8.03.
the provisions of Section 8.06 shall prevail. This Section 8.03
shall survive the expiration or earlier termination of this Lease.


 


Section 8.04. Tenant’s Insurance.


 


(a)           During the Lease Term (and any period of
early entry or occupancy or holding over by Tenant, if applicable), Tenant
shall maintain the following types of insurance, in the amounts specified below:


 


(i)                                     Liability Insurance. Commercial General Liability Insurance
(which insurance shall not exclude blanket contractual liability, broad form
property damage, personal injury, or fire damage coverage) covering the Leased
Premises and Tenant’s use thereof against claims for bodily injury or death and
property damage, which insurance shall provide coverage on an occurrence basis
with a per occurrence limit of not less than $3,000,000, for each policy year,
which limits may be satisfied by any combination of primary and excess or
umbrella per occurrence policies.


 


(ii)                                  Property Insurance. Special Form Insurance in the amount of
the full replacement cost of
Tenant’s Property and betterments (including alterations or additions performed
by Tenant pursuant hereto, including those improvements, if any, made pursuant
to Section 2.02 above), which insurance shall include an agreed
amount endorsement waiving coinsurance limitations, subject to commercially
reasonable deductibles, which as of the execution of the Lease shall be
$25,000. Absent any such insurance that Tenant was suppose to carry pursuant to
this Lease, Tenant shall be deemed to be self-insured for any such insurance it
does not so carry.


 


(iii)                               Worker’s Compensation Insurance. Worker’s Compensation insurance in amounts
required by applicable law.


 


(b)           All insurance required by Tenant hereunder
shall (i) be issued by one or more insurance companies reasonably
acceptable to Landlord, licensed to do business in the State in which the
Leased Premises is located and having an AM Best’s rating of AIX or better or
otherwise reasonably acceptable to Landlord, and (ii) provide that said
insurance shall not be materially changed, canceled or permitted to lapse on
less than thirty (30) days’ prior written notice to Landlord (or ten (10) days’
prior written notice to Landlord in the case of nonpayment of premiums). In
addition, Tenant’s insurance shall name Landlord, Landlord’s managing agent,
and any mortgagee requested by Landlord a reasonable period in advance, as
additional insureds under its commercial general liability policies. On or
before the Commencement Date (or the date of any earlier entry or occupancy by
Tenant), and thereafter, within ten (10) days after the expiration of each
such policy (provided that there is no interruption in coverage), Tenant shall
furnish Landlord with certificates of insurance in the form of ACORD 25 or
ACORD 25-S (or other evidence of insurance reasonably acceptable to Landlord),
evidencing all required coverages, together with a copy of the endorsements to
Tenant’s commercial general liability policy (or other evidence reasonably
satisfactory to Landlord) evidencing primary and non-contributory coverage
afforded to the appropriate additional insureds. Within ten (10) days
after Tenant’s receipt of a request from Landlord, Tenant shall provide
Landlord with copies of all insurance policies, including all endorsements, evidencing
the coverages required hereunder. If Tenant fails to carry such insurance and
furnish Landlord with such certificates of insurance or copies of insurance
policies (if applicable), Landlord may obtain such insurance on Tenant’s behalf
and Tenant shall reimburse Landlord upon demand for the reasonable cost thereof
as Additional Rent, Landlord reserves the right from time to time to require
Tenant to obtain higher minimum amounts or different types of insurance if it
becomes customary for other landlords of similar buildings in the area to
require similar sized tenants in similar industries to carry insurance of such higher
minimum amounts or of such different types.


 


Section 8.05. Landlord’s Insurance. During the Lease Term, Landlord shall
maintain the following types of insurance, in the amounts specified below (the
cost of which shall be included in Operating Expenses):


 


(a)           Liability Insurance. Commercial General Liability Insurance
(which insurance shall not exclude blanket, contractual liability, broad form
property damage, personal injury, or fire damage coverage) covering the Common
Areas against claims for bodily injury or death and property damage, which
insurance shall provide coverage on an occurrence basis with a per occurrence
limit of not less than $3,000,000, for each policy year, which limits may be
satisfied by any combination of primary and excess or umbrella per occurrence
policies.


 


10














 


(b)           Property Insurance. Special Form Insurance
in the amount of the full replacement cost of the Building, including, without
limitation, any improvements, if any, made pursuant to Section 2.02
above, but excluding Tenant’s Property and any other items required to be
insured by Tenant pursuant to Section 8.04 above.


 


Section 8.06. Waiver of Subrogation. Notwithstanding anything contained in this
Lease to the contrary, Landlord and Tenant hereby waive any rights each may
have against the other on account of any loss of or damage to their respective
property, the Leased Premises, its contents, or other portions of the Building
or Common Areas arising from any risk which is required to be insured against
by Sections 8.04fa¥iD and 8.05Cb) above. The special form
coverage insurance policies maintained by Landlord and Tenant as provided in
this Lease shall include an endorsement containing an express waiver of any
rights of subrogation by the insurance company against Landlord and Tenant, as
applicable.


 


ARTICLE 9 -
CASUALTY


 


In the event of total or partial destruction of the Building or the
Leased Premises by fire or other casualty, Landlord agrees promptly to restore
and repair same; provided, however, Landlord’s obligation hereunder with
respect to the Leased Premises shall be limited to the reconstruction of such
of the leasehold improvements as were originally required to be made by
Landlord pursuant to Section 2.02 above, if any, and the Leased
Premises as otherwise existed prior thereto. Rent shall proportionately abate
during the time that the conduct of Tenant’s business in the Leased Premises
for the Permitted Use is not reasonably possible and a reasonable period of
time (which in no event shall exceed 14 days) thereafter to allow Tenant to
restore, replace and move in its alterations, additions, improvements,
fixtures, trade fixtures, equipment, furniture and personal property and
prepare for reopening. Notwithstanding the foregoing, if the Leased Premises
are (a) so destroyed that they cannot reasonably be repaired or rebuilt
within one hundred eighty (180) days from the casualty date; (b) destroyed
by a casualty that is not covered by the insurance required hereunder or, if
covered, such insurance proceeds are not released by any mortgagee entitled
thereto, after Landlord makes reasonable efforts, to obtain such release, or
are insufficient (and for such purpose the amount of any deductibles shall be
considered to be released insurance proceeds) to rebuild the Building and the
Leased Premises, or (c) if such damage is substantial and occurs during
the last twelve (12) of the Lease Term; then, in case of a clause (a) casualty,
either Landlord or Tenant may, in the case of a clause (b) casualty, then
Landlord may, or, in the case of a clause (c) casualty, then Tenant may,
upon forty five (45) days’ written notice to the other party, terminate this
Lease with respect to matters thereafter accruing, such notice to be given no
later than thirty (30) days after such casualty. Tenant waives any right under
applicable laws inconsistent with the terms of this paragraph. If neither party
terminates this Lease pursuant to this Article 9 and the Leased Premises
are not rebuilt within 180 days subject to force majeure not to exceed sixty
(60) days, anything to the contrary contained in Section 16.03
notwithstanding, and Tenant caused delays then, Tenant has the right to
terminate this Lease upon written notice to Landlord, delivered to Landlord
within ten (10) days after the expiration of such 180 day period (as the
same may be so extended). Landlord shall give Tenant reasonable advance notice
of the completion of any repairs and restoration required of it under this Article 9
and Article 10 below.


 


ARTICLE 10
- EMINENT DOMAIN


 


If all or any substantial part of the Building or Common Areas shall be
acquired by the exercise of eminent domain, or sale in lieu thereof, Landlord
may terminate this Lease by giving written notice to Tenant at least forty five
(45) days before the date possession thereof is so taken. If all or any part of
the Leased Premises or Project shall be acquired by the exercise of eminent
domain, or sale in lieu thereof, so that the Leased Premises and Common Areas
shall become impractical for Tenant to use for the Permitted Use, Tenant may
terminate this Lease by giving written notice to Landlord no later than and as
of the date possession thereof is so taken. All damages awarded shall belong to
Landlord; provided, however, that Tenant may claim dislocation damages, Tenant
trade fixtures and property, if such amounts are not subtracted from Landlord’s
award.  If the Lease is not so
terminated, Landlord shall restore that portion of the Leased Premises and the
Project that remains to a whole economic unit with reasonable promptness and
all due diligence. Rent shall abate on an equitable basis for the period such
restoration makes the Leased Premises or a portion thereof untenantable for
Tenant’s business at the Leased Premises for the Permitted Use, and a
reasonable period of time (not to exceed 14 days) thereafter to allow Tenant to
restore, replace and move in its alterations, additions, improvements,
fixtures, trade fixtures, equipment, furniture and personal property and
prepare for reopening.


 


ARTICLE 11
- ASSIGNMENT AND SUBLEASE


 


Section 11.01. Assignment and Sublease.


 


(a)                                  Tenant shall not assign this Lease or sublet
the Leased Premises in whole or in part without Landlord’s prior written
consent, which consent shall not be unreasonably withheld, delayed or denied
and, in any event, such consent shall be given or reasonably denied within no
later than fifteen


 


11

















 


(15)
days after Tenant’s request for such consent (stating in reasonable detail the
reason or reasons that Landlord is denying its consent to such assignment or
sublease). In the event of any permitted assignment or subletting, Tenant shall
remain primarily liable hereunder. The acceptance of rent from any other person
shall not be deemed to be a waiver of any of the provisions of this Lease or to
be a consent to the assignment of this Lease or the subletting of the Leased
Premises. Any assignment or sublease consented to by Landlord shall not relieve
Tenant (or its assignee) from obtaining Landlord’s consent to any subsequent
assignment or sublease.


 


(b)                             By way of example and not limitation, Landlord shall be deemed to have
reasonably withheld consent to a proposed assignment or sublease if in Landlord’s
reasonable opinion (i) the Leased Premises are or may be in any way
materially adversely affected; (ii) the business reputation of the proposed
assignee or subtenant is unacceptable; or (iii) the financial worth of the
proposed assignee or subtenant is insufficient to meet the obligations
hereunder, or (iv) the prospective assignee or subtenant is a current
tenant in the Building and is interested in leasing any other space in the
Project available on the market or is a bona-fide third-party prospective
tenant who is then in negotiations with Landlord. Landlord further expressly
reserves the right to refuse to give its consent to any subletting if the
proposed rent is publicly advertised to be less than the then current rent for
similar premises in the Building available on the market. If Landlord refuses
to give its consent to any proposed assignment or subletting, Landlord may, at
its option, within fifteen (15) days after receiving a request to consent,
terminate this Lease as to such proposed subleased or assigned space by giving
Tenant thirty (30) days’ prior written notice of such termination, whereupon
each party shall be released from all further obligations and liability
hereunder with respect to such space, except those which expressly survive the
termination of this Lease. The foregoing notwithstanding, Tenant may withdraw
its notice of its intention to assign or sublet within ten (10) days after
the giving by Landlord of its notice to terminate the Lease or a portion
thereof, in which case Landlord’s exercise of its option to terminate the Lease
or a portion thereof shall be null and void and of no force or effect, as if
Tenant had never given its notice of its intention to assign or sublet. If Landlord
exercises its option to terminate the Lease with respect to a portion of the
Leased Premises, Landlord shall pay the cost of erecting any demising walls and
otherwise separating the remaining Premises from that portion of the Leased
Premises for which the Lease has been so cancelled.


 


(c)                              If Tenant shall make any assignment or sublease for which Landlord’s
consent is required, for a rental in excess of the rent payable under this
Lease, Tenant shall pay to Landlord fifty percent (50%) of any such excess
rental within ten (10) days after receipt net of all costs incurred by Tenant
with respect to such assignment or sublease, including, without limitation,
brokerage and attorneys’ fees and costs and any buildout expenses. Tenant
agrees to pay Landlord $1,000.00 within ten (10) days after demand by
Landlord for reasonable accounting and attorneys’ fees incurred in conjunction with
the processing and documentation of any requested assignment, subletting or any
other hypothecation of this Lease or Tenant’s interest in and to the Leased
Premises for which Landlord’s consent is required as consideration for Landlord’s
consent.


 


(d)                             If requested and commercially reasonable, Landlord shall enter into a
reasonable non- disturbance and attomment agreement with any approved or
permitted sublessee. To the extent requested by Tenant in written notice to
Landlord, Landlord shall provide any assignee of this Lease or any such sublessee
with written notice of any default by Tenant under this Lease, and the
opportunity to cure such default in a timely manner, in the manner provided in Section 13.01
below, and Landlord shall, accept performance by any such assignees or
subtenants as if such performance were rendered by Tenant. To the extent
requested by Tenant in written notice to Landlord, Landlord shall provide
Tenant with written notice of any default by any assignee or sublessee, and the
opportunity to cure such default in a timely manner, in the manner provided in Section 13.01
below, and Landlord shall accept performance by Tenant. Tenant, upon curing
such default, shall be entitled, at its option, at any time thereafter to
regain possession of the Leased Premises.


 


Section 11.02. Permitted Transfer. Notwithstanding anything to the contrary
contained in Section 11.01 above, Tenant shall have the right,
without Landlord’s consent and without Landlord having the right to terminate
the Lease as to the proposed subleased or assigned space as provided in Section 11.01
above, but upon ten (10) days’ prior notice to Landlord, to (a) sublet
all or part of the Leased Premises to any related corporation or other entity
which controls Tenant, is controlled by Tenant or is under common control with
Tenant; (b) assign all or any part of this Lease” to any related
corporation or other entity which controls Tenant, is controlled by Tenant, or
is under common control with Tenant, or to a successor entity into which or
with which Tenant is merged or consolidated or which acquires substantially all
of Tenant’s assets or property; or (c) effectuate any public offering of
Tenant’s stock on the New York Stock Exchange or in the NASDAQ over the counter
market, provided that in the event of a transfer to a successor pursuant to
clause (b), the tangible net worth of the successor after any such transaction
is not less than the tangible net worth of Tenant as of the date of such
transfer and provided further that such successor entity assumes all of the
obligations and liabilities of Tenant (any such entity described in this clause
(c) or (a) or (b) above hereinafter referred to as a “Permitted
Transferee”), For the purpose of this Article...11 (i) “control”
shall mean ownership of not less than fifty percent (50%) of all voting stock
or legal and equitable interest in such corporation or entity, and (ii) “tangible
net worth” shall mean the excess of the value of tangible assets (i.e. assets
excluding those which are intangible such as


 


12

















 


goodwill, patents and trademarks) over liabilities. Any such transfer
shall not relieve Tenant of its obligations under this Lease. Nothing in this
paragraph is intended to nor shall permit Tenant to transfer its interest under
this Lease as part of a fraud or subterfuge to intentionally avoid its
obligations under this Lease (for example, transferring its interest to a shell
corporation that subsequently files a bankruptcy), and any such transfer shall
constitute a Default hereunder. Any change in control of Tenant resulting from
a merger, consolidation, or a transfer of partnership or membership interests,
a stock transfer, or any sale of substantially all of the assets of Tenant that
do not meet the requirements of this Section 11.02 shall be deemed
an assignment or transfer that requires Landlord’s prior written consent
pursuant to Section 11.01 above.


 


ARTICLE 12
- TRANSFERS BY LANDLORD


 


Section 12.01. Sale of the Building. Landlord shall have the right to sell the
Building at any time during the Lease.Term, subject only to the rights of
Tenant hereunder; and such sale shall operate to release Landlord from
liability hereunder after the date of such conveyance so long as such successor
to Landlord agrees to assume all obligations of Landlord under this Lease
accruing from that point forward. Any funds in the hands of such Landlord or
the then seller, grantor or assignor at the time of such transfer in which
Tenant has an interest, including any Additional Rent or Security Deposit,
shall be turned over to the grantee, and any amount then due and payable to
Tenant by Landlord or the then seller, grantor or assignor under any provisions
of this Lease, shall be paid to Tenant.


 


Section 12.02. Estoppel Certificate. Within ten (10) days following receipt
of a written request from Landlord, Tenant shall execute and deliver to
Landlord, without cost to Landlord, an estoppel certificate in such form as
Landlord may reasonably request certifying (a) that this Lease is in full
force and effect, if true, and unmodified or stating the nature of any
modification, (b) the date to which rent has been paid, (c) that
there are not, to Tenant’s knowledge, any uncured defaults or specifying such
defaults if any are claimed, and (d) any other matters or state of facts
reasonably required respecting the Lease. Such estoppel may be relied upon by
Landlord and by any purchaser or mortgagee of the Building.


 


Section 12.03. Subordination. Landlord shall have the right to subordinate
this Lease to any mortgage, deed to secure debt, deed of trust or other
instrument in the nature thereof, and any amendments or modifications thereto
(collectively, a “Mortgage”) presently existing or hereafter encumbering the
Building by so declaring in such Mortgage. Within ten (10) days following
receipt of a written request from Landlord, Tenant shall execute and deliver to
Landlord, without cost, any instrument that Landlord deems reasonably necessary
or desirable to confirm the subordination of this Lease. Notwithstanding the
foregoing, if the holder of the Mortgage shall take title to the Leased
Premises through foreclosure or deed in lieu of foreclosure, Tenant shall be
allowed to continue in possession of the Leased Premises as provided for in
this Lease so long as Tenant is not in Default.


 


ARTICLE 13
- DEFAULT AND REMEDY


 


Section 13.01. Default. The occurrence of any of the following shall be a “Default”:


 


(a)                              Tenant fails to pay any Monthly Rental Installments or Additional Rent
within five (5) days after written notice thereof from Landlord that the same
is due.


 


(b)                             Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
written notice thereof from Landlord; provided, however, that if the nature of
Tenant’s default is such that more than thirty (30) days are reasonably
required to cure, then such default shall be deemed to have been cured if
Tenant commences such performance within said thirty (30) day period and thereafter
diligently completes the required action within a reasonable time.


 


(c)                              Intentionally omitted.


 


(d)                             Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease.


 


(e)                              All or substantially all of Tenant’s assets in the Leased Premises or
Tenant’s interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is
filed by or against Tenant (and Tenant fails to secure a stay or discharge
thereof within sixty (60) days thereafter); Tenant is insolvent and unable to
pay its debts as they become due; Tenant makes a general assignment for the
benefit of creditors; Tenant takes the benefit of any insolvency action or law;
the appointment of a receiver or trustee in bankruptcy for Tenant or its assets
if such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenants corporate charter
if Tenant is a corporation.


 


13

















 


In addition to the defaults described above, the parties agree that if
Tenant receives written notice of a violation of the performance of any (but
not necessarily the same) term or condition of this Lease three (3) or
more times during any twelve (12) month period, regardless of whether such
violations are ultimately cured, then such conduct shall, at Landlord’s option,
represent a separate Default.


 


Section 13.02. Remedies. Upon the occurrence of any Default, Landlord shall have the following
rights and remedies, in addition to those stated elsewhere in this Lease and
those allowed by law or in equity, any one or more of which may be exercised
without further notice to Tenant:


 


(a)                              Landlord may re-enter the Leased Premises and cure any Default of
Tenant, and Tenant shall reimburse Landlord as Additional Rent for any costs
and expenses which Landlord thereby incurs; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of Landlord’s
action.


 


(b)                             Without terminating this Lease, Landlord may terminate Tenant’s right
to possession of the Leased Premises, and thereafter, neither Tenant nor any
person claiming under or through Tenant shall be entitled to possession of the
Leased Premises, and Tenant shall immediately surrender the Leased Premises to
Landlord, and Landlord may re-enter the Leased Premises and dispossess Tenant
and any other occupants of the Leased Premises by any lawful means and may
remove their effects, without prejudice to any other remedy that Landlord may
have. Upon termination of possession, Landlord may (i) re-let all or any part
thereof for a term different from that which would otherwise have constituted
the balance of the Lease Term and for rent and on terms and conditions
different from those contained herein, whereupon Tenant shall be immediately
obligated to pay to Landlord an amount equal to the present value (discounted
at the Prime Rate) of the difference between the rent provided for herein for
the balance of the Lease Term and that provided for in any lease covering a
subsequent re-letting of the Leased Premises, for the period which would otherwise
have constituted the balance of the Lease Term (the “Accelerated Rent
Difference”), or (ii) from time to time, to recover from Tenant, and
Tenant shall remain liable for, all Base Rent and Additional Rent accruing as
they become due under this Lease during the period from the date of such notice
of termination of possession to the stated end of the Lease Term, less the
amount realized from any reletting of the Premises or any part thereof after
the payment of all Default Damages and Prior Obligations (as defined herein).
Upon termination of possession, Tenant shall be obligated to pay to Landlord (A) the
Accelerated Rent Difference or the amounts under clause (ii) above, (B) all
loss or damage that Landlord may sustain by reason of Tenant’s Default (“Default
Damages”), which shall include, without limitation, expenses of preparing the
Leased Premises for re- letting, including demolition, repairs, tenant finish
improvements, brokers’ commissions and attorneys’ fees, and (C) all unpaid
Base Rent and Additional Rent that accrued prior to the date of termination of possession,
plus any interest and late fees due hereunder (the “Prior Obligations”).


 


(c)                              Landlord may terminate this Lease and declare the present value
(discounted at the Prime Rate) of all rent which would have been due under this
Lease for the balance of the Lease Term over the then present value (discounted
at the Prime Rate) of the then aggregate fair rental value of the Leased Premises
for the balance of the Lease Term to be immediately due and payable as
liquidated damages (the “Accelerated Rent”), whereupon Tenant shall be
obligated to pay to Landlord (i) the Accelerated Rent, (ii) all of
Landlord’s Default Damages, and (iii) all Prior Obligations. It is
expressly agreed and understood that all of Tenant’s liabilities and
obligations set forth in this subsection (c) shall survive termination.


 


(d)                             Landlord and Tenant acknowledge and agree that the payment of the
Accelerated Rent Difference or the Accelerated Rent as set above shall not be deemed
a penalty, but merely shall constitute payment of liquidated damages, it being
understood that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. Neither the filing of a dispossessory proceeding nor
an eviction of personalty in the Leased Premises shall be deemed to terminate
the Lease.


 


(e)                              Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the Default.


 


Section 13.03. Landlord’s Default and Tenant’s Remedies. Landlord shall be in default if it fails to
perform any term, condition, covenant or obligation required under this Lease
for a period of thirty (30) days after written notice thereof from Tenant to
Landlord; provided, however, that if the term, condition, covenant or obligation
to be performed by Landlord is such that it cannot reasonably be performed
within thirty (30) days, such default shall be deemed to have been cured if
Landlord commences such performance within said thirty-day period and
thereafter diligently undertakes to complete the same within a reasonable
period of time. Upon the occurrence of any such default, Tenant may sue for
injunctive relief or to recover damages for any loss directly resulting from
the breach, but Tenant shall not be entitled to terminate this Lease or
withhold, offset or abate any sums due hereunder, except as otherwise herein
provided.


 


14

















 


Section 13.04. Limitation of Landlord’s Liability. If Landlord shall fail to perform any term,
condition, covenant or obligation required to be performed by it under this
Lease and if Tenant shall, as a consequence thereof, recover a money judgment
against Landlord, Tenant agrees that it shall look solely to Landlord’s right,
title and interest in and to the Building and any rents, issues and profits
arising therefrom, or the proceeds arising from any sale or other disposition
thereof for the collection of such judgment; and Tenant further agrees that no
other assets of Landlord shall be subject to levy, execution or other process
for the satisfaction of Tenant’s judgment.


 


Section 13.05. Nonwaiver of Defaults.’ Neither party’s failure or delay in
exercising any of its rights or remedies or other provisions of this Lease
shall constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord’s receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant’s check or any letter
accompanying Tenant’s check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by
Landlord.


 


Section 13.06. Attorneys’ Fees. If either party defaults in the performance
or observance of any of the terms, conditions, covenants or obligations
contained in this Lease and the non-defaulting party obtains a judgment against
the defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys’ fees, court costs and expenses,
incurred in connection therewith. In addition, if a monetary Default shall
occur and Landlord engages outside counsel to exercise its remedies hereunder,
and then Tenant cures such monetary Default, Tenant shall pay to Landlord, on
demand, all expenses incurred by Landlord as a result thereof, including
reasonable attorneys’ fees, court costs and expenses actually incurred.


 


Section 13.07. Mitigation of Damages. Anything to the contrary
contained herein notwithstanding, if Tenant breaches this Lease, defaults
and/or if Landlord terminates this Lease or Tenant’s right to possession,
Landlord shall make reasonable efforts to mitigate Landlord’s damages and costs
and expenses incurred by Landlord as a result thereof.


 


ARTICLE 14
- INTENTIONALLY OMITTED


 


ARTICLE 15
- TENANT’S
RESPONSIBILITY
REGARDING

ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES


 


Section 15.01. Environmental Definitions.


 


(a)                                  “Environmental Laws” shall mean all present
or future federal, state and municipal laws, ordinances, rules and
regulations applicable to the environmental and ecological condition of the
Leased Premises, and the rules and regulations of the Federal
Environmental Protection Agency and any other federal, state or municipal
agency or governmental board or entity having jurisdiction over the
LeasedPremises with respect thereto.


 


(b)                                 “Hazardous Substances” shall mean those
substances included within the definitions of “hazardous substances,” “hazardous
materials,” “toxic substances” “solid waste” or “infectious waste” under
Environmental Laws and petroleum products.


 


Section 15.02. Restrictions on Tenant. Tenant shall not cause or permit the use,
generation, release, manufacture, refining, production, processing, storage or
disposal of any Hazardous Substances on, under or about the Leased Premises, or
the transportation to or from the Leased Premises of any Hazardous Substances,
except as necessary and appropriate for its Permitted Use in which case the
use, storage or disposal of such Hazardous Substances shall be performed in
compliance with the Environmental Laws.


 


Section 15.03. Notices. Affidavits. Etc. Tenant shall promptly after becoming aware
thereof (a) notify Landlord of (i) any violation by Tenant, its
employees, agents, representatives, customers, invitees or contractors of any
Environmental Laws on, under or about the Leased Premises, or (ii) the
presence or suspected presence of any Hazardous Substances on, under or about
the Leased Premises, and (b) deliver to Landlord any notice received by
Tenant relating to (a)(i) and (a)(ii) above from any source. Tenant
shall execute reasonable affidavits, representations and the like within five (5) days
of Landlord’s request therefor concerning Tenant’s best knowledge and belief
regarding the presence of any Hazardous Substances on, under or about the
Leased Premises in violation of the last sentence of Section 15.02 above.


 


Section 15.04. Tenant’s Indemnification. Tenant shall indemnify Landlord and Landlord’s
managing agent from any and all claims, losses, liabilities, costs, expenses
and damages, including


 


15

















 


attorneys’ fees, costs of testing and remediation
costs, incurred by Landlord in connection with any breach by Tenant of its
obligations under this Article 15. The covenants and obligations
under this Article 15 shall survive the expiration or earlier
termination of this Lease.


 


Section 15.05. Existing Conditions. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or
generated, at, in, on, under or in connection with the Leased Premises prior to
the Commencement Date of this Lease except to the extent Tenant exacerbates the
same.


 


Section 15.06. Landlord’s Indemnification. If caused by Landlord,
its employees, agents, representatives or contractors, then Landlord and its
successors and assigns shall indemnify, defend, (with counsel reasonably
acceptable to Tenant) and hold harmless Tenant and its employees from and
against any and all environmental damages, including the cost of remediation,
to the extent suffered as a result of Hazardous Substances on the Premises or Common
Areas prior to Tenant taking possession or which are not introduced by Tenant,
or its agents, invitees, visitors or contractors. Landlord’s obligations, as
and when required by the all applicable Environmental Laws, shall include, but
not be limited to, the cost of investigation, removal, remediation, restoration
and/or abatement, and shall survive the expiration or termination of this
Lease.


 


ARTICLE 16
- MISCELLANEOUS


 


Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure to the benefit of and
be binding upon Landlord and Tenant and their respective successors and
assigns.


 


Section 16.02. Governing Law. This Lease shall be governed in accordance
with the internal laws of the State where the Building is located, without
resort to any choice of law principles.


 


Section 16.03. Force Maieure. Landlord and Tenant (except with respect to
the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is occasioned
by causes beyond its reasonable control, including but not limited to, to the
extent beyond such party’s reasonable control, industry-wide work stoppages,
boycotts, slowdowns or strikes; reasonably unanticipatable shortages of
materials, equipment, labor or energy; unusual weather conditions; or
reasonably unanticipatable acts or omissions of governmental or political
bodies (collectively, “force majeure”).


 


Section 16.04. Examination of Lease. Submission of this instrument by Landlord to
Tenant for examination or signature does not constitute an offer by Landlord to
lease the Leased Premises. This Lease shall become effective, if at all, only
upon the execution by and delivery to both Landlord and Tenant. Execution and
delivery of this Lease by Tenant to Landlord constitutes an offer to lease the
Leased Premises on the terms contained herein.


 


Section 16,05. Indemnification for Leasing Commissions. The parties hereby represent and warrant
that the only real estate brokers involved in the negotiation and execution of
this Lease are the Brokers and that no other party is entitled, as a result of
the actions of the respective party, to a commission or other fee resulting
from the execution of this Lease. Each party shall indemnify the other from any
and all liability for the breach of this representation and warranty on its
part and shall pay any compensation to any other broker or person who may be
entitled thereto. Landlord shall pay any commissions due Brokers based on this
Lease pursuant to separate agreements between Landlord and Brokers.


 


Section 16.06. Notices. Any notice required or permitted to be given under this Lease or by
law shall be deemed to have been given if it is written and delivered in person
or by overnight courier or mailed by certified mail, postage prepaid, to the
party who is to receive such notice at the address specified in Section 1.0
Km). If sent by overnight courier, the notice shall be deemed
to have been given one (1) day after sending. If mailed, the notice shall
be deemed to have been given on the date that is three (3) business days
following mailing. Either party may change its address by giving written notice
thereof to the other party.


 


Section 16.07. Partial Invalidity: Complete Agreement. If any provision of this Lease shall be held
to be invalid, void or unenforceable, the remaining provisions shall remain in
full force and effect. This Lease represents the entire agreement between
Landlord and Tenant covering everything agreed upon or understood in this
transaction. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution hereof or in effect between the parties. No change
or addition shall be made to this Lease except by a written agreement executed
by Landlord and Tenant.


 


16

















 


Section 16.08. Financial Statements. During the Lease Term and any extensions
thereof, the Landlord will have access to the Tenant’s financial records, as
part of the Guarantor’s annual report and stock information found at,
www.quixotecorp.com.  Such financial
statements are public knowledge and released to the investment community
periodically. All financial statements provided by Tenant to Landlord hereunder
shall be prepared in conformity with generally accepted accounting principles,
consistently applied.


 


Section 16.09. Representations and Warranties.


 


(a)                                  Tenant hereby represents and warrants that (i) Tenant
is duly organized, validly existing and in good standing (if applicable) in
accordance with the laws of the State under which it was organized; (ii) Tenant
is authorized to do business in the State where the Building is located; and (iii) the
individual(s) executing and delivering this Lease on behalf of Tenant has
been properly authorized to do so, and such execution and delivery shall bind
Tenant to its terms.


 


(b)                                 Landlord hereby covenants, represents and
warrants to and with Tenant that (i) Landlord is duly organized, validly
existing and in good standing (if applicable) in accordance with the laws of
the State under which it was organized; (ii) Landlord is authorized to do
business in the State where the Building is located; (iii) the individual(s) executing
and delivering this Lease on behalf of Landlord has been properly authorized to
do so, and such execution and delivery shall bind Landlord to its terms, (iv) there
are no pending or, to the best of Landlord’s knowledge, threatened condemnation
proceedings or other litigation or proceedings against or affecting any part of
the Project that could have an adverse effect on the use and enjoyment of the
Leased Premises and Common Areas; (v) the Project is in compliance with
all laws (including the Americans with Disabilities Act), ordinances, codes,
rules, regulations, standards, judgments, decrees, writs, rulings, injunctions,
orders, permits, licenses, consents, approvals, authorizations, insurance
requirements and other requirements applicable thereto (“Applicable Requirements”)
on the date hereof; (vi) to the best of its knowledge, there are no
Hazardous Substances within the Leased Premises or the Common Areas, except as
necessary and appropriate for the operation of the Project, in which case the
use, storage or disposal of such Hazardous Substances have been performed in
compliance with the Environmental Laws, (vii) to the best of its
knowledge, there are no existing or, to the best of Landlord’s knowledge,
planned special taxes or any special assessments affecting the Leased Premises;
and (viii) to the best of its knowledge, the Rentable Area of the Leased Premises
and the Rentable Area of the Building have been calculated in accordance with
the than current Building and Managers Association standards for office space
measurement.


 


Section 16.10. Signage. Tenant may, at its own expense, install an exterior sign on the
building concerning the business of Tenant that shall be in keeping with the
decor and other signs on the Building. All signage (including the signage
described in the preceding sentence) in or about the Leased Premises shall be
first approved by Landlord and shall be in compliance with any codes and
recorded restrictions applicable to the sign or the Building. The location,
size and style of all signs shall be approved by Landlord. Tenant agrees to
maintain any sign in good state of repair, and upon expiration of the Lease
Term, Tenant agrees to promptly remove such signs and repair any damage to the
Leased Premises caused thereby.


 


Section 16.11. Parking. Tenant shall be entitled to the non-exclusive use of at least
twenty-seven (27) parking spaces designated for the Building by Landlord, on an
unreserved/unallocated basis, provided that Tenant shall have the right to
designate up to five (5) of the twenty-seven (27) spaces hereinabove, as
reserved and/or visitor spaces, in a location approved by Landlord which
approval shall not be unreasonably withheld. Tenant and Landlord agree not to
overburden the parking facilities beyond what is permitted by this Lease and
agree to cooperate with each other and other tenants in the use of the parking
facilities. Landlord reserves the right in its reasonable discretion to
determine whether parking facilities are becoming crowded and, in such event,
to allocate parking spaces between Tenant and other tenants. There will be no
assigned parking unless Landlord, in its sole discretion, deems such assigned
parking advisable, subject to the rights of Tenant under this Section 16.11.
No vehicle may be repaired or serviced in the parking area and any vehicle
brought into the parking area by Tenant, or any of Tenant’s employees,
contractors or invitees, and reasonably deemed abandoned by Landlord will be
towed and all reasonable costs thereof shall be borne by the Tenant. All
driveways, ingress and egress, and all parking spaces are for the joint use of
all tenants. There shall be no parking permitted on any of the streets or
roadways located within the Project. In addition, subject to the terms of this Section 16.11,
Tenant agrees that its employees will not park in the spaces designated visitor
parking.


 


Section 16.12. Consent. Anything to the contrary contained herein notwithstanding, where the
consent, control, direction, approval, authorization, determination, opinion or
similar action of a party is required or allowed, such consent, control,
direction, approval, authorization, determination, opinion or similar action
will not be unreasonably withheld, delayed, conditioned, exercised or given.


 


Section 16.13. Time. Time is of the essence of each term and provision of this Lease.


 


17

















 


Section 16.14.   Patriot
Act. Each of Landlord
and Tenant, each as to itself, hereby represents its compliance with all
applicable anti-money laundering laws, including, without limitation the USA
Patriot Act, and the laws administered by the United States Treasury Department’s
Office of Foreign Assets Control, including without limitation, Executive Order
13224 (“Executive Order”). Each of Landlord and Tenant further represents (i) that
it is not, and it is not owned or controlled directly or indirectly by any
person or entity, on the SDN List published by the United States Treasury
Departments’ Office of Foreign Assets Control, and (ii) that it is not a
person otherwise identified by government or legal authority as a person with
whom a U.S. Person is prohibited from transacting business. As of the date
hereof, a list of such designations and the text of the Executive’Order are
published under the internet website address www.ustreas.gov/offices/enforcement/ofac.


 


Section 16.15. RWIS (Road Weather Information System) Tower and
Back-Up Generator. Tenant,
at its sole cost and expense, shall have the right to install an RWIS Sensor
Tower and/or back-up generator on the property. The parties have agreed on the
plans and location for said generator, which is in accordance with the
governing authorities. The generator infrastructure shall remain property of
the Landlord at the end of the Lease Term.


 


Section 16.16. Right of First Offer. So long as this Lease is in full force and
effect and free of any Default on the part of Tenant hereunder, and subject to
any now current renewal or expansion rights of existing tenants in the Project,
Tenant shall have the right to lease that portion of the Project that is
contiguous to, but not currently part of the Premises, commonly known as Suite 1858
as depicted on Exhibit A-2
attached hereto (the “Option Premises”). Except for such renewal or extension
rights of existing tenancies of the Project, Landlord agrees that prior to
entering into any substantial negotiations with any other third party, Landlord
shall as soon as possible first give Tenant written notice that such space is
or will become available. Such notice shall specify the rate of rent, which
will be the then current market rate and the effective date upon which Landlord
is willing to add the Option Premises to the Premises leased by this Lease for
the balance of the Lease Term and any Renewal Term hereof (which date shall be
no later than the date that Landlord in good faith is willing to lease the
Option Premises to third parties). Thereupon Tenant shall have and is hereby
granted the right and option, to be exercised only by written notice given to
Landlord within ten (10) business days after the date of Landlord’s
notice, to elect to add the Option Premises to the Premises leased by this
Lease at the then current market rate and the effective date specified in
Landlord’s notice to Tenant and otherwise upon the terms and conditions of this
Lease; and upon timely giving of said notice, the Option Premises shall be so
added to the Premises as of the effective date, provided that the term of the
lease for the Option Premises shall be coterminous with the Lease Term; all
provided, however, that both at the date of Tenant’s notice and at the
effective date, this Lease is in full force and effect and free of any Default
on the part of Tenant hereunder. In the event that Tenant elects to lease the
Option Premises, and unless included in the market rate, Landlord shall be
under no obligation to construct improvements in the Option Premises and Tenant
agrees that the Option Premises shall be delivered “as is.” In the absence of
timely notice from Tenant, Landlord shall have the right to lease the Option
Premises to such party or parties upon and subject to such rates, period of
time and other terms and provisions as Landlord shall elect, but Landlord shall
not again be required to offer the Option Premises to Tenant before so leasing
it to others. Notwithstanding anything to the contrary herein, (a) in
order for Tenant to exercise its Right of First Offer pursuant to Section 16.16
during the last two years of the original Lease Term, Tenant must additionally
exercise the Option to Renew as set forth in paragraph 16.17 hereinafter, and (b) the
factors used to determine the market rate for purposes of this Section 16.16
shall be the same as those used to determine Market Rent as provided in Section 16.17
and, if Tenant disagrees with Landlord’s determination of market rate under
this Section 16.16 and notifies Landlord thereof within such ten (10) business
day period, then Tenant shall be deemed to have exercised such right of first
offer but the market rate shall be determined in accordance with the provisions
of the last paragraph of Section 16.16(b), but the effective date, if
prior to such determination is made, shall be delayed until such determination
is made.


 


Section 16.17. Option to Renew.


 


(a)                              Provided Tenant currently has no uncured Default of any obligation,
covenant or condition of this Lease, Tenant shall have the option to renew the
Lease Term for one additional period of five (5) years following the last
month of the original Lease Term, which will hereinafter be referred to as the “Termination
Date” (said 5-year period immediately following the Termination Date is the “Renewal
Term”). The option to renew the Lease for the Renewal Term must be exercised in
a written notice thereof by Tenant which must be delivered to Landlord at least
six (6) months, but not more than nine (9) months (or if the last sentence
of Section 16.16 is operative, two (2) years), prior to the
Termination Date. If the required notice to renew the Lease for the Renewal
Term is not delivered by said 6-month prior date, Tenant will be conclusively
deemed to have waived the option to renew. 
Any reference in the Lease to the “Lease Term” shall be deemed to
include the Renewal Term and apply thereto, to the extent Tenant has exercised
or exercises its option to extend the Lease for the Renewal Term, unless it is expressly
provided otherwise.


 


(b)                             The rent during the Renewal Term shall be equal to the Market Rent (as
defined


 


18

















 


hereinafter) for the Premises as of the beginning of the Renewal Term.
Written notice of Landlord’s determination of Market Rent shall be sent to
Tenant within thirty (30) days after Landlord’s receipt of Tenant’s notice to
renew for the respective Renewal Term. Unless Tenant sends Landlord a written
notice within fifteen (15) days after Tenant’s receipt of said determination
withdrawing its exercise of its option to renew or objecting to the
determination, Landlord’s determination of rent shall be conclusively binding
upon the parties for the Renewal Term. If Tenant does send Landlord such
written withdrawal within said fifteen (15) day period, then Tenant will be
conclusively deemed to have waived the option to renew.


 


If Tenant delivers to Landlord a written’ objection to Landlord’s
determination of the Market Rent within such fifteen (15) day period, then
Landlord and Tenant shall negotiate in good faith to attempt to reach an
agreement on Market Rent, however, if the parties cannot agree on a Market Rent
within another fifteen (15) days after Tenant’s written objection, then the
Tenant will be conclusively deemed to have waived the option to renew.


 


(c)                                  “Market Rent” shall mean the annual rental
rate then being charged by similar projects in the St. Louis metropolitan area
for improved space (not including the improvements made by Tenant) comparable
to the Premises for leases commencing on or about the time of the applicable
renewal period, taking into consideration use and location within the
applicable Project, the location, quality, age and reputation of the Project,
the definition of rentable area or net rentable area, as the case may be, with
respect to which such rental rates are computed, comparative leasehold
improvement, rental concessions and abatements, lease assumptions or
take-overs, moving expenses, the term of the lease under consideration and the
extent of services provided thereunder, applicable distinctions between “gross”
leases and “net” leases, base year figures for escalation purposes, other
adjustments (including, by way of example, indexes) to base rental, and any
other relevant term or condition in making such evaluation.


 


Section 16.18.   Guarantor.  This
Lease is guaranteed by Quixote Corporation per the attached Exhibit F.


 


Section 16.19. Quiet Enjoyment. Landlord covenants that Tenant, on paying
the rent within any applicable notice and cure periods and on keeping,
observing and performing all the other terms, covenants, conditions, provisions
and agreements herein contained on the part of the Tenant to be kept, observed,
and performed within any applicable notice and cure periods, shall, during the
Lease Term, peaceably and quietly have, hold and enjoy the Leased Premises
subject to the terms, covenants, conditions, provisions, and agreements hereof.


 


Section 16.20. Joint and Several Liability. If more than one person or entity is named
as Landlord or Tenant herein, the obligations of Landlord or Tenant shall be
the joint and several responsibility of all persons or entities named herein as
Landlord or Tenant, respectively.


 


[SIGNATURES CONTAINED ON THE FOLLOWING PAGES


 


19

















 


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


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  SLP I, LLC, SLP II,
  LLC, and SLP III, LLC ,

  
	
   

  	
  Delaware limited
  liability companies

  
	
   

  	
   

  
	
   

  	
  By:

  	
  St. Louis Portfolio
  Management Company, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
  Its: Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James N. Ries

  
	
   

  	
   

  	
   

  	
  James N. Ries

  
	
   

  	
   

  	
   

  	
  Its: Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  SURFACE SYSTEMS, INC.

  
	
   

  	
  a Missouri corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joan R. Riley

  
	
   

  	
  Name:

  	
    Joan R.
  Riley

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


EXHIBIT F


 


GUARANTY OF
LEASE


 


THIS GUARANTY OF LEASE, is given this 19th day of November, 2008, by the undersigned
Quixote Corporation, a Delaware corporation (“Guarantor”) to SLP I, LLC, SLP
II, LLC and SLP III, LLC, Delaware limited liability companies (hereinafter
called “Landlord”).


 


WlTNESSETH:


 


THAT WHEREAS, Landlord and Surface Systems, Inc.
(hereinafter, with its successors and assigns, referred to as “Tenant”), are
concurrently herewith entering into a Lease in substantially the form attached
hereto as Exhibit A (the “Lease”) and dated of even date herewith.
Tenant is a wholly-owned subsidiary of Guarantor and it is in the Guarantor’s
best interest and Guarantor will be benefited by the lease to Tenant by
Landlord of the Premises (as defined in the Lease), all upon the terms of the
Lease. In order to induce Landlord to enter into the Lease and in consideration
of the benefits to be derived by Guarantor as a result of the Lease with
Tenant, Guarantor is willing to execute and deliver this Guaranty of Lease in
favor of Landlord;


 


NOW THEREFORE, as a part of the inducement for Landlord to
enter into the Lease with Tenant, Guarantor agrees as follows:


 


1.                         In consideration of the execution of the above and foregoing Lease by
Landlord, Guarantor hereby becomes surety for and unconditionally guarantees
the performance of all covenants, conditions, terms, obligations and payments
required of Tenant under the Lease (collectively, the “Obligations”). If a Default
shall at any time be made by Tenant under the terms of the Lease, Guarantor,
immediately upon demand of Landlord, hereby promises and agrees to pay on the
respective due dates to Landlord all amounts that may be due and to fully
satisfy the conditions and covenants to be paid, kept and performed by Tenant
under the Lease, and to cause the full and faithful performance and observance
of each and all Obligations of the Tenant under and pursuant to the terms and
conditions of the Lease, without relief from valuation or appraisement laws, as
fully and to the same extent as though both Guarantor and Tenant had been named
in the Lease as Tenants therein with joint and several liability. The above
guaranty shall constitute a guaranty of payment and performance.


 


2.                         As conditions of liability pursuant to this Guaranty, Guarantor hereby
unconditionally waives (a) any notice of default in the payment of rent or any
other term, covenant or condition of the Lease by Tenant or (b) any
requirement that Landlord exercise or exhaust its rights or remedies against
Tenant or against any person, firm or corporation prior to enforcing its rights
against Guarantor.


 


3.                         Landlord may, without notice to Guarantor,
and Guarantor hereby consents thereto, (a) modify or otherwise change or
alter the terms and conditions of the Lease, (b) waive any of its rights
under the Lease or forbear to take steps to enforce any payment or any other
term or condition of the Lease against Tenant.


 


4.                         Guarantor’s obligation to make payment in
accordance with the terms of this Guaranty shall not be impaired, modified,
changed, released or limited in any manner whatsoever by: (i) any
impairment, modification, change, release or limitation of the liability of
Tenant or its estate in bankruptcy resulting from the operation of any present
or future provision of the federal bankruptcy statute or other statute, or from
the decision of any court; (ii) any exercise or nonexercise of or delay in
exercising any right, remedy, power or privilege under or in respect of this
Guaranty or of any agreement related to the Obligations (even if such right,
remedy, power of privilege shall be lost thereby) or any waiver, consent, indulgence
or other action or inaction in respect thereof; (iii) any limitation of
liability of Tenant or Guarantor contained in any agreement related to the
Obligations; (iv) any defense that may arise by reason of Landlord’s
failure to file or enforce a claim against Tenant or any other surety or
guarantor of the Obligations in any bankruptcy or other proceeding; (v) the
voluntary or involuntary liquidation, dissolution, sale of all or substantially
all of the property of Tenant or any other surety or guarantor of the Obligations,
marshaling of assets and liabilities, or other similar proceeding affecting
Tenant or any other surety or guarantor of the Obligations or any of its
assets; or (vi) any other circumstances which might otherwise constitute a
legal or equitable discharge of a guarantor or surety other than payment or performance
of the Obligations.


 


5.                         This Guaranty shall commence on execution and
delivery of the Lease and continue until all of Tenant’s obligations under the
Lease are satisfied in full. This Guaranty shall not be diminished by any payment
or performance of the terms, covenants or conditions of the Lease by Guarantor.
If payment of the Obligations or any part thereof is made by Tenant or
Guarantor, the liability of Guarantor hereunder shall continue and remain in
full force and effect.


 


6.                         Other than the defense that would be
available to Tenant, Guarantor shall not be entitled to make any defense in any
suit or action instituted by Landlord to enforce this Guaranty or the Lease or
be excused from any liability hereunder, and Guarantor hereby expressly waives
any defense in law or in


 


1

















 


equity which is not or would
not be available to Tenant, it being the intent hereof that the liability of
Guarantor hereunder is primary and unconditional.  Guarantor further hereby waives, surrenders
and agrees not to claim or enforce, unless or until all of the Obligations with
respect to which Guarantor is liable hereunder have been paid in full or
discharged; (i) any right to be subrogated in whole or in part to any of
Landlord’s rights or claims against Tenant arising under any agreement related
to the Obligations, and (ii) any right to require the marshaling of any
assets of Tenant, which right of subrogation or marshaling might otherwise
arise from the partial or full payment by Guarantor of its obligations under
this Guaranty.  Guarantor further waives
the benefit of any statute of limitations affecting Guarantor’s liability under
this Guaranty.


 


7.                         In the event
suit or action be brought upon and in connection with the enforcement of this
Guaranty, the non-prevailing party shall pay in addition to any other remedies
provided for in this Guaranty, attorney’s fees and all court costs incurred by
the prevailing party.


 


8.                         The rights and
obligations created by this Guaranty shall inure to the benefit of and be
binding upon the successors, assigns and legal representatives of Guarantor and
Landlord.


 


IN WITNESS WHEREOF, Guarantor has executed
this Guaranty of Lease this 19th day of November, 2008.


 


	
   

  	
  QUIXOTE CORPORATION,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joan R. Riley

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


 


	
  STATE OF
  Illinois

  	
  )

  	
   

  
	
   

  	
  )

  	
  SS:

  
	
  COUNTY OF
      Cook

  	
  )

  	
   

  



 


Before me, a Notary Public, in and for said
County and State, personally appeared Joan R. Riley, the Vice President of
Quixote Corporation, who acknowledged the execution of the foregoing Guaranty
of Lease in her capacity as such officer and who, having been duly sworn,
stated that the representations therein contained are true.


 


Witness my hand and Notarial Seal this 19th day of November, 2008.


 


 


	
   

  	
  /s/ Charlotte M. Castine

  
	
   

  	
  (signature)

  
	
   

  	
   

  
	
   

  	
  Charlotte M. Castine

  
	
   

  	
  (name printed) NOTARY
  PUBLIC

  



 


My Commission Expires:
01/05/09 County of Residence: Cook


 


2