Exhibit
10.14


 


OFFICE
LEASE


 


This Office Lease (this “Lease”)  is entered into by
and between CRESCENT REAL ESTATE FUNDING VIII, L.P., a Delaware limited
partnership (“Landlord”), and NETSPEND
CORPORATION, a Delaware corporation (“Tenant”), and shall be effective as of the date set
forth below Landlord’s signature (the “Effective Date”)


 


1.                                       Basic
Lease Information. The key business terms used
in this Lease are defined as follows:


 


A.                                    “Building”: The building commonly known
as Austin Centre and located at 701 Brazos Street, Austin, Texas 78701; but
does not include that portion of the building located on the Property now known
and operated as the Omni Austin Hotel of Austin Centre (the “Hotel”), except those
premises used by the Hotel as office space.


 


B.                                    “Rentable Square Footage of the Building” is agreed and
stipulated to be 343,664 square feet.


 


C.                                    “Premises”: The area shown on Exhibit A-1 to this Lease. The
Premises are located on floor 12 of the Building and known as suite number
1200. The “Rentable
Square Footage of the Premises” is deemed to be 22,674 square
feet. If the Premises include, now or hereafter, one or more floors in their
entirety, all corridors and restroom facilities located on such full floor(s) shall
be considered part of the Premises. Landlord and Tenant stipulate and agree
that the Rentable Square Footage of the Building and the Rentable Square
Footage of the Premises are correct and shall not be remeasured.


 


D.                                    “Base Rent”:


 


	
  Period

  	
   

  	
  Annual
  Rate

  	
   

  	
  Monthly

  	
   

  
	
  (in months)

  	
   

  	
  Per Square
  Foot

  	
   

  	
  Base Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1
  to 6

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  7 to 18

  	
   

  	
  $

  	
  3.00

  	
   

  	
  $

  	
  5,668.50

  	
   

  
	
  19 to 30

  	
   

  	
  $

  	
  7.00

  	
   

  	
  $

  	
  13,226.50

  	
   

  
	
  31 to 42

  	
   

  	
  $

  	
  9.00

  	
   

  	
  $

  	
  17,005.50

  	
   

  
	
  43 to 54

  	
   

  	
  $

  	
  10.00

  	
   

  	
  $

  	
  18,895.00

  	
   

  
	
  55 to 66

  	
   

  	
  $

  	
  11.00

  	
   

  	
  $

  	
  20,784.50

  	
   

  



 


E.                                      “Tenant’s Pro Rata Share”: The percentage
equal to the Rentable Square Footage of the Premises divided by the Rentable
Square Footage of the Building. Landlord and Tenant acknowledge Tenant’s Pro
Rata Share is equal to 6.598%.


 


F.                                      “Term”: The period of approximately
66 months starting on the Commencement Date, subject to the provisions of Article 3.


 


G.                                    “Estimated Commencement Date”: No later than November 1,
2003, subject to adjustment, if any, as provided in Section 3.A and the
Work Letter.


 


H.                                    “Security Deposit”: $34,653.43.


 


I.                                         “Guarantor(s)”: None.


 


J.                                      “Business Day(s)”: Monday through Friday of
each week, exclusive of New Year’s Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, the day after Thanksgiving and Christmas Day (“Holidays”). Landlord may
designate additional Holidays, provided that the additional Holidays are
commonly recognized by other office buildings in the area where the Building is
located.


 


K.                                    “Law(s)”: All applicable statutes,
codes, ordinances, orders, rules and regulations of any municipal or
governmental entity, now or hereafter adopted, including the Americans with
Disabilities Act and any other law pertaining to disabilities and architectural
barriers (collectively, “ADA”),  and all laws
pertaining to the environment, including the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq.


 


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(“CERCLA”), and all restrictive
covenants existing of record and all rules and requirements of any
existing association or improvement district affecting the Property.


 


L.                                     “Normal Business Hours”: 7:00 A.M.
to 7:00 P.M. on Business Days and 8:00 A.M. to 2:00 P.M. on
Saturdays, exclusive of Holidays.


 


M.                                  “Notice Addresses”:


 


Tenant:  On or after the Commencement
Date, notices shall be sent to Tenant at the Premises. Prior to the
Commencement Date, notices shall be sent to Tenant at the following address:


 


NetSpend Corporation


501 Congress Avenue, Suite 1800 


Austin, Texas 78701


Attn: Steve Reesing, CFO


Phone #: (512)473-2020 ext. 225


Fax #:                    



 


	
  Landlord:

  	
   

  	
  With a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Crescent Real Estate Funding VIII, L.P.

  Austin Centre

  701 Brazos Street, Suite 190

  Austin, Texas 78701

  Attention: Property Manager

  Telephone: (512) 320-5800

  Facsimile: (512) 320-5888

  	
   

  	
  Crescent Real Estate Equities, Ltd.

  Post Oak Central

  2000 Post Oak Blvd., Suite 1950

  Houston, Texas 77056

  Attention: Ms. Jane Page

  Telephone: (713) 840-1170

  Facsimile: (713) 840-1180

  	
   

  	
  Crescent Real Estate Equities, Ltd.

  777 Main Street, Suite 2100

  Fort Worth, Texas 76102

  Attention: Legal Department

  Telephone: (817) 321-2100

  Facsimile: (817) 321-2000

  



 


Rent (defined in Section 4.A.) is payable to
the order of CRESCENT REAL ESTATE FUNDING VIII, L.P. at the following address: P.O. Box
842019, Dallas, Texas 75284-2019 or by wire transfer to Bank of America,
Dallas, Texas ABA#111-0000-25, for further credit to Crescent Real Estate
Funding VIII, L.P. Account #004771163007, Tenant: NetSpend Corporation.


 


N.                                    “Other Defined Terms”: In addition to
the terms defined above, an index of the other defined terms used in the text
of this Lease is set forth below, with a cross-reference to the paragraph in
this Lease in which the definition of such term can be found:


 


	
  Affiliate

  	
   

  	
  11.E

  
	
  Alterations

  	
   

  	
  9.C(1)

  
	
  Audit Election Period

  	
   

  	
  4.G

  
	
  Cable

  	
   

  	
  9.A

  
	
  Claims

  	
   

  	
  13

  
	
  Collateral

  	
   

  	
  19.E

  
	
  Commencement Date

  	
   

  	
  3.A

  
	
  Common Areas

  	
   

  	
  2

  
	
  Completion Estimate

  	
   

  	
  16.B

  
	
  Contamination

  	
   

  	
  30.C

  
	
  Costs of Reletting

  	
   

  	
  19.B

  
	
  Expiration Date

  	
   

  	
  3.A

  
	
  Force Majeure

  	
   

  	
  31.C

  
	
  Hazardous Materials

  	
   

  	
  30.C

  
	
  Landlord Parties

  	
   

  	
  13

  
	
  Landlord Work

  	
   

  	
  3.A

  
	
  Landlord’s Rental Damages

  	
   

  	
  19.B

  
	
  Leasehold Improvements

  	
   

  	
  29

  
	
  Minor Alterations

  	
   

  	
  9.C(1)

  
	
  Monetary Default

  	
   

  	
  18.A

  
	
  Mortgage

  	
   

  	
  25

  
	
  Mortgagee

  	
   

  	
  25

  
	
  OE Payment

  	
   

  	
  4.B

  
	
  Operating Expenses

  	
   

  	
  4.D

  
	
  Permitted Transfer

  	
   

  	
  11.E

  
	
  Permitted Use

  	
   

  	
  5.A

  
	
  Prime Rate

  	
   

  	
  19.B

  
	
  Property

  	
   

  	
  2

  
	
  Provider

  	
   

  	
  7.C

  
	
  Relocated Premises

  	
   

  	
  23

  
	
  Relocation Date

  	
   

  	
  23

  
	
  Rent

  	
   

  	
  4.A

  
	
  Service Failure

  	
   

  	
  7.B

  
	
  Special Installations

  	
   

  	
  29

  
	
  Substantial Completion

  	
   

  	
  Work Letter

  
	
  Taking

  	
   

  	
  17

  
	
  Tenant Parties

  	
   

  	
  13

  
	
  Tenant’s Insurance

  	
   

  	
  14.A

  
	
  Tenant’s Property

  	
   

  	
  14.A

  
	
  Tenant’s Removable Property

  	
   

  	
  29

  
	
  Time Sensitive Default

  	
   

  	
  18.B

  
	
  Transfer

  	
   

  	
  11.A

  
	
  Work Letter

  	
   

  	
  3.A

  



 


2.                                       Lease
Grant. Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property (defined below) that are designated by Landlord for the common use
of tenants and others, such as sidewalks, common corridors, vending areas,
lobby areas and, with respect to multi-tenant floors, restrooms and elevator
foyers (the “Common
Areas”). “Property”
means the Building


 


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and the parcel(s) of land on which it is located as more fully
described on Exhibit A-2, together
with all other buildings and improvements located thereon; and the Building
garage(s) and other improvements serving the Building, if any, and the
parcel(s) of land on which they are located.


 


3.                                       Term; Adjustment of Commencement Date; Early Access.


 


A.                                    Term. This
Lease  shall govern the
relationship between Landlord and Tenant with respect to the Premises from the
Effective Date through the last day of the Term specified in Section 1.F (the  “Expiration Date”), unless terminated
early in accordance with this Lease. The Term of this Lease (as specified in Section 1.F) shall  commence on the
“Commencement Date”, which
shall be the earliest of (1) the date on which the Landlord Work (defined
below) is Substantially Complete, as determined pursuant to the Work Letter
(defined below), or (2) the date on which the Landlord Work would have
been Substantially Complete but for Tenant Delay, as such term is defined in
the Work Letter, or (3) the date Tenant takes possession of any part of
the Premises for purposes of conducting business, or (4) November 1,
2003. If Landlord is delayed in delivering possession of the Premises or any
other space due to any reason, including Landlord’s failure to Substantially
Complete the Landlord Work by the Estimated Commencement Date, the holdover or
unlawful possession of such space by any third party, or for any other reason,
such delay shall not be a default by Landlord, render this Lease void or
voidable, or otherwise render Landlord liable for damages. Promptly after the
determination of the Commencement Date, the Expiration Date, the Rent schedule
and any other variable matters, Landlord shall prepare and deliver to Tenant a
commencement letter agreement substantially in the form attached as Exhibit C. If such commencement
letter is not executed by Tenant within 30 days after delivery of same by
Landlord, then Tenant shall be deemed to have agreed with the matters set forth
therein. Notwithstanding any other provision of this Lease to the contrary, if
the Expiration Date would otherwise occur on a date other than the last day of
a calendar month, then the Term shall be automatically extended to include the
last day of such calendar month, which shall become the Expiration Date. “Landlord Work” means
the work, if any, that Landlord is obligated to perform in the Premises
pursuant to a separate work letter agreement (the  “Work  Letter”), if
any, attached as Exhibit D.
If a Work Letter is not attached
to this Lease or if an attached Work Letter does not require Landlord to
perform any work, the occurrence of the Commencement Date shall not be conditioned
upon the performance of work by Landlord.


 


B.                                    Acceptance of Premises. The Premises are  accepted by
Tenant in “as is” condition and configuration subject to (1) any Landlord
obligation to perform Landlord Work, and (2) any latent defects in the
Premises of which Tenant notifies Landlord within one year after the
Commencement Date [other than work performed by Tenant Parties (defined
below)]. TENANT HEREBY AGREES THAT THE
PREMISES ARE IN GOOD ORDER AND SATISFACTORY CONDITION AND THAT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS LEASE, THERE ARE NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY LANDLORD REGARDING THE PREMISES,
THE BUILDING OR THE PROPERTY.


 


C.                                    Early Access. Prior to the date the Landlord Work  is
Substantially Complete, Tenant’s access to the Premises shall be permitted only
with the prior written consent of Landlord. Early access to the Premises shall
be subject to the terms and conditions of this Lease and Tenant shall pay Rent
(defined in Section 4.A) to Landlord for each day of such early
access. However, if such early access to the Premises is permitted by Landlord
for the sole purpose of performing improvements or installing furniture,
equipment or other personal property, except for the cost of services requested
by Tenant (e.g., freight elevator usage), Tenant shall not be required to pay
Base Rent and the OE Payment (defined in Section 4.B)  for any days of such early access.


 


D.                                    Early Termination. If there has
been a Permitted Transfer (defined in Section 11.E)  or
a change in control or ownership of Tenant as set out in Section 11.D, Tenant shall have the
one-time right to terminate this Lease at expiration of the 42nd month of the Term (the
“Early Termination Date”), provided Tenant
gives notice thereof to Landlord no less than 6 months prior to the Early
Termination Date and provided Tenant is not in default under the Lease at the
time of the giving of such notice nor on the Actual Termination Date (defined
below). Such notice must specify the date (which cannot be prior to the Early
Termination Date) on which Tenant desires the termination to become effective
(the “Actual Termination
Date”). Additionally,
Tenant’s right to terminate hereunder is conditioned upon the payment in full
by Tenant, on or before the Actual Termination Date, of (i) all Rent
through and including the Actual Termination Date and (ii) the cash sum of
$150,000 (collectively, the “Termination


 


3

















 


Payment”). After Landlord’s
receipt of the Termination Payment, and so long as Tenant has surrendered the
Premises in the condition required under this Lease, neither party shall have
any rights, liabilities or obligations required under this Lease for the period
accruing after the Actual Termination Date, except those which, by the
provisions of this Lease, expressly survive the termination of this Lease.


 


4.                                       Rent.


 


A.                                    Payments. As
consideration for, this Lease, Tenant shall pay Landlord, without any demand,
setoff or deduction, the total amount of Base Rent, Tenant’s Pro Rata Share of
the Operating Expenses (defined in Section 4.D)
and all other sums payable by Tenant under this Lease (all of which are
sometimes collectively referred to as “Rent”);  provided that Base Rent and Tenant’s Pro
Rata Share of the Operating Expenses shall be abated for the first 6 months of
the Term. Tenant shall pay and be liable for all rental, sales and use taxes
(but excluding income taxes), if any, imposed upon or measured by Rent under
applicable Law. The monthly Base Rent and the OE Payment shall be due and
payable in advance on the first day of each calendar month without notice or
demand, provided that the installment of Base Rent for the first full calendar
month of the Term shall be payable upon the execution of this Lease by Tenant.
All other items of Rent shall be due and payable by Tenant on or before 30 days
after billing by Landlord. All payments of Rent shall be by good and sufficient
check or by other means (such as automatic debit or electronic transfer) acceptable
to Landlord. If the Term commences on a day other than the first day of a
calendar month, the monthly Base Rent and the OE Payment for the month shall be
prorated on a daily basis based on a 360 day calendar year. Landlord’s
acceptance of less than the correct amount of Rent shall be considered a
payment on account of the earliest Rent due. No endorsement or statement on a
check or letter accompanying a check or payment shall be considered an accord
and satisfaction, and either party may accept such check or payment without
such acceptance being considered a waiver of any rights such party may have
under this Lease or applicable Law. Tenant’s covenant to pay Rent is
independent of every other covenant in this Lease.


 


B.                                    Payment of Operating Expenses. Tenant shall
pay Tenant’s Pro Rata Share of the Operating Expenses (the “OE Payment”)  for each calendar
year during the Term. On or about January 1 of each calendar year,
Landlord shall provide Tenant with a good faith estimate of the OE Payment for
such calendar year during the Term. On or before the first day of each month,
Tenant shall pay to Landlord a monthly installment equal to one-twelfth of
Tenant’s Pro Rata Share of Landlord’s estimate of the OE Payment. If Landlord
determines that its good faith estimate of the OE Payment was incorrect,
Landlord may provide Tenant with a revised estimate. After its receipt of the
revised estimate, Tenant’s monthly payments shall be based upon the revised
estimate. If Landlord does not provide Tenant with an estimate of the OE
Payment by January 1  of a calendar year, Tenant shall
continue to pay monthly installments based on the most recent estimate(s) until
Landlord provides Tenant with the new estimate. Upon delivery of the new
estimate, an adjustment shall be made for any month for which Tenant paid
monthly installments based on the same year’s prior incorrect estimate(s).
Tenant shall pay Landlord the amount of any underpayment within 30 days after
receipt of the new estimate. Any overpayment shall be credited against the next
sums due and owing by Tenant or, if no further Rent is due, refunded directly
to Tenant within 30 days of determination. The obligation of Tenant to pay the
OE Payment as provided herein shall survive the expiration or earlier
termination of this Lease.


 


C.                                    Reconciliation of Operating Expenses. Within 120 days after the end of each calendar year or as soon
thereafter as is practicable (but not later than 360 days after the end of each
calendar year), Landlord shall furnish Tenant with a statement of the actual
Operating Expenses and the OE Payment for such calendar year. If the most
recent estimated OE Payment paid by Tenant for such calendar year are more than
the actual OE Payment for such calendar year, Landlord shall apply any
overpayment by Tenant against Rent due or next becoming due; provided, if the
Term expires before the determination of the overpayment, Landlord shall,
within 30 days of determination, refund any overpayment to Tenant after first
deducting the amount of Rent due. If the most recent estimated OE Payment paid
by Tenant for the prior calendar year is less than the actual OE Payment for
such year, Tenant shall pay Landlord, within 30 days after its receipt of the
statement of Operating Expenses and the OE Payment, any underpayment for the
prior calendar year.


 


D.                                    Operating Expenses Defined. “Operating Expenses” means all costs
and expenses incurred or accrued in each calendar year in connection with the
ownership, operation,


 


4

















 


maintenance, management, repair and protection of the Property which
are directly attributable or reasonably allocable to the Building, including
Landlord’s personal property used in connection with the Property and including
all costs and expenditures relating to the following:


 


(1)                                  Operation,
maintenance, repair and replacements of any part of the Property, including the
mechanical, electrical, plumbing, HVAC, vertical transportation, fire
prevention and warning and access control systems; materials and supplies (such
as light bulbs and ballasts); equipment and tools; floor, wall and window
coverings; personal property; required or beneficial easements; and related
service agreements and rental expenses.


 


(2)                                  Administrative
and management fees, including accounting, information and professional
services (except for negotiations and disputes with specific tenants not
affecting other parties); management office(s) (provided that the rent for
such management office does not exceed fair market value for such space);
provided that the management fee shall not exceed 4% of gross revenues for the
Property [exclusive of security deposits or unearned prepaid rent]; and wages,
salaries, benefits, reimbursable expenses and taxes (or allocations thereof)
for full and part time personnel involved in operation, maintenance and
management.


 


(3)                                  Janitorial
service; window cleaning; waste disposal; gas, water and sewer and other
utility charges (including add-ons); and landscaping, including all applicable
tools and supplies.


 


(4)                                  Property,
liability and other insurance coverages carried by Landlord, including
deductibles and risk retention programs and a proportionate allocation of the
cost of blanket insurance policies maintained by Landlord and/or its Affiliates
(defined below).


 


(5)                                  Real estate
taxes, assessments, business taxes, excises, association dues, fees, levies,
charges and other taxes of every kind and nature whatsoever, general and
special, extraordinary and ordinary, foreseen and unforeseen, including
interest on installment payments, which may be levied or assessed against or
arise in connection with ownership, use, occupancy, rental, operation or
possession of the Property (including personal property taxes for property that
is owned by Landlord and used in connection with the operation, maintenance and
repair of the Property), or substituted, in whole or in part, for a tax
previously in existence by any taxing authority, or assessed in lieu of a tax
increase, or paid as rent under any ground lease. Real estate taxes do not
include Landlord’s income, franchise or estate taxes (except to the extent such
excluded taxes are assessed in lieu of taxes included above).


 


(6)                                  Compliance with
Laws, including license, permit and inspection fees (but not in duplication of
capital expenditures amortized as provided in Section 4.D(9));
and all expenses and fees, including attorneys’ fees and court or other venue
of dispute resolution costs, incurred in negotiating or contesting real estate
taxes or the validity and/or applicability of any governmental enactments which
may affect Operating Expenses; provided Landlord shall credit against Operating
Expenses any refunds received from such negotiations or contests to the extent
originally included in Operating Expenses (less Landlord’s costs).


 


(7)                                  Building safety
services, to the extent provided or contracted for by Landlord.


 


(8)                                  Goods and
services purchased from Landlord’s subsidiaries and Affiliates to the extent
the cost of same is generally consistent with rates charged by unaffiliated
third parties for similar goods and services.


 


(9)                                  Amortization of
capital expenditures incurred: (a) to conform with Laws; (b) to
provide or maintain building standards (other than building standard tenant
improvements); or (c) with the intention of promoting safety or reducing
or controlling increases in Operating Expenses, such as lighting retrofit and
installation of energy management systems. Such expenditures shall be amortized
uniformly over the following periods of time (together with interest on the
unamortized balance at the Prime Rate (defined in Section 19.B)
as of the date incurred plus 2%): for building improvements, the shorter of 10
years or the estimated useful life of the improvement; and for all other items,
3 years for expenditures under $50,000 and 5 years for expenditures in excess
of $50,000. Notwithstanding the foregoing, Landlord may elect to amortize
capital expenditures under this subsection over a longer period of time based
upon (i) the purpose and nature of the expenditure, (ii) the relative
capital burden on the


 


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Property, (iii) for cost savings projects, the anticipated payback
period, and (iv) otherwise in accordance with sound real estate accounting
principles consistently applied.


 


(10)                            Electrical
services used in the operation, maintenance and use of the Property; sales,
use, excise and other taxes assessed by governmental authorities on electrical
services supplied to the Property, and other costs of providing electrical
services to the Property.


 


E.                                           Exclusions from Operating Expenses. Operating
Expenses exclude the following expenditures:


 


(1)                                  Leasing
commissions, attorneys’ fees and other expenses related to leasing tenant space
and constructing improvements for the sole benefit of an individual tenant.


 


(2)                                  Goods and
services, including after hours HVAC, furnished to an individual tenant of the
Building which are above building standard and which are separately
reimbursable directly to Landlord in addition to the OE Payment.


 


(3)                                  Repairs,
replacements and general maintenance paid by insurance proceeds or condemnation
proceeds (or which would have been paid by insurance proceeds had Landlord
maintained the insurance required to be maintained by Landlord under this Lease).


 


(4)                                  Except as
provided in Section 4.D(9), depreciation, amortization,
interest payments on any encumbrances on the Property and the cost of capital
improvements or additions.


 


(5)                                  Costs of
installing any specialty service, such as an observatory, broadcasting
facility, luncheon club, or athletic or recreational club, restaurant, retail
store, sundry shop, newsstand, concession, conference center or workout
facility.


 


(6)                                  Expenses for
repairs or maintenance related to the Property which have been reimbursed to
Landlord pursuant to warranties or service contracts.


 


(7)                                  Costs (other
than maintenance costs) of any art work (such as sculptures or paintings) used
to decorate the Building.


 


(8)                                  Principal
payments on indebtedness secured by liens against the Property, or costs of
refinancing such indebtedness.


 


(9)                                  Salaries of
officers and executives of Landlord, except as included in Section 4.D(2).


 


(10)                            Interest and
penalties due to late payment of any amounts owed by Landlord, except such as
may be incurred as a result of Tenant’s failure to timely pay its portion of
such amounts or as a result of Landlord’s contesting such amounts in good
faith.


 


(11)                            Costs related
to the existence and maintenance of Landlord as a legal entity, except to the
extent attributable to the operation and management of the Property.


 


F.                                      Proration of Operating Expenses; Adjustments. If Landlord
incurs Operating Expenses for the Property together with one or more other
buildings or properties, whether pursuant to a reciprocal easement agreement,
common area agreement or otherwise, the shared costs and expenses shall be
equitably prorated and apportioned by Landlord between the Property and the
other buildings or properties. If the Building is not 95% occupied during any
calendar year or partial
calendar year or if Landlord is not supplying services to 95% of the total
Rentable Square Footage of the Building at any time during a calendar year or
partial calendar year, Operating Expenses shall be determined as if the
Building had been 95% occupied and Landlord had been supplying services to 100%
of the Rentable Square Footage of the Building during that calendar year. The
extrapolation of Operating Expenses under this Section shall be performed
by Landlord by adjusting the cost of those components of Operating Expenses
that are impacted by changes in the occupancy of the Building. Landlord will
not recover in any one calendar year more than 100% of the actual Operating
Expenses for such year.


 


G.                                    Audit Rights. Within 90 days after Landlord furnishes its statement of
actual Operating Expenses for any calendar year (the “Audit Election Period”),  Tenant may, at its


 


6

















 


expense, elect to audit Landlord’s Operating Expenses for such calendar
year only, subject to the following conditions: (1) there is no
uncured event of default under this Lease; (2) the audit shall be prepared
by an independent certified public accounting firm of recognized national
standing; (3) in no event shall any audit be performed by a firm retained
on a “contingency fee” basis; (4) the audit shall commence within 30 days
after Landlord makes Landlord’s books and records available to Tenant’s auditor
and shall conclude within 60 days after commencement; (5) the audit shall
be conducted during Landlord’s normal business hours at the location where
Landlord maintains its books and records and shall not unreasonably interfere
with the conduct of Landlord’s business; (6) Tenant and its accounting
firm shall treat any audit in a confidential manner and shall each execute
Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing
the audit; and (7) the accounting firm’s audit report shall, at no charge
to Landlord, be submitted in draft form for Landlord’s review and comment
before the final approved audit report is delivered to Landlord, and any
reasonable comments by Landlord shall be incorporated into the final audit
report. Notwithstanding the foregoing, Tenant shall have no right to conduct an
audit if Landlord furnishes to Tenant an audit report for the calendar year in
question prepared by an independent certified public accounting firm of
recognized national standing (whether originally prepared for Landlord or
another party). This paragraph shall not be construed to limit, suspend, or
abate Tenant’s obligation to pay Rent when due, including the OE Payment.
Landlord shall credit any overpayment determined by the final approved audit
report against the next Rent due and owing by Tenant or, if no further Rent is
due, refund such overpayment directly to Tenant within 30 days of
determination, Likewise, Tenant shall pay Landlord any underpayment determined
by the final approved audit report within 30 days of determination. The
foregoing obligations shall survive the expiration or termination of this
Lease. If Tenant does not give written notice of its election to audit Landlord’s
Operating Expenses during the Audit Election Period, Landlord’s Operating
Expenses for the applicable calendar year shall be deemed approved for all
purposes, and Tenant shall have no further right to review or contest the same.
The right to audit granted hereunder is personal to the initial Tenant named in
this Lease and to any assignee under a Permitted Transfer (defined below) and shall
not be available to any subtenant under a sublease of the Premises. If the
audit proves that Landlord’s calculation of Operating Expenses for the calendar
year under inspection was overstated by more than 5%, then, after verification,
Landlord shall pay Tenant’s actual reasonable out-of-pocket audit and
inspection fees applicable to the review of said calendar year statement within
thirty (30) days after receipt of Tenant’s invoice therefor.


 


5.                                       Tenant’s Use of Premises.


 


A.                                    Permitted Uses. The  Premises shall
be used only for general office use (the “Permitted
Use”)  and for no other use whatsoever.
Tenant shall not use or permit the use of the Premises for any purpose which is
illegal, creates obnoxious odors (including tobacco smoke), noises or vibrations,
is dangerous to persons or property, could increase Landlord’s insurance costs,
or which, in Landlord’s reasonable opinion, unreasonably disturbs any other
tenants of the Building or interferes with the operation or maintenance of the
Property. Except as provided below, the following uses are expressly prohibited
in the Premises: schools, government offices or agencies; personnel agencies;
collection agencies; credit unions; medical treatment and health care; radio,
television or other telecommunications broadcasting; restaurants and other
retail; customer service offices of a public utility company; or any other
purpose which would, in Landlord’s reasonable opinion, impair the reputation or
quality of the Building, overburden any of the Building systems, Common Areas
or parking facilities (including any use which would create a population
density in the Premises which is in excess of the density which is standard for
the Building), impair Landlord’s efforts to lease space or otherwise interfere
with the operation of the Property. Notwithstanding the foregoing, the
following ancillary uses are permitted in the Premises: (1) the following
services provided by Tenant exclusively to its employees: schools, training and
other educational services; credit unions; and similar employee services; and (2) the
following services directly and exclusively supporting Tenant’s business:
telemarketing; reservations; storage; data processing; debt collection; and
similar support services.


 


B.                                    Compliance with Laws. Tenant shall
comply with all Laws regarding the operation of Tenant’s business and the use,
condition, configuration and occupancy of the Premises and the use of the
Common Areas. Tenant, within 10 days after receipt, shall provide Landlord with
copies of any notices Tenant receives regarding a violation or alleged or
potential violation of any Laws. Tenant shall comply with the rules and
regulations of the Building attached as  Exhibit B and such other reasonable rules and
regulations (or modifications thereto)


 


7

















 


adopted by Landlord from time to
time.  Such rules and
regulations will be applied in an equitable manner as determined by Landlord.
Tenant shall also cause its agents, contractors, subcontractors, employees, customers,
and subtenants to comply with all rules and regulations.


 


C.                                    Tenant’s Security Responsibilities. Tenant shall (1) lock
the doors to the Premises and take other reasonable steps to secure the
Premises and the personal property of all Tenant Parties (defined in Section 13)
and any of Tenant’s transferees, contractors or licensees in the Common Areas  and parking
facilities of the Building and Property, from unlawful intrusion, theft, fire
and other hazards; (2) keep and maintain in good working order all
security and safety devices installed in the Premises by or for the benefit of
Tenant (such as locks, smoke detectors and burglar alarms); and (3) cooperate
with Landlord and other tenants in the Building on Building safety matters.
Tenant acknowledges that any security or safety measures employed by Landlord
are for the protection of Landlord’s own interests; that Landlord is not a
guarantor of the security or safety of the Tenant Parties or their property;
and that such security and safety matters are the responsibility of Tenant and
the local law enforcement authorities.


 


6.                                  Security Deposit.  The Security Deposit shall be delivered to Landlord upon the execution
of this Lease by Tenant and shall be held by Landlord (without liability for
interest, except to the extent required by Law) as security for the performance
of Tenant’s obligations under this Lease. The Security Deposit is not an
advance payment of Rent or a measure of Tenant’s liability for damages.
Landlord may, from time to time while an event of default remains uncured,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent, cure any uncured default by Tenant, or repay
Landlord for damages and charges for which Tenant is legally liable under this
Lease or resulting from Tenant’s breach of this Lease. If Landlord uses the
Security Deposit, Tenant shall on demand restore the Security Deposit to its
original amount and such use by Landlord of the Security Deposit shall not
constitute a cure of the existing event of default until such time as the
entire amount owing to Landlord is paid in full  and the Security Deposit is fully
restored. Provided that Tenant has performed all of its obligations hereunder,
Landlord shall return any unapplied portion of the Security Deposit to Tenant
within 30 days after the later to occur of: (A) the date Tenant surrenders
possession of the Premises to Landlord in accordance with this Lease; or (B) the
Expiration Date. Tenant does hereby authorize Landlord to withhold from the
Security Deposit all amounts allowed by Law and the amount reasonably
anticipated by Landlord to be owed by Tenant as a result of an underpayment of
the OE Payment for the final year of the Term. To the fullest extent permitted
by applicable Law, Tenant agrees that the provisions of this Article 6 shall supersede and replace
all statutory rights of Tenant under applicable Law regarding the retention,
application or return of security deposits. If Landlord transfers its interest
in the Premises, Landlord shall assign the Security Deposit to the transferee
and, following the assignment and the delivery to Tenant of an acknowledgement
of the transferee’s responsibility for the Security Deposit if required by Law,
Landlord shall have no further liability for the return of the Security
Deposit. Landlord shall not be required to keep the Security Deposit separate
from its other accounts.


 


7.                                  Services
Furnished by Landlord.


 


A.                                    Standard Services. Subject to the
provisions of this Lease, Landlord agrees to furnish (or cause a third party
provider to furnish) the following services to Tenant during the Term:


 


(1)                                  Water service
for use in the lavatories on each floor on which the Premises are located.


 


(2)                                  Heat and air
conditioning in season during Normal Business Hours, at such temperatures and
in such amounts as required by governmental authority or as supplied by
comparable office buildings in the Austin Central Business District taking into
account age, size and other relevant operating factors. Tenant, upon such
notice as is reasonably required by Landlord, and subject to the capacity of
the Building systems, may request HVAC service during hours other than Normal
Business Hours. Tenant shall receive at no cost to Tenant 50 hours of HVAC
service each month during hours other than Normal Business Hours (the “Free HVAC Hours”),  and Tenant shall pay
Landlord for any additional HVAC service beyond the Free HVAC Hours at a rate
equal to $15.00 per operating hour per floor (the “Hourly HVAC Charge”).  If Tenant does not
utilize all Free HVAC Hours during any given month during the Term, any
remaining balance shall be forfeited by Tenant and may not be carried over to
be used


 


8

















 


by Tenant in future months during the Term. Landlord shall have the
right, upon 30 days prior written notice to Tenant, to adjust the Hourly HVAC
Charge from time to time, but not more than once per calendar year, based upon
increases in HVAC costs, which costs include utilities, taxes, surcharges,
labor, equipment, maintenance and repair.


 


(3)                                  Maintenance and
repair of the Property as described in Section 9.B.


 


(4)                                  Janitorial
service five days per week (excluding Holidays), as determined by Landlord. If
Tenant’s use of the Premises, floor covering or other improvements require
special services in excess of the standard services for the Building, Tenant
shall pay the additional cost attributable to the special services.


 


(5)                                  Elevator
service, subject to proper authorization and Landlord’s policies and procedures
for use of the elevator(s) in the Building.


 


(6)                                  Exterior window
washing at such intervals as determined by Landlord.


 


(7)                                  Electricity to
the Premises for general office use, in accordance with and subject to the
terms and conditions in Article 8.


 


B.                                    Service
Interruptions. For purposes of this Lease, a “Service Failure” shall
mean any interruption, suspension or termination of services being provided to
Tenant by Landlord or by third-party providers, whether engaged by Tenant or
pursuant to arrangements by such providers with Landlord, which are due to (1) the
application of Laws; (2) the failure, interruption or malfunctioning of
any electrical or mechanical equipment, utility or other service to the
Building or Property; (3) the performance of repairs, maintenance,
improvements or alterations; or (4) the occurrence of any other event or
cause whether or not within the reasonable control of Landlord. No Service
Failure shall render Landlord liable to Tenant, constitute a constructive eviction
of Tenant, give rise to an abatement of Rent, or relieve Tenant from the
obligation to fulfill any covenant or agreement. Notwithstanding the foregoing,
commencing on the 6th consecutive
Business Day of any Service Failure within Landlord’s control, (unless the
Service Failure is caused by a fire or other casualty, in which event Section 16 controls), Tenant shall, as its sole remedy,
be entitled to an equitable diminution of Base Rent based upon the pro rata
portion of the Premises which is rendered unfit for occupancy for the Permitted
Use, except to the extent such Service Failure is caused by a Tenant Party. In
no event shall Landlord be liable to Tenant for any loss or damage, including
the theft of Tenant’s Property (defined in Article 14),
arising out of or in connection with any Service Failure or the failure of any
Building safety services, personnel or equipment.


 


C.                                    Third
Party Services. If Tenant desires any
service which Landlord has not specifically agreed to provide in this Lease,
such as private security systems or telecommunications services serving the
Premises, Tenant shall procure such service directly from a reputable third
party service provider (“Provider”)  for Tenant’s own
account. Tenant shall require each Provider to comply with the Building’s rules and
regulations, all Laws, and Landlord’s reasonable policies and practices for the
Building. Tenant acknowledges Landlord’s current policy that requires all
Providers utilizing any area of the Property outside the Premises to be approved
by Landlord and to enter into a written agreement acceptable to Landlord prior
to gaining access to, or making any installations in or through, such area.
Accordingly, Tenant shall give Landlord written notice sufficient for such
purposes.


 


8.                                       Use of Electrical Services by Tenant.


 


A.                                    Landlord’s Electrical Service. Subject to the
terms of this Lease, Landlord shall furnish building standard electrical
service to the Premises sufficient to operate customary lighting, office
machines and other equipment of similar low electrical consumption. Landlord
may, at any time and from time to time, calculate Tenant’s actual electrical
consumption in the Premises by a survey conducted by a reputable consultant
selected by Landlord, all at Tenant’s expense. The following parameters
constitute building standard electrical design capacity: (i) the total
connected electrical load of all electrical equipment serving the Premises
shall not exceed an average of 4.0 watts multiplied by the Rentable Square
Footage of the Premises delivered through the electrical riser to the
electrical room on the floor where the Premises are located; (ii) the
connected electrical load for lighting shall not exceed an average of 2.0 watts
multiplied by the Rentable Square Footage of the Premises; (iii) emergency
power shall be limited to egress


 


9

















 


lighting only and shall be provided by Landlord’s emergency power
system, if any; and (iv) no electrical equipment shall exceed the safe and
lawful capacity of the existing electrical circuit(s) and facilities
serving the Premises. The cost of any electrical consumption in excess of that
which Landlord determines is standard for the Building shall be paid by Tenant
in accordance with Section 8.D.
The furnishing of electrical services to the Premises shall be subject to the
rules, regulations and practices of the supplier of such electricity and of any
municipal or other governmental authority regulating the business of providing
electrical utility service. Landlord shall not be liable or responsible to
Tenant for any loss, damage or expense which Tenant may sustain or incur if
either the quantity or character of the electrical service is changed or is no
longer available or no longer suitable for Tenant’s requirements.


 


B.                                    Selection
of Electrical Service Provider. Landlord shall have and
retain the sole right to select the provider of electrical services to the
Building and/or the Property. To the fullest extent permitted by Law, Landlord
shall have the continuing right to change such utility provider. All charges
and expenses incurred by Landlord due to any such changes in electrical
services, including maintenance, repairs, installation and related costs, shall
be included in the electrical services costs referenced in Section 4.D(10), unless paid directly
by Tenant.


 


C.                                    Submetering. Landlord shall
have the continuing right, upon 30 days written notice, to install a submeter
for the Premises at Tenant’s expense. If submetering is installed for the
Premises, Landlord may charge for Tenant’s actual electrical consumption
monthly in arrears for the kilowatt hours used, a rate per kilowatt hour equal
to that charged to Landlord by the provider of electrical service to the
Building during the same period of time (plus, to the fullest extent permitted
by applicable Laws, an administrative fee equal to 5% of such charge), except
as to electricity directly purchased by Tenant from third party providers after
obtaining Landlord’s consent to the same. In the event Landlord is unable to
determine the exact kilowatt hourly charge during the period of time, Landlord
shall use the average kilowatt hourly charge to the Building for the first
billing cycle ending after the period of time in question. Even if the Premises
are submetered, Tenant shall remain obligated to pay Tenant’s Pro Rata Share of
the cost of electrical services as provided in Section 4.B, except that Tenant shall be entitled to a
credit against electrical services costs equal to that portion of the amounts
actually paid by Tenant separately and directly to Landlord which are
attributable to building standard electrical services submetered to the
Premises.


 


D.                                    Excess
Electrical Service. Tenant’s use of electrical service shall not exceed, in voltage, rated
capacity, use beyond Normal Business Hours or overall load, that which Landlord
deems to be standard for the Building. If Tenant requests permission to consume
excess electrical service, Landlord may refuse to consent or may condition
consent upon conditions that Landlord reasonably elects (including the
installation of utility service upgrades, meters, submeters, air handlers or
cooling units). The costs of any approved additional consumption (to the extent
permitted by Law), installation and maintenance shall be paid by Tenant.


 


9.                                       Repairs and Alterations.


 


A.                                    Tenant’s Repair Obligations. Tenant shall
keep the Premises in good condition and repair, ordinary wear and tear
excepted. Tenant’s repair obligations include, without limitation, repairs to: (1) floor
covering and/or raised flooring; (2) interior partitions; (3) doors; (4) the
interior side of demising walls; (5) electronic, phone and data cabling
and related equipment (collectively, “Cable”)  that  is installed by or for the benefit of Tenant
whether located in the Premises or in other portions of the Building; (6) supplemental
air conditioning units, private showers and kitchens, including hot water
heaters, plumbing, dishwashers, ice machines and similar facilities serving
Tenant exclusively; (7) phone rooms used exclusively by Tenant; (8) Alterations
(defined below) performed by contractors retained by Tenant, including related
HVAC balancing; and (9) all of Tenant’s furnishings, trade fixtures,
equipment and inventory. Prior to performing any such repair obligation, Tenant
shall give written notice to Landlord describing the necessary maintenance or
repair. Upon receipt of such notice, Landlord may elect either to perform any
of the maintenance or repair obligations specified in such notice, or require
that Tenant perform such obligations by using contractors approved by Landlord.
All work shall be performed at Tenant’s expense in accordance with the rules and
procedures described in Section 9.C
below. If Tenant fails to commence any repairs to the Premises for more than 15
days after notice from Landlord and thereafter diligently pursue the completion
of such repairs (although notice shall not be required if there is an
emergency), Landlord may, in addition to any other remedy available to Landlord,
make the repairs, and Tenant shall pay to Landlord the


 


10














 


reasonable cost of the repairs within 30 days after receipt of an
invoice, together with an administrative charge in an amount equal to 5% of the
cost of the repairs.


 


B.                                    Landlord’s Repair Obligations. Landlord shall
keep and maintain in good repair and working order and make repairs to and
perform maintenance upon: (1) structural elements of the Building; (2) standard
mechanical (including HVAC), electrical, plumbing and fire/life safety systems
serving the Building generally; (3) Common Areas; (4) the roof of the
Building; (5) exterior windows of the Building; and (6) elevators
serving the Building. Landlord shall promptly make repairs (taking into
account, the nature and urgency of the repair) for which Landlord is
responsible. If any of the foregoing maintenance or repair is necessitated due
to the acts or omissions of any Tenant Party (defined in Section 13), Tenant shall pay the costs of such repairs or maintenance to
Landlord within 30 days after receipt of an invoice, together with an
administrative charge in an amount equal to 5% of the cost of the repairs.


 


C.                                    Alterations.


 


(1)                                  When
Consent Is Required. Tenant shall
not make alterations, additions or improvements to the Premises or install any
Cable in the Premises or other portions of the Building (collectively, “Alterations”)  without
first obtaining the written consent of Landlord in each instance (which consent
shall not be unreasonably conditioned, withheld or delayed). However, Landlord’s
consent shall not be required for any Alteration that satisfies all of the
following criteria (a “Minor
Alteration”): (a) is of a cosmetic nature such
as painting, wallpapering, hanging pictures and installing carpeting; (b) is
not visible from outside the Premises or Building; (c) will not affect the
systems or structure of the Building; and (d) does not require work to be
performed inside the walls or above the ceiling of the Premises.


 


(2)                                  Requirements
For All Alterations, Including Minor Alterations. Prior to starting
work on any Alteration, Tenant shall furnish to Landlord for review and
approval: plans and specifications; names of proposed contractors (provided
that Landlord may designate specific contractors with respect to Building
systems); copies of contracts; necessary permits and approvals; evidence of
contractors’ and subcontractors’ insurance; and Tenant’s security for
performance of the Alteration. Changes to the plans and specifications must
also be submitted to Landlord for its approval. Some of the foregoing
requirements may be waived by Landlord for the performance of specific Minor
Alterations; provided that such waiver is obtained in writing prior to the commencement of such Minor
Alterations. Landlord’s waiver on one occasion shall not waive Landlord’s right
to enforce such requirements on any other occasion. Alterations shall be
constructed in a good and workmanlike manner using materials of a quality that
is at least equal to the quality designated by Landlord as the minimum standard
for the Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of Alterations in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of the
Building, shall have the right to designate the time when Alterations may be
performed. Tenant shall reimburse Landlord within 30 days after receipt of an
invoice for out-of-pocket sums paid by Landlord for third party examination of
Tenant’s plans for Alterations. In addition, within 30 days after receipt of an
invoice from Landlord, Tenant shall pay to Landlord a fee equal to 5% of the
total cost of such Alterations for Landlord’s oversight and coordination of any
Alterations. No later than 30 days after completion of the Alterations, Tenant
shall furnish “as-built” plans (which shall not be required for Minor
Alterations), completion affidavits, full and final waivers of liens, receipts
and bills covering all labor and materials. Tenant shall assure that the
Alterations comply with all insurance requirements and Laws.


 


(3)                                                     Landlord’s
Liability For Alterations. Landlord’s
approval of an Alteration shall not be a representation by Landlord that the
Alteration complies with applicable Laws or will be adequate for Tenant’s use.
Tenant acknowledges that Landlord is not an architect or engineer, and that the
Alterations will be designed and/or constructed using independent architects,
engineers and contractors. Accordingly, Landlord does not guarantee or warrant
that the applicable construction documents will comply with Laws or be free
from errors or omissions, or that the Alterations will be free from defects,
and Landlord will have no liability therefor.


 


10.                                 Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the Premises to inspect or show the
Premises, to clean and make repairs, alterations or additions to the Premises,
and to conduct or facilitate repairs, alterations or additions to any portion
of the Building, including other tenants’ premises. Except in emergencies or to
provide janitorial and


 


11

















 


other Building services after Normal Business Hours, Landlord shall
provide Tenant with reasonable prior notice of entry into the Premises, which
may be given orally. Landlord shall have the right to temporarily close all or
a portion of the Premises to perform repairs, alterations and additions, if
reasonably necessary for the protection and safety of Tenant and its employees.
Except in emergencies, Landlord will not close the Premises if the work can
reasonably be completed on weekends and after Normal Business Hours; provided,
however, that Landlord is not required to conduct work on weekends or after
Normal Business Hours if such work can be conducted without closing the
Premises. Entry by Landlord for any such purposes shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.


 


11.                                 Assignment
and Subletting.


 


A.                                    Landlord’s Consent Required.
Subject to the remaining provisions of this Article 11, but notwithstanding anything to the contrary contained elsewhere
in this Lease, Tenant shall not assign,
transfer or encumber any
interest in this Lease (either absolutely or collaterally) or sublease
or allow any third party to use any portion of the Premises (collectively or
individually, a “Transfer”)  without the prior written consent
of Landlord, which consent shall not be unreasonably withheld. Without
limitation, Tenant agrees that Landlord’s consent shall not be considered
unreasonably withheld if: (1) the proposed transferee’s financial
condition does not meet the criteria Landlord uses to select Building tenants
having similar leasehold obligations; (2) the proposed transferee is a
governmental organization or present occupant of the Property, or Landlord is
otherwise engaged in lease negotiations with the proposed transferee for other
premises in the Property; (3) any uncured event of default exists under
this Lease (or a condition exists which, with the passage of time or giving of
notice, would become an event of default); (4) any portion of the Building
or Premises would likely become subject to additional or different Laws as a
consequence of the proposed Transfer; (5) the proposed transferee’s use of
the Premises conflicts with the Permitted Use or any exclusive usage rights
granted to any other tenant in the Building; (6) the use, nature,
business, activities or reputation in the business community of the proposed
transferee (or its principals, employees or invitees) does not meet Landlord’s
standards for Building tenants; (7) either the Transfer or any
consideration payable to Landlord in connection therewith adversely affects the
real estate investment trust qualification tests applicable to Landlord or its
Affiliates; or (8) the proposed transferee is or has been involved in litigation
with Landlord or any of its Affiliates. Tenant shall not be entitled to receive
monetary damages based upon a claim that Landlord unreasonably withheld its
consent to a proposed Transfer and Tenant’s sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment. Any attempted Transfer in violation of this Article is voidable
at Landlord’s option.


 


B.                                    Consent Parameters/Requirements.
As part of Tenant’s request for, and as a condition to, Landlord’s consent to a
Transfer, Tenant shall provide Landlord with financial statements for the
proposed transferee, a complete copy (unexecuted) of the proposed assignment or
sublease and other contractual documents, and such other information as
Landlord may reasonably request. If the proposed Transfer covers 25% or more of
the Premises, Landlord shall then have the right (but not the obligation) to
terminate this Lease as of the date the Transfer would have been effective (“Landlord Termination Date”)  with respect to the portion of the
Premises which Tenant desires to Transfer. Landlord agrees to consent to or
reject Tenant’s proposed Transfer with 21 days after receipt of Tenant’s
notification and all of the information required pursuant to this Section 11.B. In such event Tenant shall vacate such portion of the Premises
by the Landlord Termination Date and upon Tenant’s vacating such portion of the
Premises, the rent and other charges payable shall be proportionately reduced.
Consent by Landlord to one or more Transfer(s) shall not operate as a
waiver of Landlord’s rights to approve any subsequent Transfers. In no event
shall any Transfer or Permitted Transfer release or relieve Tenant from any
obligation under this Lease, nor shall the acceptance of Rent from any
assignee, subtenant or occupant constitute a waiver or release of Tenant from
any of its obligations or liabilities under this Lease. Tenant shall pay
Landlord a review fee of $750 for Landlord’s review of any Permitted Transfer
or requested Transfer, provided if Landlord’s actual reasonable costs and
expenses (including reasonable attorney’s fees) exceed $750, Tenant shall
reimburse Landlord for its actual reasonable costs and expenses in lieu of a
fixed review fee.


 


C.                                    Payment to Landlord. If the aggregate
consideration paid to a Tenant Party for a Transfer exceeds that payable by
Tenant under this Lease (prorated according to the transferred interest),
Tenant shall pay Landlord 50% of such excess (after deducting therefrom
reasonable


 


12

















 


leasing commissions and reasonable costs of tenant improvements paid to
unaffiliated third parties in connection with the Transfer, with proof of same
provided to Landlord). Tenant shall pay Landlord for Landlord’s share of any
excess within 30 days after Tenant’s receipt of such excess consideration. If
any uncured event of default exists under this Lease (or a condition exists
which, with the passage of time or giving of notice, would become an event of
default), Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent in the
amount of any payments received, but not to exceed the amount payable by Tenant
under this Lease.


 


D.                                    Change in Control of Tenant. Except for a
Permitted Transfer, if Tenant is a corporation, limited liability company,
partnership, or similar entity, and if the entity which owns or controls a
majority of the voting shares/rights in Tenant at any time sells or disposes of
such majority of voting shares/rights, or changes its identity for any reason
(including a merger, consolidation or reorganization), such change of ownership
or control shall constitute a Transfer. The foregoing shall not apply so long
as, both before and after the Transfer, Tenant is an entity whose outstanding
stock is listed on a recognized U.S. securities exchange, or if at least 80% of
its voting stock is owned by another entity, the voting stock of which is so
listed; provided, however, that Tenant shall give Landlord written notice at
least 30 days prior to the effective date of such change in ownership or
control.


 


E.                                      No
Consent Required. Tenant may assign its entire interest under this Lease to its
Affiliate (defined below) or to a successor to Tenant by purchase, merger,
consolidation or reorganization without the consent of Landlord, provided that
all of the following conditions are satisfied in Landlord’s reasonable
discretion (a “Permitted
Transfer”): (1) no uncured event of default exists under this Lease;
(2) Tenant’s successor shall own all or substantially all of the assets of
Tenant; (3) such Affiliate or successor shall have a net worth which is at
least equal to the greater of Tenant’s net worth at the date of this Lease or
Tenant’s net worth as of the day prior to the proposed purchase, merger,
consolidation or reorganization; (4) no portion of the Building or
Premises would likely become subject to additional or different Laws as a
consequence of the proposed Transfer; (5) such Affiliate’s or successor’s
use of the Premises shall not conflict with the Permitted Use or any exclusive
usage rights granted to any other tenant in the Building; (6) neither the
Transfer nor any consideration payable to Landlord in connection therewith
adversely affects the real estate investment trust qualification tests
applicable to Landlord or its Affiliates; (7) such Affiliate or successor is not and has not been
involved in litigation with Landlord or any of Landlord’s Affiliates; and (8) Tenant
shall give Landlord written notice at least 30 days prior to the effective date
of the proposed Transfer, along with all applicable documentation and other
information necessary for Landlord to determine that the requirements of this Section 11.E have been satisfied, including if
applicable, the qualification of such proposed transferee as an Affiliate of
Tenant. The term “Affiliate”  means any
person or entity controlling, controlled by or under common control with Tenant
or Landlord, as applicable. If requested by Landlord, the Affiliate or
successor shall sign a commercially reasonable form of assumption agreement.


 


12.                                 Liens. Tenant shall not permit
mechanic’s or other liens to be placed upon the Property, Premises or Tenant’s
leasehold interest in connection with any work or service done or purportedly done by or for
the benefit of Tenant. If a lien is so placed, Tenant shall, within 10 days of
notice from Landlord of the filing of the lien, fully discharge the lien by
settling the claim which resulted in the lien or by bonding or insuring over
the lien in the manner prescribed by the applicable lien Law. If Tenant fails
to discharge the lien, then, in addition to any other right or remedy of
Landlord, Landlord may bond or insure over the lien or otherwise discharge the lien.
Tenant shall, within 30 days after receipt of an invoice from Landlord,
reimburse Landlord for any amount paid by Landlord, including reasonable
attorneys’ fees, to bond or insure over the lien or discharge the lien.


 


13.                                 Indemnity. Subject to Article 15 Tenant shall hold Landlord,
its trustees, Affiliates, subsidiaries, members, principals, beneficiaries,
partners, officers, directors, shareholders, employees, Mortgagee(s) (defined
in Article 25)  and
agents (including the manager of the Property) (collectively, “Landlord Parties”)  harmless
from, and indemnify and defend such parties against, all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and expenses,
including reasonable attorneys’ fees and other professional fees that may be
imposed upon, incurred by or asserted against any of such indemnified parties
(each a “Claim” and
collectively “Claims”)  that arise
out of or in connection with any damage or injury occurring in


 


13

















 


the Premises. Provided Landlord Parties are properly named as
additional insureds in the policies required to be carried under this Lease,
and except as otherwise expressly provided in this Lease, the indemnity set
forth in the preceding sentence shall be limited to the greater of (A) $4,000,000,
and (B) the aggregate amount of general/umbrella liability insurance
actually carried by Tenant. Subject to Articles 9.B, 15
and 20, Landlord shall hold Tenant, its
trustees, members, principals, beneficiaries, partners, officers, directors,
shareholders, employees and agents (collectively, “Tenant Parties”)  harmless from, and indemnify and
defend such parties against, all Claims that arise out of or in connection with
any damage or injury occurring in or on the Property (excluding the Premises),
to the same extent the Tenant Parties would have been covered had they been
named as additional insureds on the commercial general liability insurance
policy required to be carried by Landlord under this Lease. The indemnity set
forth in the preceding sentence shall be limited to the amount of $4,000,000.


 


14.                                 Insurance.


 


A.                                    Tenant’s Insurance. Tenant shall
maintain the following insurance (“Tenant’s Insurance”), at its sole cost and expense: (1) commercial
general liability insurance applicable to the Premises and its appurtenances
providing, on an occurrence basis, a per occurrence limit of no less than
$1,000,000; (2) causes of loss-special form (formerly “all risk”) property
insurance, including flood and earthquake, covering all above building standard
leasehold improvements and Tenant’s trade fixtures, equipment, furniture and
other personal property within the Premises (“Tenant’s Property”)  in the amount
of the full replacement cost thereof; (3) business income (formerly “business
interruption”) insurance written on an actual loss sustained form or with
sufficient limits to address reasonably anticipated business interruption
losses; (4) business automobile liability insurance to cover all owned,
hired and nonowned automobiles owned or operated by Tenant providing a minimum
combined single limit of $1,000,000; (5) workers’ compensation insurance
as required by the state in which the Premises is located and in amounts as may
be required by applicable statute (provided, however, if no workers’
compensation insurance is statutorily required, Tenant shall carry workers’
compensation insurance in a minimum amount of $500,000); (6) employer’s
liability insurance in an amount of at least $500,000 per occurrence; and (7) umbrella
liability insurance that follows form in excess of the limits specified in (1),
(4) and (6) above, of no less than $3,000,000 per occurrence and in
the aggregate. Any company underwriting any of Tenant’s Insurance shall have,
according to A.M.
Best  Insurance Guide,  a Best’s rating of not less
than A- and a Financial Size Category of not less than VIII. All commercial
general liability, business automobile liability and umbrella liability
insurance policies shall name Landlord (or any successor), Landlord’s property
manager, Landlord’s Mortgagee (if any), and their respective members,
principals, beneficiaries, partners, officers, directors, employees, and
agents, and other designees of Landlord as the interest of such designees shall
appear, as “additional insureds” and shall be primary with Landlord’s policy
being secondary and noncontributory. If any aggregate limit is reduced because
of losses paid to below 75% of the limit required by this Lease, Tenant will
notify Landlord in writing within 10 days of the date of reduction. All
policies of Tenant’s Insurance shall contain endorsements that the insurer(s) shall
give Landlord and its designees at least 30 days’ advance written notice of any
change, cancellation, termination or lapse of insurance. Tenant shall provide
Landlord with a certificate of insurance and all required endorsements
evidencing Tenant’s Insurance prior to the earlier to occur of the Commencement
Date or the date Tenant is provided access to the Premises for any reason, and
upon renewals at least 10 days
prior to the expiration of the insurance coverage. All of Tenant’s Insurance
policies, endorsements and certificates will be on forms and with deductibles
and self-insured retention, if any, reasonably acceptable to Landlord. The
limits of Tenant’s insurance shall not limit Tenant’s liability under this
Lease.


 


B.                                    Landlord’s Insurance. Landlord shall
maintain: (1) commercial general liability insurance applicable to the
Property which provides, on an occurrence basis, a minimum combined single
limit of no less than $5,000,000 (coverage in excess of $1,000,000 may be
provided by way of an umbrella/excess liability policy); and (2) causes of
loss-special form (formerly “all risk”) property insurance on the Building in
the amount of the replacement cost thereof, as reasonably estimated by
Landlord. The foregoing insurance and any other insurance carried by Landlord
may be effected by a policy or policies of blanket insurance and shall be for
the sole benefit of Landlord and under Landlord’s sole control. Consequently,
Tenant shall have no right or claim to any proceeds thereof or any other rights
thereunder.


 


14

















 


15.                                 Mutual Waiver of Subrogation.
Notwithstanding anything in this Lease to the contrary, Tenant waives, and
shall cause its insurance carrier(s) and any other party claiming through
or under such carrier(s), by way of subrogation or otherwise, to waive any and
all rights of recovery, Claim, action or causes of action against all Landlord
Parties for any loss or damage to Tenant’s business, any loss of use of the
Premises, and any loss, theft or damage to Tenant’s Property (including Tenant’s
automobiles or the contents thereof), INCLUDING
ALL RIGHTS (BY WAY OF SUBROGATION OR OTHERWISE) OF RECOVERY, CLAIMS, ACTIONS OR
CAUSES OF ACTION ARISING OUT OF THE NEGLIGENCE OF ANY LANDLORD PARTY, which
loss or damage is (or would have been, had the insurance required by this Lease
been maintained) covered by insurance. In addition, Landlord shall cause its
insurance carrier(s) and any other party claiming through or under such
carrier(s), by way of subrogation or otherwise, to waive any and all rights of
recovery, Claim, action or causes of action against all Tenant Parties for any
loss of or damage to or loss of use of the Building, any additions or
improvements to the Building, or any contents thereof, INCLUDING ALL RIGHTS (BY WAY OF SUBROGATION OR
OTHERWISE) OF RECOVERY, CLAIMS, ACTIONS OR CAUSES OF ACTION ARISING OUT OF THE
NEGLIGENCE OF ANY TENANT PARTY, which loss or damage is (or would
have been, had the insurance required by this Lease been maintained) covered by
insurance.


 


16.                                 Casualty Damage.


 


A.                                    Repair or Termination by Landlord. If all or any
part of the Premises are damaged by fire or other casualty, Tenant shall
immediately notify Landlord in writing. Landlord shall have the right to
terminate this Lease if: (1) the Building shall be damaged so that, in
Landlord’s reasonable judgment, substantial alteration or reconstruction of the
Building shall be required (whether or not the Premises have been damaged); (2) Landlord
is not permitted by Law to rebuild the Building in substantially the same form
as existed before the fire or casualty; (3) the Premises have been
materially damaged and there is less than 2 years of the Term remaining on the
date of the casualty; (4) any Mortgagee requires that the insurance
proceeds be applied to the payment of the mortgage debt; or (5) an
uninsured loss of the Building occurs notwithstanding Landlord’s compliance
with Section 14.B above. Landlord may
exercise its right to terminate this Lease by notifying Tenant in writing
within 90 days after the date of the casualty. If Landlord does not terminate
this Lease under this Section 16.A, Landlord
shall commence and proceed with reasonable diligence to repair and restore the
Building and/or the Premises to substantially the same condition as existed
immediately prior to the date of damage; provided, however, that Landlord shall
only be required to reconstruct building standard leasehold improvements
existing in the Premises as of the date of damage, and Tenant shall be required
to pay the cost for restoring any other leasehold improvements. However, in no
event shall Landlord be required to spend more than the insurance proceeds
received by Landlord.


 


B.                                    Timing for Repair; Termination by Either Party. If all or any portion of the Premises is damaged as a result of fire
or other casualty, Landlord shall, with reasonable promptness, cause an
architect or general contractor selected by Landlord to provide Landlord and
Tenant with a written estimate of the amount of time required to substantially
complete the repair and restoration of the Premises, using standard working
methods (“Completion
Estimate”). If the Completion Estimate indicates that the
Premises cannot be made tenantable within 270 days from the date of damage,
then regardless of anything in Section 16.A
above to the contrary, either party shall have the right to terminate this
Lease by giving written notice to the other of such election within 10 days
after receipt of the Completion Estimate. Tenant, however, shall not have the
right to terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of any of the Tenant Parties. If neither
party terminates this Lease under this Section 16.B, then Landlord shall repair and
restore the Premises in accordance with, and subject to the limitations of, Section 16.A.


 


C.                                    Abatement. In the  event a material portion of
the Premises is damaged as a result of a fire or other casualty, the Base Rent
and Operating Expenses shall abate for the portion of the Premises that is
damaged and not usable by Tenant until substantial completion of the repairs
and restoration required to be made by Landlord pursuant to Section 16.A. Tenant, however, shall not be entitled to
such abatement if the fire or other casualty was caused by the negligence or
intentional misconduct of any of the Tenant Parties. Landlord shall not be
liable for any loss or damage to Tenant’s Property or to the business of Tenant
resulting in any way from the fire or other casualty or from the repair and
restoration of the damage. Landlord and Tenant hereby waive the provisions of
any Law relating to the matters addressed in this Article, and agree that


 


15

















 


their respective rights for damage to or destruction of the Premises
shall be those specifically provided in this Lease.


 


17.                                 Condemnation. Either party
may terminate this Lease if the whole or any material part of the Premises are
taken or condemned for any public or quasi-public use under Law, by eminent
domain or private purchase in lieu thereof (a “Taking”).  Landlord
shall also have the right to terminate this Lease if there is a Taking of any
portion of the Building or Property which would leave the remainder of the
Building unsuitable for use as an office building in a manner comparable to the
Building’s use prior to the Taking. In order to exercise its right to terminate
this Lease under this Article 17,
Landlord or Tenant, as the case may be, must provide written notice of
termination to the other within 45 days after the terminating party first
receives notice of the Taking. Any such termination shall be effective as of
the date the physical taking of the Premises or the portion of the Building or
Property occurs. If this Lease is not terminated, the Rentable Square Footage
of the Building, the Rentable Square Footage of the Premises and Tenant’s Pro
Rata Share shall, if applicable, be appropriately adjusted by Landlord. In
addition, Base Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term effective when the physical taking of the
portion of the Premises occurs. All compensation awarded for a Taking, or sale
proceeds, shall be the property of Landlord, any right to receive compensation
or proceeds being expressly waived by Tenant. However, Tenant may file a
separate claim at its sole cost and expense for Tenant’s Property (excluding
above building standard leasehold improvements) and Tenant’s reasonable
relocation expenses, provided the filing of such claim does not diminish the
award which would otherwise be receivable by Landlord.


 


18.                                 Events of Default. Tenant shall
be considered to be in default under this Lease upon the occurrence of any of
the following events of default:


 


A.                                    Tenant’s
failure to pay when due all or any portion of the Rent (“Monetary Default”);  provided that
the first such failure during any consecutive 12 month period shall not be a
Monetary Default if Tenant pays the amount due within 5 days after written
notice from Landlord.


 


B.                                    Tenant’s
failure to perform any of the obligations of Tenant in the manner set forth in Articles 14, 23, 24 or 25 (a “Time Sensitive Default”).


 


C.                                    Tenant’s
failure (other than a Monetary Default or a Time Sensitive Default) to comply
with any term, provision or covenant of this Lease, if the failure is not cured
within 10 days after written notice to Tenant. However, if Tenant’s failure to comply
cannot reasonably be cured within 10 days, Tenant shall be allowed additional
time (not to exceed an additional 30 days) as is reasonably necessary to cure
the failure so long as: (1) Tenant commences to cure the
failure within the 10 day period following Landlord’s initial written notice,
and (2) Tenant diligently pursues a course of action that will cure the
failure and bring Tenant back into compliance with this Lease. However, if
Tenant’s failure to comply creates a hazardous condition, the failure must be
cured immediately upon notice to Tenant. In addition, if Landlord provides
Tenant with notice of Tenant’s failure to comply with the same specific term,
provision or covenant of this Lease on more than two (2) occasions during
any 12 month period, Tenant’s subsequent violation of the same term, provision
or covenant shall, at Landlord’s option, be deemed an incurable event of
default by Tenant.


 


D.                                    Tenant or any
Guarantor becomes insolvent, files a petition for protection under the U.S.
Bankruptcy Code (or similar Law) or a petition is filed against Tenant or any
Guarantor under such Laws and is not dismissed within 45 days after the date of
such filing, makes a transfer in fraud of creditors or makes an assignment for
the benefit of creditors, or admits in writing its inability to pay its debts
when due.


 


E.                                      The leasehold
estate is taken by process or operation of Law.


 


F.                                      Tenant is in
default beyond any notice and cure period under any other lease or agreement
with Landlord, including any lease or agreement for parking.


 


16

















 


19.                            Remedies.


 


A.                                    Landlord’s
Remedies. Upon any default, Landlord shall have the right
without notice or demand (except as provided in Article 18) to pursue any
of its rights and remedies at Law or in equity, including any one or more of
the following remedies:


 


(1)                                  Terminate this
Lease;


 


(2)                                  Re-enter the
Premises, change locks, alter security devices and lock out Tenant or terminate
Tenant’s right of possession of the Premises without terminating this Lease,
and without complying with applicable Law, the benefits of which are waived by
Tenant to the fullest extent permitted by applicable Law;


 


(3)                                  Remove and
store, at Tenant’s expense, all the property in the Premises using such lawful
force as may be necessary;


 


(4)                                  Cure such event
of default for Tenant at Tenant’s expense (plus a 5% administrative fee);


 


(5)                                  Withhold or
suspend payment of sums Landlord would otherwise be obligated to pay to Tenant
under this Lease or any other agreement;


 


(6)                                  Require all
future payments to be made by cashier’s check, money order or wire transfer
after the first time any check is returned for insufficient funds, or the
second time any sum due hereunder is more than five (5) days late;


 


(7)                                  Apply any
Security Deposit as permitted under this Lease; and/or


 


(8)                                  Recover such
other amounts in addition to or in lieu of the foregoing as may be permitted
from time to time by applicable Law, including any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant’s
failure to perform its obligations under this Lease or which in the ordinary
course of events would be likely to result therefrom.


 


B.                                    Measure
of Damages.


 


(1)                                  Calculation. If Landlord
either terminates this Lease or terminates Tenant’s right to possession of the
Premises, Tenant shall immediately surrender and vacate the Premises and pay
Landlord on demand: (a) all Rent accrued through the end of the month in
which the termination becomes effective; (b) interest on all unpaid Rent
from the date due at a rate equal to the lesser of 18% per annum or the highest
interest rate permitted by applicable Law; (c) all expenses reasonably
incurred by Landlord in enforcing its rights and remedies under this Lease,
including all reasonable legal expenses; (d) Costs of Reletting (defined
below); and (e) all Landlord’s Rental Damages (defined below). In the
event that Landlord relets the Premises for an amount greater than the Rent due
during the Term, Tenant shall not receive a credit for any such excess.


 


(2)                                  Definitions.
“Costs of Reletting”  shall include
commercially reasonable costs, losses and expenses incurred by Landlord in
reletting all or any portion of the Premises including, without limitation, the
cost of removing and storing Tenant’s furniture, trade fixtures, equipment,
inventory or other property, repairing and/or demolishing the Premises,
removing and/or replacing Tenant’s signage and other fixtures, making the
Premises ready for a new tenant, including the cost of advertising,
commissions, architectural fees, legal fees and leasehold improvements, and any
allowances and/or concessions provided by Landlord. “Landlord’s Rental Damages” shall mean the
total Rent which Landlord would have received under this Lease (had Tenant made
all such Lease payments as required) for the remainder of the Term minus the
fair rental value of the Premises for the same period, or, if the Premises are
relet, the actual rental value (not to exceed the Rent due during the Term),
both discounted to present value at the Prime Rate (defined below) in effect
upon the date of determination. For purposes hereof, the “Prime Rate” shall be the per annum interest
rate publicly announced by a federally insured bank selected by Landlord in the
state in which the Building is located as such bank’s prime or base rate.


 


17

















 


(3)                                  Landlord’s Alternative Calculation. Because future market
rental rates, and the costs or time involved in reletting may be uncertain and
difficult to determine at the time of Tenant’s default, the parties agree that
Landlord may in its sole discretion elect to recover, in lieu of calculating
damages under Section 19.B(1)(d) and (e) above
(but without limiting damages under Section 19.B(1)(a) and (b) above),
the sum of (a) the unamortized portion of all costs, losses and expenses
incurred by Landlord as a result of entering into the Lease, and (b) twenty
five percent (25%) of the total nominal Rent which Landlord would have received
under this Lease (had Tenant made all such Rent payments as required) for the
remainder of the Term, which the parties agree is a fair and reasonable
estimate of Landlord’s Rental Damages and the Costs of Reletting.


 


C.                                    Tenant Not Relieved from Liabilities.
Unless  expressly provided in this
Lease, the repossession or re-entering of all or any part of the Premises shall
not relieve Tenant of its liabilities and obligations under this Lease. In
addition, Tenant shall not be relieved of its liabilities under this Lease, nor
be entitled to any damages hereunder, based upon minor or immaterial errors in
the exercise of Landlord’s remedies. No right or remedy of Landlord shall be
exclusive of any other right or remedy. Each right and remedy shall be
cumulative and in addition to any  other
right and remedy now or subsequently available to Landlord at Law or in equity.
If Tenant fails to pay any amount when due hereunder (after the expiration of
any applicable cure period), Landlord shall be entitled to receive interest on
any unpaid item of Rent from the date initially due (without regard to any
applicable grace period) at a rate equal to the lesser of 18% per annum or the
highest rate permitted by Law. In addition, if Tenant fails to pay any item or
installment of Rent when due (after the expiration of any applicable cure
period), Tenant shall pay Landlord an administrative fee equal to 5% of the
past due Rent. However, in no event shall the charges permitted under this Section 19.C or elsewhere in this Lease, to the extent
they are considered interest under applicable Law, exceed the maximum lawful
rate of interest. If any payment by Tenant of an amount deemed to be interest
results in Tenant having paid any interest in excess of that permitted by Law,
then it is the express intent of Landlord and Tenant that all such excess
amounts theretofore collected by Landlord be credited against the other amounts
owing by Tenant under this Lease. Receipt by Landlord of Tenant’s keys to the
Premises shall not constitute an acceptance or surrender of the Premises. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE TO
THE CONTRARY, TENANT SHALL HOLD LANDLORD PARTIES HARMLESS FROM AND INDEMNIFY
AND DEFEND SUCH PARTIES AGAINST, ALL CLAIMS THAT ARISE OUT OF OR IN CONNECTION
WITH A BREACH OF THIS LEASE, SPECIFICALLY INCLUDING ANY VIOLATION OF APPLICABLE
LAWS OR CONTAMINATION (DEFINED IN ARTICLE 30) CAUSED BY A TENANT PARTY.


 


D.                                    Mitigation of Damages. Upon termination of Tenant’s
right to possess the Premises, Landlord shall, only to the extent required by
Law, use objectively reasonable efforts to mitigate damages by reletting the
Premises. Landlord shall not be deemed to have failed to do so if Landlord
refuses to lease the Premises to a prospective new tenant with respect to whom
Landlord would be entitled to withhold its consent pursuant to Section 11.A, or who (1) is
an Affiliate, parent or subsidiary of Tenant; (2) is not acceptable to any
Mortgagee of Landlord; (3) requires improvements to the Premises to be
made at Landlord’s expense; or (4) is unwilling to accept lease terms then
proposed by Landlord, including: (a) leasing for a shorter or longer term
than remains under this Lease; (b) re-configuring or combining the
Premises with other space, (c) taking all or only a part of the Premises;
and/or (d) changing the use of the Premises. Notwithstanding Landlord’s
duty to mitigate its damages as provided herein, Landlord shall not be
obligated (i) to give any priority to reletting Tenant’s space in
connection with its leasing of space in the Building or any complex of which
the Building is a part, or (ii) to accept below market rental rates for
the Premises or any rate that would negatively impact the market rates for the
Building. To the extent that Landlord is required by applicable Law to mitigate
damages, Tenant must plead and prove by clear and convincing evidence that
Landlord failed to so mitigate in accordance with the provisions of this Section 19.D, and
that such failure resulted in an avoidable and quantifiable detriment to Tenant.


 


E.                                      Landlord’s Lien. To secure
Tenant’s obligations under this Lease, Tenant grants Landlord a contractual
security interest on all  of Tenant’s inventory, goods,
consumer goods and equipment now or hereafter situated in the Premises and all
proceeds therefrom, including insurance proceeds (collectively, “Collateral”).  No Collateral
shall be removed from the Premises without Landlord’s prior written consent
until all of Tenant’s obligations are
fully satisfied (except in the ordinary course of Tenant’s business). Upon any
event of default,


 


18

















 


Landlord may, to the fullest extent permitted by Law and in addition to
any other remedies provided herein, enter upon the Premises and take possession
of any Collateral without being held liable for trespass or conversion, and
sell the same at public or private sale, after giving Tenant at least 10 days
written notice (or more if required by Law) of the time and place of such sale.
Such notice may be sent with or without return receipt requested. Unless
prohibited by Law, any Landlord Party may purchase any Collateral at such sale.
Subject to applicable Law, the proceeds from such sale, less Landlord’s
expenses, including reasonable attorneys’ fees and other expenses, shall be
credited against Tenant’s obligations. Any surplus shall be paid to Tenant (or
as otherwise required by Law) and any deficiency shall be paid by Tenant to
Landlord upon demand. Tenant hereby authorizes Landlord to file a financing
statement sufficient to perfect the foregoing security interest, or to file a
copy of this Lease as a financing statement, as permitted under Law.
Notwithstanding the foregoing, Landlord agrees, from time to time, at the
written request of Tenant at least 60 days prior to the proposed date of any
loan or extension of credit, to expressly subordinate its foregoing contractual
lien rights in Collateral (as well as any non-contractual lien granted to
Landlord by Law in Collateral) to the security interests of one or more third
party lender(s) providing financing for Tenant’s business operations
during the Term, provided that (i) there is no uncured event of default by
Tenant under the Lease at the time of such subordination; (ii) such
subordination shall be limited to the specified items, amount and time stated
in the subordinating instrument; and (iii) such subordination shall be in
writing, signed by all parties and in a form prescribed by Landlord, which form
is attached hereto as Exhibit I.


 


20.                                 Limitation of Liability. Notwithstanding
anything to the contrary contained in this Lease, the liability of Landlord
(and of any successor Landlord) to Tenant (or any person or entity claiming by,
through or under Tenant) shall be limited to the interest of Landlord in the
Property. Tenant shall look solely to Landlord’s interest in the Property for
the recovery of any judgment or award against Landlord. No Landlord Party shall
be personally liable for any judgment or deficiency. Before filing suit for an
alleged default by Landlord, Tenant shall give Landlord and the Mortgagee(s) (defined
in Article 25)
whom Tenant has been notified hold Mortgages (defined in Article 25) on the Property, Building or Premises,
notice and reasonable time to cure the alleged default. Tenant hereby waives
all claims against all Landlord Parties for consequential, special or punitive
damages allegedly suffered by any Tenant Parties, including lost profits and
business interruption.


 


21.                                 No Waiver. Neither party’s failure
to declare a default immediately upon its occurrence or delay in taking
action for a default shall constitute a waiver of the default, nor shall it
constitute an estoppel. Neither party’s failure to enforce its rights for a default shall
constitute a waiver of that party’s rights regarding any subsequent default.


 


22.                                 Tenant’s Right to Possession.
Provided Tenant pays the Rent and fully performs all of its other
covenants and agreements under this Lease, Tenant shall have the right to
occupy the Premises without hindrance from Landlord or any person lawfully
claiming through Landlord, subject to the terms of this Lease, all Mortgages,
insurance requirements and applicable Law. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of any Landlord Parties.


 


23.                                 Relocation. Intentionally deleted.


 


24.                                 Holding Over. Except for any
permitted occupancy by Tenant under Article 29,
if Tenant or any party claiming by, through or under Tenant fails to
surrender the Premises at the expiration or earlier termination of this Lease,
the continued occupancy of the Premises shall be that of a tenancy at sufferance. Tenant shall pay an amount (on
a per month basis without reduction for partial months during the holdover)
equal to 200% of the greater of: (A) the
sum of the Base Rent and the OE
Payment due for the period immediately preceding the holdover; or (B) the
fair market gross rental for the
Premises. Tenant shall otherwise continue to be subject to all of Tenant’s
obligations under this Lease; provided, however, so long as no other uncured
event of default exists under the
Lease, for the first 30 days of any such holdover Tenant shall pay only 150% of
such greater amount. No holdover by Tenant or payment by Tenant after
the expiration or early termination of this Lease shall be construed to extend
the Term or prevent Landlord from immediate recovery of possession of the
Premises by summary proceedings or otherwise. In addition to the payment
of the amounts provided above, if Landlord is unable to deliver possession of
the Premises to a new tenant, or to perform improvements for a new tenant,


 


19

















 


as a result of Tenant’s holdover and Tenant fails to vacate the
Premises within 15 days after Landlord notifies Tenant of Landlord’s inability
to deliver possession, or perform improvements, such failure shall constitute a
Time Sensitive Default hereunder; and notwithstanding any other provision of
this Lease to the contrary, TENANT SHALL BE
LIABLE TO LANDLORD FOR, AND SHALL PROTECT LANDLORD FROM AND INDEMNIFY AND
DEFEND LANDLORD AGAINST, ALL LOSSES AND DAMAGES, INCLUDING ANY CLAIMS MADE
BY ANY SUCCEEDING TENANT RESULTING FROM SUCH FAILURE TO VACATE, AND ANY
CONSEQUENTIAL DAMAGES THAT LANDLORD SUFFERS FROM THE HOLDOVER.


 


25.                                 Subordination to Mortgages; Estoppel Certificate. Tenant
accepts this Lease subject and subordinate to any mortgage(s), deed(s) of
trust, ground lease(s) or other lien(s) now or subsequently affecting
the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively, a “Mortgage”).  The party
having the benefit of a Mortgage shall be referred to as a “Mortgagee.”  This clause shall be self-operative, but upon
request from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of having the
Mortgage be superior to this Lease, a Mortgagee shall have the right at any
time to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord’s interest in this Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Tenant shall,
within 5 days after receipt of a written request from Landlord, execute and
deliver an estoppel certificate to those parties as are reasonably requested by
Landlord (including a Mortgagee or prospective purchaser). The estoppel
certificate shall include a statement certifying that this Lease is unmodified
(except as identified in the estoppel certificate) and in full force and
effect, describing the dates to which Rent and other charges have been paid,
representing that, to the best of Tenant’s knowledge, there is no default (or
stating with specificity the nature of the alleged default) and certifying
other matters with respect to this Lease that may reasonably be requested.
Tenant’s failure to provide any estoppel certificate within the 5 day period
specified above, and the continuation of such failure for a period of 5 days
after Landlord delivers a second written notice requesting same, shall
constitute a Time Sensitive Default under this Lease. Landlord shall use
reasonable efforts to obtain Landlord’s Mortgagee’s then-current form of
nondisturbance agreement for the benefit of Tenant.


 


26.                                 Attorneys’ Fees. If either
party institutes a suit against the other for violation of or to enforce any
covenant or condition of this Lease, or if either party intervenes in any suit
in which the other is a party to enforce or protect its interest or rights, the
prevailing party shall be entitled to all of its costs and expenses, including
reasonable attorneys’ fees.


 


27.                                 Notice. If a demand,
request, approval, consent or notice (collectively, a “notice”)  shall or may be
given to either party by the other, the notice shall be in writing and
delivered by hand or sent by registered or certified mail with return receipt
requested, or sent by overnight or same day courier service, or sent by
facsimile, at the party’s respective Notice Address(es) set forth in Article 1,  except that if
Tenant has vacated the Premises (or if the Notice Address for Tenant is other
than the Premises, and Tenant has vacated such address) without providing
Landlord a new Notice Address, Landlord may serve notice in any manner
described in this Article or in any other manner permitted by Law. Each
notice shall be deemed to have been received or given on the earlier to occur
of actual delivery (which, in the case of delivery by facsimile, shall be
deemed to occur at the time of delivery indicated on the electronic
confirmation of the facsimile) or the date on which delivery is first refused,
or, if Tenant has vacated the Premises or the other Notice Address of Tenant
without providing a new Notice Address, three (3) days after notice is
deposited in the U.S. mail or with a courier service in the manner described
above. Either party may, at any time, change its Notice Address by giving the
other party written notice of the new address in the manner described in this
Article.


 


28.                                 Reserved Rights. This Lease
does not grant any rights to light or air over or about the Building. Landlord
excepts and reserves exclusively to itself the use of: (A) roofs, (B) telephone,
electrical and janitorial closets, (C) equipment rooms, Building risers or
similar areas that are used by Landlord for the provision of Building services,
(D) rights to the land and improvements below the floor of the Premises, (E) the
improvements and air rights above the Premises, (F) the improvements and
air rights outside the demising walls of the Premises, (G) the areas
within the Premises used for the installation of utility lines and other
installations serving occupants of the Building, and (H) any other areas
designated from time to time by Landlord as service areas of the Building.
Tenant shall not have the right to install or operate any equipment


 


20














 


producing radio frequencies, electrical or electromagnetic output or
other signals, noise or emissions in or from the Building without the prior
written consent of Landlord. To the extent permitted by applicable Law,
Landlord reserves the right to restrict and control the use of such equipment.
Landlord has the right to change the Building’s name or address. Landlord also
has the right to make such other changes to the Property and Building as
Landlord deems appropriate, provided the changes do not materially affect
Tenant’s ability to use the Premises for the Permitted Use. Landlord shall also
have the right (but not the obligation) to temporarily close the Building if
Landlord reasonably determines that there is an imminent danger of significant
damage to the Building or of personal injury to Landlord’s employees or the
occupants of the Building. The circumstances under which Landlord may
temporarily close the Building shall include, without limitation, electrical
interruptions, hurricanes and civil disturbances. A closure of the Building
under such circumstances shall not constitute a constructive eviction nor
entitle Tenant to an abatement or reduction of Rent.


 


29.                                 Surrender of Premises. All
improvements to the Premises (collectively, “Leasehold Improvements”)  shall
be owned by Landlord and shall remain upon the Premises without compensation to
Tenant. At the expiration or earlier termination of this Lease or Tenant’s
right of possession, Tenant shall remove Tenant’s Removable Property (defined
below) from the Premises, and quit and surrender the Premises to Landlord,
broom clean, and in good order, condition and repair, ordinary wear and tear
excepted. As used herein, the term “Tenant’s Removable Property” shall mean: (A) Cable
installed by or for the benefit of Tenant and located in the Premises or other
portions of the Building; (B) any Leasehold Improvements that are
installed by or for the benefit of Tenant and, in Landlord’s reasonable
judgment, are of a nature that would require removal and repair costs that are
materially in excess of the removal and repair costs associated with standard
office improvements (“Special
Installations”); and (C) Tenant’s personal property.
Landlord shall, within 10 Business Days after its receipt of a written request
therefor from Tenant (which request must make reference to this Section 29 of the Lease), notify Tenant in writing
whether any Leasehold Improvements to be constructed in the Premises
constitutes Special Installations. Notwithstanding the foregoing, Landlord may,
in Landlord’s sole discretion and at no cost to Landlord, require Tenant to
leave any of its Special Installations in the Premises. If Tenant fails to
remove any of Tenant’s Removable Property (other than Special Installations
which Landlord has designated to remain in the Premises) within 2 days after
the termination of this Lease or of Tenant’s right to possession, Landlord, at
Tenant’s sole cost and expense, shall be entitled (but not obligated) to remove
and store Tenant’s Removable Property. Landlord shall not be responsible for
the value, preservation or safekeeping of Tenant’s Removable Property. Tenant
shall pay Landlord, upon demand, the expenses and storage charges incurred for
Tenant’s Removable Property. To the fullest extent permitted by applicable Law,
any unused portion of Tenant’s Security Deposit may be applied to offset
Landlord’s costs set forth in the preceding sentence. In addition, if Tenant
fails to remove Tenant’s Removable Property from the Premises or storage, as
the case may be, within 30 days after written notice, Landlord may deem all or
any part of Tenant’s Removable Property to be abandoned, and title to Tenant’s
Removable Property (except with respect to any Hazardous Material [defined in Article 30]) shall be deemed to be immediately vested
in Landlord. Except for Special Installations designated by Landlord to remain
in the Premises, Tenant’s Removable Property shall be removed by Tenant before
the Expiration Date; provided that upon Landlord’s prior written consent (which
must be requested by Tenant at least 30 days in advance of the Expiration Date
and which shall not be unreasonably withheld), Tenant may remain in the
Premises for up to 5 days after the Expiration Date for the sole purpose of
removing Tenant’s Removable Property. Tenant’s possession of the Premises for
such purpose shall be subject to all of the terms and conditions of this Lease,
including the obligation to pay Base Rent and the OE Payment on a per diem
basis at the rate in effect for the last month of the Term. In the event this
Lease is terminated prior to the Expiration Date, Tenant’s Removable Property
(except for Special Installations designated by Landlord to remain in the
Premises) shall be removed by Tenant on or before such earlier date of termination.
Tenant shall repair damage caused by the installation or removal of Tenant’s
Removable Property.


 


30.                                 Hazardous Materials.


 


A.                                    Restrictions. No Hazardous Material
(defined below) (except for de minimis quantities of household cleaning
products and office supplies used in the ordinary course of Tenant’s business
at the Premises and that are used, kept and disposed of in compliance with Laws)
shall be brought upon, used, kept or disposed of in or about the Premises or
the Property


 


21

















 


by any Tenant Parties or any of Tenant’s transferees, contractors or
licensees without Landlord’s prior written consent, which consent may be
withheld in Landlord’s sole and absolute discretion. Tenant’s request for such
consent shall include a representation and warranty by Tenant that the
Hazardous Material in question (1) is necessary in the ordinary course of
Tenant’s business, and (2) shall be used, kept and disposed of in compliance with all Laws.


 


B.                                    Remediation. Tenant shall, at
its expense, monitor the Premises for the presence of
Hazardous Materials or conditions which may reasonably give rise to
Contamination (defined below) and promptly notify Landlord if it suspects
Contamination in the Premises. Landlord may, at its option, remediate
Contamination caused by a Tenant Party or its contractors or invitees, and in
such event, Tenant shall reimburse Landlord for the cost thereof, plus a 5%
administrative fee.


 


C.                                    Definitions. For purposes of
this Article 30,  a “Hazardous Material” is any substance (1) the
presence of which requires, or may hereafter require, notification,
investigation or remediation under any Laws or (2) which is now or
hereafter defined, listed or regulated by any governmental authority as a “hazardous
waste”, “extremely hazardous waste”, “solid waste”, “toxic substance”, “hazardous
substance”, “hazardous material” or “regulated substance”, or otherwise
regulated under any Laws. “Contamination” means
the existence or any release or disposal of a Hazardous Material or biological
or organic contaminant, including any such contaminant which could adversely
impact air quality, such as mold, fungi or other bacterial agents in, on,
under, at or from the Premises, the Building or the Property which may result
in any liability, fine, use
restriction, cost recovery lien, remediation requirement, or other government
or private party action or imposition affecting any Landlord Party. For
purposes of this Lease, claims arising from Contamination shall include diminution
in value, restrictions on use, adverse impact on leasing space, and all costs of site investigation,
remediation, removal and restoration work, including response costs under
CERCLA and similar statutes.


 


D.                                    Reports, Surveys and Acceptance of Premises. All current surveys or reports prepared for the Property regarding the
presence of Hazardous Materials (if any) in the Building are available for
inspection by Tenant in the office of the Property manager. With respect to
Hazardous Materials, Tenant hereby (1) accepts full responsibility for
reviewing any such surveys and reports and satisfying itself prior to the
execution of this Lease as to the acceptability of the Premises under Section 3.B above, and (2) acknowledges and agrees that this provision
satisfies all notice requirements under applicable Law. In the event Tenant
performs or causes to be performed any test on or within the Premises for the
purpose of determining the presence of a Hazardous Material, Tenant shall
obtain Landlord’s prior written consent and use a vendor approved by Landlord
for such testing. In addition, Tenant shall provide to Landlord a copy of such
test within 10 days of Tenant’s receipt.


 


31.                                 Miscellaneous.


 


A.                                    Governing Law; Jurisdiction and Venue; Severability; Paragraph Headings. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the state in
which the Property is located. All obligations under this Lease are performable
in the county or other jurisdiction where the Property is located, which shall
be venue for all legal actions. If any term or provision of this Lease shall be
invalid or unenforceable, then such term or provision shall be automatically
reformed to the extent necessary to render such term or provision enforceable,
without the necessity of execution of any amendment or new document. The
remainder of this Lease shall not be affected, and each remaining and reformed
provision of this Lease shall be valid and enforced to the fullest extent
permitted by Law. The headings and titles to the Articles and Sections of this
Lease are for convenience only and shall have no effect on the interpretation
of any part of this Lease. The words “include”, “including” and similar words
will not be construed restrictively to limit or exclude other items not listed.


 


B.                                    Recording. Tenant shall
not record this Lease or any memorandum without Landlord’s prior written
consent.


 


C.                                    Force Majeure. Whenever a period
of time is prescribed for the taking of an action by Landlord or Tenant, the
period of time for the performance of such action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, terrorist attacks (including bio-chemical attacks), civil


 


22

















 


disturbances and other causes beyond the reasonable control of the
performing party (“Force Majeure”). However, events of Force Majeure
shall not extend any period of time for the payment of Rent or other sums
payable by either party or any period of time for the written exercise of an
option or right by either party.


 


D.                                    Transferability; Release of Landlord. Landlord shall
have the right to transfer and assign, in whole or in part, all of its rights
and obligations under this Lease and in the Building and/or Property, and upon
such transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to the successor in interest of
Landlord for the performance of such obligations.


 


E.                                      Brokers. Tenant
represents that it has dealt directly with and only with HerronWilliams, LLC
(whose commission shall be paid by Landlord pursuant to a separate written
agreement) in connection with this Lease. Tenant and Landlord
shall each indemnify the other against all costs, expenses, attorneys’ fees,
liens and other liability for commissions or other compensation claimed by any
broker or agent claiming the same by, through or under the indemnifying party,
other than the broker(s) specifically identified above.


 


F.                                      Authority; Joint and Several Liability. Landlord
covenants, warrants and represents that each individual executing, attesting
and/or delivering this Lease on behalf of Landlord is authorized to do so on
behalf of Landlord, this Lease is binding upon and enforceable against
Landlord, and Landlord is duly organized and legally existing in the state of
its organization and is qualified to do business in the state in which the
Premises are located. Similarly, Tenant covenants, warrants and represents that
each individual executing, attesting and/or delivering this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant, this Lease is binding upon
and enforceable against Tenant; and Tenant is duly organized and legally
existing in the state of its organization and is qualified to do business in
the state in which the Premises are located. If there is more than one Tenant,
or if Tenant is comprised of more than one party or entity, the obligations
imposed upon Tenant shall be joint and several obligations of all the parties
and entities. Notices, payments and agreements given or made by, with or to any
one person or entity shall be deemed to have been given or made by, with and to
all of them.


 


G.                                    Time is of the Essence; Relationship; Successors and Assigns. Time is of the essence with respect to Tenant’s performance of its
obligations and the exercise of any expansion, renewal or extension rights or
other options granted to Tenant. This Lease shall create only the relationship
of landlord and tenant between the parties, and not a partnership, joint
venture or any other relationship. This Lease and the covenants and conditions
in this Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.


 


H.                                    Survival of Obligations. The expiration
of the Term, whether by lapse of time or otherwise, shall not relieve either
party of any obligations which accrued prior to or which may continue to accrue
after the expiration or early termination of this Lease. Without limiting the
scope of the prior sentence, it is agreed that Tenant’s obligations under Sections 4.A, 4.B, and 4.C, and under Articles
6, 8, 12, 13, 19, 24, 29 and 30 shall survive the expiration or
early termination of this Lease.


 


I.                                         Binding Effect. Landlord has
delivered a copy of this Lease to Tenant for Tenant’s review only, and the
delivery of it does not constitute an offer to Tenant or an option. This Lease
shall not be effective against any party hereto until an original copy of this
Lease has been signed by such party and delivered to the other party.


 


J.                                      Full Agreement; Amendments. This Lease
contains the parties’ entire agreement regarding the subject matter hereof. All
understandings, discussions, and agreements previously made between the
parties, written or oral, are superseded by this Lease, and neither party is
relying upon any warranty, statement or representation not contained in this
Lease. This Lease may be modified only by a written agreement signed by
Landlord and Tenant. The exhibits and riders attached hereto are incorporated
herein and made a part of this Lease for all purposes.


 


23

















 


K.                                    Tax Waiver. Tenant waives
all rights pursuant to all Laws to contest any taxes or other levies or protest
appraised values or receive notice of reappraisal regarding the Property
(including Landlord’s personalty), irrespective of whether Landlord contests
same.


 


L.                                     Method of Calculation. Tenant is
knowledgeable and experienced in commercial transactions and does hereby
acknowledge and agree that the provisions of this Lease for determining charges
and amounts payable by Tenant are commercially reasonable and valid and constitute
satisfactory methods for determining such
charges and amounts as required by Section 93.004 (assessment of charges)
of the Texas Property Code, as enacted by House Bill 2186, 77th Legislature. Tenant further
voluntarily and knowingly waives (to the fullest extent permTted by applicable
Law) all rights and benefits of Tenant under such section, as it now exists or
as it may be hereafter amended or succeeded.


 


M.                                  Waiver of Consumer Rights. TENANT
HEREBY WAIVES ALL ITS RIGHTS UNDER THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER
PROTECTION ACT, SECTION 17.41 ET SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE,
A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION
WITH AN ATTORNEY OF TENANT’S OWN SELECTION, TENANT VOLUNTARILY ADOPTS THIS
WAIVER.


 


N.                                    Storage
Space. Subject to availability and provided that Tenant
is not in default under this Lease, Landlord agrees to make storage space in
the Building available to Tenant at a rate of $12.00 per Rentable Square Foot
upon 30 days prior written notice by Tenant. At such time as Tenant elects to
lease storage space in accordance with this Section 31.N,
Tenant agrees to execute a storage space rental agreement, substantially in the
form attached hereto as Exhibit H or as otherwise reasonable required
by Landlord.


 


[SIGNATURES
ON FOLLOWING PAGE]


 


24

















 


Landlord and Tenant have
executed this Lease as of the Effective Date specified below Landlord’s
signature.


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  CRESCENT REAL ESTATE FUNDING VIII, L.P.,

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CRE Management VIII, LLC, a Delaware

  
	
   

  	
   

  	
  limited liability company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Crescent Real Estate Equities, Ltd.,

  
	
   

  	
   

  	
   

  	
  a Delaware corporation, its manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Robert H. Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Robert H. Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Regional Vice President

  
	
   

  	
   

  	
   

  	
   

  	
  Leasing & Marketing, Houston Region

  
	
   

  	
   

  
	
   

  	
  Effective Date:

  	
  August 11, 2003

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  NETSPEND CORPORATION,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen W. Reesing

  
	
   

  	
  Name:

  	
  Stephen W. Reesing

  
	
   

  	
  Title:

  	
  CFO

  
						



 


25

















 


EXHIBIT A-1


 


OUTLINE AND LOCATION OF
PREMISES


 





 


A-1

















 


EXHIBIT A-2


 


LEGAL DESCRIPTION OF
PROPERTY


 


A FIELD NOTE DESCRIPTION OF A 1.75 ACRE TRACT OF LAND BEING ALL OF
BLOCK 85 ORIGINAL CITY OF AUSTIN, TRAVIS COUNTY, TEXAS. PLAT OF SAID ORIGINAL
CITY OF AUSTIN BEING RECORDED AT THE GENERAL LAND OFFICE IN AUSTIN, TEXAS. SAID
1.75 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOWS:


 


COMMENCING at a concrete monument found in the intersection of the
centerlines of East Eighth Street and Brazos Street.


 


THENCE S 26°03’01” E, a distance of 56.52 feet to a punchhole set in
concrete at the intersection of the south right-of-way line of East Eighth
Street and the east right-of-way lines of Brazos Street, and being a
perpendicular distance of 40.00 feet east of the said monumented centerline of
Brazos Street and being a perpendicular distance of 40.00 feet south of the
monumented centerline of East Eighth Street for the northwest corner and POINT
OF BEGINNING hereof;


 


THENCE with the west line of said Block 85 being parallel to and a
perpendicular distance of 40.00 feet east of the said monumented centerline of
Brazos Street S 19°00’00” W, for a distance of 276.59 feet to an iron pin in
the north right-of-way line of East Seventh Street and being a perpendicular
distance of 40.00 feet north of the monumented centerline of East Seventh
Street for the southwest corner hereof;


 


THENCE with the south line of said block 85 being parallel to and a
perpendicular distance of 40.00 feet north of the monumented centerline of East
Seventh Street S 71°06’51” E, a distance of 276.17 feet to an iron pin set in
the west right-of-way line of San Jacinto Street and being a perpendicular
distance of 40.00 feet to the west of said monumented centerline of San Jacinto
Street for the southeast corner hereof;


 


THENCE with the east line of said Block 85 being parallel to and a perpendicular
distance of 40.00 feet west of the monumented centerline of San Jacinto Street
N 18°59’22” E, for a distance of 276.52 feet to an iron pin set in the south
right-of-way line of East Eighth Street and being a perpendicular distance of
40.00 feet south of the said monumented centerline of East Eighth Street and
being a perpendicular distance of 40.00 feet south of the said monumented
centerline of East Eight Street for the northeast corner hereof;


 


THENCE with the north line of said Block 85 being parallel to and a
perpendicular distance of 40.00 feet south of the monumented centerline of East
Eighth Street N 71°06’03” W, a distance of 276.12 feet to the POINT OF
BEGINNING and containing 1.75 acres of land, more or less.


 


A-2

















 


EXHIBIT B


 


RULES AND REGULATIONS


 


1.                                  Sidewalks,
halls, passageways, exits, entrances, elevators, escalators, stairways, and
other common areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than for ingress to and egress from the Premises. Landlord shall
in all cases retain the right to control and prevent access thereto by all
persons whose presence, in the judgment of the Landlord, shall be prejudicial
to the safety, character, reputation or interests of the Building, including
its tenants and occupants. Nothing shall be swept or thrown into the corridors,
halls, elevators or stairways.


 


2.                                  No sign,
placard, picture, name, advertisement or notice (a “Sign”)  visible from the exterior of the
Premises shall be inscribed, painted, affixed, installed or displayed by Tenant
without the prior written consent of Landlord. Absent any such consent,
Landlord shall have the right to remove any Sign without notice to and at the
expense of Tenant. Any such consent shall be deemed to relate to only the
particular Sign so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the prior written consent of
Landlord with respect to any other Sign. All approved Signs or lettering on doors
and walls shall be inscribed, painted, affixed, installed, printed or otherwise
displayed, at the expense of Tenant, by a person approved by Landlord and in a
manner or style acceptable to Landlord.


 


3.                                  No curtains,
draperies, blinds, shutters, shades, screens or other coverings, awnings,
hangings or decorations shall be installed or used in connection with any
window or door of the Premises without the prior written consent of Landlord,
except for normal and customary interior decorations to the Premises not
visible from the exterior of the Building. In any event, any such items shall
be installed so as to face the interior surface of the standard window
treatment established by Landlord and shall in no way be visible from the
exterior of the Building. No articles shall be placed or kept on the
windowsills or any terraces so as to be visible from the exterior of the
Building. No articles shall be placed against glass partitions or doors which
might appear unsightly from the outside the Premises. No sashes, sash doors,
skylights, windows or doors that reflect or admit light or air into the halls,
passageways or other public places in the Building shall be covered or
obstructed by Tenant without the prior written consent of Landlord.


 


4.                                  Tenant shall
not employ or permit any person(s) other than the janitorial contractor of
the Landlord to clean the Premises without the prior written consent of
Landlord. In the event of any permitted person being employed by Tenant to do
janitorial work, while in the Building and outside of the Premises such person(s) shall
be subject to the control and direction of the Building’s management office
(not as an agent or servant of Landlord); however, Tenant shall in all cases be
responsible for the acts of such person(s).


 


5.                                  Tenant and its
employees, upon daily departure, shall cause (a) the doors of the Premises
to be securely locked, and (b) to the extent practical shut off all
faucets, valves and other control apparatuses to water and other resources, so
as to prevent waste or damage. With the exception of permitting ingress and
egress to the Building, Tenant shall keep doors(s) to the Building’s
corridors on multi-tenant floors of the Building closed at all times.


 


6.                                  Tenant shall
not waste electricity, water, heating, air-conditioning or any other resources
and shall cooperate fully with Landlord to assure the most effective
utilization of such Building resources. Tenant shall not attempt to adjust any
Building resource controls other than any thermostats specifically installed
for Tenant’s use. No heating, air-conditioning unit or other similar apparatus
shall be installed or used by Tenant without the prior written consent of
Landlord.


 


7.                                  Tenant shall
not alter any lock or access device, nor shall Tenant install any new or
additional lock, access device or bolt on any door of the Premises without the
prior written consent of Landlord. In the event of any permitted installation,
Tenant shall in each case furnish Landlord with a key for any such lock or
device.


 


8.                                  Landlord shall
furnish Tenant, at no cost to Tenant, two (2) keys to the Premises. Tenant
shall pay a reasonable charge for any additional keys furnished by Landlord.
Any card-keys issued by Landlord shall upon such issuance require payment of a
refundable deposit in an amount reasonably determined from time to time by
Landlord. Tenant shall not make or have made copies of any keys or card-keys
furnished by Landlord. Tenant shall, upon the expiration


 


B-1

















 


or sooner termination of its tenancy, deliver to
Landlord all of such keys and card-keys, together with any of the keys relating
to the Premises including, but not limited to, all keys to any vaults or safes
which remain on the Premises. In the event of the loss of any keys furnished by
Landlord to Tenant, Tenant shall pay Landlord (a) the cost thereof (less
any deposit paid by Tenant) or (b) the cost of changing the subject lock(s) or
access device(s) if Landlord deems it necessary to make such change.


 


9.                                  The toilet
rooms, toilets, urinals, washbowls, plumbing fixtures and any other Building apparatus
shall not be used for any purpose other than that for which they were
constructed; and no foreign substance of any kind shall be thrown therein. Any
loss, cost or expense relating to any breakage, stoppage or damage
resulting from any violation of this rule shall be borne by Tenant.


 


10.                            Tenant shall not permit any
cooking on the Premises (except that private, non commercial use by Tenant and
its employees of Underwriters’ Laboratory-approved equipment for the
preparation of coffee, tea, hot chocolate and similar beverages, and for the
heating of foods, shall be permitted; provided that such equipment is used in
accordance with all applicable federal, state and city laws, codes, ordinances,
rules and regulations). The Premises shall not be used for lodging or
sleeping purposes. If the Premises becomes infested with vermin or pests,
Tenant, at its sole cost and expense, shall have such pests exterminated by
Landlord approved exterminators.


 


11.                            All tenants will refer any
contractors, contractor’s representatives and installation technicians
rendering any services to them to Landlord for Landlord’s supervision and
approval prior to commencement of any work.


 


12.                            Tenant shall not install any
radio or television antenna, loudspeaker or other device on the roof or
exterior of the Building. Tenant shall not interfere with any radio or
television broadcast or reception from within the Building.


 


13.                            The freight elevator shall
be available for use by Tenant, subject to reasonable scheduling by Landlord.
No furniture, freight, equipment, materials, supplies, packages, merchandise or
other property shall be received in the Building or carried up or down the
elevators, except between such hours and in such elevators designated by
Landlord. Any deliveries, removals or relocations of large, bulky or voluminous
items, such as furniture, office machinery and equipment, etc., can only
be made after obtaining approval from the Landlord, which approval shall not be
unreasonably withheld or delayed. The tenants assume all risks and shall
indemnify and hold Landlord harmless against claims of damage to articles moved
and injury to persons engaged in such movement, including without limitation damages
and injury to equipment, property and personnel of Landlord resulting from acts
in connection with such delivery, removal or relocation. All damages done to
the Building by the installation or removal of any tenant’s property or caused
by any tenant’s property within the Building, shall be repaired at the expense
of such tenant.


 


14.                            Tenant shall not place a
load upon any floor of the Premises which exceeds the load per square foot the
floor was  designed to carry, or any load allowed by law.
Landlord shall have the right to prescribe the weight, size and position of
safes, any library or other shelving, furniture or other heavy equipment
brought into the Building, and Tenant shall bear the reasonable fees of any
structural engineer hired by Landlord in connection therewith. Safes or other
heavy objects shall, if considered necessary to Landlord, stand on wood strips
of such thickness as determined by Landlord to be necessary to properly
distribute the weight thereof. Landlord shall not be responsible for loss of or
damage to any such safes or other heavy objects for any cause; all damages done
to the Building by moving or maintaining of any such items shall be repaired at
the expense of Tenant.


 


15.                            No machinery other than the
kind considered usual and standard for general office use shall be operated by
any tenant in its leased area without the prior written consent of Landlord.
Business machines or mechanical equipment of Tenant, which causes noise or
vibration that may be transmitted to the structure of the Building or any space
therein to such a degree objectionable to Landlord or any other tenants or
occupants of the Building, shall be placed and maintained by Tenant, at Tenant’s
expense, on vibration eliminators or other devices sufficient to eliminate such
noise or vibration. Tenant shall bear the reasonable fees of any acoustical or
structural engineer hired by Landlord in connection therewith.


 


B-2

















 


16.                            Tenant shall not mark, drive
nails or screws, or drill into the partitions, ceilings or floors of the
Premises or in any way deface the Premises except for normal and customary
interior decorations.


 


17.                            Tenant shall not install,
maintain or operate on the Premises any vending machine without the prior
written consent of Landlord.


 


18.                            No animals (other than those
assisting the handicapped), including reptiles, birds, fish (or aquariums), or
other non-human, non-plant living things or organic Christmas decor of any kind
shall be allowed in the Building.


 


19.                            There shall not be used in
the Building any hand trucks, except those equipped with rubber tires and side
guards, or any other material handling equipment, except as approved in advance
in writing by Landlord. No scooters, roller skates, roller blades, bicycles,
and no other vehicles of any kind shall be brought into and operated within the
Building. Bicycles and vehicles may only be parked in areas designated for such
purpose.


 


20.                            Tenant shall store all of
its trash and garbage within the interior of the Premises. No materials shall
be placed in the Building’s trash boxes or receptacles if such material is of
such a nature that it may not be disposed of in the ordinary and customary
manner, or if such an act would violate any law or ordinance governing such
removal and disposal.


 


21.                            Canvassing, soliciting,
distributing of handbills or any other written material, and peddling in the
Building are prohibited; Tenant shall cooperate to prevent such activity.
Tenant shall not engage in office-to-office solicitation of business from other
tenants or occupants of the Building.


 


22.                            Landlord reserves the right
to exclude or to expel from the Building any person who, in Landlord’s
judgment, is intoxicated or under the influence of liquor or drugs, or who is
in violation of any of these Rules and Regulations.


 


23.                            Tenant shall comply with all
safety, fire protection and evacuation procedures and regulations established
by Landlord or any governmental agency. No firearms or weapons of any kind are
allowed within the Premises or the Building.


 


24.                            No tenant shall invite to
its premises, or permit the visit of, persons in such numbers or under such
conditions to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators, and other facilities of the
Building by other tenants.


 


25.                            Landlord will not be
responsible for lost or stolen personal property, money or jewelry from any
tenant’s Premises or public or common areas regardless of whether such loss
occurs when the area is locked against entry or not, except as may be otherwise
set forth in the Lease. Tenant assumes any and all responsibility for
protecting the Premises from theft, robbery and pilferage by taking necessary
steps including, but not limited to, keeping doors locked and other means of
entry to the Premises closed.


 


26.                            Any additional or special
requirements of Tenant shall be attended to only upon application to the office
of the Building by an authorized individual. Employees of Landlord shall not
perform any work or do anything outside of the regular duties unless under
special instructions from Landlord. No such employees shall admit any person
(Tenant or otherwise) to any office without specific instructions from
Landlord.


 


27.                            Landlord may waive any of these
Rules and Regulations for the benefit of any particular tenant or occupant
of the Building in any particular instance; however, no such waiver by Landlord
shall be construed as a waiver of these Rules and Regulations with respect
to any other tenant or occupant thereof. Any revised rules and
regulations, when made and written notice thereof is given to a tenant, shall
be binding upon it in like manner as if originally herein prescribed.


 


These Rules and Regulations including the
addendum attached hereto are provided as a general guideline. Please refer to
your Lease Agreement for information specific to your tenancy.


 


B-3














 


ADDENDUM TO BUILDING RULES AND REGULATIONS


 


THIS ADDENDUM is attached to and made part of the Rules and
Regulations for the Building known as Austin Centre, Austin, Texas.


 


1.                                       Tenant shall
provide Landlord with a list of all personnel authorized to enter the Building
after hours (7:00 p.m. to 7:00 a.m., Monday through Friday and 24
hours a day on weekends and holidays).


 


2.                                       Anyone entering
or leaving the Building after hours must sign their name, company, suite number
and time of entry into the Building Register, and shall also show proper
identification if requested.


 


3.                                       Any air
conditioning/heating required during the periods of 6:00 p.m. to 7:00 a.m.
Monday through Friday, noon to midnight Saturday (unless otherwise stipulated
in the Lease), and 24 hours a day Sundays and holidays, shall be accessed by
Tenant using the Building’s computerized system for such overtime services.
Tenant shall be charged the prevailing hourly rate for such additional heating
or air conditioning.


 


4.                                       Any furniture
or equipment removed from the Building after hours must be listed on the
Building Register. Description and serial numbers should be included. Pass out
orders on Tenant’s stationary must be surrendered to the security officer in
the lobby when any articles are being removed from the Building.


 


5.                                       Use of the
freight elevator for furniture is limited to after hours on weekdays and on
weekends and must be coordinated with the Property Management and Building
Security to give better assistance.


 


6.                                       Names to be
placed on or removed from the Directory Board in the lobby of the Building
should be furnished to the Property Management Office in writing on Tenant’s
letterhead.


 


7.                                       Tenant shall
not use the Premises or permit the Premises to be used for photographic or
multi-graph reproductions, except in connection with its own business.


 


8.                                       Tenant shall
place solid pads under all rolling chairs such as may be used at desks or
tables. Any damages caused to carpet by not having it shall be repaired or
replaced at the expense of the Tenant.


 


9.                                       Tenant will not
bring into, or keep about, the premises any bicycles. Bicycles and vehicles may
only be parked in areas designated for such purposes.


 


10.                                 Smoking is prohibited in
Austin Centre, including all interior common areas.


 


B-4

















 


EXHIBIT C




COMMENCEMENT LETTER


 


Re:          Office Lease dated July    ,
2003 (the “Lease”)  between
CRESCENT REAL ESTATE FUNDING VIII, L.P. (“Landlord”)  and NETSPEND CORPORATION (“Tenant”)  for the
Premises, the Rentable Square Footage of which is 22,674 square feet, located
on the 12th floor of the Building. Unless otherwise
specified, all capitalized terms used herein shall have the same meanings as in
the Lease.


 


Landlord and Tenant agree that:


 


1.                                       Landlord has
fully completed all Landlord Work required under the terms of the Lease, if
any.


 


2.                                       Tenant has
accepted possession of the Premises. The Premises are usable by Tenant as
intended; Landlord has no further obligation to perform any Landlord Work or
other construction, and Tenant acknowledges that both the Building and the
Premises are satisfactory in all respects.


 


3.                                       The
Commencement Date of the Lease is                               ,
2003.


 


4.                                       The Expiration
Date of the Lease is the last day of                             ,
2009.


 


5.                                       Tenant’s
Address at the Premises after the Commencement Date is:


 


NetSpend Corporation


701 Brazos, Suite 1200


Austin, Texas 78701


Attention: Steve Reesing,
CFO


Phone: (512) 473-2020 ext
225


Fax:


 


All other terms and conditions of the Lease are
ratified and acknowledged to be unchanged.


 


EXECUTED as of
                                  ,
2003.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  CRESCENT REAL ESTATE
  FUNDING VIII, L.P., 

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CRE Management VIII, LLC, a Delaware 

  limited liability company, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Crescent Real Estate Equities, Ltd.,

  
	
   

  	
   

  	
   

  	
  a Delaware corporation, its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Robert H. Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Regional Vice President

  
	
   

  	
   

  	
   

  	
   

  	
  Leasing & Marketing, Houston
  Region

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NETSPEND CORPORATION, 

  
	
   

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


C-1

















 


EXHIBIT D

WORK LETTER


 


1.                                       Construction.  Landlord agrees to construct leasehold
improvements (the “Landlord
Work”)  in
a good and workmanlike manner in and upon the Premises at its sole cost and
expense so long as the cost of the Landlord Work does not exceed $45,348.00
(the “Construction
Allowance”)  in
accordance with  construction
drawings approved by both Landlord and Tenant (“Working Drawings”).  The cost of all space
planning and construction drawings shall be included in the cost of the
Landlord Work and may be paid out of the Construction Allowance, to the extent
sufficient funds are available for such purpose. Landlord agrees to seek 3
competitive bids from general contractors from Landlord’s approved bidding
list, at least one of which shall be Trimbuilt. Only subcontractors from
Landlord’s approved subcontractor list shall be allowed to work on the mechanical,
electrical and plumbing components of the Building. Tenant shall be invited to
the bid opening and allowed to participate in the selection of the successful
bidder; provided Landlord shall make the final selection of the general
contractor. Landlord will employ an experienced, licensed contractor to
construct the Landlord Work and will require in the construction contract that
such contractor construct the Landlord Work in a good and workmanlike manner
and in compliance with all Applicable Laws; provided, however, Tenant will be
solely responsible for determining whether or not Tenant is a public
accommodation under The Americans with Disabilities Act and whether or not the
Working Drawings comply with such laws and the regulations thereunder. The parties
acknowledge that Landlord is not an architect or engineer, and that the Work
will be designed and performed by independent architects, engineers and
contractors. Accordingly, Landlord does not guarantee or warrant that the plans
or Working Drawings will be free from errors or omissions, nor that the Work
will be free from defects, and Landlord will have no liability therefor. In the
event of such errors, omissions, or defects, Landlord will use reasonable
efforts to cooperate in any action Tenant desires to bring against such
parties. Any balance of the Construction Allowance remaining after completion
of the Landlord Work may be utilized by tenant to offset any moving costs
incurred by Tenant.


 


2.                                       Costs.  Costs to be incurred by Landlord in excess of
the Construction Allowance shall be paid by Tenant to Landlord promptly upon
demand prior to Landlord’s commencing construction. Change orders requested by
Tenant and approved by Landlord after construction has commenced and which
increase the cost of construction shall be paid by Tenant to Landlord promptly
upon demand. Tenant further agrees to pay Landlord a fee of 5% of the contract
price for the Work (the “Management
Fee”) as compensation for Landlord’s supervision of the
construction and installation of the Work on the commencement of construction
thereof. Landlord and Tenant agree that the Management Fee may be paid out of
the Construction Allowance to the extent funds are available for such purpose.
Tenant agrees that in the event of default of payment thereof, Landlord (in
addition to all other remedies) shall have the same rights as in the event of
default of payment of rent under the Lease.


 


3.                                       Condition of
Premises.  Except as
provided in this Work Letter, Tenant accepts the Premises in  its current condition,
i.e., “AS IS” and
“WITH ALL FAULTS” and acknowledges
that Landlord makes no representations or warranties with respect thereto.


 


D-1

















 


EXHIBIT E




PARKING AGREEMENT


 


This Parking Agreement (the “Agreement”)  is attached as an Exhibit to
an Office Lease (the “Lease”)  between CRESCENT
REAL ESTATE FUNDING VIII, L.P., as Landlord, and NETSPEND CORPORATION, as
Tenant, for the Premises, the Rentable Square Footage of which is 22,674 square
feet, located on the 12th floor of
the Building. Unless otherwise specified, all capitalized terms used in this
Agreement shall have the same meanings as in the Lease.


 


1.                                       As of the
Commencement Date of the Lease, Tenant shall take and pay for 25 permits
allowing access to unreserved parking spaces and 5 permits allowing access to
reserved parking spaces in the Austin Centre Garage and 40 permits allowing
access to unreserved parking spaces in the St. David’s Garage (each a “Parking Permit”).  Landlord
shall provide 80 access cards to Tenant allowing access to parking spaces
located in the St. David’s Garage and provided to Tenant pursuant to this
Agreement. During the Term (including any renewal or extension), Tenant shall
pay Landlord’s quoted monthly contract rate (as set from time to time) for each Parking Permit, plus
any taxes thereon. Tenant’s current monthly contract rate is $85.00 (plus tax)
for each unreserved Parking Permit and for each reserved Parking Permit. As
used herein, the term “St.
David’s Garage” shall refer to the parking facility located at
304 East 7th Street, Austin, Texas owned by St. David’s
Episcopal Church. The term “Austin
Centre Garage” shall refer to the parking facility attached to
the Building. The Austin Centre Garage and St. David’s Garage are collectively
referred to herein as the “Parking
Facilities.”


 


2.                                       Tenant shall at
all times comply with all Laws respecting the use of the Parking Facilities.
Landlord reserves the right to adopt, modify, and enforce reasonable rules and
regulations governing the use of the Parking Facilities or the Property, from time
to time, including any key-card, sticker, or other identification or entrance
systems and hours of operations. Landlord may refuse to permit any person who
violates such rules and regulations to park in the Parking Facilities, and
any violation of the rules and regulations shall subject the automobile in
question to removal from the Parking Facilities.


 


3.                                       Tenant may
validate visitor parking by such method or methods as Landlord may approve, at
the validation rate (as set from time to time) generally applicable to visitor
parking. Unless specified to the contrary above, the parking spaces for the
parking permits provided hereunder shall be provided on an unreserved, “first-come,
first-served” basis. Tenant acknowledges that Landlord has arranged or may
arrange for the Parking Facilities to be operated by an independent contractor,
un-affiliated with Landlord. In such event, Tenant acknowledges that Landlord
shall have no liability for claims arising through acts or omissions of such
independent contractor. Landlord shall have no liability whatsoever for any
damage to vehicles or any other items located in or about the Parking
Facilities, and in all events, Tenant agrees to seek recovery from its
insurance carrier and to require Tenant’s employees to seek recovery from their
respective insurance carriers for payment of any property damage sustained in
connection with any use of the Parking Facilities. Landlord reserves the right
to assign specific parking spaces, and to reserve parking spaces for visitors,
small cars, handicapped persons and for other tenants, guests of tenants or
other parties, with assigned and/or reserved spaces. Such reserved spaces may
be relocated as determined by Landlord from time to time, and Tenant and
persons designated by Tenant hereunder shall not park in any such assigned or
reserved parking spaces. Landlord also reserves the right to close all or any
portion of the Parking Facilities, at its discretion or if required by
casualty, strike, condemnation, repair, alteration, act of God, Laws, or other
reason beyond Landlord’s reasonable control; provided, however, that except for
matters beyond Landlord’s reasonable control, any such closure shall be
temporary in nature. If Tenant’s use of any parking permit is precluded for any
reason, Tenant’s sole remedy for any period during which Tenant’s use of any
parking permit is precluded shall be abatement of parking charges for such
precluded permits. Tenant shall not assign its rights under this Agreement
except in connection with a Permitted Transfer.


 


4.                                       Tenant’s
failure to pay for any of the above-referenced parking permits or to otherwise
comply with any provision of this
Agreement shall constitute an event of default under the Lease. In addition to
any rights or remedies available to Landlord in the event of a Monetary


 


E-1

















 


Default under the Lease, Landlord shall have the
right to cancel this Agreement and/or remove any vehicles from the Parking
Facilities.


 


E-2

















 


EXHIBIT F




OPTION
TO EXTEND


 


1.                                       Renewal
Period. Tenant may, at its option, extend the term of the
Lease for one (1) renewal period of 60 months (the “Renewal Period”) by
written notice to Landlord (the “Renewal
Notice”)  given no earlier than 13 months
nor later than 9 months prior to the expiration of the previous term of the
Lease, provided that at the time of such notice and at the commencement of such
Renewal Period, (i) Tenant remains in occupancy of the Premises, and (ii) no
uncured Event of Default exists under the Lease (and no condition exists which,
with the passage of time and/or giving of notice, would be an Event of
Default). Such Renewal Period shall commence upon the expiration date of the
previous term of the Lease. The Base Rent payable during the Renewal Period
shall be the Market Rental Rate (defined below) for the Premises, including any
projected rate increases over the applicable Renewal Period. Except as provided
in this Exhibit F, all terms and
conditions of the Lease shall continue to apply during the Renewal Period.


 


2.                                       Acceptance. Within 20
days of the Renewal Notice, Landlord shall notify Tenant of the Base Rent for
such Renewal Period (the “Rental
Notice”).  Tenant may accept the terms set
forth in the Rental Notice by written notice (the “Acceptance Notice”) to Landlord given within 15 days after receipt of the Rental
Notice. If Tenant timely delivers its Acceptance Notice, Tenant shall, within 15
days after receipt, execute a lease amendment confirming the Base Rent and
other terms applicable during the Renewal Period. If Tenant fails timely (i) to
deliver its Acceptance Notice or (ii) to execute and return the required
lease amendment, then this Option to Extend shall automatically expire and be
of no further force or effect. In addition, this Option to Extend shall
terminate upon the subletting of all or any part of the Premises.


 


3.                                       Market Rental Rate.  The “Market Rental
Rate”  is the rate (or rates) a
willing tenant would pay and a willing landlord would accept for a comparable
transaction (e.g., renewal, expansion, relocation, etc., as applicable, in
comparable space and in a comparable building located in the Austin Central
Business District) as of the commencement date of the applicable term, neither
being under any compulsion to lease and both having reasonable knowledge of the
relevant facts, considering the highest and most profitable use if offered for
lease in the open market with a reasonable period of time in which to
consummate a transaction. In calculating the Market Rental Rate, all relevant
factors will be taken into account, including the location and quality of the
Building, lease term, amenities of the Building, condition of the space and any
concessions and allowances commonly being offered by Landlord for comparable
transactions in the Building. The parties agree that the best evidence of the
Market Rental Rate will be the rate then charged for comparable transaction in
the Building.


 


4.                                       Condition of Premises.  Tenant  shall accept
the Premises at the inception of the Renewal Term and each of the subsequent
Renewal Periods in its “AS IS”
condition, and Landlord shall have no obligation to construct any
improvements or make any changes within the Premises in connection with this
Lease or Tenant’s exercise of this Option to Extend, except as otherwise agreed
to in writing by Landlord and Tenant.


 


F-1

















 


EXHIBIT G




PREFERENTIAL RIGHT TO LEASE


 


1.                                      Preferential Right To Lease. So long as
twenty-four months remain in the initial Term, Tenant shall have a Preferential
Right to Lease all or any portion of the 13th floor of the
Building, but in no event less than 11,337 Rentable Square Feet, as shown on Exhibit “A” to the Lease (the “Preferential Space”),  at such time as such
space becomes Available (as defined below) for direct lease to a new tenant
(whether or not a, bona fide offer has been made); provided no uncured event of
default exists under the Lease (and no
condition exists which, with the passage  of
time and/or giving of notice, would be an event of default) and Tenant remains
in occupancy of the entire Premises. The Preferential Space shall be deemed “Available” at such
time as Landlord decides to offer the Preferential Space for lease and such
space is no longer any of the following: (i) leased or occupied; (ii) assigned
or subleased by the then-current tenant of the space; (iii) re-leased by
the then-current tenant of the space by renewal, extension or renegotiation
(whether agreed to prior to or after the Date of Lease); or (iv) subject
to an expansion option, right of first refusal, preferential right or similar
obligation existing under any other tenant leases for the Property as of the
Effective Date. This Preferential Right to Lease shall terminate upon any
Transfer as defined in the Lease. The Preferential Space shall be reduced to
the extent Tenant leases any portion thereof, whether or not pursuant to a
formal option provision in the Lease.


 


2.                                      Acceptance. Prior to
leasing the Preferential Space to a  new tenant, Landlord shall first
offer such space in writing to Tenant specifying the amount and location of
such space, the anticipated date of tender of possession, the rental rate based
on the Market Rental Rate as of the anticipated Preferential Space Commencement
Date (as defined below), including any projected rate increases over the
applicable term, and other applicable terms (the “Preferential Rental Notice”).  Tenant shall have 5
business days within which to accept or reject such offer. If Tenant accepts
Landlord’s offer, Tenant shall, within 15 days after Landlord’s written request, execute and return a lease amendment
adding the Preferential Space to the Premises for all purposes under the Lease
(including any extensions or renewals) and confirming the Base Rent and other
applicable terms specified in the Preferential Rental Notice.


 


3.                                      Notice. Such lease amendment
may, if applicable, contain a construction agreement or work letter
using Landlord’s then-current form setting forth the schedule and other terms
and obligations of the parties regarding the construction of any leasehold
improvements in the Preferential Space. If Tenant rejects such offer or fails
timely to (i) accept such offer or (ii) execute and return the
required lease amendment, then this Preferential Right to Lease shall lapse and
be of no further force and effect. In such event, Landlord shall be relieved of
any future obligations hereunder and may thereafter lease all or part of the
Preferential Space to any party without further notice or obligation to Tenant.


 


4.                                      Tender of Possession.
The Preferential Space shall be leased for the period commencing upon Landlord’s
tender of possession of the Preferential Space in accordance with Landlord’s
offer and this Exhibit (the “Preferential Space Commencement Date”) and continuing through the
expiration or earlier termination of the Term, as it may be extended or
renewed. Landlord shall not be liable
for any delay or failure to tender possession of the Preferential Space by the
anticipated tender date for any reason, including by reason of any
holdover tenant or occupant, nor shall such failure invalidate the Lease or
extend the Term.


 


5.                                      Condition of Premises.
The Preferential Space shall be tendered in an “as-is” condition.
However, all leasehold improvements shall be constructed in the Preferential
Space in accordance with the construction agreement (if any) attached to the
applicable lease amendment. Any allowances shall be prorated for any delays in
the Preferential Space Commencement Date, taking into account the economic
assumptions underlying the terms in the Preferential Rental Notice.


 


6.                                      Market Rental Rate.
The  “Market
Rental Rate” is the rate (or rates) a willing
tenant would pay and a willing landlord would accept for a comparable
transaction (e.g. renewal, expansion, relocation, etc., as applicable, in
comparable space and in a comparable building located in the Austin Central
Business District) as of the commencement date of the applicable term, neither
being under any compulsion to lease and both having reasonable knowledge of the
relevant facts, considering the highest and most profitable use if offered for
lease in the open


 


G-1

















 


market with a reasonable period of time in which to
consummate a transaction. In calculating the Market Rental Rate, all relevant
factors will be taken into account, including the location and quality of the
Building, lease term, amenities of the Property, condition of the space and any
concessions and allowances commonly being offered by Landlord for comparable
transactions in the Property. The parties agree that the best evidence of the
Market Rental Rate will be the rate then charged for comparable transactions in
the Property.


 


G-2

















 


EXHIBIT H




STORAGE SPACE RENTAL AGREEMENT


 


THIS STORAGE SPACE RENTAL
AGREEMENT (this  “Agreement”) is entered into  as of
the Reference Date by and between Landlord and Tenant, with reference to the
following:


 


1.                                       General Terms.


 


A.                                    Reference Date:                           , 200  


 


B.                                    Landlord:                CRESCENT REAL ESTATE FUNDING VIII, L.P., 


a Delaware limited partnership


 


C.                                    Tenant:                             NETSPEND CORPORATION,


a Delaware corporation


 


D.                                    Building:                   Austin Centre, 701 Brazos, Austin, Texas 78701


 


E.                                    Primary Lease:                               Office Lease dated July
          , 2003


 


F.                                    Primary Premises: Approximately
22,674 Rentable Square Feet located on the thirteenth (13th) floor of the Building.


 


G.                                    Storage Space: Approximately                   
Rentable Square Feet located on the                         
(      ) floor of the Building more particularly
described on Exhibit “A”
attached hereto.


 


H.                                   Storage Space Term:                                            


 


I.                                        Storage Space Rental: Annual rate of $12.00 per Rentable Square Foot


 


J.                                       Minimum Termination Period:                                             


 


2.                                       Recitals.


 


A.                                    Landlord
and Tenant, or their respective predecessors-in-interest, entered into the
Primary Lease, as it may have been amended from time to time, for the Primary
Premises located in the Building.


 


B.                                    In
connection with its entering into the Primary Lease, Tenant desires to lease
from Landlord certain Storage Space in the Building on the terms set forth
below.


 


3.                                       Storage Space. For good and
valuable consideration, the receipt and sufficiency of which are
acknowledged, Landlord rents to Tenant,
and Tenant rents from Landlord, the Storage Space for the Storage Space Term.


 


4.                                       Termination. Either party may
terminate this Agreement upon written notice to the other giving no less notice
than the Minimum Termination Period Further, this Agreement shall terminate
simultaneously upon the expiration or earlier termination of the Primary Lease.


 


5.                                       Rental. As consideration for
Tenant’s use of the Storage Space, Tenant agrees to pay to Landlord, in advance without deduction or setoff,
and on the first day of the month, the Storage Space Rental. Such payments
shall be made in the same manner as Tenant’s rental payments are made under the
Primary Lease. If the Storage Space Term begins or ends on a day other than the
first or last day of a month, as applicable, the rental for such period shall
be prorated on a per diem basis. Rental for the first calendar month or portion
thereof shall be paid concurrently with the execution of this Agreement.


 


6.                                       Use. Tenant shall
use the Storage Space only for the storage of Tenant’s furniture, equipment, files and supplies, and shall use the Storage
Space in a careful, safe and proper manner. Tenant shall pay Landlord on
demand for any damage to the Storage Space caused by misuse or abuse thereof by
Tenant, its agents or employees, or any other person entering upon the Storage
Space under express or implied invitation of Tenant. Notwithstanding anything herein to the contrary, Tenant
shall not utilize or permit the Storage Space to be used for any


 


H-1

















 


purposes prohibited by the laws of the United States
or the State of Texas, or by the ordinances of the jurisdiction in which the
Storage Space is located. Tenant shall not commit waste, permit waste to be
committed, or permit any nuisance on or in the Storage Space.


 


7.                                       Services
to Storage Space. Tenant shall accept the Storage Space “as is, where is”. However,
Landlord agrees, during the Storage Space Term, to furnish and provide such
ingress to and egress from, the Storage Space during normal business hours for
the Building as may, in the judgment of Landlord, be reasonably required for
the use and occupancy thereof. In addition, Tenant shall be entitled to use
such lighting and, electrical facilities as then exist in the Storage Space
upon commencement of the Storage Space Term. If Tenant requires any additional
lighting or electrical facilities or services, Tenant shall request such
services from Landlord in writing prior to commencement of the Storage Space
Term and, subject to Landlord’s approval thereof, Landlord shall install such
services (including any separate metering) in the Storage Space Term at Tenant’s
expense. Promptly upon receipt of Landlord’s invoice, Tenant shall pay for all
electrical services consumed in connection with its use of the Storage Space.
Tenant agrees that Landlord shall not be liable for failure to provide any such
lighting and/or electrical services or ingress and egress during any period
when Landlord uses reasonable diligence to supply the same, it being understood
that Landlord reserves the right to temporarily discontinue lighting and/or
electric services, or such ingress or egress, at such times as may be necessary
when, by reason of accident, unavailability of employees, repairs, alterations
or improvements, or whenever by reason of strikes, walkouts, riots, acts of God,
or any other happening beyond the control of Landlord, Landlord is unable to
provide the same. Except as provided in this paragraph, Landlord shall be under
no obligation to furnish heating or air conditioning service or any other
service to the Storage Space.


 


8.                                       Condition of Storage Space. Landlord and
Tenant agree that the Storage Space will be delivered to Tenant in its “as is”
condition. Tenant agrees that its taking possession of the Storage Space shall
be conclusive evidence as against Tenant that the Storage Space was in the
condition agreed upon between Landlord and Tenant, and shall be an
acknowledgment by Tenant that it accepts the Storage Space in its then “as is”
condition, without any further improvement thereof required by Landlord.


 


9.                                       Waiver; Indemnity; Insurance. Tenant assumes
all risk and waives all claims it may have against Landlord, its managing
agent, and their respective partners, directors, officers, agents, employees,
affiliates and successors-in-interest (collectively and together with Landlord,
the “Landlord Parties”)  for damage to or
loss of property (including theft) or injury to persons within or about the
Storage Space, except for such damage, loss or injury caused by the gross
negligence of Landlord or Landlord’s managing agent. Such assumption and waiver
shall include an obligation on Tenant’s part to indemnify, defend and hold
harmless the Landlord Parties from and against all costs, expenses, claims and
liabilities arising from such damage, loss or injury, including attorneys’ fees
and costs, which obligation shall survive the expiration or earlier termination
of this Agreement. Further, and notwithstanding the exclusion set forth in the
first sentence of this paragraph, Tenant releases the Landlord Parties from all
liability for damage to Tenant’s personal property for which Tenant is
reimbursed from the proceeds of its casualty insurance policies. Tenant agrees
to cause its casualty insurance policies to (a) insure the full
replacement of the personal property stored in the Storage Space; (b) include
a provision or endorsement waiving the insurer’s right of subrogation against
Landlord and Landlord’s managing agent; (c) insure against any property
damage or bodily or personal injury occurring in or around the Storage Space to
the same extent as if such damage or injury arose from an act or omission
occurring in or upon the Primary Premises; and (d) provide contractual
liability coverage insuring Tenant for the
performance of its indemnity obligations under this Agreement. Tenant
shall, upon Landlord’s request, provide Landlord with evidence of the insurance
coverage required under this paragraph.


 


10.                                 Hazardous Materials.
Tenant shall not cause or permit the storage, use, generation
or disposition of any Hazardous Materials (as hereinafter defined) in the
Storage Space without the prior written consent of Landlord. Tenant agrees to
indemnify, defend and hold harmless the Landlord Parties from all fines, suits,
procedures, claims and actions of every kind, and all costs associated
therewith (including attorneys’ and consultants’ fees) arising out of or in any
way connected with any deposit, spill, discharge or other release of Hazardous
Materials that occurs during the Storage Space Term at or from the Storage
Space, or which arises at any time from Tenant’s use or occupancy of the
Storage Space. Tenant’s obligations and liabilities under this


 


H-2














 


paragraph shall survive the expiration or
termination of this Agreement. For purposes of this Agreement, the term “Hazardous Materials” means any  explosives,
radioactive materials or other hazardous substances which are governed by any
federal, state or local statute, law, ordinance, code, rule, regulation or
decree applicable to the Building.


 


11.                               Landlord’s
Right of Entry. Landlord and its designated management, marketing
and construction firms, and their respective employees, contractors and agents,
shall have the right to enter the Storage Space at any time in order to
inspect, repair and maintain such space.


 


12.                               Right
to Relocate. At any time after the execution of this Agreement
and on ten (10) days prior written notice, Landlord may substitute for the
Storage Space other storage space in the Building (the “New Storage Space”),  in which event the
New Storage Space shall be deemed to be the Storage Space for all purposes
hereunder.


 


13.                               Primary
Lease Applicability. Except to the extent
specifically provided to the contrary in this Agreement, Tenant’s use and
occupancy of the Storage Space pursuant to this Agreement shall be subject to
and strictly governed by the terms and conditions set forth in the Primary
Lease, specifically including without limitation Landlord’s Rules and
Regulations regarding load-bearing capacities in the Building, but excluding
any provision in the Primary Lease regarding Tenant’s payment of operating
expense escalations.


 


[SIGNATURES
ON FOLLOWING PAGE]


 


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EXECUTED by Landlord and Tenant on the Reference Date.


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CRESCENT REAL ESTATE
  FUNDING VIII, L.P.,

  
	
   

  	
   

  	
  a Delaware
  limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  CRE Management
  VIII, LLC, a Delaware

  
	
   

  	
   

  	
   

  	
  limited liability
  company, its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Crescent Real
  Estate Equities, Ltd.,

  
	
   

  	
   

  	
   

  	
   

  	
  a Delaware
  corporation, its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Robert H.
  Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Regional Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Leasing &
  Marketing, Houston Region

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NETSPEND CORPORATION, 

  a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


H-4

















 


EXHIBIT I




LANDLORD’S
LIEN SUBORDINATION


 


This LANDLORD’S LIEN
SUBORDINATION (this “Subordination”)  is made as of this           
day of               ,
2003, by and among Landlord, Tenant, and Lender. The following words shall have
the following meanings when used herein:


 


1.                                       General
Terms.


 


For purposes of this
Agreement, the following terms shall apply:


 


A.                                    “Landlord”:                          Crescent Real
Estate Funding VIII, L.P., a Delaware limited partnership


 


B.                                    “Tenant”:                                     NetSpend
Corporation, a Delaware corporation


 


C.                                    “Lender”:                                       



 


D.                                    “Collateral”:                     The property of
Tenant described on Schedule 1 attached hereto.


 


E.                                      “Lease”:                                              That certain
Lease, dated July         , 2003, by
and between Landlord and Tenant, as it may have heretofore been amended or
modified.


 


F.                                      “Premises”:                             Approximately
22,674 Rentable Square Feet known as Suite 1200 and located on the 12th
floor of the building commonly known as Austin Centre, located at 701 Brazos,
Austin, Texas 78701.


 


G.                                    “Loan”:                                                 That certain Loan, in the
principal amount of $            ,
from Lender to Tenant, which is secured by the Collateral.


 


H.                                    “Loan Amount”:                          $                          .


 


I.                                         “Security Documents”:                                    Those certain
documents, executed by Tenant in connection with the Loan, granting Lender a
security interest in the Collateral to secure the payment of the Loan Amount.


 


2.                                       Subordination by Landlord.


 


Landlord hereby subordinates
its constitutional, statutory and contractual landlord’s liens and security
interests in or to the Collateral to the liens and security interests in or to
the Collateral held by Lender up to the Loan Amount; provided, however the
foregoing subordination is not intended and shall not be construed to authorize
or allow Tenant or Lender, to remove from the Premises any equipment or
fixtures located in the Premises which by the express terms of the Lease are to
become a part of and be left as a part of the Premises upon the expiration or
earlier termination of the Lease.


 


3.                                       Liens
in Excess of the Loan Amount.


 


Landlord and Lender hereby
agree that any lien now or hereafter granted in the Security Documents in
excess of the Loan Amount shall be subject and subordinate to the
constitutional, statutory, and/or contractual landlord’s lien of Landlord.
However, any lien now or hereafter granted in the Security Documents up to the
Loan Amount shall be prior and superior to any such lien of Landlord.


 


4.                                       Notification of Landlord Upon Default.


 


Lender hereby covenants and
agrees to give Landlord written notice of any default by Tenant under the terms
of the Loan or the Security Documents, simultaneous with the giving of notice
of such default to Tenant. Lender hereby agrees that Landlord shall have the
right, but not the obligation, within 15 days after receipt of such notice of
default to correct or remedy, or cause to be corrected or remedied, each such
default before Lender may take action under the Loan or the Security Documents
by reason of such default.


 


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5.                                       Notices.


 


All notices, demands,
payments and other communications required to be given or made hereunder shall
be in writing and shall be deemed duly given and made if hand delivered or sent
by certified mail, return receipt requested, first class, postage prepaid and
shall be deemed delivered and received upon the date of hand delivery or two (2) days
after being mailed, to the respective parties at the addresses set forth below,
or to such other address as the applicable party shall provide to the other
parties in writing:


 


	
  Landlord:

  	
  Crescent Real Estate Equities, Ltd.

  
	
   

  	
  Post Oak Central

  
	
   

  	
  2000 Post Oak Blvd., Suite 1950

  
	
   

  	
  Houston, Texas 77056

  
	
   

  	
  Attention: Property Management

  
	
   

  	
   

  
	
  with copies to: Crescent Real Estate
  Equities, Ltd. 

  
	
   

  	
  777 Main Street

  
	
   

  	
  Suite 2100

  
	
   

  	
  Fort Worth, Texas 76102

  
	
   

  	
  Attention: Legal Department

  
	
   

  	
   

  
	
  AND

  	
   

  
	
   

  	
   

  
	
   

  	
  Jackson Walker L.L.P.

  
	
   

  	
  Attn: Jerry Webberman

  
	
   

  	
  100 Congress, Suite 1100

  
	
   

  	
  Austin, Texas 78701

  
	
   

  	
   

  
	
  Tenant:

  	
  NetSpend Corporation

  
	
   

  	
  816 Congress Avenue, Suite1200

  
	
   

  	
  Austin, Texas 78701

  
	
   

  	
  Attn: Steve Reesing, CFO

  
	
   

  	
   

  
	
  Lender:

  	
   

  
	
   

  	
   

  



 


6.                                       Duty
to Remove Collateral.


 


If any of the Collateral
remains upon the Premises upon the expiration of the term of the Lease, the
termination of the Lease or Tenant’s right to possession of the Premises, or
Tenant’s abandonment of the Premises, Landlord may give the Lender written
notice (by one of the methods specified in Paragraph 5 hereof) that Landlord is
in possession of the Premises (the “Notice”). After Lender’s receipt of the
Notice, Lender agrees to use all reasonable efforts to remove the Collateral
from the Premises as soon as possible. Landlord acknowledges and agrees that
Lender will not be in breach of the agreement contained in the preceding
sentence for so long as Lender is legally prohibited from removing the
Collateral from the Premises by: (i) the commencement, by or against
Tenant, of an action pursuant to any chapter of the U.S. Bankruptcy Code; or (ii) a
temporary or permanent restraining order granted by any court of record having
jurisdiction. If Lender is unable to remove the Collateral from the Premises
within twenty (20) days after Lender’s receipt of the Notice and
notwithstanding that Lender is prohibited from doing so by causes beyond the
control of Lender (such as, but not limited to, those described in the
preceding sentence), Lender agrees to pay Rental to Landlord for that period
beginning on the twenty-first (21st) day after Lender’s receipt of the Notice
and ending on the date that Lender actually removes the Collateral from the
Premises. As used in this Subordination, the term “Rental” shall mean the sum
of $100.00 per day. If, after Landlord gains possession of the Premises,
Landlord elects to remove the Collateral from the Premises and store the
Collateral at another location (the “Storage Premises”), Lender still shall be
required to pay Rental to Landlord for the period beginning on the twenty-first
(21st) day after Lender’s receipt of the Notice and ending on the date that
Lender actually removes the Collateral from the Storage Premises unless Lender
removes the Collateral from the Storage Premises within twenty


 


I-2

















 


(20) days after Lender’s receipt of the Notice. If
Landlord removes the Collateral from the Premises, whether by authority granted
in this Subordination, the Lease, by law, or in equity, Landlord shall not be
liable for any damage to or loss of the Collateral. Notwithstanding anything to
the contrary contained in this Subordination, if Lender fails, for any reason,
to remove the Collateral within sixty (60) days after Lender’s receipt of the
Notice, then, unless Landlord notifies Lender to the contrary prior to the
expiration of such sixty (60) day period, this Subordination shall
automatically terminate and Landlord’s liens and security interests shall be
superior and prior to the liens and security interests of Lender in and to the
Collateral, and Lender shall have no further right to remove the Collateral
without Landlord’s prior written consent.


 


7.                                       Removal  of Collateral.


 


Lender shall be permitted to
enter the Premises and remove the Collateral only upon at least three (3) business
days’ prior written notice to Landlord and accompanied by or under the
supervision of Landlord. If Lender removes the Collateral from the Premises or
from the Storage Premises whether pursuant to Paragraph 6 above or pursuant to
any right exercised by Lender to take possession of the Collateral under the
Security Documents, Lender agrees to: (i) promptly pay all reasonable
costs to repair all damage to the Premises or the Storage Premises arising or
resulting from such removal; (ii) promptly pay all claims arising or
resulting from such removal, including, without limitation, claims for payment
by the parties performing such removal or repairs required as a result of such
removal and claims involving bodily injury, death or property damage; and (iii) indemnify,
defend, and hold Landlord harmless from and against claims by or through Tenant
arising or resulting from such removal. TENANT HEREBY COVENANTS AND AGREES TO
WAIVE ANY CLAIMS AGAINST LANDLORD ARISING FROM LENDER’S REMOVAL OF THE
COLLATERAL AND FURTHER AGREES TO PURSUE ANY CLAIMS ARISING FROM SUCH COLLATERAL
SOLELY AGAINST LENDER.


 


8.                                       Processing Fee.


 


Tenant shall pay Landlord a
processing fee of $500.00 to cover Landlord’s costs associated with the
negotiation, preparation and implementation of this Subordination. The
processing fee shall be due and payable within ten (10) days after
Landlord’s invoice therefor.


 


9.                                       Binding Effect.


 


The terms, conditions and
covenants contained in this Subordination shall apply to, inure to the benefit
of, and be binding upon the parties hereto and their respective heirs,
devisees, personal representatives, successors and assigns.


 


[THE
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]


 


I-3

















 


EXECUTED as of the date
first written above.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CRESCENT REAL ESTATE FUNDING VIII, L.P.,

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CRE Management VIII, LLC,

  
	
   

  	
   

  	
  a Delaware limited liability company,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Crescent Real Estate Equities, Ltd.,

  
	
   

  	
   

  	
   

  	
  a Delaware corporation, its manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Robert H. Boykin, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Regional Vice President

  
	
   

  	
   

  	
   

  	
   

  	
  Leasing & Marketing, Houston Region

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NETSPEND
  CORPORATION, 

  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                            ,

  
	
   

  	
  a

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


I-4