exv10w1



 





Exhibit 10.1




LEASE




BY AND BETWEEN




VALWOOD CENTREPORT, LP,

A TEXAS LIMITED PARTNERSHIP,




AS LANDLORD




AND




VIEWCAST.COM,
INC.,
A DELAWARE CORPORATION,




AS TENANT




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	1.
	 	USE AND RESTRICTIONS ON USE	 	 	1	 
	 
	 	 	 	 	 	 
	2.
	 	TERM	 	 	2	 
	 
	 	 	 	 	 	 
	3.
	 	RENT	 	 	2	 
	 
	 	 	 	 	 	 
	4.
	 	RENT ADJUSTMENTS	 	 	2	 
	 
	 	 	 	 	 	 
	5.
	 	SECURITY DEPOSIT	 	 	5	 
	 
	 	 	 	 	 	 
	6.
	 	ALTERATIONS	 	 	5	 
	 
	 	 	 	 	 	 
	7.
	 	REPAIR	 	 	6	 
	 
	 	 	 	 	 	 
	8.
	 	LIENS	 	 	7	 
	 
	 	 	 	 	 	 
	9.
	 	ASSIGNMENT AND SUBLETTING	 	 	7	 
	 
	 	 	 	 	 	 
	10.
	 	INDEMNIFICATION	 	 	9	 
	 
	 	 	 	 	 	 
	11.
	 	INSURANCE	 	 	9	 
	 
	 	 	 	 	 	 
	12.
	 	WAIVER OF SUBROGATION	 	 	9	 
	 
	 	 	 	 	 	 
	13.
	 	SERVICES AND UTILITIES	 	 	10	 
	 
	 	 	 	 	 	 
	14.
	 	HOLDING OVER	 	 	10	 
	 
	 	 	 	 	 	 
	15.
	 	SUBORDINATION	 	 	10	 
	 
	 	 	 	 	 	 
	16.
	 	RULES AND REGULATIONS	 	 	10	 
	 
	 	 	 	 	 	 
	17.
	 	REENTRY BY LANDLORD	 	 	10	 
	 
	 	 	 	 	 	 
	18.
	 	DEFAULT	 	 	11	 
	 
	 	 	 	 	 	 
	19.
	 	REMEDIES	 	 	12	 
	 
	 	 	 	 	 	 
	20.
	 	TENANT’S BANKRUPTCY OR INSOLVENCY	 	 	15	 
	 
	 	 	 	 	 	 
	21.
	 	QUIET ENJOYMENT	 	 	16	 
	 
	 	 	 	 	 	 
	22.
	 	CASUALTY	 	 	16	 
	 
	 	 	 	 	 	 
	23.
	 	EMINENT DOMAIN	 	 	17	 
	 
	 	 	 	 	 	 
	24.
	 	SALE BY LANDLORD	 	 	17	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	25.
	 	ESTOPPEL CERTIFICATES	 	 	17	 
	 
	 	 	 	 	 	 
	26.
	 	SURRENDER OF PREMISES	 	 	18	 
	 
	 	 	 	 	 	 
	27.
	 	NOTICES	 	 	18	 
	 
	 	 	 	 	 	 
	28.
	 	TAXES PAYABLE BY TENANT	 	 	19	 
	 
	 	 	 	 	 	 
	29.
	 	RELOCATION OF TENANT	 	 	19	 
	 
	 	 	 	 	 	 
	30.
	 	DEFINED TERMS AND HEADINGS	 	 	19	 
	 
	 	 	 	 	 	 
	31.
	 	TENANT’S AUTHORITY	 	 	19	 
	 
	 	 	 	 	 	 
	32.
	 	FINANCIAL STATEMENTS AND CREDIT REPORTS	 	 	20	 
	 
	 	 	 	 	 	 
	33.
	 	COMMISSIONS	 	 	20	 
	 
	 	 	 	 	 	 
	34.
	 	TIME AND APPLICABLE LAW	 	 	20	 
	 
	 	 	 	 	 	 
	35.
	 	SUCCESSORS AND ASSIGNS	 	 	20	 
	 
	 	 	 	 	 	 
	36.
	 	ENTIRE AGREEMENT	 	 	20	 
	 
	 	 	 	 	 	 
	37.
	 	EXAMINATION NOT OPTION	 	 	20	 
	 
	 	 	 	 	 	 
	38.
	 	RECORDATION	 	 	20	 
	 
	 	 	 	 	 	 
	39.
	 	RENEWAL OPTION	 	 	20	 
	 
	 	 	 	 	 	 
	40.
	 	LIMITATION OF LANDLORD’S LIABILITY	 	 	21	 
	 
	 	 	 	 	 	 
	EXHIBIT A — FLOOR PLAN DEPICTING THE PREMISES	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBIT A-l — SITE PLAN	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBIT B — INITIAL ALTERATIONS	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBIT C — INTENTIONALLY DELETED	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBIT D — RULES AND REGULATIONS	 	 	 	 






 -ii- 




 









 





MULTI-TENANT INDUSTRIAL NET LEASE




REFERENCE PAGES




	 	 	 
	BUILDING:

	 	Valwood Park Centreport — 1825
	 
	 	 
	LANDLORD:

	 	Valwood Centreport, LP, a Texas limited partnership
	 
	 	 
	LANDLORD’S ADDRESS:

	 	c/o RREEF Management Company, 1406 Halsey Way,
	 

	 	Suite 110, Carrollton, TX 75007
	 
	 	 
	WIRE INSTRUCTIONS AND/OR ADDRESS FOR 

RENT PAYMENT:

	 	Valwood Centreport, LP, 75 Remittance Drive, Suite

6887, Chicago, IL 60675
	 
	 	 
	LEASE REFERENCE DATE:

	 	October 16, 2006
	 
	 	 
	TENANT:

	 	ViewCast.com, Inc., a Delaware corporation
	 
	 	 
	TENANT’S NOTICE ADDRESS:
	 	 
	 
	 	 
	     (a) As of beginning of Term:

	 	1825 Monetary Lane, Suite 104, Carrollton, TX 75006
	 
	 	 
	     (b) Prior to beginning of
Term (if different):

	 	3701 W. Plano Parkway,
Suite 300, Plano, TX 75075
	 
	 	 
	PREMISES ADDRESS:

	 	1825 Monetary Lane, Suite 104, Carrollton, TX 75006
	 
	 	 
	PREMISES RENTABLE AREA:

	 	Approximately 16,575 sq. ft. (for outline of Premises
see Exhibit A)
	 
	 	 
	USE:

	 	Office and warehouse, assembly, distribution, and
testing of digital media processing products, including,
capture cards, encoding systems, and software
	 
	 	 
	COMMENCEMENT DATE:

	 	December 1, 2006
	 
	 	 
	TERM OF LEASE:

	 	Approximately five (5) years, three (3) months and
zero (0) days beginning on the Commencement Date
and ending on the Termination Date
	 
	 	 
	TERMINATION DATE:

	 	February 29, 2012






	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






 









 





ANNUAL RENT and MONTHLY INSTALLMENT

OF RENT(Article 3):




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Period	 	Rentable Square	 	Annual Rent	 	 	 	Monthly Installment
	 	 	from	 	through	 	Footage	 	Per Square Foot	 	Annual Rent	 	of Rent
	 
	 	 	12/1/06	 	 	 	2/28/07	 	 	 	16,575	 	 	$	-0-	 	 	$	-0-	 	 	$	-0-	 
	 
	 	 	3/1/07	 	 	 	2/29/08	 	 	 	16,575	 	 	$	4.25	 	 	$	70,443.75	 	 	$	5,870.31	 
	 
	 	 	3/1/08	 	 	 	2/28/10	 	 	 	16,575	 	 	$	4.46	 	 	$	73,924.50	 	 	$	6,160.38	 
	 
	 	 	3/1/10	 	 	 	2/29/12	 	 	 	16,575	 	 	$	4,70	 	 	$	77,902.50	 	 	$	6,491.88	 






	 	 	 
	INITIAL ESTIMATED MONTHLY INSTALLMENT
OF RENT ADJUSTMENTS (Article 4):

	 	$1,878.50 
	 
	 	 
	TENANT’S PROPORTIONATE SHARE:

	 	27.84% 
	 
	 	 
	SECURITY DEPOSIT:

	 	$8,370.38 
	 
	 	 
	ASSIGNMENT/SUBLETTING FEE:

	 	$1,000.00 
	 
	 	 
	REAL ESTATE BROKER DUE COMMISSION:

	 	CB Richard Ellis and Trammell Crow
Company
	 
	 	 
	TENANT’S SIC CODE:

	 	3663 
	 
	 	 
	AMORTIZATION RATE:

	 	Ten percent (10%) per annum





The Reference Pages information is incorporated into and made a part of the Lease. In the event of
any conflict
between any Reference Pages information and the Lease, the Lease shall control. This Lease includes
Exhibits A
through D, all of which are made a part of this Lease.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	 	 	TENANT:  
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	VALWOOD CENTREPORT, LP, a Texas limited 

partnership	 	 	 	VIEWCAST.COM, INC., a Delaware corporation  
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	RREEF Management Company, a Delaware	 	By:	 	/s/ David T. Stoner	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	corporation, Authorized Agent	 	Name: DAVID T. STONER
	 	 	 	 	 	 	 	 	Title: PRESIDENT
	 	 	 	 	 	 	 	 	Dated: OCT 17, 2006
	 

	 	By:
	 	/s/ Anthony James	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name: Anthony James	 	 	 	 	 	 
	 	 	Title: Vice President, District Manager	 	 	 	 	 	 
	 	 	Dated: October 28, 2006	 	 	 	 	 	 






 









 





LEASE




     By this Lease Landlord leases to Tenant and Tenant leases from Landlord the Premises in the
Building as set forth and described on the Reference Pages. The Premises are depicted on the floor
plan attached hereto as Exhibit A, and the Building is depicted on the site plan attached
hereto as Exhibit A-1. The Reference Pages, including all terms defined thereon, are
incorporated as part of this Lease.


1. USE AND RESTRICTIONS ON USE.




     1.1
The Premises are to be used solely for the purposes set forth on the
Reference Pages. Tenant shall not do or permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the Building or injure,
annoy, or disturb them, or allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose, or commit any waste. Tenant shall not do, permit or suffer in, on, or about
the Premises the sale of any alcoholic liquor without the written consent of Landlord first
obtained. Tenant shall comply with all governmental laws, ordinances and regulations applicable to
the use of the Premises and its occupancy and shall promptly comply with all governmental orders
and directions for the correction, prevention and abatement of any violations in the Building or
appurtenant land, caused or permitted by, or resulting from the specific use by, Tenant, or in or
upon, or in connection with, the Premises, all at Tenant’s sole expense. Tenant shall not do or
permit anything to be done on or about the Premises or bring or keep anything into the Premises
which will in any way increase the rate of, invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its contents by fire or other casualty
or against liability for damage to property or injury to persons in or about the Building or any
part thereof.



     1.2 Tenant shall not, and shall not direct, suffer or permit any of its agents,
contractors, employees, licensees or invitees (collectively, the “Tenant Entities”) to at any time
handle, use, manufacture, store or dispose of in or about the Premises or the Building any
(collectively “Hazardous Materials”) flammables, explosives, radioactive materials, hazardous
wastes or materials, toxic wastes or materials, or other similar substances, petroleum products or
derivatives or any substance subject to regulation by or under any federal, state and local laws
and ordinances relating to the protection of the environment or the keeping, use
or disposition of environmentally hazardous materials, substances, or wastes, presently in effect
or hereafter adopted, all amendments to any of them, and all rules and regulations issued pursuant
to any of such laws or ordinances (collectively “Environmental Laws”), nor shall Tenant suffer or
permit any Hazardous Materials to be used in any manner not fully in compliance with all
Environmental Laws, in the Premises or the Building and appurtenant land or allow the environment
to become contaminated with any Hazardous Materials. Notwithstanding the foregoing, Tenant may
handle, store, use or dispose of products containing small quantities of Hazardous Materials (such
as aerosol cans containing insecticides, toner for copiers, paints, paint remover and the like) to
the extent customary and necessary for the use of the Premises for general office purposes;
provided that Tenant shall always handle, store, use, and dispose of any such Hazardous Materials
in a safe and lawful manner and never allow such Hazardous Materials to contaminate the Premises,
Building and appurtenant land or the environment. Tenant shall protect, defend, indemnify and hold
each and all of the Landlord Entities (as defined in Article 30) harmless from and against any and
all loss, claims, liability or costs (including court costs and attorney’s fees) incurred by reason
of any actual or asserted failure of Tenant to fully comply with all applicable Environmental Laws,
or the presence, handling, use or disposition in or from the Premises of any Hazardous Materials by
Tenant or any Tenant Entity (even though permissible under all applicable Environmental Laws or the
provisions of this Lease), or by reason of any actual or asserted failure of Tenant to keep,
observe, or perform any provision of this Section 1.2.



     1.3 Tenant and the Tenant Entities will be entitled to the non-exclusive use of the common
areas of the Building as they exist from time to time during the Term, including the parking
facilities, subject to Landlord’s rules and regulations regarding such use. However, in no event
will Tenant or the Tenant Entities park more vehicles in the parking facilities than Tenant’s
Proportionate Share of the total parking spaces available for common use. The



1









 







foregoing shall not be deemed to provide Tenant with an exclusive right to any parking spaces or
any guaranty of the availability of any particular parking spaces or any specific number of parking
spaces.


2. TERM.




     2.1 The Term of this Lease shall begin on the Commencement Date as shown on the Reference
Pages and shall terminate on the Termination Date as shown on the Reference Pages, unless sooner
terminated by the provisions of this Lease.



     2.2 Intentionally deleted.



     2.3 In the event Landlord permits Tenant, or any agent, employee or contractor of Tenant,
to enter, use or occupy the Premises prior to the Commencement Date, such entry, use or occupancy
shall be subject to all the provisions of this Lease other than the payment of rent, including,
without limitation, Tenant’s compliance with the insurance requirements of Article 11. Said early
possession shall not advance the Termination Date.


3. RENT.




     3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to time by paying
the Monthly Installment of Rent then in effect on or before the first day of each full calendar
month during the Term, except that rent for the first full month for which rent is payable
hereunder shall be paid upon the execution of this Lease. The Monthly Installment of Rent in effect
at any time shall be one-twelfth (1/12) of the Annual Rent in effect at such time. Rent for any
period during the Term which is less than a full month shall be a prorated portion of the Monthly
Installment of Rent based upon the number of days in such month. Said rent shall be paid to
Landlord, without deduction or offset and without notice or demand, at the Rent Payment Address, as
set forth on the Reference Pages, or to such other person or at such other place as Landlord may
from time to time designate in writing. Unless specified in this Lease to the contrary, all amounts
and sums payable by Tenant to Landlord pursuant to this Lease shall be deemed additional rent.



     3.2 Tenant recognizes that late payment of any rent or other sum due under this Lease will
result in administrative expense to Landlord, the extent of which additional expense is extremely
difficult and economically impractical to ascertain. Tenant therefore agrees that if rent or any
other sum is not paid when due and payable pursuant to this Lease, a late charge shall be imposed
in an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) six percent (6%) of the
unpaid rent or other payment. The amount of the late charge to be paid by Tenant shall be
reassessed and added to Tenant’s obligation for each successive month until paid. The provisions of
this Section 3.2 in no way relieve Tenant of the obligation to pay rent or other payments on or
before the date on which they are due, nor do the terms of this Section 3.2 in any way affect
Landlord’s remedies pursuant to Article 19 of this Lease in the event said rent or other payment is
unpaid after date due.


4 RENT ADJUSTMENTS.




     4.1 For the purpose of this Article 4, the following terms are defined as follows:



          4.1.1 Lease Year: Each fiscal year (as determined by Landlord from time to time) falling
partly or wholly within the Term.




          4.1.2 Expenses: All costs of operation, maintenance, repair, replacement and management of
the Building (including the amount of any credits which Landlord may grant to particular tenants of
the Building in lieu of providing any standard services or paying any standard costs described in
this Section 4.1.2 for similar tenants), as determined in accordance with generally accepted
accounting principles, including the following costs by way of illustration, but not limitation:
water and sewer charges; insurance charges of or relating to all insurance




2









 




policies and endorsements deemed by Landlord to be reasonably necessary or desirable and relating
in any manner to the protection, preservation, or operation of the Building or any part thereof;
utility costs, including, but not limited to, the cost of heat, light, power, steam, gas; waste
disposal; the cost of janitorial
services; the cost of security and alarm services (including any central station signaling
system); costs of cleaning, repairing, replacing and maintaining the common areas, including
parking and landscaping, window cleaning costs; labor costs; costs and expenses of managing the
Building including management and/or administrative fees; air conditioning maintenance costs;
elevator maintenance fees and supplies; material costs; equipment costs including the cost of
maintenance, repair and service agreements and rental and leasing costs; purchase costs of
equipment; current rental and leasing costs of items which would be capital items if purchased;
tool costs; licenses, permits and inspection fees; wages and salaries; employee benefits and
payroll taxes; accounting and legal fees; any sales, use or service taxes incurred in connection
therewith. In addition, Landlord shall be entitled to recover, as additional rent (which, along
with any other capital expenditures constituting Expenses, Landlord may either include in Expenses
or cause to be billed to Tenant along with Expenses and Taxes but as a separate item), Tenant’s
Proportionate Share of: (i) an allocable portion of the cost of capital improvement items which are
reasonably calculated to reduce operating expenses; (ii) the cost of fire sprinklers and
suppression systems and other life safety systems; and (iii) other capital expenses which are
required under any governmental laws, regulations or ordinances which were not applicable to the
Building at the time it was constructed; but the costs described in this sentence shall be
amortized over the reasonable life of such expenditures in accordance with such reasonable life and
amortization schedules as shall be determined by Landlord in accordance with generally accepted
accounting principles, with interest on the unamortized amount at one percent (1%) in excess of the
Wall Street Journal prime lending rate announced from time to time. Expenses shall not include
depreciation or amortization of the Building or equipment in the Building except as provided
herein, loan principal payments, costs of alterations of tenants’ premises, leasing commissions,
interest expenses on long-term borrowings or advertising costs.




          4.1.3 Taxes: Real estate taxes and any other taxes, charges and assessments which are levied
with respect to the Building or the land appurtenant to the Building, or with respect to any
improvements, fixtures and equipment or other property of Landlord, real or personal, located in
the Building and used in connection with the operation of the Building and said land, any payments
to any ground lessor in reimbursement of tax payments made by such lessor; all fees, expenses and
costs incurred by Landlord in investigating, protesting, contesting or in any way seeking to reduce
or avoid increase in any assessments, levies or the tax rate pertaining to any Taxes to be paid by
Landlord in any Lease Year; and all taxes of whatsoever nature that are imposed wholly or in part
in substitution for, or in lieu of, any of the taxes, charges, and assessments included in this
definition of Taxes. Taxes shall not include any estate or inheritance tax, or tax imposed upon any
transfer by Landlord of its interest in this Lease or the Building or any taxes to be paid by
Tenant pursuant to Article 28. If, due to a change in a method of taxation, any tax shall be levied
against Landlord wholly or in part in substitution for, or in lieu of, a tax otherwise recoverable
under this Section 4.1.3, such other tax shall be deemed to be a Tax for the purposes of this
Section 4.1.3 to the extent not reimbursable by Tenant to Landlord under Article 28 of this Lease.




     4.2 Tenant shall pay as additional rent for each Lease Year Tenant’s Proportionate Share
of Expenses and Taxes incurred for such Lease Year. Tenant shall remain obligated to pay Tenant’s
Proportionate Share of Expenses and Taxes during the three-month period during which no Monthly
Installments of Rent are payable.



     4.3 The annual determination of Expenses shall be made by Landlord and shall be binding
upon Landlord and Tenant, subject to the provisions of this Section 4.3. During the Term, Tenant
may review, at Tenant’s sole cost and expense, the books and records supporting such determination
in an office of Landlord, or Landlord’s agent, during normal business hours, upon giving Landlord
five (5) days advance written notice within sixty (60) days after receipt of such determination,
but in no event more often than once in any one (1) year period, subject to execution of a
confidentiality agreement acceptable to Landlord, and provided that if Tenant utilizes an
independent accountant to perform such review it shall be one of regional standing which is
reasonably acceptable to Landlord, is not compensated on a contingency basis and is also subject to
such confidentiality agreement. If Tenant fails to object to Landlord’s determination of Expenses
within ninety (90) days after receipt, or if any such objection fails to



3









 







state with specificity the reason for the objection, Tenant shall be deemed to have approved such
determination and shall have no further right to object to or contest such determination. In the
event that during all or any portion of any Lease Year or Base Year, the Building is not fully
rented and occupied Landlord shall make an appropriate adjustment in occupancy-related Expenses
for such year for the purpose of avoiding distortion of the amount of such Expenses to be
attributed to Tenant by reason of variation in total occupancy of the Building, by employing
consistent and sound accounting and management principles to determine Expenses that would have
been paid or incurred by Landlord had the Building been at least ninety-five percent (95%) rented
and occupied, and the amount so determined shall be deemed to have been Expenses for such Lease
Year.



     4.4 Prior to the actual determination thereof for a Lease Year, Landlord may from time to
time estimate Tenant’s liability for Expenses and/or Taxes under Section 4.2, Article 6 and Article
28 for the Lease Year or portion thereof. Landlord will give Tenant written notification of the
amount of such estimate and Tenant agrees that it will pay, by increase of its Monthly Installments
of Rent due in such Lease Year, additional rent in the amount of such estimate. Any such increased
rate of Monthly Installments of Rent pursuant to this Section 4.4 shall remain in effect until
further written notification to Tenant pursuant hereto.



     4.5 When the above mentioned actual determination of Tenant’s liability for Expenses
and/or Taxes is made for any Lease Year and when Tenant is so notified in writing, then:



          4.5.1 If the total additional rent Tenant actually paid pursuant to Section 4.4 on account of
Expenses and/or Taxes for the Lease Year is less than Tenant’s liability for Expenses and/or Taxes,
then Tenant shall pay such deficiency to Landlord as additional rent in one lump sum within thirty
(30) days of receipt of Landlord’s bill therefor; and




          4.5.2 If the total additional rent Tenant actually paid pursuant to Section 4.4 on account of
Expenses and/or Taxes for the Lease Year is more than Tenant’s liability for Expenses and/or Taxes,
then Landlord shall credit the difference against the then next due payments to be made by Tenant
under this Article 4, or, if the Lease has terminated, refund the difference in cash.




     4.6 If the Commencement Date is other than January 1 or if the Termination Date is other
than December 31, Tenant’s liability for Expenses and Taxes for the Lease Year in which said Date
occurs shall be prorated based upon a three hundred sixty-five
(365) day year.



     4.7 Notwithstanding anything contained herein or in this Lease to the contrary, it is
understood and agreed that for purposes of calculating Tenant’s Proportionate Share of Expenses
(excluding Non-Controllable Expenses, as hereinafter defined) in any Lease Year in the initial Term
of this Lease after calendar year 2007, the amount of Expenses (excluding Non-Controllable
Expenses) shall be limited to the percentages of the actual amount of Expenses (excluding
Non-Controllable Expenses) in calendar year 2007 set forth below:



	 	 	 	 	 
	 	 	% of the Actual Amount of Expenses (excluding Non-
	Lease Year	 	Controllable Expenses) in Calendar Year 2007
	2008
	 	 	110	%
	 
	 	 	 	 
	2009
	 	 	121	%
	 
	 	 	 	 
	2010
	 	 	133	%
	 
	 	 	 	 
	2011
	 	 	146	%
	 
	 	 	 	 
	2012
	 	 	161	%






4









 




As used herein, the term “Non-Controllable Expenses” shall mean insurance premiums, utility
charges, governmentally mandated charges (including sales tax), and the cost for snow removal and
security services. Tenant’s liability for Non-Controllable Expenses and Taxes in any given Lease
Year shall not be similarly limited, and therefore, Tenant shall remain liable for the full amount
of Tenant’s Proportionate Share of Non-Controllable Expenses and Taxes in any Lease Year. The
limitation on Expenses (excluding Non-Controllable Expenses) contained in this Section 4.7 is not
transferable; the parties hereto acknowledge and agree that they intend this Section 4.7 to be
personal to Tenant and shall not be transferred, encumbered, or assigned by Tenant.



5. SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with Landlord upon the
execution of this Lease. Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease to be kept and
performed by Tenant and not as an advance rental deposit or as a measure of Landlord’s damage in
case of Tenant’s default. If Tenant defaults with respect to any provision of this Lease, Landlord
may use any part of the Security Deposit for the payment of any rent or any other sum in default,
or for the payment of any amount which Landlord may spend or become obligated to spend by reason of
Tenant’s default, or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant’s default. If any portion is so used, Tenant shall within five (5) days after
written demand therefor, deposit with Landlord an amount sufficient to restore the Security Deposit
to its original amount and Tenant’s failure to do so shall be a material breach of this Lease. In
addition, in the event that more than two Events of Default occur within any twelve-month period
during the Term of this Lease, Landlord shall have the right to increase the amount of the Security
Deposit by an amount equal to the Monthly Installment of Rent and additional charges which are
payable at the time of such second Event of Default, and Tenant shall deposit such additional
amount with Landlord within ten (10) days after notice from Landlord. Except to such extent, if
any, as shall be required by law, Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on such deposit. If
Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant at such time after termination
of this Lease when Landlord shall have determined that all of Tenant’s obligations under this Lease
have been fulfilled.



6. ALTERATIONS.




     6.1 Except for those, if any, specifically provided for in Exhibit B to this
Lease, Tenant shall not make or suffer to be made any alterations, additions, or improvements,
including, but not limited to, the attachment of any fixtures or equipment in, on, or to the
Premises or any part thereof or the making of any improvements as required by Article 7, without
the prior written consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations, additions and
improvements. Landlord’s consent shall not be unreasonably withheld with respect to alterations
which (i) are not structural in nature, (ii) are not visible from the exterior of the Building,
(iii) do not affect or require modification of the Building’s electrical, mechanical, plumbing,
HVAC or other systems, and (iv) in aggregate do not cost more than $5.00 per rentable square foot
of that portion of the Premises affected by the alterations in question.



     6.2 In the event Landlord consents to the making of any such alteration, addition or
improvement by Tenant, the same shall be made by using either Landlord’s contractor or a contractor
reasonably approved by Landlord, in either event at Tenant’s sole cost and expense. If Tenant shall
employ any contractor other than Landlord’s contractor and such other contractor or any
subcontractor of such other contractor shall employ any non- union labor or supplier, Tenant shall
be responsible for and hold Landlord harmless from
any and all delays, damages and extra costs suffered by Landlord as a result of any dispute with
any labor unions concerning the wage, hours, terms or conditions of the employment of any such
labor. In any event Landlord may charge Tenant a construction management fee not to exceed three
percent (3%) of the cost of such work to cover its overhead as it relates to such proposed work,
plus third-party costs actually incurred by Landlord in connection with the proposed work and the
design thereof, with all such amounts being due five (5) days after Landlord’s demand.



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     6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and regulations, using
Building standard materials where applicable, and Tenant shall, prior to construction, provide the
additional insurance required under Article 11 in such case, and also all such assurances to
Landlord as Landlord shall reasonably require to assure payment of the costs thereof, including but
not limited to, notices of non-responsibility, waivers of lien, surety company performance bonds
and funded construction escrows and to protect Landlord and the Building and appurtenant land
against any loss from any mechanic’s, materialmen’s or other liens. Tenant shall pay in addition to
any sums due pursuant to Article 4, any increase in real estate taxes attributable to any such
alteration, addition or improvement for so long, during the Term, as such increase is
ascertainable; at Landlord’s election said sums shall be paid in the same way as sums due under
Article 4.


7. REPAIR.




     7.1 Landlord shall have no obligation to alter, remodel, improve, repair, decorate or
paint the Premises, except as specified in Exhibit B if attached to this Lease and except
that Landlord shall repair and maintain the structural portions of the roof, foundation and walls
of the Building. By taking possession of the Premises, Tenant accepts them as being in good order,
condition and repair and in the condition in which Landlord is obligated to deliver them. It is
hereby understood and agreed that no representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant, except as specifically set forth in this Lease.
Landlord shall not be liable for any failure to make any repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice of the need of such
repairs or maintenance is given to Landlord by Tenant.



     7.2 Tenant shall at its own cost and expense keep and maintain all parts of the Premises
and such portion of the Building and improvements as are within the exclusive control of Tenant in
good condition, promptly making all necessary repairs and replacements, whether ordinary or
extraordinary, with materials and workmanship of the same character, kind and quality as the
original (including, but not limited to, repair and replacement of all fixtures installed by
Tenant, water heaters serving the Premises, windows, glass and plate glass, doors, exterior stairs,
skylights, any special office entries, interior walls and finish work, floors and floor coverings,
heating and air conditioning systems serving the Premises, electrical systems and fixtures,
sprinkler systems, dock boards, truck doors, dock bumpers, plumbing work and fixtures, and
performance of regular removal of trash and debris). Landlord agrees that the heating, ventilating,
and air conditioning system serving the Premises will be in good working condition on the date
Landlord delivers possession of the Premises to Tenant and will
warrant such systems for 12 months from the Commencement Date. Tenant as part of its obligations hereunder
shall keep the Premises in a clean and sanitary condition. Tenant will, as far as possible keep all
such parts of the Premises from deterioration due to ordinary wear and from falling temporarily out
of repair, and upon termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted (but not excepting
any damage to glass). Tenant shall, at its own cost and expense, repair any damage to the Premises
or the Building resulting from and/or caused in whole or in part by the negligence or misconduct of
Tenant, its agents, employees, contractors, invitees, or any other person entering upon the
Premises as a result of Tenant’s business activities or caused by Tenant’s default hereunder.



     7.3 Except as provided in Article 22, there shall be no abatement of rent and no liability
of Landlord by reason of any injury to or interference with Tenant’s business arising from the
making of any repairs, alterations or improvements in or to any portion of the Building or the
Premises or to Fixtures, appurtenances and equipment in the Building. Except to the extent, if any,
prohibited by law, Tenant waives the right to make repairs at Landlord’s expense under any law,
statute or ordinance now or hereafter in effect.



     7.4 Tenant shall, at its own cost and expense, enter into a regularly scheduled preventive
maintenance/ service contract with a maintenance contractor approved by Landlord for servicing all
heating and air conditioning systems and equipment serving the Premises (and a copy thereof shall
be furnished to Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become effective within thirty
(30) days of the date Tenant takes possession of the Premises. Should Tenant



6









 







fail to do so, Landlord may, upon notice to Tenant, enter into such a maintenance/service contract
on behalf of Tenant or perform the work and in either case, charge Tenant the cost thereof along
with a reasonable amount for Landlord’s overhead.



     7.5 Landlord shall coordinate any repairs and other maintenance of any railroad tracks
serving the Building and, if Tenant uses such rail tracks, Tenant shall reimburse Landlord or the
railroad company from time to time upon demand, as additional rent, for its share of the costs of
such repair and maintenance and for any other sums specified in any agreement to which Landlord or
Tenant is a party respecting such tracks, such costs to be borne proportionately by all tenants in
the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant during each calendar year
during the Term.


8.
LIENS. Tenant shall keep the Premises, the Building and appurtenant land and Tenant’s
leasehold interest in the Premises free from any liens arising out of any services, work or
materials performed, furnished, or contracted for by Tenant, or obligations incurred by Tenant. In
the event that Tenant fails, within ten (10) days following the imposition of any such lien, to
either cause the same to be released of record or provide Landlord with insurance against the same
issued by a major title insurance company or such other protection against the same as Landlord
shall accept (such failure to constitute an Event of Default), Landlord shall have the right to
cause the same to be released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be payable to it by Tenant within five (5) days of Landlord’s demand.



9.
ASSIGNMENT AND SUBLETTING.




     9.1 Tenant shall not have the right to assign or pledge this Lease or to sublet the whole
or any part of the Premises whether voluntarily or by operation of law, or permit the use or
occupancy of the Premises by anyone other than Tenant, and shall not make, suffer or permit such
assignment, subleasing or occupancy without the prior written consent of Landlord, such consent not
to be unreasonably withheld, and said restrictions shall be binding upon any and all assignees of
the Lease and subtenants of the Premises. In the event Tenant desires to sublet, or permit such
occupancy of, the Premises, or any portion thereof, or assign this Lease, Tenant shall give written
notice thereof to Landlord at least forty-five (45) days but no more than one hundred twenty (120)
days prior to the proposed commencement date of such subletting or assignment, which notice shall
set forth the name of the proposed subtenant or assignee, the relevant terms of any sublease or
assignment and copies of financial reports and other relevant financial information of the proposed
subtenant or assignee.



     9.2 Notwithstanding any assignment or subletting, permitted or otherwise, Tenant shall at
all times remain directly, primarily and fully responsible and liable for the payment of the rent
specified in this Lease and for compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Upon the occurrence of an Event of Default, if the Premises
or any part of them are then assigned or sublet, Landlord, in addition to any other remedies
provided in this Lease or provided by law, may, at its option, collect directly from such assignee
or subtenant all rents due and becoming due to Tenant under such assignment or sublease and apply
such rent against any sums due to Landlord from Tenant under this Lease, and no such collection
shall be construed to constitute a novation or release of Tenant from the further performance of
Tenant’s obligations under this Lease.



     9.3 In addition to Landlord’s right to approve of any subtenant or assignee, Landlord
shall have the option, in its sole discretion, in the event of any proposed subletting or
assignment, to terminate this Lease, or in the case of a proposed subletting of less than the
entire Premises, to recapture the portion of the Premises to be sublet, as of the date the
subletting or assignment is to be effective. The option shall be exercised, if at all, by Landlord
giving Tenant written notice given by Landlord to Tenant within thirty (30) days following
Landlord’s receipt of Tenant’s written notice as required above. However, if Tenant notifies
Landlord, within five (5) days after receipt of Landlord’s termination notice, that Tenant is
rescinding its proposed assignment or sublease, the termination notice shall be void and the Lease
shall continue in full force and effect. If this Lease shall be terminated with respect to the



7









 







entire Premises pursuant to this Section, the Term of this Lease shall end on the date stated in
Tenant’s notice as the effective date of the sublease or assignment as if that date had been
originally fixed in this Lease for the expiration of the Term. If Landlord recaptures under this
Section only a portion of the Premises, the rent to be paid from time to time during the unexpired
Term shall abate proportionately based on the proportion by which the approximate square footage of
the remaining portion of the Premises shall be less than that of the Premises as of the date
immediately prior to such recapture. Tenant shall, at Tenant’s own cost and expense, discharge in
full any outstanding commission obligation which may be due and owing as a result of any proposed
assignment or subletting, whether or not the Premises are recaptured pursuant to this Section 9.3
and rented by Landlord to the proposed tenant or any other tenant.



     9.4 In the event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall
pay to Landlord as additional rent an amount equal to one hundred percent (100%) of any Increased
Rent (as defined below), less the Costs Component (as defined below), when and as such Increased
Rent is received by Tenant. As used in this Section, “Increased Rent” shall mean the excess of (i)
all rent and other consideration which Tenant is entitled to receive by reason of any sale,
sublease, assignment or other transfer of this Lease, over (ii) the rent otherwise payable by
Tenant under this Lease at such time. For purposes of the foregoing, any consideration received by
Tenant in form other than cash shall be valued at its fair market value as determined by Landlord
in good faith. The “Costs Component” is that amount which, if paid monthly, would fully amortize on
a straight-line basis, over the entire period for which Tenant is to receive Increased Rent, the
reasonable costs incurred by Tenant for leasing commissions and tenant improvements in connection
with such sublease, assignment or other transfer.



     9.5 Notwithstanding any other provision hereof, it shall be considered reasonable for
Landlord to withhold its consent to any assignment of this Lease or sublease of any portion of the
Premises if at the time of either Tenant’s notice of the proposed assignment or sublease or the
proposed commencement date thereof, there shall exist any uncured default of Tenant or matter which
will become a default of Tenant with passage of time unless cured, or if the proposed assignee or
sublessee is an entity: (a) with which Landlord is already in negotiation; (b) is already an
occupant of the Building unless Landlord is unable to provide the amount of space required by such
occupant; (c) is a governmental agency; (d) is incompatible with the character of occupancy of the
Building; (e) with which the payment for the sublease or assignment is determined in whole or in
part based upon its net income or profits; or
(f) would subject the Premises to a use which would: (i) involve increased personnel or wear upon
the
Building; (ii) violate any exclusive right granted to another tenant of the Building; (iii) require
any addition to or modification of the Premises or the Building in order to comply with building
code or other governmental requirements; or, (iv) involve a violation of Section 1.2. Tenant
expressly agrees that for the purposes of any statutory or other requirement of reasonableness on
the part of Landlord, Landlord’s refusal to consent to any assignment or sublease for any of the
reasons described in this Section 9.5, shall be conclusively deemed to be reasonable.



     9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord’s costs, including
reasonable attorney’s fees, incurred in investigating and considering any proposed or purported
assignment or pledge of this Lease or sublease of any of the Premises, regardless of whether
Landlord shall consent to, refuse consent, or determine that Landlord’s consent is not required
for, such assignment, pledge or sublease. Any purported sale, assignment, mortgage, transfer of
this Lease or subletting which does not comply with the provisions of this Article 9 shall be void.



     9.7 If Tenant is a corporation, limited liability company, partnership or trust, any
transfer or transfers of or change or changes within any twelve (12) month period in the number of
the outstanding voting shares of the corporation or limited liability company, the general
partnership interests in the partnership or the identity of the persons or entities controlling the
activities of such partnership or trust resulting in the persons or entities owning or controlling
a majority of such shares, partnership interests or activities of such partnership or trust at the
beginning of such period no longer having such ownership or control shall be regarded as equivalent
to an assignment of this Lease to the persons or entities acquiring such ownership or control and
shall be subject to all the provisions of this Article 9 to the same extent and for all intents and
purposes as though such an assignment,



8









 




10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any injury to any person in
or about the Premises or the Building by or from any cause whatsoever (including without limiting
the foregoing, rain or water leakage of any character from the roof, windows, walls, basement,
pipes, plumbing works or appliances, the Building not being in good condition or repair, gas, fire,
oil, electricity or theft), except to the extent caused by or arising from the gross negligence or
willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect,
indemnify and hold the Landlord Entities harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney’s fees) incurred by reason of (a) any damage
to any property (including but not limited to property of any Landlord Entity) or any injury
(including but not limited to death) to any person occurring in, on or about the Premises or the
Building to the extent that such injury or damage shall be caused by or arise from any actual or
alleged act, neglect, fault, or omission by or of Tenant or any Tenant Entity to meet any standards
imposed by any duty with respect to the injury or damage; (b) the conduct or management of any work
or thing whatsoever done by the Tenant in or about the Premises or from transactions of the Tenant
concerning the Premises; (c) Tenant’s failure to comply with any and all governmental laws,
ordinances and regulations applicable to the condition or use of the Premises or its occupancy; or
(d) any breach or default on the part of Tenant in the performance of any covenant or agreement on
the part of the Tenant to be performed pursuant to this Lease. The provisions of this Article shall
survive the termination of this Lease with respect to any claims or liability accruing prior to
such termination,



11. INSURANCE.




     11.1 Tenant shall keep in force throughout the Term: (a) a Commercial General
Liability insurance policy or policies to protect the Landlord Entities against any liability to
the public or to any invitee of Tenant or a Landlord Entity incidental to the use of or resulting
from any accident occurring in or upon the Premises with a limit of not less than $1,000,000.00 per
occurrence and not less than $2,000,000.00 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and property damage
liability and $1,000,000 products/completed operations aggregate; (b) Business Auto Liability
covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000 per accident;
(c) Worker’s Compensation Insurance with limits as required by statute and Employers Liability with
limits of $500,000 each accident, $500,000 disease policy limit, $500,000 disease-each employee;
(d) All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant’s
alterations, additions, improvements, carpeting, floor coverings, panelings, decorations, fixtures,
inventory and other business personal property situated in or about the Premises to the full
replacement value of the property so insured; and, (e) Business Interruption Insurance with limit
of liability representing loss of at least approximately six
(6) months of income.



     11.2 The aforesaid policies shall (a) be provided at Tenant’s expense; (b) name the Landlord
Entities as additional insureds (General Liability) and loss payee (Property—Special Form); (c) be
issued by an insurance company with a minimum Best’s rating of “A-:VII” during the Term; and (d)
provide that said insurance shall not be canceled unless thirty (30)
days prior written notice (ten days for non-payment of premium) shall have been given to Landlord;
a certificate of Liability insurance on ACORD Form 25 and a certificate of Property insurance on
ACORD Form 28 shall be delivered to Landlord by Tenant upon the Commencement Date and at least
thirty (30) days prior to each renewal of said insurance.



     11.3 Whenever Tenant shall undertake any alterations, additions or improvements in, to or
about the Premises (“Work”) the aforesaid insurance protection must extend to and include injuries
to persons and damage to property arising in connection with such Work, without limitation
including liability under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance must be delivered to
Landlord prior to the commencement of any such Work.


12. WAIVER OF SUBROGATION. So long as their respective insurers so permit, Tenant and
Landlord hereby mutually waive their respective rights of recovery against each other for any loss
insured by fire, extended coverage, All Risks or other property insurance now or hereafter existing
for the benefit of the respective party but


9









 






only to the extent of the net insurance proceeds payable under such policies. Each party shall
obtain any special endorsements required by their insurer to evidence compliance with the
aforementioned waiver.



13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler system charges and other utilities and services used on or from the
Premises, together with any taxes, penalties, and surcharges or the like pertaining thereto and any
maintenance charges for utilities. Tenant shall furnish all electric light bulbs, tubes and
ballasts, battery packs for emergency lighting and fire extinguishers. If any such services are not
separately metered to Tenant, Tenant shall pay such proportion of all charges jointly metered with
other premises as determined by Landlord, in its sole discretion, to be reasonable. Any such
charges paid by Landlord and assessed against Tenant shall be immediately payable to Landlord on
demand and shall be additional rent hereunder. Tenant will not, without the written consent of
Landlord, contract with a utility provider to service the Premises with any utility, including, but
not limited to, telecommunications, electricity, water, sewer or gas, which is not previously
providing such service to other tenants in the Building. Landlord shall in no event be liable for
any interruption or failure of utility services on or to the Premises.



14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or part of them after termination of this Lease by lapse of time or otherwise at the rate
(“Holdover Rate”) which shall be One Hundred Fifty Percent (150%) of the greater of (a) the amount
of the Annual Rent for the last period prior to the date of such termination plus all Rent
Adjustments under Article 4; and (b) the then market rental value of the Premises as determined by
Landlord assuming a new lease of the Premises of the then usual duration and other terms, in either
case, prorated on a daily basis, and also pay all damages sustained by Landlord by reason of such
retention. If Landlord gives notice to Tenant of Landlord’s election to such effect, such holding
over shall constitute renewal of this Lease for a period from month to month or one (1) year,
whichever shall be specified in such notice, in either case at the Holdover Rate, but if the
Landlord does not so elect, no such renewal shall result notwithstanding acceptance by Landlord of
any sums due hereunder after such termination; and instead, a tenancy at sufferance at the Holdover
Rate shall be deemed to have been created. In any event, no provision of this Article 14 shall be
deemed to waive Landlord’s right of reentry or any other right under this Lease or at law.



15. SUBORDINATION. Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be subject and subordinate at
all times to ground or underlying leases and to the lien of any mortgages or deeds of trust now or
hereafter placed on, against or affecting the Building, Landlord’s interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the lessor, mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to have Tenant’s interest in this
Lease be superior to any such instrument, then, by notice to Tenant, this Lease shall be deemed
superior, whether this Lease was executed before or after said instrument. Notwithstanding the
foregoing, Tenant covenants and agrees to execute and deliver within ten (10) days of Landlord’s
request such further instruments evidencing such subordination or superiority of this Lease as may
be required by Landlord.



16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all the rules
and regulations as set forth in Exhibit D to this Lease and all reasonable and
non-discriminatory modifications of and additions to them from time to time put into effect by
Landlord. Landlord shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Building of any such rules and regulations.



17. REENTRY BY LANDLORD.




     17.1 Landlord reserves and shall at all times have the right to re-enter the Premises to
inspect the same, to show said Premises to prospective purchasers, mortgagees or tenants, and to
alter, improve or repair the Premises and any portion of the Building, without abatement of rent,
and may for that purpose erect, use and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the Building and Premises where
reasonably required by the character of the work to be performed, provided entrance to the Premises
shall not be blocked thereby, and further provided that the business of Tenant shall not be
interfered



10









 







with unreasonably. Landlord shall have the right at any time to change the arrangement and/or
locations of entrances, or passageways, doors and doorways, and corridors, windows, elevators,
stairs, toilets or other
public parts of the Building and to change the name, number or designation by which the Building is
commonly known. In the event that Landlord damages any portion of any wall or wall covering,
ceiling, or floor or floor covering within the Premises, Landlord shall repair or replace the
damaged portion to match the original as nearly as commercially reasonable but shall not be
required to repair or replace more than the portion actually damaged. Tenant hereby waives any
claim for damages for any injury or inconvenience to or interference with Tenant’s business, any
loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17.



     17.2 For each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in the Premises, excluding Tenant’s vaults and safes or
special security areas (designated in advance), and Landlord shall have the right to use any and
all means which Landlord may deem proper to open said doors in an emergency to obtain entry to any
portion of the Premises. As to any portion to which access cannot be had by means of a key or keys
in Landlord’s possession, Landlord is authorized to gain access by such means as Landlord shall
elect and the cost of repairing any damage occurring in doing so shall be borne by Tenant and paid
to Landlord within five (5) days of Landlord’s demand.


18. DEFAULT.




     18.1 Except as otherwise provided in Article 20, the following events shall be deemed to be
Events of Default under this Lease:



          18.1.1 Tenant shall fail to pay when due any sum of money becoming due to be paid to Landlord
under this Lease, whether such sum be any installment of the rent reserved by this Lease, any other
amount treated as additional rent under this Lease, or any other payment or reimbursement to
Landlord required by this Lease, whether or not treated as additional rent under this Lease, and
such failure shall continue for a period of five (5) days after written notice that such payment
was not made when due, but if two (2) such notices shall be given, for the twelve (12) month period
commencing with the date of the first notice, a subsequent failure to pay within five (5) days
after due any additional sum of money becoming due to be paid to Landlord under this Lease during
such period shall be an Event of Default, without notice.




          18.1.2 Tenant shall fail to comply with any term, provision or covenant of this Lease which is
not provided for in another Section of this Article and shall not cure such failure within twenty
(20) days (forthwith, if the failure involves a hazardous condition) after written notice of such
failure to Tenant provided, however, that such failure shall not be an event of default if such
failure could not reasonably be cured during such twenty (20) day period, Tenant has commenced the
cure within such twenty (20) day period and thereafter is diligently pursuing such cure to
completion, but the total aggregate cure period shall not exceed ninety (90) days.




          18.1.3 Tenant shall fail to vacate the Premises immediately upon termination of this Lease, by
lapse of time or otherwise, or upon termination of Tenant’s right to possession only.




          18.1.4 Tenant shall become insolvent, admit in writing its inability to pay its debts generally
as they become due, file a petition in bankruptcy or a petition to take advantage of any insolvency
statute, make an assignment for the benefit of creditors, make a transfer in fraud of creditors,
apply for or consent to the appointment of a receiver of itself or of the whole or any substantial
part of its property, or file a petition or answer seeking reorganization or arrangement under the
federal bankruptcy laws, as now in effect or hereafter amended, or any other applicable law or
statute of the United States or any state thereof.

          18.1.5 A court of competent jurisdiction shall enter an order, judgment or decree adjudicating
Tenant bankrupt, or appointing a receiver of Tenant, or of the whole or any substantial part of its
property, without




11









 




the consent of Tenant, or approving a petition filed against Tenant seeking reorganization or
arrangement of Tenant under the bankruptcy laws of the United States, as now in effect or hereafter
amended, or any state thereof, and such order, judgment or decree shall not be vacated or set aside
or stayed within sixty (60) days from the date of entry thereof.



19. REMEDIES.




     19.1 Except as otherwise provided in Article 20, upon the occurrence of any of the
Events of Default described or referred to in Article 18, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand whatsoever, concurrently or
consecutively and not alternatively:



          19.1.1 Landlord may, at its election, terminate this Lease or terminate Tenant’s right to
possession only, without terminating the Lease.




          19.1.2 Upon any termination of this Lease, whether by lapse of time or otherwise, or upon any
termination of Tenant’s right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver possession thereof to
Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of Landlord’s former estate and
to expel or remove Tenant and any others who may be occupying or be within the Premises and to
remove Tenant’s signs and other evidence of tenancy and all other property of Tenant therefrom
without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, and
without incurring any liability for any damage resulting therefrom, Tenant waiving any right to
claim damages for such re-entry and expulsion, and without relinquishing Landlord’s right to rent
or any other right given to Landlord under this Lease or by operation of law.




          19.1.3 Upon any termination of this Lease, whether by lapse of time or otherwise, Landlord
shall be entitled to recover as damages, all rent, including any amounts treated as additional rent
under this Lease, and other sums due and payable by Tenant on the date of termination, plus as
liquidated damages and not as a penalty, an amount equal to the sum of: (a) an amount equal to the
then present value of the rent reserved in this Lease for the residue of the stated Term of this
Lease including any amounts treated as additional rent under this Lease and all other sums provided
in this Lease to be paid by Tenant, minus the fair rental value of the Premises for such residue;
(b) the value of the time and expense necessary to obtain a replacement tenant or tenants, and the
estimated expenses described in Section 19.1.4 relating to recovery of the Premises, preparation
for reletting and for reletting itself; and
(c) the cost of performing any other covenants which would have otherwise been performed by Tenant.




          19.1.4 Upon any termination of Tenant’s right to possession only without termination of the
Lease:



               19.1.4.1 Neither such termination of Tenant’s right to possession nor Landlord’s taking
and holding possession thereof as provided in Section 19.1.2 shall terminate the Lease or release
Tenant, in whole or in part, from any obligation, including Tenant’s obligation to pay the rent,
including any amounts treated as additional rent, under this Lease for the full Term, and if
Landlord so elects Tenant shall continue to pay to Landlord the entire amount of the rent as and
when it becomes due, including any amounts treated as additional rent under this Lease, for the
remainder of the Term plus any other sums provided in this Lease to be paid by Tenant for the
remainder of the Term.



               19.1.4.2 Landlord shall use commercially reasonable efforts to relet the Premises or
portions thereof to the extent required by applicable law. Landlord and Tenant agree that
nevertheless Landlord shall at most be required to use only the same efforts Landlord then uses to
lease premises in the Building generally and that in any case that Landlord shall not be required
to give any preference or priority to the showing or leasing of the Premises or portions thereof
over any other space that Landlord may be leasing or have available and may place a



12









 







suitable prospective tenant in any such other space regardless of when such other space becomes
available and that Landlord shall have the right to relet the Premises for a greater or lesser term
than that remaining under this Lease, the right to relet only a portion of the Premises, or a
portion of the Premises or the entire Premises as a part of a larger area, and the right to change
the character or use of the Premises, In connection with or in preparation for any reletting,
Landlord may, but shall not be required to, make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent Landlord deems necessary or desirable, and Tenant
shall pay the cost thereof, together with Landlord’s expenses of reletting, including, without
limitation, any commission incurred by Landlord, within five (5) days of Landlord’s demand.
Landlord shall not be required to observe any instruction given by Tenant about any reletting or
accept any tenant offered by Tenant unless such offered tenant has a credit-worthiness acceptable
to Landlord and leases the entire Premises upon terms and conditions including a rate of rent
(after giving effect to all expenditures by Landlord for tenant improvements, broker’s commissions
and other leasing costs) all no less favorable to Landlord than as called for in this Lease, nor
shall Landlord be required to make or permit any assignment or sublease for more than the current
term or which Landlord would not be required to permit under the provisions of Article 9.



                  19.1.4.3 Until such time as Landlord shall elect to terminate the Lease and shall thereupon be
entitled to recover the amounts specified in such case in Section 19.1.3, Tenant shall pay to
Landlord upon, demand the full amount of all rent, including any amounts treated as additional rent
under this Lease and other sums reserved in this Lease for the remaining Term, together with the
costs of repairs, alterations, additions, redecorating and Landlord’s expenses of reletting and the
collection of the rent accruing therefrom (including reasonable attorney’s fees and broker’s
commissions), as the same shall then be due or become due from time to time, less only such
consideration as Landlord may have received from any reletting of the Premises; and Tenant agrees
that Landlord may file suits from time to time to recover any sums falling due under this Article
19 as they become due. Any proceeds of reletting by Landlord in excess of the amount then owed by
Tenant to Landlord from time to time shall be credited against Tenant’s future obligations under
this Lease but shall not otherwise be refunded to Tenant or inure to Tenant’s benefit.



     19.2 Upon the occurrence of an Event of Default, Landlord may (but shall not be obligated
to) cure such default at Tenant’s sole expense. Without limiting the generality of the foregoing,
Landlord may, at Landlord’s option, enter into and upon the Premises if Landlord determines in its
sole discretion that Tenant is not acting within a commercially reasonable time to maintain, repair
or replace anything for which Tenant is responsible under this Lease or to otherwise effect
compliance with its obligations under this Lease and correct the same, without being deemed in any
manner guilty of trespass, eviction or forcible entry and detainer and without incurring any
liability for any damage or interruption of Tenant’s business resulting therefrom and Tenant agrees
to reimburse Landlord within five (5) days of Landlord’s demand as additional rent, for any
expenses which Landlord may incur in thus effecting compliance with Tenant’s obligations under this
Lease, plus interest from the date of expenditure by Landlord at the Wall Street Journal prime
rate.



     19.3 Tenant understands and agrees that in entering into this Lease, Landlord is relying
upon receipt of all the Annual and Monthly Installments of Rent to become due with respect to all
the Premises originally leased hereunder over the full Initial Term of this Lease for amortization,
including interest at the Amortization Rate. For purposes hereof, the “Concession Amount” shall be
defined as the aggregate of all amounts forgone or expended by Landlord as free rent under the
lease, under Exhibit B hereof for construction allowances (excluding therefrom any amounts
expended by Landlord for Landlord’s Work, as defined in
Exhibit B), and for brokers’ commissions
payable by reason of this Lease. Accordingly, Tenant agrees that if this Lease or Tenant’s right to
possession of the Premises leased hereunder shall be terminated as of any date (“Default
Termination Date”) prior to the expiration of the full Initial Term hereof by reason of a default
of Tenant, there shall be due and owing to Landlord as of the day prior to the Default Termination
Date, as rent in addition to all other amounts owed by Tenant as of such Date, the amount
(“Unamortized Amount”) of the Concession Amount determined as set forth below; provided, however,
that in the event that such amounts are recovered by Landlord pursuant to any other provision of
this Article 19, Landlord agrees that it shall not attempt to recover such amounts pursuant to this
Section 19.3, For the purposes hereof, the



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Unamortized Amount shall be determined in the same manner as the remaining principal balance of a
mortgage with interest at the Amortization Rate payable in level payments over the same length of
time as from the effectuation of the Concession concerned to the end of the full Initial Term of
this Lease would be determined. The foregoing provisions shall also apply to and upon any reduction
of space in the Premises, as though such reduction were a termination for Tenant’s default, except
that (i) the Unamortized Amount shall be reduced by any amounts paid by Tenant to Landlord to
effectuate such reduction and (ii) the manner of application shall be that the Unamortized Amount
shall first be determined as though for a full termination as of the Effective Date of the
elimination of the portion, but then the amount so determined shall be multiplied by the fraction
of which the numerator is the rentable square footage of the eliminated portion and the denominator
is the rentable square footage of the Premises originally leased hereunder; and the amount thus
obtained shall be the Unamortized Amount.


     19.4 If, on account of any breach or default by Tenant in Tenant’s obligations under the
terms and conditions of this Lease, it shall become necessary or appropriate for Landlord to employ
or consult with an attorney or collection agency concerning or to enforce or defend any of
Landlord’s rights or remedies arising under this Lease or to collect any sums due from Tenant,
Tenant agrees to pay all costs and fees so incurred by Landlord, including, without limitation,
reasonable attorneys’ fees and costs. TENANT EXPRESSLY WAIVES ANY RIGHT TO: (A) TRIAL BY JURY; AND
(B) SERVICE OF ANY NOTICE REQUIRED BY ANY PRESENT OR FUTURE LAW OR ORDINANCE APPLICABLE TO
LANDLORDS OR TENANTS BUT NOT REQUIRED BY THE TERMS OF THIS LEASE.



     19.5 Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other
remedies provided in this Lease or any other remedies provided by law (all such remedies being
cumulative), nor shall pursuit of any remedy provided in this Lease constitute a forfeiture or
waiver of any rent due to Landlord under this Lease or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants contained in this Lease.



     19.6 No act or thing done by Landlord or its agents during the Term shall be deemed a
termination of this Lease or an acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of said Premises shall be valid, unless in writing
signed by Landlord. No waiver by Landlord of any violation or breach of any of the terms,
provisions and covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and covenants contained in
this Lease. Landlord’s acceptance of the payment of rental or other payments after the occurrence
of an Event of Default shall not be construed as a waiver of such Default, unless Landlord so
notifies Tenant in writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed to constitute a
waiver of such Default or of Landlord’s right to enforce any such remedies with respect to such
Default or any subsequent Default.


     19.7 To secure the payment of all rentals and other sums of money becoming due from Tenant
under this Lease, Landlord shall have and Tenant grants to Landlord a first lien upon the leasehold
interest of Tenant under this Lease, which lien may be enforced in equity, and a continuing
security interest upon all goods, wares, equipment, fixtures, furniture, inventory, accounts,
contract rights, chattel paper and other personal property of Tenant situated on the Premises, and
such property shall not be removed therefrom without the consent of Landlord until all arrearages
in rent as well as any and all other sums of money then due to Landlord under this Lease shall
first have been paid and discharged. Upon the occurrence of an Event of Default, Landlord shall
have, in addition to any other remedies provided in this Lease or by law, all rights and remedies
under the Uniform Commercial Code, including without limitation the right to sell the property
described in this Section 19.7 at public or private sale upon
five (5) days’ notice to Tenant. Tenant shall execute all such financing statements and other instruments as shall be deemed
necessary or desirable in Landlord’s discretion to perfect the
security interest hereby created.


     19.8 Any and all property which may be removed from the Premises by Landlord pursuant to the
authority of this Lease or of law, to which Tenant is or may be entitled, may be handled, removed
and/or stored, as



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the case may be, by or at the direction of Landlord but at the risk, cost and expense of
Tenant, and Landlord shall in no event be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay to Landlord, upon demand, any and all expenses incurred in such removal
and all storage charges against such property so long as the same shall be in Landlord’s, possession or under Landlord’s control. Any such property of Tenant not retaken by Tenant from storage
within thirty (30) days after removal from the Premises shall, at Landlord’s option, be deemed
conveyed by Tenant to Landlord under this Lease as by a bill of sale without further payment or
credit by Landlord to Tenant.



     19.9 If more than one (1) Event of Default occurs during the Term or any renewal thereof,
Tenant’s renewal options, expansion options, purchase options and rights of first offer and/or
refusal, if any are provided for in this Lease, shall be null and void.


20. TENANT’S BANKRUPTCY OR INSOLVENCY.




     20.1 If at any time and for so long as Tenant shall be subjected to the provisions of the
United States Bankruptcy Code or other law of the United States or any state thereof for the
protection of debtors as in effect at such time (each a “Debtor’s Law”):



          20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or receiver of Tenant’s assets
(each a “Tenant’s Representative”) shall have no greater right to assume or assign this Lease or
any interest in this Lease, or to sublease any of the Premises than accorded to Tenant in
Article 9, except to the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor’s Law. Without limitation of the generality of the
foregoing, any right of any Tenant’s Representative to assume or assign this Lease or to sublease
any of the Premises shall be subject to the conditions that:




               20.1.1.1 Such Debtor’s Law shall provide to Tenant’s Representative a right of
assumption of this Lease which Tenant’s Representative shall have timely exercised and Tenant’s
Representative shall have fully cured any default of Tenant under this Lease.



               20.1.1.2 Tenant’s Representative or the proposed assignee, as the case shall be, shall have
deposited with Landlord as security for the timely payment of rent an amount equal to the larger
of: (a) three (3) months’ rent and other monetary charges accruing under this Lease; and (b) any
sum specified in Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without limitation, such
assurances shall include, at least, in the case of assumption of this Lease, demonstration to the
satisfaction of the Landlord that Tenant’s Representative has and will continue to have sufficient
unencumbered assets after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant’s Representative will have sufficient funds to fulfill the obligations
of Tenant under this Lease; and, in the case of assignment, submission of current financial
statements of the proposed assignee, audited by an independent certified public accountant
reasonably acceptable to Landlord and showing a net worth and working capital in amounts determined
by Landlord to be sufficient to assure the future performance by such assignee of all of the
Tenant’s obligations under this Lease.



               20.1.1.3 The assumption or any contemplated assignment of this Lease or subleasing any part of the
Premises, as shall be the case, will not breach any provision in any other lease, mortgage,
financing agreement or other agreement by which Landlord is bound.



               20.1.1.4 Landlord shall have, or would have had absent the Debtor’s Law, no right under
Article 9 to refuse consent to the proposed assignment or sublease by reason of the identity or
nature of the proposed assignee or sublessee or the proposed use of the Premises concerned.



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21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, while paying the rental and performing its
other covenants and agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises for the Term without hindrance or molestation from Landlord subject to the terms
and provisions of this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the obligations of this
Lease because of such interference or disturbance.



22. CASUALTY.




     22.1 In the event the Premises or the Building are damaged by fire or other cause and
in Landlord’s reasonable estimation such damage can be materially restored within one hundred
eighty (180) days, Landlord shall forthwith repair the same and this Lease shall remain in full
force and effect, except that Tenant shall be entitled to a proportionate abatement in rent from
the date of such damage. Such abatement of rent shall be made pro rata in accordance with the
extent to which the damage and the making of such repairs shall interfere with the use and
occupancy by Tenant of the Premises from time to time. Within forty-five (45) days from the date of
such damage, Landlord shall notify Tenant, in writing, of Landlord’s reasonable estimation of the
length of time within which material restoration can be made, and Landlord’s determination shall be
binding on Tenant. For purposes of this Lease, the Building or Premises shall be deemed “materially
restored” if they are in such condition as would not prevent or materially interfere with Tenant’s
use of the Premises for the purpose for which it was being used immediately before such damage.



     22.2 If such repairs cannot, in Landlord’s reasonable estimation, be made within one hundred
eighty
(180) days, Landlord and Tenant shall each have the option of giving the other, at any time within
ninety (90) days after such damage, notice terminating this Lease as of the date of such damage. In
the event of the giving of such notice, this Lease shall expire and all interest of the Tenant in
the Premises shall terminate as of the date of such damage as if such date had been originally
fixed in this Lease for the expiration of the Term. In the event that neither Landlord nor Tenant
exercises its option to terminate this Lease, then Landlord shall repair or restore such damage,
this Lease continuing in full force and effect, and the rent hereunder shall be proportionately
abated as provided in Section 22.1.



     22.3 Landlord shall not be required to repair or replace any damage or loss by or from fire
or other cause to any panelings, decorations, partitions, additions, railings, ceilings, floor
coverings, office fixtures or any other property or improvements installed on the Premises by, or
belonging to, Tenant. Any insurance which may be carried by Landlord or Tenant against
loss or damage to the Building or Premises shall be for the sole benefit of the party carrying such
insurance and under its sole control,



     22.4 In the event that Landlord should fail to complete such repairs and material
restoration within sixty (60) days after the date estimated by Landlord therefor as extended by
this Section 22.4, Tenant may at its option and as its sole remedy terminate this Lease by
delivering written notice to Landlord, within fifteen (15) days after the expiration of said period
of time, whereupon the Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease for the expiration
of the Term; provided, however, that if construction is delayed because of changes, deletions or
additions in construction requested by Tenant, strikes, lockouts, casualties, Acts of God, war,
material or labor shortages, government regulation or control or other causes beyond the reasonable
control of Landlord, the period for restoration, repair or rebuilding shall be extended for the
amount of time Landlord is so delayed.



     22.5 Notwithstanding anything to the contrary contained in this Article: (a) Landlord shall
not have any obligation whatsoever to repair, reconstruct, or restore the Premises when the damages
resulting from any casualty covered by the provisions of this Article 22 occur during the last
twelve (12) months of the Term or any extension thereof, but if Landlord determines not to repair
such damages Landlord shall notify Tenant and if such damages shall render any material portion of
the Premises untenantable Tenant shall have the right to terminate this Lease by



16









 







notice to Landlord within fifteen (15) days after receipt of Landlord’s notice; and (b) in the
event the holder of any indebtedness secured by a mortgage or deed of trust covering the Premises
or Building requires that any insurance proceeds be applied to such indebtedness, then Landlord
shall have the right to terminate this Lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made by any such holder, whereupon this Lease
shall end on the date of such damage as if the date of such damage were the date originally fixed
in this Lease for the expiration of the Term.



     22.6 In the event of any damage or destruction to the Building or Premises by any peril
covered by the provisions of this Article 22, it shall be Tenant’s responsibility to properly
secure the Premises and upon notice from Landlord to remove forthwith, at its sole cost and
expense, such portion of all of the property belonging to Tenant or its licensees from such portion
or all of the Building or Premises as Landlord shall request.


23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent domain, or
conveyance in lieu of such appropriation, either party to this Lease shall have the right, at its
option, of giving the other, at any time within thirty (30) days after such taking, notice
terminating this Lease, except that Tenant may only terminate this Lease by reason of taking or
appropriation, if such taking or appropriation shall be so substantial as to materially interfere
with Tenant’s use and occupancy of the Premises. If neither party to this Lease shall so elect to
terminate this Lease, the rental thereafter to be paid shall be adjusted on a fair and equitable
basis under the circumstances. In addition to the rights of Landlord above, if any substantial part
of the Building shall be taken or appropriated by any public or quasi-public authority under the
power of eminent domain or conveyance in lieu thereof, and regardless of whether the Premises or
any part thereof are so taken or appropriated, Landlord shall have the right, at its sole option,
to terminate this Lease. Landlord shall be entitled to any and all income, rent, award, or any
interest whatsoever in or upon any such sum, which may be paid or made in connection with any such
public or quasi-public use or purpose, and Tenant hereby assigns to Landlord any interest it may
have in or claim to all or any part of such sums, other than any separate award which may be made
with respect to Tenant’s trade fixtures and moving expenses; Tenant shall make no claim for the
value of any unexpired Term.



24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the Building, the
same shall operate to release Landlord from any future liability upon any of the covenants or
conditions, expressed or implied, contained in this Lease in favor of Tenant, and in such event
Tenant agrees to look solely to the responsibility of the successor in interest of Landlord in and
to this Lease. Except as set forth in this Article 24, this Lease shall not be affected by any such
sale and Tenant agrees to attorn to the purchaser or assignee. If any security has been given by
Tenant to secure the faithful performance of any of the covenants of this Lease, Landlord may
transfer or deliver said security, as such, to Landlord’s successor in interest and thereupon
Landlord shall be discharged from any further liability with regard to said security.



25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request which
Landlord may make from time to time, Tenant shall execute and deliver to Landlord or mortgagee or
prospective mortgagee a sworn statement certifying: (a) the date of commencement of this Lease; (b)
the fact that this Lease is unmodified and in full force and effect (or, if there have been
modifications to this Lease, that this lease is in full force and effect, as modified, and stating the date and nature of such modifications); (c) the date to which the
rent and other sums payable under this Lease have been paid; (d) the fact that there are no current
defaults under this Lease by either Landlord or Tenant except as specified in Tenant’s statement;
and (e) such other matters as may be requested by Landlord. Landlord and Tenant intend that any
statement delivered pursuant to this Article 25 may be relied upon by any mortgagee, beneficiary or
purchaser, and Tenant shall be liable for all loss, cost or expense resulting from the failure of
any sale or funding of any loan caused by any material misstatement contained in such estoppel
certificate. Tenant irrevocably agrees that if Tenant fails to execute
and deliver such certificate within such ten (10) day period Landlord or Landlord’s beneficiary or
agent may execute and deliver such certificate on Tenant’s behalf, and that such certificate shall
be fully binding on Tenant.


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26. SURRENDER OF PREMISES.




     26.1 Tenant shall arrange to meet Landlord for two (2) joint inspections of the Premises,
the first to occur at least thirty (30) days (but no more than sixty (60) days) before the last day
of the Term, and the second to occur not later than forty-eight (48) hours after Tenant has vacated
the Premises. In the event of Tenant’s failure to arrange such joint inspections and/or participate
in either such inspection, Landlord’s inspection at or after Tenant’s vacating the Premises shall
be conclusively deemed correct for purposes of determining Tenant’s responsibility for repairs and
restoration.



     26.2 All alterations, additions, and improvements in, on, or to the Premises made or
installed by or for Tenant, including, without limitation, carpeting (collectively, “Alterations”),
shall be and remain the property of Tenant during the Term, Upon the expiration or sooner
termination of the Term, all Alterations shall become a part of the realty and shall belong to
Landlord without compensation, and title shall pass to Landlord under this Lease as by a bill of
sale. At the end of the Term or any renewal of the Term or other sooner termination of this Lease,
Tenant will peaceably deliver up to Landlord possession of the Premises, together with all
Alterations by whomsoever made, in the same conditions received or first installed, broom clean and
free of all debris, excepting only ordinary wear and tear and damage by fire or other casualty.
Notwithstanding the foregoing, if Landlord elects by notice given to Tenant at least ten (10) days
prior to expiration of the Term, Tenant shall, at Tenant’s sole cost, remove any Alterations,
including carpeting, so designated by Landlord’s notice, and repair any damage caused by such
removal Tenant must, at Tenant’s sole cost, remove upon termination of this Lease, any and all of
Tenant’s furniture, furnishings, equipment, movable partitions of less than full height from floor
to ceiling and other trade fixtures and personal property, as well as all data/telecommunications
cabling and wiring installed by or on behalf of Tenant, whether inside walls, under any raised
floor or above any ceiling (collectively, “Personalty”). Personalty not so removed shall be deemed
abandoned by the Tenant and title to the same shall thereupon pass to Landlord under this Lease as
by a bill of sale, but Tenant shall remain responsible for the cost of removal and disposal of such
Personalty, as well as any damage caused by such removal. In lieu of requiring Tenant to remove
Alterations and Personalty and repair the Premises as aforesaid, Landlord may, by written notice to
Tenant delivered at least thirty (30) days before the Termination Date, require Tenant to pay to
Landlord, as additional rent hereunder, the cost of such removal and repair in an amount reasonably
estimated by Landlord.



     26.3 All obligations of Tenant under this Lease not fully performed as of the expiration or
earlier termination of the Term shall survive the expiration or earlier termination of the Term.
Upon the expiration or earlier termination of the Term, Tenant shall pay to Landlord the amount, as
estimated by Landlord, necessary to repair and restore the Premises as provided in this Lease
and/or to discharge Tenant’s obligation for unpaid amounts due or to become due to Landlord. All
such amounts shall be used and held by Landlord for payment of such obligations of Tenant, with
Tenant being liable for any additional costs upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and satisfied. Any otherwise
unused Security Deposit shall be credited against the amount payable by Tenant under this Lease.


27. NOTICES. Any notice or document required or permitted to be delivered under this Lease
shall be addressed to the intended recipient, shall be transmitted by fully prepaid registered or
certified United States Mail return receipt requested, or by reputable independent contract
delivery service furnishing a written record of attempted or actual delivery, and shall be deemed
to be delivered when tendered for delivery to the addressee at its address set forth on the
Reference Pages, or at such other address as it has then last specified by written notice delivered
in accordance with this Article 27, or if to Tenant at either its aforesaid address or its last
known registered office or home of a general partner or individual owner, whether or not actually
accepted or received by the addressee. Any such notice or document may also be personally delivered
if a receipt is signed by and received from, the individual, if any, named in Tenant’s Notice
Address. Landlord agrees to send a duplicate copy of any default notices sent to Tenant under this
Lease to 3701 W. Piano Parkway, Suite 300, Plano, TX 75075.





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28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by Tenant
under this Lease, Tenant shall reimburse to Landlord, upon demand, any and all taxes payable by
Landlord (other than net income taxes) whether or not now customary or within the contemplation of
the parties to this Lease: (a) upon, allocable to, or measured by or on the gross or net rent
payable under this Lease, including without limitation any margin tax pursuant to Chapter 171 of
the Texas Tax Code (as the same may be amended, renewed, or replaced from time to time) imposed on
Landlord and computed with respect to rents payable under this Lease, and any gross income tax or
excise tax levied by a State, any political subdivision thereof, or the Federal Government with
respect to the receipt of such rent; (b) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy of the Premises or any
portion thereof, including any sales, use or service tax imposed as a result thereof; (c) upon or
measured by the Tenant’s gross receipts or payroll or the value of Tenant’s equipment, furniture,
fixtures and other personal property of Tenant or leasehold improvements, alterations or additions
located in the Premises; or (d) upon this transaction or any document to which Tenant is a party
creating or transferring any interest of Tenant in this Lease or the
Premises. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied or assessed against
Tenant and which become payable during the term hereof upon Tenant’s equipment, furniture, fixtures
and other personal property of Tenant
located in the Premises.



29. RELOCATION OF TENANT. Landlord, at its sole expense, on at least sixty (60) days prior
written notice, may require Tenant to move from the Premises to other space of comparable size and
decor in order to permit Landlord to consolidate the space leased to Tenant with other adjoining
space leased or to be leased to another tenant. In the event of any such relocation, Landlord will
pay all expenses of preparing and decorating the new premises so that they will be substantially
similar to the Premises from which Tenant is moving, and Landlord will also pay the expense of
moving Tenant’s furniture and equipment to the relocated premises. In such event this Lease and
each and all of the terms and covenants and conditions hereof shall remain in full force and effect
and thereupon be deemed applicable to such new space except that revised Reference Pages and a
revised Exhibit A shall become part of this Lease and shall reflect the location of the new
premises.



30. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for
convenience of reference and shall in no way define, increase, limit or describe the scope or
intent of any provision of this Lease. Any indemnification or insurance of Landlord shall apply to
and inure to the benefit of all the following “Landlord Entities”, being Landlord, Landlord’s
investment manager, and the trustees, boards of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of them. Any option granted to Landlord
shall also include or be exercisable by Landlord’s trustee, beneficiary, agents and employees, as
the case may be. In any case where this Lease is signed by more than one person, the obligations
under this Lease shall be joint and several. The terms “Tenant” and “Landlord” or any pronoun used
in place thereof shall indicate and include the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and their and each of their respective successors,
executors, administrators and permitted assigns, according to the context hereof. The term
“rentable area” shall mean the rentable area of the Premises or the Building as calculated by the
Landlord on the basis of the plans and specifications of the Building including a proportionate
share of any common areas. Tenant hereby accepts and agrees to be bound by the figures for the
rentable square footage of the Premises and Tenant’s Proportionate Share shown on the Reference
Pages; however, Landlord may adjust either or both figures if there is manifest error, addition or
subtraction to the Building or any business park or complex of which the Building is a part,
remeasurement or other circumstance reasonably justifying adjustment. The term “Building” refers to
the structure in which the Premises are located and the common areas (parking lots, sidewalks,
landscaping, etc.) appurtenant thereto. If the Building is part of a larger complex of structures,
the term “Building” may include the entire complex, where appropriate (such as shared Expenses or
Taxes) and subject to Landlord’s reasonable discretion.



31. TENANT’S AUTHORITY. If Tenant signs as a corporation, partnership, trust or other
legal entity each of the persons executing this Lease on behalf of Tenant represents and warrants
that Tenant has been and is qualified to do business in the state in which the Building is located,
that the entity has full right and authority to enter into this Lease, and that all persons signing
on behalf of the entity were authorized to do so by appropriate actions. Tenant


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agrees to deliver to-Landlord, simultaneously with the delivery of this Lease, a corporate
resolution, proof of due authorization by partners, opinion of counsel or other appropriate
documentation reasonably acceptable to Landlord evidencing the due authorization of Tenant to enter
into this Lease.



Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any
legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that
is established by Executive Order of the President or published by the Office of Foreign Assets
Control, U.S. Department of the Treasury (“OFAC”); (ii) designated by the President or OFAC
pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order
13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such
statutes; or (iii) named on the following list that is published by OFAC: “List of Specially
Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time
during the Term, an Event of Default will be deemed to have occurred, without the necessity of
notice to Tenant.



32. FINANCIAL STATEMENTS AND CREDIT REPORTS. At Landlord’s request, Tenant shall deliver
to Landlord a copy, certified by an officer of Tenant as being a true and correct copy, of Tenant’s
most recent audited financial statement, or, if unaudited, certified by Tenant’s chief financial
officer as being true, complete and correct in all material respects. Tenant hereby authorizes
Landlord to obtain one or more credit reports on Tenant at any time, and shall execute such further
authorizations as Landlord may reasonably require in order to obtain a credit report.



33. COMMISSIONS. Each of the parties represents and warrants to the other that it has not
dealt with any broker or finder in connection with this Lease, except as described on the Reference
Pages.



34. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the state in which the
Building is located.


35. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms, covenants
and conditions contained in this Lease shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the parties to this Lease.



36. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all agreements of
the parties to this Lease and supersedes any previous negotiations. There have been no
representations made by the Landlord or any of its representatives or understandings made between
the parties other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument duly executed by the parties to this Lease.



37. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound by this Lease until it has received a copy
of this Lease duly executed by Tenant and has delivered to Tenant a copy of this Lease duly
executed by Landlord, and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the contrary, Landlord may
withhold delivery of possession of the Premises from Tenant until such time as Tenant has paid to
Landlord any security deposit required by Article 5, the first month’s rent as set forth in Article
3 and any sum owed pursuant to this Lease.



38. RECORDATION. Tenant shall not record or register this Lease or a short form memorandum
hereof without the prior written consent of Landlord, and then shall pay all charges and taxes
incident such recording or registration.



39. RENEWAL OPTION. Tenant shall have, at its option (the “Renewal Option”), the right to
renew and extend this Lease for one term of five (5) years (the “Renewal Term”). The Renewal Term
shall commence


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immediately upon the expiration of the initial Term by Tenant’s giving written notice
thereof to Landlord no earlier than twelve (12) months, and no later than six (6) months, prior to
the expiration of the initial Term. Once Tenant shall exercise any Renewal Option, Tenant may not
thereafter revoke such exercise, except as expressly set forth below. Tenant shall not have the
right to exercise the Renewal Option at a time that an Event of Default (or an event which with
notice and/or lapse of time could become an Event of Default) under this Lease has occurred.
Tenant’s failure to exercise timely the Renewal Option for any reason whatsoever shall conclusively
be deemed a waiver thereof. At Landlord’s option, Landlord may adjust the Annual Rent for the
Renewal Term at an annual rate equal to the Fair Market Value Rate (as hereinafter defined) as of
the commencement of the Renewal Term. As used in this. Lease, “Fair Market Value Rate” shall mean
the fair market value rental rate per square foot of rentable area per year in effect at the
commencement of the Renewal Term for comparable tenants taking comparable space in comparable
conditions under comparable terms in comparable buildings in the same rental market (hereinafter
called “Comparable Buildings”); provided, however, that in no event shall the Annual Rent for the
Renewal Term be less than the Annual Rent for the last twelve (12) months of the initial Term. It
is also agreed and understood that the Fair Market Value Rate shall include: (a) rent; and (b)
rental operating expenses, property tax, and utility and expense adjustments that are being
included as part of the terms and conditions of industrial tenant leases for comparable tenants in
Comparable Buildings as of the time of determination of the Fair Market Value Rate. Landlord shall
advise Tenant within twenty (20) days after Tenant exercises the Renewal Option of the Fair Market
Value Rate which shall be in effect as of the commencement date of the Renewal Term. Tenant shall
then have fifteen (15) days to notify Landlord of its acceptance or rejection of the Fair Market
Value Rate for the Renewal Term. In the event Tenant fails to so notify Landlord within such
fifteen (15) day period, Tenant shall be deemed to have accepted the Fair Market Value Rate
proposed by Landlord. Notwithstanding the prohibition on Tenant’s right to revoke its exercise of
the Renewal Option, in the event Tenant and Landlord are unable to agree on the Fair Market Value
Rate for the Renewal Term within sixty (60) days after Tenant exercises the Renewal Option, Tenant
shall be deemed to have revoked the Renewal Option and the Renewal Option shall be deemed null and
void and of no further force or effect. Tenant shall take the Premises “as is” for the Renewal Term
and Landlord shall have no obligation to make any improvements or alterations to the Premises.
Except as set forth in this Article, the leasing of the Premises for the Renewal Term shall be upon
the same terms and conditions as the leasing of the Premises for the initial Term and shall be upon
and subject to all of the provisions of this Lease. Any Renewal Option granted to Tenant under this
Article shall be personal to Tenant and shall not be transferred, encumbered, or assigned by Tenant
or in any manner transferred to, or exercised by, any subtenant of Tenant.



40. LIMITATION OF LANDLORD’S LIABILITY. Redress for any claim against Landlord under this
Lease shall be limited to and enforceable only against and to the extent of Landlord’s interest in
the Building. The obligations of Landlord under this Lease are not intended to be and shall not be
personally binding on, nor shall any resort be had to the private properties of, any of its or its
investment manager’s trustees, directors, officers, partners, beneficiaries, members, stockholders,
employees, or agents, and in no case shall Landlord be liable to Tenant hereunder for any lost
profits, damage to business, or any form of special, indirect or consequential damages.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	 	 	TENANT:  
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	VALWOOD CENTREPORT, LP, a Texas limited 

partnership	 	 	 	VIEWCAST.COM, INC., a Delaware corporation  
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	RREEF Management Company, a Delaware	 	By:	 	/s/ David T. Stoner	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	corporation, Authorized Agent	 	Name: DAVID T. STONER
	 	 	 	 	 	 	 	 	Title: PRESIDENT
	 	 	 	 	 	 	 	 	Dated: OCT 17, 2006
	 

	 	By:
	 	/s/ Anthony James	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name: Anthony James	 	 	 	 	 	 
	 	 	Title: Vice President, District Manager	 	 	 	 	 	 
	 	 	Dated: October 28, 2006	 	 	 	 	 	 






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EXHIBIT A — FLOOR PLAN DEPICTING THE PREMISES




attached to and made a part of Lease bearing the

Lease Reference Date of October 16, 2006 between

Valwood Centreport, LP, a Texas limited partnership, as Landlord and

ViewCast.com, Inc., a Delaware corporation, as Tenant




1825 Monetary Lane, Suite 104, Carrollton, Texas, containing approximately 16,575 square feet



Exhibit A is intended only to show the general layout of the Premises as of the beginning of the
Term of this Lease. It does not in any way supersede any of Landlord’s rights set forth in Article
17 with respect to arrangements and/or locations of public parts of the Building and changes in
such arrangements and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.









	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






 









 





EXHIBIT A-1 — SITE PLAN




attached to and made a part of Lease bearing the

Lease Reference Date of October 16, 2006 between

Valwood Centreport, LP, a Texas limited partnership, as Landlord and

ViewCast.com, Inc., a Delaware corporation, as Tenant




Valwood Park Centreport — 1825, Carrollton, Texas



Exhibit A-l is intended only to show the general location of the Premises as of the beginning of
the Term of this Lease. It does not in any way supersede any of Landlord’s rights set forth in
Article 17 with respect to arrangements and/or locations of public parts of the Building and
changes in such arrangements and/or locations. It is not to be scaled; any measurements or
distances shown should be taken as approximate.









	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






 









 





EXHIBIT B — INITIAL ALTERATIONS




attached to and made a part of Lease bearing the

Lease Reference Date of October 16, 2006 between

Valwood Centreport, LP, a Texas limited partnership, as Landlord and

ViewCast.com, Inc., a Delaware corporation, as Tenant



Tenant shall take the Premises in its “as-is” condition except for certain Leasehold Improvements
(herein so called) to the Premises which shall be completed in accordance with the terms of this
Exhibit B. Landlord agrees to submit plans and specifications for the Leasehold Improvements to
Tenant for written approval. Tenant shall advise Landlord, no later than two (2) days after receipt
of such plans and specifications, of its approval of such plans and specifications or, if
applicable, of any matters which are unsatisfactory or require change. The approved plans and
specifications, including all changes required by Landlord, shall be referred to herein as the
“Approved Plans”.



Landlord shall complete the Leasehold Improvements by hiring a contractor to install or construct
the Leasehold Improvements in accordance with the Approved Plans. So long as no Event of Default
(or any event which with notice and/or lapse of time could become an Event of Default) has occurred
under the Lease, Landlord agrees to provide Tenant an allowance equal to Thirty-Three Thousand One
Hundred Fifty and No/100 Dollars ($33,150.00) (the “Improvement Allowance”), which allowance is to
be used solely for completion of the Leasehold Improvements and satisfaction of any architectural
or design fees, Any work (labor or materials) outside the scope of the Approved Plans or the cost
of which is in excess of the Improvement Allowance shall be at Tenant’s sole cost and expense.



Tenant agrees that within five (5) days after receipt of a copy of the contractor’s estimate (the
“Estimate”) for completion of the Leasehold Improvements, Tenant shall deliver to Landlord an
immediately negotiable check in an amount equal to the deficiency remaining after deducting the
amount of the Improvement Allowance from the total amount set forth in the Estimate (such
deficiency being referred to as “Tenant’s Contribution”). Notwithstanding the foregoing, Tenant
shall remain liable for the excess of (i) any actual costs or expenses incurred for completion of
the Leasehold Improvements and satisfaction of any architectural or design fees, over (ii) the sum
of the Improvement Allowance and Tenant’s Contribution. Tenant shall reimburse Landlord for any
such additional amount within thirty (30) days after receipt of an invoice therefor, and if not
paid within such ten (10) day period, Landlord shall be entitled to a late charge equal to ten
percent (10%) of such additional amount. In addition, should the actual cost of completing the
Leasehold Improvements in accordance with the Approved Plans and satisfying any architectural or
design fees be less than the Estimate, Landlord shall refund the excess of (a) the sum of the
Improvement Allowance and Tenant’s Contribution, over (b) the actual cost of completing the
Leasehold Improvements and satisfying any architectural or design fees, provided that such refund
shall be no greater than Tenant’s Contribution. Any portion of the Improvement Allowance remaining
upon completion of the Leasehold Improvements shall be deemed forfeited by Tenant.



Tenant acknowledges and agrees that Landlord has conditioned its agreement to complete the
Leasehold Improvements on the funding of the Improvement Allowance on or before March 31, 2008. In
the event Landlord and Tenant have not agreed upon the Approved Plans on or before December 31,
2007, Landlord will have no further obligation to complete the Leasehold Improvements, and the
Improvement Allowance shall be deemed forfeited by Tenant.




	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






 









 





EXHIBIT C — INTENTIONALLY DELETED




attached to and made a part of Lease bearing the

Lease Reference Date of October 16, 2006 between

Valwood Centreport, LP, a Texas limited partnership, as Landlord and

ViewCast.com, Inc., a Delaware corporation, as Tenant




	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






 









 





EXHIBIT D — RULES AND REGULATIONS




attached to and made a part of Lease bearing the

Lease Reference Date of October 16, 2006 between

Valwood Centreport, LP, a Texas limited partnership, as Landlord and

ViewCast.com, Inc., a Delaware corporation, as Tenant



1. No sign, placard, picture, advertisement, name or notice (collectively referred to as
“Signs”) shall be installed or displayed on any part of the outside of the Building without the
prior written consent of the Landlord which consent shall be in Landlord’s sole discretion. All
approved Signs shall be printed, painted, affixed or inscribed at Tenant’s expense by a person or
vendor approved by Landlord and shall be removed by Tenant at Tenant’s expense upon vacating the
Premises. Landlord shall have the right to remove any Sign installed or displayed in violation of
this rule at Tenant’s expense and without notice.



2. If Landlord objects in writing to any curtains, blinds, shades or screens attached to
or hung in or used in connection, with any window or door of the Premises or Building, Tenant shall
immediately discontinue such use. No awning shall be permitted on any part of the Premises. Tenant
shall not place anything or allow anything to be placed against or near any glass partitions or
doors or windows which may appear unsightly, in the opinion of Landlord, from outside the Premises.



3. Tenant shall not alter any lock or other access device or install a new or additional
lock or access device or bolt on any door of its Premises without the prior written consent of
Landlord. Tenant, upon the termination of its tenancy, shall deliver to Landlord the keys or other
means of access to all doors.



4. If Tenant requires telephone, data, burglar alarm or similar service, the cost of
purchasing, installing and maintaining such service shall be borne solely by Tenant. No boring or
cutting for wires will be allowed without the prior written consent of Landlord. Landlord shall
direct electricians as to where and how telephone, data, and electrical wires are to be introduced
or installed. The location of burglar alarms, telephones, call boxes or other office equipment
affixed to the Premises shall be subject to the prior written approval of Landlord.



5. Tenant shall not place a load upon any floor of its Premises, including mezzanine
area, if any, which exceeds the load per square foot that such floor was designed to carry and that
is allowed by law. Heavy objects shall stand on such platforms as determined by Landlord to be
necessary to properly distribute the weight. Landlord will not be responsible for loss of or damage
to any such equipment or other property from any cause, and all damage done to the Building by
maintaining or moving such equipment or other property shall be repaired at the expense of Tenant.



6. Tenant shall not install any radio or television antenna, satellite dish, loudspeaker
or other device on the roof or exterior walls of the Building without Landlord’s prior written
consent which consent shall be in Landlord’s sole discretion.



7. Tenant shall not mark, drive nails, screw or drill into the partitions, woodwork,
plaster or drywall (except for pictures and general office uses) or in any way deface the Premises
or any part thereof. Tenant shall not affix any floor covering to the floor of the Premises or
paint or seal any floors in any manner except as approved by Landlord. Tenant shall repair any
damage resulting from noncompliance with this rule.




	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






D-1 









 




8. No cooking shall be done or permitted on the Premises, except that Underwriters’
Laboratory approved microwave ovens or equipment for brewing coffee, tea, hot chocolate and similar
beverages shall be permitted, provided that such equipment and use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and regulations.



9. Tenant shall not use any hand trucks except forklifts and those equipped with rubber
tires and side guards, and may use such other material-handling equipment as Landlord may approve.
Tenant shall not bring any other vehicles of any kind into the Building. Forklifts which operate on
asphalt areas shall only use tires that do not damage the asphalt.



10. Tenant shall not use the name of the Building or any photograph or other likeness of
the Building in connection with or in promoting or advertising Tenant’s business except that Tenant
may include the Building name in Tenant’s address. Landlord shall have the right, exercisable
without notice and without liability to any tenant, to change the name and address of the Building.



11. All trash and refuse shall be contained in suitable receptacles at locations approved
by Landlord. Tenant shall not place in the trash receptacles any personal trash or material that
cannot be disposed of in the ordinary and customary manner of removing such trash without violation
of any law or ordinance governing such disposal.



12. Tenant shall comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governing authority.



13. Tenant assumes all responsibility for securing and protecting its Premises and its
contents including keeping doors locked and other means of entry to the Premises closed.



14. Tenant shall not use any method of heating or air conditioning other than that
supplied by Landlord without Landlord’s prior written consent.



15. No person shall go on the roof without Landlord’s permission.



16. Tenant shall not permit any animals, other than seeing-eye dogs, to be brought or kept
in or about the Premises or any common area of the property.



17. Tenant shall not permit any motor vehicles to be washed or mechanical work or
maintenance of motor vehicles to be performed on any portion of the Premises or parking lot.



18. These Rules and Regulations are in addition to, and shall not be construed to in any
way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of any
lease of any premises in the Building. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any tenant or tenants, and any such waiver by Landlord shall not be
construed as a waiver of such Rules and Regulations for any or all tenants.



19. Landlord reserves the right to make such other and reasonable rules and regulations as
in its
judgment may from time to time be needed for safety and security, for care and cleanliness of the
Building and for the preservation of good order in and about the Building. Tenant agrees to abide
by all such rales and regulations herein stated and any additional rules and regulations which are
adopted. Tenant shall be responsible for the observance of all of the foregoing rules by Tenant’s
employees, agents, clients, customers, invitees and guests.




	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant






D-2 









 




20. Any toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no foreign substance of
any kind whatsoever shall be thrown into them. The expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the Tenant who, or whose employees or
invitees, shall have caused it.



21. Tenant shall not permit smoking or carrying of lighted cigarettes or cigars in areas
reasonably designated by Landlord or any applicable governmental agencies as non-smoking areas.



22. Any directory of the Building or project of which the Building is a part (“Project
Area”), if provided, will be exclusively for the display of the name and location of tenants only
and Landlord reserves the right to charge for the use thereof and to exclude any other names.



23. Canvassing, soliciting, distribution of handbills or any other written material in the
Building or Project Area is prohibited and each tenant shall cooperate to prevent the same. No
tenant shall solicit business from other tenants or permit the sale of any goods or merchandise in
the Building or Project Area without the written consent of Landlord.



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



25. Driveways, sidewalks, halls, passages, exits, entrances and stairways (“Access Areas”)
shall not be obstructed by tenants or used by tenants for any purpose other than for ingress to and
egress from their respective premises. Access areas are not for the use of the general public and
Landlord shall in all cases retain the right to control and prevent access thereto by all persons
whose presence, in the judgement of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building or its tenants.



26. Landlord reserves the right to designate the use of parking areas and spaces. Tenant
shall not park in visitor, reserved, or unauthorized parking areas. Tenant and Tenant’s guests
shall park between designated parking lines only and shall not park motor vehicles in those areas
designated by Landlord for loading and unloading. Vehicles in violation of the above shall be
subject to being towed at the vehicle owner’s expense. Vehicles parked overnight without prior
written consent of the Landlord shall be deemed abandoned and shall be subject to being towed at
vehicle owner’s expense. Tenant will from time to time, upon the request of Landlord, supply
Landlord with a list of license plate numbers of vehicles owned or operated by its employees or
agents.



27. No trucks, tractors or similar vehicles can be parked anywhere other than in Tenant’s
own truck dock area. Tractor-trailers which must be unhooked or parked with dolly wheels beyond the
concrete loading areas must use steel plates or wood blocks under the dolly wheels to prevent
damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted in
the parking areas or on streets adjacent thereto.



28. During periods of loading and unloading, Tenant shall not unreasonably interfere with
traffic flow and loading and unloading areas of other tenants. All products, materials or goods
must be stored within the Tenant’s Premises and not in any exterior areas, including, but not
limited to, exterior dock platforms, against the exterior of the Building, parking areas and
driveway areas. Tenant agrees to keep the exterior of the Premises clean and free of nails, wood,
pallets, packing materials, barrels and any other debris produced from their operation.




	 	 	 	 	 
	 

	 	AJ
	 	DTS
	 

	 	Landlord
	 	Tenant







D-3