**EXHIBIT10.1**

 

 

 

 

 

 

 

 

 

 

**OFFICELEASE BETWEEN 3960 HHP LLC(“LANDLORD”)ANDNORTHWEST POWER MANAGEMENT, INC.(“TENANT”)**

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**TABLE OF CONTENTS**
| 1.  | **Basic Lease Information.**                           |   |
|-----|--------------------------------------------------------|--------|
| 2.  | **Lease Grant.**                                       |   |
| 3.  | **Term; Adjustment of  Commencement Date.**            |   |
| 4.  | **Rent.**                                              |   |
| 5.  | **Tenant’s Use of Premises.**                     |   |
| 6.  | **Security Deposit.**                                  |   |
| 7.  | **Services Furnished by Landlord.**                    |   |
| 8.  | **Use of Electrical Services by  Tenant.**             |   |
| 9.  | **Repairs and Alterations.**                           |   |
| 10. | **Entry by Landlord.**                                 |   |
| 11. | **Assignment and Subletting.**                         |   |
| 12. | **Liens.**                                             |   |
| 13. | **Indemnity.**                                         |   |
| 14. | **Insurance.**                                         |   |
| 15. | **Mutual Waiver of Subrogation.**                      |   |
| 16. | **Casualty Damage.**                                   |   |
| 17. | **Condemnation.**                                      |   |
| 18. | **Events of Default.**                                 |   |
| 19. | **Remedies.**                                          |   |
| 20. | **Limitation of Liability.**                           |   |
| 21. | **No Waiver.**                                         |   |
| 22. | **Tenant’s Right to Possession.**                 |   |
| 23. | **Relocation.**                                        |   |
| 24. | **Holding Over.**                                      |   |
| 25. | **Subordination to Mortgages;  Estoppel Certificate.** |   |
| 26. | **Attorneys’ Fees.**                              |   |
| 27. | **Notice.**                                            |   |
| 28. | **Reserved Rights.**                                   |   |
| 29. | **Surrender of Premises.**                             |   |
| 30. | **Hazardous Materials.**                               |   |
| 31. | **Building Directory.**                                |   |
| 32. | **Miscellaneous.**                                     |   |

 

**EXHIBITSAND RIDERS**:
| EXHIBIT A-1 | OUTLINE AND LOCATION OF PREMISES |
|-------------|----------------------------------|
| EXHIBIT A-2 | LEGAL DESCRIPTION OF PROPERTY    |
| EXHIBIT B   | RULES AND REGULATIONS            |
| EXHIBIT C   | COMMENCEMENT LETTER              |
| EXHIBIT D   | WORK LETTER                      |
| EXHIBIT E   | PARKING AGREEMENT                |

 

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**OFFICELEASE**

This Office Lease (this “***Lease***”) is enteredinto by and between 3960 HHP LLC, a Delaware limited liability company (“***Landlord***”), and NORTHWEST  POWER MANAGEMENT, INC., a Washingtoncorporation (“***Tenant***”), and shall beeffective as of the date set forth below Landlord’s signature (the “***Effective Date***”).

1.             **Basic Lease Information**.  The key business terms used in this Lease aredefined as follows:

 

##                 **A.           **“***Building***”:  The building commonly known as “3960 HowardHughes Parkway” and located in Las Vegas, Nevada 89109.

##                 **B.           **“***RentableSquare Footage of the Building***” is agreed and stipulated to be 161,541square feet.

                **C.**            “***Premises***”:  The area shown on **ExhibitA-1** to this Lease.  ThePremises are located on the fourth floor of the Building and known as suitenumber 460.  The “***RentableSquare Footage of the Premises***” is deemed to be 4,106 squarefeet.  The “***UsableSquare Footage of the Premises***” is deemed to be 3,586 squarefeet.  If the Premises include, now orhereafter, one or more floors in their entirety, all corridors and restroomfacilities located on such full floor(s) shall be considered part of thePremises.  Landlord and Tenant stipulateand agree that the Rentable Square Footage of the Building, the Rentable SquareFootage of the Premises, and the Usable Square Footage of the Premises arecorrect and shall not be remeasured.

 

## **D.           **“***Base Rent***”:

| **Period**      | ** ** | **Monthly Rate  Per Rentable Square Foot** | ** ** | **Monthly Base Rent** |
|-----------------|------------|--------------------------------------------|------------|-----------------------|
| CD              | to         | Lease  Month 12                            |       | $2.75                 |   | $11,291.50 |
| Lease  Month 13 | to         | Lease  Month 24                            |       | $2.83                 |   | $11,619.98 |
| Lease  Month 25 | to         | Lease  Month 36                            |       | $2.91                 |   | $11,948.46 |
| Lease  Month 37 | to         | Lease  Month 48                            |       | $3.00                 |   | $12,318.00 |
| Lease  Month 49 | to         | ED                                         |       | $3.09                 |   | $12,687.54 |

CD= Commencement Date                              ED= Expiration Date

## **                E.            **“***Tenant’s Pro Rata Share***”:  The percentage equal to the Rentable SquareFootage of the Premises divided by the Rentable Square Footage of the Building.

##                 **F.            **“***BaseYear***” for Operating Expenses: 2006.

##                 **G.           **“***Term***”:  The period of approximately sixty (60) monthsstarting on the Commencement Date, subject to the provisions of **Article 3**.

                **H.           **“***Estimated Commencement Date***”:  February 1, 2006, subject to adjustment, ifany, as provided in **Section3.A** and the Work Letter, if any.

 

## **                I.             **“***Security Deposit***”:  $33,874.50.

## ***               ******J******.            ******“******Guarantor(s)***”:  None.

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

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

 

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## allrestrictive covenants existing of record and all rules and requirements of anyexisting association or improvement district affecting the Property.

## **M.          **“***NormalBusiness Hours***”:  8:00 A.M.to 6:00 P.M. on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays,exclusive of Holidays.

## **N.           **“***NoticeAddresses***”:

*Tenant*:  Onor after the Commencement Date, notices shall be sent to Tenant at thePremises.  Prior to the CommencementDate, notices shall be sent to Tenant at the following address:
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|                                                                                                                                                               |                                                                                                                                                 |                                                                                                                                        |
|                                                                                                                                                               |                                                                                                                                                 |                                                                                                                                        |
| Attn:                                                                                                                                                              |                                                                                                                                                 |                                                                                                                                        |   |
| Phone #:                                                                                                                                                           |                                                                                                                                                 |                                                                                                                                        |   |
| Fax #:                                                                                                                                                             |                                                                                                                                                 |                                                                                                                                        |   |
|                                                                                                                                                               |                                                                                                                                                 |                                                                                                                                        |
| *Landlord:* 

 

3800 Howard Hughes  Parkway, Suite 150  Las Vegas, Nevada 89109  Attn: Property Manager  Phone #: (702) 791-4334  Fax #: (702) 791-4354 | *With a  copy to:*

 

2000 Post Oak Blvd.

Suite 1950  Houston, Texas 77056  Attn:Jane B. Page  Phone #: (713) 840-1170  Fax #: (713) 840-1180 | *And to:*

 

777 Main Street,  Suite 2100  Fort Worth, Texas 76102  Attn: Legal Dept.  Phone #: (817) 321-2100  Fax #: (817) 321-2000 |
|                                                                                                                                                                    |                                                                                                                                                      |                                                                                                                                             |  |  |  |

 

Rent (defined in Section 4.A) is payable to the order of 3960 HHPLLC, at the following address:  File No.57499, Los Angeles, California 90074-7499; or by wire transfer to Bank ofAmerica, Dallas, Texas, ABA #111-0000-25, for further credit to 3960 HHP LLC,Account #004781670328, Tenant:  NORTHWESTPOWER MANAGEMENT, INC., 3960 Howard Hughes Parkway.

 

## **O.           **“***Other Defined Terms***”:  In addition to the terms defined above, anindex of the other defined terms used in the text of this Lease is set forthbelow, with a cross-reference to the paragraph in this Lease in which thedefinition of such term can be found:

| Affiliate                      |   | 11.E  |   | Mortgagee                         |   | 25           |
|--------------------------------|--------|-------|--------|-----------------------------------|--------|--------------|
| Alterations                    |   | 9.C(1 | )      | Operating Expenses                |   | 4.D          |
| Audit Election Period          |   | 4.G   |   | Permitted Transfer                |   | 11.E         |
| Cable                          |   | 9.A   |   | Permitted Use                     |   | 5.A          |
| Claims                         |   | 13    |   | Prime Rate                        |   | 19.B         |
| Collateral                     |   | 19.E  |   | Property                          |   | 2            |
| Commencement Date              |   | 3.A   |   | Provider                          |   | 7.C          |
| Common Areas                   |   | 2     |   | Relocated Premises                |   | 23           |
| Completion Estimate            |   | 16.B  |   | Relocation Date                   |   | 23           |
| Contamination                  |   | 30.C  |   | Rent                              |   | 4.A          |
| Costs of Reletting             |   | 19.B  |   | Service Failure                   |   | 7.B          |
| Excess Operating Expenses      |   | 4.B   |   | Special Installations             |   | 29           |
| Expiration Date                |   | 3.A   |   | Substantial Completion            |   | Work  Letter |
| Force Majeure                  |   | 32.C  |   | Taking                            |   | 17           |
| Hazardous Material             |   | 30.C  |   | Tenant Parties                    |   | 13           |
| Landlord Parties               |   | 13    |   | Tenant’s Insurance           |   | 14.A         |
| Landlord Work                  |   | 3.A   |   | Tenant’s Property            |   | 14.A         |
| Landlord’s Rental Damages |   | 19.B  |   | Tenant’s Removable  Property |   | 29           |
| Leasehold Improvements         |   | 29    |   | Time Sensitive Default            |   | 18.B         |
| Minor Alterations              |   | 9.C(1 | )      | Transfer                          |   | 11.A         |
| Monetary Default               |   | 18.A  |   | Work Letter                       |   | 3.A          |
| Mortgage                       |   | 25    |   |                              |   |         |

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2.             **Lease Grant**. Landlord leases the Premises to Tenantand Tenant leases the Premises from Landlord, together with the right in commonwith others to use any portions of the Property (defined below) that aredesignated by Landlord for the common use of tenants and others, such assidewalks, common corridors, vending areas, lobby areas and, with respect tomulti-tenant floors, restrooms and elevator foyers (the “***CommonAreas***”).  “***Property***”consists of the parcel(s) of land described on **Exhibit “A-2”**, the Building and all appurtenant parkingfacilities, landscaping, fixtures, Common Areas, service buildings andimprovements now or hereafter constructed thereon or on any land acquired byLandlord (or its affiliates) and added to the Property from time to time.

 

# 3.             **Term; Adjustmentof Commencement Date**.

## **A.    **Term****.  This Lease shall govern the relationshipbetween Landlord and Tenant with respect to the Premises from the EffectiveDate through the last day of the Term specified in **Section 1.G** (the “***Expiration Date***”),unless terminated early in accordance with this Lease.  The Term of this Lease (as specified in **Section 1.G**)shall commence on the “***CommencementDate***”, which shall be the date upon which possession of thePremises is delivered to Tenant.  ThePremises are now leased to another tenant on a temporary basis.  Landlord expects that such tenant willsurrender possession of the Premises and move to permanent space in the HughesCenter on or about January 31, 2006.   If Landlord is delayed in deliveringpossession of the Premises due to any reason, including, without limitation,the continued occupancy of the Premises by such existing tenant, such delayshall not be a default by Landlord, render this Lease void or voidable, orotherwise render Landlord liable for damages.  Notwithstanding the foregoing, if Landlord hasnot delivered the Premises within ninety (90) days after the EstimatedCommencement Date, subject to Tenant delay, then Tenant shall have the right,as its sole remedy, to terminate this Lease upon written notice to Landlordgiven at any time after such 120-day period and prior to delivery of thePremises. Promptly after the determination of the Commencement Date, theExpiration Date, the Rent schedule and any other variable matters, Landlordshall prepare and deliver to Tenant a commencement letter agreementsubstantially in the form attached as **Exhibit C**.  Ifsuch commencement letter is not executed by Tenant within 30 days afterdelivery of same by Landlord, then Tenant shall be deemed to have agreed withthe matters set forth therein. Notwithstanding any other provision of this Lease to the contrary, ifthe Expiration Date would otherwise occur on a date other than the last day ofa calendar month, then the Term shall be automatically extended to include thelast day of such calendar month, which shall become the Expiration Date.

## **B.    **Acceptance of Premises****.  The Premises are accepted by Tenant in “as is”condition and configuration.  **TENANT HEREBY AGREES THATTHE PREMISES ARE IN GOOD ORDER AND SATISFACTORY CONDITION AND THAT, EXCEPT ASOTHERWISE EXPRESSLY SET FORTH IN THIS LEASE, THERE ARE NO REPRESENTATIONS ORWARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY LANDLORD REGARDING THE PREMISES,THE BUILDING OR THE PROPERTY**.

# 4.             **Rent**.

## **A.            **Payments****.  As consideration for this Lease, commencingon the Commencement Date, Tenant shall pay Landlord, without any demand, setoffor deduction, the total amount of Base Rent, Tenant’s Pro Rata Share of ExcessOperating Expenses (defined in **Section 4.B**) and any and all other sums payable by Tenantunder this Lease (all of which are sometimes collectively referred to as “***Rent***”).  Tenantshall pay and be liable for all rental, sales and use taxes (but excludingincome taxes), if any, imposed upon or measured by Rent under applicable Law.  The monthly Base Rent and Tenant’s Pro RataShare of Excess Operating Expenses shall be due and payable in advance on thefirst day of each calendar month without notice or demand, provided that theinstallment of Base Rent for the first full calendar month of the Term, in theamount of Eleven Thousand Two Hundred Ninety-One and 50/100 Dollars($11,291.50), shall be payable upon the execution of this Lease by Tenant.  All other items of Rent shall be due andpayable by Tenant on or before 30 days after billing by Landlord.  All payments of Rent shall be by good andsufficient check or by other means (such as automatic debit or electronictransfer) acceptable to Landlord.  If theTerm commences on a day other than the first day of a calendar month, the monthlyBase Rent and Tenant’s Pro Rata Share of any Excess Operating Expenses for themonth shall be prorated on a daily basis based on a 360 day calendar year.  Landlord’s acceptance of less than thecorrect amount of Rent shall be considered a payment on account of the earliestRent due.  No endorsement or statement ona check or letter accompanying a check or payment shall be considered an accordand satisfaction, and either party may accept such check or payment withoutsuch acceptance being considered a waiver of any rights such party may haveunder this Lease or applicable Law. Tenant’s covenant to pay Rent is independent of every other covenant inthis Lease.

 

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## **B.            **Excess OperatingExpenses****. Tenant shall pay Tenant’s Pro Rata Share of the amount, if any, by whichOperating Expenses (defined in **Section 4.D**) for each calendar year during the Term exceedOperating Expenses for the Base Year (the “***Excess Operating Expenses***”).  If Operating Expenses in any calendar yeardecrease below the amount of Operating Expenses for the Base Year, Tenant’s ProRata Share of Excess Operating Expenses for that calendar year shall be$0.  In no event shall Base Rent bereduced if Operating Expenses for any calendar year are less than OperatingExpenses for the Base Year.  On or aboutJanuary 1 of each calendar year, Landlord shall provide Tenant with a goodfaith estimate of the Excess Operating Expenses for such calendar year duringthe Term.  On or before the first day ofeach month, Tenant shall pay to Landlord a monthly installment equal toone-twelfth of Tenant’s Pro Rata Share of Landlord’s estimate of the ExcessOperating Expenses.  If Landlorddetermines that its good faith estimate of the Excess Operating Expenses was incorrect,Landlord may provide Tenant with a revised estimate.  After its receipt of the revised estimate,Tenant’s monthly payments shall be based upon the revised estimate.  If Landlord does not provide Tenant with anestimate of the Excess Operating Expenses by January 1 of a calendar year,Tenant shall continue to pay monthly installments based on the most recentestimate(s) until Landlord provides Tenant with the new estimate.  Upon delivery of the new estimate, anadjustment shall be made for any month for which Tenant paid monthlyinstallments based on the same year’s prior incorrect estimate(s).  Tenant shall pay Landlord the amount of anyunderpayment within 30 days after receipt of the new estimate.  Any overpayment shall be credited against thenext sums due and owing by Tenant or, if no further Rent is due, refundeddirectly to Tenant within 30 days of determination.  The obligation of Tenant to pay for ExcessOperating Expenses as provided herein shall survive the expiration or earliertermination of this Lease.

## **C.            **Reconciliation ofOperating Expenses****.  Within 120 days after the end of eachcalendar year or as soon thereafter as is practicable, Landlord shall furnishTenant with a statement of the actual Operating Expenses and Excess OperatingExpenses for such calendar year.  If themost recent estimated Excess Operating Expenses paid by Tenant for suchcalendar year are more than the actual Excess Operating Expenses for suchcalendar year, Landlord shall apply any overpayment by Tenant against Rent dueor next becoming due; provided, if the Term expires before the determination ofthe overpayment, Landlord shall, within 30 days of determination, refund anyoverpayment to Tenant after first deducting the amount of Rent due.  If the most recent estimated Excess OperatingExpenses paid by Tenant for the prior calendar year are less than the actualExcess Operating Expenses for such year, Tenant shall pay Landlord, within 30days after its receipt of the statement of Operating Expenses, any underpaymentfor the prior calendar year.

## **D.            **OperatingExpenses Defined****.  “***Operating Expenses***”means all costs and expenses incurred or accrued in each calendar year inconnection with the ownership, operation, maintenance, management, repair andprotection of the Property which are directly attributable or reasonablyallocable to the Building, including Landlord’s personal property used inconnection with the Property and including all costs and expenditures relatingto the following:

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

### (2)           Administrative costsand management fees, including accounting, information and professionalservices (except for negotiations and disputes with specific tenants notaffecting other parties); management office(s); and wages, salaries, benefits,reimbursable expenses and taxes (or allocations thereof) for full and part timepersonnel involved in operation, maintenance and management.

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

### (4)           Property, liabilityand other insurance coverages carried by Landlord, including deductibles andrisk retention programs and a proportionate allocation of the cost of blanketinsurance policies maintained by Landlord and/or its Affiliates (definedbelow).

### (5)           Real estate taxes,assessments, business taxes, excises, association dues, fees, levies, chargesand other taxes of every kind and nature whatsoever, general and special,

 

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### extraordinaryand ordinary, foreseen and unforeseen, including interest on installmentpayments, which may be levied or assessed against or arise in connection withownership, use, occupancy, rental, operation or possession of the Property(including personal property taxes for property that is owned by Landlord andused in connection with the operation, maintenance and repair of the Property),or substituted, in whole or in part, for a tax previously in existence by anytaxing authority, or assessed in lieu of a tax increase, or paid as rent underany ground lease.  Real estate taxes donot include Landlord’s income, franchise or estate taxes (except to the extentsuch excluded taxes are assessed in lieu of taxes included above).

### (6)           Compliance withLaws, including license, permit and inspection fees (but not in duplication ofcapital expenditures amortized as provided in **Section 4.D(9)**); and allexpenses and fees, including attorneys’ fees and court or other venue ofdispute resolution costs, incurred in negotiating or contesting real estatetaxes or the validity and/or applicability of any governmental enactments whichmay affect Operating Expenses; provided Landlord shall credit against OperatingExpenses any refunds received from such negotiations or contests to the extentoriginally included in Operating Expenses (less Landlord’s costs).

### (7)           Building safetyservices, to the extent provided or contracted for by Landlord.

### (8)           Goods and servicespurchased from Landlord’s subsidiaries and Affiliates to the extent the cost ofsame is generally consistent with rates charged by unaffiliated third partiesfor similar goods and services.

### (9)           Amortization ofcapital expenditures incurred: (a) to conform with Laws; (b) to provide ormaintain building standards (other than building standard tenant improvements);or (c) with the intention of promoting safety or reducing or controllingincreases in Operating Expenses, such as lighting retrofit and installation ofenergy management systems.  Suchexpenditures shall be amortized uniformly over the following periods of time(together with interest on the unamortized balance at the Prime Rate (definedin **Section 19.B**)as of the date incurred plus 2%):  forbuilding improvements, the shorter of 10 years or the estimated useful life ofthe improvement; and for all other items, 3 years for expenditures under$50,000 and 5 years for expenditures in excess of $50,000.  Notwithstanding the foregoing, Landlord mayelect to amortize capital expenditures under this subsection over a longerperiod of time based upon (i) the purpose and nature of the expenditure, (ii)the relative capital burden on the Property, (iii) for cost savings projects,the anticipated payback period, and (iv) otherwise in accordance with soundreal estate accounting principles consistently applied.

### (10)         Electrical servicesused in the operation, maintenance and use of the Property; sales, use, exciseand other taxes assessed by governmental authorities on electrical servicessupplied to the Property, and other costs of providing electrical services tothe Property.

(11)         Allamounts charged to the Building pursuant to the REA.  The “***REA***” shall mean (i) that certain Amendmentand Restatement of the Grant of Reciprocal Easements and Declaration ofCovenants recorded in the Official Records of Clark County, Nevada on September8, 1995 in Book 950908 as Instrument No. 01919 as may be amended from time totime and (ii) that certain Howard Hughes Declaration of Covenants recorded inthe Official Records of Clark County, Nevada on October 11, 1985 in Book 2199as Instrument No. 2158547 as amended by the First Amendment to Howard HughesDeclaration of Covenants dated August 28, 1995 recorded in the Official Recordsof Clark County, Nevada on September 8, 1995 in Book 950908 as Instrument No.01918 as further amended by the Second Amendment to Howard Hughes Declarationof Covenants dated November 27, 1995 recorded in the Official Records of ClarkCounty, Nevada on December 6, 1995 in Book 951206 as Instrument No. 00257, asmay be amended from time to time.

## **E.             **Exclusions fromOperating Expenses****.  Operating Expenses exclude the followingexpenditures:

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

### (2)           Goods and servicesfurnished to an individual tenant of the Building which are above buildingstandard and which are separately reimbursable directly to Landlord in additionto Excess Operating Expenses.

 

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### (3)           Repairs,replacements and general maintenance paid by insurance proceeds or condemnationproceeds.

### (4)           Except as providedin **Section 4.D(9)**,depreciation, amortization, interest payments on any encumbrances on theProperty and the cost of capital improvements or additions.

### (5)           Costs of installingany specialty service, such as an observatory, broadcasting facility, luncheonclub, or athletic or recreational club.

### (6)           Expenses for repairsor maintenance related to the Property which have been reimbursed to Landlordpursuant to warranties or service contracts.

### (7)           Costs (other thanmaintenance costs) of any art work (such as sculptures or paintings) used todecorate the Building.

### (8)           Principal paymentson indebtedness secured by liens against the Property, or costs of refinancingsuch indebtedness.

## **F.             **Proration ofOperating Expenses; Adjustments****.  If Landlord incurs Operating Expenses for theProperty together with one or more other buildings or properties, whetherpursuant to a reciprocal easement agreement, common area agreement orotherwise, the shared costs and expenses shall be equitably prorated andapportioned by Landlord between the Property and the other buildings orproperties. If the Building is not 100% occupied during any calendar year orpartial calendar year or if Landlord is not supplying services to 100% of thetotal Rentable Square Footage of the Building at any time during a calendaryear or partial calendar year, Operating Expenses shall be determined as if theBuilding had been 100% occupied and Landlord had been supplying services to100% of the Rentable Square Footage of the Building during that calendaryear.  If Tenant pays for Tenant’s ProRata Share of Operating Expenses based on increases over a “***BaseYear***” and Operating Expenses for a calendar year are determinedas provided in the prior sentence, Operating Expenses for the Base Year shallalso be determined as if the Building had been 100% occupied and Landlord hadbeen supplying services to 100% of the Rentable Square Footage of the Building.  The extrapolation of Operating Expenses underthis Section shall be performed by Landlord by adjusting the cost of thosecomponents of Operating Expenses that are impacted by changes in the occupancyof the Building.

## **G.            **Audit Rights****. Within 60days after Landlord furnishes its statement of actual Operating Expenses forany calendar year (including the Base Year) (the “***AuditElection Period***”), Tenant may, at its expense, elect to auditLandlord’s Operating Expenses for such calendar year only, subject to thefollowing conditions:  (1) there is nouncured event of default under this Lease; (2) the audit shall be prepared byan independent certified public accounting firm of recognized nationalstanding; (3) in no event shall any audit be performed by a firm retained on a “contingencyfee” basis; (4) the audit shall commence within 30 days after Landlord makesLandlord’s books and records available to Tenant’s auditor and shall concludewithin 60 days after commencement; (5) the audit shall be conducted duringLandlord’s normal business hours at the location where Landlord maintains itsbooks and records and shall not unreasonably interfere with the conduct ofLandlord’s business; (6) Tenant and its accounting firm shall treat any auditin a confidential manner and shall each execute Landlord’s confidentialityagreement for Landlord’s benefit prior to commencing the audit; and (7) theaccounting firm’s audit report shall, at no charge to Landlord, be submitted indraft form for Landlord’s review and comment before the final approved auditreport is delivered to Landlord, and any reasonable comments by Landlord shallbe incorporated into the final audit report. Notwithstanding the foregoing, Tenant shall have no right to conduct anaudit if Landlord furnishes to Tenant an audit report for the calendar year inquestion prepared by an independent certified public accounting firm ofrecognized national standing (whether originally prepared for Landlord oranother party).  This paragraph shall notbe construed to limit, suspend, or abate Tenant’s obligation to pay Rent whendue, including estimated Excess Operating Expenses.  Landlord shall credit any overpaymentdetermined by the final approved audit report against the next Rent due andowing by Tenant or, if no further Rent is due, refund such overpayment directlyto Tenant within 30 days of determination. Likewise, Tenant shall pay Landlord any underpayment determined by thefinal approved audit report within 30 days of determination.  The foregoing obligations shall survive theexpiration or termination of this Lease. If Tenant does not give written notice of its election to audit Landlord’sOperating Expenses during the Audit Election Period, Landlord’s OperatingExpenses for the applicable calendar year shall be deemed approved for allpurposes, and Tenant shall have no further right to review or contest thesame.  The right to audit grantedhereunder is personal to the

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## initialTenant named in this Lease and to any assignee under a Permitted Transfer(defined below) and shall not be available to any subtenant under a sublease ofthe Premises.

# 5.             **Tenant’s Use ofPremises**.

## **A.            **Permitted Uses****.  The Premises shall be used only for generaloffice use (the “***Permitted Use***”) and for noother use whatsoever.  Tenant shall notuse or permit the use of the Premises for any purpose which is illegal, inviolation of the REA or any other recorded covenants or restrictions, createsobnoxious odors (including tobacco smoke), noises or vibrations, is dangerousto persons or property, could increase Landlord’s insurance costs, or which, inLandlord’s reasonable opinion, unreasonably disturbs any other tenants of theBuilding or interferes with the operation or maintenance of the Property.  Except as provided below, the following usesare expressly prohibited in the Premises: schools, government offices or agencies; personnel agencies; collectionagencies; credit unions; data processing, telemarketing or reservation centers;medical treatment and health care; radio, television or othertelecommunications broadcasting; restaurants and other retail; customer serviceoffices of a public utility company; or any other purpose which would, inLandlord’s reasonable opinion, impair the reputation or quality of theBuilding, overburden any of the Building systems, Common Areas or parkingfacilities (including any use which would create a population density in thePremises which is in excess of the density which is standard for the Building),impair Landlord’s efforts to lease space or otherwise interfere with theoperation of the Property. Notwithstanding the foregoing, the following ancillary uses arepermitted in the Premises only so long as they do not, in the aggregate, occupymore than 10% of the Rentable Square Footage of the Premises or any singlefloor (whichever is less):  (1) thefollowing services provided by Tenant exclusively to its employees:  schools, training and other educationalservices; credit unions; and similar employee services; and (2) the followingservices directly and exclusively supporting Tenant’s business:  telemarketing; reservations; storage; dataprocessing; debt collection; and similar support services.

## **B.            **Compliance withLaws****.  Tenantshall comply with all Laws regarding the operation of Tenant’s business and theuse, condition, configuration and occupancy of the Premises and the use of theCommon Areas.  Tenant, within 10 daysafter receipt, shall provide Landlord with copies of any notices Tenantreceives regarding a violation or alleged or potential violation of anyLaws.  Tenant shall comply with the rulesand regulations of the Building attached as **Exhibit B** and such otherreasonable rules and regulations (or modifications thereto) adopted by Landlordfrom time to time.  Such rules andregulations will be applied in an equitable manner as determined byLandlord.  Tenant shall also cause itsagents, contractors, subcontractors, employees, customers, and subtenants tocomply with all rules and regulations.

## **C.            **Tenant’s SecurityResponsibilities****.  Tenant shall (1) lock the doors to thePremises and take other reasonable steps to secure the Premises and thepersonal property of all Tenant Parties (defined in **Article 13**) and any of Tenant’stransferees, contractors or licensees in the Common Areas and parkingfacilities of the Building and Property, from unlawful intrusion, theft, fireand other hazards; (2) keep and maintain in good working order all security andsafety devices installed in the Premises by or for the benefit of Tenant (suchas locks, smoke detectors and burglar alarms); and (3) cooperate with Landlordand other tenants in the Building on Building safety matters.  Tenant acknowledges that any security orsafety measures employed by Landlord are for the protection of Landlord’s owninterests; that Landlord is not a guarantor of the security or safety of theTenant Parties or their property; and that such security and safety matters arethe responsibility of Tenant and the local law enforcement authorities.

6.             **Security Deposit**.  The Security Deposit shall be delivered toLandlord on or before the Commencement Date of the Lease by Tenant and shall beheld by Landlord (without liability for interest, except to the extent requiredby Law) as security for the performance of Tenant’s obligations under thisLease.  The Security Deposit is not anadvance payment of Rent or a measure of Tenant’s liability for damages.  Landlord may, from time to time while anevent of default remains uncured, without prejudice to any other remedy, useall or a portion of the Security Deposit to satisfy past due Rent, cure anyuncured default by Tenant, or repay Landlord for damages and charges for whichTenant is legally liable under this Lease or resulting from Tenant’s breach ofthis Lease.  If Landlord uses theSecurity Deposit, Tenant shall on demand restore the Security Deposit to itsoriginal amount and such use by Landlord of the Security Deposit shall notconstitute a cure of the existing event of default until such time as theentire amount owing to Landlord is paid in full and the Security Deposit isfully restored.  Provided that Tenant hasperformed all of its obligations hereunder, Landlord shall return any unappliedportion of the Security Deposit to Tenant within 30

 

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days after the later to occur of: (A) thedate Tenant surrenders possession of the Premises to Landlord in accordancewith this Lease; or (B) the Expiration Date. Tenant does hereby authorize Landlord to withhold from the SecurityDeposit all amounts allowed by Law and the amount reasonably anticipated byLandlord to be owed by Tenant as a result of an underpayment of Tenant’s ProRata Share of any Excess Operating Expenses for the final year of theTerm.  To the fullest extent permitted byapplicable Law, Tenant agrees that the provisions of this **Article 6** shall supersede andreplace all statutory rights of Tenant under applicable Law regarding theretention, application or return of security deposits.  If Landlord transfers its interest in thePremises, Landlord shall assign the Security Deposit to the transferee and,following the assignment and the delivery to Tenant of an acknowledgement ofthe transferee’s responsibility for the Security Deposit if required by Law,Landlord shall have no further liability for the return of the SecurityDeposit.  Landlord shall not be requiredto keep the Security Deposit separate from its other accounts.  Notwithstanding the foregoing and provided noevent of default has occurred, Landlord shall credit one-third of the SecurityDeposit against the Base Rent due for the thirty-seventh (37) month of theTerm, and one-third of the Security Deposit (being one-half of the remainingbalance thereof) against the Base Rent due for the forty-ninth (49) month ofthe Term.

 

# 7.             **ServicesFurnished by Landlord**.

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

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

### (2)           Heat and airconditioning in season during Normal Business Hours, at such temperatures andin such amounts as required by governmental authority or as Landlord determinesare standard for the Building.  Tenant,upon such notice as is reasonably required by Landlord, and subject to thecapacity of the Building systems, may request HVAC service during hours otherthan Normal Business Hours.  Tenant shallpay Landlord for such additional service at a rate equal to $55.00 peroperating hour per floor (the “***Hourly HVAC Charge***”). Landlord shall have the right, upon 30 days prior written notice toTenant, to adjust the Hourly HVAC Charge from time to time, but not more thanonce per calendar year, based proportionately upon increases in HVAC costs,which costs include utilities, taxes, surcharges, labor, equipment, maintenanceand repair.

### (3)           Maintenance andrepair of the Property as described in **Section 9.B**.

### (4)           Janitorial servicefive days per week (excluding Holidays), as determined by Landlord.  If Tenant’s use of the Premises, floorcovering or other improvements require special services in excess of thestandard services for the Building, Tenant shall pay the additional costattributable to the special services.

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

### (6)           Exterior windowwashing at such intervals as determined by Landlord.

### (7)           Electricity to thePremises for general office use, in accordance with and subject to the termsand conditions in **Article8**.

## **B.            **ServiceInterruptions****.  For purposes of this Lease, a “***ServiceFailure***” shall mean any interruption, suspension or terminationof services being provided to Tenant by Landlord or by third-party providers,whether engaged by Tenant or pursuant to arrangements by such providers withLandlord, which are due to (1) the application of Laws; (2) the failure,interruption or malfunctioning of any electrical or mechanical equipment,utility or other service to the Building or Property; (3) the performance ofrepairs, maintenance, improvements or alterations; or (4) the occurrence of anyother event or cause whether or not within the reasonable control ofLandlord.  No Service Failure shallrender Landlord liable to Tenant, constitute a constructive eviction of Tenant,give rise to an abatement of Rent, or relieve Tenant from the obligation tofulfill any covenant or agreement.  In noevent shall Landlord be liable to Tenant for any loss or damage, including thetheft of Tenant’s Property (defined in **Article 14**), arising out of or in connection with anyService Failure or the failure of any Building safety services, personnel or equipment.

 

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## **C.            **Third PartyServices****.  IfTenant desires any service which Landlord has not specifically agreed toprovide in this Lease, such as private security systems or telecommunicationsservices serving the Premises, Tenant shall procure such service directly froma reputable third party service provider (“***Provider***”) forTenant’s own account.  Tenant shallrequire each Provider to comply with the Building’s rules and regulations, allLaws, and Landlord’s reasonable policies and practices for the Building.  Tenant acknowledges Landlord’s current policythat requires all Providers utilizing any area of the Property outside thePremises to be approved by Landlord and to enter into a written agreement acceptableto Landlord prior to gaining access to, or making any installations in orthrough, such area.  Accordingly, Tenantshall give Landlord written notice sufficient for such purposes.

# 8.             **Use ofElectrical Services by Tenant**.

## **A.            **Landlord’s Electrical Service****.  Subject to the terms of this Lease, Landlordshall furnish building standard electrical service to the Premises sufficientto operate customary lighting, office machines and other equipment of similarlow electrical consumption.  Landlordmay, at any time and from time to time, calculate Tenant’s actual electricalconsumption in the Premises by a survey conducted by a reputable consultantselected by Landlord, all at Tenant’s expense. The cost of any electrical consumption in excess of that which Landlorddetermines is standard for the Building shall be paid by Tenant in accordancewith **Section 8.D**.  The furnishing of electrical services to thePremises shall be subject to the rules, regulations and practices of thesupplier of such electricity and of any municipal or other governmentalauthority regulating the business of providing electrical utility service.  Landlord shall not be liable or responsibleto Tenant for any loss, damage or expense which Tenant may sustain or incur ifeither the quantity or character of the electrical service is changed or is nolonger available or no longer suitable for Tenant’s requirements.

## **B.            **Selection ofElectrical Service Provider****.  Landlord shall have and retain the sole rightto select the provider of electrical services to the Building and/or theProperty.  To the fullest extentpermitted by Law, Landlord shall have the continuing right to change suchutility provider.  All charges and expensesincurred by Landlord due to any such changes in electrical services, includingmaintenance, repairs, installation and related costs, shall be included in theelectrical services costs referenced in **Section 4.D(10)**, unless paid directly by Tenant.

## **C.            **Submetering****.  Landlord shall have the continuing right,upon 30 days written notice, to install a submeter for the Premises at Tenant’sexpense.  If submetering is installed forthe Premises, Landlord may charge for Tenant’s actual electrical consumptionmonthly in arrears for the kilowatt hours used, a rate per kilowatt hour equalto that charged to Landlord by the provider of electrical service to theBuilding during the same period of time (plus, to the fullest extent permittedby applicable Laws, an administrative fee equal to 15% of such charge), exceptas to electricity directly purchased by Tenant from third party providers afterobtaining Landlord’s consent to the same. In the event Landlord is unable to determine the exact kilowatt hourlycharge during the period of time, Landlord shall use the average kilowatthourly charge to the Building for the first billing cycle ending after theperiod of time in question.  Even if thePremises are submetered, Tenant shall remain obligated to pay Tenant’s Pro RataShare of the cost of electrical services as provided in **Section 4.B**, except that Tenantshall be entitled to a credit against electrical services costs equal to thatportion of the amounts actually paid by Tenant separately and directly toLandlord which are attributable to building standard electrical servicessubmetered to the Premises.

## **D.            **Excess ElectricalService****. Tenant’s use of electrical service shall not exceed, in voltage, ratedcapacity, use beyond Normal Business Hours or overall load, that which Landlorddeems to be standard for the Building. If Tenant requests permission to consume excess electrical service,Landlord may refuse to consent or may condition consent upon conditions thatLandlord reasonably elects (including the installation of utility serviceupgrades, meters, submeters, air handlers or cooling units).  The costs of any approved additionalconsumption (to the extent permitted by Law), installation and maintenanceshall be paid by Tenant.

# 9.             **Repairs andAlterations**.

## **A.            **Tenant’s RepairObligations****.  Tenant shall keep the Premises in goodcondition and repair, ordinary wear and tear excepted.  Tenant’s repair obligations include, withoutlimitation, repairs to:  (1) floorcovering and/or raised flooring; (2) interior partitions; (3) doors; (4) theinterior side of demising walls; (5) electronic, phone and data cabling andrelated equipment (collectively, “***Cable***”) that is installed by or for thebenefit of Tenant whether located in the Premises or in other

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## portionsof the Building; (6) supplemental air conditioning units, private showers andkitchens, including hot water heaters, plumbing, dishwashers, ice machines andsimilar facilities serving Tenant exclusively; (7) phone rooms used exclusivelyby Tenant; (8) Alterations (defined below) performed by contractors retained byTenant, including related HVAC balancing; and (9) all of Tenant’s furnishings,trade fixtures, equipment and inventory. Prior to performing any such repair obligation, Tenant shall givewritten notice to Landlord describing the necessary maintenance or repair.  Upon receipt of such notice, Landlord mayelect either to perform any of the maintenance or repair obligations specifiedin such notice, or require that Tenant perform such obligations by usingcontractors approved by Landlord.  Allwork shall be performed at Tenant’s expense in accordance with the rules andprocedures described in **Section9.C** below.  If Tenant fails tomake any repairs to the Premises for more than 15 days after notice fromLandlord (although notice shall not be required if there is an emergency),Landlord may, in addition to any other remedy available to Landlord, make therepairs, and Tenant shall pay to Landlord the reasonable cost of the repairswithin 30 days after receipt of an invoice, together with an administrativecharge in an amount equal to 15% of the cost of the repairs.

## **B.            **Landlord’s RepairObligations****.  Landlord shall keep and maintain in goodrepair and working order and make repairs to and perform maintenance upon:  (1) structural elements of the Building; (2)standard mechanical (including HVAC), electrical, plumbing and fire/life safetysystems serving the Building generally; (3) Common Areas; (4) the roof of theBuilding; (5) exterior windows of the Building; and (6) elevators serving theBuilding.  Landlord shall promptly makerepairs (taking into account the nature and urgency of the repair) for whichLandlord is responsible.  If any of theforegoing maintenance or repair is necessitated due to the acts or omissions ofany Tenant Party (defined in **Section 13**), Tenant shall pay the costs of such repairs ormaintenance to Landlord within 30 days after receipt of an invoice, togetherwith an administrative charge in an amount equal to 15% of the cost of therepairs.

## **C.            **Alterations****.

### (1)           *When Consent Is Required*.  Tenant shall not make alterations, additionsor improvements to the Premises or install any Cable in the Premises or otherportions of the Building (collectively, “***Alterations***”)without first obtaining the written consent of Landlord in each instance.  However, Landlord’s consent shall not berequired for any Alteration that satisfies all of the following criteria (a “***Minor Alteration***”): (a) is of a cosmetic nature such as painting, wallpapering, hangingpictures and installing carpeting; (b) is not visible from outside the Premisesor Building; (c) will not affect the systems or structure of the Building; and(d) does not require work to be performed inside the walls or above the ceilingof the Premises.

### (2)           *Requirements For All Alterations, IncludingMinor Alterations*.  Priorto starting work on any Alteration, Tenant shall furnish to Landlord for reviewand approval: plans and specifications; names of proposed contractors (providedthat Landlord may designate specific contractors with respect to Buildingsystems); copies of contracts; necessary permits and approvals; evidence ofcontractors’ and subcontractors’ insurance; and Tenant’s security forperformance of the Alteration.  Changesto the plans and specifications must also be submitted to Landlord for itsapproval.  Some of the foregoingrequirements may be waived by Landlord for the performance of specific MinorAlterations; provided that such waiver is obtained in writing ***prior to*** thecommencement of such Minor Alterations. Landlord’s waiver on one occasion shall not waive Landlord’s right toenforce such requirements on any other occasion.  Alterations shall be constructed in a goodand workmanlike manner using materials of a quality that is at least equal tothe quality designated by Landlord as the minimum standard for theBuilding.  Landlord may designatereasonable rules, regulations and procedures for the performance of Alterationsin the Building and, to the extent reasonably necessary to avoid disruption tothe occupants of the Building, shall have the right to designate the time whenAlterations may be performed.  Tenantshall reimburse Landlord within 30 days after receipt of an invoice forout-of-pocket sums paid by Landlord for third party examination of Tenant’splans for Alterations.  In addition,within 30 days after receipt of an invoice from Landlord, Tenant shall pay toLandlord a fee equal to 15% of the total cost of such Alterations for Landlord’soversight and coordination of any Alterations. No later than 30 days after completion of the Alterations, Tenant shallfurnish “as-built” plans (which shall not be required for Minor Alterations),completion affidavits, full and final waivers of liens, receipts and billscovering all labor and materials.  Tenantshall assure that the Alterations comply with all insurance requirements andLaws.

 

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

10.           **Entry by Landlord**.  Landlord, its agents, contractors andrepresentatives may enter the Premises to inspect or show the Premises, toclean and make repairs, alterations or additions to the Premises, and toconduct or facilitate repairs, alterations or additions to any portion of theBuilding, including other tenants’ premises. Except in emergencies or to provide janitorial and other Buildingservices after Normal Business Hours, Landlord shall provide Tenant withreasonable prior notice of entry into the Premises, which may be givenorally.  Landlord shall have the right totemporarily close all or a portion of the Premises to perform repairs,alterations and additions, if reasonably necessary for the protection andsafety of Tenant and its employees.  Except in emergencies, Landlord will not closethe Premises if the work can reasonably be completed on weekends and afterNormal Business Hours; provided, however, that Landlord is not required toconduct work on weekends or after Normal Business Hours if such work can beconducted without closing the Premises. Entry by Landlord for any such purposes shall not constitute aconstructive eviction or entitle Tenant to an abatement or reduction of Rent.

 

# 11.           **Assignment andSubletting**.

## **A.            **Landlord’s Consent Required****.  Subject to the remaining provisions of this **Article 11**, butnotwithstanding anything to the contrary contained elsewhere in this Lease,Tenant shall not assign, transfer or encumber any interest in this Lease(either absolutely or collaterally) or sublease or allow any third party to useany portion of the Premises (collectively or individually, a “***Transfer***”)without the prior written consent of Landlord, which consent shall not beunreasonably withheld.  Withoutlimitation, Tenant agrees that Landlord’s consent shall not be consideredunreasonably withheld if:  (1) theproposed transferee’s financial condition does not meet the criteria Landlorduses to select Building tenants having similar leasehold obligations; (2) theproposed transferee is a governmental organization or present occupant of theProperty, or Landlord is otherwise engaged in lease negotiations with theproposed transferee for other premises in the Property; (3) any uncured eventof default exists under this Lease (or a condition exists which, with thepassage of time or giving of notice, would become an event of default); (4) anyportion of the Building or Premises would likely become subject to additionalor different Laws as a consequence of the proposed Transfer; (5) the proposedtransferee’s use of the Premises conflicts with the Permitted Use or anyexclusive usage rights granted to any other tenant in the Building; (6) theuse, nature, business, activities or reputation in the business community ofthe proposed transferee (or its principals, employees or invitees) does notmeet Landlord’s standards for Building tenants; (7) either the Transfer or anyconsideration payable to Landlord in connection therewith adversely affects thereal estate investment trust qualification tests applicable to Landlord or itsAffiliates; or (8) the proposed transferee is or has been involved inlitigation with Landlord or any of its Affiliates.  Tenant shall not be entitled to receivemonetary damages based upon a claim that Landlord unreasonably withheld itsconsent to a proposed Transfer and Tenant’s sole remedy shall be an action toenforce any such provision through specific performance or declaratoryjudgment.  Any attempted Transfer inviolation of this Article is voidable at Landlord’s option.

## **B.            **ConsentParameters/Requirements****.  As part of Tenant’s request for, and as acondition to, Landlord’s consent to a Transfer, Tenant shall provide Landlordwith financial statements for the proposed transferee, a complete copy(unexecuted) of the proposed assignment or sublease and other contractualdocuments, and such other information as Landlord may reasonably request.  Landlord shall then have the right (but notthe obligation) to terminate this Lease as of the date the Transfer would havebeen effective (“***LandlordTermination Date***”) with respect to the portion of the Premiseswhich Tenant desires to Transfer.  Insuch event, Tenant shall vacate such portion of the Premises by the LandlordTermination Date and upon Tenant’s vacating such portion of the Premises, therent and other charges payable shall be proportionately reduced.  Consent by Landlord to one or moreTransfer(s) shall not operate as a waiver of Landlord’s rights to approve anysubsequent Transfers.  In no event shallany Transfer or Permitted Transfer release or relieve Tenant from anyobligation under this Lease, nor shall the acceptance of Rent from anyassignee, subtenant or occupant constitute a waiver or release of Tenant fromany of its obligations or liabilities under this Lease.  Tenant shall pay Landlord a review fee of$1000 for Landlord’s review of any Permitted

 

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## Transferor requested Transfer, provided if Landlord’s actual reasonable costs andexpenses (including reasonable attorney’s fees) exceed $1000, Tenant shallreimburse Landlord for its actual reasonable costs and expenses in lieu of afixed review fee.

## **C.            **Payment toLandlord****.  Ifthe aggregate consideration paid to a Tenant Party for a Transfer exceeds thatpayable by Tenant under this Lease (prorated according to the transferredinterest), Tenant shall pay Landlord 50% of such excess (after deductingtherefrom reasonable leasing commissions and reasonable costs of tenantimprovements paid to unaffiliated third parties in connection with theTransfer, with proof of same provided to Landlord).  Tenant shall pay Landlord for Landlord’sshare of any excess within 30 days after Tenant’s receipt of such excessconsideration. If any uncured event of default exists under this Lease (or acondition exists which, with the passage of time or giving of notice, wouldbecome an event of default), Landlord may require that all sublease payments bemade directly to Landlord, in which case Tenant shall receive a credit againstRent in the amount of any payments received, but not to exceed the amountpayable by Tenant under this Lease.

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

## **E.             **No Consent Required****.  Tenant may assign its entire interest underthis Lease to its Affiliate (defined below) or to a successor to Tenant bypurchase, merger, consolidation or reorganization without the consent ofLandlord, provided that all of the following conditions are satisfied inLandlord’s reasonable discretion (a “***Permitted Transfer***”):  (1) no uncured event of default exists underthis Lease; (2) Tenant’s successor shall own all or substantially all of theassets of Tenant; (3) such Affiliate or successor shall have a net worth whichis at least equal to the greater of Tenant’s net worth at the date of thisLease or Tenant’s net worth as of the day prior to the proposed purchase,merger, consolidation or reorganization; (4) no portion of the Building orPremises would likely become subject to additional or different Laws as aconsequence of the proposed Transfer; (5) such Affiliate’s or successor’s useof the Premises shall not conflict with the Permitted Use or any exclusiveusage rights granted to any other tenant in the Building; (6) neither theTransfer nor any consideration payable to Landlord in connection therewithadversely affects the real estate investment trust qualification testsapplicable to Landlord or its Affiliates; (7) such Affiliate or successor is notand has not been involved in litigation with Landlord or any of Landlord’sAffiliates; and (8) Tenant shall give Landlord written notice at least 30 daysprior to the effective date of the proposed Transfer, along with all applicabledocumentation and other information necessary for Landlord to determine thatthe requirements of this **Section11.E** have been satisfied, including if applicable, the qualificationof such proposed transferee as an Affiliate of Tenant.  The term “***Affiliate***” meansany person or entity controlling, controlled by or under common control withTenant or Landlord, as applicable.  Ifrequested by Landlord, the Affiliate or successor shall sign a commerciallyreasonable form of assumption agreement.

12.           **Liens**.  Tenant shall not permit mechanic’s or otherliens to be placed upon the Property, Premises or Tenant’s leasehold interestin connection with any work or service done or purportedly done by or for thebenefit of Tenant.  If a lien is soplaced, Tenant shall, within 10 days of notice from Landlord of the filing ofthe lien, fully discharge the lien by settling the claim which resulted in thelien or by bonding or insuring over the lien in the manner prescribed by theapplicable lien Law.  If Tenant fails todischarge the lien, then, in addition to any other right or remedy of Landlord,Landlord may bond or insure over the lien or otherwise discharge the lien.  Tenant shall, within 30 days after receipt ofan invoice from Landlord, reimburse Landlord for any amount paid by Landlord, includingreasonable attorneys’ fees, to bond or insure over the lien or discharge thelien.

 

13.           **Indemnity**.  Subject to **Article 15** Tenant shall holdLandlord, its trustees, Affiliates, subsidiaries, members, principals,beneficiaries, partners, officers, directors, shareholders, employees,Mortgagee(s) (defined in **Article25**) and agents (including the manager of the Property)(collectively, “***Landlord Parties***”) harmlessfrom, and indemnify and defend such parties against, all

 

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liabilities, obligations, damages, penalties,claims, actions, costs, charges and expenses, including reasonable attorneys’fees and other professional fees that may be imposed upon, incurred by orasserted against any of such indemnified parties (each a “***Claim***”and collectively “***Claims***”) that arise out of Tenant’spossession, use, maintenance or repair of the Premises or any act or omissionof Tenant or any of Tenant’s employees, agents and invitees in the Premises oron the Property.  Provided LandlordParties are properly named as additional insureds in the policies required tobe carried under this Lease, and except as otherwise expressly provided in thisLease, the indemnity set forth in the preceding sentence shall be limited to thegreater of (A) $5,000,000, and (B) the aggregate amount of general/umbrellaliability insurance actually carried by Tenant. Subject to **Articles9.B**, **15**and **20**,Landlord shall hold Tenant, its trustees, members, principals, beneficiaries,partners, officers, directors, shareholders, employees and agents(collectively, “***Tenant Parties***”) harmlessfrom, and indemnify and defend such parties against, all Claims that arise outof or in connection with any damage or injury occurring in or on the Property(excluding the Premises), to the same extent the Tenant Parties would have beencovered had they been named as additional insureds on the commercial generalliability insurance policy required to be carried by Landlord under this Lease.  The indemnity set forth in the precedingsentence shall be limited to the amount of $5,000,000.

 

# 14.           **Insurance****.**

## **A.            **Tenant’sInsurance****. Tenant shall maintain the following insurance (“***Tenant’sInsurance***”), at its sole cost and expense:  (1) commercial general liability insurance applicableto the Premises and its appurtenances providing, on an occurrence basis, a peroccurrence limit of no less than $1,000,000; (2) causes of loss-special form(formerly “all risk”) property insurance, including flood and earthquake,covering all above building standard leasehold improvements and Tenant’s tradefixtures, equipment, furniture and other personal property within the Premises(“***Tenant’s Property***”) in the amount of the fullreplacement cost thereof; (3) business income (formerly “business interruption”)insurance written on an actual loss sustained form or with sufficient limits toaddress reasonably anticipated business interruption losses; (4) businessautomobile liability insurance to cover all owned, hired and nonownedautomobiles owned or operated by Tenant providing a minimum combined singlelimit of $1,000,000; (5) workers’ compensation insurance as required by thestate in which the Premises is located and in amounts as may be required byapplicable statute (provided, however, if no workers’ compensation insurance isstatutorily required, Tenant shall carry workers’ compensation insurance in aminimum amount of $500,000); (6) employer’s liability insurance in an amount ofat least $500,000 per occurrence; and (7) umbrella liability insurance thatfollows form in excess of the limits specified in (1), (4) and (6) above, of noless than $4,000,000 per occurrence and in the aggregate.  Any company underwriting any of Tenant’sInsurance shall have, according to *A.M. Best Insurance Guide*, a Best’s rating of not less thanA- and a Financial Size Category of not less than VIII.  All commercial general liability, businessautomobile liability and umbrella liability insurance policies shall nameLandlord (or any successor), Landlord’s property manager, Landlord’s Mortgagee(if any), and their respective members, principals, beneficiaries, partners,officers, directors, employees, and agents, and other designees of Landlord asthe interest of such designees shall appear, as “additional insureds” and shallbe primary with Landlord’s policy being secondary and noncontributory.  If any aggregate limit is reduced because oflosses paid to below 75% of the limit required by this Lease, Tenant willnotify Landlord in writing within 10 days of the date of reduction.  All policies of Tenant’s Insurance shallcontain endorsements that the insurer(s) shall give Landlord and its designeesat least 30 days’ advance written notice of any change, cancellation,termination or lapse of insurance. Tenant shall provide Landlord with a certificate of insurance and allrequired endorsements evidencing Tenant’s Insurance prior to the earlier tooccur of the Commencement Date or the date Tenant is provided access to thePremises for any reason, and upon renewals at least 10 days prior to theexpiration of the insurance coverage. All of Tenant’s Insurance policies, endorsements and certificates willbe on forms and with deductibles and self-insured retention, if any, reasonablyacceptable to Landlord.  The limits ofTenant’s insurance shall not limit Tenant’s liability under this Lease.

**B.            **Landlord’s Insurance****.  Landlord shall maintain:  (1) commercial general liability insuranceapplicable to the Property which provides, on an occurrence basis, a minimumcombined single limit of no less than $5,000,000 (coverage in excess of$1,000,000 may be provided by way of an umbrella/excess liability policy); and(2) causes of loss-special form (formerly “all risk”) property insurance on theBuilding in the amount of the replacement cost thereof, as reasonably estimatedby Landlord.  The foregoing insurance andany other insurance carried by Landlord may be effected by a policy or policiesof blanket insurance and shall be for the sole benefit of Landlord and under

 

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Landlord’s sole control.  Consequently, Tenant shall have no right orclaim to any proceeds thereof or any other rights thereunder.

 

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

 

# 16.           **Casualty Damage**.

## **A.            **Repair or Termination by Landlord****.  If all or any part of the Premises aredamaged by fire or other casualty, Tenant shall immediately notify Landlord inwriting.  Landlord shall have the rightto terminate this Lease if:  (1) theBuilding shall be damaged so that, in Landlord’s judgment, substantialalteration or reconstruction of the Building shall be required (whether or notthe Premises have been damaged); (2) Landlord is not permitted by Law torebuild the Building in substantially the same form as existed before the fireor casualty; (3) the Premises have been materially damaged and there is less than2 years of the Term remaining on the date of the casualty; (4) any Mortgageerequires that the insurance proceeds be applied to the payment of the mortgagedebt; or (5) an uninsured loss of the Building occurs notwithstanding Landlord’scompliance with **Section14.B** above.  Landlord mayexercise its right to terminate this Lease by notifying Tenant in writingwithin 90 days after the date of the casualty. If Landlord does not terminate this Lease under this **Section 16.A**, Landlord shallcommence and proceed with reasonable diligence to repair and restore theBuilding and/or the Premises to substantially the same condition as existedimmediately prior to the date of damage; provided, however, that Landlord shallonly be required to reconstruct building standard leasehold improvementsexisting in the Premises as of the date of damage, and Tenant shall be requiredto pay the cost for restoring any other leasehold improvements.  However, in no event shall Landlord be requiredto spend more than the insurance proceeds received by Landlord.

## **B.            **Timing forRepair; Termination by Either Party****.  If all or any portion of the Premises isdamaged as a result of fire or other casualty, Landlord shall, with reasonablepromptness, cause an architect or general contractor selected by Landlord toprovide Landlord and Tenant with a written estimate of the amount of timerequired to substantially complete the repair and restoration of the Premises,using standard working methods (“***Completion Estimate***”).  If the Completion Estimate indicates that thePremises cannot be made tenantable within 270 days from the date of damage,then regardless of anything in **Section 16.A** above to the contrary, either party shall havethe right to terminate this Lease by giving written notice to the other of suchelection within 10 days after receipt of the Completion Estimate.  Tenant, however, shall not have the right toterminate this Lease if the fire or casualty was caused by the negligence orintentional misconduct of any of the Tenant Parties.  If neither party terminates this Lease underthis **Section 16.B**,then Landlord shall repair and restore the Premises in accordance with, andsubject to the limitations of, **Section 16.A**.

## **C.            **Abatement****.  In the event a material portion of thePremises is damaged as a result of a fire or other casualty, the Base Rentshall abate for the portion of the Premises that is damaged and not usable byTenant until substantial completion of the repairs and restoration required tobe made by Landlord pursuant to **Section 16.A**.  Tenant,however, shall not be entitled to such abatement if the fire or other casualtywas caused by the negligence or intentional misconduct of any of the TenantParties.  Landlord shall not be liablefor any loss or damage to Tenant’s Property or to the business of Tenantresulting in any way from the fire or other casualty or from the repair andrestoration of the damage.  Landlord andTenant hereby waive the provisions of any Law relating to

 

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## thematters addressed in this Article, and agree that their respective rights fordamage to or destruction of the Premises shall be those specifically providedin this Lease.

17.           **Condemnation**.  Either party may terminate this Lease if thewhole or any material part of the Premises are taken or condemned for anypublic or quasi-public use under Law, by eminent domain or private purchase inlieu thereof (a “***Taking***”).  Landlord shall also have the right toterminate this Lease if there is a Taking of any portion of the Building orProperty which would leave the remainder of the Building unsuitable for use asan office building in a manner comparable to the Building’s use prior to theTaking.  In order to exercise its rightto terminate this Lease under this **Article 17**, Landlord or Tenant, as the case may be, mustprovide written notice of termination to the other within 45 days after theterminating party first receives notice of the Taking.  Any such termination shall be effective as ofthe date the physical taking of the Premises or the portion of the Building orProperty occurs.  If this Lease is notterminated, the Rentable Square Footage of the Building, the Rentable SquareFootage of the Premises and Tenant’s Pro Rata Share shall, if applicable, beappropriately adjusted by Landlord.  Inaddition, Base Rent for any portion of the Premises taken or condemned shall beabated during the unexpired Term effective when the physical taking of theportion of the Premises occurs.  Allcompensation awarded for a Taking, or sale proceeds, shall be the property ofLandlord, any right to receive compensation or proceeds being expressly waivedby Tenant.  However, Tenant may file aseparate claim at its sole cost and expense for Tenant’s Property (excludingabove building standard leasehold improvements) and Tenant’s reasonablerelocation expenses, provided the filing of such claim does not diminish theaward which would otherwise be receivable by Landlord.

 

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

 

## **A.           **Tenant’s failure to pay when due all or anyportion of the Rent (“***Monetary Default***”).

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

## **C.           **Tenant’sfailure (other than a Monetary Default or a Time Sensitive Default) to complywith any term, provision or covenant of this Lease, if the failure is not curedwithin 10 days after written notice to Tenant. However, if Tenant’s failure to comply cannot reasonably be cured within10 days, Tenant shall be allowed additional time (not to exceed an additional10 days) as is reasonably necessary to cure the failure so long as:  (1) Tenant commences to cure the failurewithin the 10 day period following Landlord’s initial written notice, and (2)Tenant diligently pursues a course of action that will cure the failure andbring Tenant back into compliance with this Lease.  However, if Tenant’s failure to complycreates a hazardous condition, the failure must be cured immediately uponnotice to Tenant.  In addition, ifLandlord provides Tenant with notice of Tenant’s failure to comply with thesame specific term, provision or covenant of this Lease on more than two (2)occasions during any 12 month period, Tenant’s subsequent violation of the sameterm, provision or covenant shall, at Landlord’s option, be deemed an incurableevent of default by Tenant.

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

## **E.            **The leaseholdestate is taken by process or operation of Law.

## **F.            **In the case ofany ground floor or retail tenant, or any other tenant whose space is visiblefrom the Common Areas or elevator lobby areas of the Building, Tenant does nottake possession of, or abandons or vacates all or a substantial portion of thePremises.

## **G.           **Tenant is indefault beyond any notice and cure period under any other lease or agreementwith Landlord, including any lease or agreement for parking.

 

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# 19.           **Remedies**.

## **A.            **Landlord’s Remedies****.  Upon any default, Landlord shall have theright without notice or demand (except as provided in **Article 18**) to pursue any of itsrights and remedies at Law or in equity, including any one or more of thefollowing remedies:

### (1)           Terminate thisLease;

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

### (3)           Remove and store, atTenant’s expense, all the property in the Premises using such lawful force asmay be necessary;

### (4)           Cure such event ofdefault for Tenant at Tenant’s expense (plus a 15% administrative fee);

### (5)           Withhold or suspendpayment of sums Landlord would otherwise be obligated to pay to Tenant underthis Lease or any other agreement;

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

### (7)           Apply any SecurityDeposit as permitted under this Lease; and/or

### (8)           Recover such otheramounts in addition to or in lieu of the foregoing as may be permitted fromtime to time by applicable Law, including any other amount necessary tocompensate Landlord for all the detriment proximately caused by Tenant’sfailure to perform its obligations under this Lease or which in the ordinarycourse of events would be likely to result therefrom.

## **B.            **Measure ofDamages****.

### (1)           *Calculation.*  If Landlord either terminates this Lease orterminates Tenant’s right to possession of the Premises, Tenant shallimmediately surrender and vacate the Premises and pay Landlord on demand:  (a) all Rent accrued through the end of themonth in which the termination becomes effective; (b) interest on all unpaidRent from the date due at a rate equal to the lesser of 18% per annum or thehighest interest rate permitted by applicable Law; (c) all expenses reasonablyincurred by Landlord in enforcing its rights and remedies under this Lease,including all reasonable legal expenses; (d) Costs of Reletting (definedbelow); and (e) all Landlord’s Rental Damages (defined below).  In the event that Landlord relets thePremises for an amount greater than the Rent due during the Term, Tenant shallnot receive a credit for any such excess.

### (2)           *Definitions*.  “***Costs of Reletting***”shall include commercially reasonable costs, losses and expenses incurred byLandlord in reletting all or any portion of the Premises including, withoutlimitation, the cost of removing and storing Tenant’s furniture, tradefixtures, equipment, inventory or other property, repairing and/or demolishingthe Premises, removing and/or replacing Tenant’s signage and other fixtures,making the Premises ready for a new tenant, including the cost of advertising,commissions, architectural fees, legal fees and leasehold improvements, and anyallowances and/or concessions provided by Landlord.  “***Landlord’s Rental Damages***”shall mean the total Rent which Landlord would have received under this Lease(had Tenant made all such Lease payments as required) for the remainder of theTerm minus the amount of such rental loss that Tenant proves would bereasonably avoided pursuant to **Section 19.D.**below, or, if the Premises are relet, the actual rental value (not to exceedthe Rent due during the Term), both discounted to present value at the PrimeRate (defined below) in effect upon the date of determination.  For purposes hereof, the “***PrimeRate***” shall be the per annum interest rate publicly announced bya federally insured bank selected by Landlord in the state in which theBuilding is located as such bank’s prime or base rate.

### (3)           *Landlord’s Alternative Calculation*.  Because future market rental rates, and thecosts or time involved in reletting may be uncertain and difficult to determineat the time of

 

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### Tenant’sdefault, the parties agree that Landlord may in its sole discretion elect torecover, in lieu of calculating damages under **Section19.B(1)(d)** and **(e)**above (but without limiting damages under **Section19.B(1)(a)** and **(b)**above), the sum of (a) the unamortized portion of all costs, losses andexpenses incurred by Landlord as a result of entering into the Lease, and (b)twenty five percent (25%) of the total nominal Rent which Landlord would havereceived under this Lease (had Tenant made all such Rent payments as required)for the remainder of the Term, which the parties agree is a fair and reasonableestimate of Landlord’s Rental Damages and the Costs of Reletting.

## **C.            **Tenant NotRelieved from Liabilities****.  Unless expressly provided in this Lease, therepossession or re-entering of all or any part of the Premises shall notrelieve Tenant of its liabilities and obligations under this Lease.  In addition, Tenant shall not be relieved ofits liabilities under this Lease, nor be entitled to any damages hereunder,based upon minor or immaterial errors in the exercise of Landlord’sremedies.  No right or remedy of Landlordshall be exclusive of any other right or remedy.  Each right and remedy shall be cumulative andin addition to any other right and remedy now or subsequently available toLandlord at Law or in equity.  If Tenantfails to pay any amount when due hereunder (after the expiration of anyapplicable cure period), Landlord shall be entitled to receive interest on anyunpaid item of Rent from the date initially due (without regard to anyapplicable grace period) at a rate equal to the lesser of 18% per annum or thehighest rate permitted by Law.  Inaddition, if Tenant fails to pay any item or installment of Rent when due(after the expiration of any applicable cure period), Tenant shall pay Landlordan administrative fee equal to 5% of the past due Rent.  However, in no event shall the chargespermitted under this **Section19.C** or elsewhere in this Lease, to the extent they are consideredinterest under applicable Law, exceed the maximum lawful rate of interest.  If any payment by Tenant of an amount deemedto be interest results in Tenant having paid any interest in excess of thatpermitted by Law, then it is the express intent of Landlord and Tenant that allsuch excess amounts theretofore collected by Landlord be credited against theother amounts owing by Tenant under this Lease. Receipt by Landlord of Tenant’s keys to the Premises shall notconstitute an acceptance or surrender of the Premises.  **NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE TO THECONTRARY, TENANT SHALL HOLD LANDLORD PARTIES HARMLESS FROM AND INDEMNIFY ANDDEFEND SUCH PARTIES AGAINST, ALL CLAIMS THAT ARISE OUT OF OR IN CONNECTION WITHA BREACH OF THIS LEASE, SPECIFICALLY INCLUDING ANY VIOLATION OF APPLICABLE LAWSOR CONTAMINATION (DEFINED IN **ARTICLE 30**) CAUSED BY A TENANT PARTY.**

## **D.            **Mitigation ofDamages****.  Upontermination of Tenant’s right to possess the Premises, Landlord shall, only tothe extent required by Law, use objectively reasonable efforts to mitigatedamages by reletting the Premises. Landlord shall not be deemed to have failed to do so if Landlord refusesto lease the Premises to a prospective new tenant with respect to whom Landlordwould be entitled to withhold its consent pursuant to **Section 11.A**, or who (1) is anAffiliate, parent or subsidiary of Tenant; (2) is not acceptable to anyMortgagee of Landlord; (3) requires improvements to the Premises to be made atLandlord’s expense; or (4) is unwilling to accept lease terms then proposed byLandlord, including:  (a) leasing for ashorter or longer term than remains under this Lease; (b) re-configuring orcombining the Premises with other space, (c) taking all or only a part of thePremises; and/or (d) changing the use of the Premises.  Notwithstanding Landlord’s duty to mitigateits damages as provided herein, Landlord shall not be obligated (i) to give anypriority to reletting Tenant’s space in connection with its leasing of space inthe Building or any complex of which the Building is a part, or (ii) to acceptbelow market rental rates for the Premises or any rate that would negativelyimpact the market rates for the Building. To the extent that Landlord is required by applicable Law to mitigatedamages, Tenant must plead and prove by clear and convincing evidence thatLandlord failed to so mitigate in accordance with the provisions of this **Section 19.D**, andthat such failure resulted in an avoidable and quantifiable detriment toTenant.

## **E.             **Landlord’s Lien****.  To secure Tenant’s obligations under thisLease, Tenant grants Landlord a contractual security interest on all of Tenant’sinventory, goods, consumer goods and equipment now or hereafter situated in thePremises and all proceeds therefrom, including insurance proceeds(collectively, “***Collateral***”).  No Collateral shall be removed from thePremises without Landlord’s prior written consent until all of Tenant’sobligations are fully satisfied (except in the ordinary course of business andthen only if replaced with items of same or greater value and quality).  Upon any event of default, Landlord may, tothe fullest extent permitted by Law and in addition to any other remediesprovided herein, enter upon the Premises and take possession of any Collateralwithout being held liable for trespass or conversion, and sell the same atpublic or private sale, after giving Tenant at least 10 days written notice (ormore if required by Law) of the time and place of such sale.  Such notice may be sent with or withoutreturn receipt requested.  Unless prohibitedby Law, any Landlord Party may purchase any Collateral at such sale.  Subject to

 

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## applicableLaw, the proceeds from such sale, less Landlord’s expenses, includingreasonable attorneys’ fees and other expenses, shall be credited against Tenant’sobligations.  Any surplus shall be paidto Tenant (or as otherwise required by Law) and any deficiency shall be paid byTenant to Landlord upon demand.  UponLandlord’s request, Tenant agrees to execute and deliver to Landlord for filingpurposes a financing statement sufficient to perfect the foregoing securityinterest.  Tenant authorizes Landlord to filea copy of this Lease as a financing statement, as permitted under Law.

20.           **Limitation ofLiability**. Notwithstanding anything to the contrary contained in this Lease, theliability of Landlord (and of any successor Landlord) to Tenant (or any personor entity claiming by, through or under Tenant) shall be limited to theinterest of Landlord in the Property. Tenant shall look solely to Landlord’s interest in the Property for therecovery of any judgment or award against Landlord.  No Landlord Party shall be personally liablefor any judgment or deficiency.  Beforefiling suit for an alleged default by Landlord, Tenant shall give Landlord andthe Mortgagee(s) (defined in **Article 25**) whom Tenant has been notified hold Mortgages(defined in **Article 25**)on the Property, Building or Premises, notice and reasonable time to cure thealleged default.  Tenant hereby waivesall claims against all Landlord Parties for consequential, special or punitivedamages allegedly suffered by any Tenant Parties, including lost profits andbusiness interruption.

 

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

 

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

 

23.           **Relocation**.  Landlord may, upon 60 days notice to Tenant,relocate the Premises to any other premises within the Property (“***Relocated Premises***”) on a date of relocation (the “***Relocation Date***”) specified therein.  The Relocated Premises shall in all respectsbe substantially the same or better, as reasonably determined by Landlord, inarea, finish, and appropriateness for the Permitted Use.  In such event, all reasonable expenses ofmoving Tenant and decorating the Relocated Premises with substantially the sameleasehold improvements shall be at the expense of Landlord, including thephysical move, relocating Tenant’s existing telephone equipment and other costsset forth below.  All moving costs(including the cost to relocate phones, computers and other systems of similarnature), all costs of reprinting stationery, cards and other printed materialbearing Tenant’s address at the Premises if such address changes due to therelocation (but only the quantity existing immediately prior to the relocation)and all other out-of-pocket costs directly incurred by Tenant in connectionwith relocation to the Relocated Premises, including reasonable decorating anddesign costs, shall be paid by Landlord within thirty (30) days after receiptof third-party invoices therefor.  Tenantshall have the option, effective as of the Relocation Date, either to enterinto an appropriate lease amendment relocating the Premises, or to terminatethis Lease, which option shall be exercised within 10 Business Days followingreceipt of Landlord’s relocation notice. Failure of Tenant to choose either option within such period shallconstitute Tenant’s election to relocate. If Tenant elects (or is deemed to have elected) to relocate, Landlordshall have the option to tender the Relocated Premises to Tenant on any datewithin a 30 day period prior to or after the Relocation Date, in which eventthe date of tender of possession of the Relocated Premises shall become theRelocation Date.  From the RelocationDate through the Expiration Date, the aggregate Base Rent for the RelocatedPremises shall be the same as for the original Premises.  Tenant’s failure to vacate the Premises andmove into the Relocated Premises on the Relocation Date shall constitute a TimeSensitive Default.

 

24.           **Holding Over**.  Except for any permitted occupancy by Tenantunder **Article 29**,if Tenant or any party claiming by, through or under Tenant fails to surrenderthe Premises at the expiration or earlier termination of this Lease, thecontinued occupancy of the Premises shall be that of a tenancy atsufferance.  Tenant shall pay an amount(on a per month basis without reduction for partial months during the holdover)equal to 200% of the greater of:  (A) thesum of the Base Rent and

 

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Tenant’s Pro Rata Share of Excess OperatingExpenses due for the period immediately preceding the holdover; or (B) the fairmarket gross rental for the Premises. Tenant shall otherwise continue to be subject to all of Tenant’sobligations under this Lease.  Noholdover by Tenant or payment by Tenant after the expiration or earlytermination of this Lease shall be construed to extend the Term or preventLandlord from immediate recovery of possession of the Premises by summaryproceedings or otherwise.  In addition tothe payment of the amounts provided above, if Landlord is unable to deliverpossession of the Premises to a new tenant, or to perform improvements for anew tenant, as a result of Tenant’s holdover and Tenant fails to vacate thePremises within 15 days after Landlord notifies Tenant of Landlord’s inabilityto deliver possession, or perform improvements, such failure shall constitute aTime Sensitive Default hereunder; and notwithstanding any other provision ofthis Lease to the contrary, **TENANT SHALL BE LIABLE TO LANDLORD FOR, AND SHALL PROTECT LANDLORD FROMAND INDEMNIFY AND DEFEND LANDLORD AGAINST, ALL LOSSES AND DAMAGES, INCLUDINGANY CLAIMS MADE BY ANY SUCCEEDING TENANT RESULTING FROM SUCH FAILURE TO VACATE,AND ANY CONSEQUENTIAL DAMAGES THAT LANDLORD SUFFERS FROM THE HOLDOVER.**

 

25.           **Subordination to Mortgages; EstoppelCertificate**.  Tenantaccepts this Lease subject and subordinate to any mortgage(s), deed(s) oftrust, ground lease(s) or other lien(s) now or subsequently affecting thePremises, the Building or the Property, and to renewals, modifications,refinancings and extensions thereof (collectively, a “***Mortgage***”).  The party having the benefit of a Mortgageshall be referred to as a “***Mortgagee***.”  This clause shall be self-operative, but uponrequest from a Mortgagee, Tenant shall execute a commercially reasonablesubordination agreement in favor of the Mortgagee.  In lieu of having the Mortgage be superior tothis Lease, a Mortgagee shall have the right at any time to subordinate itsMortgage to this Lease.  If requested bya successor-in-interest to all or a part of Landlord’s interest in this Lease,Tenant shall, without charge, attorn to the successor-in-interest.  Tenant shall, within 5 days after receipt ofa written request from Landlord, execute and deliver an estoppel certificate tothose parties as are reasonably requested by Landlord (including a Mortgagee orprospective purchaser).  The estoppelcertificate shall include a statement certifying that this Lease is unmodified(except as identified in the estoppel certificate) and in full force andeffect, describing the dates to which Rent and other charges have been paid,representing that, to the best of Tenant’s knowledge, there is no default (orstating with specificity the nature of the alleged default) and certifyingother matters with respect to this Lease that may reasonably be requested.  Tenant’s failure to provide any estoppelcertificate within the 5 day period specified above, and the continuation ofsuch failure for a period of 5 days after Landlord delivers a second writtennotice requesting same, shall constitute a Time Sensitive Default under thisLease.

 

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

 

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

 

28.           **Reserved Rights**.  This Lease does not grant any rights to lightor air over or about the Building. Landlord excepts and reserves exclusively to itself the use of:  (A) roofs, (B) telephone, electrical andjanitorial closets, (C) equipment rooms, Building risers or similar areas thatare used by Landlord for the provision of Building services, (D) rights to theland and improvements below the floor of the Premises, (E) the improvements andair rights above the Premises, (F) the

 

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improvements and air rights outside thedemising walls of the Premises, (G) the areas within the Premises used for theinstallation of utility lines and other installations serving occupants of theBuilding, and (H) any other areas designated from time to time by Landlord asservice areas of the Building.  Tenantshall not have the right to install or operate any equipment producing radiofrequencies, electrical or electromagnetic output or other signals, noise oremissions in or from the Building without the prior written consent ofLandlord.  To the extent permitted byapplicable Law, Landlord reserves the right to restrict and control the use ofsuch equipment.  Landlord has the rightto change the Building’s name or address. Landlord also has the right to make such other changes to the Propertyand Building as Landlord deems appropriate, provided the changes do notmaterially affect Tenant’s ability to use the Premises for the PermittedUse.  Landlord shall also have the right(but not the obligation) to temporarily close the Building if Landlordreasonably determines that there is an imminent danger of significant damage tothe Building or of personal injury to Landlord’s employees or the occupants ofthe Building.  The circumstances underwhich Landlord may temporarily close the Building shall include, withoutlimitation, electrical interruptions, hurricanes and civil disturbances.  A closure of the Building under suchcircumstances shall not constitute a constructive eviction nor entitle Tenantto an abatement or reduction of Rent.

 

29.           **Surrender ofPremises**.  Allimprovements to the Premises (collectively, “***Leasehold Improvements***”)shall be owned by Landlord and shall remain upon the Premises withoutcompensation to Tenant.  At theexpiration or earlier termination of this Lease or Tenant’s right ofpossession, Tenant shall remove Tenant’s Removable Property (defined below)from the Premises, and quit and surrender the Premises to Landlord, broomclean, and in good order, condition and repair, ordinary wear and tearexcepted.  As used herein, the term “***Tenant’s Removable Property***” shall mean:  (A) Cable installed by or for the benefit ofTenant and located in the Premises or other portions of the Building; (B) anyLeasehold Improvements that are installed by or for the benefit of Tenant and,in Landlord’s reasonable judgment, are of a nature that would require removaland repair costs that are materially in excess of the removal and repair costsassociated with standard office improvements (“***SpecialInstallations***”); and (C) Tenant’s personal property.  Notwithstanding the foregoing, Landlord may,in Landlord’s sole discretion and at no cost to Landlord, require Tenant toleave any of its Special Installations in the Premises.  If Tenant fails to remove any of Tenant’sRemovable Property (other than Special Installations which Landlord hasdesignated to remain in the Premises) within 2 days after the termination ofthis Lease or of Tenant’s right to possession, Landlord, at Tenant’s sole costand expense, shall be entitled (but not obligated) to remove and store Tenant’sRemovable Property.  Landlord shall notbe responsible for the value, preservation or safekeeping of Tenant’s RemovableProperty.  Tenant shall pay Landlord,upon demand, the expenses and storage charges incurred for Tenant’s RemovableProperty.  To the fullest extentpermitted by applicable Law, any unused portion of Tenant’s Security Depositmay be applied to offset Landlord’s costs set forth in the precedingsentence.  In addition, if Tenant failsto remove Tenant’s Removable Property from the Premises or storage, as the casemay be, within 30 days after written notice, Landlord may deem all or any partof Tenant’s Removable Property to be abandoned, and title to Tenant’s RemovableProperty (except with respect to any Hazardous Material [defined in **Article 30**]) shallbe deemed to be immediately vested in Landlord. Except for Special Installations designated by Landlord to remain in thePremises, Tenant’s Removable Property shall be removed by Tenant before theExpiration Date; provided that upon Landlord’s prior written consent (whichmust be requested by Tenant at least 30 days in advance of the Expiration Dateand which shall not be unreasonably withheld), Tenant may remain in thePremises for up to 5 days after the Expiration Date for the sole purpose ofremoving Tenant’s Removable Property. Tenant’s possession of the Premises for such purpose shall be subject toall of the terms and conditions of this Lease, including the obligation to payBase Rent and Tenant’s Pro Rata Share of Excess Operating Expenses on a perdiem basis at the rate in effect for the last month of the Term.  In the event this Lease is terminated priorto the Expiration Date, Tenant’s Removable Property (except for SpecialInstallations designated by Landlord to remain in the Premises) shall beremoved by Tenant on or before such earlier date of termination.  Tenant shall repair damage caused by theinstallation or removal of Tenant’s Removable Property.

 

# 30.           **HazardousMaterials**.

## **A.            **Restrictions****.  No Hazardous Material (defined below) (exceptfor *de**minimis*quantities of household cleaning products and office supplies used in theordinary course of Tenant’s business at the Premises and that are used, keptand disposed of in compliance with Laws) shall be brought upon, used, kept ordisposed of in or about the Premises or the Property by any Tenant Parties orany of Tenant’s transferees, contractors or licensees without Landlord’s priorwritten

 

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## consent, which consent may be withheld in Landlord’s sole and absolutediscretion.  Tenant’s request for suchconsent shall include a representation and warranty by Tenant that theHazardous Material in question (1) is necessary in the ordinary course of Tenant’sbusiness, and (2) shall be used, kept and disposed of in compliance with allLaws.

## **B.            **Remediation****.  Tenant shall, at its expense, monitor thePremises for the presence of Hazardous Materials or conditions which mayreasonably give rise to Contamination (defined below) and promptly notifyLandlord if it suspects Contamination in the Premises.  Any remediation of Contamination caused by aTenant Party or its contractors or invitees which is required by Law or whichis deemed necessary by Landlord, in Landlord’s opinion, shall be performed byLandlord and Tenant shall reimburse Landlord for the cost thereof, plus a 15%administrative fee.

## **C.            **Definitions****.  For purposes of this **Article 30**, a “***HazardousMaterial***” is any substance the presence of which requires, ormay hereafter require, notification, investigation or remediation under anyLaws or which is now or hereafter defined, listed or regulated by anygovernmental authority as a “hazardous waste”, “extremely hazardous waste”, “solidwaste”, “toxic substance”, “hazardous substance”, “hazardous material” or “regulatedsubstance”, or otherwise regulated under any Laws.  “***Contamination***”means the existence or any release or disposal of a Hazardous Material orbiological or organic contaminant, including any such contaminant which couldadversely impact air quality, such as mold, fungi or other bacterial agents,in, on, under, at or from the Premises, the Building or the Property which mayresult in any liability, fine, use restriction, cost recovery lien, remediationrequirement, or other government or private party action or impositionaffecting any Landlord Party. For purposes of this Lease, claims arising fromContamination shall include diminution in value, restrictions on use, adverseimpact on leasing space, and all costs of site investigation, remediation,removal and restoration work, including response costs under CERCLA and similarstatutes.

## **D.            **Reports, Surveysand Acceptance of Premises****.  All current surveys or reports prepared forthe Property regarding the presence of Hazardous Materials (if any) in theBuilding are available for inspection by Tenant in the office of the Propertymanager.  With respect to HazardousMaterials, Tenant hereby (1) accepts full responsibility for reviewing any suchsurveys and reports and satisfying itself prior to the execution of this Leaseas to the acceptability of the Premises under **Section 3.B** above, and (2)acknowledges and agrees that this provision satisfies all notice requirementsunder applicable Law.  In the eventTenant performs or causes to be performed any test on or within the Premisesfor the purpose of determining the presence of a Hazardous Material, Tenantshall obtain Landlord’s prior written consent and use a vendor approved byLandlord for such testing.  In addition,Tenant shall provide to Landlord a copy of such test within 10 days of Tenant’sreceipt.

31.           **Building Directory**. Tenant shall beprovided with one (1) name on the directory board located in the main lobby ofthe Building at Landlord’s cost and expense.

 

# 32.           **Miscellaneous**.

## **A.            **Governing Law;Jurisdiction and Venue; Severability; Paragraph Headings****.  This Lease and the rights and obligations ofthe parties shall be interpreted, construed and enforced in accordance with theLaws of the state in which the Property is located.  All obligations under this Lease areperformable in the county or other jurisdiction where the Property is located,which shall be venue for all legal actions. If any term or provision of this Lease shall be invalid or unenforceable,then such term or provision shall be automatically reformed to the extentnecessary to render such term or provision enforceable, without the necessityof execution of any amendment or new document. The remainder of this Lease shall not be affected, and each remainingand reformed provision of this Lease shall be valid and enforced to the fullestextent permitted by Law.  The headingsand titles to the Articles and Sections of this Lease are for convenience onlyand shall have no effect on the interpretation of any part of this Lease.  The words “include”, “including” and similarwords will not be construed restrictively to limit or exclude other items notlisted.

## **B.            **Recording****.  Tenant shall not record this Lease or anymemorandum without Landlord’s prior written consent.

## **C.            **Force Majeure****.  Whenever a period of time is prescribed forthe taking of an action by Landlord or Tenant, the period of time for theperformance of such action shall be extended by the number of days that theperformance is actually delayed due to strikes, acts of God, shortages of

 

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## laboror materials, war, terrorist attacks (including bio-chemical attacks), civildisturbances and other causes beyond the reasonable control of the performingparty (“***Force Majeure***”).  However, events of Force Majeure shall notextend any period of time for the payment of Rent or other sums payable byeither party or any period of time for the written exercise of an option orright by either party.

## **D.            **Transferability;Release of Landlord****.  Landlord shall have the right to transfer andassign, in whole or in part, all of its rights and obligations under this Leaseand in the Building and/or Property, and upon such transfer Landlord shall bereleased from any further obligations hereunder, and Tenant agrees to looksolely to the successor in interest of Landlord for the performance of suchobligations.

## **E.**             **Brokers**. Tenant represents that it has dealt directly with and only with Grubb& Ellis Realty, representing Tenant, and Colliers International,representing Landlord, (whose commissions shall be paid by Landlord pursuant toa separate written agreement) in connection with this Lease.**  TENANT AND LANDLORD SHALL EACH INDEMNIFY THEOTHER AGAINST ALL COSTS, EXPENSES, ATTORNEYS’ FEES, LIENS AND OTHER LIABILITYFOR COMMISSIONS OR OTHER COMPENSATION CLAIMED BY ANY BROKER OR AGENT CLAIMINGTHE SAME BY, THROUGH OR UNDER THE INDEMNIFYING PARTY, OTHER THAN THE BROKER(S)SPECIFICALLY IDENTIFIED ABOVE.**

## **F.             **Authority; Jointand Several Liability****.  Landlord covenants, warrants and representsthat each individual executing, attesting and/or delivering this Lease onbehalf of Landlord is authorized to do so on behalf of Landlord, this Lease isbinding upon and enforceable against Landlord, and Landlord is duly organizedand legally existing in the state of its organization and is qualified to dobusiness in the state in which the Premises are located.  Similarly, Tenant covenants, warrants andrepresents that each individual executing, attesting and/or delivering thisLease on behalf of Tenant is authorized to do so on behalf of Tenant, thisLease is binding upon and enforceable against Tenant; and Tenant is dulyorganized and legally existing in the state of its organization and isqualified to do business in the state in which the Premises are located.  If there is more than one Tenant, or ifTenant is comprised of more than one party or entity, the obligations imposedupon Tenant shall be joint and several obligations of all the parties andentities.  Notices, payments andagreements given or made by, with or to any one person or entity shall bedeemed to have been given or made by, with and to all of them.

## **G.            **Time is of theEssence; Relationship; Successors and Assigns****.  Time is of the essence with respect to Tenant’sperformance of its obligations and the exercise of any expansion, renewal orextension rights or other options granted to Tenant.  This Lease shall create only the relationshipof landlord and tenant between the parties, and not a partnership, jointventure or any other relationship.  ThisLease and the covenants and conditions in this Lease shall inure only to thebenefit of and be binding only upon Landlord and Tenant and their permittedsuccessors and assigns.

## **H.            **Survival ofObligations****.  The expiration of the Term, whether by lapseof time or otherwise, shall not relieve either party of any obligations whichaccrued prior to or which may continue to accrue after the expiration or earlytermination of this Lease.  Withoutlimiting the scope of the prior sentence, it is agreed that Tenant’sobligations under **Sections4.A**, **4.B**,and **4.C**, andunder **Articles 6**,**8**, **12**, **13**, **19**, **24**, **29** and **30** shall survivethe expiration or early termination of this Lease.

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

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

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

 

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                Landlord and Tenant haveexecuted this Lease as of the Effective Date specified below Landlord’ssignature.
| Address:                            | **LANDLORD**:                                              |
|-------------------------------------|------------------------------------------------------------|
|                                |                                                       |
| 3800  Howard Hughes Parkway,        | 3960 HHP LLC,                                              |
| Suite  150, Las Vegas, Nevada 89109 | a Delaware limited  liability company                      |
| Attention:  Property Management     |                                                       |
| Phone:  (702) 791-4334              |                                                       | By: | CRESCENT REAL ESTATE EQUITIES |
| Fax:  (702) 791-4354                |                                                       |   | LIMITED PARTNERSHIP, |
|                                |                                                       |   | a Delaware limited  partnership |
| With  a copy to:                    |                                                       |   | its Managing Agent |
| 2000  Post Oak Blvd., Suite 1950    |                                                       |   |   |
| Houston,  Texas 77056               |                                                       |   | By: | CRESCENT REAL ESTATE |
| Attention:  Jane B. Page            |                                                       |   |   | EQUITIES, LTD., |
| Phone:  (713) 840-1170              |                                                       |   |   | a Delaware corporation |
| Fax:  (713) 840-1180                |                                                       |   |   | its General Partner |
|                                |                                                       |   |   |   |
| And  to:                            |                                                       |   |   | By: |   |
| 777  Main Street, Suite 2100        |                                                       |   |   | Name: |   |
| Fort  Worth, Texas 76102            |                                                       |   |   | Title: |   |
| Attention:  Legal Dept.             |                                                       |   |   |
| Phone:  (817) 321-2100              |                                                       |   |   |
| Fax:  (817) 321-2000                |                                                       | Effective Date: |   |
|                                |                                                       |
|                                | **TENANT**:                                                |
|                                |                                                       |
|                                |                                                       |
|                                | NORTHWEST POWER  MANAGEMENT, INC. a Washington corporation |
|                                |                                                       |
|                                | By:                                                        |   |
|                                | Name:                                                      |   |
|                                | Title:                                                     |   |

 

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**EXHIBIT A-1**OUTLINE AND LOCATION OF PREMISES[TO BE ATTACHED]

 

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EXHIBIT A-2Legal Description of PropertyParcel Nine:

 

That portion of Lot 1 of “Hughes Center UnitNo. 3” as shown by map thereof on file in Book 65, page 38 of Plats, in theClark County Recorder’s Office, Clark County, Nevada, lying within theSoutheast Quarter (SE 1⁄4) of Section 16, Township 21 South, Range 61 East,M.D.M., Clark County, Nevada and described as follows:

 

Commencing at the Southwest Corner of said lot1 being a point on the Easterly right-of-way line of Howard Hughes Parkway(80.00 feet wide);

Thence along said right-of-way line thefollowing three (3) courses;

North 00°11’16” West, 108.63 feet;

Thence along said right-of-way line, curvingto the right along the arc of a 420.00 foot radius curve, concaveSoutheasterly, through a central angle of 33°31’36”, an arc length of 245.76feet to a point of compound curvature to which a radial line bears North 56°39’40”West;

Thence curving to the right along the arc of a25.00 foot radius curve, concave Southerly,

through a central angle of 98°42’17”, an arclength of 43.07 feet;

Thence South 47°57’23” East, 75.46 feet;

Thence curving to the left along the arc of a200.00 foot radius curve; concave Northeasterly, through a central angle of17°34’23”, an arc length of 61.34 feet to point of reverse curvature throughwhich a radial line bears South 24°28’14” West;

Thence curving to the right along the arc of a100.00 foot radius curve, concave Southwesterly, through a central angle of17°34’23”, an arc length of 30.67 feet;

Thence South 47°57’23” East, 95.32 feet;

Thence curving to the left along the arc of a168.50 foot radius curve, concave Northeasterly, through a central angle of40°12’55”, an arc length of 118.27 feet to a point bearing North  01°49’42” East, 151.00 feet from the Southline of said Lot 1;

Thence parallel with said South line, South88°10’18” East 252.77 feet;

Thence North 01°49’42” East 37.00 feet;

Thence parallel with the South line of saidLot 1, North 88°10’18” West 252.77 feet;

Thence curving to the right along the arc of a131.50 foot radius curve, concave Northeasterly, through a central angle of40°12’55” an arc length of 92.30 feet;

Thence North 47°57’23” West, 95.32 feet;

Thence curving to the right along the arc of a100.00 foot radius curve concave Northeasterly through a central angle of 17°34’23”an arc length of 30.67 feet to a point of reverse curvature through which aradial line bears South 59°37’00” West;

Thence curving to the left along the arc of a200.00 foot radius curve concave Southwesterly,

Through a central angle of 17°34’23” an arclength of 61.34 feet;

Thence North 47°57’23” West, 80.01 feet;

Thence curving to the right along the arc of a25.00 foot radius curve concave Easterly, through a central angle 90°00’00”, anarc length of 39.27 feet to a point on the aforementioned Easterly right-of-wayline of Howard Hughes Parkway;

Thence along said right-of-way line, North42°02’37” East 275.36 feet to the Point of Beginning;

Thence South 47°57’23” East, 313.24 feet;

Thence North 42°02’37” East 133.41 feet;

Thence North 47° 57’23” West, 15.00 feet;

Thence North 42° 02’37” East. 25.00 feet

Thence South 47° 57’23” East, 15.00 feet;

Thence North 42° 02’37” East, 107.07 feet;

Thence North 44° 53’40” West, 71.91 feet;

Thence from a tangent bearing North 34°10’45”East, curving to the left along the arc of a 97.50 foot radius curve, concaveNorthwesterly, through a central angle of 45°39’31”, an arc length of 77.70feet,

Thence North 11° 28’46” West, 59.92 feet;

Thence from a tangent bearing South 71°10’15”West, curving to the right along the arc of a 150.00 foot radius curve, concaveNortheasterly, through a central angle of 54° 45’06”, an arc length of 143.34feet;

Thence North 54°04’39” West 40.26 feet;

Thence curving to the left along the arc of a332.50 foot radius curve, concave Southwesterly through a central angle of05°32’15”, an arc length of 32.14 feet to a point on the aforementionedEasterly right-of-way line of Howard Hughes Parkway to which a radial linebears North 30°23’06” East;

Thence along said right-of-way line, from atangent bearing South 27°00’37” West, curving to the right along the arc of a940.00 foot radius curve, concave Northwesterly, through a central angle of15°02’00”, an arc length of 246.64 feet;

Thence continuing along said right-of-wayline, South 42°02’37” West, 40.80 feet to the Point of Beginning.

 

APN: 162-16-811-017

 

 

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**EXHIBIT B****RULES AND REGULATIONS**

                1.             Tenant, or its officers, agents, employees, contractorsor vendors, shall not obstruct sidewalks, doorways, vestibules, halls,corridors, stairways, lobbies and other common areas (the “Public Areas”) withrefuse, furniture, boxes, or other items. The Public Areas shall not be used for any purpose other than ingressand egress to and from the Premises, or for going from one part of the Buildingto another part of the Building.  Tenant’sdoors to the Premises shall not be blocked open and shall remain closed at alltimes unless first approved in writing by Landlord in its sole discretion.

 

2.             Plumbing, fixturesand appliances shall be used only for the purposes for which constructed and nounsuitable material shall be placed therein.

 

3.             No signs,directories, posters, advertisements, or notices shall be painted on or affixedto any portion of the Building or Premises or other parts of the Building.  Including within Tenant’s Premises, which arevisible from any Public Areas or the Building exterior, except in such color,size, and style, and in such places, as shall be first approved in writing byLandlord at its sole discretion.  ThePremises shall be identified by a standard suite sign, which Landlord shallorder at Tenant’s expense.  Landlordshall have the right to remove all unapproved signs without notice to Tenant,at Tenant’s expense.

 

              4.               Tenant shall not do, or permitanything to be done in or about the Building, or bring or keep anythingtherein, that will in any way increase the possibility of fire or other hazardor increase rate of fire or other insurance on the Building.  Tenant shall not use or keep in the Buildingany inflammable or explosive fluid or substance or any illuminatingmaterials.  No space heaters or portablefans shall be operated in the Building. Tenant must submit to Landlord a certificate of Fire Retardancy for anyfresh evergreens (i.e. Christmas tree, wreaths) to be brought onto thePremises.

 

              5.               Tenant shall notify Landlord whensafes or other heavy equipment are to be taken in or out of the Building, andsuch moving shall only be done after written permission is obtained fromLandlord on such conditions as Landlord may require at its solediscretion.  Landlord shall have thepower to prescribe the weight and position of heavy equipment or other objects,which may overstress any portion of the Building.  All damage done to the Building by such heavyitems will be repaired at the sole expense of the responsible Tenant.

 

              6.               During normal business hours,Tenant may receive routine deliveries at the Premises (i.e. office supplies,bottled water, mail couriers and parcel shipments).  All such deliveries must be made via theBuilding’s designated service access route and under no circumstances throughthe front lobby door.  Tenant’s initialmove-in, move-out and all other non-routine deliveries (i.e. furnishings, largeequipment) must occur after normal business hours and only after writtenpermission is obtained from Landlord, on such conditions as Landlord mayrequire in its sole discretion.

 

              7.               Tenant shall cooperate withLandlord in keeping the Premises neat and clean.

 

              8.               Tenant shall not cause or permitany improper noises in the Building, or allow any unpleasant odors to emanatefrom the Premises, or otherwise interfere, injure or annoy in any way othertenants in the Building, or persons having business with them.

 

              9.               No animals shall be brought intoor kept in or about the Building, with the exception of aid animals such asSeeing Eye dogs.

 

            10.               When conditions are such thatTenant must dispose of small shipping crates or boxes, it will be theresponsibility of Tenant to break down and dispose of same in the refusecontainer designated by Landlord.  Thedisposal of large shipping crates or boxes (or other large objects orquantities), which in Landlord’s sole determination could overload thedesignated refuse container, must be accommodated through Tenant’s mover orvendor or may otherwise be prearranged through Landlord at an additional chargeto Tenant’s account.

 

            11.               No machinery of any kind, otherthan ordinary office machines such as typewriters, calculators, facsimileequipment and personal computer equipment shall be operated on the Premisesunless first approved in writing by Landlord in its sole discretion.

 

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            12.               No bicycles, motorcycles orsimilar vehicles will be allowed in the Building.

 

            13.               No nails, hooks, or screws shallbe driven into or inserted in any part of the Building unless first approved inwriting by Landlord in its sole discretion.

 

            14.               After normal business hours,Landlord reserves the right to exclude from the Building any person who doesnot possess an authorized means of access such as a key, card key, or aprearranged written authorization and who is otherwise not an employee or guestof Tenant.  Tenant and its officers,agents or employees shall utilize card keys only as instructed by Landlord andin no event shall Tenant allow access to anyone, other than its officers, agents,employees, guests or vendors.

 

            15.               Canvassing, soliciting andpeddling in Public Areas, or otherwise within the Building, are strictlyprohibited.  Unless otherwise approved byLandlord in writing, Tenant shall not use the Premises for the sale of newspapers,magazines, periodicals, theater tickets or any other goods or merchandise toother tenants in the Building or the general public.  Tenant shall not use the Premises for anybusiness or activity other than that specifically provided for in Tenant’slease.  Tenant shall not make door-to-doorsolicitation of business from other tenants in the Building.

 

            16.               Landlord shall initially givetenant two (2) keys to the Premises. Tenant shall make no duplicates of such keys.  Additional keys shall be obtained only fromLandlord, at a fee to be determined by Landlord.  No additional locks shall be placed upon anydoors unless first approved by Landlord in writing.  Upon termination of Tenant’s lease, Tenantshall surrender all keys to the Premises (and, if applicable, card keys) toLandlord and shall otherwise give Landlord the combination of all locks on thePremises.

 

            17.               Tenant will not locatefurnishings or cabinets adjacent to mechanical or electrical access panels orover air conditioning outlets so as to prevent operating personnel fromservicing such units as routine or emergency access may require.  Cost of moving such furnishings for Landlord’saccess will be billed to Tenant.   Thelighting and air conditioning equipment of the Building is the exclusive chargeof Landlord and its employees.

 

            18.               Tenant shall comply with allparking rules and regulations as posted and distributed by Landlord from timeto time.

 

            19.               No portion of the Building shallbe used for the purpose of lodging rooms.

 

            20.               Tenant shall not wasteelectricity, water or other utilities. Tenant will comply with any governmental energy-saving rules, laws orregulations of which Tenant has received notice.  Tenant agrees to cooperate fully withLandlord to assure the effective operation of the Building’s heating and airconditioning and to refrain from adjusting thermostat controls.

 

            21.               Tenant shall not place vendingmachines or dispensing machines of any kind in the Premises, unless firstapproved in writing by Landlord in its sole discretion.

 

            22.               Landlord’s written approval,which shall be at Landlord’s sole discretion, must be obtained prior tochanging from the standard blinds. Landlord will control all blinds and internal lighting that may bevisible from the exterior or Public Areas of the Building and shall have theright to change any unapproved blinds and lighting at Tenant’s expense.

 

            23.               Tenant shall not make any changesor alterations to any portion of the Building without Landlord’s prior writtenapproval, which may be given on such conditions as Landlord may require in itssole discretion.  All such work shall bedone by Landlord or by Landlord’s contractors and/or workers approved byLandlord, who must work under Landlord’s supervision and within Landlord’sstandards and guidelines.

 

            24.               Tenant shall not use the name ofthe Building in connection with or in promoting or advertising the business ofTenant except as Tenant’s address, without Landlord’s prior written approval,which may be given on such conditions as Landlord may require in its sole discretion.

 

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            25.               Tenant shall comply with allsafety, fire protection, and evacuation procedures and regulations establishedby Landlord or any governmental agency. Landlord has the right to evacuate the Building in the event of anemergency or catastrophe.  Landlordreserves the right to prevent access to the Building in cases of invasion, mob,riot, bomb threat, public excitement or other commotion by closing the doors orby taking other appropriate action.

 

            26.               Tenant assumes any and allresponsibility for protecting the Premises from theft, robbery and pilferage,which includes keeping doors locked when the Premises are not fully inhabited.

 

            27.               Smoking shall not be permitted onany multi-tenant floor in the Building. Smoking is permitted on any floor in the Building, which is leasedentirely by a single tenant (if so desired by that tenant).  Smoking is also permitted outside theBuilding; however, smokers must utilize the ash urns which are located outsidethe Building at the designated smoking area.

 

            28.               Landlord has the right todesignate a property management company to, among other things, monitor andenforce the Rules and Regulations.

 

            29.               Tenant is solely responsible forthe cost to maintain and repair any and all “Above Standard” items installedwithin their Premises (i.e., computer room air conditioning unit, sinks,garbage disposals, dishwashers, custom locking devices, specialty lighting,private restroom fixtures, etc.)

 

            30.               Landlord reserves the right torescind any of these rules and regulations and to make such other and furtherrules and regulations as in its sole judgment. And shall from time to time be required for the successful andprofessional operation of the Building, which rules shall be binding upon eachtenant and its officers, agents, employees, guests and vendors upon delivery totenant.

 

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** **

**EXHIBIT C**

**COMMENCEMENTLETTER**

Re:                               Office Leasedated                         ,2005 (the “***Lease***”) between 3960 HHP LLC(“***Landlord***”) and NORTHWEST POWER MANAGEMENT, INC. (“***Tenant***”) for the Premises, the Rentable Square Footageof which is 3,448, located on the sixth floor of 3960 Howard Hughes Parkway,Las Vegas, Nevada.  Unless otherwise specified,all capitalized terms used herein shall have the same meanings as in the Lease.

Landlordand Tenant agree that:

#### Landlord has fully completedall Landlord Work required under the terms of the Lease, if any.

#### Tenant has acceptedpossession of the Premises.  The Premisesare usable by Tenant as intended; Landlord has no further obligation to performany Landlord Work or other construction, and Tenant acknowledges that both theBuilding and the Premises are satisfactory in all respects.

#### The Commencement Date of theLease is                         ,200    .

#### The Expiration Date of theLease is the last day of                         ,            .

#### Tenant’s Address at thePremises after the Commencement Date is:

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| Attention: |   |
| Phone:     |   |
| Fax:       |   |
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Allother terms and conditions of the Lease are ratified and acknowledged to beunchanged.

EXECUTED as of                         ,200    .

{ATTACH APPROPRIATE SIGNATURES}

 

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**EXHIBIT D**

**[paint and carpet only — Landlord turn-key]**

 

This Work Letter is attached as an Exhibit to an Office Lease (the “***Lease***”) between 3960 HHP LLC, as Landlord, and NORTHWESTPOWER MANAGEMENT, INC., as Tenant, for the Premises, the Rentable SquareFootage of which is 3,448, located on the sixth floor of the Building.  Unless otherwise specified, all capitalizedterms used in this Work Letter shall have the same meanings as in theLease.  In the event of any conflictbetween the Lease and this Work Letter, the latter shall control.

Tenant agrees to accept the Premises in its current “as is” conditionas of the Commencement Date; provided that Landlord shall repair any damagecaused by the prior tenant in the Premises. However, Tenant shall be permitted at Tenant’s expense to paint andre-carpet the Premises  with Tenant’schoice of building standard materials (the “***Tenant Work***”).  Any materials used must meet all requirementsof Section 4.5 of the ADA.  The TenantWork shall be conducted in accordance with all provisions of the Lease as theypertain to Alterations, including **Article 9** of the Lease. Upon and subject to the terms and conditions of this Work Letter,Landlord shall reimburse Tenant for the costs of the Tenant Work; provided,however, Landlord’s obligation to reimburse Tenant for the Tenant Work shallbe: (i) limited to the lesser of (A) actual costs incurred by Tenant in itsconstruction of the Tenant Work; and (B) an amount up to, but not exceeding,$5.00 multiplied by the Usable Square Footage of the Premises; and (ii) conditionedupon Landlord’s receipt of written notice (which notice shall be accompanied byinvoices and documentation set forth below) from Tenant that the Tenant Workhas been completed and accepted by Tenant.

Bytaking possession of the Premises, Tenant agrees and acknowledges that (i) thePremises are usable by Tenant as intended; (ii) Landlord has no furtherobligation to perform any Landlord Work or other construction (except punchlistitems, if any agreed upon by Landlord and Tenant in writing): and (iii) boththe Building and the Premises are satisfactory in all respects.

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**EXHIBIT E**HUGHES CENTER

PARKING AGREEMENT

 

This Parking Agreement is incorporated by reference into that certainLease Agreement dated as of                                                 , 2005, NORTHWESTPOWER MANAGEMENT, INC., as Tenant, and 3960 HHP LLC, as Landlord (the “Lease”).

 

1.             ParkingFacilities.  The parking facilitiesappurtenant to the Building include asphalt surface parking for visitor parkingand a separate parking structure for monthly parking (“Parking Structure”).  Tenant shall be entitled to use thirteen (13)vehicle parking spaces within the Parking Structure for the monthly parking ofTenant’s employees.  Up to nine (9) ofsuch parking spaces shall be for parking in the covered portion of the ParkingStructure, and the remaining four (4) parking spaces shall be for parking inthe rooftop, uncovered portion of the Parking Structure. Tenant’s use of theParking Structure shall be based upon a non-exclusive use in common withLandlord, other tenants of the Building, and their guests and invitees.  Tenant shall not use more parking spaces thansaid number, or any spaces (a) which have been specifically assigned byLandlord to other tenants or for such other uses as visitor parking or(b) which have been designated by governmental entities of competentjurisdiction as being restricted to certain uses.  Landlord reserves the right to erect suchsecurity and access and egress control devices as it may reasonably deem to beappropriate (including, without limitation card controlled gates) and Tenantagrees to cooperate fully with Landlord in such matters.  Tenant shall not permit or allow any vehiclesthat belong to or are controlled by Tenant or Tenant’s employees, suppliers,shippers, customers, or invitees to be loaded, unloaded, or parked in areasother than those designated by Landlord for such activities.  If Tenant permits or allows any of suchprohibited activities, then Landlord shall have the right, without notice, inaddition to such other rights and remedies that it may have, to remove or towaway the vehicle involved and charge the cost to Tenant, which cost shall beimmediately payable upon demand by Landlord.

 

2.             Parking Fee.  Tenant shall pay, throughout the entire Term,an amount equal to the number of parking spaces Tenant is entitled to use timesthe applicable fees (the “Parking Fees”) which Landlord is charging for use ofthe parking facilities.  Currently,Landlord is charging Fifty-five Dollars and No Cents ($55.00) per spaceper month for covered parking and Thirty Dollars and No Cents ($30.00) perspace per month for uncovered parking. Landlord shall have the right from time to time to increase the ParkingFees being charged Tenant upon thirty (30) days prior written notice. Tenantagrees and acknowledges that Tenant shall be obligated to pay such ratesregardless of whether or not Tenant actually uses or needs the parking spaceswhich Tenant is entitled to use.  SuchParking Fees shall be payable monthly commencing with the first installment ofBase Rent due under the Lease.  If theCommencement Date is other than the first day of a calendar month, the firstinstallment of the Parking Fees shall be prorated on the basis of a thirty (30)day calendar month.

 

3.             Definitions.  All capitalized terms contained in thisParking Agreement that are not defined herein shall have the same definition asset forth in the Lease.

 

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