Exhibit 10.41


 


OFFICE LEASE AGREEMENT


 


between


 


COLLEGE PARK PLAZA, LLC


(Landlord)


 


and


 


REPUBLIC AIRWAYS HOLDINGS, INC.


(Tenant)


 


 


COLLEGE PARK PLAZA


8909 Purdue Road


Indianapolis, Indiana


 


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INDEX


 


	
  ARTICLE I

  	
  TERM

  
	
   

  	
  §1.01

  	
  Length

  
	
   

  	
  §1.02

  	
  Confirmation

  
	
   

  	
  §1.03

  	
  Options
  to Renew

  
	
   

  	
  §1.04

  	
  Right of First Offer

  
	
   

  	
  §1.05

  	
  Limited Right of Termination

  
	
   

  	
  §1.06

  	
  Surrender

  
	
   

  	
  §1.07

  	
  Holding
  Over

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  RENT

  
	
   

  	
  §2.01

  	
  Base
  Rent

  
	
   

  	
  §2.02

  	
  Real
  Estate Taxes

  
	
   

  	
  §2.03

  	
  Operating Expenses

  
	
   

  	
  §2.04

  	
  When Due and Payable

  
	
   

  	
  §2.05

  	
  Proration

  
	
   

  	
  §2.06

  	
  Late
  Payment

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  USE OF PREMISES

  
	
   

  	
  §3.01

  	
  Use

  
	
   

  	
  §3.02

  	
  Laws

  
	
   

  	
  §3.03

  	
  Common
  Areas

  
	
   

  	
  §3.04

  	
  Signage

  
	
   

  	
  §3.05

  	
  Relocation

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  INSURANCE/INDEMNIFICATION

  
	
   

  	
  §4.01

  	
  Tenant’s
  Insurance

  
	
   

  	
  §4.02

  	
  Landlord’s Insurance

  
	
   

  	
  §4.03

  	
  Waiver of Subrogation

  
	
   

  	
  §4.04

  	
  Indemnification

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  IMPROVEMENTS TO PREMISES

  
	
   

  	
  §5.01

  	
  Initial Improvements

  
	
   

  	
  §5.02

  	
  Acceptance

  
	
   

  	
  §5.03

  	
  Tenant’s Alterations

  
	
   

  	
  §5.04

  	
  Mechanics’
  Liens

  
	
   

  	
  §5.05

  	
  Fixtures

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  MAINTENANCE AND SERVICES

  
	
   

  	
  §6.01

  	
  Ordinary
  Services

  
	
   

  	
  §6.02

  	
  Extraordinary Services

  
	
   

  	
  §6.03

  	
  Excessive
  Use

  
	
   

  	
  §6.04

  	
  Maintenance by Tenant

  
	
   

  	
  §6.05

  	
  Maintenance by Landlord

  



 


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  §6.06

  	
  Interruption

  
	
   

  	
  §6.07

  	
  Right
  of Entry

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  FINANCIAL INFORMATION

  
	
   

  	
  §7.01

  	
  Financial
  Reports

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CASUALTIES

  
	
   

  	
  §8.01

  	
  General

  
	
   

  	
  §8.02

  	
  Substantial Destruction

  
	
   

  	
  §8.03

  	
  Tenant’s Negligence

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  CONDEMNATION

  
	
   

  	
  §9.01

  	
  Right
  to Award

  
	
   

  	
  §9.02

  	
  Effect of Condemnation

  
	
   

  	
  §9.03

  	
  Interruption

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  ASSIGNMENT/SUBLETTING

  
	
   

  	
  §10.01

  	
  Actions
  Covered

  
	
   

  	
  §10.02

  	
  Restrictions

  
	
   

  	
  §10.03

  	
  Liability to Landlord

  
	
   

  	
  §10.04

  	
  Excess
  Rents

  
	
   

  	
  §10.05

  	
  Recapture

  
	
   

  	
  §10.06

  	
  Landlord’s Transfers

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  RULES & REGULATIONS

  
	
   

  	
  §11.01

  	
  Landlord’s
  Rules

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  MORTGAGE LENDERS

  
	
   

  	
  §12.01

  	
  Subordination

  
	
   

  	
  §12.02

  	
  Written
  Agreement

  
	
   

  	
  §12.03

  	
  Estoppel Certificate

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  ENVIRONMENTAL COVENANTS

  
	
   

  	
  §13.01

  	
  Prohibitions

  
	
   

  	
  §13.02

  	
  Inspection

  
	
   

  	
  §13.03

  	
  Indemnification

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  DEFAULT AND REMEDIES

  
	
   

  	
  §14.01

  	
  Defaults

  
	
   

  	
  §14.02

  	
  Grace
  Period

  
	
   

  	
  §14.03

  	
  Remedies

  
	
   

  	
  §14.04

  	
  Damages

  
	
   

  	
  §14.05

  	
  Waiver of Jury Trial

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  QUIET ENJOYMENT

  



 


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  §15.01

  	
  Covenant

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  NOTICES

  
	
   

  	
  §16.01

  	
  Notices

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII

  	
  GENERAL

  
	
   

  	
  §17.01

  	
  Entire
  Agreement

  
	
   

  	
  §17.02

  	
  Amendment

  
	
   

  	
  §17.03

  	
  Applicable
  Law

  
	
   

  	
  §17.04

  	
  Waiver

  
	
   

  	
  §17.05

  	
  Time
  of Essence

  
	
   

  	
  §17.06

  	
  Headings

  
	
   

  	
  §17.07

  	
  Severability

  
	
   

  	
  §17.08

  	
  Successors and Assigns

  
	
   

  	
  §17.09

  	
  Commissions

  
	
   

  	
  §17.10

  	
  Recordation

  
	
   

  	
  §17.11

  	
  Perpetuities

  
	
   

  	
  §17.12

  	
  Liability Limitation

  
	
   

  	
  §17.13

  	
  Authority

  
	
   

  	
  §17.14

  	
  Exhibits

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Floor Plan of Premises

  
	
  Exhibit B

  	
  Location of Designated
  Parking Spaces

  
	
  Exhibit C

  	
  Space Plan of Premises

  
	
  Exhibit D

  	
  Rules and Regulations

  
	
  Exhibit E

  	
  Form of Satellite Dish License

  
	
  Exhibit F

  	
  Generator Specifications

  



 


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OFFICE LEASE AGREEMENT


 


THIS OFFICE LEASE AGREEMENT (“Lease”) is made
as of the 23rd day of April, 2004, by and between COLLEGE PARK
PLAZA, LLC (the “Landlord”) and REPUBLIC AIRWAYS HOLDINGS, INC., an Indiana
corporation (the “Tenant”).


 


WITNESSETH, that for good and valuable consideration, the Landlord
hereby leases to the Tenant, and the Tenant hereby leases from the Landlord,
certain space containing a conclusive
and agreed-upon 36,797 rentable square feet of floor area (the
“Premises”) on the 3rd floor of an office building (the “Building”), as more
particularly shown on the floor plan attached hereto as Exhibit A, which Building
together with other real property and improvements is located at 8909 Purdue
Road in Indianapolis, Indiana (collectively the “Property”), all upon the terms
and conditions set forth in this Lease.


 


ARTICLE I - TERM


 


§1.01                    Length.  This Lease shall be for a term of eleven (11) years (the “Term”) which
begins on the date Landlord substantially completes the initial improvements to
the Premises described in §5.01 below  as
certified by a registered architect (the “Commencement Date”).  The Term shall expire on the 11th
anniversary of the Commencement Date (the “Expiration Date”).  Provided Tenant does not interfere with
Landlord’s completion of the initial improvements, Tenant shall have the right
to enter into occupancy of the Premises for a reasonable period of time prior
to the Commencement Date (as reasonably determined by Landlord, but in any
event not earlier than 45 days prior to the Commencement Date) for the purpose
of constructing improvements or installing fixtures therein (and without
conducting business therein) (the “Pre-Commencement Period”).  During the Pre-Commencement Period, all
terms of this Lease except that regarding the payment of rent and other charges
shall apply to such occupancy.


 


§1.02                    Confirmation.  Landlord shall, within thirty (30) days after the
commencement of the Term, confirm to Tenant in writing the actual dates of the
Commencement Date and the Expiration Date.


 


§1.03                    Options to Renew.  Tenant shall have two (2) successive options to renew the Term of the Lease upon its
expiration for an additional period of five
(5) years each (each a “Renewal Term,” which shall be deemed part of the
Term), subject to the following provisions:


 


(A)                              In
order to exercise either option to renew the Lease, Tenant must give Landlord
written notice of its interest to renew not earlier than 365 days and not later
than 180 days before the expiration of the then-applicable Term.  Within ten (10) days of receipt of such
notice, Landlord shall provide to Tenant, in writing, the proposed Rent for
such Renewal Term.  All terms of the
Lease shall remain in full force and effect for each Renewal Term, except that
the Rent applicable during the period of renewal shall be at the
then-prevailing market rate of Rent and all other charges for first-class
space, with such market rate to reflect such factors as the Tenant’s use of the
premises, location of the Building, size of rental area, condition of the
Premises, and the time the particular rate under consideration becomes
effective.  However, in no event shall
the Rent for either Renewal Term be less than that in effect at the expiration
of the


 


1

















 


immediately preceding Term of the Lease.  Tenant shall, within thirty (30) days of receipt from Landlord of
the proposed Rent for the Renewal Term, notify Landlord that it is exercising
its option to renew.  If Tenant fails to
so notify Landlord within such thirty (30) day period, Tenant shall be deemed
to have failed to exercise its right for a Renewal Term and all of Tenant’s
then-remaining rights and options to renew shall be automatically terminated
and of no further force or effect.


 


(B)                                If
Tenant does not accept Landlord’s determination of the market rate of Rent
contained in a notice to Tenant under subsection (A) above, then Tenant
shall within 10 days after receiving Landlord’s statement notify Landlord in
writing that it elects to have such value determined by a panel of 3 licensed
real estate brokers or appraisers, one of whom shall be selected by Landlord
within 3 days after the end of such 10 day period, one of whom shall be selected
by Tenant within 3 days after the end of such 10 day period, and the third of
whom shall be selected by the first two within 3 days after the first two are
selected.  Each broker or appraiser,
within 10 days after the third such party is so selected, shall submit a
determination of such market Rent, and the average of the two closest
determinations shall be binding on the parties for purposes of calculating rent
during the relevant Renewal Term. 
Landlord and Tenant shall each pay the fee of the broker or appraiser
selected by it and they shall share equally the payment of the fee of the third
such party.  If Tenant does not notify
Landlord within the 10 day period described above of its election to have the
market rate determined by the independent panel, the rate set forth in
Landlord’s notice given under subsection (A) above shall be binding on the
parties for the relevant Renewal Term.


 


(C)                                If
Tenant fails to give notice exercising either of the foregoing options by the
date required herein, or if at the time Tenant exercises either such option or
at commencement of the applicable Renewal Term the Tenant is in default of any
term of this Lease, or if this Lease is assigned by Tenant or the Premises
sublet in whole or in part, then all of Tenant’s then-remaining rights and
options to renew shall be automatically terminated and of no further force or
effect.


 


§1.04                    Right of First Offer.  Tenant shall have a right of first offer to
lease available space located in the Building, to the extent previously occupied
by another tenant but becoming available for lease after the date of this Lease
(the “Expansion Space”), subject to any similar rights or options of other
tenants under leases in existence prior to the date of this Lease (and to
Landlord’s right to renew or extend the existing leases of other tenants), and
subject to the following additional terms:


 


(A)                              After
the date on which the Expansion Space is to become vacant is known to Landlord
with reasonable certainty, Landlord shall deliver to Tenant a notice offering
such space to Tenant (the “Expansion Availability Notice”).  Such Expansion Availability Notice shall
include (1) the date on which the Tenant may occupy such Expansion Space, (2)
the Base Rent to apply to the Expansion Space, which Base Rent shall be at a
per square foot rate which is equal to the greater of (i) the market rate in
effect for comparable space in the area of the Premises at the time, or (ii)
the rate of Base Rent for the remainder of the Term under the Lease, and (3)
any other important terms upon which the Landlord is offering the Expansion
Space to the Tenant.


 


2

















 


(B)                                In
order to exercise its rights under this section, Tenant must give Landlord
written notice of its election to accept the offer (the “Expansion Acceptance
Notice”) within ten (10) days after receiving the Expansion Availability
Notice.


 


(C)                                If
Tenant timely accepts the Landlord’s offer in accordance with
subsection (B) above, then Tenant’s leasing of the Expansion Space shall
be under all terms of this Lease for the remainder of the Term, except that (i)
the Base Rent shall be as determined in accordance with the provisions above,
and (ii) the fraction used for Tenant’s Proportionate Share of Real Estate
Taxes, and Operating Expenses shall be increased proportionately to reflect the
addition of the Expansion Space to the Premises.  Furthermore, within fifteen (15) days after the Expansion
Acceptance Notice, the parties shall execute a written amendment to this Lease
describing the addition of the Expansion Space to the Premises and setting
forth the foregoing changes to this Lease.


 


(D)                               Tenant
shall lease the Expansion Space for the period from the date the Tenant may
occupy the Expansion Space as set forth in the Expansion Availability Notice to
the expiration of the Term of this Lease.


 


(E)                                 If
Tenant fails to give notice accepting the Landlord’s offer by the time required
above, or if at the time Tenant accepts such offer or at the time Tenant’s
lease of the Expansion Space becomes effective the Tenant is in default of any
term of this Lease, or if this Lease is assigned by Tenant or the Premises
sublet in whole or in part, then Tenant’s right of first offer provided in this
section shall be automatically terminated and of no further force or
effect, and Landlord shall have the right to lease the Expansion Space to any
parties and upon any terms it sees fit.


 


§1.05                    Limited Right of Termination.  Tenant shall have a conditional right to
terminate this Lease by (a) giving Landlord written notice of its election to
terminate (the “Termination Notice”) not earlier than the 365th day prior to,
and not later than the 270th day prior to, the 6th anniversary of the
Commencement Date (the “Termination Period”), and (b) paying to Landlord, at
the time of the Termination Notice, a fee (the “Termination Fee”) equal to (i)
the then-unamortized value of all costs and expenses incurred by Landlord in
any connection with the Lease, including all costs of constructing improvements
(whether paid directly by Landlord or indirectly through allowances to Tenant),
all out-of-pocket costs of brokerage commissions, legal fees and other costs,
and all other rent concessions, moving allowances or credits, with such
amortization to be calculated with interest at the annual rate of 10% over the
Term and prorated to the date the termination is to become effective, and (ii)
a separate fee of 6 times the monthly installment of Rent (including all Base
Rent and Additional rent) which will be in effect at the time the termination
is to become effective.  Within ten (10)
days after request by Tenant, Landlord shall provide Tenant with a written
statement of its calculation of the Termination Fee.  If (and only if) Tenant both delivers the Termination Notice and
pays the Termination Fee within the Termination Period, and further provided
that Tenant is not in default (beyond any applicable notice and/or cure period)
of any term in this Lease either on the date of the Termination Notice or on
the date on which such termination is to become effective, then the Lease will
be terminated effective on the 6th anniversary of the Commencement Date.  Tenant


 


3

















 


shall not have the right to terminate this Lease if it fails either to
deliver the Termination Notice or pay the Termination Fee within the
Termination Period.


 


§1.06                    Surrender.  The Tenant shall at the expiration of the
Term or any earlier termination of this Lease (a) promptly surrender to the
Landlord possession of the Premises, including any fixtures or other
improvements which under the provisions of this Lease are property of the
Landlord, all in good order and repair (ordinary wear and tear excepted) and
broom clean, (b) remove from the Premises the Tenant’s signs, goods and effects
and any machinery, trade fixtures and equipment used in conducting the Tenant’s
trade or business and not owned by the Landlord and (c) repair any damage to
the Premises or the Building caused by such removal.


 


§1.07                    Holding Over.  If the Tenant continues to occupy the
Premises beyond the Expiration Date or any earlier termination of this Lease,
such occupancy shall be subject to all of the same terms and conditions as are
contained in this Lease, except that the Base Rent payable during the period of
such occupancy shall be equal to 1.50 times the amount of all Base Rent which
was last in effect during the Term. 
Nothing in the foregoing shall be deemed in any way to limit or impair
the Landlord’s right to immediately evict the Tenant or exercise its other
rights and remedies under the provisions of this Lease or applicable law,
including the collection of consequential and other damages, on account of the
Tenant’s occupancy of the Premises without having obtained Landlord’s prior
consent.


 


ARTICLE II - RENT


 


§2.01                    Base Rent.  Tenant shall pay a minimum annual rental in
each one-year period during the Term hereof which shall be referred to
hereinafter as “Base Rent.”  Base Rent
shall be calculated and increased for each such year as follows:


 


(A)                              Base
Rent for lease years 1 through 6 of the Term shall be the sum of $607,150.50
(representing $16.50 per rentable square foot of the Premises), payable in
equal monthly installments of $50,595.88 each. 
Notwithstanding the foregoing or any other provisions of this Lease, the
monthly installments of Base Rent for the first 12 months of the Term shall be
abated.


 


(B)                                Base Rent for lease years 7 through 11 of the
Term shall be the sum of $643,947.50 (representing $17.50 per rentable square
foot of the Premises), payable in equal monthly installments of $53,662.29
each.


 


§2.02                    Real Estate Taxes.  Beginning on January 1, 2006, Tenant
shall pay to Landlord in each year of the Term a proportionate share (the
“Proportionate Share”) of the amount, if any, by which the Real Estate Taxes
(defined below) applicable to the Property in each such year exceeds the Base
Real Estate Taxes (defined below).  For
these purposes, the fraction used in determining the Tenant’s Proportionate
Share shall be the fraction reached by dividing the number of rentable square
feet of the Premises set forth on page 1 hereof by the total number of rentable
square feet in the Building.  The term
“Real Estate Taxes” shall be construed to mean


 


4

















 


any and all real property taxes, assessments, sewer rates, ad valorem
charges, all other governmental impositions in the nature of any of the
foregoing, and all costs and expenses (including attorneys’ fees and costs of
court or other proceedings) incurred in contesting property tax assessments or
any other such governmental impositions. 
The “Base Real Estate Taxes” shall be the Real Estate Taxes imposed in
connection with the Building and the Property and allocable to the calendar
year 2005.  Tenant shall not be entitled
to any credit or rebate in the event Real Estate Taxes during any one year in
the Term are lower than the Base Real Estate Taxes.


 


§2.03                    Operating Expenses.  Tenant shall pay to Landlord in each year or
part year of the Term a Proportionate Share of the amount by which the
Operating Expenses (defined below) for each such year exceed the Base Operating
Expenses (defined below).  “Operating
Expenses” shall mean all expenses, costs and disbursements of every kind and
nature incurred in connection with the ownership, management, maintenance,
repair and operation of the Building and Property, including but not limited to
the following: (1) cost of wages and salaries of all employees engaged in the
operation and maintenance of the Building and surrounding grounds and common
areas, including but not limited to payroll taxes, insurance and benefits (all
adjusted and prorated equitably with respect to employees which also provide
services to other buildings); (2) cost of all supplies and materials used in
the operation, maintenance and repair of the Building and all other portions of
the Property; (3) cost of all utilities (including surcharges but excluding
late fees), including but not limited to water, sewer, electricity and gas for
both the rentable space and the common areas of the Building, and including all
costs of repairing, replacing, improving and altering utility systems, lines
and equipment at the Premises, Building and Property; (4) costs incurred under
all maintenance and service agreements for the Building, including but not
limited to access control, energy management services, window cleaning,
elevator maintenance, janitorial service and landscaping; (5) cost of insurance
relating to all of such property, including but not limited to the cost of
casualty and liability insurance; (6) cost of non-capital repairs and general
maintenance to the Building; (7) all property management fees and expenses or,
in lieu thereof (at the discretion of Landlord), an administrative charge of 10%
of all other Operating Expenses; (8) cost of audit and accounting services; (9)
the costs of any improvements required or made necessary by law or changes in
law; (10) cost of any capital improvements made to the Building that, in
Landlord’s reasonable judgment, will reduce other operating expenses or
increase energy efficiency, provided such costs are amortized in accordance
with generally accepted accounting principles (“GAAP”) at such rates as may
have been paid by Landlord on funds borrowed for the purpose of constructing
such capital improvements or, if no such funds were borrowed, at such
reasonable rates as are not in conflict with GAAP; and (11) cost of any
licenses or permits required by any public authority.  For purposes of this provision, Operating Expenses shall not
include (a) the cost of capital improvements (except as expressly provided
above), (b) the costs of tenant improvements within tenant spaces, (c) ground
rent or debt service, or (d) depreciation. 
The “Base Operating Expenses” shall be the Operating Expenses allocable
to the calendar year 2005.  Tenant shall
not be entitled to any credit or rebate in the event Operating Expenses in any
one year during the Term are lower than the Base Operating Expenses.


 


5

















 


§2.04                    When Due and Payable.


 


(A)                              All
rental obligations set forth in the foregoing provisions and elsewhere in this
Lease, except for Base Rent, shall be referred to hereinafter as “Additional
Rent.”  All Base Rent and Additional Rent
are sometimes hereinafter together referred to as “Rent.”


 


(B)                                The
Base Rent for each year (or part thereof) during the Term shall be due and
payable in twelve (12) consecutive, equal monthly installments, in advance, on
the first day of each calendar month during the Term.


 


(C)                                Tenant
shall pay all Additional Rent within thirty (30) days after being billed
therefor by Landlord.  However, Landlord
may, at its discretion, (a) make from time to time during the Term a reasonable
estimate of the Additional Rent which may become due for any year, (b) require
the Tenant to pay to the Landlord such Additional Rent in equal installments at
the time and in the manner that the Tenant is required hereunder to pay monthly
installments of Base Rent, and (c) at the Landlord’s reasonable discretion,
increase or decrease from time to time during such year the amount initially
estimated for such year, all by giving the Tenant written notice thereof.  In such event, the Landlord shall cause the
actual amount of such Additional Rent to be calculated, and the Tenant or the
Landlord shall within thirty (30) days pay to the other the amount of any
deficiency or overpayment, whichever the case may be.


 


(D)                               Within
one hundred eighty (180) days after receipt of any year-end statement of
Operating Expenses, Tenant shall have the right, at its own expense and after
reasonable advance notice to the Landlord, to review the Landlord’s records
relating to the calculation of Operating Expenses for such year, at the offices
of the Landlord’s property manager.  In
the event that such review determines that Operating Expenses have been
miscalculated, the Landlord shall pay the Tenant (by crediting the next payment
of Rent due under the Lease) or the Tenant shall pay the Landlord (at the time
of the next installment of Rent), as the case may be, the amount of the
overpayment or underpayment by Tenant with respect to its share of such
expenses.  In addition, if any such
review discloses that Tenant has overpaid Tenant’s total proportionate share of
Operating Expense increases by more than five percent (5%) for any given
calendar year, Landlord shall reimburse Tenant for Tenant’s actual and
reasonable costs of such audit.  Tenant
agrees that any party performing such review shall be compensated on the basis
of hourly fees and not on a contingency or percentage basis.


 


(E)                                 Landlord
shall have the right to apply any payment of Rent by Tenant to any amounts
outstanding in any order in Landlord’s sole discretion.  Acceptance by Landlord of any partial payment
of Rent shall not be deemed a waiver or satisfaction of the Tenant’s obligation
to timely pay when due all remaining amounts of Rent hereunder, which shall
remain due in their entirety according to the terms of this Lease.


 


§2.05                    Proration.  All items of Rent shall be prorated for any
month during the Term which is not a full calendar month or in which two
different rental rates are applicable. 
Appropriate prorations shall also be made in determining the Tenant’s
proportionate share of increases in Real Estate Taxes to the extent the
tax/fiscal year is not a calendar year. 
In addition,


 


6

















 


at Landlord’s election, the Tenant’s proportionate share of increases
in Real Estate Taxes and in Operating Expenses may be calculated on a per
square foot basis; in this case, the Tenant’s proportionate share shall be
equal to (a) the difference between (1) the total Real Estate Taxes or
Operating Expenses (as the case may be) for the year in question divided by the
square footage of the Building, and (2) the Base Real Estate Taxes or Base
Operating Expenses (as the case may be) divided by the square footage of the
Building, (b) multiplied by the number of rentable square feet in the Premises.  Moreover, at Landlord’s election, any item
of Operating Expense which varies depending on the level of occupancy in the
Building, and that portion of the Base Operating Expenses which is represented
by the same item of expense, may be adjusted so as to reflect the amount to be
charged if the Building were one hundred percent (100%) occupied.  If only part of any calendar year falls
within the Term, the amount computed as Additional Rent for such calendar year
under the foregoing provisions of this section shall be appropriately prorated,
but the expiration of the Term before the end of a calendar year shall not
limit the Tenant’s obligation hereunder to pay the prorated portion of
Additional Rent applicable to that portion of such calendar year falling within
the Term.


 


§2.06                    Late
Payment.  Each such payment of Rent
shall be made promptly when due, without any demand, deduction or setoff
whatsoever, at the place directed by Landlord. 
Any payment of Rent not made when due shall, at Landlord’s sole option,
bear interest at the rate of ten percent (10%) per annum from the due date
until paid.  Additionally, any payment
of Rent not paid within ten (10) days
of when due shall be considered delinquent and subject to a late payment
charge, for each occurrence of delinquency, of five percent (5%) of the amount
overdue and payable.  This late payment
charge shall be in addition to the interest provided for above and shall be due
and payable with the next succeeding Rent payment.  The obligation to pay Rent shall survive termination of this Lease.


 


ARTICLE III - USE OF PREMISES


 


§3.01                    Use.  The Tenant shall use the Premises as a
business office and for no other purposes.


 


§3.02                    Laws.  Tenant shall comply with any and all
federal, state and local laws, ordinances and regulations, including but not
limited to the Americans With Disabilities Act, applicable to the Premises and
to the Tenant’s use of the Premises, and Tenant shall make any changes or
improvements to the Premises required thereby, subject to §5.03 hereof.  Notwithstanding anything herein to the
contrary, Landlord shall be solely responsible for ensuring that all common
areas comply with the Americans with Disabilities Act.


 


§3.03                    Common Areas.  The Landlord hereby grants to the Tenant a
non-exclusive license to use (a) all elevators, stairways, lobbies, hallways
and other common areas of the Building, and (b) all portions of the grounds on
which the Building is located which are manifestly designed and intended for
common use by the occupants of the Building, all for pedestrian ingress and
egress to and from the Premises.  In
addition, Tenant shall have a non-exclusive license to use parking facilities
at the Property, up to (but not exceeding) a limit of one hundred forty-eight
(148) parking spaces, except that nine (9) of such one hundred and forty-


 


7

















 


eight (148) spaces shall be in the location
as shown on Exhibit B and marked for exclusive use by Tenant. 
Such license rights shall be exercised in common with the Landlord and
other tenants and their respective employees and invitees and in accordance
with the Rules and Regulations promulgated from time to time pursuant to the
provisions of Article XI.  At all
times, except for the nine (9) spaces marked for the exclusive use of Tenant,
Landlord shall have the right to rearrange, improve, reduce, replace or
otherwise alter the parking areas and any other common areas at the Property,
as well as any utility or mechanical systems and equipment at the Premises,
Building or Property, provided that (i) Landlord shall not permanently obstruct
access to the Premises (beyond reasonable obstructions arising during the
construction process) in making any such changes to the common areas, systems
or equipment and (ii) the number of aggregate parking spaces allowable to
Tenant are not reduced.


 


§3.04                    Signage.  Landlord shall allocate to Tenant its
proportionate share of space on the Building directory and, on or before the
Commencement Date, shall insert Tenant’s name and location (and the names of its
employees to the extent space is available) therein, at no cost to Tenant.  Any changes or additions subsequent to the
Commencement Date shall be at Tenant’s sole expense.  Landlord shall install Building-standard identification signage
at one entrance to the Premises, at Tenant’s sole expense, which shall be paid
from the Allowance (as defined in Article V).  Landlord acknowledges that Tenant plans to request approval for
installation of a sign on the exterior of the Building (the “Exterior Sign”),
and Landlord agrees that it does not object to an Exterior Sign, per se, but installation of any such
Exterior Sign shall be subject to Landlord’s determination and approval (which
may be withheld by Landlord in its sole and absolute discretion) with regard to
location, size, design and lettering, materials, lighting and other aesthetic
factors.  Furthermore, any such Exterior
Sign shall be subject to strict compliance with all zoning and other applicable
laws and regulations and with all restrictions set forth in title covenants
affecting the Building.  Tenant shall
provide such drawings, plans and specifications as are requested by Landlord in
reviewing the Exterior Sign.  Likewise,
Landlord shall have the right to place conditions upon the granting of its approval
of the Exterior Sign, including but not limited to requirements that the work
be performed only by licensed contractors, that the work be supported by
payment and performance bonds, that the contractors be fully insured, and that
the work be performed only pursuant to valid permits.  If the Landlord consents to any such Exterior Sign, it shall be
made at the Tenant’s sole expense and paid from the Allowance, and at such time
and in such manner as to not unreasonably interfere with the use and enjoyment
of the remainder of the Property by any other tenant or other person.  Furthermore, Tenant shall indemnify Landlord
from all costs, expenses, damages, losses or liability arising from such
Exterior Sign or the construction or installation or removal thereof.  Any Exterior Sign shall at all times remain
Tenant’s property and shall be removed at Tenant’s sole cost and expense at the
termination or earlier expiration of the Term, with Tenant being obligated to
repair any damage to the Building resulting from such removal such that the
damaged portion of the Building is in equal or better condition than existed
prior to Tenant’s installation of the Exterior Sign.


 


8

















 


ARTICLE IV - INSURANCE/INDEMNIFICATION


 


§4.01                    Tenant’s Insurance.  The Tenant shall procure and maintain, at
its expense and throughout the Term, the following insurance:


 


(A)                              Commercial
general liability insurance which (1) insures against claims for bodily injury,
personal injury, advertising injury and property damage arising from the use,
occupancy or maintenance of the Premises or any other portion of the Property
by Tenant or any of its agents, employees, contractors, invitees and licensees,
(2) insures without exclusion damage or injury arising from heat, smoke or
fumes from a hostile fire, (3) has limits of not less than (i) $1,000,000 per
occurrence, (ii) $2,000,000 general aggregate per location, (iii) $2,000,000
products and completed operations aggregate, (iv) $1,000,000 for personal and advertising
injury liability, (v) $50,000 for fire damage legal liability, and (vi) $5,000
for medical payments, which minimum limits may be increased if recommended by
Landlord’s consultants or other insurance professionals, (4) includes blanket
contractual liability and broad form property damage liability coverage, and
(5) contains a standard separation of insureds provision;


 


(B)                                Business
auto liability insurance which insures against bodily injury and property
damage claims arising out of ownership, use or maintenance of any auto with a
combined single limit per accident of not less than $1,000,000;


 


(C)                                Worker’s
compensation in statutory limits and employer’s liability insurance with limits
of not less than $500,000 for each accident, $500,000 for each employee for
bodily injury by disease, and $500,000 policy limit for bodily injury by
disease;


 


(D)                               Umbrella
excess liability insurance, in addition to and in excess of the commercial
general liability, business auto liability and employer’s liability insurance
described above, which insures against claims for bodily injury, personal
injury, advertising injury and property damage and having limits of not less
than (i) $5,000,000 per occurrence, and (ii) $5,000,000 for the annual
aggregate;


 


(E)                                 All-risk
property insurance covering all of Tenant’s personal property, inventory,
equipment, fixtures, alterations and improvements at the Premises up to the
replacement value of such property; and


 


Each liability insurance policy described above (except employer’s liability
policies) shall name Landlord, Landlord’s agent and advisor, Landlord’s
property manager, and any Mortgagees (defined in §12.01 below), and expressly
including any trustees, directors, officers, employees or agents of any such
entities, all as additional insureds. 
Each property insurance policy described above shall name Landlord as
loss payee with respect to any permanently affixed improvements and betterments
to the Premises.  All such policies
shall (i) be issued by insurers licensed to do business in the state in which
the Property is located, (ii) be issued by insurers with a current rating of
“A-” “VIII” or better in Best’s Insurance Reports, (iii) be primary without
right of contribution from any of Landlord’s insurance, (iv) be written on an occurrence
(and not claims-made) basis, and (v) be uncancellable without at least thirty
(30) days’


 


9

















 


prior written notice to the Landlord and any Mortgagee.  At least fifteen (15) days before the
Commencement Date (or, if earlier, the date Tenant first enters into the
Premises for any reason), Tenant shall deliver to the Landlord certificates of
insurance satisfactory to Landlord for each such policy required above.  Within ten (10) days after any such policy
expires, Tenant shall deliver to the Landlord a certificate of renewal
evidencing replacement of the policy. 
The limits of insurance required by this Lease or as otherwise carried
by Tenant shall not limit the liability of Tenant or relieve Tenant of any
obligations under this Lease, except to the extent provided in any waiver of
subrogation contained in this Lease. 
Tenant shall have sole responsibility for payment of all deductibles.


 


§4.02                    Landlord’s Insurance.  The Landlord shall maintain throughout the
Term all-risk or fire and extended coverage insurance upon the Building in an
amount equal to one hundred percent (100%) of the replacement value thereof
(or, in lieu thereof, a specified plan of self-insurance).  The premiums for such insurance and of each
endorsement thereto shall be deemed to be part of the Operating Expenses a
share of which is to be paid by Tenant as Additional Rent hereunder.  Furthermore, Tenant shall pay, as Additional
Rent and as billed by Landlord, the entire amount of any increase in premiums
for any insurance obtained by Landlord which occurs solely due to the
particular use of the Premises by Tenant.


 


§4.03                    Waiver of Subrogation.  Notwithstanding anything to the contrary in
this Lease, Landlord and Tenant each waives all rights to recovery, claims or
causes of action against the other and the other’s agents, trustees, officers,
directors and employees on account of any loss or damage which may occur to the
Premises, the Property or any improvements thereto or to any personal property
of such party to the extent such loss or damage is caused by a peril which is
required to be insured against under this Lease, regardless of the cause or
origin (including negligence of the other party).  Landlord and Tenant each covenants to the other that, to the
fullest extent permitted by law, no insurer shall hold any right of subrogation
against the other party.  Tenant
covenants to Landlord that all policies of insurance maintained by Tenant
respecting property damage shall permit such waiver of subrogation, and Tenant
agrees to advise all of its insurers in writing of the waiver.


 


§4.04                    Indemnification.  Tenant hereby agrees to indemnify and hold
Landlord and Landlord’s agents and advisors harmless from and against any cost,
damage, claim, liability or expense (including attorney’s fees) incurred by or
claimed against Landlord, directly or indirectly, as a result of or in any way
arising from Tenant’s use and occupancy of the Premises or in any other manner
which relates to the business of Tenant (except to the extent caused by
Landlord’s negligence or willful misconduct). 
Furthermore, Tenant hereby releases and absolves Landlord from any
liability for theft, damage or other loss, regardless of the cause or reason,
in connection with any furniture, fixtures, machinery, equipment, inventory or
other personal property of any kind belonging to Tenant or to any of its
employees, agents, invitees or licensees. 
Landlord agrees to indemnify and hold harmless Tenant from liability
resulting from the gross negligence or willful misconduct of Landlord.


 


10

















 


ARTICLE V - IMPROVEMENTS TO PREMISES


 


§5.01                    Initial Improvements.


 


(A)                              Certain
improvements shall be constructed in the Premises according to the space plan
attached hereto as Exhibit C (the
“Space Improvements”) for the purpose of initially preparing the Premises for
occupancy by Tenant, all to be paid for as provided in subsection (B) of
this section below.  Such Space
Improvements shall be constructed by Landlord and in accordance with the
following procedures:


 


(1)                                  Landlord
shall promptly after execution of this Lease engage an architect to prepare
plans and specifications of the Space Improvements for Tenant’s review and
approval.  Such architect shall be
selected with Tenant’s prior approval, which approval shall not be unreasonably
withheld.  Such plans and specifications
shall be submitted to Tenant within twenty-one (21) days after the date hereof,
and Tenant shall review and either approve or notify Landlord of proposed
changes thereto within fourteen (14) days after receiving same.  If no response is forthcoming from Tenant
within this fourteen (14) day period, such plans shall be deemed approved.  Landlord shall make any changes to such
plans reasonably (and timely) requested by Tenant and necessary to make the
plans and specifications conform to Exhibit C.


 


(2)                                  Promptly
after the plans and specifications have been finalized, Landlord shall deliver
a copy of such plans and specifications to Tenant, and Landlord shall obtain
bids for the construction of such improvements from at least two contractors
that are not affiliated with Landlord in any way nor owned in party by any
member, employee or family member of any member or employee of Landlord.  Tenant may, at its option, also obtain bids
for such work.  After receipt of all
bids, each party shall provide copies to the other, and Landlord and Tenant
shall promptly select the lowest responsible qualified bid (in Landlord’s
reasonable discretion).  Thereafter,
Landlord shall contract for the construction of such Space Improvements.  Landlord shall, in no event, be entitled to
a management fee for the Space Improvements.


 


(3)                                  Tenant
and its agents and contractors shall have the right to enter the Premises prior
to the Commencement Date for purposes of installing fixtures, provided that in
doing so such parties shall not interfere with Landlord or its contractors
constructing the Space Improvements, and further provided that prior to any
such entry Tenant shall have obtained the insurance required under
Article IV hereof, and its contractors shall have obtained such liability,
workmen’s compensation and other insurance as is reasonably acceptable to
Landlord.  The Commencement Date shall
not be deemed to occur upon such entry unless Tenant begins commencing its
normal business operations within the Premises.


 


(B)                                All
costs and expenses of designing and constructing the Space Improvements
described in subsection (A) above shall be paid as follows:


 


(1)                                  Landlord shall provide and pay to
Tenant an amount not to exceed $25.00 per rentable square foot of the Premises
(the “Allowance”) towards (i) the costs of designing the


 


11

















 


space plan in Exhibit C and all of the plans and specifications for the
Space Improvements, and (ii) the costs of constructing the Space Improvements,
including but not limited to all fees, costs and expenses paid under
construction contracts and subcontracts, construction managers’ fees, costs and
expenses, the costs of materials, supplies, permits and other items, and any
other out-of-pocket expenditures incurred in any connection with such
construction (collectively, the “Space Improvement Costs”).  The Allowance shall not be paid for any
other costs or purposes, except that, to the extent the Space Improvement Costs
are less than $25 per rentable square foot, Tenant shall be permitted to apply
the portion of the Allowance in excess of the Space Improvement Costs, up to
(but not exceeding) an amount of $7.00 per rentable square foot of the
Premises, towards the costs of acquisition and installation of Tenant’s
furniture, fixtures and equipment (including any telecommunications equipment)
for the Premises.  Tenant shall pay all
of the Space Improvement Costs which are in excess of the Allowance.


 


(2)                                  Tenant
shall pay to Landlord the amount by which the total costs to Landlord of
designing and constructing the Space Improvements exceed the Allowance within
thirty (30) days after receiving Landlord’s written statement of such
costs.  Tenant shall, prior to
Landlord’s beginning construction of the improvements, provide a letter of
credit or other security satisfactory to Landlord for Tenant’s performance of
the foregoing obligation in the event the costs of the Space Improvements
(including any modifications requested by Tenant) are significant in the
estimation of Landlord.  Tenant shall
provide this required security within seven (7) days after request by Landlord.


 


(3)                                  Landlord
agrees to pay to Tenant a moving cost reimbursement up to (but not exceeding)
an amount of $2.00 per rentable square foot of the Premises.  Landlord shall pay such amount(s) to Tenant
within thirty (30) days after receiving copies of invoices and receipts for
such costs (or, if later, within five (5) days after Tenant moves to the
Premises and begins to conduct business therein).


 


(4)                                  Notwithstanding
anything to the contrary, Landlord shall be solely responsible for the cost and
expense associated with the following, which shall not be considered part of
the Space Improvements to be included in the Allowance:


 


(i)                                     Electrical
service shall be distributed to the Premises;


 


(ii)                                  Air
conditioning’s main duct into the Premises shall be distributed;


 


(iii)                               Fire
sprinkler system shall be distributed throughout the space and ready for
expansion and adjustment to drop heads when ceiling is installed;


 


(iv)                              All
columns, exterior walls, and window walls shall be drywalled and completed,
taped, painted, and ready for wallcovering by Tenant;


 


(v)                                 Building
standard ceiling grid and tiles shall be provided and installed by Landlord;
and


 


12

















 


(vi)                              Any
necessary demolition of any portion of the Premises.


 


(C)                                Landlord
shall use commercially reasonable efforts to complete such improvements on or
before September 1, 2004 (the “Target Date”), but Landlord shall have no
liability to the Tenant hereunder if prevented from doing so due to strike or
other labor troubles, governmental restrictions, failure or shortage of utility
service, national or local emergency, accident, flood, fire or other casualty,
adverse weather condition, other act of God, inability to obtain a building
permit or a certificate of occupancy, or any other cause beyond the Landlord’s
reasonable control.  However, if any
delay in completion of the Space Improvements or in delivering possession of
the Premises to Tenant beyond the Target Date are caused by Tenant, including
but not limited to failure of Tenant to timely respond to submissions by
Landlord under subsection (A) of this section above or Tenant’s
requesting changes in the Space Improvements which delay completion thereof,
then Tenant shall commence all of its obligations hereunder (including the
payments of Rent), and all terms herein shall be effective and binding, on that
date reasonably calculated by Landlord or its contractor as the date on which
Landlord would have substantially completed the Space Improvements if not for
such delay.


 


§5.02                    Acceptance.  Except for latent defects or work described
in Exhibit C but remaining
incomplete, the Tenant shall for all purposes of this Lease be deemed to have
accepted the Premises upon assuming occupancy thereof and to have acknowledged
the Premises to be in the condition required hereunder.


 


§5.03                    Tenant’s Alterations.


 


(A)                              Except
as specifically provided in Sections 5.03(B) and 5.03(C) below, Tenant shall
not make any alteration, addition or improvement to the Premises, whether
structural or nonstructural and including any signs or other items which may be
visible from the exterior of the Premises, without the Landlord’s prior written
consent.  Notwithstanding the
immediately preceding sentence, Landlord shall not unreasonably withhold or
delay its consent to alterations which are not: (i) structural; (ii) Building
system-related; (iii) visible from the exterior of the Premises; or (iv) of a
nature which, in Landlord’s sole judgment, would adversely impact the value of
the Building.  Tenant shall provide such
drawings, plans and specifications as are requested by Landlord in reviewing
any such proposed improvements. 
Likewise, Landlord shall have the right to place conditions upon the
granting of its approval of any alteration or improvement, including but not
limited to requirements that the work be performed only by bonded contractors
or that Landlord itself perform the work at the Tenant’s expense.  If the Landlord consents to any such
proposed alteration, addition or improvement, it shall be made at the Tenant’s
sole expense (and the Tenant shall hold the Landlord harmless from any cost
incurred on account thereof), and at such time and in such manner as to not
unreasonably interfere with the use and enjoyment of the remainder of the
Property by any other tenant or other person. 
All such alterations and improvements shall comply in all respects with
any and all applicable federal, state and local laws, ordinances and
regulations, including but not limited to the Americans With Disabilities Act
and regulations promulgated thereunder. 
Furthermore, Tenant shall indemnify Landlord from all damages, losses or
liability arising from such alterations or improvements or the construction
thereof by Tenant or by any other party other


 


13

















 


than Landlord.  Notwithstanding
the foregoing, Tenant shall be permitted in accordance with local signage codes
and ordinances, which shall be part of the Space Improvements, have the right
to install appropriate signage, including Tenant’s corporate logo and name on
the building directory and entry into the Premises.


 


(B)                                Upon
written request received by Landlord from Tenant, Landlord shall accommodate
Tenant’s request, at no further rental charge, for Tenant to place and operate
(all at Tenant’s sole cost, liability and expense) up to five satellite dishes
(which shall remain Tenant’s property and shall be removed at Tenant’s sole
cost and expense at the termination or earlier expiration of the Term) on an
area of the roof of the Building (the size of which shall not exceed [400?]
square feet and the location of which area shall be pre-approved by Landlord
prior to the parties’ execution of this Lease) during the Term of the Lease,
subject however to (i) Landlord’s approval as to location, equipment size and
specifications, aesthetics, the identity of Tenant’s installing contractor and
other similar factors, which approval shall not be unreasonably withheld or
delayed, (ii) the terms of Landlord’s form license agreement, a copy of which
is attached hereto as Exhibit E,
which shall be executed and delivered at the time of Tenant’s electing to
install any such dish(es), (iii) the rights of others owning and/or operating
dishes, antennae and/or other communications equipment on the Building or the
Property, (iv) all zoning, building code, communications, aviation and other
laws and regulations and all covenants and restrictions of public record.  Tenant shall indemnify, defend and hold
Landlord harmless from and against liability resulting from the existence and
operation of any such satellite dish.


 


(C)                                Upon
written request received by Landlord from Tenant, Landlord shall accommodate
Tenant’s request, at no further rental charge, for Tenant to install and
procure, at Tenant’s sole cost, liability and expense, a generator (which shall
remain Tenant’s property and shall be removed at Tenant’s sole cost and expense
at the termination or earlier expiration of the Term) on Landlord’s property
outside the Building.  The location,
installation, power source, fuel type, size and specifications of the generator
shall comply with those shown on Exhibit F
and attached hereto and the identity of Tenant’s installing contractor shall in
all respects be subject to Landlord’s prior written approval, which approval
shall not be unreasonably withheld. 
Tenant shall be solely responsible for full legal compliance of the
generator with all zoning, building code, communications, aviation and other
laws and regulations and all covenants and restrictions of public record, as
well as any permitting and licensing requirements.  Tenant shall indemnify, defend and hold Landlord harmless from
and against liability resulting from the existence and operation of any such
generator.


 


§5.04                    Mechanics’ Liens.  Tenant shall (a) immediately bond or have
released any mechanics’, materialman’s or other lien filed or claimed against
any or all of the Premises, the Building, or any other property owned or leased
by the Landlord by reason of labor or materials provided for the Tenant or any
of its contractors or subcontractors, or otherwise arising out of the Tenant’s
use or occupancy of the Premises, and (b) defend, indemnify and hold harmless
the Landlord against and from any and all liability or expense (including but
not limited to attorneys’ fees) incurred by the Landlord on account of any such
lien or claim.  Notwithstanding the
foregoing to the contrary, Tenant shall not be responsible for any mechanics’,
materialman’s or


 


14

















 


other lien filed or claimed against the Premises as a result of
Landlord’s construction of the Space Improvements and other improvements under
Section 5.01.


 


§5.05                    Fixtures.  Any and all improvements, repairs,
alterations or other property attached to, used in connection with or otherwise
installed within the Premises by the Landlord or the Tenant shall, immediately
on the completion of their installation, become the Landlord’s property without
payment therefor by the Landlord, except that any furniture, appliances and
office equipment installed by the Tenant and used in the conduct of the
Tenant’s trade or business (rather than to service the Premises or any of the
remainder of the Building or the Property) shall remain the Tenant’s property.


 


ARTICLE VI - MAINTENANCE AND SERVICES


 


§6.01                    Ordinary Services.  During the hours of 8:00 a.m. to 6:00 p.m.
Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays (except federal
holidays), Landlord shall provide heating and air-conditioning to the Premises,
in the appropriate seasons of the year, for the comfortable use and occupancy
of the Premises.  In addition, Landlord
shall provide (a) electricity and water suitable for the use of the Premises in
accordance with the provisions of §3.01, (b) automatic elevator service within
the Building, and (c) janitorial service and trash removal service.  All such services shall be an Operating
Expense of the Building for which Tenant pays a proportionate share as
described in §2.03 above. 
Notwithstanding anything to the contrary in this Lease, Landlord shall
at all times determine the actual supplier of all utilities, and the manner in
which such utilities are supplied, to the Building and Property.


 


§6.02                    Extraordinary Services.  The Landlord shall not be obligated to
provide to or for the benefit of the Premises any of the services referred to
in the provisions of §6.01 above other than during the hours referred to
therein, except as expressly specified in this §6.02 below.  If the Tenant requests such services to be
continued during extended hours, Tenant shall pay to the Landlord as Additional
Rent the amount from time to time charged by the Landlord for such extended
service, such amount to be calculated as a function of the costs to provide
such services during extended hours and the number of tenants sharing same at
the time requested.  Landlord’s current
charge for after-hours HVAC service is $55.00 per hour.


 


§6.03                    Excessive Use.  The Tenant shall not, without first
obtaining the Landlord’s written consent thereto, install within the Premises
any electrical machinery, appliances or equipment (including, by way of example
rather than of limitation, any electrical heating, cooking, water-heating or
refrigeration equipment, kitchen equipment, photocopying equipment, electronic
data processing machinery, reproduction equipment or punch-card machinery)
which uses electrical current in excess of that which is standard for the
Building, and Tenant shall pay as Additional Rent the additional expense
incurred by the Landlord as a result of any of the foregoing, including that
resulting from any installation of such equipment.  The Landlord shall have the right from time to time, using
sub-meters or other methods, to measure the consumption of electricity or other
utilities upon the Premises.  In the event
Landlord determines Tenant is consuming a disproportionate amount of
electricity or other utilities at the Premises in relation to other tenants,
and regardless of whether such determination is reached by submetering or other


 


15

















 


methods, Tenant shall pay Landlord (a) within 30 days after billing,
the out-of-pocket costs of installing submeters, and (b) on a monthly basis, as
Additional Rent, the cost of all such electricity or other utilities consumed
at the Premises as indicated by the submeter(s).


 


§6.04                    Maintenance by Tenant.  The Tenant shall at all times maintain the
interior of the Premises in good, clean and safe repair and condition, ordinary
wear and tear excepted.


 


§6.05                    Maintenance by Landlord.  The Landlord shall furnish, supply and
maintain in good order and repair (a) the roof, foundation and all other
structural portions of the Building, (b) the hallways, stairways, lobbies,
elevators, restrooms, parking areas and other common areas of the Building, (c)
the base building, plumbing, utility, heating, ventilating and air-conditioning
facilities, (d) the interior and exterior structural walls, and (e) all
exterior paved surfaces.


 


§6.06                    Interruption.  The Landlord shall have no liability to the Tenant
on account of any failure, modification or interruption of electricity, water
or other utility or HVAC or other service or interruption in access to the
Premises, but in any such event Landlord shall take reasonable steps to provide
for the resumption of such service or access to the extent the same is within
Landlord’s control.  In addition,
Landlord shall not be liable to the Tenant for any disruption to Tenant’s
business which occurs as a result of any repairs, replacements, improvements or
alterations that take place within the Premises.  However, during any such repairs, replacements, improvements or
alterations, Landlord shall take reasonable steps to minimize the disruption.  In the event of a continuous utility
interruption which lasts for five (5) consecutive business days and which
renders the Premises untenantable during the entirety of such period, Tenant
shall be entitled to an abatement of Base Rent and Additional Rent for the
period of the utility interruption proportionate to that portion (if less than
all) of the Premises which is rendered untenantable by the relevant utility
interruption.


 


§6.07                    Right of Entry.  Landlord and its agents and contractors
shall be entitled to enter the Premises at any time (a) to inspect the
Premises, (b) to exhibit the Premises to any existing or prospective purchaser,
tenant or mortgagee thereof, (c) to make any alteration, improvement or repair
to the Building or the Premises, or (d) for any other purpose relating to the
operation or maintenance of the Property, all provided that the Landlord shall
(1) give the Tenant at least 24 hours’ prior notice of its intention to enter
the Premises (unless doing so is impractical or unreasonable because of
emergency), and (2) use reasonable efforts to avoid interfering with the
Tenant’s use and enjoyment thereof.


 


ARTICLE VII - FINANCIAL INFORMATION


 


§7.01                    Financial
Reports.  On or before the
expiration of one hundred twenty (120) days after the end of each calendar year
(or part year) during the Term, Tenant shall deliver to Landlord (a) an income
statement and statement of changes in financial position, both with respect to
such calendar year then ending, for the Tenant and each guarantor of this
Lease, and (b) a balance sheet as of December 31 of such calendar year for
the Tenant and each guarantor of this Lease. 
Such financial statements shall be prepared in accordance with generally
accepted accounting principles applied on a consistent basis.


 


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ARTICLE VIII - CASUALTIES


 


§8.01                    General.  If the Premises are damaged by fire or other
casualty during the Term, then the following shall apply:


 


(A)                              The
Landlord shall restore the Premises with reasonable promptness, taking into
account the time required by the Landlord to effect a settlement with, and to
procure any insurance proceeds from, any insurer against such casualty, to
substantially the same condition as existed immediately before such
casualty.  Landlord may temporarily
enter and possess any or all of the Premises for such purpose.  The Landlord shall not be obligated to
repair, restore or replace any fixture, improvement, alteration, furniture or
other property owned or installed by the Tenant.


 


(B)                                The
times for commencement and completion of any such restoration shall be extended
for the period of any delay arising due to force majeure causes beyond the
Landlord’s control.  If the Landlord
undertakes to restore the Premises, but such restoration cannot be accomplished
within one hundred and eighty (180) days after the date of casualty, as
determined by estimate of Landlord upon such casualty, then Tenant may
terminate this lease by giving written notice thereof to the Landlord within
fifteen (15) days after receipt of such estimate from Landlord.


 


(C)                                From
the time of such casualty to the completion of restoration as described above,
Tenant’s rental obligations shall be abated proportionately from that portion
of the Premises which is rendered untenantable as a result of the casualty.


 


§8.02                    Substantial Destruction.  Anything contained in the foregoing
provisions of this section to the contrary notwithstanding:


 


(A)                              If
during the Term the Building is so damaged by fire or other casualty that (a)
either the Premises or the Building are rendered substantially unfit for
occupancy, as reasonably determined by the Landlord, or (b) the Building is
damaged to the extent that the Landlord elects to demolish the Building, or if
any mortgagee or lender requires that any or all of the insurance proceeds
issued on account thereof be used to retire any or all of the debt secured by
its mortgage, then in any such case the Landlord may elect to terminate this
Lease as of the date of such casualty by giving written notice thereof to the
Tenant within sixty (60) days after such date; and


 


(B)                                In
such event, (1) the Tenant shall pay to the Landlord the Base Rent and any
Additional Rent payable by the Tenant hereunder and accrued through the date of
such casualty, (2) the Landlord shall repay to the Tenant any and all prepaid
Rent for periods beyond such casualty, and (3) the Landlord may enter upon and
repossess the Premises without further notice.


 


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§8.03                    Tenant’s Negligence.  Anything contained in any provision of this
Lease to the contrary notwithstanding, if any such damage to the Premises, the
Building or Property are caused by or result from the negligent or intentional
act or omission of the Tenant or any of its employees, contractors, agents,
invitees or licensees, then (a) the Rent shall not be abated or apportioned as
aforesaid, and (b) the Tenant shall pay to the Landlord upon demand, as
Additional Rent, the cost of (i) any repairs and restoration made or to be made
as a result of such damage, or (ii) (if the Landlord elects not to restore the
Building) any damage or loss which the Landlord incurs as a result of such
damage, except if and to the extent that the Tenant is released from liability
therefor pursuant to the provisions of §4.03 hereof.


 


ARTICLE IX - CONDEMNATION


 


§9.01                    Right to Award.  If any or all of the Premises are taken by
the exercise of any power of eminent domain or are conveyed to or at the
direction of any governmental entity under a threat of any such taking (each of
which a “Condemnation”), the Landlord shall be entitled to collect from the
condemning authority thereunder the entire amount of any award or consideration
for such conveyance, without deduction therefrom for any leasehold or other
estate held by the Tenant under this Lease. 
The Landlord shall be entitled to conduct any condemnation proceeding
and any settlement connected therewith free of interference from the Tenant,
and the Tenant hereby waives any right which it has to participate
therein.  However, the Tenant may seek,
in a separate proceeding, a separate award on account of any damages or costs
incurred by the Tenant as a result of any such Condemnation, so long as such
separate award in no way diminishes any award or payment which the Landlord
would otherwise receive as a result of such Condemnation.


 


§9.02                    Effect of Condemnation.  If (a) all of the Premises are covered by a
Condemnation, or (b) any part of the Premises is covered by a Condemnation and
the remainder is insufficient for the reasonable operation of the Tenant’s
business, or (c) any of the Building is covered by a Condemnation and, in the
Landlord’s reasonable opinion, it would be impractical to restore the remainder
thereof, or (d) any of the rest of the Property is covered by a Condemnation
and, in the Landlord’s reasonable opinion, it would be impractical to continue
to operate the remainder of the Property thereafter, then, in any such event,
the Term shall terminate on the date on which possession of the property
covered by such Condemnation is taken by the condemning authority thereunder,
and all Rent (including any Additional Rent and other charges payable
hereunder) shall be apportioned and paid to such date.  If there is a Condemnation and the Term does
not terminate pursuant to the foregoing provisions of this subsection, the
operation and effect of this Lease shall be unaffected by such Condemnation,
except that the Base Rent (and Tenant’s Proportionate Share for purposes of
calculation of Additional Rent) shall be reduced in proportion to the square
footage of floor area, if any, of the Premises covered by such Condemnation.


 


§9.03                    Interruption.  If there is a Condemnation, the Landlord
shall have no liability to the Tenant on account of any (a) interruption of the
Tenant’s business upon the Premises, (b) diminution in the Tenant’s ability to
use the Premises, or (c) other injury or damage sustained by the Tenant as a
result of such Condemnation.


 


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ARTICLE X - ASSIGNMENT / SUBLETTING


 


§10.01              Actions
Covered.  Any assignment by Tenant
of this Lease or its rights hereunder, any subletting of the Premises and any
license, mortgage, pledge or other transfer of any part of the Premises or any
of Tenant’s interests therein or under this Lease shall all be referred to hereinafter
as a “Transfer.”  Furthermore, the sale,
assignment or other transfer of any direct or indirect controlling interest in
the Tenant (if a corporation), the sale, assignment or other transfer of any
general partnership interest in Tenant (if a partnership), the sale, assignment
or other transfer of any managing membership interest in Tenant (if a limited
liability company), the sale of substantially all of Tenant’s assets, and the
merger or consolidation of Tenant into another organization or the reorganization
or dissolution of Tenant, after which Tenant shall not be the surviving
corporation or partnership, shall each be considered a “Transfer” for the
purposes of this Lease.


 


§10.02              Restrictions.  Except as provided for otherwise herein,
Tenant shall not Transfer this Lease or the Premises without first obtaining
the Landlord’s prior written consent thereto. 
Landlord agrees to not unreasonably withhold its consent to a proposed
Transfer, but Landlord shall not be deemed acting unreasonably for withholding
its consent for reasons related to the financial status of the Transferee, the
credit history of the Transferee, the potential use or overuse of the
elevators, parking areas or other elements of the Building, the reputation or
credibility of the Transferee, or other bona-fide concerns of the
Landlord.  In the event that Tenant
proposes any Transfer, Tenant shall notify Landlord in writing, provided such
disclosure is not prohibited by applicable law, at least sixty (60) days before
the date on which the Transfer is to be effective and, as included with such
notice, furnish Landlord with (i) the name of the entity receiving such
Transfer (the “Transferee”), (ii) a detailed description of the business of the
Transferee, (iii) audited financial statements of the Transferee, (iii) any
other information reasonably requested by the Landlord with respect to the
Transfer or the Transferee, and (iv) a fee of $2,500 to compensate Landlord for
legal fees, costs of administration and other expenses to be incurred in
connection with the review and processing of such documentation.  To the extent approval is required
hereunder, Landlord shall respond to Tenant’s request for approval or
disapproval of the Transfer within twenty (20) days after Landlord receives the
request and all documents and information required above.  In no event shall Tenant be permitted to
Transfer the Lease or the Premises (or any portion thereof) to any other tenant
in the Building or, if the Building is part of a complex, any other tenant in
the complex.  Notwithstanding the
foregoing, Landlord’s consent shall not be required with respect to (1) any
Transfer to a parent, subsidiary or other affiliate of Tenant, provided that
(a) Tenant delivers to Landlord, at least 30 days prior to such Transfer, all
of the documents and information described in clauses (i) through (iii) above,
(b) the Tenant shall remain fully and primarily liable for all obligations
under the Lease, and the Transferee shall assume all such obligations, (c) the
gross assets and net worth of the Transferee immediately following the Transfer
are greater than or equal to the gross assets and net worth of the Tenant (as
determined in accordance with GAAP accounting), (d) such Transfer is not
undertaken for the purpose of avoiding liability or recourse for the
obligations of this Lease, (e) the subject Transfer will not result in a
material increase in the Operating Expenses incurred with respect to the
Building, and (f) the subject Transfer will not result in a material increase
in the burden on


 


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elevators, HVAC systems or other common facilities at the Building, or
(2) any Transfer that involves the sale,
assignment or other transfer of any direct or indirect controlling interest in
the Tenant (if a corporation), the sale, assignment or other transfer of any
general partnership interest in Tenant (if a partnership), the sale, assignment
or other transfer of any managing membership interest in Tenant (if a limited
liability company), the sale of substantially all of Tenant’s assets, and the
merger or consolidation of Tenant into another organization, provided that,
(aa) Tenant delivers to Landlord, at least 30 days prior to such Transfer (if
permitted by applicable law), all of the documents and information described in
clauses (i) through (iii) above, (bb) the Tenant or the Transferee, as the case
may be, shall remain fully and primarily liable for all obligations under the
Lease, (cc) the gross assets and net worth of the Transferee immediately
following the Transfer are greater than or equal to the gross assets and net
worth of the Tenant (as determined in accordance with GAAP accounting), (dd)
such Transfer is not undertaken for the purpose of avoiding liability or
recourse for the obligations of this Lease, (ee) the subject Transfer will not
result in a material increase in the Operating Expenses incurred with respect
to the Building, and (ff) the subject Transfer will not result in a material
increase in the burden on elevators, HVAC systems or other common facilities at
the Building.


 


§10.03              Liability
to Landlord.  Tenant hereby agrees
that notwithstanding anything in this Lease to the contrary, and regardless of
whether or not Landlord’s consent is required hereunder, no Transfer shall be
valid or effective unless and until the Transferee agrees in a written
document, in form and substance satisfactory to Landlord, that the Transferee
shall (1) in the case of a subletting of any part of the Premises, observe and
perform all duties, obligations and liabilities of the Tenant under the terms
of this Lease as such terms relate to the space subleased, or (2) in the case
of all other Transfers, observe and perform all duties, obligations and
liabilities of the Tenant under the terms of this Lease.  In addition, no Transfer of any kind,
regardless of whether or not Landlord’s consent thereto is required hereunder,
shall serve to relieve or release the Tenant in any way from full and direct
liability for the timely performance of all of the Tenant’s duties and
obligations under this Lease.


 


§10.04              Excess Rents.  In the event that Tenant effects any
Transfer and at any time receives rent and/or other consideration on a periodic
basis which exceeds that which Tenant is obligated to pay to Landlord
hereunder, Tenant shall pay to Landlord all of such excess rent or other
consideration when and as received by Tenant.


 


§10.05              Recapture.  In the event that Tenant requests approval
of any Transfer of the Lease or Premises, Landlord shall have, in addition to
the other rights set forth in this section, the right to (a) terminate this
Lease, if the Transfer is in the nature of an assignment of the Lease, which
termination shall be effective at the time indicated by Landlord to Tenant in a
written notice of election to terminate, (b) terminate this Lease with respect
to the portion of the Premises proposed to be subleased, if the Transfer is in
the nature of a subletting, which termination shall be effective on the date
the proposed subletting is to become effective, and with the Rent provided
herein to be adjusted proportionately with respect to any portion of the
Premises not subject to such proposed subletting, or (c) sublet the Premises as
subtenant, if the Transfer is in the nature of a subletting, in accordance with
the terms of the proposed sublease.  If


 


20

















 


requested by Tenant, Landlord shall either make its election or decline
to make any such election in writing to Tenant given within thirty (30) days
after the Tenant’s request.


 


§10.06              Landlord’s Transfers.  Landlord shall have the unrestricted right
to assign or transfer its interest in this Lease to purchasers of the Building,
to holders of mortgages or deeds of trust on the Building, or to any other
party, in which event Landlord shall be released from all duties, obligations
and liabilities arising hereunder after the assignment or transfer becomes
effective (provided that the transferee assumes the Landlord’s prospective
obligations under the Lease arising after the assignment or transfer becomes
effective).  Landlord shall not,
however, be released from any duties, obligations and liabilities properly
attributable to the period of the Term before the assignment or transfer
becomes effective.


 


ARTICLE XI - RULES & REGULATIONS


 


§11.01              Landlord’s Rules.  The Landlord shall have the right to impose
and subsequently modify, from time to time and at its sole discretion,
reasonable rules and regulations (hereinafter referred to as the “Rules and
Regulations”) having uniform applicability to all tenants of the Building
(subject to the provisions of their respective leases) and governing their use
and enjoyment of the Building and the remainder of the Property.  The Tenant and its agents, employees, invitees
and licensees shall comply with such Rules and Regulations.  A copy of the Rules and Regulations in
effect on the date hereof is attached hereto as Exhibit D.


 


ARTICLE XII - MORTGAGE LENDERS


 


§12.01              Subordination.  This Lease shall be subject and subordinate
to the lien, operation and effect of each mortgage, deed of trust, ground lease
and/or other similar instrument covering any or all of the Premises or the
Property, and each renewal, modification or extension thereof (each of which
referred to as a “Mortgage”), all automatically and without the necessity of
any further action by either party hereto, provided, however, that in the event
the beneficiary under any such Mortgage (referred to as a “Mortgagee”) succeeds
to the interest of Landlord hereunder through foreclosure or otherwise, such
Mortgagee shall honor this Lease and not disturb Tenant in its possession of
the Premises except upon an Event of Default (defined in §14.01 below).  In addition, Tenant shall attorn to any such
Mortgagee and agrees that such Mortgagee shall not be liable to Tenant for any
defaults by Landlord under this Lease or for any other event occurring prior to
such Mortgagee’s succeeding to the interest of Landlord hereunder.  Landlord represents and warrants that, as of
the date hereinabove first written, there is no Mortgage encumbering the
Property.  Landlord shall use reasonable
good faith efforts to obtain from any future Mortgagee of the Property, for the
benefit of Tenant, a subordination, non-disturbance and attornment agreement
(an “SNDA”) consistent with the foregoing provisions of this
Section 12.01; provided that, Landlord’s inability to obtain an SNDA from
any such future Mortgagee of the Property shall not impair the effectiveness or
enforceability of this Lease and shall not result in any liability to Landlord.


 


§12.02              Written Agreement.  The Tenant shall, within ten (10) days after
request by the Landlord or any Mortgagee, execute, acknowledge and deliver such
further instrument as is


 


21

















 


requested by Landlord or any Mortgagee to acknowledge the rights of the
parties described in §12.01 above and providing such other information and
certifications as is reasonably requested. 
Any Mortgagee may at any time subordinate the lien of its Mortgage to
the operation and effect of this Lease without obtaining the Tenant’s consent
thereto, in which event this Lease shall be deemed to be senior to such
Mortgage without regard to their respective dates of execution, delivery and/or
recordation among the land records of the jurisdiction in which the Property is
located.


 


§12.03              Estoppel Certificate.  The Tenant shall, if the following is true
and accurate, from time to time, within ten (10) days after request by the
Landlord or any Mortgagee, execute, acknowledge and deliver to the Landlord
(or, at the Landlord’s request, to any existing or prospective purchaser,
assignee or Mortgagee) a written certification (a) that this Lease is
unmodified and in full force and effect (or, if there has been any
modification, stating the nature of such modification), (b) as to the dates to
which the Base Rent and any Additional Rent and other charges arising hereunder
have been paid, (c) as to the amount of any prepaid Rent or any credit due to the
Tenant hereunder, (d) that the Tenant has accepted possession of the Premises
and all improvements thereto are as required hereunder, and the date on which
the Term commenced, (e) as to whether, to the best knowledge, information and
belief of the Tenant, the Landlord or the Tenant is then in default in
performing any of its obligations hereunder (and, if so, specifying the nature
of each such default), and (f) as to any other fact or condition reasonably
requested by the Landlord or such other party. 
Any such certificate may be relied upon by the Landlord and any such
other party to whom the certificate is directed.


 


ARTICLE XIII - ENVIRONMENTAL COVENANTS


 


§13.01              Prohibitions.  Tenant agrees that Tenant, its employees,
licensees, invitees, agents and contractors shall not use, manufacture,
release, store or dispose of on, under or about the Premises any explosives,
flammable substances, radioactive materials, asbestos in any form, paint
containing lead, materials containing urea formaldehyde, polychlorinated
biphenyls, or any other hazardous, toxic or dangerous substances, wastes or
materials, whether having such characteristics in fact or defined as such under
federal, state or local laws or regulations and any amendments thereto (all
such materials and substances being hereinafter referred to as “Hazardous
Materials”) provided that Tenant may store products which are of a type
customarily found in offices (such as toner for copiers and the like) in a safe
and lawful manner and without contaminating the Premises or the environment.


 


§13.02              Inspection.  Landlord, in addition to its other rights
under this Lease, may enter upon the Premises at any time for the purposes of
inspecting to determine whether the Premises or the environment have become
contaminated with Hazardous Materials. 
In the event Landlord discovers the existence of any such Hazardous
Materials due to fault or other act of Tenant or its agents, employees,
invitees or licensees, Tenant shall reimburse Landlord upon demand for the
costs of such inspection, sampling and analysis.


 


§13.03              Indemnification.  Without limiting the above, Tenant shall
indemnify and hold harmless Landlord from and against any and all claims,
losses, liabilities, damages, costs and


 


22

















 


expenses, including without limitation attorneys’ fees and the costs of
any required or necessary repair, cleanup or detoxification, arising out of or
in any way connected with the existence, use, manufacture, storage or disposal
of Hazardous Materials by Tenant or its employees, agents, invitees, licensees
or contractors on, under or about the Premises, the Building or the
Property.  The indemnity obligations of
Tenant under this clause shall survive any termination of this Lease.


 


ARTICLE XIV - DEFAULT AND REMEDIES


 


§14.01              Defaults.  As used in the provisions of this Lease,
each of the following events shall constitute, and is hereinafter referred to
as, an “Event of Default”:


 


(A)                              If
the Tenant fails to (1) pay any Rent or any other sum which it is obligated to
pay by any provision of this Lease, when and as due and payable hereunder, or
(2) perform any of its other obligations under the provisions of this Lease; or


 


(B)                                If
the Tenant or any guarantor of this Lease (1) applies for or consents to the
appointment of a receiver, trustee or liquidator of the Tenant or of all or a
substantial part of its assets, (2) is subject to a petition in bankruptcy or
admits in writing its inability to pay its debts as they come due, (3) makes an
assignment for the benefit of its creditors, (4) files a petition or an answer
seeking a reorganization or an arrangement with creditors, or seeks to take
advantage of any insolvency law, (5) performs any other act of bankruptcy, or
(6) files an answer admitting the material allegations of a petition filed
against the Tenant in any bankruptcy, reorganization or insolvency proceeding;
or


 


(C)                                If
the Tenant fails to assume possession of and occupy the Premises within
twenty-five (25) days after the Commencement Date.


 


§14.02              Grace Period.  Anything contained in the provisions of this
article to the contrary notwithstanding, on the occurrence of an Event of
Default, the Landlord shall not exercise any right or remedy which it holds
under any provision of this Lease or applicable law unless and until:


 


(A)                              The
Landlord has given written notice thereof to the Tenant, and


 


(B)                                The
Tenant has failed, (1) if such Event of Default consists of a failure to pay
money, to pay all of such money within seven (7) days after such notice, or (2)
if such Event of Default consists of something other than a failure to pay
money, to fully cure such Event of Default within fifteen (15) days after such
notice or, if such Event of Default cannot be cured within fifteen (15) days
and Tenant commences to cure same within fifteen (15) days, to proceed
diligently with efforts to cure such Event of Default and to fully cure same
within forty (40) days; all provided, that


 


(C)                                No
such notice shall be required, and the Tenant shall be entitled to no such
grace period, (1) in any emergency situation in which the Landlord acts to cure
such Event of


 


23

















 


Default pursuant to the provisions of subsection (B) in §14.03
below, or (2) if an Event of Default occurs more than twice during any twelve
(12) month period, or (3) if the Tenant has substantially terminated or is in
the process of substantially terminating its continuous occupancy and use of
the Premises, or (4) in the case of any Event of Default enumerated in the
provisions of subsection (B) in §14.01 above.


 


§14.03              Remedies.  Upon the occurrence of any Event of Default,
the Landlord may (subject to §14.02 above) take any or all of the following
actions:


 


(A)                              Perform
on behalf of and at the expense of Tenant any obligation of Tenant under this
Lease which Tenant has failed to perform, without prior notice to Tenant, the
total cost of which by Landlord, together with interest thereon at the rate of
ten percent (10%) per annum from the date of such expenditure, shall be deemed
Additional Rent and shall be payable by Tenant to Landlord upon demand;


 


(B)                                With
or without terminating this Lease and the tenancy created hereby, re-enter the
Premises with or without court action or summary proceedings, remove Tenant,
secure the Premises against unauthorized entry, and allow Tenant supervised
access to the Premises to remove those items belonging to Tenant which are not
the subject of a security interest by Landlord, all without resort to legal
process and without Landlord being deemed guilty of trespass or becoming liable
for any loss or damage occasioned thereby;


 


(C)                                With
or without terminating this Lease, and from time to time, make such
improvements, alterations and repairs as may be necessary in order to relet the
Premises, and relet the Premises or any part thereof upon such term or terms
(which may be for a term extending beyond the term of this Lease) at such
rental or rentals and upon such other terms and conditions (which may include
concessions, free rent and/or improvements) as Landlord in its sole discretion
may deem advisable; and, upon each such reletting, all rentals received by
Landlord shall be applied, first, to the payment of any indebtedness other than
Rent due hereunder from Tenant to Landlord, second, to the payment of all costs
and expenses of such reletting (including but not limited to brokerage fees,
attorneys’ fees and costs of improvements, alterations and repairs), third, to
the payment of all Rent due and unpaid hereunder, and the balance, if any,
shall be held by Landlord and applied in payment of future rent as the same may
become due and payable hereunder;


 


(D)                               Sell
at public or private sale all or any part of the fixtures, equipment, inventory
and other property belonging to Tenant and in which the Landlord has a lien by
grant from Tenant, statute or otherwise, at which sale Landlord shall have the
right to become the purchaser upon being the highest bidder, and apply the
proceeds of such sale, first, to the payment of all costs and expenses of
seizing and storing such property and conducting the sale (including all
attorneys’ fees), second, toward the payment of any indebtedness, including
(without limitation) that for Rent, which may be or may become due from Tenant
to Landlord, and, third, to pay Tenant any surplus remaining after all
indebtedness of Tenant to Landlord including expenses has been fully paid;


 


24

















 


(E)                                 Enforce
any provision of the Lease or any other agreement between the parties by
injunction, temporary restraining order or other similar equitable remedy, to
which the Tenant hereby expressly consents and agrees; and/or


 


(F)                                 Exercise
any other legal or equitable right or remedy which it may have by law or
otherwise.


 


No reentry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant or unless the termination thereof
be decreed by a court of competent jurisdiction.  Notwithstanding that Landlord may have re-leased the Premises
without termination, Landlord may at anytime thereafter elect to terminate this
Lease for any previous default.  If the
Premises or any part thereof is re-leased, Landlord shall not be liable for,
nor shall Tenant’s obligations hereunder be diminished by reason of, any
failure by Landlord to relet the Premises or any failure by Landlord to collect
any rent due upon such reletting.  No
action taken by the Landlord under the provisions of this section shall
operate as a waiver of any right which the Landlord would otherwise have
against the Tenant for the Rent hereby reserved or otherwise, and the Tenant
shall at all times remain responsible to the Landlord for any loss and/or damage
suffered by the Landlord by reason of any Event of Default.


 


§14.04              Damages.  Upon any Event of Default, Tenant shall
remain liable to the Landlord for the following amounts: (a) any Rent of any
kind whatsoever which may have become due with respect to the period in the
Term which has already expired, (b) any rental abatements or other free-rent
concessions extended to Tenant under the Lease, (c) all Rent which becomes due
during the remainder of the Term, (d) all costs, fees and expenses incurred by
Landlord in leasing the Premises to others from time to time, including but not
limited to leasing commissions, construction and other build-out costs, design
and permitting costs and the like, and (e) all costs, fees and expenses
incurred by Landlord in pursuit of its remedies hereunder, including but not
limited to attorneys’ fees and court costs. 
All such amounts shall be due and payable immediately upon demand by
Landlord and shall bear interest at fifteen percent (15%) per annum until
paid.  Furthermore, at Landlord’s
option, Tenant shall be obligated to pay, in lieu of item (c) above in this
§14.04, an amount (the “Substitute Amount”) which is equal to the present value
of all Rent which would become due during the remainder of the Term, including
all Additional Rent which shall be deemed to continue and increase over such
remainder of the Term at the average rate of increase occurring over the
then-expired portion of the Term, with such present value to be determined by
discounting at an annual rate of interest which is equal to the bond-equivalent
yield for the most recent auction of U.S. Treasury Bills with a one (1)-year
maturity.  Provided that the Substitute
Amount is actually paid in full to Landlord and the Premises are surrendered by
Tenant, Landlord shall affirmatively list the Premises with its broker as
available for lease (to the extent Landlord’s contract with such broker does
not already apply to all vacant space at the Building), and Tenant shall
receive a reduction and reimbursement of all such amounts which is equal to the
amount of any rent actually received from others to whom the Premises may be
rented during the remainder of the original Term.  Tenant and Landlord acknowledge and agree that payment to Landlord
of the foregoing Substitute Amount, together with the corresponding reduction
by reimbursement to Tenant of any rent paid by substitute 


 


25

















 


tenants, are a reasonable forecast of the actual damages which will be
suffered by Landlord in case of an Event of Default by Tenant, which actual
damages are otherwise difficult or impossible to ascertain, and therefore such
payment and reimbursement together constitute liquidated damages and not a
penalty.  Any suit or action brought by
Landlord to collect any such liquidated damages shall not in any manner
prejudice any other rights or remedies of Landlord hereunder.


 


§14.05              Waiver of Jury Trial.  All parties hereto, both the Landlord and
Tenant as principals and any guarantors, hereby release and waive any and all
rights provided by law to a trial by jury in any court or other legal
proceeding initiated to enforce the terms of this Lease, involving any such
parties, or connected in any other manner with this Lease.


 


ARTICLE XV - QUIET ENJOYMENT


 


§15.01              Covenant.  Landlord hereby covenants that the Tenant,
on paying the Rent and performing the covenants set forth herein, shall
peaceably and quietly hold and enjoy throughout the Term the Premises and such
rights as the Tenant may hold hereunder with respect to the remainder of the
Property.


 


ARTICLE XVI - NOTICES


 


§16.01              Notices.  Any notice, demand or other communication to
be provided hereunder to a party hereto shall be (a) in writing, (b) deemed to
have been given (i) three (3) days after being sent in the United States mails,
postage prepaid, (ii) one (1) day after being sent by overnight
courier, or (iii) immediately upon its actual delivery, and (c) addressed to
the Premises if directed to the Tenant, or addressed to c/o LaSalle Investment
Management, Inc., 100 E. Pratt Street, Suite 2030, Baltimore, Maryland 21202,
Attn: Asset Manager - College Park Plaza, if directed to the Landlord.


 


ARTICLE XVII - GENERAL


 


§17.01              Entire Agreement.  This Lease represents the entire agreement
between the parties hereto as to the subject matter hereof and supersedes all
prior written or oral negotiations, representations, warranties, statements or
agreements between the parties hereto as to the same.


 


§17.02              Amendment.  This Lease may be amended by and only by a
written instrument executed and delivered by each party hereto.


 


§17.03              Applicable Law;
Attorney Fees.  This Lease shall be
given effect and construed by application of the law of the state in which the
Property is located.  The prevailing
party in any lawsuit brought with respect to this Lease shall be entitled to
its reasonable attorney fees


 


§17.04              Waiver.  The Landlord shall not be deemed to have
waived the exercise of any right which it holds hereunder unless such waiver is
made expressly and in writing, and no delay


 


26

















 


or omission by the Landlord in exercising any such right shall be
deemed to be a waiver of its future exercise. 
No such waiver as to any instance involving the exercise of any such
right shall be deemed a waiver as to any other such instance or any other such
right.


 


§17.05              Time of Essence.  Time shall be of the essence of this Lease.


 


§17.06              Headings.  The headings of the articles, subsections,
paragraphs and subparagraphs hereof are provided herein only for convenience of
reference and shall not be considered in construing their contents.


 


§17.07              Severability.  No determination by any court, governmental
body or otherwise that any provision of this lease or any amendment hereof is
invalid or unenforceable in any instance shall affect the validity or
enforceability of any other such provision or such provision in any
circumstance not controlled by such determination.  Each such provision shall be valid and enforceable to the fullest
extent allowed by, and shall be construed wherever possible as being consistent
with, applicable law.


 


§17.08              Successors and Assigns.  This Lease shall be fully binding upon the
parties hereto and each of their respective successors and assigns.  Whenever two or more parties constitute the
Tenant, all such parties shall be jointly and severally liable for performing
the Tenant’s obligations hereunder.


 


§17.09              Commissions.  Each party hereto hereby represents and
warrants to the other that in connection with the leasing of the Premises
hereunder, the party so representing and warranting has not dealt with any real
estate broker, agent or finder, except for Colliers Turley Martin Tucker (the
“Broker”).  Each party hereto shall indemnify
the other against any inaccuracy in such party’s representation.  Landlord hereby agrees that it shall pay a
commission to the Broker according to a separate agreement.


 


§17.10              Recordation.  This Lease may not be recorded among the
land records or among any other public records, without the Landlord’s prior
written consent.


 


§17.11              Perpetuities.  If the rule against perpetuities would
invalidate this Lease or any portion hereof, or would limit the time during
which this Lease shall be effective, due to the potential failure of an
interest in property created herein to vest within a particular time, then
notwithstanding anything to the contrary herein, each such interest in property
must vest, if at all, before the passing of twenty-one (21) years from the date
of this Lease, or this Lease shall become null and void upon the expiration of
such twenty-one (21) year period and the parties shall have no further
liability hereunder.


 


§17.12              Liability Limitation.  Neither Landlord nor any trustee, director,
officer, employee, representative, asset manager, investment advisor or agent
of Landlord, nor any of their respective successors and assigns, shall be
personally liable in any connection with this Lease, and Tenant shall resort
solely to the Building for the payment to Tenant of any claim or for any
performance by Landlord hereunder.


 


27

















 


§17.13              Authority.  Tenant, as well as any entities and/or
individuals executing this Lease on behalf of Tenant, represent and warrant to
Landlord that the execution, delivery and performance of this Lease have been
duly authorized by all required corporate, partnership or other action on the
part of Tenant, and this Lease constitutes the valid and binding obligation of
Tenant enforceable against Tenant in accordance with its terms.


 


§17.14              Exhibits.  Each exhibit, addendum or other attachment
hereto is hereby made a part of this Lease having the full force of all other
provisions herein.


 


[SIGNATURES BEGIN ON FOLLOWING
PAGE]


 


IN WITNESS WHEREOF, each party hereto has executed this Lease under
seal as of the day and year written first above.


 


	
  LANDLORD:

  	
  COLLEGE PARK PLAZA, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  LaSalle Investment Management, Inc.

  
	
   

  	
   

  	
  Authorized Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [Illegible]

  	
   

  	
  By:

  	
  /s/ Rinse A. Brink

  	
   

  
	
  Witness

  	
   

  	
  Name: Rinse A. Brink

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
  TENANT:

  	
  REPUBLIC AIRWAYS HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jean Gibbons

  	
   

  	
  By:

  	
  /s/ Robert H. Cooper

  	
   

  
	
  Witness

  	
   

  	
  Name: Robert H. Cooper

  
	
   

  	
   

  	
  Title: EVP & CFO

  



 


28

















 


EXHIBIT A


 


FLOOR PLAN OF
PREMISES


 





 


29

















 


EXHIBIT B


 


LOCATION OF DESIGNATED PARKING SPACES


 





 


1

















 


EXHIBIT C


 


SPACE PLAN OF THE PREMISES


 





 


1

















 


EXHIBIT D


 


RULES AND
REGULATIONS


 


1.                                       Neither
the whole nor any part of the sidewalks, plaza areas, entrances, passages,
courts, elevators, vestibules, stairways, corridors or halls of the Building
shall be obstructed or encumbered by any tenant or used for any purpose other
than ingress and egress to and from the premises of such tenant.


 


2.                                       No
awning, canopy, sign or other projection shall be attached to the outside walls
or windows of the Building without Landlord’s prior written consent.  No curtain, blind, shade, or screen (other
than those furnished by Landlord as building standard) shall be attached to,
hung in or used in connection with any window or door of the premises of any
tenant.


 


3.                                       No
tenant shall mark, paint, drill into, or in any way deface any part of the
Building or its premises.  No boring,
cutting, or stringing of wires shall be permitted.


 


4.                                       No
tenant shall make, or permit to be made, any unseemly or disturbing noises
(whether by the use of any musical instrument, radio, television or other audio
device) or allow any unsavory odors to emanate from its space, nor shall any
tenant annoy, disturb or interfere with other tenants or occupants of the
Building or neighboring buildings.


 


5.                                       No
change shall be made in door locks without Landlord’s prior written
consent.  Each tenant must upon the
termination of its tenancy restore to Landlord all keys to offices and toilet
rooms either furnished to, or otherwise procured by, such tenant.  In the event of the loss of any keys during
the Term, Tenant shall pay Landlord the reasonable cost of replacement keys.


 


6.                                       Landlord
reserves the right to control and operate the public portions of the Building
and the public facilities, as well as facilities furnished for the common use
of the tenants, in such manner as it deems best for the benefit of the tenants
generally, including, without limitation, the right to exclude from the
Building, except during the hours the Building is open to the public, all
persons who do not present suitable identification satisfactory to Landlord.


 


7.                                       Each
tenant, before closing and leaving its premises at any time, shall see that all
entrance doors are locked and that all electrical appliances are turned
off.  Suite and entrance doors shall
remain closed at all times.


 


8.                                       No
premises shall be used, or permitted to be used, for lodging or sleeping or for
any immoral or illegal purpose.


 


9.                                       Canvassing,
soliciting and peddling in the Building are prohibited.


 


10.                                 There
shall not be used in the Building by any tenant or their agents or contractors,
in the delivery or receipt of merchandise, freight or other matter, any hand
trucks or other means


 


1

















 


of conveyance, except those equipped with rubber tires, rubber side
guards, and such other safeguards as Landlord may require.


 


11.                                 No
animals of any kind shall be brought into or kept about the Building by any
tenant.


 


12.                                 No
tenant shall place, or permit to be placed, on any part of the floor or floors
of its premises a load exceeding the floor load per square foot which such
floor was designed to carry and which is allowed by law.


 


13.                                 No
plumbing or electrical fixtures shall be installed by any tenant without the
prior written consent of Landlord.


 


14.                                 Bicycles, motorcycles
or any other type of vehicle shall not be brought into the lobby or elevators
of the Building or into the premises of any tenant.


 


15.                                 Tenant will refer all
contractors, contractor’s representatives and installation technicians,
rendering any services on or to the premises for tenant, to Landlord for
Landlord’s approval and supervision before performance of any service.  This provision shall apply to all work
performed in the Building, including installation of telephones, telegraph
equipment, electrical devices and attachments and any installation of any
nature affecting floors, walls, woodwork, trim, windows, ceilings, equipment or
any other physical portion of the Building. 
Such approval, if given, shall in no way make Landlord a party to any
contract between tenant and any such contractor, and Landlord shall have no
liability therefor.


 


16.                                 No trash or other
objects shall be placed in the public corridors or sidewalks of the Building.


 


17.                                 Landlord does not
clean or maintain suite finishes which are non-standard, such as kitchens,
bathrooms, wallpaper, special lights, etc.


 


18.                                 Landlord reserves the
right, at any time and from time to time, to rescind, alter, or waive, in whole
or in part, or to add to any of these Rules and Regulations when it is deemed
necessary, desirable or proper, in Landlord’s judgment, for its best interest
or for the best interests of all tenants.


 


19.                                 Violations of these
Rules and Regulations, or any amendments thereof or additions thereto,
constitute a default of this Lease.


 


2

















 


EXHIBIT E


 


FORM OF
SATELLITE DISH LICENSE


 


THIS LICENSE AGREEMENT (“License”) is made as of the
        day of
            ,
200  by and between COLLEGE PARK PLAZA,
LLC (“Owner”) and REPUBLIC AIRWAYS
HOLDINGS, INC. (“Licensee”).


 


WHEREAS, Licensee currently leases from the Owner 36,797 rentable
square feet of space (the “Premises”) at the building known as 8909 Purdue Road
in Indianapolis, Indiana (the “Building”), pursuant to that certain Office
Lease Agreement dated as of April     , 2004 (the
“Lease”).


 


AND WHEREAS, Licensee has requested permission to install on the
rooftop of the Building an approximately [describe approved antenna] (the
“Approved Antenna”), and to connect by coaxial cable such Approved Antenna to
the Premises.


 


NOW, THEREFORE, for good and valuable consideration, the Owner hereby
grants to the Licensee a license subject to, and Licensee accepts and agrees to
perform, the terms and conditions set forth below:


 


1.                                       Licensee
shall have a non-exclusive license to install, maintain and operate the
Approved Antenna on the roof of the Building with related conduit and cables to
the Premises, all at Licensee’s sole cost and expense.  The exact size, height and location of the
antenna shall be subject to the Owner’s prior approval (which shall not be
unreasonably withheld or delayed) and, in addition, the Owner may require
screening or other improvements for aesthetic purposes.  In addition, Licensee shall notify Owner
reasonably in advance of the installation of the Approved Antenna and permit
Owner or its agent or representative to supervise such installation.


 


2.                                       This
License shall extend for the duration of the term of the Lease (as the same may
be extended from time to time). In all events, this License shall automatically
terminate upon expiration or earlier termination of the Lease.  Upon expiration or termination of the Lease,
the Licensee shall remove the Approved Antenna, cables and any other facilities
installed pursuant to this License and repair any damage to the Building caused
by such removal, all in accordance with the provisions of the Lease regarding
surrender of the Premises and removal of fixtures and equipment from the
Building.


 


3.                                       Licensee
shall comply with all federal, state and local zoning, building code and other
laws and regulations, as well as all requirements of any declarations,
covenants and restrictions affecting title to the Building and surrounding real
property, in installation of and in operation of the Approved Antenna
facilities.  In addition, prior to such
installation, Licensee shall obtain any permits, licenses and approvals which
may be required by any such laws and/or covenants for such installation of the
Approved Antenna, and upon request Licensee shall deliver to Owner certificates
of insurance or other evidence of Licensee’s endorsement of all liability
insurance obtained pursuant to the Lease to cover the activities contemplated
by this License.


 


1

















 


4.                                       Licensee shall
be fully responsible for providing all structural and/or other supports which
are necessary to prevent roof collapse or other mishap due to the installation,
maintenance and operation of the Approved Antenna.  All roof penetrations shall be performed in such a manner as to
not void any warranty benefiting Owner. 
The installation of the Approved Antenna shall be performed by
contractors approved in advance by Owner and pursuant to written contracts
which shall include insurance requirements of the Owner.


 


5.                                       At
all times, Licensee shall maintain the Approved Antenna in good, sound and safe
condition and repair.  Such obligation
shall include periodic inspections of the Approved Antenna and all connected
cables and equipment.  In addition,
Licensee shall immediately remedy any unreasonable radio interference with
other communication systems of the Owner or other tenants of the Building (or
of the office park within which the Building is located) which are caused by
the operation of the Approved Antenna.


 


6.                                       Licensee
shall arrange for electrical service and any other utilities which are required
for operation of the Approved Antenna to be supplied directly from the utility
provider to the Approved Antenna. 
Licensee shall pay, when and as due, any and all charges for initial
installation and ongoing service in connection with such utilities.


 


7.                                       Licensee
shall indemnify, defend and hold harmless the Owner and its agents, employees,
advisors and representatives from and against any and all claims, suits and/or
other proceedings, all damages, losses and/or liability, and all costs and
expenses (including but not limited to attorneys’ fees and court costs) arising
in any connection with the installation, use, operation, maintenance, repair
and/or removal of the Approved Antenna, cables, conduit and any other equipment
and facilities erected pursuant to this License.


 


8.                                       Any
material breach or default by Licensee hereunder shall constitute a breach and
default under the Lease entitling the Owner to all remedies on account of
breach or default thereunder, subject to the notice and grace periods set forth
therein.


 


IN WITNESS WHEREOF, each of Owner and Licensee has executed this
License under seal, with the intention that it be a sealed instrument, as of
the date first set forth above.


 


	
   

  	
  OWNER:

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Witness

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LICENSEE:

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Witness

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


2

















 


EXHIBIT F


 


GENERATOR
SPECIFICATIONS