Exhibit 10.1


 


OFFICE LEASE


 


BETWEEN


 


TRANSWESTERN FEDERAL, L.L.C., AS
LANDLORD


 


AND


 


ENERNOC, INC., AS TENANT


 


 


101 FEDERAL STREET


 


BOSTON, MASSACHUSETTS


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  LEASE GRANT/POSSESSION

  	
  3

  
	
   

  	
   

  	
   

  
	
  3.

  	
  USE

  	
  4

  
	
   

  	
   

  	
   

  
	
  4.

  	
  RENT

  	
  5

  
	
   

  	
   

  	
   

  
	
  5.

  	
  INTENTIONALLY OMITTED

  	
  5

  
	
   

  	
   

  	
   

  
	
  6.

  	
  SERVICES TO BE FURNISHED BY LANDLORD

  	
  5

  
	
   

  	
   

  	
   

  
	
  7.

  	
  LEASEHOLD IMPROVEMENTS; TENANT’S PROPERTY

  	
  7

  
	
   

  	
   

  	
   

  
	
  8.

  	
  SIGNAGE

  	
  7

  
	
   

  	
   

  	
   

  
	
  9.

  	
  MAINTENANCE, REPAIRS AND ALTERATIONS

  	
  7

  
	
   

  	
   

  	
   

  
	
  10.

  	
  USE OF ELECTRICAL SERVICES BY TENANT

  	
  9

  
	
   

  	
   

  	
   

  
	
  11.

  	
  ASSIGNMENT AND SUBLETTING

  	
  9

  
	
   

  	
   

  	
   

  
	
  12.

  	
  MECHANIC’S LIENS

  	
  11

  
	
   

  	
   

  	
   

  
	
  13.

  	
  INSURANCE

  	
  11

  
	
   

  	
   

  	
   

  
	
  14.

  	
  INDEMNITY

  	
  12

  
	
   

  	
   

  	
   

  
	
  15.

  	
  DAMAGES FROM CERTAIN CAUSES

  	
  13

  
	
   

  	
   

  	
   

  
	
  16.

  	
  CASUALTY DAMAGE

  	
  13

  
	
   

  	
   

  	
   

  
	
  17.

  	
  CONDEMNATION

  	
  14

  
	
   

  	
   

  	
   

  
	
  18.

  	
  EVENTS OF DEFAULT

  	
  14

  
	
   

  	
   

  	
   

  
	
  19.

  	
  REMEDIES

  	
  15

  
	
   

  	
   

  	
   

  
	
  20.

  	
  LANDLORD’S DEFAULT

  	
  18

  
	
   

  	
   

  	
   

  
	
  21.

  	
  NO WAIVER

  	
  18

  
	
   

  	
   

  	
   

  
	
  22.

  	
  PEACEFUL ENJOYMENT

  	
  18

  
	
   

  	
   

  	
   

  
	
  23.

  	
  INTENTIONALLY OMITTED

  	
  18

  



 

















 


	
  24.

  	
  HOLDING OVER

  	
  18

  
	
   

  	
   

  	
   

  
	
  25.

  	
  SUBORDINATION TO MORTGAGE; ESTOPPEL CERTIFICATE

  	
  19

  
	
   

  	
   

  	
   

  
	
  26.

  	
  NOTICE

  	
  19

  
	
   

  	
   

  	
   

  
	
  27.

  	
  SURRENDER OF PREMISES

  	
  19

  
	
   

  	
   

  	
   

  
	
  28.

  	
  RIGHTS RESERVED TO LANDLORD

  	
  20

  
	
   

  	
   

  	
   

  
	
  29.

  	
  MISCELLANEOUS.

  	
  20

  
	
   

  	
   

  	
   

  
	
  30.

  	
  NO OFFER

  	
  22

  
	
   

  	
   

  	
   

  
	
  31.

  	
  ENTIRE AGREEMENT

  	
  22

  
	
   

  	
   

  	
   

  
	
  32.

  	
  LIMITATION OF LIABILITY

  	
  22

  



 


EXHIBIT A-OUTLINE AND LOCATION OF
PREMISES


EXHIBIT B-RULES AND REGULATIONS


EXHIBIT C-COMMENCEMENT LETTER


 


ii

















 


OFFICE LEASE


 


This Office Lease (the “Lease”)
is made and entered into on this the 10th day of December, 2007,
between TRANSWESTERN FEDERAL, L.L.C., a
Delaware limited liability company (“Landlord”), and
ENERNOC, INC., a Delaware corporation (“Tenant”).


 


W
I  T  N  E  S  S  E  T  H:


 


1.                                       Definitions. The following are definitions of some of the
defined terms used in this Lease. The definition of other defined terms are
found throughout this Lease.


 


A.                                   “Additional Rent”
shall mean any sums (exclusive of Base Rent) that are required to be paid to
Landlord by Tenant hereunder, which sums are deemed to be Additional Rent under
this Lease.


 


B.                                     “Base Rent”:
Base Rent shall be paid according to the following schedule, subject to the
provisions of Section 4 hereof.


 


	
  PERIOD

  	
   

  	
  ANNUAL BASE

  RENT

  	
   

  	
  MONTHLY

  INSTALLMENTS

  OF BASE RENT

  	
   

  
	
  Rent Commencement Date – 11/30/08

  	
   

  	
  $

  	
  694,125

  	
   

  	
  $

  	
  57,843.75

  	
   

  
								



 


The Base Rent due for the first month during the Lease
Term (hereinafter defined) shall be paid by Tenant to Landlord
contemporaneously with Tenant’s execution hereof.


 


C.                                     “Broker” shall
mean, collectively, Cushman & Wakefield, Inc. and Richards Barry Joyce
& Partners.


 


D.                                    “Building” shall
mean the office building at 101 Federal Street, Boston, Massachusetts.


 


E.                                      “Business Day(s)”
shall mean Mondays through Fridays exclusive of the normal business holidays.


 


F.                                      “Common Areas”
shall mean those areas located within the Building or on the Property
designated by Landlord, from time to time, for the common use or benefit of
tenants generally and/or the public.


 


G.                                     “Default Rate”
shall mean the lower of (i) fifteen percent per annum, or (ii) the
highest rate of interest from time-to-time permitted under applicable federal
and state law.


 


H.                                    “Lease Term”
shall mean a period of approximately twelve (12) months commencing on the
execution of this Lease (the “Commencement Date”)
and, unless


 

















 


sooner terminated as provided herein, ending on November 30, 2008 (the “Expiration Date”).


 


I.                                         “Normal Business Hours”
for the Building shall mean 8:00 a.m. to 6:00 p.m. Mondays through Fridays, and
8:00 a.m. to 1:00 p.m. on Saturdays, exclusive of holidays.


 


J.                                        “Notice Addresses”
shall mean the following addresses for Tenant and Landlord, respectively:


 


Tenant:


 


EnerNOC, Inc.


75 Federal Street, #300


Boston, MA 
02110


Attn:  General
Counsel


 


Landlord:


 


Transwestern Federal, L.L.C.


c/o
Lincoln Property Company


75
Federal Street, 7th Floor


Boston, MA  02110


Attn:  General
Manager


 


with a copy to:


 


Transwestern Investment Company


150 North Wacker Drive, Suite 800


Chicago, IL 
60606


Attn:  Owner’s
Representative


 


and to:


 


Drane, Freyer and Lapins


150 North Wacker Drive


8th Floor


Chicago, IL 60606


Attn:  Wendy
Freyer, Esq.


 


Payments of Rent only shall be made payable to the
order of:


 


Transwestern Federal, L.L.C.


 


2

















 


at the following address:


 


c/o Lincoln Property Company


PO Box 842546


Boston, MA  02284-2546


 


or such other name and address as Landlord shall, from time to time,
designate.


 


K.                                    “Permitted Use”
shall mean general office use and no other use or purpose.


 


L.                                      “Premises” shall
mean the office space located within the Building and outlined on Exhibit A to this Lease. If the Premises include one or
more floors in their entirety, all corridors and restroom facilities located on
such full floor(s) shall be considered part of the Premises.


 


M.                                 “Property” shall
mean the Building and the parcel of land on which it is located and other
improvements serving the Building, if any, and the parcel of land on which they
are located.


 


N.                                    “Rentable Area in the
Building” shall mean 561,542 square feet.


 


O.                                    “Rentable Area in the
Premises” shall mean 15,425 square feet.


 


P.                                      “Rent Commencement Date”
shall mean December 15, 2007.


 


2.                                       Lease Grant/Possession.


 


A.                                   Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises on an “as
is” basis (except as otherwise expressly set forth herein), together with the
right, in common with others, to use the Common Areas. The Premises shall be
delivered to Tenant on the Commencement Date in “broom clean” condition, free
of all occupants, with all systems serving the same in good and operational
condition. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order and
satisfactory condition unless Tenant notifies Landlord in writing within two
(2) business days after delivery of all respects in which the Premises do not comply
with the requirements of the prior sentence, with no representation or warranty
by Landlord as to the condition of the Premises or the Building or suitability
thereof for Tenant’s use.


 


B.                                     Notwithstanding anything to the contrary contained
in this Lease, if Landlord is unable to tender possession of any portion of the
Premises on the date possession is to be delivered due to the holding over of
another party, this Lease shall not be void or voidable or otherwise affected
and Tenant shall have no claim for damages against Landlord. Landlord shall use
reasonable efforts to regain possession of the Premises in order to deliver the
same to Tenant. If the Commencement Date as set forth in Section 1G is a
specified date, the Commencement Date shall be postponed until the date


 


3

















 


Landlord delivers possession of the Premises to Tenant, the Expiration
Date shall, at the option of Landlord, correspondingly be postponed on a per
diem basis, and, upon the determination of the actual Commencement Date and the
actual Expiration Date, Landlord and Tenant shall each execute and deliver a
Commencement Letter in the form of Exhibit C
attached hereto.


 


C.                                     If Tenant, with Landlord’s prior written approval,
takes possession of the Premises prior to the Commencement Date for the sole
purpose of performing any improvements therein or installing furniture,
equipment or other personal property of Tenant, such possession shall be
subject to all of the terms and conditions of this Lease, except that Tenant
shall not be required to pay Rent with respect to the period of time prior to
the Commencement Date during which Tenant performs such work. Tenant shall,
however, be liable for the reasonable cost of any services (e.g., electricity,
HVAC, freight elevators) that are provided to Tenant during the period of
Tenant’s possession prior to the Commencement Date. Nothing herein shall be
construed as granting Tenant the right to take possession of the Premises prior
to the Commencement Date, whether for construction, fixturing or any other
purpose, without the prior written consent of Landlord.


 


3.                                       Use.   The
Premises shall be used for the Permitted Use and for no other purpose. Tenant
agrees not to use or permit the use of the Premises for any purpose which is
illegal or dangerous, which creates a nuisance or which would increase the cost
of insurance coverage with respect to the Building. Tenant will conduct its
business and control its agents, servants, employees, customers, licensees, and
invitees in such a manner as not to interfere with or disturb other tenants or
Landlord in the management of the Property. Tenant will maintain the Premises
in substantially the same condition in which it has been delivered to Tenant
(or such better condition as it may be put in thereafter by Tenant), and comply
with all laws, ordinances, orders, rules and regulations of any governmental
entity with reference to the use, condition, configuration or occupancy of the
Premises; provided, however, that in no event shall Tenant be responsible for
bringing the Premises into compliance with applicable laws, ordinances, orders,
rules and regulations of any governmental entity in effect as of the
Commencement Date to the extent applicable to the use, condition, configuration
or occupancy of the Premises for the Permitted Use, generally, unless such
compliance results from (i) Tenant’s particular use of the Premises or (ii) any
Alterations undertaken by or on behalf of Tenant or anyone claiming by,
through, or under Tenant (but in no event shall the need for compliance be
deemed to result from Alterations undertaken by or on behalf of Tenant if
non-compliance is merely discovered as a result of such Alterations as opposed
to being caused by the Alterations undertaken by Tenant). Tenant shall not, and
shall not allow its employees, agents, contractors or invitees, to bring into
the Building or the Premises any dangerous or hazardous materials, except for
customary office and cleaning supplies, provided Tenant uses, stores and
disposes of the same in compliance with all applicable law. Tenant, at its
expense, will comply with the rules and regulations of the Building attached
hereto as Exhibit B and such other rules and
regulations adopted and altered by Landlord from time-to-time and will cause
all of its agents, employees, invitees and visitors to do so. All such changes
to rules and regulations will be reasonable and shall be sent by Landlord to
Tenant in writing. In the event of a conflict between the rules and regulations
and the terms of this Lease, the terms of this Lease shall control. Landlord
shall not knowingly enforce the rules and regulations against Tenant in a
discriminatory manner.


 


4

















 


4.                                       Rent.


 


A.                                   Tenant covenants to pay to Landlord during the Lease
Term, without any setoff or deduction except as otherwise expressly provided
herein, the full amount of all Base Rent and Additional Rent due hereunder and
the full amount of all such other sums of money as shall become due under this
Lease, all of which hereinafter may be collectively called “Rent.”  In addition,
Tenant shall pay, as Additional Rent, all rent, sales and use taxes or other
similar taxes, if any, levied or imposed by any city, state, county or other governmental
body having authority, such payments to be in addition to all other payments
required to be paid to Landlord by Tenant under this Lease. Such payments shall
be paid concurrently with the payments of the Rent on which the tax is based.
Base Rent and Additional Rent for each calendar year or portion thereof during
the Lease Term, shall be due and payable in advance in monthly installments on
the first day of each calendar month during the Lease Term, without demand. If
the Lease Term commences on a day other than the first day of a month or
terminates on a day other than the last day of a month, then the installments
of Base Rent and Additional Rent for such month or months shall be prorated,
based on the number of days in such month. All amounts received by Landlord
from Tenant hereunder shall be applied first to the earliest accrued and unpaid
Rent then outstanding. Tenant’s covenant to pay Rent shall be independent of
every other covenant set forth in this Lease.


 


B.                                     To the extent allowed by law, all installments of
Rent not paid when due shall bear interest at the Default Rate from the date
due until paid, provided, Tenant shall be entitled to a grace period of three
(3) days after notice from Landlord with respect to the first two (2) late payments
in any calendar year. In addition, if Tenant fails to pay any installment of
Base Rent and Additional Rent or any other item of Rent when due and payable
hereunder, a “Late Charge” equal to five percent
(5%) of such unpaid amount will be due and payable immediately by Tenant to
Landlord, provided, Tenant shall be entitled to a grace period of three (3)
days after notice from Landlord with respect to the first two (2) late payments
in any calendar year.


 


C.                                     Tenant’s
obligation so to pay Rent under the Lease shall be absolute, unconditional, and
independent and shall not be discharged or otherwise affected by any law or
regulation now or hereafter applicable to the Premises, or any other
restriction on Tenant’s use, or, except as expressly provided in the Lease, any
casualty or taking, or any failure by Landlord to perform or other occurrence;
and Tenant waives all rights now or hereafter existing to terminate, quit or
surrender this Lease or the Premises or any part thereof, or to assert any
defense in the nature of constructive eviction to any action seeking to recover
Rent.


 


5.                                       Intentionally Omitted .


 


6.                                       Services to be Furnished by
Landlord.


 


A.                                   Landlord shall furnish the following services:  (i) heating and air conditioning during
Normal Business Hours to provide a temperature condition required, in


 


5

















 


Landlord’s reasonable judgment, for comfortable occupancy of the Premises
under normal business operations; (ii) hot and cold water for use in the common
lavatories of the Building and cold water for the kitchenette within the
Premises (any heating of such water for the kitchenette being the
responsibility of Tenant); (iii) janitorial service in the Premises and Common
Areas on Business Days; (iv) electricity to the Premises for general office
use, in accordance with and subject to the terms and conditions of Section 10
of this Lease and (v) passenger elevator service, 24 hours a day, 7 days a
week; and freight elevator service on Business Days, upon request of Tenant and
subject to scheduling and charges by Landlord. Tenant shall be permitted
access to the Building and the Premises on a 24 hour per day, 7 day per week
basis, subject to Force Majeure (as hereinafter defined) and Landlord’s
reasonable security measures, and subject to Landlord’s right to prohibit,
restrict or limit access to the Building or the Premises in emergency
situations if Landlord determines, in its reasonable discretion, that it is
necessary or advisable to do so in order to prevent or protect against death or
injury to persons or damage to property.


 


B.                                     If Tenant requests any other utilities or building
services in addition to those identified in Section 6A, or any of the
above utilities or building services in frequency, scope, quality or quantities
substantially greater than the standards set by Landlord for the Building, then
Landlord shall use reasonable efforts to attempt to furnish Tenant with such
additional utilities or building services. Landlord may impose a reasonable
charge for such additional utilities or building services, which shall be paid
monthly by Tenant as Additional Rent on the same day that the monthly
installment of Base Rent is due.


 


C.                                     Except as otherwise expressly provided herein, the
failure by Landlord to any extent to furnish, or the interruption or
termination of utilities and Building services identified in Section 6A in
whole or in part, resulting from adherence to laws, regulations and
administrative orders, wear, use, repairs, improvements, alterations or any
causes shall not render Landlord liable in any respect nor be construed as an
actual or  constructive eviction of
Tenant, nor give rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof.


 


D.                                    Notwithstanding anything to the contrary contained
in this Section 6, if: (i) Landlord ceases to furnish any service in the
Building for a period in excess of five (5) consecutive Business Days after
Tenant notifies Landlord of such cessation (the “Interruption
Notice”); (ii) such cessation does not arise as a result of an act
or omission of Tenant; (iii) such cessation is not caused by a fire or other
casualty (in which case Section 16 shall control); (iv) the restoration of such
service is reasonably within the control of Landlord; and (v) as a result of
such cessation, the Premises or a material portion thereof, is rendered
untenantable and Tenant in fact ceases to use the Premises, or material portion
thereof, then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Base Rent payable hereunder during the period beginning on the
sixth (6th) consecutive Business Day after Landlord’s receipt of the
Interruption Notice and ending on the day when the service in question has been
restored. In the event the entire Premises has not been rendered untenantable
by the cessation in service, the amount of abatement that Tenant is entitled to
receive shall be prorated based upon the percentage of the Premises so rendered
untenantable and not used by Tenant.


 


6

















 


7.                                       Leasehold Improvements; Tenant’s
Property. All fixtures (other
than Tenant’s trade fixtures), improvements and appurtenances attached to, or
built into, the Premises at the commencement of or during the Lease Term,
whether or not by, or at the expense of, Tenant (“Leasehold
Improvements”), shall be and remain a part of the Premises; shall be
the property of Landlord; and shall not be removed by Tenant except as
expressly provided herein. Notwithstanding the foregoing, all unattached and
moveable partitions, trade fixtures, equipment or furniture located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building or
Premises, and all personalty brought into the Premises by Tenant (“Tenant’s Property”) shall be owned and insured by Tenant. Landlord
may, nonetheless, at any time prior to the expiration or earlier termination of
this Lease or Tenant’s right to possession of the Premises, require Tenant to
remove any Leasehold Improvements which were installed by or at the direction
of Tenant or anyone claiming by, through or under Tenant (the “Required Removables”) at Tenant’s sole cost. Upon the
termination of the Lease Term or the sooner termination of Tenant’s right to
possession of the Premises, Tenant shall remove Tenant’s Property, all
electronic, phone and data cabling exclusively serving the Premises installed
by or at the direction of Tenant or anyone claiming by, through or under Tenant
(whether such cabling is located within or outside of the Premises), and all
Required Removables. Tenant shall, at its sole cost and expense,  repair any damage caused by such removal. If
Tenant fails to remove any of the foregoing items or to perform any required
repairs and restoration, (i) Landlord, at Tenant’s sole cost and expense,
may remove the same (and repair any damage occasioned thereby) and dispose
thereof or deliver such items to any other place of business of Tenant, or
warehouse the same, and Tenant shall pay the cost of such removal, repair,
delivery, or warehousing of such items within five (5) days after demand
from Landlord and (ii) such failure shall be deemed a holding over by
Tenant under Section 24 hereof until such failure is rectified by Tenant or
Landlord.


 


8.                                       Signage. Tenant shall not install any signage visible from the exterior of the
Premises; all signage shall be in the standard graphics for the Building and no
others shall be used or permitted without Landlord’s prior written consent. Landlord
shall provide, at its expense, lobby directory signage identifying Tenant and
building standard signage at the entrance to the Premises identifying Tenant.


 


9.                                       Maintenance, Repairs and
Alterations.


 


A.                                   Except to the extent such obligations are imposed
upon Landlord hereunder, Tenant shall, at its sole cost and expense, maintain
the Premises (including, without
limitation, any supplemental electrical or HVAC systems installed by Tenant,
audio/visual, computer, data or telecommunications systems, special security
systems, interior bathrooms, kitchens and kitchen appliances) in substantially the same order, condition and
repair as existed on the Commencement Date (or such better condition as it may
be put in thereafter by Tenant) throughout the entire Lease Term, ordinary wear
and tear and damage by fire or other casualty excepted. Tenant agrees to keep
the areas visible from outside the Premises in a neat, clean and attractive
condition at all times. Tenant shall, within thirty (30) days after Landlord’s
written demand therefor, reimburse Landlord for the reasonable cost of all
repairs, replacements and alterations (collectively, “Repairs”)
in and to the Premises, Building and Property and the facilities and systems
thereof, plus an


 


7

















 


administration charge of ten percent (10%) of such cost, the need for
which Repairs arises out of (1) the installation, removal, use or operation of
Tenant’s Property or Required Removables, (2) the moving of Tenant’s
Property and Required Removables into or out of the Building, (3) any
Alterations (hereinafter defined), or (4) the misuse or negligence of
Tenant, its agents, contractors, employees or invitees, subject to Section 13D
below.


 


B.                                     Tenant shall not make or allow to be made any
alterations, additions or improvements to the Premises (collectively, “Alterations”), without first obtaining the written consent
of Landlord, which shall not be unreasonably withheld. Prior to commencing any
Alterations and as a condition to obtaining Landlord’s consent, Tenant shall
deliver to Landlord plans and specifications reasonably acceptable to Landlord;
names and addresses of contractors reasonably acceptable to Landlord; copies of
contracts; necessary permits and approvals; evidence of contractor’s and
subcontractor’s insurance in accordance with Section 13 hereof; and a
payment bond or other security, all in form and amount satisfactory to Landlord.
Tenant shall be responsible for insuring that all such persons procure and
maintain insurance coverage against such risks, in such amounts and with such
companies as Landlord may reasonably require. All Alterations shall be
constructed in a good and workmanlike manner using Building standard materials
or other new materials of equal or greater quality. Landlord, to the extent
reasonably necessary to avoid any disruption to the tenants and occupants of
the Building, shall have the right to designate the reasonable time when any
Alterations may be performed and to otherwise designate reasonable rules,
regulations and procedures for the performance of work in the Building. Upon
completion of the Alterations, Tenant shall deliver to Landlord “as-built”
plans, contractor’s affidavits and full and final waivers of lien and receipted
bills covering all labor and materials. All Alterations shall comply with the
insurance requirements and with applicable codes, ordinances, laws and
regulations. Tenant shall reimburse Landlord upon demand for all reasonable sums,
if any, expended by Landlord for third party examination of the architectural,
mechanical, electrical and plumbing plans for any Alterations. In addition, if
Landlord so requests, Landlord shall be entitled to oversee the construction of
any Alterations that may affect the structure of the Building or any of the
mechanical, electrical, plumbing or life safety systems of the Building. If
Landlord elects to oversee such work, Landlord shall be entitled to receive a
fee for such oversight in an amount equal to ten percent (10%) of the cost of
such Alterations. Landlord’s approval of Tenant’s plans and specifications for
any Alterations performed for or on behalf of Tenant shall not be deemed to be
representation by Landlord that such plans and specifications comply with
applicable insurance requirements, building codes, ordinances, laws or
regulations or that the Alterations constructed in accordance with such plans
and specifications will be adequate for Tenant’s use.


 


C.                                     Landlord shall perform all maintenance, repairs and
replacements reasonably necessary to keep in good condition and working order
(a) the heating, ventilating, air conditioning, plumbing, security, electrical,
life safety and other mechanical systems and equipment serving the Premises (except
to the extent that the maintenance and repair of such systems and equipment are
the responsibility of Tenant under this Lease), (b) the Common Areas of the
Building, and (c) the structure of the Building (including, without limitation,
the roof, exterior walls and foundation thereof).


 


8
















 


10.                                 Use of Electrical Services by
Tenant. All electricity used by
Tenant in the Premises shall be paid for by Tenant by a separate charge billed
directly to Tenant by Landlord based on Landlord’s good faith estimate of
Tenant’s use of electricity in the Premises and payable by Tenant as Additional
Rent within thirty (30) days after billing. As soon as is practical following
the end of each calendar year during the Lease Term, Landlord shall furnish to
Tenant a statement of Tenant’s actual use of electricity in the Premises for
the previous calendar year based upon Landlord’s reading of the check meter
installed in the Premises. If for any calendar year the Additional Rent
collected for the prior year, as a result of Landlord’s estimate of Tenant’s
use of electricity in the Premises, is in excess of the amount owed by Tenant
on account of its actual use of electricity in the Premises such prior year,
then Landlord shall refund to Tenant any overpayment (or at Landlord’s option
apply such amount against Additional Rent due or to become due hereunder). Likewise,
Tenant shall pay to Landlord, within thirty (30) days after Landlord’s written
demand, any underpayment with respect to the prior year whether or not the
Lease has terminated prior to receipt by Tenant of a statement for such
underpayment, it being understood that this clause shall survive the expiration
of the Lease. Landlord shall have the right at any time and from time-to-time
during the Lease Term to contract for electricity service from such providers
of such services as Landlord shall elect (each being an “Electric
Service Provider”). Tenant shall cooperate with Landlord, and the
applicable Electric Service Provider, at all times and, as reasonably
necessary, shall allow Landlord and such Electric Service Provider reasonable
access to the Building’s electric lines, feeders, risers, wiring, and any other
machinery within the Premises. Tenant’s use of electrical services furnished by
Landlord shall not exceed in voltage, rated capacity, or overall load that
which is standard for the Building. In the event Tenant shall request that it
be allowed to consume electrical services in excess of Building standard,
Landlord may refuse to consent to such usage or may consent upon such
conditions as Landlord reasonably elects, and all such additional usage shall
be paid for by Tenant as Additional Rent.


 


11.                                 Assignment and Subletting.


 


A.                                   Except in connection with a Permitted Transfer
(defined in Section 11E below), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any third party to use
any portion of the Premises (collectively or individually, a “Transfer”) without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. Without limitation, it is
agreed that Landlord’s consent shall not be considered unreasonably withheld
if: (1) the proposed transferee’s financial condition is not adequate for
the obligations such transferee is assuming in connection with the proposed
Transfer; (2) the transferee’s business or reputation is not suitable for
the Building considering the business and reputation of the other tenants and
the Building’s prestige, or the proposed transfer would result in a violation
of another tenant’s rights under its lease at the Building; (3) the
transferee is a governmental agency or occupant of the Building;
(4) Tenant is in default beyond any applicable notice and cure period;
(5) any portion of the Building or the Premises would likely become
subject to additional or different laws as a consequence of the proposed
Transfer; or (6) Landlord or its leasing agent has received a proposal
from or made a proposal to the proposed transferee to lease space in the
Building within six (6) months prior to Tenant’s delivery of written notice of
the proposed Transfer to Landlord. Any attempted Transfer in violation of this
Section 11, shall, exercisable in Landlord’s sole and absolute discretion,
be void. Consent by Landlord to one or more


 


9

















 


Transfers shall not operate as a waiver of Landlord’s rights to approve
any subsequent Transfers. If Landlord withholds its consent to any Transfer
contrary to the provisions of this Section 11, Tenant’s sole remedy shall
be to seek an injunction in equity to compel performance by Landlord to give
its consent and Tenant expressly waives any right to damages in the event of
such withholding by Landlord of its consent. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation under this
Lease or any liability hereunder.


 


B.                                     If Tenant requests Landlord’s consent to a Transfer,
Tenant shall submit to Landlord (i) financial statements for the proposed
transferee, (ii) a copy of the proposed assignment or sublease, and (iii) such
other information as Landlord may reasonably request. After Landlord’s receipt
of the required information and documentation, Landlord shall either:
(1) consent or reasonably refuse consent to the Transfer in writing;
(2) in the event of a proposed assignment of this Lease, terminate this
Lease effective the first to occur of ninety (90) days following written notice
of such termination or the date that the proposed Transfer would have come into
effect; and (3) in the event of a proposed subletting, terminate this
Lease with respect to the portion of the Premises which Tenant proposes to
sublease effective the first to occur of ninety (90) days following written
notice of such termination or the date the proposed Transfer would have come
into effect. Tenant shall pay Landlord a review fee of $1,000.00 for Landlord’s
review of any Permitted Transfer or proposed Transfer. In addition, Tenant
shall reimburse Landlord for its actual reasonable costs and expenses
(including, without limitation, reasonable attorney’s fees) incurred by
Landlord in connection with Landlord’s 
review of such proposed Transfer or Permitted Transfer.


 


C.                                     Tenant shall pay to Landlord fifty percent (50%) of
all cash and other consideration which Tenant receives as a result of a Transfer
that is in excess of the rent payable to Landlord hereunder for the portion of
the Premises and Lease Term covered by the Transfer within ten (10) days
following receipt thereof by Tenant.


 


D.                                    Except as provided below with respect to a Permitted
Transfer, if Tenant is a corporation, limited liability company, partnership or
similar entity, and the person, persons or entity which owns or controls a
majority of the voting interests at the time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such change of
ownership or control shall constitute a Transfer. The foregoing shall not apply
so long as Tenant is an entity whose outstanding stock is listed on a
nationally recognized security exchange, or if at least eighty percent (80%) of
its voting stock is owned by another entity, the voting stock of which is so
listed.


 


E.                                      Tenant may assign its entire interest under this
Lease or sublet the Premises (i) to any entity controlling or controlled
by or under common control with Tenant or (ii) to any successor to Tenant
by purchase, merger, consolidation or reorganization (hereinafter,
collectively, referred to as “Permitted  Transfer”) without the consent of Landlord, provided:
(1) Tenant is not in default under this Lease beyond any applicable notice
and cure periods; (2) if such proposed transferee is a successor to Tenant
by purchase, said proposed transferee shall acquire all or substantially all of
the stock or assets of Tenant’s


 


10

















 


business or, if such proposed transferee is a successor to Tenant by
merger, consolidation or reorganization, the continuing or surviving entity
shall own all or substantially all of the assets of Tenant; (3) with
respect to a Permitted Transfer to a proposed transferee described in
clause (ii), such proposed transferee shall have a net worth which is at
least equal to Tenant’s net worth as of the day prior to the series of events
culminating in the proposed purchase, merger, consolidation or reorganization
as evidenced to Landlord’s reasonable satisfaction; and (4) Tenant shall
give Landlord written notice at least ten (10) days prior to the effective date
of the proposed purchase, merger, consolidation or reorganization. So long as
Tenant remains a publicly traded company, any sale of Tenant’s stock over a
nationally-recognized stock exchange shall be deemed a Permitted Transfer for
purpose of this Lease.


 


12.                                 Mechanic’s Liens. Tenant will not permit any mechanic’s liens or
other liens to be placed upon the Property with respect to any work performed
by or at the direction of Tenant or anyone claiming by, through or under Tenant.
If a lien is attached to the Property, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same. Any amount paid by Landlord for any of the aforesaid purposes including,
but not limited to,  reasonable attorneys’
fees, shall be paid by Tenant to Landlord within thirty (30) days after demand
as Additional Rent. Tenant shall within ten (10) days of receiving such notice
of lien or claim have such lien or claim released of record. Tenant’s failure
to comply with the provisions of the foregoing sentence shall be deemed an
Event of Default entitling Landlord to exercise all of its remedies therefor
without the requirement of any additional notice or cure period.


 


13.                                 Insurance.


 


A.                                   Landlord shall, at all times during the Lease Term,
procure and maintain: (i) policies of insurance covering loss or damage to the
Property in an amount equal to the full replacement cost of the Building,
including leasehold improvements in the Premises, which shall provide
protection against loss by fire and other all-risk casualties including
earthquake and flood and such other property insurance as may be required by
Landlord’s mortgagee or as otherwise desired by Landlord, and (ii) commercial
general liability insurance applicable to the Building and the Common Areas,
providing a minimum limit of $3,000,000.00 per occurrence.


 


B.                                     Tenant shall procure and maintain, at its expense,
(i) all-risk (special form) property insurance in an amount equal to the full
replacement cost of Tenant’s Property located in the Premises; (ii) a policy or
policies of general liability and umbrella or excess liability insurance
applying to Tenant’s operations and use of the Premises, providing a minimum
limit of $3,000,000.00 per occurrence and in the aggregate, naming Landlord and
Landlord’s Building manager as additional insureds, (iii) automobile liability
insurance covering owned, non-owned and hired vehicles in an amount not less
than a combined single limit of $1,000,000.00 per accident, and (iv) workers’
compensation insurance in accordance with the laws of the State in which the
Property is located and employer’s liability insurance in an amount not less
than $1,000,000.00 each accident, $1,000,000.00 disease-each employee and
policy limit, with the insurance policies required under this clause (iv) to be
endorsed to waive the insurance carriers’ right of subrogation. Tenant shall


 


11

















 


maintain the foregoing insurance coverages in effect commencing on the
earlier to occur of the Commencement Date and the date Tenant takes possession
of the Premises, and continuing to the end of the Lease Term.


 


C.                                     The insurance requirements set forth in this
Section 13 are independent of the waiver, indemnification, and other
obligations under this Lease and will not be construed or interpreted in any
way to restrict, limit or modify the waiver, indemnification and other
obligations or to in any way limit any party’s liability under this Lease. In
addition to the requirements set forth in Sections 13 and 14, the
insurance required of Tenant under this Lease must be issued by an insurance
company with a rating of no less than A-VIII in the current Best’s Insurance
Guide or that is otherwise acceptable to Landlord, and admitted to engage in
the business of insurance in the state in which the Building is located; be primary
insurance for all claims under it and provide that any insurance carried by
Landlord, Landlord’s Building manager, and Landlord’s lenders is strictly
excess, secondary and noncontributing with any insurance carried by Tenant; and
provide that insurance may not be cancelled, nonrenewed or the subject of
change in coverage of available limits of coverage, except upon ten (10) days’
prior written notice to Landlord and Landlord’s lenders. Tenant will deliver to
Landlord a legally enforceable certificate of insurance on all policies
procured by Tenant in compliance with Tenant’s obligations under this Lease on
or before the date Tenant first occupies any portion of the Premises, at least
ten (10) days before the expiration date of any policy and upon the renewal of
any policy. Landlord shall have the right to approve all deductibles and
self-insured retentions under Tenant’s policies, which approval shall not be
unreasonably withheld, conditioned or delayed.


 


D.                                    Neither Landlord nor Tenant shall be liable (by way
of subrogation or otherwise) to the other party (or to any insurance company
insuring the other party) for any loss or damage to any of the property of
Landlord or Tenant, as the case may be, with respect to their respective
property, the Building, the Property or the Premises or any addition or
improvements thereto, or any contents therein, to the extent covered by
insurance carried or required to be carried by a party hereto even though such
loss might have been occasioned by the negligence or willful acts or omissions
of the Landlord or Tenant or their respective employees, agents, contractors or
invitees. Landlord and Tenant shall give each insurance company which issues
policies of insurance, with respect to the items covered by this waiver, written
notice of the terms of this mutual waiver, and shall have such insurance
policies properly endorsed, if necessary, to prevent the invalidation of any of
the coverage provided by such insurance policies by reason of such mutual
waiver. For the purpose of the foregoing waiver, the amount of any deductible
applicable to any loss or damage shall be deemed covered by, and recoverable by
the insured under the insurance policy to which such deductible relates.


 


14.                                 Indemnity. To the extent
not expressly prohibited by law, Landlord and Tenant each (in either case, the “Indemnitor”) agree to hold harmless and indemnify the other
and the other’s agents, partners, shareholders, members, officers, directors,
beneficiaries and employees (collectively, the “Indemnitees”)
from any losses, damages, judgments, claims, expenses, costs and liabilities
imposed upon or incurred by or asserted against the Indemnitees, including
without


 


12

















 


limitation
reasonable attorneys’ fees and expenses, for death or injury to, or damage to
property of, third parties, other than the Indemnitees, that may arise from the
negligence or willful misconduct of Indemnitor or any of Indemnitor’s agents,
members, partners or employees. Such third parties shall not be deemed third
party beneficiaries of this Lease. If any action, suit or proceeding is brought
against any of the Indemnitees by reason of the negligence or willful
misconduct of Indemnitor or any of Indemnitor’s agents, members, partners or
employees, then Indemnitor will, at Indemnitor’s expense and at the option of
said Indemnitees, by counsel reasonably approved by said Indemnitees, resist
and defend such action, suit or proceeding. In addition, to the extent not
expressly prohibited by law, Tenant agrees to hold harmless and indemnify
Landlord and  Landlord’s Indemnitees from
any losses, damages, judgments, claims, expenses, costs and liabilities imposed
upon or incurred by or asserted against Landlord or Landlord’s Indemnitees,
including reasonable attorneys’ fees and expenses, for death or injury to, or
damage to property of, third parties (other than Landlord’s Indemnitees) that
may arise from any act or occurrence in the Premises, except to the extent
caused by the negligence or willful misconduct of Landlord or Landlord’s
Indemnitees.


 


15.                                 Damages from Certain Causes. To the extent not expressly prohibited by law,
Landlord shall not be liable to Tenant or Tenant’s employees, contractors,
agents, invitees or customers, for any injury to person or damage to property
sustained by Tenant or any such party or any other person claiming through
Tenant resulting from any accident or occurrence in the Premises or any other
portion of the Building caused by the Premises or any other portion of the
Building becoming out of repair or by defect in or failure of equipment, pipes,
or wiring, or by broken glass, or by the backing up of drains, or by gas,
water, steam, electricity, or oil leaking, escaping or flowing into the
Premises (except where due to Landlord’s grossly negligent or willful failure
to make repairs required to be made pursuant to other provisions of this Lease,
after the expiration of a reasonable time after written notice to Landlord of
the need for such repairs), nor shall Landlord be liable to Tenant for any loss
or damage that may be occasioned by or through the acts or omissions of other
tenants of the Building or of any other persons whomsoever, including, but not
limited to riot, strike, insurrection, war, court order, requisition, order of
any governmental body or authority, acts of God, fire or theft.


 


16.                                 Casualty Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged that substantial
alteration or reconstruction of the Building shall, in Landlord’s sole opinion,
be required (whether or not the Premises shall have been damaged by such
casualty) or in the event there is less than two (2) years of the Lease Term
remaining or in the event Landlord’s mortgagee should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within ninety (90) days after the date of such
casualty. If Landlord does not thus elect to terminate this Lease, Landlord
shall commence and proceed with reasonable diligence to restore the Building,
and the improvements located within the Premises to substantially the same
condition in which it was immediately prior to the happening of the casualty. Notwithstanding
the foregoing, Landlord’s obligation to restore the Building, and the
improvements located within the Premises shall not require Landlord to expend
for such repair and restoration work more than the insurance proceeds actually
received by Landlord as a result of the casualty. When the repairs described in


 


13

















 


the preceding two sentences have
been completed by Landlord, Tenant shall complete the restoration of all
furniture, fixtures and equipment which are necessary to permit Tenant’s
reoccupancy of the Premises. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that Rent shall be abated from
the date of the damage or destruction for any portion of the Premises that is
unusable by Tenant, which abatement shall be in the same proportion that the
Rentable Area of the Premises which is unusable by Tenant bears to the total
Rentable Area of the Premises; provided that Tenant shall not be entitled to
any abatement of Rent if the damage or destruction within the Premises is
restored within five (5) Business Days after Landlord’s receipt of written
notice from Tenant of the occurrence of the damage or destruction.


 


Landlord shall notify Tenant in writing, within thirty
(90) days after any fire or other casualty affecting the Premises or Tenant’s
means of access to the Building, of Landlord’s reasonable estimate of the time
to complete all repairs to the Premises or, if affected, Tenant’;s means of
access to the Building. If such estimate exceeds the lesser of (i) one (1) year
from the date of such fire or casualty or such damage occurs, or (ii) one-half
(1/2) of the then-remaining Term of this Lease, then Tenant shall have the
right to terminate this Lease by written notice delivered to Landlord within
thirty (30) days of receiving such notification from Landlord.


 


17.                                 Condemnation. If the whole or any substantial part of the
Premises or if the Building or any portion thereof which would leave the
remainder of the Building unsuitable for use comparable to its use on the
Commencement Date, or if the land on which the Building is located or any
material portion thereof, shall be taken or condemned for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, then Landlord may, at its
option, terminate this Lease and Rent shall be abated during the unexpired
portion of this Lease, effective when the physical taking of said Premises or
said portion of the Building or land shall occur. If this Lease is not
terminated, the rent for any portion of the Premises so taken or condemned
shall be abated during the unexpired Lease Term effective when the physical
taking of said portion of the Premises shall occur. All compensation awarded
for any taking or condemnation, or sale proceeds in lieu thereof, shall be the
property of Landlord, and Tenant shall have no claim thereto, the same being
hereby expressly waived by Tenant, except for any portions of such award or
proceeds which are specifically allocated by the condemning or purchasing party
for the taking of or damage to trade fixtures of Tenant and moving costs, which
Tenant specifically reserves to itself.


 


18.                                 Events of Default. The following events shall be deemed to be “Events of Default” under this Lease:  (i) Tenant fails to pay any Rent when due;
provided that the first (1st) such failure during any consecutive
twelve (12) month period during the Term shall not be an Event of Default if
Tenant pays the amount due within five (5) days after Tenant’s receipt of
written notice from Landlord that such payment was not made when due, (ii)
Tenant fails to perform any other provision of this Lease not described in this
Section 18, and such failure is not cured within thirty (30) days (or
immediately if the failure involves a hazardous condition) after notice from
Landlord, however, other than with respect to a hazardous condition, if Tenant’s
failure to comply cannot reasonably be cured within thirty (30) days, Tenant
shall be allowed additional time (not to exceed thirty (30) additional days) as
is reasonably necessary to cure the failure so long as Tenant begins the cure
within thirty (30) days and diligently pursues the cure to


 


14

















 


completion; (iii) Tenant fails
to observe or perform any of the covenants with respect to (a) assignment
and subletting as set forth in Section 11, (b) mechanic’s liens as
set forth in Section 12, (c) insurance as set forth in
Section 13 or (d) delivering subordination agreements or estoppel
certificates as set forth in Section 25, (iv) the leasehold interest of
Tenant is levied upon or attached under process of law; (v) Tenant or any
guarantor of this Lease dies or dissolves; (vi) Tenant abandons the Premises
(meaning Tenant vacates the Premises and fails to perform any of its
obligations hereunder); or (vii) any voluntary or involuntary proceedings are
filed by or against Tenant or any guarantor of this Lease under any bankruptcy,
insolvency or similar laws and, in the case of any involuntary proceedings, are
not dismissed within sixty (60) days after filing.


 


19.                                 Remedies.


 


A.                                   Upon the occurrence of any Event of Default,
Landlord shall have the following rights and remedies, in addition to those
allowed by law or equity, any one or more of which may be exercised without
further notice to or demand upon Tenant and which may be pursued successively
or cumulatively as Landlord may elect:


 


(1)                                  Landlord may re-enter the Premises and attempt to
cure any default of Tenant, in which event Tenant shall, upon demand, reimburse
Landlord as Additional Rent for all reasonable costs and expenses which
Landlord incurs to cure such default;


 


(2)                                  Landlord may terminate this Lease by giving to
Tenant notice of Landlord’s election to do so, in which event the Lease Term
shall end, and all right, title and interest of Tenant hereunder shall expire,
on the date stated in such notice;


 


(3)                                  Landlord may terminate the right of Tenant to
possession of the Premises without terminating this Lease by giving notice to
Tenant that Tenant’s right to possession shall end on the date stated in such
notice, whereupon the right of Tenant to possession of the Premises or any part
thereof shall cease on the date stated in such notice; and


 


(4)                                  Landlord may enforce the provisions of this Lease by
a suit or suits in equity or at law for the specific performance of any
covenant or agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all moneys due or
to become due from Tenant under any of the provisions of this Lease.


 


Landlord shall not be required to serve Tenant with
any notices or demands as a prerequisite to its exercise of any of its rights
or remedies under this Lease, other than those notices and demands specifically
required under this Lease. LANDLORD’S
NOTICE OF ANY DEFAULT MAY SERVE AS ANY STATUTORY DEMAND OR NOTICE WHICH
IS A PREREQUISITE TO LANDLORD’S COMMENCEMENT OF EVICTION PROCEEDINGS AGAINST
TENANT, INCLUDING THE DEMANDS AND NOTICES SPECIFIED IN ANY APPLICABLE STATE
STATUTE OR CASE LAW,


 


15

















 


AND NO FURTHER NOTICE SHALL BE
REQUIRED. TENANT AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM AND
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT BROUGHT BY LANDLORD TO RECOVER
POSSESSION OF THE PREMISES FOLLOWING LANDLORD’S TERMINATION OF THIS LEASE OR
THE RIGHT OF TENANT TO POSSESSION OF THE PREMISES PURSUANT TO THE TERMS OF THIS
LEASE AND ON ANY CLAIM FOR DELINQUENT RENT WHICH LANDLORD MAY JOIN IN ITS
LAWSUIT TO RECOVER POSSESSION.


 


B.                                     If Landlord exercises either of the remedies
provided in Sections 19A(2) or 19A(3), Tenant shall surrender possession
and vacate the Premises and immediately deliver possession thereof to Landlord,
and Landlord may re-enter and take complete and peaceful possession of the
Premises, with process of law, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary to the extent allowed
by law, without being deemed guilty in any manner of trespass, eviction or
forcible entry and detainer and without relinquishing Landlord’s right to Rent
or any other right given to Landlord hereunder or by operation of law.


 


C.                                     If Landlord terminates the right of Tenant to
possession of the Premises without terminating this Lease, Landlord shall have
the right to immediate recovery of all amounts then due hereunder. Such
termination of possession shall not release Tenant, in whole or in part, from
Tenant’s obligation to pay Rent hereunder for the full Lease Term, and Landlord
shall have the right, from time to time, to recover from Tenant, and Tenant
shall remain liable for, all Rent accruing as it becomes due under this Lease
during the period from the date of such notice of termination of possession to
the stated end of the Lease Term. In any such case, Landlord shall make
reasonable efforts, in accordance with Section 19E hereof, to relet the
Premises. In attempting to relet the Premises, Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extent reasonably deemed by Landlord necessary or desirable, and Tenant upon
demand shall pay the reasonable cost of all of the foregoing together with
Landlord’s reasonable expenses of reletting. The rents from any such reletting
shall be applied first to the payment of the expenses of reentry, redecoration,
repair and alterations and the expenses of reletting (including reasonable
attorneys’ fees and brokers’ fees and commissions) and second to the payment of
Rent herein provided to be paid by Tenant. Any excess or residue shall operate
only as an offsetting credit against the amount of Rent due and owing as the
same thereafter becomes due and payable hereunder.


 


D.                                    If this Lease is terminated by Landlord, Landlord
shall be entitled to recover from Tenant all Rent accrued and unpaid for the
period up to and including such termination date, as well as all other
additional sums payable by Tenant, or for which Tenant is liable or for which
Tenant has agreed to indemnify Landlord, which may be then owing and unpaid,
and all reasonable costs and expenses, including court costs and reasonable
attorneys’ fees incurred by Landlord in the enforcement of its rights and
remedies hereunder. In addition, Landlord shall be entitled to recover as
damages for loss of the bargain and not as a penalty (1) the unamortized
portion of any concessions offered by Landlord to Tenant in connection with this
Lease, including without limitation


 


16

















 


Landlord’s contribution to the cost of tenant improvements, if any,
installed by either Landlord or Tenant pursuant to this Lease or any work
letter in connection with this Lease, (2) the aggregate sum which at the
time of such termination represents the excess, if any, of the present value of
the aggregate Rent which would have been payable after the termination date had
this Lease not been terminated, including, without limitation, the amount
projected by Landlord to represent Additional Rent for the remainder of the
Lease Term, over the then present value of the then aggregate fair rent value
of the Premises for the balance of the Lease Term, such present worth to be
computed in each case on the basis of a ten percent (10%) per annum discount
from the respective dates upon which such Rent would have been payable
hereunder had this Lease not been terminated, and (3) any damages in
addition thereto, including without limitation reasonable attorneys’ fees and
court costs, which Landlord sustains as a result of the breach of any of the
covenants of this Lease other than for the payment of Rent.


 


E.                                      Landlord shall use commercially reasonable efforts
to mitigate any damages resulting from an Event of Default by Tenant under this
Lease. Landlord’s obligation to mitigate damages after an Event of Default by
Tenant under this Lease shall be satisfied in full if Landlord undertakes to
lease the Premises to another tenant (a “Substitute Tenant”)
in accordance with the following criteria: 
(1) Landlord shall have no obligation to solicit or entertain
negotiations with any other prospective tenants for the Premises until Landlord
obtains full and complete possession of the Premises including, without
limitation, the final and unappealable legal right to relet the Premises free
of any claim of Tenant; (2) Landlord shall not be obligated to lease or
show the Premises, on a priority basis, or offer the Premises to a prospective
tenant when other premises in the Building suitable for that prospective tenant’s
use are (or soon will be) available; (3) Landlord shall not be obligated
to lease the Premises to a Substitute Tenant for a rent less than the current
fair market rent then prevailing for similar uses in comparable buildings in
the same market area as the Building, nor shall Landlord be obligated to enter
into a new lease under other terms and conditions that are unacceptable to
Landlord under Landlord’s then current leasing policies for comparable space in
the Building; (4) Landlord shall not be obligated to enter into a lease
with a Substitute Tenant whose use would: (i) violate any restriction,
covenant, or requirement contained in the lease of another tenant of the Building;
(ii) adversely affect the reputation of the Building; or (iii) be incompatible
with the operation of the Building; and (5) Landlord shall not be
obligated to enter into a lease with any proposed Substitute Tenant which does
not have, in Landlord’s reasonable opinion, sufficient financial resources to
operate the Premises in a first class manner and to fulfill all of the
obligations in connection with the lease thereof as and when the same become
due.


 


F.                                      The receipt by Landlord of less than the full Rent
due shall not be construed to be other than a payment on account of Rent then
due, nor shall any statement on Tenant’s check or any letter accompanying
Tenant’s check be deemed an accord and satisfaction, and Landlord may accept
such payment without prejudice to Landlord’s right to recover the balance of
the Rent due or to pursue any other remedies provided in this Lease. The
acceptance by Landlord of Rent hereunder shall not be construed to be a waiver
of any breach by Tenant of any term, covenant or condition of this Lease. No
act or omission by Landlord or its employees or agents during the Lease Term
shall be deemed an acceptance


 


17

















 


of a surrender of the Premises, and no agreement to accept such a
surrender shall be valid unless in writing and signed by Landlord.


 


G.                                     In the event of any litigation between Tenant and
Landlord to enforce or interpret any provision of this Lease or to enforce any
right of either party hereto, the unsuccessful party to such litigation shall
pay to the successful party all costs and expenses, including reasonable
attorney’s fees, incurred therein. In addition, Landlord shall be entitled to
recover from Tenant any and all reasonable fees (including, without limitation,
reasonable attorney’s fees) incurred in or related to bankruptcy proceedings
related to Tenant, including reasonable fees (including, without limitation,
reasonable attorney’s fees) incurred in or related to issues and events that
are peculiar to bankruptcy.


 


20.                                 Landlord’s Default. In no event shall Landlord be in default unless
notice thereof has been given to Landlord (and all mortgagees of which Tenant
has notice) and Landlord (or any such mortgagee at its sole discretion) fails
to perform within 30 days (provided, however, that such 30 day period shall be
reasonably extended if such performance begins within such period and
thereafter is diligently pursued, or if such mortgagee notifies Tenant within
such period that it intends to cure on behalf of Landlord and thereafter begins
curing within such period, or if later within 30 days after acquiring
possession of the Property if the cure requires the mortgagee to obtain
possession of the Property, and diligently pursues curing with reasonable
promptness). Any mortgagee notice and cure periods set forth in any
subordination agreements then in effect under Section 25 shall control to
the extent the same differ from the foregoing.


 


21.                                 No Waiver. Failure of either party to declare any default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of such default, nor
shall it constitute an estoppel against the non-defaulting party, but the
non-defaulting party shall have the right to declare the default at any time
and take such action as is lawful or authorized under this Lease. Failure by
non-defaulting party to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default.


 


22.                                 Peaceful Enjoyment. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms hereof, provided that Tenant
pays the Rent and other sums herein recited to be paid by Tenant and timely
performs all of Tenant’s covenants and agreements herein contained.


 


23.                                 Intentionally Omitted.


 


24.                                 Holding Over. If Tenant continues to occupy the Premises after
the expiration or other termination of this Lease or the termination of Tenant’s
right of possession, such occupancy shall be that of a tenancy at sufferance. Tenant
shall, throughout the entire holdover period, be subject to all the terms and
provisions of this Lease and shall pay for its use and occupancy an amount (on
a per month basis without reduction for any partial months during any such
holdover) equal to one hundred seventy-five percent (175%) of the Base Rent and
Additional Rent due under this Lease for the last full month of the term hereof
during such holdover. No holding over by Tenant or payments of money by Tenant to
Landlord after the expiration of the Lease Term shall


 


18

















 


be construed to extend the Lease
Term or prevent Landlord from recovery of immediate possession of the Premises
by summary proceedings or otherwise. Tenant shall also be liable to Landlord
for all direct and consequential damages which Landlord may suffer by reason of
any holding over by Tenant.


 


25.                                 Subordination to Mortgage;
Estoppel Certificate. Tenant
accepts this Lease subject and subordinate to any ground lease, mortgage, deed
of trust or other lien presently existing or hereafter arising upon the
Premises, or upon the Building or the Property and to any renewals,
modifications, refinancings and extensions thereof, but Tenant agrees that any such
mortgagee shall have the right at any time to subordinate such mortgage, deed
of trust or other lien to this Lease on such terms and subject to such
conditions as such mortgagee may deem appropriate in its discretion. The
provisions of the foregoing sentence shall be self-operative and no further
instrument of subordination shall be required. However, Landlord is hereby
irrevocably vested with full power and authority to subordinate this Lease to
any mortgage, deed of trust or other lien now existing or hereafter placed upon
the Premises, or the Building or the Property and Tenant agrees within ten (10)
days after written demand to execute such further instruments subordinating
this Lease or attorning to the holder of any such liens as Landlord may request.
If Tenant fails to execute any subordination or other agreement required by
this Section promptly as requested, Tenant hereby irrevocably constitutes
Landlord as its attorney-in-fact to execute such instrument in Tenant’s name,
place and stead, it being agreed that such power is coupled with an interest in
Landlord and is accordingly irrevocable. Tenant agrees that it shall from
time-to-time furnish within ten (10) days after so requested by Landlord, a
certificate signed by Tenant certifying as to such matters as may be reasonably
requested by Landlord, and Tenant’s failure to furnish such certificate within
the aforesaid 10-day period shall be deemed to constitute Tenant’s
certification of the matters set forth in the certificate as furnished to
Tenant. Any such certificate may be relied upon by any ground lessor,
prospective purchaser, secured party, mortgagee or any beneficiary under any
mortgage, deed of trust on the Building or the Property or any part thereof or
interest of Landlord therein.


 


26.                                 Notice. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or mailed by Registered or Certified mail, postage prepaid,
or sent by a nationally recognized overnight delivery service to the party who
is to receive such notice at the address specified in Section 1 of this
Lease (and, if no address is listed for Tenant, notices to Tenant shall be
delivered to the Premises). When so mailed, the notice shall be deemed to have
been given two (2) Business Days after the date it was mailed. When sent by
overnight delivery service, the notice shall be deemed to have been given on
the next Business Day after deposit with such overnight delivery service. The
address specified in Section 1 of this Lease may be changed from time to
time by giving written notice thereof to the other party.


 


27.                                 Surrender of Premises. Upon the termination of the Lease Term, or upon
any termination of Tenant’s right to possession of the Premises, Tenant will at
once surrender possession of the Premises to Landlord in substantially the same
condition and repair as existed on the Commencement Date (or such better
condition as it may be put in thereafter by Tenant), ordinary wear and tear
excepted. Tenant shall surrender to Landlord all keys to the Premises and


 


19

















 


make known to Landlord the
combination of all combination locks which Tenant is required to leave on the
Premises.


 


28.                                 Rights Reserved to Landlord. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to
Tenant for damage or injury to property, person or business and without
affecting an eviction or disturbance of Tenant’s use or possession or giving
rise to any claim for setoff or abatement of rent or affecting any of Tenant’s
obligations under this Lease: (1) upon thirty (30) days’ prior notice to
change the name or street address of the Building; (2) to install and
maintain signs on the exterior and interior of the Building; (3) to
designate and approve window coverings to present a uniform exterior
appearance; (4) to retain at all times and to use in appropriate
instances, pass keys to all locks within and to the Premises; (5) to approve
the weight, size, or location of heavy equipment, or articles within the
Premises; (6) to change the arrangement and location of entrances of
passageways, doors and doorways, corridors, elevators, stairs, toilets and
public parts of the Building or Property; (7) to regulate access to
telephone, electrical and other utility closets in the Building and to require
use of designated contractors for any work involving access to the same;
(8) if Tenant has vacated the Premises during the last six (6) months of
the Lease Term, to perform additions, alterations and improvements to the
Premises in connection with a reletting or anticipated reletting thereof
without being responsible or liable for the value or preservation of any then
existing improvements to the Premises and without effectuating a surrender or
entitling Tenant to any abatement of Rent; (9) to grant to anyone the
exclusive right to conduct any business or undertaking in the Building provided
Landlord’s exercise of its rights under this clause (9), shall not be
deemed to prohibit Tenant from the operation of its business in the Premises;
(10) to enter the Premises to inspect the same or to show the Premises to
prospective purchasers, mortgagees, tenants (during the last twelve months of
the Lease Term) or insurers, or to clean or make repairs, alterations or
additions thereto, provided that, except for any entry in an emergency
situation or to provide normal cleaning and janitorial service, Landlord shall
provide Tenant with reasonable prior notice of any entry into the Premises; and
(11) to temporarily close the Premises or the Building to perform repairs,
alterations or additions in the Premises or the Building. In exercising its
rights under this Section, Landlord shall make commercially reasonable efforts
to avoid unreasonably interfering with Tenant’s business operations in the
Premises.


 


29.                                 Miscellaneous.


 


A.                                   If any term or provision of this Lease, or the
application thereof, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision, shall
not be affected thereby, and each term and provision of this Lease shall be
valid and enforced to the fullest extent permitted by law.


 


B.                                     Tenant agrees not to record this Lease or any short form
or memorandum hereof.


 


C.                                     This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the state in which the Building is located.


 


20

















 


D.                                    The term “Force Majeure”
shall mean strikes, riots, acts of God, shortages of labor or materials, war,
acts of terrorism, governmental laws, regulations or restrictions, or any other
cause whatsoever beyond the control of Landlord or Tenant, as the case may be.
Whenever a period of time is herein prescribed for the taking of any action by
Landlord or Tenant  (other than the
payment of Rent and all other such sums of money as shall become due hereunder),
such party shall not be liable or responsible for, and there shall be excluded
from the computation of such period of time, any delays due to events of Force
Majeure.


 


E.                                      Except as expressly otherwise herein provided, with
respect to all required acts of Tenant, time is of the essence of this Lease.


 


F.                                      Landlord shall have the right to transfer and
assign, in whole or in part, all of its rights and obligations hereunder and in
the Building and Property referred to herein, and in such event and upon
such  transfer Landlord shall be released
from any further obligations hereunder, and Tenant agrees to look solely to
such successor in interest of Landlord for the performance of such obligations.


 


G.                                     Tenant hereby represents to Landlord that it has
dealt directly with and only with the Broker as a broker in connection with
this Lease. Landlord and Tenant hereby indemnify and hold each other harmless
against any loss, claim, expense or liability with respect to any commissions
or brokerage fees claimed by any broker or finder other than the Broker on account
of the execution and/or renewal of this Lease due to any action of the
indemnifying party. Landlord shall be responsible for any commission or fee due
to the Broker.


 


H.                                    If there is more than one Tenant, or if Tenant as
such is comprised of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of all such parties.
All notices, payments, and agreements given or made by, with or to any one of
such persons or entities shall be deemed to have been given or made by, with or
to all of them.


 


I.                                         Tenant acknowledges that the financial capability of
Tenant to perform its obligations hereunder is material to Landlord and that
Landlord would not enter into this Lease but for its belief, based on its
review of Tenant’s financial statements, that Tenant is capable of performing
such financial obligations. Tenant hereby represents, warrants and certifies to
Landlord that its financial statements previously furnished to Landlord were at
the time given true and correct in all material respects.


 


J.                                        Notwithstanding anything to the contrary contained
in this Lease, the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant’s obligations accruing prior to
the expiration of the Lease Term, and such obligations shall survive any such
expiration or other termination of the Lease Term.


 


K.                                    Landlord and Tenant understand, agree and
acknowledge that (i) this Lease has been freely negotiated by both
parties; and (ii) in any controversy, dispute or contest


 


21

















 


over the meaning, interpretation, validity, or enforceability of this
Lease or any of its terms or conditions, there shall be no inference,
presumption, or conclusion drawn whatsoever against either party by virtue of
that party having drafted this Lease or any portion thereof.


 


L.                                      The headings and titles to the paragraphs of this
Lease are for convenience only and shall have no affect upon the construction
or interpretation of any part hereof. The term “including” shall be deemed to
mean “including without limitation”.


 


M.                                 The additional provisions, if any, attached hereto
as Exhibit E are hereby incorporated by
reference.


 


30.                                 No Offer. Landlord has delivered a copy of this Lease to
Tenant for Tenant’s review only, and the delivery hereof does not constitute an
offer to Tenant or an option. This Lease shall not be effective until an
original of this Lease executed by both Landlord and Tenant and an original
Guaranty, if applicable, executed by each Guarantor is delivered to and
accepted by Landlord, and a signed original of this Lease is returned to
Tenant.


 


31.                                 Entire Agreement. This Lease, including the Exhibits attached
hereto, constitutes the entire agreement between the parties hereto with
respect to the subject matter of this Lease and supersedes all prior agreements
and understandings between the parties related to the Premises, including all
lease proposals, letters of intent and similar documents. Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and
Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except to the extent that
the same are expressly set forth in this Lease. This Lease may be modified only
by a written agreement signed by Landlord and Tenant. Landlord and Tenant
expressly agree that there are and shall be no implied warranties of
merchantability, habitability, suitability, fitness for a particular purpose or
of any other kind arising out of this Lease, all of which are hereby waived by
Tenant, and that there are no warranties which extend beyond those expressly
set forth in this Lease.


 


32.                                 Limitation of Liability. Any liability of Landlord under this Lease shall
be limited solely to its interest in the Property, and in no event shall any
personal liability be asserted against Landlord, its members, or their
respective members, partners, shareholders, officers, directors, agents or employees,
in connection with this Lease nor shall any recourse be had to any other
property or assets of Landlord, its members, or their respective members,
partners, shareholders, officers, directors, agents or employees. Except as
provided in Section 24 above, in no event shall Landlord or Tenant be liable to
the other for consequential or punitive damages as a result of a breach or
default under or otherwise in connection with this Lease. Notwithstanding the
foregoing, in no event shall any damages or remedies expressly provided for in
this Lease be deemed consequential or punitive damages.


 


[SIGNATURE
PAGE FOLLOWS]


 


22
















 


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


 


	
  WITNESS/ATTEST

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TRANSWESTERN FEDERAL, L.L.C.,
  a

  
	
   

  	
   

  	
  Delaware limited liability company

  
	
  By:

  	
  /s/ Tracey Simmons

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Tracey
  Simmons

  	
   

  	
   

  	
  By:

  	
  Transwestern Investment

  
	
   

  	
  Title:

  	
   Admin.
  Associate

  	
   

  	
   

  	
   

  	
  Company, L.L.C., its agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Joseph P. Concepcion

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
    Joseph P. Concepcion

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
    Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS/ATTEST

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ENERNOC, INC., a Delaware
  corporation

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ Juanita Ortiz

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
    Juanita Ortiz

  	
   

  	
   

  	
  By:

  	
    /s/ Neal C. Isaacson

  	
   

  
	
   

  	
  Title:

  	
    General Manager

  	
   

  	
   

  	
   

  	
  Name:

  	
    Neal C. Isaacson

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
    CFO

  	
   

  
																



 


23

















 


EXHIBIT A


 


OUTLINE AND LOCATION OF
PREMISES


 





 


A-1

















 


EXHIBIT B


 


RULES AND REGULATIONS


 


The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking areas associated therewith (if any),
the Property and the appurtenances thereto:


 


1.             Sidewalks, entrances, passageways,
courts, corridors, vestibules, halls, elevators and stairways in and about the
Building shall not be obstructed nor shall objects be placed against glass
partitions, doors or windows which would be unsightly from the Building’s
corridors or from the exterior of the Building.


 


2.             Plumbing, fixtures and appliances
shall be used for only the purpose for which they were designed and no foreign
substance of any kind whatsoever shall be thrown or placed therein. Damage
resulting to any such fixtures or appliances from misuse by Tenant or its
agents, employees or invitees, shall be paid for by Tenant and Landlord shall
not in any case be responsible therefore, subject to the terms of the Lease.


 


3.             Any sign, lettering, picture,
notice or advertisement installed within the Premises which is visible from the
public corridors within the Building shall be installed in such manner, and be
of such character and style, as Landlord shall approve, in writing in its
reasonable discretion. No sign, lettering, picture, notice or advertisement
shall be placed on any outside window or door or in a position to be visible
from outside the Building. No nails, hooks or screws (except for customary
artwork or wall hangings) shall be driven or inserted into any part of the
Premises or Building except by Building maintenance personnel, nor shall any
part of the Building be defaced or damaged by Tenant.


 


4.             Tenant shall not place any
additional lock or locks on any door in the Premises or Building without
Landlord’s prior written consent, which shall not be unreasonably withheld. Landlord
acknowledges that Tenant shall have the right to install a key card access
system serving the Premises, subject to the terms and conditions of Section 9B
of the Lease. A reasonable number of keys to the locks on the doors in the
Premises shall be furnished by Landlord to Tenant at the cost of Tenant, and
Tenant shall not have any duplicate keys made. All keys and passes shall be
returned to Landlord at the expiration or earlier termination of the Lease.


 


5.             Tenant shall refer all contractors,
contractors’ representatives and installation technicians to Landlord for
Landlord’s supervision, approval and control before the performance of any
contractual services, such approval not to be unreasonably withheld. This
provision shall apply to all work performed in the Building including, but not
limited to installation of telephones, telegraph equipment, electrical devices
and attachments, doors, entranceways, and any and all installations of every
nature affecting floors, walls, woodwork, window trim, ceilings, equipment and
any other physical portion of the Building. Tenant shall not waste electricity,
water or air conditioning. All controls shall be adjusted only by Building
personnel.


 


B-1

















 


6.             Movement in or out of the Building
of furniture or office equipment, or dispatch or receipt by Tenant of any merchandise
or materials which require the use of elevators, stairways, lobby areas, or
loading dock areas, shall be restricted to hours reasonably designated by
Landlord. Tenant must seek Landlord’s prior approval by providing in writing a
detailed listing of such activity. If approved by Landlord, such activity shall
be under the supervision of Landlord and performed in the manner reasonably
stated by Landlord (requiring no material additional cost to Tenant). Landlord
may reasonably prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to articles
moved and injury to persons resulting from such activity. If any equipment,
property and/or personnel of Landlord or of any other tenant is damaged or
injured as a result of or in connection with such activity, Tenant shall be
solely liable for any and all damage or loss resulting therefrom, subject to
the terms of the Lease.


 


7.             All corridor doors, when not in
use, shall remain closed. Tenant shall cause all doors to the Premises to be
closed and securely locked before leaving the Building at the end of the day.


 


8.             Tenant shall keep all electrical
and mechanical apparatus owned by Tenant free of vibration, noise and airwaves
which may be transmitted beyond the Premises.


 


9.             Canvassing, soliciting and peddling
in or about the Building or Property is prohibited. Tenant shall cooperate and
use its best efforts to prevent the same.


 


10.          Tenant shall not use the Premises in
any manner which would overload the standard heating, ventilating or air
conditioning systems of the Building.


 


11.          Tenant shall not utilize any equipment
or apparatus in such manner as to create any magnetic fields or waves which
adversely affect or interfere with the operation of any systems or equipment in
the Building or Property.


 


12.          Bicycles and other vehicles are not
permitted inside or on the walkways outside the Building, except in those areas
specifically designated by Landlord for such purposes.


 


13.          Tenant shall not operate or permit to
be operated on the Premises any coin or token operated vending machine or
similar device (including, without limitation, telephones, lockers, toilets,
scales, amusements devices and machines for sale of beverages, foods, candy,
cigarettes or other goods), except for those vending machines or similar
devices which are for the sole and exclusive use of Tenant’s employees, and
then only if such operation does not violate the lease of any other tenant in
the Building.


 


14.          If necessary, Tenant shall utilize the
termite and pest extermination service designated by Landlord to control
termites and pests in the Premises. Tenant shall bear the cost and expense of
such extermination services.


 


15.          Tenant shall not open or permit to be
opened any window in the Premises. This provision shall not be construed as
limiting access of Tenant to any balcony adjoining the Premises.


 


B-2

















 


16.          To the extent permitted by law, Tenant
shall not permit picketing or other union activity involving its employees or
agents in the Building or on the Property, except in those locations and
subject to time and other constraints as to which Landlord may give its prior
written consent, which consent may be withheld in Landlord’ sole discretion.


 


17.          Subject to the terms and conditions of
Section 3 of the Lease, Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, with respect to
the Premises and Tenant’s respective use or occupancy thereof. Tenant shall not
make or permit any use of the Premises, the Building or the Property,
respectively, which is directly or indirectly forbidden by law, ordinance, governmental
regulation or order, or direction of applicable public authority, or which may
be dangerous to person or property.


 


18.          Tenant shall not use or occupy the
Premises in any manner or for any purpose which would injure the reputation or
impair the present or future value of the Premises, the Building or the
Property; without limiting the foregoing, Tenant shall not use or permit the
Premises or any portion thereof to be used for lodging, sleeping or for any
illegal purpose.


 


19.          All deliveries to or from the Premises
shall be made only at such reasonable times, in the areas and through the
entrances and exits designated for such purposes by Landlord. Tenant shall not
permit the process of receiving deliveries to or from the Premises outside of
said areas or in a manner which may interfere with the use by any other tenant
of its premises or any common areas, any pedestrian use of such area, or any
use which is inconsistent with good business practice.


 


20.          Tenant shall carry out Tenant’s
permitted repair, maintenance, alterations, and improvements in the Premises
only during times agreed to in advance by Landlord and in a manner which will
not unreasonably interfere with the rights of other tenants in the Building.


 


21.          Landlord may from time to time adopt
appropriate systems and procedures for the security or safety of the Building,
its occupants, entry and use, or its contents. Tenant, Tenant’s agents,
employees, contractors, guests and invitees shall comply with Landlord’s
reasonable requirements thereto.


 


22.          Landlord shall have the right to
prohibit the use of the name of the Building or any other publicity by Tenant
that in Landlord’s opinion may tend to impair the reputation of the Building or
its desirability for Landlord or its other tenants. Upon written notice from
Landlord, Tenant will refrain from and/or discontinue such publicity
immediately.


 


23.          Neither Tenant nor any of its
employees, agents, contractors, invitees or customers shall smoke in any area
designated by Landlord (whether through the posting of a “no smoking” sign or
otherwise) as a “no smoking” area. In no event shall Tenant or any of its
employees, agents, contractors, invitees or customers smoke in the hallways or
bathrooms of the Building or at the entrances to the Building. Landlord
reserves the right to designate, from time to time, additional areas of the
Building and the Property as “no smoking” areas and to designate the entire
Building and the Property as a “no smoking” area.


 


B-3

















 


[END OF
EXHIBIT B]


 


B-4

















 


EXHIBIT C


 


COMMENCEMENT LETTER


 


Date                          


 


Tenant                      


 


Address                      


 


                                   


Re:                             Commencement
Letter with respect to that certain Lease dated                                                        
by and between
                               ,
as Landlord, and                                ,
a(n)                    ,
as Tenant, for a Rentable Area in the Premises of
                    
square feet on the                 
floor of the Building located at                                  ,
                 ,
           .


 


Dear                       :


 


In accordance with
the terms and conditions of the above referenced Lease, Tenant hereby accepts
possession of the Premises and agrees as follows:


 


The Commencement
Date of the Lease is                                                   ;


 


The Expiration
Date of the Lease is
                                                  .


 


Landlord agrees to
complete the work in the Premises identified in the punchlist jointly prepared
by Landlord and Tenant dated                          .
Tenant accepts possession of the Premises subject to Landlord’s obligation to
complete the work identified on the punchlist.


 


Please acknowledge
your acceptance of possession and agreement to the terms set forth above by
signing all three (3) copies of this Commencement Letter in the space provided
and returning two (2) fully executed copies of the same to my attention.


 


Sincerely,


 


XXXXXXXXX


Property Manager


 


Agreed and
Accepted:


 


	
  TENANT:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


C-1