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OFFICE LEASE AGREEMENT

Office Lease Agreement

OFFICE LEASE AGREEMENT | Document Parties: AMERICAN TELECONFERENCING SERVICES, LTD | CORPORATE RIDGE, LLC You are currently viewing:
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AMERICAN TELECONFERENCING SERVICES, LTD | CORPORATE RIDGE, LLC

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Title: OFFICE LEASE AGREEMENT
Date: 3/2/2009
Industry: Communications Services     Law Firm: Blackwell Sanders     Sector: Services

OFFICE LEASE AGREEMENT, Parties: american teleconferencing services  ltd , corporate ridge  llc
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EXHIBIT 10.85

OFFICE LEASE AGREEMENT

     This Office Lease Agreement (the “ Lease ”) is made and entered into as of the 29 th day of September, 2008 (the “ Effective Date ”), by and between CORPORATE RIDGE, L.L.C., a Delaware limited liability company, as Landlord, and AMERICAN TELECONFERENCING SERVICES, LTD. d/b/a PREMIERE GLOBAL SERVICES, as Tenant.

     The parties hereto acknowledge that the City of Olathe, Kansas (the “ City ”) is the fee owner of the Land and Building in connection with the issuance of certain industrial revenue bonds (“ IRBs ”) in an amount not to exceed $14,300,000.00 to accomplish tax abatement for this project. In connection with the issuance of the IRBs, Landlord leases the Land and Building from the City pursuant to a certain lease agreement (the “ Prime Lease ”) in connection therewith. Accordingly, this Lease will be a sublease and will be subject to the terms and conditions of the Prime Lease and other documents associated with the IRBs, and the parties hereto shall execute such documentation reasonably thereunder.

BASIC TERMS

     The following Basic Terms are applied under and governed by the particular section(s) in this Lease pertaining to the following information:

1.

Premises: (See Section 1.1)

The entire Building known as Corporate Ridge I located within Corporate Ridge Office Park in the City of Olathe, Johnson County, Kansas, consisting of 88,050 rentable square feet. The Premises is legally described on EXHIBIT “B” and depicted on the preliminary site plan attached hereto as EXHIBIT “C.”

 

2.

Commencement Date:

December 1, 2008

 

3.

Expiration Date:

120 months following the Commencement Date

 

4.

Lease Term:

120 months (see Section 1.2)

 

5.

Renewal Term:

Two (2) options of five (5) years each at then prevailing market rate (see Section 1.4)

 

6.

Basic Rent: (See Section 2.1)

 

 

Months

Annual Basic Rent

Monthly Installments

 

(per rentable square foot)

 

1-12

 

 

(December 1, 2008 – November 30, 2009)

$23.14

$169,789.75

 

13-19

 

 

(December 1, 2009 – June 30, 2010)

$0.00

$0.00

 

20-60

 

 

(July 1, 2010 - November 30, 2013)

$23.14

$169,789.75

 

61-120

 

 

(December 1, 2013 - November 30, 2018)

$24.77

$181,749.88

 

7.

Initial Tenant’s Share of Excess
Expenses Percentage:

100%

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8.

Expense Stop:

$6.80 per rentable square foot.

 

9.

Allowances:

Tenant shall receive an allowance in the amount of $42.76 per rentable square foot of the Premises as its Improvement Allowance, plus any mutually-agreed upon credits relating to lobby finish and Building scope changes.

 

10.

Current Property Manager/Rent
Payment Address:

Corporate Ridge, L.L.C.
c/o Opus Northwest, L.L.C.
460 Nichols Road, Suite 300
Kansas City, Missouri 64112
Attn: Mr. Doug Grossenbacher

 

11.

Address of Landlord for Notices:

Corporate Ridge, L.L.C.
c/o Opus Northwest, L.L.C.
10350 Bren Road West
Minnetonka, Minnesota 55343
Attn: Mr. John Solberg

 

 

 

 

With a copy to:

Corporate Ridge, L.L.C.
10350 Bren Road West
Minnetonka, Minnesota 55343
Attn: Legal Department

 

 

 

 

With a copy to:

Corporate Ridge, L.L.C.
c/o Opus Northwest, L.L.C.
460 Nichols Road, Suite 300
Kansas City, Missouri 64112
Attn: Mr. David M. Harrison, Vice President

 

 

With a copy to:

Property Manager at the address described in Section 10 of the Basic Terms.

 

12.

Address of Tenant for Notices:

Premiere Global Services, Inc.
3280 Peachtree Road; Suite 1000
Atlanta, GA 30305
Attention: Vice President – Corporate Real Estate

 

 

 

 

With a copy to:

Premiere Global Services, Inc.
3280 Peachtree Road; Suite 1000
Atlanta, GA 30305
Attention: Legal Services Department

 

 

 

Husch Blackwell Sanders LLP
4801 Main Street, Suite 1000
Kansas City, MO 64112
Attn: John Crossley, Esq.

 

13.

Broker(s): (See Section 18.11)

Landlord’s Broker: Colliers Turley Martin Tucker
Tenant’s Broker: Kessinger/Hunter & Company, L.C.

 

14.

Guarantor:

Premiere Global Services, Inc., a Georgia corporation

 

15.

Security Deposit:

Not Applicable

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16.

Expansion Rights:

See EXHIBIT “I” attached hereto.

 

17.

Exhibits:

Exhibit “A” - Definitions
Exhibit “B” - Legal Description of the Land Exhibit
“C” - Preliminary Site Plan Exhibit
“D” - Commencement Date Memorandum Exhibit
“E” - Building Rules Exhibit
“F” - Landlord’s Improvements Exhibit
“F-1” - Landlord’s Outline Plans and Specifications Exhibit
“G” - Lease Guaranty Exhibit
“H” - Tenant’s Improvements Exhibit
“H-1” - Tenant Improvement Guidelines Exhibit
“I” - Expansion Rights Exhibit
“J” - Form of Standby Generator License Exhibit
“K” - Form of Subordination, Non-Disturbance and Attornment Agreement

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DEFINITIONS

     Capitalized terms used in this Lease have the meanings ascribed to them on the attached EXHIBIT “A.”

     ARTICLE 1. LEASE OF PREMISES, LEASE TERM AND ACCEPTANCE OF PREMISES

      1.1 Premises and Landlord’s Improvements . In consideration of the mutual covenants this Lease describes and other good and valuable consideration, Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord, upon and subject to the terms, covenants and conditions set forth in this Lease, but subject to the Prime Lease. The parties hereto acknowledge and agree that the Lease Guaranty from the Guarantor (as stated in the Basic Terms) is material to Landlord’s agreement to enter into this Lease and must remain in full force and effect during the entire Lease Term. The rentable area of the Premises is the rentable area specified in the Basic Terms. Landlord will provide, at no cost to Tenant, the Landlord’s Improvements (as defined in EXHIBIT “A” below). Further, Tenant shall have two (2) five-year renewal options in accordance with Section 1.6 below.

     1.2 Term, Delivery and Commencement.

           1.2.1. Landlord will use best efforts to substantially complete the Landlord’s Improvements listed on the Outline Plans and Specifications attached hereto as EXHIBIT “F-1” , the additional Landlord’s Improvements listed on EXHIBIT “F” and the Tenant’s Improvements listed on EXHIBIT “G” on or before December 1, 2008, but subject to Force Majeure and Tenant Delay. Tenant shall be entitled to install Tenant’s furniture, fixtures and equipment after the Commencement Date. Any delay in the substantial completion of the Landlord’s Improvements and/or the Tenant’s Improvements shall not cause a delay in the Commencement Date, which is fixed at December 1, 2008. If the Landlord’s Improvements and/or the Tenant’s Improvements are not substantially completed by the Commencement Date, then Landlord shall use best efforts to substantially complete the same immediately thereafter.

           1.2.2. Landlord will deliver to Tenant (within a reasonable time after the Commencement Date) the Commencement Date Memorandum with all blanks relating to dates completed with dates Landlord derives in accordance with this Lease. Tenant, within twenty (20) days after receipt from Landlord, will execute and deliver to Landlord the Commencement Date Memorandum.

      1.3 Acceptance of Premises . Except for the Warranty Terms and as otherwise set forth in this Lease, Tenant acknowledges that neither Landlord nor any agent, contractor or employee of Landlord has made any representation or warranty of any kind with respect to the Premises, the Building or the Property, specifically including, but not limited to, any representation or warranty of suitability or fitness of the Premises, Building or the Property for any particular purpose. Other than for Landlord’s maintenance or repair obligations under Section 7 of this Lease, Tenant’s occupancy of the Premises establishes Tenant’s acceptance of the Premises, the Building and the Property in an “ AS IS - WHERE IS ” condition, subject to the Warranty Terms and other terms and conditions set forth in Article 17 below. Tenant must strictly comply with the provisions of this Section 1.3 and Article 17 below. Based solely on the temporary certificate of occupancy or permanent certificate of occupancy to be issued by the City of Olathe, Kansas (the “ City ”) on or about the Commencement Date, Landlord represents and warrants that, as of the date that the permit was issued for the Building shell based upon the final, approved development plan (and as interpreted by the City), the Premises shall comply with all applicable Laws (as hereinafter defined), including, without limitation the Americans With Disabilities Act, other than zoning ordinances and other Laws specific to Tenant’s use of the Premises.

     1.4 Extension of Term .

           1.4.1. Provided that as of the time of the giving of the First Renewal Notice and the Commencement Date of the First Renewal Term (as those terms are hereinafter defined), (x) Tenant or a Related Assignee is the Tenant originally named herein, (y) Tenant or its Related Assignee leases the entire Building and the Lease Guaranty from Guarantor remains in full force and effect, and (z) no uncured Event of Default exists, subject to available notice and cure rights, then Tenant shall have the right to extend the Lease Term for an additional term of five (5) years (such additional term is hereinafter called the “ First Renewal Term ”) commencing on the day

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following the expiration of the Lease Term (hereinafter referred to as the “ Commencement Date of the First Renewal Term ”). Tenant shall give Landlord written notice (hereinafter called the “ First Renewal Notice ”) of its election to extend the term of the Lease Term at least twelve (12) months prior to the scheduled expiration date of the Lease Term.

           1.4.2. Provided that as of the time of the giving of the Second Renewal Notice and the Commencement Date of the Second Renewal Term (as those terms are hereinafter defined) (x) Tenant or a Related Assignee is the Tenant originally named herein, (y) Tenant or its Related Assignee leases the entire Building and the Lease Guaranty from Guarantor remains in full force and effect, and (z) no uncured Event of Default exists, subject to available notice and cure rights, and provided Tenant has exercised its option for the First Renewal Term, then Tenant shall have the right to extend the Lease Term for an additional term of five (5) years (such additional term is hereinafter called the “ Second Renewal Term ”) commencing on the day following the expiration of the First Renewal Term (hereinafter referred to as the “ Commencement Date of the Second Renewal Term ”). Tenant shall give Landlord written notice (hereinafter called the “ Second Renewal Notice ”) of its election to extend the term of the Lease Term at least twelve (12) months prior to the scheduled expiration date of the First Renewal Term. The First Renewal Term and the Second Renewal Term shall be collectively referred to hereinafter as the “ Renewal Term .” The First Renewal Notice and the Second Renewal Notice are collectively referred to herein as the “Renewal Notice.”

           1.4.3. The Basic Rent payable by Tenant to Landlord during the First Renewal Term and the Second Renewal Term shall be equal to ninety-five percent (95%) of the then-prevailing market rate for comparable space in comparable buildings in the vicinity of the Building (built after 2007 and of similar class and quality in the South Johnson County submarket), taking into account the size of the Lease, the length of the renewal term, credit of Tenant and Guarantor, costs of any Tenant’s Improvements, all market concessions, including allowances and free rent periods, and after such comparable buildings are adjusted upward to reflect fully assessed and fully taxed buildings (collectively defined herein as the “ Fair Market Basic Rent ”); provided in no event shall Landlord be required to accept a renewal of the Lease if the calculation of 95% of Fair Market Basic Rent during the Renewal Term is less than the then-current rental rate (unless otherwise agreed to by Landlord in writing at Landlord’s sole discretion).

           1.4.4. Landlord shall provide Tenant with its determination of Fair Market Basic Rent within the ten (10) days of Tenant’s election to exercise a renewal option. If Tenant disputes Landlord’s determination of Fair Market Basic Rent for an extension of the Term, Tenant will deliver notice of such dispute, together with Tenant’s proposed Fair Market Basic Rent, to Landlord within twenty (20) days of Tenant’s receipt of Landlord’s determination. The parties will then attempt in good faith to agree upon the Fair Market Basic Rent. If the parties fail to agree within twenty (20) days, then either party shall be entitled to give notice (the “ Arbitration Notice ”) to the other electing to have the Fair Market Basic Rent selected by an appraiser as provided in this section. Upon delivery and receipt of such Arbitration Notice, the parties will within seven (7) days thereafter mutually appoint an appraiser who will select (in the manner set forth below) the Fair Market Basic Rent (the “ Deciding Appraiser ”). The Deciding Appraiser must have at least five years of full-time commercial appraisal experience with Properties comparable to the Property and be a member of the American Institute of Real Estate Appraisers or a similar appraisal association. The Deciding Appraiser may not have any material financial or business interest in common with either of the parties. If Landlord and Tenant are not able to agree upon a Deciding Appraiser within such seven (7) days, each party will within five (5) days thereafter separately select an appraiser meeting the criteria set forth above, which two appraisers will, within seven (7) days of their selection, mutually appoint a third appraiser meeting the criteria set forth above to be the Deciding Appraiser. Within seven (7) days of the appointment (by either method) of the Deciding Appraiser, Landlord and Tenant will submit to the Deciding Appraiser their respective determinations of Fair Market Basic Rent and any related information. Within twenty-one (21) days of such appointment of the Deciding Appraiser, the Deciding Appraiser will review each party’s submittal (and such other information as the Deciding Appraiser deems necessary) and will select, in total and without modification, the submittal presented by either Landlord or Tenant as the Fair Market Basic Rent. If the Deciding Appraiser timely receives one party’s submittal, but not both, the Deciding Appraiser must designate the submitted proposal as the Fair Market Basic Rent for the applicable extension of the Term. Any determination of Fair Market Basic Rent made by the Deciding Appraiser in violation of the provisions of this section shall be beyond the scope of authority of the Deciding Appraiser and shall be null and void. If the determination of Fair Market Basic Rent is made by a Deciding Appraiser, Landlord and Tenant will each pay, directly to the Deciding Appraiser,

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one-half (½) of all fees, costs and expenses of the Deciding Appraiser. Landlord and Tenant will each separately pay all costs, fees and expenses of their respective additional appraiser (if any) used to determine the Deciding Appraiser; provided in no event shall Landlord be required to accept a renewal of the Lease if the calculation of 95% of Fair Market Basic Rent during the Renewal Term is less than the then-current rental rate (unless otherwise agreed to by Landlord in writing at Landlord’s sole discretion).

     Notwithstanding anything to the contrary set forth above, the final determination of Fair Market Basic Rent determined in connection with this Section 1.4.4 (the “ Arbitrated Rental Rate ”) must be completed within ninety (90) days after receipt of the Arbitration Notice (but in no event less than eight (8) months prior to the expiration date of the Lease). Tenant shall have the right to terminate its option to renew hereunder in the event Tenant is not satisfied with the Arbitrated Rental Rate (as determined by Tenant in its sole discretion); provided: (i) Tenant must elect not to renew within thirty (30) days after receipt of the Arbitrated Rental Rate as provided in this Section 1.4 and (ii) the Lease shall be automatically extended by one hundred eighty (180) days at the greater of: (i) the Basic Rent applicable to the last year of the immediately preceding Lease Term and (ii) the Arbitrated Rental Rate (the “ Interim Rental Rate ”) in order to provide Tenant with time to relocate - in which event Landlord and Tenant shall execute an amendment to the Lease which evidences the 180-day extension and the Interim Rental Rate through such 180-day extended term.

           1.4.5. The determination of Basic Rent does not reduce the Tenant’s obligation to pay or reimburse Landlord for operating expenses and other reimbursable items as set forth in the Lease, and Tenant shall reimburse and pay Landlord as set forth in the Lease with respect to such operating expenses and other items with respect to the Premises during each Renewal Term; provided, however, the Expense Stop should be taken into consideration by the appraiser(s) in determining the Fair Market Basic Rent under Section 1.4.4 above).

           1.4.6. Except for the Basic Rent as determined above, Tenant’s occupancy of the Premises during each Renewal Term shall be on the same terms and conditions as are in effect immediately prior to the expiration of the initial Lease Term or the First Renewal Term, as applicable, and such renewal must be for the entire Building (which includes any space added to the Premises); provided, however, Tenant shall have no further right to any allowances, credits or abatements or any options to renew or extend the Lease.

           1.4.7. If Tenant does not give a particular Renewal Notice within the periods set forth above or if Tenant fails to satisfy the conditions precedent to exercise any of its Renewal Options, Tenant’s right to extend the Lease Term shall automatically terminate. Time is of the essence as to the giving of each Renewal Notice.

           1.4.8. Landlord shall have no obligation to refurbish or otherwise improve the Premises for any of the Renewal Terms. The Premises shall be tendered on the Commencement Date of each Renewal Term in “as is” condition.

           1.4.9. If the Lease is extended for a Renewal Term, then Landlord shall prepare and Tenant shall execute an amendment to the Lease confirming the extension of the Lease Term for the applicable Renewal Term and the other provisions applicable thereto (the “ Amendment ”).

           1.4.10. If Tenant exercises its right to extend the term of the Lease for the Renewal Terms pursuant to this Section, the term “Lease Term” as used in the Lease, shall be construed to include, when practicable, the applicable Renewal Term except as provided in Section 1.4.8 above.

ARTICLE 2. RENTAL AND OTHER PAYMENTS

      2.1 Basic Rent . Tenant will pay Basic Rent in monthly installments to Landlord, in advance, without offset or deduction, except as otherwise specifically set forth herein, commencing on the Commencement Date and continuing on the first day of each and every calendar month after the Commencement Date during the Term through and including the Expiration Date. Notwithstanding the above, Tenant shall pay Landlord an amount equal to the first month’s Basic Rent on or before December 1, 2008. Tenant will make all Basic Rent payments to Landlord in care of Property Manager at the address specified in the Basic Terms or at such other place or in such

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other manner as Landlord may from time to time designate in writing no later than ten (10) days prior to the date such payment is due. Tenant will make all Basic Rent payments without Landlord’s previous demand, invoice or notice for payment. Landlord and Tenant will prorate, on a per diem basis, Basic Rent for any partial month within the Term.

      2.2 Additional Rent . Article 3 of this Lease requires Tenant to pay certain Additional Rent pursuant to estimates Landlord delivers to Tenant. Tenant will make all payments of estimated Additional Rent in accordance with Section 3.3 without deduction or offset and without Landlord’s previous demand or notice for payment. Except as specifically set forth in this Lease, Tenant will pay all other Additional Rent described in this Lease that is not estimated under Section 3.3 within thirty (30) days after receiving Landlord’s invoice for such Additional Rent. Tenant will make all Additional Rent payments to the same location and, except as described in the previous sentence, in the same manner as Tenant’s Basic Rent payments.

      2.3 Delinquent Rental Payments . If Tenant does not pay any installment of Basic Rent, Additional Rent or any other payment due under this Lease within three (3) Business Days after the date such payment is due, Tenant will pay Landlord an additional amount equal to (a) interest on the delinquent payment calculated at the Maximum Rate from the date when the payment is due through the date the payment is made, and (b) a late payment charge equal to five percent (5%) of the amount of the delinquent payment; provided that Tenant shall be entitled to written notice from Landlord and a three (3) Business Day grace period once each calendar year prior to the imposition of any such default interest or late payment charge. Landlord’s right to such compensation for the delinquency is in addition to all of Landlord’s rights and remedies under this Lease, at law or in equity.

      2.4 Independent Obligations . Notwithstanding any contrary term or provision of this Lease, Tenant’s covenant and obligation to pay Rent is independent from any of Landlord’ covenants, obligations, warranties or representations in this Lease. Tenant will pay Rent without any right of offset or deduction, except as otherwise set forth herein.

     2.5 Security Deposit . Intentionally Deleted.

ARTICLE 3. OPERATING EXPENSES AND PROPERTY TAXES

      3.1 Payment of Excess Expenses . Tenant will pay, as Additional Rent and in the manner this Article 3 describes, Tenant’s Share of Excess Expenses for each and every calendar year of the Term. Landlord will prorate Tenant’s Share of Excess Expenses for the calendar year in which the Lease commences or terminates as of the Commencement Date or termination date, as applicable, on a per diem basis based on the number of days of the Term within such calendar year.

      3.2 Estimation of Tenant’s Share of Excess Expenses . Landlord will deliver to Tenant a written estimate of the following for each calendar year of the Term: (a) Property Taxes, (b) Operating Expenses, (c) Excess Expenses, (d) Tenant’s Share of Excess Expenses Percentage and (e) the annual and monthly Additional Rent attributable to Tenant’s Share of Excess Expenses.

      3.3 Payment of Estimated Tenant’s Share of Excess Expenses . Tenant will pay the amount Landlord estimates as Tenant’s Share of Excess Expenses under Section 3.2 for each and every calendar year of the Term in equal monthly installments, in advance, commencing on the Commencement Date and continuing on the first day of each and every month during the Term through and including the Expiration Date. If Landlord has not delivered the estimates to Tenant by the first day of January of the applicable calendar year, Tenant will continue paying Tenant’s Share of Excess Expenses based on Landlord’s estimates for the previous calendar year. When Tenant receives Landlord’s estimates for the current calendar year, Tenant will pay the estimated amount (less amounts Tenant paid to Landlord in accordance with the immediately preceding sentence) in equal monthly installments over the balance of such calendar year, with the number of installments being equal to the number of full calendar months remaining in such calendar year. Notwithstanding anything to the contrary contained in this Article 3 , beginning in the second calendar year of the Lease Term, Tenant’s Share of Operating Expenses which are not considered “Non-Controllable Operating Expenses” (as defined below), shall not increase by more than five percent (5%) per annum on a cumulative, compounded basis from the first calendar year during the Lease Term, which cap shall specifically exclude all charges and costs for Property Taxes, insurance premiums for Landlord’s

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property insurance, utility costs, snow removal and non-routine repairs and maintenance which are not the result of Landlord’s negligence (but which are recoverable under the definition of “Operating Expenses”) (collectively, “ Non-controllable Operating Expenses ”), for which there shall be no cap at any time during the Lease Term. For purposes of the foregoing cap, all categories of Operating Expenses shall be determined on an aggregate basis and not on an individual basis.

           3.3.1. Re-Estimation and Adjustment . Landlord may re-estimate Excess Expenses from time to time during the Term; however, such re-estimate may occur no more than once every calendar year. In such event, Landlord will re-estimate the monthly Additional Rent attributable to Tenant’s Share of Excess Expenses to an amount sufficient for Tenant to pay the re-estimated monthly amount over the balance of the calendar year. Landlord will notify Tenant of the re-estimate and Tenant will pay the re-estimated amount in the manner provided in the last sentence of Section 3.3.

      3.4 Confirmation of Tenant’s Share of Excess Expenses . Within one hundred twenty (120) days after the end of each calendar year within the Term, Landlord will determine the actual amount of Excess Expenses and Tenant’s Share of Excess Expenses for the expired calendar year and deliver to Tenant a written statement of such amounts. If Tenant paid less than the actual amount of Tenant’s Share of Excess Expenses specified in the statement, Tenant will pay the difference to Landlord as Additional Rent in the manner Section 2.2 describes. If Tenant paid more than the actual amount of Tenant’s Share of Excess Expenses specified in the statement, Landlord, at Landlord’s option, will either (a) refund the excess amount to Tenant, within thirty (30) days after the date of such determination, or (b) credit the excess amount against Tenant’s next due monthly installment or installments of Rent. Landlord shall maintain books and records of Operating Expenses for a period of two (2) years following the end of each calendar year.

      3.5 Tenant’s Right to Audit. If (a) no uncured Event of Default exists under this Lease, (b) Tenant disputes Landlord’s determination of the actual amount of Excess Expenses or Tenant’s Share of Excess Expenses for any calendar year and (c) Tenant delivers to Landlord written notice of the dispute within one (1) year after Landlord’s delivery of the statement of such amount under this Article 3, then Tenant (but not any subtenant or assignee, other than an Affiliate), at its sole cost and expense, upon prior written notice and during regular business hours at a time and place reasonably acceptable to Landlord (which may be the location where Landlord or Property Manager maintains the applicable records), may audit, or cause an auditor to audit, Landlord’s records relating to the disputed amounts and produce a report detailing the results of the audit. No auditor retained by Tenant to conduct an audit under this Section 3.5 shall be paid on a contingency fee basis. Tenant’s objection to Landlord’s determination of Excess Expenses or Tenant’s Share of Excess Expenses is deemed withdrawn unless Tenant completes and delivers a copy of the audit report to Landlord within 90 days after the date Landlord makes the records available to Tenant. If the audit report shows that the amount Landlord charged Tenant for Tenant’s Share of Excess Expenses was greater than the amount this Article 3 obligates Tenant to pay, then, unless Landlord contests the results of the audit report, Landlord will refund the excess amount to Tenant within 10 Business Days after Landlord receives a copy of the audit report. If the audit report shows that the amount Landlord charged Tenant for Tenant’s Share of Excess Expenses was less than the amount this Article 3 obligates Tenant to pay, Tenant, within 10 Business Days after receiving the audit report, will pay to Landlord, as Additional Rent, the difference between the amount Tenant paid and the amount stated in the audit report. If Landlord contests the results of Tenant’s audit report, a final determination shall be made by an independent certified public accountant, who shall have no material business or financial interest in common with either of the parties, selected by Landlord, but reasonably acceptable to Tenant, and said accountant shall take into consideration (but not be bound by) the findings of Tenant’s audit report. Pending resolution of any audit under this section, Tenant will continue to pay to Landlord the estimated amounts of Tenant’s Share of Excess Expenses in accordance with this Article 3. If the final audit shows that the amount Tenant paid for Tenant’s Share of the Excess Expenses exceeded the amount this Article 3 obligates Tenant to pay by more than 10%, then Landlord shall be responsible for the reasonable cost of the audit, provided the cost of such audit shall not exceed $3,000 (otherwise Tenant shall be responsible for such audit cost). Tenant must keep all information it obtains in any audit strictly confidential and may only use such information for the limited purpose this section describes and for Tenant’s own account.

      3.6 Personal Property Taxes . Tenant, prior to delinquency, will pay all taxes charged against Tenant’s trade fixtures and other personal property. Tenant will use all reasonable efforts to have such trade fixtures and other personal property taxed separately from the Property. If any of Tenant’s trade fixtures and other personal

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property are taxed with the Property, Tenant will pay the taxes attributable to Tenant’s trade fixtures and other personal property to Landlord as Additional Rent.

      3.7 Landlord’s Right to Contest Property Taxes . Landlord shall also have the right, but not the obligation, to contest the amount or validity, in whole or in part, of any Property Taxes not contested by Tenant, by appropriate proceedings conducted in the name of Landlord or in the name of Landlord and Tenant. If Landlord elects to contest the amount or validity, in whole or in part, of any Property Taxes, such contests by Landlord shall be at Landlord’s expense, provided, however, that if the amounts payable by Tenant for Property Taxes are reduced (or if a proposed increase in such amounts is avoided or reduced) by reason of Landlord’s contest of Property Taxes, Tenant shall reimburse Landlord for costs incurred by Landlord in contesting Property Taxes, but such reimbursements shall not be in excess of the amount saved by Tenant by reason of Landlord’s actions in contesting such Property Taxes.

      3.8 IRBs and Tax Abatement. As stated above, this Lease is subject to that certain Prime Lease entered into with the City in connection with the tax abatement which affects the Property. The real estate taxes have been approved by the City to be abated by fifty-five percent (55%) of the current tax base and Tenant’s Pro Rata Share of Property Taxes will accordingly decrease. Notwithstanding the above, in the event such tax abatement does not occur or ceases for any reason not related to Landlord’s default under the Prime Lease, Tenant shall be responsible for the payment of its share of Property Taxes in accordance with the terms of the Lease. Landlord acknowledges that Tenant has informed it that Tenant has been granted abatement of sales taxes with respect to Tenant’s leasehold improvements to be made to the Premises and Landlord agrees to cooperate with Tenant in assisting Tenant in its ability to obtain such abatement, including execution of applicable forms to the State of Kansas.

ARTICLE 4. USE

      4.1 Permitted Use and Parking . Tenant will not use the Premises for any purpose other than general office purposes. Tenant shall be entitled to use all parking in the Site Facilities which shall be at least a parking ratio of 4.75 cars per 1,000 rentable square feet of office space. Tenant shall be provided access to the Premises on a 24 hour per day, seven day per week basis (but subject to the Landlord services provided in Section 6.1 below and otherwise subject to the terms and conditions of this Lease). There will be no separate charge (other than costs included in Operating Expenses paid by Tenant hereunder) for parking throughout the Term and any extensions. Landlord may not grant any other party a right to use parking at the Property for any purpose without Tenant’s consent. Although Landlord shall not be responsible for enforcing Tenant’s parking rights against third parties, Landlord shall reasonably cooperate with Tenant in Tenant’s efforts to enforce such parking rights. Tenant shall have the right, at Tenant’s cost, to designate certain parking spaces as reserved or visitor spaces; provided any such designation will require Landlord’s approval in the event Tenant ever leases less than the entire Building.

     Tenant will not knowingly use the Property or knowingly permit the Premises to be used in violation of any Laws or in any manner that would (a) violate any certificate of occupancy affecting the Property; (b) make void or voidable any insurance now or after the Effective Date in force with respect to the Property; (c) cause injury or damage to the Property or to the person or property of any other tenant on the Property; (d) cause substantial diminution in the value or usefulness of all or any part of the Property (reasonable wear and tear excepted); or (e) constitute a public or private nuisance or waste. Other than the permits required by Landlord to construct the Building and perform the Tenant’s Improvements hereunder (and the subsequent issuance of a certificate of occupancy), Tenant will obtain and maintain, at Tenant’s sole cost and expense, all permits and approvals required under the Laws for Tenant’s use of the Premises.

      4.2 Increased Insurance . Tenant will not knowingly do on the Property or permit to be done on the Premises anything that will (a) increase the premium of any insurance policy Landlord carries covering the Premises or the Property; (b) cause a cancellation of or be in conflict with any such insurance policy; (c) result in any insurance company’s refusal to issue or continue any such insurance in amounts satisfactory to Landlord; or (d) subject Landlord to any liability or responsibility for injury to any person or property by reason of Tenant’s operations in the Premises or use of the Property. Tenant, at Tenant’s sole cost and expense, will comply with all rules, orders, regulations and requirements or insurers and of the American Insurance Association or any other organization performing a similar function, provided that such rules and regulations are made available to Tenant by

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Landlord, in advance. Tenant will reimburse Landlord, as Additional Rent, for any additional premium charges for such policy or policies resulting from Tenant’s failure to comply with the provisions of this section.

      4.3 Laws/Building Rules . This Lease is subject and subordinate to all Laws. A copy of the current Building Rules is attached to this Lease as EXHIBIT “E.” Landlord may not amend the Building Rules without Tenant’s consent which shall not be unreasonably withheld; provided such consent is not necessary in connection with changes in the Building Rules for life safety purposes and to comply with Laws or if Tenant occupies less than 100% of the Building. This Lease is also subject to the terms and conditions of the Prime Lease.

      4.4 Site Facilities . So long as Tenant leases the entire Building, Landlord grants Tenant the exclusive right, to use the Site Facilities during the Term, subject to all Laws. Notwithstanding the above, Landlord may (a) access the Site Facilities for purposes of performing its obligations hereunder (such as snow removal, landscaping, lawn maintenance and other maintenance and repair obligations to the extent specifically set forth herein); (b) temporarily close any portion of the Site Facilities (after reasonable advance notice to Tenant) (i) for repairs or improvements or Alterations, (ii) to discourage unauthorized use, or (iii) to prevent dedication or prescriptive rights; (c) impose and revise reasonable Building Rules which do not impair Tenant’s rights under this Lease concerning use of the Site Facilities, including, but not limited to, any parking facilities comprising a portion of the Site Facilities subject to the terms of Section 4.3 above; and (d) to grant utility easements or similar rights over the Site Facilities and reasonable access to Landlord for any other reason Landlord deems necessary in Landlord’s reasonable judgment so long as Tenant’s right to access and use the Site Facilities are not unreasonably disturbed or impeded.

ARTICLE 5. HAZARDOUS MATERIALS

      5.1 Compliance with Hazardous Materials Laws . Tenant will not cause any Hazardous Material to be brought upon, kept or used on the Property in a manner or for a purpose prohibited by or that could reasonably result in liability under any Hazardous Materials Law. Tenant, at its sole cost and expense, will comply with all Hazardous Materials Laws and prudent industry practice relating to the presence, treatment, storage, transportation, disposal, release or management of Hazardous Materials in, on, under or about the Property that Tenant brings upon, keeps or uses on the Property and will notify Landlord of any and all Hazardous Materials Tenant brings upon, keeps or uses on the Property (other than small quantities of office cleaning or other office supplies and similar materials as are customarily used by a tenant in the ordinary course for the permitted use). On or before the Expiration Date or earlier termination of this Lease, Tenant, at its sole cost and expense, will completely remove from the Property (regardless whether any Hazardous Materials Law requires removal), in compliance with all Hazardous Materials Laws, all Hazardous Materials Tenant causes to be present in, on, under or about the Property. Tenant will not take any remedial action in response to the presence of any Hazardous Materials in on, under or about the Property, nor enter into any settlement agreement, consent decree or other compromise with respect to any Claims relating to or in any way connected with Hazardous Materials in, on, under or about the Property, without first notifying Landlord of Tenant’s intention to do so and affording Landlord reasonable opportunity to investigate, appear, intervene and otherwise assert and protect Landlord’s interest in the Property. Landlord, at its sole cost and expense, will comply with all Hazardous Materials Laws and prudent industry practice relating to the presence, treatment, storage, transportation, disposal, release or management of Hazardous Materials in, on, under or about the Property that Landlord brings upon, keeps or uses on the Property and will notify Tenant of any and all Hazardous Materials Landlord brings upon, keeps or uses on the Property (other than small quantities of office cleaning or other office supplies as are customarily used by a landlord in the ordinary course of operating and maintaining office buildings and site facilities).

      5.2 Notice of Actions . Tenant will notify Landlord of any of the following actions affecting Landlord, Tenant or the Property that result from or in any way relate to Tenant’s use of the Property immediately after receiving notice of the same: (a) any enforcement, clean-up, removal or other governmental or regulatory action instituted, completed or threatened under any Hazardous Materials Law; (b) any Claim made or threatened by any person relating to damage, contribution, liability, cost recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Material; and (c) any reports made by any person, including Tenant, to any environmental agency relating to any Hazardous Material, including any complaints, notices, warnings or asserted violations. Tenant will also deliver to Landlord, as promptly as possible and in any event within five (5) Business Days after Tenant first receives or sends the same, copies of all Claims, reports, complaints, notices, warnings or

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asserted violations relating in any way to the Premises or Tenant’s use of the Premises. Upon Landlord’s written request, Tenant will promptly deliver to Landlord documentation acceptable to Landlord reflecting the legal and proper disposal of all Hazardous Materials removed or to be removed from the Premises by Tenant. Any such documentation will list Tenant or its agent as a responsible party and will not attribute responsibility for any such Hazardous Materials to Landlord or Property Manager.

      5.3 Disclosure and Warning Obligations . Tenant acknowledges and agrees that all reporting and warning obligations required under Hazardous Materials Laws resulting from or in any way relating to Tenant’s use of the Premises or Property are Tenant’s sole responsibility, regardless whether the Hazardous Materials Laws permit or require Landlord to report or warn.

      5.4 Tenant Indemnification . Tenant releases and will indemnify, defend (with counsel reasonably acceptable to Landlord), protect and hold harmless the Landlord Parties from and against any and all Claims whatsoever arising or resulting, in whole or in part, directly or indirectly, from the presence, treatment, storage, transportation, disposal, release or management of Hazardous Materials in, on, under, upon or from the Property (including water tables and atmosphere) that Tenant brings upon, keeps or uses on the Premises or Property. Tenant’s obligations under this section include, without limitation and whether foreseeable or unforeseeable, (a) the costs of any required or necessary repair, clean-up, detoxification or decontamination of the Property; (b) the costs of implementing any closure, remediation or other required action in connection therewith as stated above; (c) the value of any loss of use and any diminution in value of the Property; and (d) consultants’ fees, experts’ fees and response costs. Tenant’s obligations under this section survive the expiration or earlier termination of this Lease.

      5.5 Landlord Indemnification. Landlord represents and warrants to Tenant that, except as otherwise set forth on that certain Phase I environmental site assessment report performed on the Land, to the best of Landlord’s knowledge, as of the effective date of this Lease, no Hazardous Materials are present on, in or under the land on which the Building is located. Landlord releases and will indemnify, defend (with counsel reasonably acceptable to Tenant), protect and hold harmless the Tenant Parties from and against any and all Claims whatsoever arising or resulting, in whole or in part, directly or indirectly, from the presence, treatment, storage, transportation, disposal, release or management of Hazardous Materials in, on, under, upon or from the Property (including water tables and atmosphere) other than matters for which Tenant has agreed to indemnify Landlord pursuant to Section 5.4 hereof. Landlord’s obligations under this section include, without limitation and whether foreseeable or unforeseeable, (a) the costs of any required or necessary repair, clean-up, detoxification or decontamination of the Property; (b) the costs of implementing any closure, remediation or other required action in connection therewith as stated above; (c) the value of any loss of use and any diminution in Tenant’s leasehold interest in the Premises but only if caused by Landlord; and (d) consultants’ fees, experts’ fees and response costs. Landlord’s obligations under this section survive the expiration or earlier termination of this Lease.

ARTICLE 6. SERVICES

      6.1 Landlord’s Obligations . Except as otherwise requested by Tenant and agreed to by Landlord, Landlord will provide the following services during Business Hours, the costs of which are included as Operating Expenses (except to the extent excluded in the definition set forth in Exhibit A ), in a manner consistent with buildings of similar class and quality in the South Johnson County submarket:

          6.1.1. Janitorial service in the Premises five (5) times per week.

           6.1.2. Electrical energy to the Premises sufficient, in Landlord’s reasonable judgment, for lighting and for operating personal computers and other office machines and equipment for Permitted Use; provided the demand load for such electrical energy will be a minimum of 6 watts per rentable square foot of demand load for the Premises. Tenant will not use any equipment requiring electrical energy in excess of wattages supplied by Landlord without receiving Landlord’s prior written consent, which consent Landlord will not unreasonably withhold but may condition on Tenant paying all costs of installing the equipment and facilities necessary to furnish such excess energy and an amount equal to the average cost per unit of electricity for the Building applied to the excess use as reasonably determined either by an engineer selected by Landlord or by submeter installed at Tenant’s expense. Any electrical energy used for the Tenant Specified Areas (as defined in Section 6.1.3 below) shall be charged to and shall be paid as Additional Rent by Tenant. Landlord will replace all

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lighting bulbs, tubes, ballasts and starters within the Premises at Tenant’s sole cost and expense unless the costs of such replacement are included in Operating Expenses. If such costs are not included in Operating Expenses, Tenant will pay such costs as Additional Rent. Landlord agrees not to charge a mark-up, profit or overhead on utility charges or excess utility charges paid by Tenant hereunder.

           6.1.3. During Business Hours, heating, ventilation and air conditioning (“ HVAC ”) to the Premises sufficient to maintain in Landlord’s reasonable judgment, comfortable temperatures in the Premises; provided such temperatures are subject to the conditions and requirements of state and federal energy regulatory bodies for non-residential buildings (including any Kansas energy conservation standards) and the indoor air quality shall comply with the ASHRAE standards 62-89. During non-Business Hours, Landlord will provide HVAC service upon Tenant’s reasonable advance notice. Tenant will pay Landlord, as Additional Rent, for such extended service on an hourly basis at the Landlord’s actual cost (with no additional mark-up, profit or overhead charged by Landlord). Notwithstanding the above, Tenant will require such HVAC service to be provided on a 24 hours per day and 7 days a week basis for the following two (2) spaces within the Building (referred to herein as the “Tenant Specified Areas”); provided the additional cost of which shall be charged to and paid by Tenant as Additional Rent: (1) The space consisting of the approximately 3,000 to 5,000 square foot raised floor telecom area located on the first floor of the Building (as designated by Tenant); and (2) the space within the Building identified by Tenant as its operations center (consisting of approximately 30,000 rentable square feet). Notwithstanding the above, Tenant shall be solely responsible for the cost, ownership and maintenance of any supplemental HVAC service to the Premises beyond the HVAC units provided as part of the Building shell improvements.

           6.1.4. Hot and cold water from standard building outlets for lavatory, restroom and drinking purposes.

           6.1.5. Landlord may limit the number of elevators in operation at times other than Business Hours provided at least one (1) elevator shall be operational at all times.

           6.1.6. The Building parking area shall be available for use twenty-four (24) hours a day, every day of the year during the Term and shall be illuminated when necessary. Further, Landlord shall keep and maintain the Building parking area and all other Site Facilities in manner consistent with buildings of similar class and quality in the South Johnson County submarket.

          6.1.7. Removing of ice and snow from the Site Facilities as necessary.

          6.1.8. Pest control in the Building and Site Facilities as necessary.

      6.2 Tenant’s Obligations . All utility bills will be included in Operating Expenses and, unless specifically excluded therefrom, Tenant shall pay all costs in connection therewith as Operating Expenses pursuant to the terms and conditions of this Lease (and such utilities shall be considered “Non-Controllable Operating Expenses” hereunder).

      6.3 Other Provisions Relating to Services . No interruption in, or temporary stoppage of, any of the services this Article 6 describes is to be deemed an eviction or disturbance of Tenant’s use and possession of the Premises, nor does any interruption or stoppage relieve Tenant from any obligation this Lease describes, render Landlord liable for damages or entitle Tenant to any Rent abatement, except as otherwise provided herein. Landlord has the right to select the provider of any utility or service to the Property, which shall be subject to the reasonable approval of Tenant; provided Tenant shall specifically have the right to select the telecommunications provider to the Building, which selection shall be provided to Landlord in sufficient time as to not cause any delays in connection with the construction of the Building and Site Facilities. In the event such service is within Landlord’s exclusive control or if such service is interrupted based upon the negligence of Landlord or Landlord Parties, and thereafter Landlord is unable to provide any service mentioned above (unless caused by Tenant or Tenant Parties), and further, in the event such inability renders the whole or a portion of the Premises untenantable or unsuitable for the purposes intended hereunder for a period of five (5) consecutive business days, Basic Rent and payments of Additional Rent for the portion of the Premises rendered untenantable or unsuitable for the purposes intended hereunder shall abate pro rata until such service is restored to such a condition that the portion of the Premises affected is again rendered tenantable or suitable.

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ARTICLE 7. MAINTENANCE AND REPAIR

      7.1 Landlord’s Obligations . Except as otherwise provided in this Lease, Landlord will repair and maintain the following in good order, condition and repair and in a manner consistent with buildings of similar class and quality in the South Johnson County submarket: (a) the foundations, exterior walls, structural systems, bearing walls, support beams, floor slabs, support columns, window frames and roof of the Building; (b) the elevator, electrical, mechanical, plumbing, heating and air conditioning systems, facilities and components, electrical risers, telephone risers, plumbing risers, sprinkler systems, air distribution systems, air handling systems, including VAV boxes, electrical and mechanical lines and equipment associated therewith, elevators and boilers; utility and trunk lines, tanks and transformers; (c) Site Facilities, including the common entrances, corridors, loading docks, and the parking area and access ways therefore; (d) exterior windows, doors, plate glass and exterior wall surfaces of the Building; and (e) improvements to the Land, including ditches, shrubbery, landscaping and fencing (collectively, the “ Landlord Obligations ”). Neither Basic Rent nor Additional Rent will be reduced, nor, subject to Section 10.5 below, will Landlord be liable, for loss or injury to or interference with Tenant’s property, profits or business arising from or in connection with Landlord’s performance of its obligations under this section. Landlord acknowledges and agrees that the making and performance of Landlord’s covenants and agreements in this Section 7.1 is a material inducement to Tenant entering into this Lease. Landlord will maintain the Building and Site Facilities in a condition comparable to buildings of similar class and quality in the South Johnson County submarket and any repairs to the Building shall be in compliance with Laws. Such maintenance and repair costs incurred by Landlord in connection with the Landlord Obligations and otherwise under this Section 7.1 shall be included as part of the Operating Expenses, unless caused by the gross negligence or willful misconduct of Landlord and unless excluded from the definition of “Operating Expenses” as set forth herein.

     7.2 Tenant’s Obligations.

           7.2.1. Except as otherwise specifically provided in this Lease, Landlord is not required to furnish any services or facilities, or to make any repairs or Alterations, in, about or to the Premises or the Property. Except as specifically described in Section 7.1 and Articles 11 and 12, Tenant assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Premises. Except as specifically described in Section 7.1 and Articles 11 and 12, Tenant, at Tenant’s sole cost and expense, will keep and maintain the Premises (including, but not limited to, all non-structural interior portions, systems and equipment; interior surfaces of exterior walls; interior moldings, partitions and ceilings; and interior electrical, lighting and plumbing fixtures, which plumbing fixtures are part of the Tenant’s Improvements and not part of the Landlord’s Improvements) in good order, condition and repair, reasonable wear and tear and damage from insured casualties excepted. Tenant will keep the Premises in a neat and sanitary condition and will not commit any nuisance or waste in, on or about the Premises or the Property. If Tenant damages or injures the Site Facilities or any part of the Property other than the Premises, Landlord will repair the damage and Tenant will pay Landlord for all reasonable uninsured costs and expenses of Landlord in connection with the repair as Additional Rent. Tenant is solely responsible for and, to the fullest extent allowable under the Laws, releases and will indemnify, protect and defend Landlord against (with counsel reasonably acceptable to Landlord) and hold Landlord harmless from, the cost of repairing, and any Claims resulting from, any penetrations or perforations of the roof or exterior walls of the Building by Tenant (exclusive of the initial Tenant’s Improvements performed by Landlord). Tenant will maintain the Premises in a condition comparable to buildings of similar class and quality in the South Johnson County submarket. Tenant’s repairs will be at least equal in quality and workmanship to the original work and Tenant will make the repairs and perform maintenance in accordance with all Laws.

           7.2.2. If any governmental authority requires any non-structural Alteration to Premises as a result of Tenant’s particular use of the Premises or as a result of any Alteration to the Premises made by or on behalf of Tenant, or if Tenant’s particular use of the Premises subjects Landlord or the Property to any obligation under any Laws, Tenant will pay the cost of all such non-structural Alterations or the cost of compliance, as the case may be. If any governmental authority requires any structural Alteration to Premises; Landlord shall perform such structural Alteration (“Structural Alteration”). If the Structural Alteration is a result of a specific action, employee or other specific element of Tenant’s particular use of the Premises (as opposed to items particular to office use in general) or as a result of any Alteration to the Premises made by or on behalf of Tenant, the cost thereof (including, without limitation, reasonable overhead and administrative costs) shall be paid by Tenant within thirty (30) days after receiving Landlord’s invoice for such work; provided, Tenant may request Landlord, at Landlord’s option, to

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amortize the cost of such Alteration over the remaining Term of the Lease and, if agreed to by Landlord, the parties hereto shall execute an amendment to the Lease which incorporates the amortization of such Structural Alterations into the Lease. If any Structural Alteration to the Premises related to a zoning or use requirements applicable to Tenant’s particular use which were not in effect on the Commencement Date, then Landlord shall perform such Structural Alteration and the cost thereof shall be included as “Operating Expenses” on an amortized basis over its useful life on a straight line basis, such that the annual amortized amount is included in Operating Expenses in each year during the remainder of the Term as more fully provided herein. If the Alterations referenced above are not structural, Tenant, at Tenant’s option, will either make the Alterations at Tenant’s sole cost and expense in accordance with Article 8 or request Landlord to make the Alterations at Tenant’s sole cost and expense. Notwithstanding the above, based solely on the temporary certificate of occupancy or permanent certificate of occupancy to be issued by the City on or about the Commencement Date, Landlord represents and warrants that, as of the date that the permit was issued for the Building shell based upon the final, approved development plan (and as interpreted by the City), the Premises shall comply with all applicable Laws (as hereinafter defined) including, without limitation the Americans With Disabilities Act, other than zoning ordinances and other Laws specific to Tenant’s use of the Premises.

ARTICLE 8. CHANGES AND ALTERATIONS

      8.1 Alterations; Access System . Tenant will not make any Structural Alterations to the Premises or any Alterations to the Site Facilities without Landlord’s approval which shall not be unreasonably withheld, conditioned or delayed so long as (i) the purposed Alteration is non-structural in nature, (ii) the purposed Alteration does not materially diminish the value of the Building, and (iii) the purposed Alteration otherwise complies with the requirements of this Article 8. Tenant will not make any other Alterations without Landlord’s prior written consent, which consent Landlord will not unreasonably withhold or delay; provided, however, that Landlord may require, as a condition of its consent, that Tenant remove the Alterations at the end of the Term and repair all damage caused by such removal; however, Alterations related to the initial Tenant’s Improvements (including all wiring and cabling) shall not be removed and Landlord shall not require such removal. If Tenant properly notifies Landlord hereunder and Landlord fails to respond within thirty (30) days after such written notice, then Landlord shall be deemed to consent to the proposed Alterations. Along with any request for Landlord’s consent, Tenant will deliver to Landlord plans and specifications for the Alterations and names and addresses of all prospective contractors for the Alterations. If Landlord approves the proposed Alterations, Tenant, before commencing the Alterations or delivering (or accepting delivery of) any materials to be used in connection with the Alterations, will deliver to Landlord for Landlord’s reasonable approval copies of all contracts, proof of insurance required by Section 8.2, copies of any contractor safety programs, copies of all necessary permits and licenses and such other information relating to the Alterations as Landlord reasonably requests. Tenant will construct all approved Alterations or cause all approved Alterations to be constructed (a) promptly by a contractor Landlord approves in writing in Landlord’s reasonable discretion, (b) in a good and workmanlike manner, (c) in compliance with all Laws, (d) in accordance with all orders, rules and regulations of the Board of Fire Underwriters having jurisdiction over the Premises and any other body exercising similar functions, and (e) in full compliance with all of Landlord’s rules and regulations applicable to third party contractors, subcontractors and suppliers performing work at the Property. Notwithstanding the above, Tenant shall be entitled to make non-structural alterations and improvements to the interior portion of the Premises without Landlord’s consent (“ Minor Alterations ”) so long as: (i) the aggregate cost of such non-structural alterations and improvements do not exceed $10,000 per calendar year; (ii) the Minor Alterations are constructed subject to all the other terms of this Article 8 and (iii) Tenant provides Landlord with prior written notice of any such Minor Alterations which exceed $2,500 per occurrence.

     The parties acknowledge that Tenant shall operate the Building’s access system as determined by Tenant (and reasonably approved by Landlord), which access system shall be installed at Tenant’s sole cost and expense; provided Tenant may use its Improvement Allowance for such access system. Landlord shall be provided access to the Building under Tenant’s access system (at no cost to Landlord) for all purposes under this Lease. Tenant shall be permitted to tie such system into Tenant’s standard access system on a national basis.

      8.2 Tenant’s Responsibility for Cost and Insurance . Tenant will pay the cost and expense of all Alterations by or on behalf of Tenant, including, without limitation, a reasonable charge for Landlord’s review, inspection and engineering time, and for any painting, restoring or repairing of the Premises or the Building such Alterations occasion. Prior to commencing any Alterations, Tenant will deliver the following to Landlord in form

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and amount reasonably satisfactory to Landlord: (a) demolition (if applicable) and payment and performance bonds, (b) builder’s “all risk” insurance in an amount at least equal to the value of the Alteration; (c) evidence that Tenant has in force commercial general liability insurance insuring against construction related risks, in at least the form, amounts and coverages required of Tenant under Article 10 and (d) copies of all applicable contracts and of all necessary permits and licenses. The insurance policies described in clauses (b) and (c) of this section must name Landlord, Landlord’s lender (if any) and Property Manager as additional insureds.

      8.3 Construction Obligations and Ownership . Landlord may inspect construction of the Alterations. Immediately after completing the Alterations, Tenant will furnish Landlord with contractor affidavits, full and final lien waivers and receipted bills covering all labor and materials expended and used in connection with the Alterations. Tenant will remove any Alterations Tenant constructs in violation of this Article 8 within ten (10) days after Landlord’s written request and in any event prior to the expiration or earlier termination of this Lease. All Alterations Tenant makes or installs (including all telephone, computer and other wiring and cabling located within the walls of and outside the Premises, but excluding all Tenant Personalty as defined in Section 16.1), shall become the property of Landlord and a part of the Building immediately upon installation and, unless Landlord requires Tenant to remove the Alterations and repair any damage caused by such removal by notifying Tenant at the time Landlord consents to the Alterations, Tenant will surrender the Alterations to Landlord upon the expiration or earlier termination of this Lease at no cost to Landlord. In no event shall Tenant be required to remove the initial Tenant’s Improvements at the expiration or earlier termination of the Lease.

      8.4 Liens . Tenant will keep the Property free from any mechanics’, materialmen’s, designers’ or other liens arising out of any work performed, materials furnished or obligations incurred by or for Tenant or any person or entity claiming by, through or under Tenant. Tenant will notify Landlord in writing thirty (30) days prior to commencing any Alterations in order to provide Landlord the opportunity to record and post notices of non-responsibility or such other protective notices available to Landlord under the Laws. If any such liens are filed and Tenant, within fifteen (15) days after such filing, does not release the same of record or provide Landlord with a bond or other security satisfactory to Landlord protecting Landlord and the Property against such liens, Landlord, without waiving its rights and remedies based upon such breach by Tenant and without releasing Tenant from any obligation under this Lease, may cause such liens to be released by any means Landlord deems proper, including, but not limited to, paying the claim giving rise to the lien or posting security to cause the discharge of the lien. In such event, Tenant will reimburse Landlord, as Additional Rent, for all amounts Landlord pays (including, without limitation, reasonable attorneys’ fees and costs).

      8.5 Indemnification . To the fullest extent allowable under the Laws, Tenant releases and will indemnify, protect, defend (with counsel reasonably acceptable to Landlord) and hold harmless the Landlord Parties and the Property from and against any Claims in any manner relating to or arising out of any Alterations by Tenant or any other work performed, materials furnished or obligations incurred by or for Tenant or any person or entity claiming by, through or under Tenant.

ARTICLE 9. RIGHTS RESERVED BY LANDLORD

      9.1 Landlord’s Entry . Subject to the provisions of the last sentence of this Section 9.1, Landlord and its authorized representatives may during Business Hours and upon reasonable notice to Tenant enter the Premises to: (a) inspect the Premises; (b) show the Premises to prospective purchasers and mortgagees; (c) show the Premises to prospective tenants (but only during the last twelve (12) months of the Term except in the case of emergency or at any time following an Event of Default after any applicable notice and cure period to the extent permitted by law); (d) post notices of non-responsibility or other protective notices available under the Laws; or (e) exercise and perform Landlord’s rights and obligations under this Lease. Landlord, in the event of any emergency, may enter the Premises without notice to Tenant. Landlord’s entry into the Premises is not to be construed as a forcible or unlawful entry into, or detainer of, the Premises or as an eviction of Tenant from all or any part of the Premises. Tenant will also permit Landlord (or its designees) to erect, install, use, maintain, replace and repair pipes, cables, conduits, plumbing and vents, and telephone, electric and other wires or other items, in, to and through the Premises if Landlord determines that such activities are necessary or appropriate for properly operating and maintaining the Building, to the extent reasonably required by Landlord, provided Landlord shall use commercially reasonable efforts not to disturb Tenant’s use and occupancy of the Building (and will coordinate with Tenant if during Business Hours) and Landlord shall use good faith efforts to coordinate any such activities with Tenant to minimize

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any impact on Tenant’s use and occupancy of the Building. Landlord shall exercise commercially reasonable efforts to minimize interference with Tenant’s business operation in connection with its rights under Section 9.1. Landlord acknowledges that certain information and documentation at the Premises is deemed confidential by Tenant and Landlord will refrain from disclosing the contents of such information and documentation to any other party and shall use commercially reasonable efforts to cause its employees, agents and contractors to keep such information and documentation confidential. This provision shall not apply to any information which Landlord can demonstrate it knew prior to the date hereof or which Landlord receives independently from a third party who is not precluded by law, contract or duty of confidentiality from disclosing it.

      9.2 Control of Property . Landlord reserves all rights respecting the Property and Premises not specifically granted to Tenant under this Lease, including, without limitation, the right to: (a) designate and approve all types of signs, window coverings, internal lighting and other aspects of the Premises and its contents that may be visible from the exterior of the Premises which approval shall not be unreasonably withheld, conditioned, delayed or denied; (b) close the Building after Business Hours, except that Tenant and its employees and invitees may access the Premises after Business Hours in accordance with such rules and regulations as Landlord and Tenant may mutually prescribe from time to time for security purposes; (c) install and maintain pipes, ducts, conduits, wires and structural elements within the Building; provided Landlord shall use commercially reasonable efforts not to disturb Tenant’s use and occupancy of the Building and Landlord shall use good faith efforts to coordinate any such activities with Tenant to minimize any impact on Tenant’s use and occupancy of the Building, and (d) retain and receive master keys or pass keys to the Premises and all doors in the Premises. Landlord will hire a service to conduct a drive-by patrol from time to time, which may include an exterior door check. Notwithstanding the foregoing, or the provision of any security-related services by Landlord, Landlord is not responsible for the security of persons or property on the Property and Landlord is not and will not be liable in any way whatsoever for any breach of security not solely caused by the willful misconduct or gross negligence of Landlord, its agents or employees.

      9.3 Lock Box Agent/Rent Collection Agent; ACH Payments . Landlord, from time to time, may designate a lock box collection agent or other person to collect Rent. In such event, Tenant’s payment of Rent to the lock box collection agent or other person is deemed to have been made (a) as of the date the lock box collection agent or other person receives Tenant’s payment (if the payment is not dishonored for any reason); or (b) if Tenant’s payment is dishonored for any reason, the date Landlord or Landlord’s agent collects the payment. Neither Tenant’s payment of any amount of Rent to the lock box collection agent or other person nor Landlord’s or Landlord’s agent’s collection of such amount if the payment is dishonored constitutes Landlord’s waiver of any default by Tenant in the performance of Tenant’s obligations under this Lease or Landlord’s waiver of any of Landlord’s rights or remedies under this Lease. If Tenant pays any amount to the lock box collection agent or other person other than the actual amount due Landlord, then Landlord’s or Landlord’s agent’s receipt or collection of such amount does not constitute an accord and satisfaction, Landlord is not prejudiced in collecting the proper amount due Landlord (or in pursuing any rights or remedies available under this Lease, at law or in equity as a result of Tenant’s failure to pay the full amount when due) and Landlord may retain the proceeds of any such payment, whether restrictively endorsed or otherwise, and apply the same toward amounts due and payable by Tenant under this Lease. Further, if mutually agreed upon by Landlord and Tenant, Tenant hereby agrees to pay Rent via electronic funds transfer payments (ACH payments) upon written direction and instructions from Landlord.

     9.4 Relocation of Tenant . Intentionally deleted.

ARTICLE 10. INSURANCE AND CERTAIN WAIVERS AND INDEMNIFICATIONS

      10.1 Tenant’s Insurance Obligations . Tenant, at all times during the Term and during any early occupancy period, at Tenant’s sole cost and expense, will maintain the insurance this Section 10.1 describes.

           10.1.1. Commercial general liability insurance (providing coverage at least as broad as the current ISO form) with respect to the Premises and Tenant’s activities in the Premises and upon and about the Property, on an “occurrence” basis, with single limit coverage of $5,000,000. Such insurance must include specific coverage provisions or endorsements (a) for broad f


 
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