OFFICE LEASE AGREEMENT

Exhibit 10.9

OFFICE LEASE AGREEMENT

BETWEEN

CENTREPORT TRINITY, LTD.

AS LANDLORD

AND

RADIANT SYSTEMS, INC.

AS TENANT

DATED

September 16, 2005

TABLE OF CONTENTS

 

 

 

 

BASIC LEASE INFORMATION

This Basic Lease Information is attached to and incorporated by reference to an Office Lease Agreement between Landlord and Tenant, as defined below.

 

 

 

 

 

 

The foregoing Basic Lease Information is incorporated into and made a part of the Lease identified above. If any conflict exists between any Basic Lease Information and the Lease, then the Lease shall control.

 

LANDLORD:

CENTREPORT TRINITY, LTD.,

a Texas limited partnership

By:

CARDINAL CENTREPORT, LLC,

a Texas limited liability company,

its General Partner

By:

INVESCO, INC.,

a Delaware corporation

its Manager

By:

INVESCO REAL ESTATE

DIVISION

By:

/s/ Kevin Johnson

Name:

Kevin Johnson

Title:

Vice President

 

TENANT:		RADIANT SYSTEMS, INC.,
		a Georgia corporation
		By:		/s/ Mark Haidet
		Name:		Mark Haidet
		Title:		Chief Financial Officer

 

OFFICE LEASE AGREEMENT

This Office Lease Agreement (this “ Lease ”) is entered into as of September 16, 2005, between CENTREPORT TRINITY, LTD. , a Texas limited partnership (“ Landlord ”), and RADIANT SYSTEMS, INC. , a Georgia corporation (“ Tenant ”).

1. Definitions and Basic Provisions . The definitions and basic provisions set forth in the Basic Lease Information (the “ Basic Lease Information ”) executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes. Additionally, the following terms shall have the following meanings when used in this Lease: “ Affiliate ” means any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the party in question; “ Building’s Structure ” means the Building’s exterior walls, roof, elevator shafts (if any), footings, foundations, structural portions of load-bearing walls, structural floors and subfloors, and structural columns and beams; “ Building’s Systems ” means the Premises’ and Building’s HVAC, life-safety, plumbing, electrical, and mechanical systems; “ Business Day(s) ” means Monday through Friday of each week, exclusive of Holidays; “ Holidays ” means New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any other nationally or regionally recognized holiday; “ including ” means including, without limitation; “ Laws ” means all federal, state, and local laws, ordinances, rules and regulations, all court orders, governmental directives, and governmental orders and all interpretations of the foregoing, and all restrictive covenants affecting the Project, and “ Law ” shall mean any of the foregoing; “ Normal Business Hours ” means 7:00 a.m. until 7:00 p.m., on Business Days, and 8:00 a.m. until 2:00 p.m. on Saturdays, exclusive of Holidays; “ Tenant’s Off-Premises Equipment ” means any of Tenant’s equipment or other property that may be located on or about the Project (other than inside the Premises); and “ Tenant Party ” means any of the following persons: Tenant; any assignees claiming by, through, or under Tenant; any subtenants claiming by, through, or under Tenant; and any of their respective agents, contractors, employees, and invitees.

2. Lease Grant . Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises (as defined in the Basic Lease Information).

3. Tender of Possession . Landlord and Tenant presently anticipate that possession of the Initial Premises will be tendered to Tenant in the condition required by this Lease on or about January 1, 2006 (the “ Estimated Delivery Date ”). If Landlord is unable to tender possession of the Initial Premises in such condition to Tenant by the Estimated Delivery Date, then: (a) the validity of this Lease shall not be affected or impaired thereby; (b) Landlord shall not be in default hereunder or be liable for damages therefor; and (c) Tenant shall accept possession of the Initial Premises when Landlord tenders possession thereof to Tenant. Notwithstanding the foregoing, in the event Landlord fails to deliver possession of the Initial Premises in the condition required by this Lease on or before to June 30, 2006 (the “ Delivery Date Deadline ”), then Tenant shall have the right to terminate this Lease at any time within the thirty (30) day period following such Delivery Date Deadline by providing written notice of such election to Landlord. Notwithstanding the foregoing, the Delivery Date Deadline shall be extended one day for each Tenant Delay Day (as defined in Exhibit D ). Further notwithstanding the foregoing, Tenant may have access to the Premises one hundred twenty (120) days prior to

 

the Initial Premises Commencement Date for purposes of installing furniture, fixtures and equipment; provided, however, if Tenant interferes with Landlord’s performance of the Work (as defined in Exhibit D ), then each such day of delay shall be a Tenant Delay Day. Landlord agrees to advise Tenant in writing approximately fifteen (15) days prior to the date Landlord believes it will tender possession of the Initial Premises to Tenant in the condition required hereunder. Tenant acknowledges that tenant improvement work shall be performed on the entire Premises at the commencement of the Lease Term, but that it shall have no right to occupy the Must Take Space until the Must Take Space Commencement Date. If Tenant occupies the Must Take Space prior to such date, it shall be obligated to pay Base Rent and all other amounts due under the Lease for such period of occupancy. By occupying any portion of the Premises, Tenant shall be deemed to have accepted the Premises in their condition as of the date of such occupancy, subject to latent defects, if any, for which notice is given to Landlord within six (6) months of the applicable Commencement Date, and the performance of punch-list items that remain to be performed by Landlord, if any. Prior to occupying any portion of the Premises, Tenant shall execute and deliver to Landlord a letter substantially in the form of Exhibit F hereto confirming: (1) the Initial Premises Commencement Date and Must Take Space Commencement Date (each as defined in the Basic Lease Information) and the expiration date of the initial Term (as defined in the Basic Lease Information); (2) that Tenant has accepted the Premises subject to latent defects, if any, for which notice is given to Landlord within six (6) months of the applicable Commencement Date; and (3) that Landlord has performed all of its obligations with respect to the Premises (except for punch-list items specified in such letter); however, the failure of the parties to execute such letter shall not defer the Initial Premises Commencement Date or otherwise invalidate this Lease. Tenant’s failure to execute such document within ten (10) days of receipt thereof from Landlord shall be deemed Tenant’s agreement to the contents of such document. Occupancy of any portion of the Premises by Tenant prior to the Initial Premises Commencement Date shall be subject to all of the provisions of this Lease excepting only those requiring the payment of Rent.

4. Rent . Tenant shall timely pay to Landlord Rent (as defined in the Basic Lease Information), including the amounts set forth in Exhibit C hereto, without notice, demand, deduction or set-off (except as otherwise expressly provided herein), by good and sufficient check drawn on a national banking association at Landlord’s address provided for in this Lease or as otherwise specified by Landlord and shall be accompanied by all applicable state and local sales or use taxes. The obligations of Tenant to pay Base Rent (as defined in the Basic Lease Information) and other sums to Landlord and the obligations of Landlord under this Lease are independent obligations. Base Rent, adjusted as herein provided, shall be payable monthly in advance. The first (1st) monthly installment of Base Rent shall be payable contemporaneously with the execution of this Lease; thereafter, Base Rent shall be payable on the first (1st) day of each month beginning on the first (1st) day of the eighth (8 ^th ) full calendar month of the Term. The monthly Base Rent for any partial month at the beginning of the Term shall equal the product of 1/365 (or in the event of a leap year, 1/366) of the annual Base Rent in effect during the partial month and the number of days in the partial month, and shall be due on the Initial Premises Commencement Date. Payments of Base Rent for any fractional calendar month at the end of the Term shall be similarly prorated. Tenant shall pay Additional Rent, Taxes and Insurance (each as defined in Exhibit C ) at the same time and in the same manner as Base Rent.

 

5. Delinquent Payment; Handling Charges . All past due payments required of Tenant hereunder shall bear interest from that date which is thirty (30) days following the date due until paid at the lesser of fifteen percent (15%) per annum or the maximum lawful rate of interest (such lesser amount is referred to herein as the “ Default Rate ”); additionally, as to all payments due hereunder which are not made within five (5) days of their due date, Landlord, in addition to all other rights and remedies available to it, may charge Tenant a fee equal to five percent (5%) of the delinquent payment to reimburse Landlord for its cost and inconvenience incurred as a consequence of Tenant’s delinquency. In no event, however, shall the charges permitted under this Section 5 or elsewhere in this Lease, to the extent they are considered to be interest under applicable Law, exceed the maximum lawful rate of interest. Notwithstanding the foregoing; (i) the late fee referenced above shall not be charged with respect to the first occurrence (but not any subsequent occurrence) during any twelve-month period that Tenant fails to make payment when due, until five (5) days after Landlord delivers written notice of such delinquency to Tenant; and (ii) the interest referenced above shall not be charged with respect to the first occurrence (but may be charged for any subsequent occurrence) during any twelve-month period that Tenant fails to make payment when due, until five (5) days after Landlord delivers written notice of such delinquency to Tenant.

6. Security Deposit . Contemporaneously with the execution of this Lease, Tenant shall pay to Landlord the Security Deposit (as defined in the Basic Lease Information), which shall be held by Landlord to secure Tenant’s performance of its obligations under this Lease. The Security Deposit is not an advance payment of Rent or a measure or limit of Landlord’s damages upon an Event of Default (as defined in Section 17 ). Landlord may at Landlord’s discretion, from time to time following an Event of Default and without prejudice to any other remedy, use all or a part of the Security Deposit to perform any obligation Tenant fails to perform hereunder or in connection with Landlord’s remedies under this Lease. Following any such application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount. Subject to the requirements of, and conditions imposed by, Laws applicable to security deposits under commercial leases, Landlord shall, within the time required by applicable Law (but in any event within thirty (30) days following the expiration or earlier termination of this Lease), return to Tenant the portion of the Security Deposit remaining after deducting all damages, charges and other amounts permitted by Law. Landlord and Tenant agree that such deductions shall include, without limitation, all damages and losses that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any breach of this Lease by Tenant. Unless required otherwise by applicable Law, the Security Deposit may be commingled with other funds, and no interest shall be paid thereon. If Landlord transfers its interest in the Premises, Landlord shall assign the Security Deposit to the transferee and, upon such transfer (and the delivery to Tenant of an acknowledgement of the transferee’s responsibility for the Security Deposit), Landlord thereafter shall have no further liability for the return of the Security Deposit. In lieu of a cash Security Deposit, Tenant may deliver to Landlord within ten (10) days after the date of execution of the Lease an irrevocable, unconditional letter of credit in the amount of $91,960.55 (the “ Letter of Credit ”). The Letter of Credit shall be addressed to Landlord, issued in a form and substance similar to that attached hereto as Exhibit M and by a national financial institution approved by Landlord, in Landlord’s reasonable discretion, shall be freely transferable without fee payable by the beneficiary thereof, shall permit partial draws, shall have a one-year term with automatic one-year renewals and an expiration date falling no sooner than thirty (30) days after

 

the expiration of the Lease Term. In the event Tenant fails to renew the Letter of Credit as required hereunder, Landlord shall have the right to draw down the entire amount of such Letter of Credit and hold such amount as the Security Deposit hereunder. Tenant agrees that upon any occurrence of any other Event of Default by Tenant under the terms and provisions of this Lease, Landlord shall have the right to receive payment under any Letter of Credit of such portion of the Letter of Credit as Landlord reasonably estimates is necessary to effectuate a cure of the subject Event of Default. Any such amounts received by Landlord shall be held by Landlord and applied in accordance with this Lease in the same manner as a Security Deposit. Landlord shall at all times during the Term, hold a letter of credit in the amounts described above.

Notwithstanding the foregoing, subject to the Conditions (defined below), if Tenant waives its Termination Option set forth in Exhibit K, then at the expiration of the ninetieth (90 ^th ) month of the Lease Term (the “ Release Date ”) Landlord shall return one-half of the Security Deposit to Tenant (or Tenant may reduce the amount of the Letter of Credit to $46,000.00, if the Security Deposit is held in the form of a Letter of Credit). Such return or reduction is conditioned upon the following: (i) not more than one (1) written notice of Tenant’s failure to pay any monetary amounts under the Lease when due shall have been sent by Landlord in any twenty-four (24) month period of the Lease Term; and (ii) on the Release Date Tenant shall not be in default under the Lease (collectively, the “ Conditions ”).

 

7.

Services; Utilities; Common Areas .

(a) Services . Subject to the provisions of this Lease, following the Initial Premises Commencement Date, Landlord agrees to furnish Tenant, for the portion of the Premises which are then occupied by Tenant, the following services: (i) cold water at those points of supply provided as a part of Building Standard improvements (provided that Tenant acknowledges that Tenant shall be solely responsible for installing within the Premises all plumbing facilities, fixtures and equipment required to service any kitchen, restroom or other area within the Premises, and that Landlord shall have no responsibility in connection therewith); (ii) routine maintenance and electric lighting service for all Common Areas in the manner and to the extent deemed by Landlord in its reasonable discretion to be standard for comparable properties in the CentrePort submarket of the Dallas/Ft. Worth, Texas area (for purposes of this Lease, each reference to “comparable properties” in the Lease shall use the conditions in effect on the Commencement Date for comparison); (iii) janitorial service, on weekdays, other than Holidays, in accordance with Exhibit N ; provided, however, if Tenant’s floor covering or other improvements require special treatment, Tenant shall pay the additional cleaning cost attributable thereto as rent upon presentation of a statement therefor by Landlord; (iv) subject to the provisions of Section 7(b) hereof, facilities to provide electric current not to exceed six (6) watts per square foot of useable area; and (v) Building Standard fluorescent bulb and ballast replacement in the Premises and fluorescent and candescent bulb and ballast replacement in the Common Areas. Tenant acknowledges that Landlord shall not be required to provide electric current to or for the benefit of Tenant in connection with the Premises, and that Tenant shall be responsible for contracting directly with the applicable utility company for electrical service to the Premises and for paying all costs and expenses arising in connection therewith, as set forth in Section 7(d) . Notwithstanding any other provision contained herein to the contrary, Landlord acknowledges and agrees that all services provided by Landlord to Tenant shall be provided to a standard at least comparable to such services as are provided at other comparable buildings in the

 

CentrePort submarket of Dallas/Ft. Worth, Texas. Notwithstanding the foregoing, if: (i) utility service is interrupted because of the acts of Landlord, its employees, agents or contractors; (ii) Tenant notifies Landlord of such interruption in writing (the “ Interruption Notice ”); (iii) such interruption does not arise in whole or in part as a result of an act or omission of a Tenant Party; (iv) such interruption is not caused by a fire or other casualty; (v) the repair or restoration of such service is reasonably within the control of Landlord; and (vi) as a result of such interruption, the Premises or a material portion thereof, is rendered untenantable (meaning that Tenant is unable to use the Premises in the normal course of it business) and Tenant in fact ceases to use the Premises, or material portion thereof, then, Tenant’s sole remedy for such interruption shall be as follows: on the fifth (5 ^th ) consecutive Business Day following the later to occur of the date the Premises (or material portion thereof) becomes untenantable, the date Tenant ceases to use such space and the date Tenant provides Landlord with an Interruption Notice, the Rent payable hereunder shall be abated on a per diem basis for each day after such five (5) Business Day period based upon the percentage of the Premises so rendered untenantable and not used by Tenant, and such abatement shall continue until the date the Premises become tenantable again.

(b) Use of Electrical Services by Tenant . Tenant’s electrical equipment and overhead lighting shall be restricted to that equipment which individually and collectively does not have a rated capacity greater than equipment and lighting normally utilized in general office use, as determined by Landlord, which in no event shall exceed a collective average of six (6) watts per square foot of area within the Premises. If Landlord should determine that Tenant’s consumption of electrical services exceeds the limitations set forth in the preceding sentence, or exceeds the capacity of existing wiring, risers or feeders to the Building, then Landlord shall be entitled, in its reasonable discretion, to either (a) require Tenant to terminate any excess usage and, in such event, Tenant shall, at its sole cost and expense, remove any equipment and/or lighting necessary to achieve compliance within ten (10) days after receiving notice from Landlord, or (b) Landlord may, at Landlord’s option, and at Tenant’s sole cost and expense, upgrade the electrical service to the Premises to accommodate such excess demand.

(c) Common Areas . The term “ Common Area ” is defined for all purposes of this Lease as that part of the Project and/or Complex intended for the common use of all tenants, including among other facilities (as such may be applicable to the Complex), the lobby of the Building, elevator lobbies (if any), parking areas, private streets and alleys, landscaping, curbs, loading areas, sidewalks, malls and promenades (enclosed or otherwise), lighting facilities, drinking fountains, meeting rooms, public toilets, and the like, but excluding: (i) space in buildings (now or hereafter existing) designated for rental for commercial purposes, as the same may exist from time to time; (ii) streets and alleys maintained by a public authority; (iii) areas within the Complex which may from time to time not be owned by Landlord (unless subject to a cross-access agreement benefiting the area which includes the Premises); and (iv) areas leased to a single-purpose user where access is restricted. In addition, although the roof(s) of the building(s) in the Complex is not literally part of the Common Area, it will be deemed to be so included for purposes of: (i) Landlord’s ability to prescribe rules and regulations regarding same; and (ii) its inclusion for purposes of Operating Costs reimbursements. Subject to the limitations set forth below, Landlord reserves the right to change from time to time the dimensions and location of the Common Area, as well as the dimensions, identities, locations and types of any buildings, signs or other improvements in the Complex. For example, and without limiting the generality of the immediately preceding sentence, Landlord may from time

 

to time substitute for any parking area other areas reasonably accessible to the tenants of the Building or Complex, as applicable, which areas may be elevated, surface or underground. Notwithstanding the foregoing or any other provision contained herein to the contrary, Landlord acknowledges and agrees that it shall have no right to alter the dimensions or location of the Common Area in any manner which would have a material adverse affect upon Tenant’s business operations. Tenant, and its employees and customers, and when duly authorized pursuant to the provisions of this Lease, its subtenants, licensees and concessionaires, shall have the non-exclusive right to use free of charge (except as set forth to the contrary in Exhibit C regarding Operating Costs) the Common Area (excluding roof(s)) as constituted from time to time, such use to be in common with Landlord, other tenants in the Building and/or Complex, as applicable, and other persons reasonably permitted by the Landlord to use the same without overburdening such Common Area, and subject to rights of governmental authorities, easements, other restrictions of record, and such reasonable non-discriminatory rules and regulations governing use as Landlord may from time to time prescribe. For example, and without limiting the generality of Landlord’s ability to establish reasonable non-discriminatory rules and regulations governing all aspects of the Common Area, Tenant agrees as follows:

(i) Tenant shall have the right to use the three hundred forty (340) parking spaces adjacent to the Building (the “ Parking Area ”) during the Lease Term at no additional charge. Such use shall be subject to the provisions of Exhibit H . Landlord confirms that as of the date of the Lease there are five (5) parking spaces for each one thousand (1,000) rentable square feet in the Building and the building located at 14760 Trinity Boulevard. Tenant agrees that if any automobile or other vehicle owned by Tenant or any of its employees, its subtenants, its licensees or its concessionaires, or their employees, shall at any time be parked in any part of the Project or Complex, as applicable, other than the specified areas, Landlord may have such vehicle towed at the cost of the owner of same. Landlord agrees that if another tenant overburdens the parking areas of the Complex, causing Tenant to not have available the number of spaces set forth above, then Landlord shall use commercially reasonable efforts to cause such overburdening to cease promptly.

(ii) Tenant shall not solicit business within the Common Area nor take any action which would interfere with the rights of other persons to use the Common Area.

(iii) Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to make repairs or alterations or to prevent the public from obtaining prescriptive rights.

(iv) With regard to the roof(s) of the building(s) in the Project or Complex, as applicable, use of the roof(s) is reserved to Landlord, or with regard to any tenant demonstrating to Landlord’s satisfaction a need to use same, to such tenant after receiving prior written consent from Landlord, such consent not to be unreasonably withheld.

(d) Electricity Costs . In addition to any other sums required to be paid by Tenant under this Lease, Tenant shall: (i) reimburse Landlord for all costs of providing electricity to the Premises within thirty (30) days of invoice (the “ Electrical Charge ”); and (ii) pay Tenant’s Proportionate Share of the costs of providing electricity to the Common Areas as part of Operating Costs, which amounts shall be payable as set forth in Exhibit C . With respect

 

to the foregoing, the Electrical Charge shall be limited only to the actual amount charged by the utility provider to Landlord. For the period prior to the earlier of Tenant’s occupancy of the Must Take Space or the Must Take Space Commencement Date, an amount equal to $400.00 shall be deducted each month from the Electrical Charge to offset the additional costs that are estimated to occur because no demising wall separates the Initial Premises and the Must Take Space. Landlord and Tenant agree that $400.00 is a good faith estimate of such costs, and such costs shall not be modified or prorated.

8. Alterations; Repairs; Maintenance; Signs .

(a) Alterations . Tenant shall not make any alterations, additions or improvements to the Premises (collectively, the “ Alterations ”) without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed, except for alterations of a cosmetic nature such as painting, wallpapering, hanging pictures and installing carpeting as well as installation of unattached, movable trade fixtures which may be installed without drilling, cutting or otherwise defacing the Premises. Tenant shall furnish complete plans and specifications to Landlord for its approval at the time it requests Landlord’s consent to any Alterations if the desired Alterations: (i) will affect the Building’s Systems or Building’s Structure; or (ii) will require the filing of plans and specifications with any governmental or quasi-governmental agency or authority; or (iii) will cost in excess of Ten Thousand and No/100 Dollars ($10,000.00). Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord any building permit required by applicable Law and a copy of the executed construction contract(s). Tenant shall reimburse Landlord within ten (10) days after the rendition of a bill for all of Landlord’s actual out-of-pocket costs incurred in connection with any Alterations, including all commercially reasonable management, engineering, outside consulting, and construction fees incurred by or on behalf of Landlord for the review and approval of Tenant’s plans and specifications and for the monitoring of construction of the Alterations. If Landlord consents to the making of any Alteration, such Alteration shall be made by Tenant at Tenant’s sole cost and expense by a contractor approved in writing by Landlord such approval not to be unreasonably withheld. Tenant shall require its contractor to maintain insurance in such amounts and in such form as Landlord may require in its reasonable discretion. Without Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Tenant shall not use any portion of the Common Areas either within or without the Project or Complex, as applicable, in connection with the making of any Alterations. If the Alterations which Tenant causes to be constructed result in Landlord being required to make any alterations and/or improvements to other portions of the Project or Complex, as applicable, in order to comply with any applicable Laws, then Tenant shall reimburse Landlord upon demand for all out-of-pocket costs and expenses incurred by Landlord in making such alterations and/or improvements. Any Alterations made by Tenant shall become the property of Landlord upon installation and shall remain on and be surrendered with the Premises upon the expiration or sooner termination of this Lease, unless Landlord requires the removal of such Alterations. With respect to the foregoing, Landlord agrees to advise Tenant at the time of its approval of each Alteration as to whether Landlord will require the removal thereof. If Landlord requires the removal of such Alterations, Tenant shall at its sole cost and expense, forthwith and with all due diligence (but in any event not later than ten (10) days after the expiration or earlier termination of the Lease) remove all or any portion of any Alterations made by Tenant which are designated by Landlord to be removed (including without

 

limitation stairs, bank vaults, and cabling, if applicable) and repair and restore the Premises in a good and workmanlike manner to their original condition, reasonable wear and tear excepted. Notwithstanding the foregoing, Tenant shall only be required to remove cabling or wiring installed to serve the Premises if Tenant does not remove the existing cabling and wiring which is located in the Premises on the date of the Lease; provided, however, if Tenant removes some but not all of the existing cabling and wiring, then Tenant’s removal obligations at the expiration or earlier termination of the Lease shall be limited to removing the remainder of the existing cabling and wiring. All construction work done by Tenant within the Premises shall be performed in a good and workmanlike manner with new materials of first-class quality, lien-free and in compliance with all Laws, and in such manner as to cause a minimum of interference with other construction in progress and with the transaction of business in the Project or Complex, as applicable. Tenant agrees to indemnify, defend and hold Landlord harmless against any loss, liability or damage resulting from such work, and Tenant shall, if requested by Landlord, furnish a bond or other security satisfactory to Landlord against any such loss, liability or damage. The foregoing indemnity shall survive the expiration or earlier termination of this Lease. Landlord’s consent to or approval of any alterations, additions or improvements (or the plans therefor) shall not constitute a representation or warranty by Landlord, nor Landlord’s acceptance, that the same comply with sound architectural and/or engineering practices or with all applicable Laws, and Tenant shall be solely responsible for ensuring all such compliance.

(b) Repairs; Maintenance .

(i) By Landlord . Landlord shall, subject to reimbursement as set forth in Exhibit C , keep and maintain in good repair and working order and make repairs to and perform maintenance upon: (1) the Building’s Structure; (2) the Building’s Systems; (3) Common Areas; (4) the roof of the Building; (5) exterior windows of the Building; and (6) elevators serving the Building, if any. If a shifting or settling of the foundation of the Building causes damage to Tenant’s flooring or wall covering, then Landlord agrees to make cosmetic repairs thereto, but shall not be required to replace same unless it causes a safety issue or materially interferes with Tenant’s use of the Premises for the Permitted Use. In addition: (i) if a shifting or settling of the foundation of the Building causes damage to the windows of the Premises, Landlord shall repair or replace such windows at Landlord’s cost; and (ii) Landlord shall replace ceiling tiles which are damaged due to roof leaks not caused by Tenant, its employees, agents or contractors. With respect to the foregoing, Landlord acknowledges and agrees that all such maintenance shall be performed to a standard comparable to the maintenance standards for comparable buildings in the CentrePort submarket of Dallas/Ft. Worth, Texas. Landlord shall not be liable for any failure to make any such repairs or to perform any maintenance unless such failure shall persist for an unreasonable time after Landlord first learns of the need for the subject repair or maintenance whether through written notice of the need of such repairs or maintenance by Tenant or otherwise. If any of the foregoing maintenance or repair is necessitated due to the acts or omissions of any Tenant Party, Tenant shall pay the costs of such repairs or maintenance to Landlord within thirty (30) days after receipt of an invoice, together with an administrative charge in an amount equal to ten percent (10%) of the cost of the repairs. Landlord shall not be liable to Tenant for any interruption of Tenant’s business or inconvenience caused due to any work performed in the Premises or in the Complex pursuant to Landlord’s rights and obligations under the Lease, provided, however, Landlord shall use commercially reasonable efforts to not disturb the normal conduct of Tenant’s business while

 

performing such repairs and maintenance. Except as otherwise specifically provided for herein to the contrary, Tenant waives the right to make repairs at Landlord’s expense under any law, statute or ordinance now or hereafter in effect. If Landlord fails to make any repairs or to perform any maintenance required of Landlord hereunder and within Landlord’s reasonable control, and such failure shall persist for an unreasonable time (not less than thirty (30) days) after written notice of the need for such repairs or maintenance is given to Landlord and unless Landlord has commenced such repairs or maintenance during such period and is diligently pursuing the same, and such failure creates a risk of bodily injury or property damage, Tenant may (but shall not be required to) following a second notice (which notice shall have a heading in at least 12-point type, bold and all caps “FAILURE TO RESPOND SHALL RESULT IN TENANT EXERCISING SELF-HELP RIGHTS” ) and Landlord’s failure to commence repairs within five (5) days after receipt of such second notice, perform such repairs or maintenance in accordance with the provisions of this Lease governing Tenant’s repairs and Alterations and Landlord shall reimburse Tenant for all reasonable costs and expenses therefor within thirty (30) days after presentation of appropriate invoices and back-up documentation.

If in an Emergency Situation (hereinafter defined), a repair to the Premises which Landlord is obligated to perform is required, Tenant shall make all reasonable efforts to contact Landlord and Landlord’s managing agent by telephone and/or e-mail to advise Landlord of the need for the repair. If after making reasonable efforts to contact Landlord, either Tenant is unable to contact Landlord or Landlord’s managing agent, or Tenant succeeds in contacting Landlord or Landlord’s managing agent and Landlord fails to undertake action to correct the Emergency Situation within one (1) Business Day, then Tenant may perform the repair using a contractor skilled in the repair of the item being repaired (or if it pertains to the roof, Landlord’s roofing contractor). Upon completion of the repair, Landlord shall be required to reimburse Tenant for the actual cost of the repair. Landlord’s payment shall be due within thirty (30) days after receipt of Tenant’s bill accompanied by reasonable evidence that Tenant has paid for the repair. For the purpose of this section, an “ Emergency Situation ” means a condition or state of facts which if not corrected would reasonably be expected to result in immediate bodily injury or material property damage. Tenant’s self-help right under this section shall not be exercised in any manner that would violate any applicable Law, invalidate any warranty of Landlord, damage the premises of any other tenant of the Complex, or breach of the peace.

(ii) By Tenant . Tenant shall, at its sole cost and expense, promptly perform all maintenance and repairs to the Premises that are not Landlord’s express responsibility under this Lease, and shall keep the Premises in good condition and repair, ordinary wear and tear excepted. Tenant’s repair obligations include, without limitation, repairs to: (1) floor covering and/or raised flooring; (2) interior partitions; (3) doors; (4) the interior side of demising walls; (5) electronic, phone and data cabling and related equipment (collectively, “ Cable ”) that is installed by or for the exclusive benefit of Tenant and located in the Premises or other portions of the Building or Project; (6) supplemental air conditioning units, private showers and kitchens, including hot water heaters, plumbing, dishwashers, ice machines and similar facilities serving Tenant exclusively; (7) phone rooms used exclusively by Tenant; (8) Alterations performed by contractors retained by or on behalf of Tenant; and (9) all of Tenant’s furnishings, trade fixtures, equipment and inventory. Landlord reserves the right to perform any of the foregoing maintenance or repair obligations or require that such obligations be performed by a contractor approved by Landlord in its reasonable discretion, all at Tenant’s expense

 

provided that any charge by Landlord for any such maintenance or repairs performed by it shall be competitively priced. All work shall be performed in accordance with the rules and procedures described in Section 8(a) . If Tenant fails to make any repairs to the Premises for more than fifteen (15) days after notice from Landlord (although notice shall not be required if there is an emergency, or if the area to be repaired is visible from the exterior of the Building), Landlord may, in addition to any other remedy available to Landlord, make the repairs, and Tenant shall pay the commercially reasonable cost of the repairs to Landlord within thirty (30) days after receipt of an invoice, together with an administrative charge in an amount equal to ten percent (10%) of the cost of the repairs. At the expiration of this Lease, Tenant shall surrender the Premises in good condition, excepting reasonable wear and tear, casualty damage and losses required to be restored by Landlord. If Landlord elects to store any personal property of Tenant, including goods, wares, merchandise, inventory, trade fixtures and other personal property of Tenant which is left in the Premises beyond the natural expiration date or, if applicable, in excess of ten (10) days beyond the earlier termination of this Lease, same shall be stored at the sole risk of Tenant. Except to the extent same results from the negligence of Landlord, Landlord or its agents shall not be liable for any loss or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Complex or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other places resulting from dampness or any other cause whatsoever, or from the act or negligence of any other tenant or any officer, agent, employee, contractor or guest of any such tenant. It is generally understood that mold spores are present essentially everywhere and that mold can grow in most any moist location. Emphasis is properly placed on prevention of moisture and on good housekeeping and ventilation practices. Tenant acknowledges the necessity of housekeeping, ventilation, and moisture control (especially in kitchens, janitor’s closets, bathrooms, break rooms and around outside walls) for mold prevention. In signing this Lease, Tenant has first inspected the Premises and certifies that it has not observed mold, mildew or moisture within the Premises. To the best of Landlord’s actual knowledge without investigation, on the date of this Lease there were no hazardous mold conditions at the Premises (subject to the statement above that mold spores are present essentially everywhere). Tenant agrees to immediately notify Landlord if it observes mold/mildew and/or moisture conditions (from any source, including leaks), and allow Landlord to evaluate and make recommendations and/or take appropriate corrective action. Except to the extent same results from the negligence of Landlord, or Landlord’s failure to perform its maintenance obligations after applicable notice and cure periods, Tenant relieves Landlord from any liability for any bodily injury or damages to property caused by or associated with moisture or the growth of or occurrence of mold or mildew on the Premises. In addition, execution of this Lease constitutes acknowledgement by Tenant that control of moisture and mold prevention are integral to its Lease obligations.

(iii) Performance of Work . All work described in this Section 8 shall be performed only by contractors and subcontractors approved in writing by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. Tenant shall cause all contractors and subcontractors to procure and maintain insurance coverage naming Landlord, Landlord’s property management company and INVESCO Institutional (N.A.), Inc. (“ Invesco ”) as additional insureds against such risks, in such amounts, and with such companies as Landlord may reasonably require. Tenant shall provide Landlord with the identities, mailing addresses and telephone numbers of all persons performing work or supplying materials prior to beginning

 

such construction and Landlord may post on and about the Premises notices of non-responsibility pursuant to applicable Laws. All such work shall be performed in accordance with all Laws and in a good and workmanlike manner so as not to damage the Building (including the Premises, the Building’s Structure and the Building’s Systems). All such work which may affect the Building’s Structure or the Building’s Systems, at Landlord’s election, must be performed by Landlord’s usual contractor for such work or a contractor approved by Landlord in its reasonable discretion. All work affecting the roof of the Building must be performed by Landlord’s roofing contractor or a contractor approved by Landlord in its reasonable discretion and no such work will be permitted if it would void or reduce the warranty on the roof.

(c) Mechanic’s Liens . All work performed, materials furnished, or obligations incurred by or at the request of a Tenant Party shall be deemed authorized and ordered by Tenant only, and Tenant shall not permit any mechanic’s liens to be filed against the Premises or the Project in connection therewith. Upon completion of any such work, Tenant shall deliver to Landlord final lien waivers from all contractors, subcontractors and materialmen who performed such work. If such a lien is filed, then Tenant shall, within ten (10) days after Landlord has delivered notice of the filing thereof to Tenant (or such earlier time period as may be necessary to prevent the forfeiture of the Premises, Project or any interest of Landlord therein or the imposition of a civil or criminal fine with respect thereto), either: (1) pay the amount of the lien and cause the lien to be released of record; or (2) diligently contest such lien and deliver to Landlord a bond or other security reasonably satisfactory to Landlord. If Tenant fails to timely take either such action, then Landlord may pay the lien claim, and any amounts so paid, including expenses and interest, shall be paid by Tenant to Landlord within ten (10) days after Landlord has invoiced Tenant therefor. Landlord and Tenant acknowledge and agree that their relationship is and shall be solely that of “landlord-tenant” (thereby excluding a relationship of “owner-contractor,” “owner-agent” or other similar relationships). Accordingly, all materialmen, contractors, artisans, mechanics, laborers and any other persons now or hereafter contracting with Tenant, any contractor or subcontractor of Tenant or any other Tenant Party for the furnishing of any labor, services, materials, supplies or equipment with respect to any portion of the Premises, at any time from the date hereof until the end of the Term, are hereby charged with notice that they look exclusively to Tenant to obtain payment for same. Nothing herein shall be deemed a consent by Landlord to any liens being placed upon the Premises, Project or Landlord’s interest therein due to any work performed by or for Tenant or deemed to give any contractor or subcontractor or materialman any right or interest in any funds held by Landlord to reimburse Tenant for any portion of the cost of such work. Tenant shall indemnify, defend and hold harmless Landlord, its property manager, Invesco, any subsidiary or affiliate of the foregoing, and their respective officers, directors, shareholders, partners, employees, managers, contractors, attorneys and agents (collectively, the “ Indemnitees ”) from and against all claims, demands, causes of action, suits, judgments, damages and expenses (including attorneys’ fees) in any way arising from or relating to the failure by any Tenant Party to pay for any work performed, materials furnished, or obligations incurred by or at the request of a Tenant Party. The foregoing indemnity shall survive termination or expiration of this Lease.

(d) Signs . Tenant shall not place or permit to be placed any signs upon: (i) the roof of the Building; or (ii) the Common Areas; or (iii) any area visible from the exterior of the Premises without Landlord’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed provided any proposed sign is placed only in

 

those locations as may be reasonably designated by Landlord, and complies with the reasonable non-discriminatory sign criteria promulgated by Landlord from time to time. Upon request of Landlord, Tenant shall immediately remove any sign, advertising material or lettering which Tenant has placed or permitted to be placed upon the exterior or interior surface of any door or window or at any point inside the Premises visible from the exterior of the Premises, which in Landlord’s reasonable opinion, is of such a nature as to not be in keeping with the standards of the Building, and if Tenant fails to do so, Landlord may without liability remove the same at Tenant’s expense. Tenant shall comply with such reasonable non-discriminatory regulations as may from time to time be promulgated by Landlord governing signs, advertising material or lettering of all tenants in the Project or Complex, as applicable. The Tenant, upon vacation of the Premises, or the removal or alteration of its sign for any reason, shall be responsible for the repair, painting or replacement of the Building fascia surface or other portion of the Building where signs are attached. If Tenant fails to do so, Landlord may have the sign removed and the cost of removal plus ten percent (10%) as an administrative fee shall be payable by Tenant within ten (10) days of invoice.

During the initial Term, Tenant shall have the exclusive right to place its name on the Building and one (1) existing monument sign in front of the Building (the “ Signage ”). The Signage shall be installed and maintained at Tenant’s sole cost and expense throughout the Term. The rights of Tenant under this paragraph: (i) are personal to Tenant and may not be assigned to any other party (other than a Permitted Transferee, an assignee of the Lease, or a subtenant of all the Premises); and (ii) are terminable by Landlord if Tenant reduces the size of the Premises below thirty thousand (30,000) square feet, notwithstanding the consent of Landlord thereto, and if the size of the Premises is reduced to forty thousand (40,000) square feet or less, then any monument signage shall be shared with other Building tenants. If Tenant subleases a portion of the Premises, then such subtenant shall have no right to Building signage, but Tenant may share its monument signage space with such subtenant. The location, size, material and design of the Signage must comply with any recorded restrictions affecting the Building and shall be subject to the prior written approval of Landlord, such approval not to be unreasonably withheld, conditioned or delayed. Tenant shall be responsible for compliance with Laws. Upon the expiration or earlier termination of this Lease or the termination of Tenant’s sign rights as set forth herein, Tenant shall remove the Signage, at Tenant’s sole cost and expense, and restore the monument sign and Building to its condition immediately prior to the installation of the Signage. If Tenant fails to timely remove the Signage, then the Signage shall conclusively be deemed to have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without further notice to Tenant or any other person and without obligation to account therefor. Tenant shall reimburse Landlord for all reasonable costs incurred by Landlord in connection therewith within thirty (30) days of Landlord’s invoice. The provisions of this paragraph shall survive the expiration or earlier termination of the Lease.

9. Use . Tenant shall continuously occupy and use the Premises only for the Permitted Use (as set forth in the Basic Lease Information) and shall comply with all Laws relating to Tenant’s specific use, condition, access to, and occupancy of the Premises and will not commit waste, overload the Building’s Structure or the Building’s Systems or subject the Premises to any use that would damage the Premises. Tenant, at its sole cost and expense, shall obtain and keep in effect during the term, all permits, licenses, and other authorizations necessary to permit Tenant to use and occupy the Premises for the Permitted Use in accordance

 

with applicable Law. Notwithstanding anything in this Lease to the contrary, as between Landlord and Tenant: (a) Tenant shall bear the risk of complying with Title III of the Americans With Disabilities Act of 1990, any state laws governing handicapped access or architectural barriers, and all rules, regulations, and guidelines promulgated under such laws, as amended from time to time (the “ Disabilities Acts ”) in the Premises; and (b) Landlord shall bear the risk of complying with the Disabilities Acts in the Common Areas (subject to reimbursement as set forth in Exhibit C ), other than compliance that is necessitated by the use of the Premises for other than the Permitted Use or as a result of any alterations or additions made by Tenant (which risk and responsibility shall be borne by Tenant). The Premises shall not be used for any purpose which creates strong, unusual, or offensive odors, fumes, dust or vapors; which emits noise or sounds that are objectionable due to intermittence, beat, frequency, shrillness, or loudness; which is associated with indecent or pornographic matters; or which involves political or moral issues (such as abortion issues). Tenant shall conduct its business and control each other Tenant Party so as not to create any nuisance or unreasonably interfere with other tenants or Landlord in its management of the Building. Tenant shall not knowingly conduct or permit to be conducted in the Premises any activity, or place any equipment in or about the Premises or the Building, which will invalidate the insurance coverage in effect or increase the rate of fire insurance or other insurance on the Premises or the Building. If any invalidation of coverage or increase in the rate of fire insurance or other insurance occurs or is threatened by any insurance company due to activity conducted from the Premises, or any act or omission by Tenant, or its agents, employees, representatives, or contractors, such statement or threat shall be conclusive evidence that the increase in such rate is due to such act of Tenant or the contents or equipment in or about the Premises, and, as a result thereof, Tenant shall be liable for such increase and shall be considered Additional Rent payable with the next monthly installment of Base Rent due under this Lease. In no event shall Tenant introduce or permit to be kept on the Premises or brought into the Building any dangerous, noxious, radioactive or explosive substance.

10. Assignment and Subletting .

(a) Transfers . Except as expressly set forth below, Tenant shall not, without the prior written consent of Landlord, such consent not to be unreasonably withheld, conditioned or delayed: (1) assign, transfer, or encumber this Lease or any estate or interest herein, whether directly or by operation of law; (2) permit any other entity to become Tenant hereunder by merger, consolidation, or other reorganization; (3) if Tenant is an entity other than a corporation whose stock is publicly traded, permit the transfer of an ownership interest in Tenant so as to result in a change in the current control of Tenant; (4) sublet any portion of the Premises; (5) grant any license, concession, or other right of occupancy of any portion of the Premises; or (6) permit the use of the Premises by any parties other than Tenant (any of the events listed in Section 10(a)(1) through Section 10(a)(6) being a “ Transfer ”). Notwithstanding the foregoing, a collateral assignment of the Lease to a third party lender for financial purposes shall not be deemed a Transfer, but such lender shall be subject to the consent provisions of this Lease in the event of any foreclosure of any security interest in the Lease.

(b) Consent Standards . Landlord shall not unreasonably withhold or delay its consent to any assignment or subletting of the Premises, provided that Tenant is not then in default under the Lease before any applicable notice and cure period and the proposed transferee: (1) is creditworthy; (2) has a good reputation in the business community; (3) will use the

 

Premises for the Permitted Use and will not use the Premises in any manner that would conflict with any exclusive use agreement or other similar agreement entered into by Landlord with any other tenant of the Project or Complex, as applicable; (4) will not use the Premises, Project or Complex in a manner that would materially increase the pedestrian or vehicular traffic to the Premises, Project or Complex; (5) is not a governmental entity, or subdivision or agency thereof; (6) is not another occupant of the Building or Complex, as applicable (provided that Landlord has space available in the Complex that meets the needs of such occupant); and (7) is not a person or entity with whom Landlord is then negotiating to lease space in the Building or Complex, as applicable, or any Affiliate of any such person or entity (and Landlord agrees upon Tenant’s request to provide a list of such negotiating persons or entities, or if Landlord elects to not provide such a list then consent may not be denied based on Tenant’s proposed transfer to such persons or entities under this subsection (7)); otherwise, Landlord may withhold its consent in its sole discretion.

(c) Request for Consent . If Tenant requests Landlord’s consent to a Transfer, then, at least thirty (30) days prior to the effective date of the proposed Transfer, Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed pertinent documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; banking, financial, and other credit information; and general references sufficient to enable Landlord to determine the proposed transferee’s creditworthiness and character. Concurrently with Tenant’s notice of any request for consent to a Transfer, Tenant shall pay to Landlord a fee of $500.00 to defray Landlord’s expenses in reviewing such request, and Tenant shall also reimburse Landlord immediately upon request for its reasonable attorneys’ fees not to exceed $2,500.00 incurred in connection with considering any request for consent to a Transfer.

(d) Conditions to Consent . If Landlord consents to a proposed assignment of this Lease, then the proposed assignee shall deliver to Landlord a written agreement whereby it expressly assumes Tenant’s obligations hereunder. In the event the Landlord consents to a proposed sublease, the subject sublessee shall deliver to Landlord a written agreement acknowledging that its sublease is subject and subordinate in all respects to the terms and conditions of this Lease. No Transfer shall release Tenant from its obligations under this Lease. Furthermore, in the event of an assignment of this Lease, Tenant and its transferee shall be jointly and severally liable therefor. Landlord’s consent to any Transfer shall not be deemed consent to any subsequent Transfers. If an Event of Default occurs while the Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Rent. Tenant authorizes its transferees to make payments of rent directly to Landlord upon receipt of notice from Landlord to do so following the occurrence of an Event of Default hereunder. Tenant shall pay for the cost of any demising walls or other improvements necessitated by a proposed subletting or assignment.

(e) Attornment by Subtenants . Each sublease by Tenant hereunder shall be subject and subordinate to this Lease and to the matters to which this Lease is or shall be subordinate, and each subtenant by entering into a sublease is deemed to have agreed that in the event of termination, re-entry or dispossession by Landlord under this Lease, Landlord may, at

 

its option, either terminate the sublease or take over all of the right, title and interest of Tenant, as sublandlord, under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease.

(f) Cancellation . Landlord may, within fifteen (15) days after submission of Tenant’s written request for Landlord’s consent to an assignment of the Lease or a subletting of the entire Premises for the remainder of the Lease Term, cancel this Lease as of the date the proposed Transfer is to be effective. If Landlord cancels this Lease, Tenant shall pay to Landlord all Rent accrued through the cancellation date. Thereafter, Landlord may lease the Premises or any portion thereof to the prospective transferee (or to any other person) without liability to Tenant. Notwithstanding the foregoing, in the event Landlord so elects to provide such a termination notice within said fifteen (15) day period, then, Tenant shall have the right to render such cancellation notice null and void by providing Landlord notice of its election to withdraw such subletting/assignment request within ten (10) days of its receipt of Landlord’s notice of cancellation.

(g) Additional Compensation . Tenant shall pay to Landlord, immediately upon receipt thereof, fifty percent (50%) of the excess of all compensation received by Tenant for a Transfer over the Rent allocable to the portion of the Premises covered thereby, after deducting the following costs and expenses for such Transfer (which costs will be amortized over the term of the sublease or assignment pursuant to sound accounting principles and deducted monthly from such excess): (1) brokerage commissions and reasonable attorneys’ fees; (2) advertising for subtenants or assignees; (3) the actual costs paid in making any improvements or substitutions in the Premises required by any sublease or assignment; and (4) the costs of any inducements or concessions given to the subtenant or assignee.

(h) Permitted Transfers . Notwithstanding Section 10(a) , Tenant may Transfer all or part of its interest in this Lease or all or part of the Premises (a “ Permitted Transfer ”) to the following types of entities (a “ Permitted Transferee ”) without the written consent of Landlord:

(1) an Affiliate of Tenant;

(2) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of business entities, so long as (A) Tenant’s obligations hereunder are assumed by the entity surviving such merger or created by such consolidation; and (B) the Tangible Net Worth of the surviving or created entity is not less than Fifteen Million Dollars ($15,000,000); or

(3) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity acquiring all or substantially all of Tenant’s assets if such entity’s Tangible Net Worth after such acquisition is not less than Fifteen Million Dollars ($15,000,000).

 

Tenant shall promptly notify Landlord of any such Permitted Transfer. Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder, or if Tenant no longer exists because of a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume in writing the obligations of Tenant hereunder. Additionally, the Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Permitted Use, and the use of the Premises by the Permitted Transferee may not violate any other exclusive use agreements affecting the Premises, the Building or the Complex, Landlord or other tenants of the Complex. No later than ten (10) Business Days after the effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with (A) copies of the instrument effecting any of the foregoing Transfers, (B) documentation establishing Tenant’s satisfaction of the requirements set forth above applicable to any such Transfer, and (C) evidence of insurance as required under this Lease with respect to the Permitted Transferee. The occurrence of a Permitted Transfer shall not waive Landlord’s rights as to any subsequent Transfers. “ Tangible Net Worth ” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied (“ GAAP ”), excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted Transferee shall be subject to the terms of this Section 10 .

11. Insurance; Waivers; Subrogation; Indemnity .

(a) Tenant’s Insurance . Effective as of the earlier of: (1) the date Tenant enters or occupies any portion of the Premises; or (2) the Initial Premises Commencement Date, and continuing throughout the Term, Tenant shall maintain the following insurance policies: (A) commercial general liability insurance in amounts of $3,000,000 per occurrence or, following the expiration of the Initial Term, such other amounts as Landlord may from time to time reasonably require (and, if the use and occupancy of the Premises include any activity or matter that is or may be excluded from coverage under a commercial general liability policy [e.g., the sale, service or consumption of alcoholic beverages], Tenant shall obtain such endorsements to the commercial general liability policy or otherwise obtain insurance to insure all liability arising from such activity or matter [including liquor liability, if applicable] in such amounts as Landlord may reasonably require), insuring Tenant, Landlord, Landlord’s property management company and Invesco against all liability for injury to or death of a person or persons or damage to property arising from the use and occupancy of the Premises and (without implying any consent by Landlord to the installation thereof) the installation, operation, maintenance, repair or removal of Tenant’s Off-Premises Equipment with an additional insured endorsement in form CG 20 26 11 85 or equivalent; (B)Automobile Liability covering any owned, non-owned, leased, rented or borrowed vehicles of Tenant with limits no less than $3,000,000 combined single limit for property damage and bodily injury; (C) All Risk Property insurance covering the full value of all Alterations and improvements and betterments in the Premises, naming Landlord and Landlord’s Mortgagee (as defined in Section 12(a)) as additional loss payees as their interests may appear; (D) All Risk Property insurance covering the full value of all furniture, trade fixtures and personal property (including property of Tenant or others) in the Premises or otherwise placed in the Project by or on behalf of a Tenant Party (including Tenant’s Off-Premises Equipment) it being understood that no lack or inadequacy of

 

insurance by Tenant shall in any event make Landlord subject to any claim by virtue of any theft of or loss or damage to any uninsured or inadequately insured property; (E) contractual liability insurance sufficient to cover Tenant’s indemnity obligations hereunder (but only if such contractual liability insurance is not already included in Tenant’s commercial general liability insurance policy); (F) worker’s compensation insurance in amounts not less than statutorily required, and Employers’ Liability insurance with limits of not less than Three Million Dollars ($3,000,000); (G) business interruption insurance in an amount that will reimburse Tenant for direct or indirect loss of earnings attributable to all perils insured against under Section 11(a)(2)(C) or attributable to the prevention of access to the Building or Premises; (H) in the event Tenant performs any alterations or repairs in, on, or to the Premises, to the extent not covered by the All Risk Property insurance required under Section 11(a)(2)(D) hereinabove, Builder’s Risk Insurance on an All Risk basis (including collapse) on a completed value (non-reporting) form, or by endorsement including such coverage pursuant to Section 11(a)(2)(C) hereinabove, for full replacement value covering all work incorporated in the Building and all materials and equipment in or about the Premises; and (I) such other insurance or any changes or endorsements to the insurance required herein, including increased limits of coverage, as Landlord, or any mortgagee or lessor of Landlord, may reasonably require from time to time, but only in the event and to the extent such coverages are commonly required by like landlords of similar properties and coverage is commercially available in the insurance industry. Tenant’s insurance shall provide primary coverage to Landlord and shall not require contribution by any insurance maintained by Landlord, when any policy issued to Landlord provides duplicate or similar coverage, and in such circumstance Landlord’s policy will be excess over Tenant’s policy. Tenant shall furnish to Landlord certificates of such insurance, with an additional insured endorsement in form CG 20 26 11 85 or equivalent, and such other evidence satisfactory to Landlord of the maintenance of all insurance coverages required hereunder at least ten (10) days prior to the earlier of the Initial Premises Commencement Date or the date Tenant enters or occupies any portion of the Premises, and at least fifteen (15) days prior to each renewal of said insurance, and Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord at least thirty (30) days before cancellation of any such insurance policies. All such insurance policies shall be in form, and issued by companies with a Best’s rating of A:VII or better, reasonably satisfactory to Landlord. If Tenant fails to comply with the foregoing insurance requirements or to deliver to Landlord the certificates or evidence of coverage required herein, and such failure continues for a period of two (2) Business Days following the date of written notice thereof from Landlord to Tenant, Landlord, in addition to any other remedy available pursuant to this Lease or otherwise, may, but shall not be obligated to, obtain such insurance and Tenant shall pay to Landlord on demand the premium costs thereof, plus an administrative fee of ten percent (10%) of such cost. It is expressly understood and agreed that the foregoing minimum limits of insurance coverage shall not limit the liability of Tenant for its acts or omissions as provided in this Lease. All of Tenant’s insurance policies may contain commercially reasonable deductibles and self-insured retentions.

(b) Landlord’s Insurance . Throughout the Term of this Lease, Landlord shall maintain, as a minimum, the following insurance policies: (1) property insurance for the Building’s replacement value (excluding property required to be insured by Tenant), less a commercially-reasonable deductible if Landlord so chooses; and (2) commercial general liability insurance in an amount of not less than $3,000,000. Landlord may, but is not obligated to, maintain such other insurance and additional coverages as it may deem necessary in its

 

commercially reasonable discretion. Tenant shall pay its Proportionate Share of the cost of all commercially reasonable insurance carried by Landlord with respect to the Project or Complex, as applicable, as set forth on Exhibit C . The foregoing insurance policies and any other insurance carried by Landlord shall be for the sole benefit of Landlord and under Landlord’s sole control, and Tenant shall have no right or claim to any proceeds thereof or any other rights thereunder.

(c) No Subrogation . LANDLORD AND TENANT EACH WAIVES ANY CLAIM IT MIGHT HAVE AGAINST THE OTHER FOR ANY DAMAGE TO OR THEFT, DESTRUCTION, LOSS, OR LOSS OF USE OF ANY PROPERTY, TO THE EXTENT THE SAME IS INSURED AGAINST UNDER ANY INSURANCE POLICY THAT COVERS THE BUILDING, THE PREMISES, LANDLORD’S OR TENANT’S FIXTURES, PERSONAL PROPERTY, LEASEHOLD IMPROVEMENTS, OR BUSINESS, OR IS REQUIRED TO BE INSURED AGAINST UNDER THE TERMS HEREOF, REGARDLESS OF WHETHER THE NEGLIGENCE OF THE OTHER PARTY CAUSED SUCH LOSS (DEFINED BELOW). LANDLORD AND TENANT EACH HEREBY WAIVE ANY RIGHT OF SUBROGATION AND RIGHT OF RECOVERY OR CAUSE OF ACTION FOR INJURY INCLUDING DEATH OR DISEASE TO RESPECTIVE EMPLOYEES OF EITHER AS COVERED BY WORKER’S COMPENSATION (OR WHICH WOULD HAVE BEEN COVERED IF TENANT OR LANDLORD AS THE CASE MAY BE, WAS CARRYING THE INSURANCE AS REQUIRED BY THIS LEASE). EACH PARTY SHALL CAUSE ITS INSURANCE CARRIER TO ENDORSE ALL APPLICABLE POLICIES WAIVING THE CARRIER’S RIGHTS OF RECOVERY UNDER SUBROGATION OR OTHERWISE AGAINST THE OTHER PARTY.

(d) Indemnity . Intentionally deleted.

12. Subordination; Attornment; Notice to Landlord’s Mortgagee .

(a) Subordination . This Lease shall be subordinate to any deed of trust, mortgage, or other security instrument (each, a “ Mortgage ”), or any ground lease, master lease, or primary lease (each, a “ Primary Lease ”), that now or hereafter covers all or any part of the Premises (the mortgagee under any such Mortgage, beneficiary under any such deed of trust, or the lessor under any such Primary Lease is referred to herein as a “ Landlord’s Mortgagee ”). Notwithstanding the foregoing, the subordination of this Lease to future Mortgages shall be subject to Tenant’s receipt of a non-disturbance agreement reasonably acceptable to Tenant which provides in substance that so long as Tenant is not in default under the Lease past applicable cure periods, its use and occupancy of the Premises shall not be disturbed notwithstanding any default of Landlord under such Mortgage. Any Landlord’s Mortgagee may elect at any time, unilaterally, to make this Lease superior to its Mortgage, Primary Lease, or other interest in the Premises by so notifying Tenant in writing. The provisions of this Section shall be self-operative and no further instrument of subordination shall be required; however, in confirmation of such subordination, Tenant shall execute and return to Landlord (or such other party designated by Landlord) within ten (10) days after written request therefor such documentation, in recordable form if required, as a Landlord’s Mortgagee may reasonably request to evidence the subordination of this Lease to such Landlord’s Mortgagee’s Mortgage or

 

Primary Lease (including a subordination, non-disturbance and attornment agreement) or, if the Landlord’s Mortgagee so elects, the subordination of such Landlord’s Mortgagee’s Mortgage or Primary Lease to this Lease.

(b) Attornment . Tenant shall attorn to any party succeeding to Landlord’s interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party’s request, and shall execute such agreements confirming such attornment as such party may reasonably request.

(c) Notice to Landlord’s Mortgagee . Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail, to any Landlord’s Mortgagee whose address has been given to Tenant, and affording such Landlord’s Mortgagee a reasonable opportunity to perform Landlord’s obligations (except the self-help repairs described in Section 8(b) ) not to exceed sixty (60) days after the expiration of any applicable Landlord cure period hereunder.

(d) Landlord’s Mortgagee’s Protection Provisions . If Landlord’s Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord’s Mortgagee shall not be: (1) liable for any act or omission of any prior lessor (including Landlord) excepting those of a continuing or ongoing nature; (2) bound by any rent or additional rent or advance rent which Tenant might have paid for more than one (1) month in advance to any prior lessor (including Landlord) unless consented to by Landlord’s Mortgagee, and all such rent shall remain due and owing, notwithstanding such advance payment; (3) bound by any security or advance rental deposit made by Tenant which is not delivered or paid over to Landlord’s Mortgagee and with respect to which Tenant shall look solely to Landlord for refund or reimbursement; (4) bound by any termination, amendment or modification of this Lease made without Landlord’s Mortgagee’s consent and written approval, except for those terminations, amendments and modifications permitted to be made by Landlord without Landlord’s Mortgagee’s consent pursuant to the terms of the loan documents between Landlord and Landlord’s Mortgagee; (5) subject to the defenses which Tenant might have against any prior lessor (including Landlord); and (6) subject to the offsets which Tenant might have against any prior lessor (including Landlord) except for those offset rights which (A) are expressly provided in this Lease, (B) relate to periods of time following the acquisition of the Building by Landlord’s Mortgagee, and (C) Tenant has provided written notice to Landlord’s Mortgagee and provided Landlord’s Mortgagee a reasonable opportunity to cure the event giving rise to such offset event not to exceed sixty (60) days after the expiration of Landlord’s cure period. Landlord’s Mortgagee shall have no liability or responsibility under or pursuant to the terms of this Lease or otherwise after it ceases to own an interest in the Building. Nothing in this Lease shall be construed to require Landlord’s Mortgagee to see to the application of the proceeds of any loan, and Tenant’s agreements set forth herein shall not be impaired on account of any modification of the documents evidencing and securing any loan. Landlord hereby confirms that as of the date of this Lease, there is no mortgage encumbering the Project.

13. Rules and Regulations . Tenant shall comply with the rules and regulations of the Building which are attached hereto as Exhibit E . Landlord may, from time to time, change such rules and regulations for the safety, care, or cleanliness of the Building and related facilities,

 

provided that such changes are applicable to all tenants of the Building, will not unreasonably interfere with Tenant’s use of the Premises and are enforced by Landlord in a non-discriminatory manner. Tenant shall be responsible for the compliance with such rules and regulations by each Tenant Party.

14. Condemnation .

(a) Total Taking . If the entire Building or Premises are taken by right of eminent domain or conveyed in lieu thereof (a “ Taking ”), this Lease shall terminate as of the date of the Taking.

(b) Partial Taking - Tenant’s Rights . If any part of the Building becomes subject to a Taking and such Taking will prevent Tenant from conducting its business in the Premises in a manner reasonably comparable to that conducted immediately before such Taking for a period of more than one hundred eighty (180) days, then Tenant may terminate this Lease as of the date of such Taking by giving written notice to Landlord within thirty (30) days after the Taking, and Rent shall be apportioned as of the date of such Taking. In addition, Tenant may terminate the Lease by written notice given within thirty (30) days of the Taking if: (i) the portion of the Parking Area remaining following such Taking plus any additional parking area provided by Landlord from adjacent properties shall be less than eighty percent (80%) of the Parking Area immediately prior to the Taking; or (ii) all access points to the Premises from public roadways are taken, unless a reasonable alternate access point to a public roadway is provided by Landlord. If Tenant does not terminate this Lease, then Rent shall be abated on a reasonable basis as to that portion of the Premises rendered untenantable by the Taking.

(c) Partial Taking - Landlord’s Rights . If any material portion, but less than all, of the Building becomes subject to a Taking, or if Landlord is required to pay any material portion of the proceeds arising from a material Taking to a Landlord’s Mortgagee, then Landlord may terminate this Lease by delivering written notice thereof to Tenant within thirty (30) days after such Taking, and Rent shall be apportioned as of the date of such Taking. With respect to the foregoing, Landlord acknowledges and agrees that its right to terminate Tenant’s lease as a result of a Partial Taking allowed for in this subsection (c) shall be subject to the Landlord likewise terminating all other leases within the Building which it has a right to terminate as a result of such Partial Taking. If Landlord does not so terminate this Lease, then this Lease will continue, but if any portion of the Premises has been taken, Rent shall abate as provided in the last sentence of Section 14(b) .

(d) Award . If any Taking occurs, then Landlord shall receive the entire award or other compensation for the Land, the Building, and other improvements taken; however, Tenant may separately pursue a claim (to the extent it will not reduce Landlord’s award) against the condemnor for the value of Tenant’s personal property which Tenant is entitled to remove under this Lease, moving costs, loss of business, and other claims it may have.

 

15. Fire or Other Casualty .

(a) Repair Estimate . If the Premises or the Building are damaged by fire or other casualty (a “ Casualty ”), Landlord shall use good faith efforts to deliver to Tenant within sixty (60) days after such Casualty a good faith estimate (the “ Damage Notice ”) of the time needed to repair the damage caused by such Casualty.

(b) Tenant’s Rights . If a material portion of the Premises is damaged by Casualty such that Tenant is prevented from conducting its business in the Premises in a manner reasonably comparable to that conducted immediately before such Casualty and Landlord estimates that the damage caused thereby cannot be repaired within one hundred eighty (180) days after the occurrence of such Casualty event (the “ Repair Period ”), then Tenant may terminate this Lease by delivering written notice to Landlord of its election to terminate within thirty (30) days after the Damage Notice has been delivered to Tenant.

(c) Landlord’s Rights . If a Casualty damages the Premises or a material portion of the Building and: (1) Landlord and an independent third party contractor estimates that the damage to the Premises cannot be repaired within the Repair Period; (2) the damage to the Premises exceeds fifty percent (50%) of the replacement cost thereof (excluding foundations and footings), as estimated by Landlord, and such damage occurs during the last year of the Term; (3) regardless of the extent of damage to the Premises (provided the estimated costs to repair the damages is $500,000.00 or more), Landlord makes a good faith determination that restoring the Building would be uneconomical; or (4) Landlord is required to pay any insurance proceeds arising out of the Casualty to a Landlord’s Mortgagee, then Landlord may terminate this Lease by giving written notice of its election to terminate within thirty (30) days after the Damage Notice has been delivered to Tenant. With respect to the foregoing, Landlord acknowledges a