Sample Business Contracts

May 31, 2001

Oakmont Industrial Group I, L.P., a Georgia limited partnership

Garden Fresh Restaurant Corp., a Delaware corporation

1325 Chastain Road, Kennesaw, Georgia 30144

Approximately 32,040 square feet of Rentable Area located in the Building

Office, Warehouse and Food and Product Distribution

Eighty-Four (84) Months

July 1, 2001

June 30, 2008

241,100 square feet

32,040 square feet

13.29 percent

(per annum per sq. ft. of

Rentable Area of Premises)

$3.50 for the first year of the Lease Term with annual increases effective as of each anniversary of the Commencement Date in an amount equal to the lesser of: (i) three percent (3%) or (ii) two hundred percent (200%) of the increase in the Price Index, as defined in Exhibit “E,” occurring during the preceding year of the Lease Term (See Special Stipulation #1 of Exhibit “E”).

$18,690

For Notices:

OAKMONT INDUSTRIAL GROUP I, L.P.

Suite 365

3520 Piedmont Road

Atlanta, Georgia 30305

Attn: Stephen L. Nelsen

Prior to and following Rental commencement date:

17180 Bernardo Center Drive

San Diego, California 92128

ATTN: Kathleen E. Salerno

CB Richard Ellis

EXHIBIT “A”:

Floor Plan(s)

EXHIBIT “B”:

Memorandum of Commencement of Rental

EXHIBIT “C”:

Rules and Regulations

EXHIBIT “D”:

Subordination, Non-Disturbance and Attornment Agreement

EXHIBIT “E”

Additional Provisions

EXHIBIT “F”

Work Agreement

EXHIBIT “G”

Form Landlord Lien Subordination

Not Applicable

LANDLORD:

 

OAKMONT INDUSTRIAL GROUP I, L.P., a Georgia limited partnership

By:

Oakmont Industrial Group, LLC, a Georgia limited liability company, its general partner

By:

/s/ [ILLEGIBLE]

Its:

Exec. VP

[SEAL]

TENANT:

GARDEN FRESH RESTAURANT CORP., a Delaware corporation

By:

/s/ [ILLEGIBLE]

Its:

CEO President

Attest:

By:

/s/ [ILLEGIBLE]

Its:

CFO Secretary

[CORPORATE SEAL]

1.

Definitions

2.

Term; Completion of Improvements

3.

Rental

4.

Use

5.

Services

6.

Personal Property Taxes

7.

Alterations

8.

Liens

9.

Repairs

10.

Destruction or Damage

11.

Insurance

12.

Release and Subrogation

13.

Tenant’s Personal Property

14.

Indemnification

15.

Compliance with Legal Requirements

16.

Assignment and Subletting

17.

Signs

18.

Rules

19.

Entry by Landlord

20.

Environmental Matters

21.

Landlord’s Lien

22.

Events of Defaults

23.

Remedies

24.

Landlord’s Right to Cure Defaults

25.

Attorney’s Fees

26.

Landlord’s Default

27.

Eminent Domain

28.

Subordination

29.

No Merger

30.

Sale

31.

Estoppel Certificate

32.

No Light, Air or View Easement

33.

Holding Over

34.

Abandonment

35.

Security Deposit

36.

Waiver

37.

Notices

38.

Complete Agreement

39.

Corporate Authority

40.

Landlord Liability

41.

Quiet Enjoyment

42.

Force Majeure

43.

Certain Rights Reserved to Landlord

44.

Bankruptcy Matters

45.

Americans With Disabilities Act

46.

Miscellaneous

47.

Broker Representation

48.

Financial Reports

49.

Exhibits; Additional Provisions

For the purposes of this Lease and in addition to the terms defined elsewhere in this Lease, the following defined terms shall have the meanings ascribed thereto in this Paragraph 1:

1.01 “Additional Rental” shall mean the sums payable pursuant to subparagraph 3.01(b) of this Lease.

1.02 “Base Rental” shall mean the sums payable pursuant to subparagraph 3.01 (a) of this Lease.

1.03 “Intentionally Omitted.”

1.04 “Building” shall mean the land and other real property located at the address set forth in the Basic Lease Information, the building constructed thereon, and all other improvements on or appurtenances to said real property.

1.05 “Common Area” shall mean those areas and parts of the Building intended for the common use and/or benefit of all occupants of the Building, including among other facilities, shared use stairs, common corridors, common restrooms, parking areas (excluding, however, any reserved or designated parking areas), shared use sidewalks, shared use driveways, shared use service areas, shared use trash dumpsters, common loading areas, and landscaped areas, as such areas exist from time to time.

1.06 “Default Rate” shall mean a rate per annum equal to the lesser of (i) the Prime Rate plus three (3) percentage points or (ii) the highest rate of interest permitted by law.

1.07 “Insurance Expenses” shall mean all costs and expenses incurred by Landlord for all hazard, public-liability, and property damage insurance attributable to Building procured by Landlord in its sole and reasonable discretion.

1.08 “Premises” shall mean the portion of the Building which is highlighted or cross-hatched on the floor plan(s) attached hereto as Exhibit “A” and by this reference made a part hereof.

1.09 “Prime Rate” shall mean the prime rate or its equivalent announced and in effect from time to time by the Atlanta office of the Bank of America or its successor.

1.10 “Rentable Area” of the Premises and of the Building is stipulated by Landlord and Tenant to be the respective number of square feet set forth for each in the Basic Lease Information.

1.11 “Real Estate Taxes” shall mean all real estate taxes and assessments levied against, in respect to, or attributable to the Building or any other tax levied against Landlord as a substitution for, or in lieu of, any tax which would otherwise constitute a real estate tax or a specific tax on rentals from the Building, plus the cost of real estate tax consultants hired by Landlord in an effort to reduce the tax or assessment on which any tax provided for in this paragraph is based, plus the cost, including attorneys’ and appraisers’ fees, of any negotiation, contest, or appeal pursued by Landlord in an effort to reduce the tax or assessment on which any tax provided for in this Paragraph is based. Notwithstanding the foregoing, Landlord acknowledges and agrees that Tenant’s liability for the payment of the tax consultants fees shall be limited to the following: Tenant shall reimburse Landlord for up to $500.00 per year for the subject tax consultants base fee and shall reimburse Landlord for the percentage fee earned by the subject tax consultants based on the realized tax savings. Furthermore, Landlord acknowledges and agree that in the event Landlord is dissatisfied with the results of the initial contesting of the subject taxes by the tax consultants, and Landlord desires to further pursue the contesting thereof through legal action, then, in such event, Tenant shall only be responsible for the costs of the appeal thereof in the event Tenant consents to the appeal thereof, such consent not to be unreasonably withheld or delayed.

1.12 “Rental” shall mean, collectively, Base Rental, Additional Rental and all other sums payable by Tenant to Landlord which are deemed or designated Rental, additional rent or rent pursuant to the terms of this Lease.

1.13 “Tenant’s Percentage Share” shall mean the percentage figure specified in the Basic Lease Information. Landlord and Tenant acknowledge that Tenant’s Percentage Share has been obtained by dividing the Rentable Area of the Premises by the total Rentable Area of the Building, and multiplying such quotient by 100. In the event Tenant’s Percentage Share is changed during a calendar year by reason of a change in the Rentable Area of the Premises, Tenant’s Percentage Share shall thereafter mean the result obtained by dividing the new Rentable Area of the Premises by the total Rentable Area of the Building and multiplying such quotient by 100, and for the purposes of Paragraph 3 of this Lease, Tenant’s Percentage Share shall be determined on the basis of the number of days during such calendar year at each such percentage share.

2.01 The term of this Lease shall commence on the Commencement Date and, unless sooner terminated as hereinafter provided, shall end on the Expiration Date, as such dates are respectively specified in the Basic Lease Information. In relation to the foregoing, Landlord agrees to allow Tenant to enter into the Premises prior to the Commencement Date to allow for Tenant’s construction of the Tenant Improvements, as hereinafter defined. Landlord agrees to make the Premises available to Tenant for such entry immediately following Landlord’s and Tenant’s agreement on the Approved Plans and Specifications, as hereinafter defined. With respect thereto, Tenant and Landlord acknowledge and agree that all terms and conditions of this Lease shall be and remain in full force and effect from and after the date of Tenant’s initial entry into the Premises, provided, however, Additional Rental and Base Rental shall not be due and owing until such time as provided for under Section 2.02 below. In the event Tenant elects to enter the Premises early for the purpose of completing the Tenant Improvements, Tenant agrees that neither it nor its contractors or subcontractors will, in any manner, interfere with Landlord’s completion of the Landlord Improvements, as hereinafter defined. In addition to the above, Landlord acknowledges and agrees that, in the event Tenant completes the construction of its Tenant Improvements prior to the Commencement Date, Tenant shall have the right to commence conducting its business operations from the Premises at that time; provided, however, such early commencement of operations shall not change the Commencement Date or the Expiration Date of the Lease.

2.02 Base Rental and Additional Rental shall begin to accrue on the Commencement Date. Upon the request of Landlord, Tenant shall execute a memorandum confirming such commencement date of Base Rental and Additional Rental in the form attached hereto as Exhibit “B” and by this reference made a part hereof. Notwithstanding any other provision contained herein to the contrary, in the event the Additional Rental or Base Rental commencement dates, as provided for in the Memorandum of Commencement of Rental, differs from those dates provided for in the body of this Lease, for any reason whatsoever, the dates contained in said Memorandum of Commencement of Rental shall prevail. The first year of the Lease Term shall run from said Base Rental commencement date through that date which is one (1) year following said Base Rental commencement date.

2.03 Taking of possession by Tenant, for the purposes of commencing construction on the Tenant Improvements, shall be deemed conclusively to establish that the Premises are in good and satisfactory condition, as of when possession was so taken, subject, however, to only (i) punchlist items for the Landlord Improvements (which punchlist items must be identified within ten (10) days of substantial completion of such Landlord Improvements), and (ii) latent defects, if any, identified by Tenant in writing to Landlord within one year of the Commencement Date. Notwithstanding the foregoing, Landlord represents and warrants that the heating, ventilation and air conditioning system as well as the plumbing and electrical systems shall be operational as of the Commencement Date. In relation thereto, Tenant must advise Landlord of any components of such heating, ventilation, air conditioning, plumbing or electrical systems which Tenant finds not to be operational as of the Commencement Date within thirty (30) days following the Commencement Date. In the event Tenant fails to provide Landlord any such notice, Tenant shall be deemed to have accepted said heating, ventilation, air conditioning, plumbing and electrical systems as being operational as of the Commencement Date. Furthermore, Landlord hereby agrees that in the event any existing component(s) of either the plumbing system, electrical system or heating, ventilation or air-conditioning system serving the Premises which were in place prior to Tenant’s construction of the Tenant Improvements are in need of repair at anytime during the first year of the Lease term, then, Tenant shall only be responsible for the payment of the first $500.00 of the costs of each such repair, with Landlord being responsible for the payment of the costs of each such repair exceeding $500.00 during said first year of the Lease term. Tenant acknowledges that no representations as to the improvement or repair of Premises have been made by Landlord, unless such are expressly set forth in this Lease.

3.01 Tenant shall pay to Landlord throughout the term of this Lease, as rental for the Premises, the following sums:

The Base Rental due hereunder shall be due and owing annually; provided, however, said Base Rental shall be paid in equal monthly installments of one-twelfth (1/12th) of the product of (i) the number of square feet of Rentable Area of the Premises as specified in the Basic Lease Information, and (ii) the applicable square foot rate specified in the Basic Lease Information as the “Base Rental”.

In addition to the Base Rental payable pursuant to subparagraph 3.01 (a), for each calendar year of the term of this Lease, Tenant, as Additional Rental, shall pay Tenant’s Percentage Share, as specified in the Basic Lease Information, of each of (i) the Common Area maintenance and operation expenses (the “CAM Expenses”) and (ii) Landlord’s Real Estate Taxes and Insurance Expenses for such calendar year. CAM Expenses shall include all costs of Landlord in the operation, management, and maintenance of the Common Area, the manner and expenditures thereof to be in the sole discretion of Landlord. Such CAM Expenses shall include, but shall not be limited to, expenses incurred for water, sewer, landscape maintenance and irrigation, general maintenance and services, lighting, painting, cleaning, policing, inspecting, repair and replacement and management fees. In relation to the foregoing, Landlord acknowledges and agrees that the management fees it may charge a component of

CAM Expenses shall not exceed five percent (5%) of the gross revenues it receives from leases for space within the Building. In addition, the CAM Expenses shall include all costs and expenses of Landlord incurred in relation to the general maintenance of the roof of the Building. However, CAM Expenses shall not include costs associated with the replacement of the roof or the costs of those repairs thereto which are structural in nature as opposed to non-structural repairs such as patching, the repairing of flashing and the like. Prior to, or within a reasonable period of time following, the commencement of the term of this Lease, Landlord shall give Tenant written notice of Landlord’s estimate of the amount of Additional Rental per month payable pursuant to this subparagraph 3.01(b) for the period from the commencement of the term of this Lease through the immediately following December. Thereafter, the Additional Rental payable pursuant to this subparagraph 3.01(b) shall be determined and adjusted in accordance with the provisions of subparagraph 3.02. In relation to the foregoing, Landlord acknowledges that it has provided Tenant an estimate of (x) CAM Expenses of twenty-eight cents (.28) per square foot per year for the year 2001, (y) Insurance Expenses of two cents (.02) per square foot per year for the year 2001, and (z) Real Estate Taxes of twenty-seven cents (.27) per square foot per year for the year 2001; provided, however, Tenant acknowledges and agrees that said amounts are only Landlord’s good faith estimates, and the actual amounts of CAM Expenses, Insurance Expenses and Real Estate Taxes may vary from said estimated amounts.

3.02 The determination and adjustment of Additional Rental contemplated under subparagraph 3.01(b) shall be made in accordance with the following procedures:

During December of each calendar year during the term of this Lease, or as soon after each such December as practicable, Landlord shall give Tenant written notice of its estimate of Additional Rental payable under subparagraph 3.01(b) for the ensuing calendar year. On or before the first day of each month during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated amount together with the Base Rental.

In the event Landlord’s notice set forth in subparagraph 3.02(a) is not given in December, until the calendar month after such notice is delivered by Landlord Tenant shall continue to pay to Landlord monthly during the ensuing calendar year estimated payments equal to the amounts payable during the calendar year just ended. Upon receipt of any such post-December notice, Tenant shall (i) commence as of the immediately following calendar month, and continue for the remainder of the calendar year, to pay to Landlord monthly such new estimated payments and (ii) if the monthly installment of the new estimate of such Additional Rental is greater than the monthly installment of the estimate for the previous calendar year, pay to Landlord within thirty (30) days of the receipt of such notice an amount equal to the difference of such monthly installment multiplied by the number of full and partial calendar months of such year preceding the delivery of such notice.

If at any time or times it appears to Landlord that the amount payable under subparagraph 3.01(b) for the current calendar year will vary from Landlord’s estimate by more than five percent (5%), Landlord may revise, by notice to Tenant, its estimate for such year, and subsequent payments by Tenant for such year shall be based upon such revised estimate. Failure to deliver an estimate of Additional Rental payable under this Paragraph 3 or to make a revision contemplated by the immediately preceding sentence shall not prejudice Landlord’s right to collect the full amounts of Additional Rental.

Within one hundred twenty (120) days after the close of each calendar year or as soon after such one hundred twenty (120) day period as practicable, Landlord shall deliver to Tenant a statement of the adjustment to be made pursuant to subparagraph 3.01(b) for the calendar year just ended certified by Landlord, and such statement shall be final and binding upon Landlord and Tenant absent manifest error. If on the basis of such statement Tenant owes an amount that is less than the estimated payments for the

calendar year just ended previously made by Tenant, Landlord shall credit such excess to the next payments of Rental coming due or, if the term of this Lease is about to expire, refund such excess to Tenant if Tenant is not in default under this Lease (in the instance of a default such excess shall be held as additional security for Tenant’s performance, may be applied by Landlord to cure any such default, and shall not be refunded until any such default is cured). If on the basis of such statement Tenant owes an amount that is more than the estimated payments for the calendar year just ended previously made by Tenant, Tenant shall pay the deficiency to Landlord within thirty (30) days after delivery of the statement. If Tenant wishes to dispute the determination of Additional Rental due under this Lease or the calculation of any amount payable hereunder, Tenant shall give Landlord written notice of such dispute within thirty (30) days after the receipt of notice from Landlord giving rise to the dispute. Promptly after the giving of such written notice, Landlord shall meet with Tenant and shall allow Tenant’s representatives to examine Landlord’s books and records with respect to the subject matter of the dispute in Landlord’s offices within ninety (90) days after such notice of dispute, in an attempt to reconcile any outstanding disputes. If such efforts do not succeed, Tenant may, at its election, cause to be made a complete audit of Landlord’s records relating to the matter in dispute by independent certified accountants to be selected by Tenant. Tenant agrees that the certified accountant(s) performing such audit shall be compensated on the basis of hourly fees and not on a contingency or percentage basis. Furthermore, Tenant agrees to keep the results of any such audit collected by Tenant confidential. The cost of such audit shall be borne by Tenant; provided, however, in the event the audit reveals that Tenant was overcharged by more than seven percent (7%) for the immediately preceding calendar year, then, in such event, Landlord shall pay for Tenant’s reasonable out-of-pocket cost for the audit up to a maximum of One Thousand and No/100 dollars ($1,000.00). If such audit reveals that the amounts previously shown by Landlord were incorrect, and Tenant was overcharged, then, Landlord shall promptly (not to exceed 30 days) return to Tenant any overpayment. Notwithstanding the pendency of any dispute hereunder, Tenant shall make payments based upon Landlord’s determination or calculation until such determination or calculation has been established hereunder to be incorrect.

For partial calendar years during the term of this Lease, the amount of Additional Rental payable pursuant to subparagraph 3.02(d) that is applicable to that partial calendar year shall be prorated based on the ratio of the number of days of such partial calendar year falling during the term of this Lease to 365. The expiration or termination of this Lease shall not affect the obligations of Tenant and rights of Landlord pursuant to subparagraph 3.02(d) which remain to be performed after such expiration or termination, Landlord and Tenant agreeing that said obligations and rights shall survive such expiration or termination.

Notwithstanding any other provision contained herein to the contrary, Landlord acknowledges and agrees that for purposes of determining Additional Rent, CAM Expenses (exclusive of the Non-Capped CAM Expenses, as hereinafter defined) for any calendar year shall not be increased over the amount of CAM Expenses (exclusive of Non-Capped CAM Expenses) during the calendar year in which the term of this Lease commences by more than seven and one-half percent (7 ½%) per year on a cumulative basis, compounded annually. For example, if CAM Expenses (exclusive of Non-Capped CAM Expenses) during the calendar year in which the term of this Lease commences were $100,000, the cap on CAM Expenses (exclusive of the Non-Capped CAM Expenses) for the fourth full calendar year would be $133,546.91 (100,000 x 1.075 x 1.075 x 1.075 x 1.075). It is understood and agreed that there shall be no cap on Non-Capped CAM Expenses, which are hereby defined to mean utility costs and repair and replacement costs.

3.03 The first full calendar month Base Rental payment along with the Security Deposit, if applicable, shall be due and payable upon execution of this Lease. Thereafter, Base Rental and Additional Rental shall be paid to Landlord, in advance, on or before the first day of the

term hereof (with Tenant being given appropriate credit for its prepayment of the first full calendar month Base Rental as required above) and on or before the first day of each and every successive calendar month thereafter during the term of this Lease. All other Rental shall be paid as provided elsewhere in this Lease. In the event the term of this Lease commences on a day other than the first day of a calendar month or ends on a day other than the last day of a calendar month, then the monthly rental for the first and last fractional months of the term hereof shall be appropriately prorated.

3.04 Rental shall be paid to Landlord, without demand, deduction or offset, in lawful money of the United States of America at Landlord’s address for notices hereunder or to such other person or at such other place as Landlord may from time to time designate in writing. All Rental and other amounts of money payable by Tenant to Landlord under this Paragraph 3 or under this Lease, if not paid within five (5) days of when due, shall be subject to a late fee of five percent (5%) of the amount past due (which late fee represents an agreed upon charge for the administrative expense suffered by Landlord as the result of such late payment and not payment for the use of money) and shall bear simple interest until paid at the Default Rate, and Tenant agrees to pay said late fee and interest immediately and without demand.

The Premises shall be used for the Permitted Use set forth in the Basic Lease Information and for no other purpose. Related thereto, Landlord hereby acknowledges that the operation of a food warehousing and distribution center shall constitute a permitted use under this Lease. By entry hereunder, Tenant accepts the Premises as being suited for the use intended by Tenant.

Tenant shall, subject to the Rules and Regulations of Landlord, have access with all other tenants of Landlord to the Common Area, and agrees not to interfere with the use and access of the Common Area by other occupants of the Building. Notwithstanding the foregoing, Tenant acknowledges and agrees that their use of the parking areas serving the Premises shall be limited to those parking areas lying immediately adjacent to and in front of the Premises.

Tenant will permit no lien to attach or exist against the Premises, and shall not commit any waste.

Tenant shall comply with all governmental laws, ordinances and regulations applicable to the use of the Premises, and shall promptly comply with all governmental orders and directives for the correction, prevention and abatement of nuisances in or upon, or connected with the Premises, all at Tenant’s sole expense. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the Premises, nor take any other action which would constitute nuisance or would disturb or endanger any other tenants of the Building or unreasonably interfere with their use of their respective premises. Without Landlord’s prior written consent, Tenant shall not receive, store or otherwise handle any product, material or merchandise which is explosive, highly flammable or constitutes a Hazardous Substance, as defined in Paragraph 20 hereof. Tenant will not permit the Premises to be used for any purpose or in any manner (including, without limitation, any method of storage) which would render the insurance thereon void or the insurance risk more hazardous or cause the State Board of Insurance or other insurance authority to disallow any sprinkler credits. If any increase in the fire or extended coverage insurance premiums paid by Landlord or other tenants for the Building is caused by Tenant’s use and occupancy of the Premises, or if Tenant vacates the Premises and causes an increase in such premiums, then Tenant shall pay as additional rental the amount of such increase to Landlord.

Tenant agrees that the floor load resulting from Tenant’s furniture, inventory and equipment pertaining to Tenant’s use of the Premises shall not exceed allowable design floor loading for the Building. Tenant shall be responsible to distribute floor loading to the Building design loads. In relation to the foregoing, Landlord represents and warrants that the allowable design for loading on the floor slab of the Building shall be

12,000 lbs. per support leg of racking. Tenant shall hold harmless Landlord from any loss, liability, and expenses, both real and alleged, arising out of such damage or repair caused by Tenant’s negligence or failure to comply with this paragraph.

5.01 Landlord shall maintain in good order and repair, subject to normal wear and tear, casualty and condemnation, the exterior walls, foundation and structural components of the Building including the structural components of the roof, as well as all sewer facilities, plumbing and electrical systems (excluding however, those portions of said sewer facilities and plumbing and electrical systems located within the Premises and other portions of the Building leased to other tenants). In addition, Landlord agrees to maintain and keep clean the Common Area. Notwithstanding the foregoing obligation, the cost of any repairs or maintenance to the foregoing necessitated by the intentional acts or omissions, negligence or gross negligence of Tenant, or its agents, employees, contractors, invitees, licensees, Tenants or assignees, shall be deemed Rental hereunder and shall be reimbursed by Tenant to Landlord upon demand.

5.02 Landlord agrees to provide at its cost water, sewer, electrical and telephone service connections stubbed out to the exterior demising wall of the Premises; Tenant agrees to pay directly to the provider (except as otherwise set forth below) all charges, fees (hook-up, installation and the like) and deposits incurred for any utility services used on the Premises. Landlord shall in no event be liable for any interruption or failure of utility service to the Premises, but, if requested by Tenant, Landlord shall use reasonable efforts to cooperate with Tenant in securing speedy resumption of said interrupted service. Tenant shall promptly notify the proper public authorities and utility companies to provide service for water, sewer, trash removal, gas electricity and all other utilities required or desired by Tenant, which services are to be in Tenant’s name and all costs for such services shall be borne by Tenant as its sole responsibility. In the event the water and sewer connections into the Premises are jointly metered with other premises, Tenant covenants and agrees to pay to Landlord on a monthly basis as additional rent, its pro rata share of such services as determined by Landlord in its reasonable discretion. Unless the same is caused solely by the negligent action or inaction of Landlord, Landlord shall not be liable to Tenant or to any other person for any damage occasioned by failure in any utility system or by the breakage of any vessel or pipe in or about the Premises, or for any damage occasioned by water coming into the Premises or arising from the acts or neglects of occupants or adjacent property or the public.

6.01 Tenant covenants and agrees to be liable for and pay in a timely manner all taxes and assessments levied or assessed against personal property, furniture and fixtures placed by Tenant in the Premises. In addition to Base Rental, Additional Rental and other charges to be paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand, as Rental, for any and all taxes payable by Landlord (other than net income taxes) whether or not now customary or within the contemplation of the parties hereto: (a) upon, measured by or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures and other personal property located in the Premises or by the cost or value of any improvements made in or to the Premises by Tenant, other than Tenant Improvements made by Landlord, if any, regardless of whether title to such improvements shall be in Tenant or Landlord; (b) upon or measured by the monthly rental payable hereunder, including, without limitation, any gross income tax or excise tax levied by any governmental entity or any other governmental body with respect to the receipt of such rental; (c) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion thereof; (d) upon this transaction or any document to which Tenant is a party creating or transferring an interest in the Premises. In the event that it shall not be lawful for Tenant so to reimburse Landlord, the monthly Base Rental payable to Landlord under this Lease shall be revised to net Landlord the same net Base Rental after imposition of any such tax upon Landlord as would have been payable to Landlord prior to the imposition of any such tax.

7.01 Except for any initial improvements of the Premises pursuant to Exhibit “F” hereof, which shall be governed by the terms and conditions of Exhibit “F” hereof, Tenant shall not make, suffer or permit to be made any alterations, additions or improvements to or of the Premises or any part thereof, or attach any fixtures or equipment thereto, without first obtaining Landlord’s written consent. Notwithstanding the foregoing provisions, provided Tenant provides Landlord prior written notice, Tenant shall, without having to obtain Landlord’s consent, be entitled to make alterations, additions or improvements to the Premises having a cost of less than Ten Thousand Dollars ($10,000.00) for each such alteration, addition or improvement, provided such alterations, additions or improvements are (i) non-structural in nature; (ii) do not diminish the value of the Building; and (iii) do not affect the electrical, mechanical and plumbing systems of the Building. As to any alterations, additions or improvements having a cost of over Ten Thousand Dollars ($ 10,000.00) for each such alteration, addition or improvement which meet each of requirements (i) – (iii) above, Tenant must first receive Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed. As to any alterations, additions or improvements failing to meet all of requirements (i) – (iii) above, Tenant must first receive Landlord’s prior written consent, which consent may be withheld in Landlord’s sole and absolute discretion. Any such alterations, additions or improvements to the Premises consented to by Landlord shall, at the election of the Landlord, be made by a contractor approved by Landlord, such approval not to be unreasonably withheld and or under Landlord’s supervision. The Tenant Improvements and all such alterations, additions and improvements shall become Landlord’s property at the expiration or earlier termination of the term hereof and shall remain on the Premises without compensation to Tenant. Notwithstanding the foregoing, Landlord may elect by notice to Tenant to have Tenant remove such alterations, additions and improvements at the expiration or earlier termination of the term hereof, in which event, notwithstanding any contrary provisions respecting such alterations, additions and improvements contained in Paragraph 9 hereof, Tenant shall promptly restore, at its sole cost and expense, the Premises to its condition prior to the installation of such alterations, additions and improvements, normal wear and tear excepted.

7.02 All repairs, alterations, additions and improvements done by Tenant within the Premises shall be performed in a good and workmanlike manner, in compliance with all governmental requirements, and at such times and in such manner as will cause a minimum of interference with other construction in progress and with the transaction of business in the Building. Whenever Tenant proposes to do any construction work within the Premises, Tenant shall first furnish to Landlord plans and specifications covering such work in such detail as Landlord may reasonably request. Such plans and specifications shall comply with such requirements as Landlord may from time to time prescribe for construction within the Building. In no event shall any construction work be commenced within the Premises without Landlord’s prior written approval of such plans and specifications except as otherwise expressly provided for in Section 7.01 above. In the event Tenant does perform any construction work without the prior written approval of Landlord, Landlord shall, in addition to all other remedies it might have hereunder or at law, have the right to require Tenant to immediately remove any unapproved additions or improvements and restore the Premises to the condition existing prior to such unauthorized construction. Without limiting the generality of the foregoing, Tenant shall under no circumstances make any penetration of the roof or walls of the Building without Landlord’s consent. In the event Landlord consents to a penetration of the roof or walls of the Building, all such work shall be performed by contractors designated or approved by Landlord and shall be supervised by Landlord or its designees and performed under conditions and subject to such conditions and requirements as may be established by Landlord. Tenant shall and hereby agrees to indemnify and hold Landlord harmless from and against any and all loss, cost, damage, expense or liability (including, without limitation, court costs and attorneys’ fees) suffered or incurred by Landlord as a result of any penetration of the roof or walls of the Building, including, without limitation, costs of repair, loss of income, claims for damages from other tenants of the Building and damages which result if any warranty on the roof held or

maintained by Landlord is voided or impaired by such penetration. The provisions hereof shall survive the termination of this Lease. Additionally, any penetration of the roof or walls of the Building without Landlord’s consent shall be deemed an immediate event of default hereunder entitling Landlord to the exercise of all rights and remedies provided in this Lease or at law or equity. Tenant agrees that in the event Landlord consents to any penetration of the roof, floor or walls of the Building pursuant to the provisions hereof, Tenant shall, on or before the termination of the term hereof, and at Tenant’s sole cost and expense, repair and restore such areas so penetrated to the condition they were in prior to such penetration. Notwithstanding the foregoing provisions, Landlord acknowledges and agrees that Tenant and its contractors shall be permitted to go onto the roof, as necessary to make repairs to the heating, ventilation and air conditioning systems serving the Premises as well as Tenant’s freezer cooler units which might be located upon the roof, however, in no event shall Tenant or its contractors make any penetration of the roof without having first received Landlord’s consent in accordance with the above provisions.

7.03 Under no circumstances may Tenant penetrate the floor slab of the Building without Landlord’s prior written consent. Tenant agrees that the point pressure resulting from the Tenant’s racking system, inventory, forklifts and equipment pertaining to Tenant’s use of the Premises shall not exceed allowable design for loading for floor slabs on grade. Tenant shall be responsible to provide steel plates, angles or channels as required to distribute floor loading to the Building design loads. Tenant agrees not to use any vehicle, including, but not limited to those having steel wheels, that will cause damage to the floor slab. Tenant shall hold harmless Landlord from any loss, liability, any expenses, both real and alleged, arising out of such damage or repair caused by Tenant’s negligence or failure to comply with this paragraph.

Tenant shall at all times keep the Premises and the Building free from any liens arising out of any work performed, materials furnished or obligations incurred by Tenant. Landlord shall have the right to post and keep posted on the Premises any notices that may be provided by law or which Landlord may deem to be proper for the protection of Landlord, the Premises and the Building from such liens.

9.01 Except as otherwise specifically provided for in Section 2.03 hereof, by entry hereunder Tenant accepts the Premises as being in the condition in which Landlord is obligated to deliver the Premises. To the fullest extent permitted by law, Tenant hereby waives all rights to make repairs at the expense of Landlord or in lieu thereof to vacate the Premises as may be provided by any law, statute or ordinance now or hereafter in effect. Landlord has no obligation and has made no promise to alter, remodel, improve, repair, decorate or paint the Premises or any part thereof, except as specifically and expressly herein set forth. No representations respecting the condition of the Premises or the Building have been made by Landlord to Tenant, except as specifically and expressly herein set forth.

From and after the Rental commencement date and throughout the term, Tenant shall, at its own cost and expense, maintain the Premises, in good condition and repair, including but not limited to the electrical systems, heating, air conditioning and ventilation systems serving the Premises, plate glass, windows and doors, sprinkler and plumbing systems, fixtures, interior walls, floors, ceilings, skylights, all electrical facilities and equipment including, without limitation, lighting fixtures, lamps, fans, and any exhaust equipment and systems, electrical motors, and all other appliances and equipment of any kind located in, upon or about the Premises. All glass, exterior and interior, is at the sole risk of Tenant; and any broken glass shall be promptly replaced at Tenant’s expense by glass of like kind, size and quality. Tenant agrees to maintain adequate dumpster service and to keep the Premises in a neat, clean and attractive

manner. In relation thereto, Landlord reserves the right to require Tenant to increase the frequency of its dumpster service should Landlord determine, in its reasonable discretion, that the frequency of Tenant’s existing service is insufficient to maintain the Premises and/or any shared use dumpster area in a neat, clean and attractive condition.

Tenant agrees to enter into a service contract with a reliable certified heating and air conditioning company acceptable to Landlord, in its reasonable discretion, to maintain the heating and air conditioning units serving the Premises and keep them in good working order. Tenant shall furnish Landlord a copy of the service contract within thirty (30) days of the Commencement Date and, upon request of Landlord, Tenant shall also furnish copies of routine maintenance reports or invoices. Tenant shall be responsible for pest and termite control and for the maintenance of the sprinkler valves and any alarm systems in the Premises. Tenant shall not damage any demising wall or disturb the integrity and support provided by any demising wall and shall, at its sole cost and expense, promptly repair any damage or injury to any demising wall caused by Tenant of its employees, agents or invitees.

Tenant shall not allow any damage to be committed on any portion of the Premises, and at the termination of this Lease, by lapse of time or otherwise, Tenant shall deliver the Premises to Landlord in as good condition as existed at the Rental commencement date of this Lease, ordinary wear and tear insured casualty and condemnation excepted. Furthermore, Tenant agrees to remove all of Tenant’s personalty, equipment and trade fixtures from the Premises on or before the expiration of the Lease term and to repair any and all damage to the Premises occasioned by such removal. The cost or expense of any repairs necessary to restore the condition of the Premises shall be borne by Tenant, and if Landlord undertakes to restore the Premises it shall have a right of reimbursement against Tenant so long as Landlord provided Tenant prior notice of the need of such repair.

All requests for repairs or maintenance that are the responsibility of Landlord pursuant to any provision of this Lease must be made in writing to Landlord at the address set forth below.

10.01 In the event the Premises or the portion of the Building necessary for Tenant’s occupancy are damaged by fire, earthquake, act of God, the elements or other casualty, Landlord shall forthwith repair the same, subject to the provisions of this Paragraph 10 hereinafter set forth, if such repairs can, in Landlord’s opinion, be made within one hundred eighty (180) days following the date of such fire or other casualty. Notwithstanding any other provision contained in this Paragraph, the commencement of repair or restoration work by Landlord hereunder shall in no event be deemed a representation or warranty by Landlord that such repairs or restoration can or will in fact be completed within such one hundred eighty (180) day period and Landlord shall in no event be liable to Tenant for any failure or inability to complete said repairs or restoration within such one hundred eighty (180) day period. This Lease shall remain in full force and effect except that, if such damage is not the result of the negligence or intentional act of Tenant or Tenant’s agents, employees, contractors, licensees, invitees, subtenants or assigns, an abatement of Base Rental and Additional Rental shall be allowed Tenant for such part of the Premises as shall be rendered unusable by Tenant in the conduct of its business during the time such part is so unusable. A total destruction of the Building shall, at the option of Landlord, automatically terminate this Lease as of the date of such destruction.

10.02 If such repairs cannot, in Landlord’s opinion (which shall be made known to Tenant within thirty (30) days after the date of the subject casualty), be made within one hundred eighty (180) days following the date of such fire or other casualty, Landlord or Tenant may elect to terminate this Lease upon notice to the other party within forty-five (45) days after the date of such fire or other casualty, and if this Lease is not so terminated, Landlord shall promptly commence to repair or restore such damage, in which event this Lease shall continue in full force and effect, but the Base Rental and Additional Rental shall be partially abated as provided in subparagraph 10.01.

10.03 Notwithstanding anything to the contrary in this Lease, if the holder of a “Landlord’s Mortgage” or the lessor under a “Landlord’s Ground Lease” (as those terms are defined in Paragraph 28) require that any insurance proceeds from a casualty loss be paid to it, then Landlord shall have the option to cancel this Lease as of the date of the casualty by written notice to Tenant given within thirty (30) days after said holder or lessor notifies Landlord that it is collecting the insurance proceeds. Furthermore, Tenant acknowledges and agrees that, in no event shall Landlord ever be required to provide funds for the repair or restoration of the Premises (including, but not limited to the Landlord Improvements) in excess of the insurance proceeds actually received by Landlord as a result of the subject casualty event. Accordingly, should the insurance proceeds paid over to Landlord as a result of any casualty event be insufficient to fully repair and restore the Premises to their pre-casualty condition, as provided for in Section 10.04 below, then, in such event Landlord shall have the right to terminate this Lease by providing written notice of such election to Tenant within thirty (30) days after the date Landlord determines that the insurance proceeds shall be insufficient to so fully repair and restore.

10.04 If the Premises are to be repaired under this Paragraph 10 by Landlord, Landlord’s obligation to repair the Premises shall be discharged upon restoration of the Premises to Premises Shell, as defined in Exhibit “F”, and the restoration of the Landlord Improvements. Tenant shall pay all other costs of repairing the Premises and shall be responsible for carrying such casualty insurance with respect to the Tenant Improvements as set forth in Paragraph 11 hereof. In relation to the foregoing, Landlord acknowledges and agrees that in the event that the Lease is terminated as the result of a casualty event, Tenant shall be entitled to retain any insurance proceeds paid by Tenant’s insurance company to either Landlord or Tenant as a result of the loss of the Tenant Improvements.

Tenant covenants and agrees that from and after the date of delivery of the Premises from Landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the amounts specified and in the form hereinafter provided for:

Liability insurance in the Commercial General Liability form (or reasonable equivalent thereto) covering the Premises and Tenant’s use thereof against claims for personal injury or death, property damage and product liability occurring upon, in or about the Premises, such insurance to be written on an occurrence basis (not a claims made basis), to be in combined single limit amounts not less than Two Million Dollars ($2,000,000.00) and to have general aggregate limits of not less than Four Million Dollars ($4,000,000.00) for each policy year. The insurance coverage required under this Paragraph 11(a)(i) shall, in addition, extend to any liability of Tenant arising out of the indemnities provided for in Paragraph 14 and, if necessary, the policy shall contain a contractual endorsement to that effect.

Insurance on the “all-Risk” or equivalent form on a replacement cost basis against loss or damage to all improvements made by Tenant to the Premises, as well as all of Tenant’s personalty located at the Premises, having a deductible not greater than Ten Thousand Dollars ($10,000.00); and in an amount sufficient to prevent Landlord or Tenant from becoming a co-insurer of any loss, but in any event in amounts not less than 100% of the actual replacement value of all improvements made by Tenant to the Premises, including, but not limited to, the Tenant Improvements, as well as all of Tenant’s personalty located at the Premises. Landlord shall have the right to require from Tenant, not more than once every twelve (12) months, to provide reasonable evidence of the value of all Improvements made by Tenant to the Premises, as well as all of Tenant’s personalty located at the Premises.

Insurance on the “all-Risk” or equivalent form against business interruption by reason of (x) the occurrences covered by the insurance described in clause (ii) above in an amount equal to Base Rental and all Additional Rental for the

necessary period of restoration following the occurrence of such casualty, and (y) service interruptions in an amount equal to Base Rental and Additional Rental for at least thirty (30) days following the date of the occurrence of such interruption.

Workmen’s compensation insurance to the extent required by the laws of the state in which the Premises are located to the extent necessary to protect Landlord, Landlord’s Mortgagee and the Premises against workmen’s compensation claims.

All policies of the insurance provided for in this Paragraph 11(a) shall be issued in form acceptable to Landlord by insurance companies with a rating of not less than “A,” and financial size of not less than Class XII, in the most current available “Best’s Insurance Reports,” and licensed to do business in the state in which the Premises are located. Each and every such policy:

shall name Landlord as well as Landlord’s Mortgagee, as defined in Paragraph 28, and any other party reasonably designated by Landlord, as an additional insured. In addition, the coverage described in Paragraph 11(a)(ii) shall provide that under circumstances where Landlord elects to rebuild/restore the Premises following a casualty event, Landlord shall be the “loss payee” as to any loss or damage to improvements made by Tenant to the Premises which are, pursuant to Section 10, to be rebuilt/restored by Landlord, and Tenant shall be the “loss payee” as to any loss or damage to improvements made by Tenant to the Premises which are, pursuant to Section 10, to be rebuilt/restored by Tenant (provided, however, said policy shall provide that Tenant is the loss payee as to all such loss or damage to improvements made by Tenant to the Premises under circumstances where Landlord does not elect to rebuild/restore the Premises following a casualty event) Tenant shall at all times be the “loss payee” as to any loss or damage to Tenant’s personalty located at the Premises.

Shall be delivered to Landlord prior to delivery of possession of the Premises to Tenant and thereafter within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate. Renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent.

Shall contain a provision that the insurer waives any right of subrogation against Landlord on account of any loss or damage occasioned to Landlord, its property, the Premises or its contents arising from any risk covered by all risks fire and extended coverage insurance of the type and amount required to be carried hereunder, provided that such waiver does not invalidate such policies or prohibit recovery thereunder.

Shall contain a provision that the insurer will give to Landlord and such other parties in interest at least thirty (30) days notice in writing in advance of any material change, cancellation, termination or lapse, or the effective date of any reduction in the amounts of insurance.

Shall be written as primary policy which does not contribute to and is not in excess of coverage which Landlord may carry.

Any insurance provided for in Paragraph 11(a) may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insured; provided, however, that:

Landlord and any other parties in interest from time to time designated by Landlord to Tenant shall be named as an additional insured thereunder as its interest may appear.

the coverage afforded Landlord and any such other parties in interest will not be reduced or diminished by reason of the use of such blanket policy of insurance.

Any such policy or policies shall specify therein the amount of the total insurance allocated to the Tenant’s improvements and property.

The requirements set forth in this Paragraph 11 are otherwise satisfied.

In the event that Tenant shall fail to carry and maintain the insurance coverages set forth in this Paragraph 11, Landlord may upon thirty (30) days notice to Tenant (unless such coverages will lapse in which event no such notice shall be necessary) procure such policies of insurance and Tenant shall promptly reimburse Landlord therefor.

Landlord may, at any time, but not more than one (1) time in any twelve (12) month period, require a review of the insurance coverage and limits of liability set forth in this Paragraph 11 to determine whether the coverage and the limits are reasonable and adequate in the existing circumstances. The review shall be undertaken on a date and at a time set forth in Landlord’s notice requesting a review and shall be conducted at the Premises.

Landlord shall maintain “all-risk” property insurance covering the replacement cost of the Building and the improvements to the Common Areas. A portion of the cost of such insurance shall be passed through to Tenant as more specifically provided for under Section 3.01 hereof. The subject insurance coverage may be covered within a blanket policy (in which case the cost of such insurance allocable to the Building or project containing the Building will be reasonably determined by Landlord based upon the insurer’s cost calculations). Furthermore, each such policy may be subject to a commercially reasonable deductible.

It is understood and agreed that the insurance requirements contained in this Paragraph or elsewhere in this Lease or Tenant’s compliance therewith, are not intended to, and shall not be construed to, limit, mitigate or reduce any of the indemnity obligations of Tenant contained in Paragraph 14 or elsewhere in this Lease.

In addition to, and not in lieu of, any and all other releases and waivers by Tenant and Landlord contained in this Lease, Tenant and Landlord hereby waive, and release each other from, any and all claims, rights, demands and causes of action which it might have at any time against the other on account of loss or damage that is or should be covered by any insurance policy Tenant or Landlord has or is required to have pursuant to Paragraph 11 of this Lease. Each party shall obtain from its respective insurers under all policies of fire, theft, public liability, and, to the extent permitted by law, workmen’s compensation and other insurance maintained by such party at any time during the term of this Lease insuring or covering the Premises or any portion thereof or operations therein or therefrom, a waiver of all rights of subrogation which the insurer of such party might have against the other party and the other affiliated parties described in Paragraph 11 hereof. If a waiver of subrogation is not available under a policy maintained by Tenant or Landlord, such party shall cause the other party and the other affiliated parties described in Paragraph 11 hereof to be named as additional insureds under such policy. Each party shall indemnify and hold harmless the other against any loss or expense, including reasonable attorney’s fees, resulting from the failure to obtain such waiver or to list such party as an additional insured.

All of Tenant’s personal property in the Premises shall be and remain at Tenant’s sole risk, and Landlord shall not be liable for the Tenant hereby releases Landlord from any and all liability for theft any damages thereto occasioned by any acts or negligence of any third persons, or any act of god, except thereof or to the extent cause by the acts or negligence of Landlord, its agents employees and contractors.

Tenant agrees that neither Landlord nor its members, officers, managers, partners, employees, agents or representatives shall be liable and hereby waives all claims against Landlord, its partners, members, officers managers, employees, agents and representatives for damage to any property or injury or death of any person in, upon or about the Premises arising at any time and from any cause other than solely by reason of the negligence or intentional misconduct of Landlord, its authorized employees, contractors or agents, and Tenant shall indemnify, protect, defend and hold harmless Landlord, and its members, officers managers, partners, employees, agents and representatives from any and all loss, cost damage and expense incurred or suffered by Landlord or said other parties arising out of or resulting from (i) the use or occupancy of the Premises, except such as is caused solely by negligence or intentional misconduct of Landlord, its authorized agents,

contractors or employees, or (ii) the misconduct or negligence of Tenant or its agents, contractors, employees, licensees or invitees. The foregoing indemnity obligation of Tenant shall include reasonable attorney’s fees actually incurred, investigation costs and all other reasonable costs and expenses incurred by Landlord from the first notice that any claim or demand is to be made or may be made. Landlord shall and does hereby indemnify, protect, defend and save harmless Tenant and its partners, offices, directors, shareholders, employees and agents from and against any and all liability for any injury to or death of any person or persons or any damage to property and any other claims, judgements, penalties, fines, liabilities, loss, damages or expenses to the extent solely attributable to the negligence or intentional misconduct of Landlord, its employees, authorized agents or contractors, and from all costs expenses and liabilities, including court costs and reasonable attorneys’ fees actually incurred by Tenant or any other indemnified party in connection therewith. The provisions of this Paragraph 14 shall survive the termination of this Lease with respect to any damage, injury or death prior to such termination.

15.01 Tenant shall at its sole cost and expense promptly comply with all laws, statutes, ordinances and governmental rules, regulations and requirements now in force or which may be hereafter in force, with the requirements of any board of fire underwriters or other similar body now or hereafter constituted, with any direction or occupancy certificate issued pursuant to any law by any public officer or officers, as well as the provisions of all recorded documents affecting the Premises, insofar as any thereof relate to or affect the condition, use or occupancy of the Premises, excluding requirements of structural changes not related to or affected by improvements made by or for Tenant or not necessitated by Tenant’s acts.

16.01 Tenant shall not at any time during the term of this Lease have the right to sublet all or any part of the Premises or assign this Lease or any right or interest therein, without the prior written consent of Landlord, such consent to be given or withheld by Landlord in Landlord’s reasonable discretion. Sale or transfer of a controlling ownership interest of Tenant shall be deemed an assignment of this Lease. Should Tenant desire to assign this Lease or any right or interest herein or sublet the Premises or any part thereof, Tenant shall give Landlord written notice of such desire, which notice shall contain (1) the name and address of the proposed subtenant or assignee and its form of organization, (2) the nature of the proposed subtenant’s or assignee’s business to be conducted in the Premises, (3) the terms and conditions of the proposed sublease or assignment, and (4) financial statements for the three most recent completed fiscal years of the proposed subtenant or assignee and such other financial information as Landlord shall request and a bank reference, together with a request that Landlord approve such assignment or subletting. Landlord shall have a period of ten (10) business days following receipt of such written notice within which to notify Tenant in writing that Landlord elects either (A) to deny Tenant the right to consummate such subletting or assignment or (B) to terminate this Lease as to the space so affected as of a date designated by Landlord (but in no event less than sixty (60) days following such notice), in which event Tenant will be relieved of all further obligations hereunder as to such space arising after the effective date of such termination (provided, however, in the event Landlord provides Tenant notice of its election to terminate based on the foregoing, then, Tenant shall have the right, for a period of ten (10) days following the date of Landlord’s notice of such election to terminate, to withdraw its request for the subject assignment or, if applicable, subletting, in which event this Lease shall continue in full force and effect), or (C) to permit Tenant to assign this Lease or sublet such space, subject, however, to all of the following conditions:

The sublease or assignment shall be on the same terms and conditions set forth in the notice given to Landlord.

The proposed assignee or sublessee shall be engaged in a business in the Premises which is consistent with the then standards of the Building and is permitted by the provisions of Paragraph 4 hereof, and the use of the Premises or any portion thereof by such subtenant or assignee will not, in Landlord’s estimation, increase the scope or

quantity of services or utilities then being furnished to Tenant as of the proposed date of assignment or subletting.

The proposed assignee or sublessee is a respectable party of sufficient financial worth to perform its obligations under this Lease or under the sublease, as applicable, and Tenant shall have provided Landlord with proof thereof.

No subletting or assignment shall release Tenant of Tenant’s obligation or alter the primary liability of Tenant to pay the Rental and to perform all other obligations to be performed by Tenant under this Lease.

In the case of a subletting, fifty percent (50%) of any sums or other economic consideration (for example, but not by way of limitation, increased rental, forgiveness of an obligation, or services given at no cost or at reduced cost) received by Tenant or its agents as a result of such subletting, whether denominated as rental under the sublease or otherwise, which exceed, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease either (i) for the Premises, if the entire Premises is sublet, or (ii) pro rata on a square foot basis for that portion of the Premises sublet, if less than the entire Premises is sublet, shall be payable to Landlord as Rental under this Lease without affecting or reducing any Rental or other obligation of Tenant under this Lease. In the case of an assignment, any and all sums or other economic consideration (including, without limitation, the examples set forth in the preceding sentence) received by Tenant or its agents as a result of such assignment shall be payable to Landlord as Rental under this Lease without affecting or reducing any Rental or other obligation of Tenant under this Lease.

All rental rates to be charged to such assignee or sublessee shall not be less than eighty percent (80%) of the then current market rates for similar space leased for a similar term in the Building or buildings of similar quality and grade in the same locality as the Building, and no sublessee shall have any right to assign or further sublet.

Any and all options, including, without limitation, expansion options, renewal options and rights of first refusal or negotiation, granted pursuant to this Lease, are not assignable and shall be null and void and of no further force or effect on and after the effective date of such assignment of this Lease or