exv10w8a



 







Exhibit
10.8A




BASIC LEASE INFORMATION

CANYON PARK TECHNOLOGY CENTER

OFFICE BUILDING LEASE AGREEMENT









 









 











	 	 	 
	Lease Date:
	 	As of                                         , 2003.

	 	 	 

	“Tenant”:
	 	Omniture, Inc.

	 	 	 

	Address of Tenant
	 	756 East Technology Avenue

Orem, Utah 84097

	 	 	 

	Contact:
	 	Josh James          Telephone:     801-722-7000

	 	 	 

	“Landlord”:
	 	TCU Properties I, LLC, a Utah limited liability company

	 	 	 

	Address of Landlord:
	 	Canyon Park Management Company

1501 North Technology Way

Orem, Utah 84097

Contact: Allen Finlinson

Telephone: (801) 764-0005 Ext 399

	 	 	 

	Landlord’s Counsel:
	 	Attn: Monte Deere

Bennett Tueller Johnson & Deere

3865 S. Wasatch Blvd., Suite 300

Salt Lake City, Utah 84109

	 	 	 

	“Adjusted Rental”:
	 	“The sum of the annual Basic Rental and the annual Excess Operating Expenses and Excess Taxes.

	 	 	 

	“Annual Increase”:
	 	$0.50 per rentable square foot on each one-year anniversary of Lease Commencement Date.

	 	 	 

	“Auditorium Usage”:
	 	Subject to availability and scheduling, Landlord shall allow Tenant up to 16 hours of free use of the
auditorium in building J each year. Tenant’s free use of such auditorium does not include an A/VTechnician
or additional A/V equipment requested over and above the equipment already in the auditorium. Additional
time required beyond the 16 hours will be charged at the rate of $250 per each four-hour block of time.

	 	 	 

	“Base Year”:
	 	Calendar Year 2003

	 	 	 

	“Basic Rental”:
	 	$223,533 per annum ($18,627.75 per month)

The security deposit shall be due upon execution of the Lease. The
Security Deposit shall be equal to the last month’s rent.

	 	 	 






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	“Broker”:
	 	None.

	 	 	 

	“Building”:
	 	The Building located in the Park known as “Canyon
Park Technology Center” (“CPTC”) and designated as
Building G on the site plan of the Park attached
hereto as Exhibit A.

	 	 	 

	“Building Services”:
	 	Standard building services as set forth herein shall
be provided from 8 a.m. to 6 p.m., Monday through
Friday and 9 a.m. to 1 p.m. on Saturday, except
Holidays. After hours heating, ventilating and air
conditioning (HVAC) and electrical service shall be
charged at the rate of $25.00 per hour with Tenant
providing an honest report of after hour’s usage to
the Landlord upon request. If Tenant requests after
hours services requiring service personnel, Tenant
will be charged for the cost of such service plus an
additional charge of 15% of such cost to cover
overhead.

	 	 	 

	“Common Building
Services”:
	 	

Exercise facilities, food service facilities, and
other services available to all tenants in the Park
provided in Building L. To the extent user fees
charged at Building L do not cover all costs of
providing such services to Park tenants and their
employees, Tenant shall pay its share of the
operating expenses deficit calculated by multiplying
the total operating deficit for Building L by the RA
under this Lease and then dividing such sum by the
total RSF of the Park.

	 	 	 

	“Commencement Date”:
	 	

                                        ,                      2003.

	 	 	 

	“Common Roadways”:
	 	The private common roadways shown cross-hatched on
Exhibit A-1.

	 	 	 

	“Co-Op Marketing”:
	 	Landlord shall have the opportunity for Co-op
Advertising rights with Tenant. With advance notice
Landlord shall be allowed (4) four “walk through
tours” per year of Tenant’s space for Canyon Park
clients and prospective tenants.

	 	 	 

	“J Auditorium
Executive Boardroom”:
	 	

Subject to availability and scheduling, Landlord
shall allow Tenant up to 16 hours of free use of the
auditorium in Building J each year of the Lease.
Tenant’s free use of such auditorium does not
include an A/V technician or additional A/V
equipment







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	 	 	requested over and above that equipment already available in the
auditorium. In addition, subject to availability and scheduling,
Landlord shall allow Tenant to use the executive conference room in
Building L free of charge for (5) five business days annually
throughout the Term of this Lease. To avoid scheduling conflicts,
Tenant shall provide Landlord with as much advance notice as
reasonably possible with regard to any dates Tenant desires to use
the auditorium or executive conference room.

	 	 	 

	“Special Concession”:
	 	Subject to available and scheduling,
Landlord shall provide Tenant with lodging in
Cabo San Lucas, Mexico to accommodate (4) four
couples for (4) four nights free of charge at the
Ricks Partners’ Villa at Puerto Del Sol.

	 	 	 

	“Expansion Rights”:
	 	Tenant shall have on-going expansion rights at
Canyon Park. The terms and conditions shall be
consistent with the then current lease rate and
associated expenses.

	 	 	 

	“Estimated Excess
Operating Expenses”:
	 	

Landlord’s estimate of the Excess Operating
Expenses, which shall be paid by Tenant to
Landlord on a monthly basis.

	 	 	 

	Estimated Excess Taxes”:
	 	Landlord’s estimate of the Excess Taxes, which
shall be paid by Tenant to Landlord on a monthly
basis after the Base Year.

	 	 	 

	“Excess Operating
Expenses”:
	 	

(i) The amount by which the Operating Expenses
Per Square Foot of RA (defined in Exhibit E) for
any calendar year or portion thereof during the
Lease Term exceeds the Operating Expenses Per
Square Foot of RA (defined in Exhibit E) during
the Base Year multiplied by (ii) the RA of the
Premises.

	 	 	 

	“Excess Taxes”:
	 	The product of (i) the amount by which the Taxes
per Square Foot of RA (defined in Exhibit E) for
any calendar year or portion thereof during the
Lease Term exceeds the Taxes Per Square Foot of
RA during the Base Year, multiplied by (ii) the
RA of the Premises.







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	“Fire Suppression System”:
	 	The data center in the basement of building G has a Halon fire
suppression system. The reminder of the building contains a fire
sprinkler system that meets the requirements of applicable building
codes in effect at the time of occupancy.

	 	 	 

	“Guarantor”:
	 	None

	 	 	 

	“Land”:
	 	The land upon which the Building is located, which
land is shown hatched on Exhibit A attached hereto.

	 	 	 

	Legal Requirements:
	 	Laws and ordinances of all federal, state, county,
and municipal governments, and rules, regulations,
orders and directives of all departments, agencies
or offices thereof, and of any other governmental,
public or quasi-public authorities having
jurisdiction over the Premises, the Property, the
Park or any portion(s) thereof.

	 	 	 

	“Park”:
	 	All of the Park Buildings together with all of the
land in Canyon Park Technology Center outlined on
Exhibit A attached hereto comprised of approximately
85.1 acres and all landscaping, driveways, roadways,
parking areas and other improvements now or
hereafter located on such land.

	 	 	 

	“Park Buildings”:
	 	The Buildings located in the Park including, without
limitation, Building G, which Park Buildings are
shown on the site plan of the Park attached hereto
as Exhibit A.

	 	 	 

	“Parking”:
	 	Parking shall be open and available on an unreserved
basis in the parking areas shown on Exhibit A,
provided Landlord may in its sole discretion
designate parking spaces as reserved parking for
individual tenants based on each tenant’s
proportionate premises square footage. Landlord will
designate parking spaces as reserved parking for
Tenant’s executive and/or guest parking, (See
Exhibit I).

	 	 	 

	“Permitted Use”:
	 	Tenant shall use and occupy the Premises for general
and executive offices including data center usage
and for no other use or purpose.

	 	 	 

	“Premises”:
	 	The Premises are shown cross-hatched on the floor
plan attached hereto as Exhibit B.







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	“Property”:
	 	Collectively the Land, the Building together with
all landscaping, driveways, parking areas and other
improvements now or hereafter situated on the Land.

	 	 	 

	“Rent Abatement”:
	 	Provided that Tenant is not in material breach of the Lease and
no amount of Adjusted Rental is past due, the Basic Rental shall abate
and be deemed timely paid by Tenant for the following twelve (12)
months: ___, 2003 to ___, 2004 (collectively the “Free Rent
Months”). Notwithstanding any other term or condition of this Lease,
Tenant need not pay Landlord any Basic Rental for the Free Rent
Months.

	 	 	 

	Rentable Area
(or “RA”) of the
Premises:
	 	



Approximately 16,558 rentable square feet.

	 	 	 

	Restrictive

Covenants:
	 	

The covenants set forth on Exhibit H attached hereto, and any amendments or additions thereto pursuant to
Paragraph 44.

	 	 	 

	“Security Deposit”:
	 	$21,387.41 payable upon execution of the Lease.

	 	 	 

	“Security Services”:
	 	Landlord currently provides basic security services, which include card access, security patrols and
limited camera surveillance. Landlord shall provide one access card, without charge but subject to change
without notice, to each employee at the beginning of the Lease Term and to each new employee when they are
employed. There will be a $15.00 charge, subject to adjustment without notice, to Tenant for each card
that needs to be replaced or changed for any reason, and that is not returned at the end of the Lease.
Landlord will provide two keys to the locks on the corridor doors entering the Premises, with additional
keys to be furnished by the Landlord at Tenant’s expense. The Landlord at Tenant’s expense shall provide
any keys or locks needed within the Premises. Landlord reserves the right to change these services upon
notice.

	 	 	 

	“Signage”:
	 	Subject to Paragraph 9(b) of the Lease, Tenant may construct, at
Tenant’s cost and expense, a monument sign on the Park land outside
of the Building, provided that (a) the size, design, style, color,
materials, location, content, and method of illumination of such sign
are, in the reasonable opinion of Landlord, (i)







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	 	 	aesthetically pleasing, (ii) complementary to the design, style, and materials of the Building and Park, and (iii) consistent with an
executive office building and (b) the lettering or signage on the
monument is not permanent and may be removed without significant
difficulty or expense upon the expiration of the Term or Tenant’s
occupancy of the Premises. In addition, Tenant’s name, as set forth
herein or as reasonably designated by Tenant from time to time, shall
be placed in the Building directory located in the main level of the
Building. Further, at Tenant’s cost and expense and Subject to
Paragraph 9(b) of the Lease, Tenant shall have the same rights to
exterior signage made available to any other tenants of the Building,
and Tenant shall have the right to place reasonable appropriate
signage situated and on or about the entry doors to the Premises
which identify the Tenant and its business, provided such lettering
or signage may be removed without significant difficulty or expense
and without damage to the Premises.

	 	 	 

	“Shared Park Facilities”:
	 	The Common Roadways, Cafeteria, Fitness Center
and other facilities of the Park described on
Exhibit G attached hereto which are used in
common on a non-exclusive basis by all tenants
of the Park. Landlord reserves the right to
change the availability and use of the Shared
Park Facilities.

	 	 	 

	“Tenant Improvements”:
	 	Subject to the representations and warranties of
Landlord contained in the Lease, Tenant accepts
the premises “As is”
except for the improvements described in Exhibit D attached hereto.

	 	 	 

	“Term”:
	 	The period commencing on the Commencement Date (as defined below) and, subject to and upon
the terms and conditions set forth herein, or in any exhibit or addendum hereto, continuing
for sixty (60) calendar months thereafter, provided, however, that if the Commencement Date
falls on a date other than the first day of a calendar month, the expiration date of the
primary term shall be extended so as to give effect to the full term specified above in
addition to the remainder of the calendar month during which the Commencement Date falls.






The foregoing Basic Lease Information is hereby incorporated into and made a part of the Lease
attached hereto (the “Lease”).




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Each reference in the Lease to any of the information and definitions set forth in the Basic
Lease Information shall mean and refer to the information and definitions hereinabove set forth and
shall be used in conjunction with and limited by all references thereto in the provisions of the
Lease. In the event of any conflict between any Basic Lease Information and the Lease, the Lease
shall control.




	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	 	 	TCU Properties I, LLC, a Utah limited liability

company
	 
	 	 	 	 	 	 	 	 
	Date:

	 	 	 	, 2003
	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Val H. Christensen
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	 	President
	 
	 	 	 	 	 	 	 	 
	TENANT:	 	 	 	Omniture, Inc.
	 
	 	 	 	 	 	 	 	 
	Date:

	 	 	 	, 2003
	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Josh James
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	 	CEO






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CANYON PARK TECHNOLOGY CENTER

OFFICE BUILDING LEASE AGREEMENT




- 9 -









 





TABLE OF CONTENTS




Paragraph

No.




1. Definitions and Basic Provisions

2. Lease Grant

3. Rent

4. Security Deposit

5. Leasehold Improvements

6. Landlord’s Obligations

7. Condition of Premises

8. Use

9. Tenant’s Repairs and Alterations

10. Assignment and Subletting

11. Compliance with Laws

12. Indemnity

13. Subordination

14. Rules and Regulations

15. Inspection

16. Condemnation

17. Fire or Other Casualty

18. Holding Over

19. Taxes on Tenant’s Property

20. Events of Default

21. Remedies

22. Landlord’s Liability

23. Surrender of Premises

24. Attorneys’ Fees

25. Mechanic’s Liens

26. No Subrogation-Insurance

27. Brokerage

28. Building Name

29. Estoppel Certificates

30. Notices

31. Severability

32. Amendments; No Waiver; Binding Effect

33. Quiet Enjoyment

34. Gender

35. Joint and Several Liability

36. Certain Rights Reserved by Landlord

37. Notice to Lender




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38. Captions

39. Miscellaneous

40. Force Majeure

41. Applicable Law

42. Third Party Rights

43. Americans with Disabilities Act

44. Site Plan and Restrictive Covenants

45 Security Services

46. Exhibits and Attachments




	 	 	 
	Exhibit A
	 	- Site Plan of Park

	Exhibit A-1
	 	- Land Owned and Controlled by Landlord

	Exhibit B
	 	- Floor Plan of the Premises

	Exhibit C
	 	- Rules and Regulations

	Exhibit D
	 	- Leasehold Improvements

	Exhibit E
	 	- Operating Expenses

	Exhibit F
	 	- Bankruptcy

	Exhibit G
	 	- Shared Park Facilities

	Exhibit H
	 	- Restrictive Covenants

	Exhibit I
	 	- Parking







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CANYON PARK TECHNOLOGY CENTER

OFFICE BUILDING LEASE AGREEMENT




     THIS LEASE AGREEMENT is entered into as of the Lease Date set forth in the Basic Lease
Information by and between the Landlord and the Tenant named in the Basic Lease Information.


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 and shall be used in conjunction with and limited by the
reference thereto in the provisions of this Lease. As used herein, the term “RA,” when referring to
the Premises (defined in the Basic Lease Information) shall mean and refer to the rentable area of
the Premises measured in accordance with the Building Owners and Managers Association (“BOMA”)
method of measurement. The term “RA,” when referring to the Building or any other Park Building,
shall mean the aggregate total of all RA in the Building in question or in all of the Park
Buildings, as applicable. The Landlord reserves the right to re-measure the Premises in accordance
with BOMA standards, in which event the Basic Rental will be immediately adjusted to reflect the
change in the RA of the Premises.



2. Lease Grant.




          Landlord, in consideration of the rent to be paid and the other covenants and agreements to be
performed by Tenant and upon the terms hereinafter stated, does hereby lease, demise and let unto
Tenant the Premises commencing on the Commencement Date and ending on the last day of the Term
unless sooner terminated as herein provided.



3. Rent.




          (a) Except as provided for in the “Rent Abatement” section, Tenant shall pay to Landlord
Adjusted Rental, which is the sum of the monthly Basic Rental, the monthly Excess Operating
Expenses and the monthly Excess Taxes (as defined in the Basic Lease Information), as estimated by
Landlord from time to time, in monthly installments in advance on the first day of each month in
lawful money of the United States to Landlord at its address set forth above (or such other address
as Landlord shall designate in writing to Tenant) without notice or demand and without any
abatement, deduction or set-off, for each month of the entire Term. One such monthly installment,
shall be payable by Tenant to Landlord upon the execution of this Lease. A like monthly installment
shall be due and payable without demand beginning on the first day of the calendar month
immediately following the month in which the Commencement Date occurs and continuing thereafter on
or before the first day of each succeeding calendar month during the Lease Term. Rent for any
fractional month at the beginning of the Lease Term shall be prorated


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based on one-three hundred sixty-fifth (1/365) of the current annual Adjusted Rental for each day
of the partial month this Lease is in effect, and shall be due and payable on or before the first
day of the calendar month immediately following the month in which the Commencement Date occurs.




          (b) During the Term of this Lease, the Basic Rental shall be increased at the beginning of
each lease year by $.50 per rental square foot. The dates described in this Section for computing
the adjustment in Basic Rental are hereinafter sometimes referred to collectively as “Rental
Adjustment Dates” and singularly as a “Rental Adjustment Date”. After each Rental Adjustment Date,
the rent as increased shall be deemed the Basic Rental for all purposes of this Lease.




          (c) If all of any sum due under this Lease is not received by its due date, then Tenant, to
the extent permitted by law, shall pay, in addition to the sum owed, a late payment charge equal to
five percent (5%) of the sum (or portion thereof) which is overdue. If a check remitted to pay any
sum due to Landlord hereunder shall not be honored upon presentment for payment, then Tenant in
addition to the amount owed, shall pay to Landlord on demand a fee of five percent (5%) of the
amount owed. Following the dishonor of any check presented for payment, Landlord may require all
further payments to be made hereunder to be made by certified check or money order. Also, if
Landlord does not receive any Adjusted Rental within thirty (30) days after the due date thereof,
or fails to pay any sum (other than Adjusted Rental) which at any time becomes due to Landlord
under any provision of this Lease as and when the same becomes due hereunder, then, in either such
event, Tenant shall pay Landlord interest on such overdue amounts from the due date thereof until
paid at an annual rate (the “Past Due Rate”) which equals the lesser of (i) eighteen percent (18%)
or (ii) the highest rate then permitted by law. The “Past Due Rate” will be applied after thirty
(30) days on the unpaid sum but not the five percent (5%) late penalty fee. All late payment
charges and fees for dishonored checks are to reimburse Landlord for additional costs and expenses
which Landlord presently expects to incur in connection with the handling and processing of late or
dishonored payments. Provision for such late charge, interest or fee for dishonor shall be in
addition to all other rights and remedies available to Landlord hereunder or at law or in equity
and shall not be construed as liquidated damages or limiting Landlord’s remedies in any manner.




          (d) Tenant’s covenants and obligations to pay Adjusted Rental and all additional rental
(collectively, the “Rent”) hereunder are unconditional and independent of any other covenant or
condition imposed on either Landlord or Tenant, whether under this Lease, at law or in equity.



4. Security Deposit.




          The Security Deposit is due upon execution of the Lease. Landlord shall hold the Security
Deposit without liability for interest and as security for the performance by Tenant of Tenant’s
obligations under this Lease. Tenant agrees that such deposit will not be considered an


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advance payment of rental or a measure of Landlord’s damages in case of default by Tenant. Landlord
may, from time to time, without prejudice to any other remedy, use such deposit to make good any
arrearage in any amount due hereunder and to reimburse Landlord for any other damage, injury,
expense or liability caused to Landlord by any breach of 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. If Tenant is not then in default hereunder,
one-half (1/2) of any remaining balance of the Security Deposit shall be returned by Landlord to
Tenant within a reasonable period of time after the expiration of this Lease, not to exceed fifteen
(15) days. The balance of the Security Deposit shall be held by Landlord until final computation of
any sums (such as the Excess Operating Expenses) which Tenant may owe under this Lease. The
Landlord will present the final computation of Excess Operating Expenses and the return of the
deposit if warranty within sixty (60) days of the end of the lease. If Landlord transfers its
interest in the Premises during the Lease Term, Landlord may assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from its general funds.



5. Leasehold Improvements.




          If Landlord has agreed to construct improvements upon the Premises, such improvements shall be
installed as provided in Exhibit D attached hereto.



6. Landlord’s Obligations.




          (a) Subject to the following limitations, Landlord shall furnish Tenant while Tenant is
occupying the Premises and performing all of its obligations under this Lease, facilities to
provide (i) water (hot and cold) for lavatory and cleaning purposes at those points of supply
provided for general use of tenants in the Building; (ii) heated and refrigerated air conditioning
in season, during Customary Business Hours (defined below), and at such temperatures and in such
amounts as are reasonably considered by Landlord to be standard; (iii) janitorial service to the
Premises as is reasonably considered by Landlord to be standard on weekdays other than Holidays (as
hereinafter defined) and such window-washing as may from time to time in Landlord’s judgment
reasonably be required; (iv) elevator service in common with other tenants; provided that Landlord
may limit the number of elevators in operation at times other than Customary Building Hours; and
(v) replacement of Building standard light bulbs and fluorescent tubes. Also, Landlord shall
maintain the public and common areas of the Building in reasonably good order and condition;
provided, however, that Tenant shall reimburse Landlord for the cost of repairing any damage to
such areas occasioned by Tenant, or its employees, contractors agents or invitees. The cost of
these facilities and services shall be included in Operating Expenses (as defined in Exhibit
F). If Tenant desires any of the services specified in this Paragraph 6 at a time or in
an amount other than times or amounts herein designated, such excess service or services shall be
supplied to Tenant, subject to availability, upon Tenant’s request for such services,


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which request shall be made in accordance with Landlord’s normal operating procedures. Tenant shall
pay to Landlord as additional rent the cost of such excess service or services (which may include a
charge for depreciation of Landlord’s equipment) within fifteen (15) days after Tenant’s receipt of
a bill therefor. “Customary Business Hours” means 8:00 a.m. to 6:00 p.m. Monday through Friday, and
Saturday 9:00 a.m. to 1:00 p.m., except Holidays. “Holidays” means New Year’s Day, Martin Luther
King Day, Presidents Day, Memorial Day, the Fourth of July, Labor Day, Thanksgiving Day, the Friday
following Thanksgiving and Christmas Day. After hours heating, ventilating, air conditioning
(HVAC) and electrical service shall be charged at the rate of $25 per hour with the Tenant
providing an honest report of after hours usage to the Landlord upon request. If Tenant requests
after hours services requiring service personnel, Tenant will be charged for the cost of such
service plus an additional charge of 15% of such cost to cover overhead.




          (b) Landlord shall make available to Tenant electric power facilities in the Premises
sufficient to furnish power for computers, typewriters, voice writers, calculating machines and
other machines of similar low electrical consumption; provided, however, that Landlord shall not
provide power in excess of eight (8) watts per square foot of RA of the Premises. If, in
Landlord’s judgment, Tenant’s use of power exceeds that permitted by the preceding sentence, Tenant
shall bear the entire cost of the excess, including without limitation, the cost of any metering
devices which may be necessary to determine the amount of such excess. Landlord shall also make
available electric lighting and current for the common areas of the Building in the manner and to
the extent deemed by Landlord to be standard.




          (c) Landlord’s obligation to make available the utilities described in this Paragraph
6 is subject to the rules and regulations of the suppliers of utilities and of any municipal or
other governmental authority regulating the business of providing utility services. Landlord shall
not be responsible or liable to Tenant for any loss, damage or expense that Tenant may sustain or
incur if either the quantity or character of any utility service is changed. If heat generating
machines, equipment, fixtures or devices of any nature whatsoever which affect the temperature
otherwise maintained by the air conditioning system are used in the Premises by Tenant, Landlord
may install supplementary air conditioning units in the Premises at Tenant’s expense (including the
cost of installation and the cost of operation and maintenance thereof).




          (e) Landlord’s failure to any extent to make available, or any slowdown, stoppage or
interruption of, the services set forth in this Paragraph 6 resulting from any cause beyond
Landlord’s control (as defined in Paragraph 40) shall not render Landlord liable in any
respect for damages to person, property or business, nor be construed an eviction of Tenant or work
an abatement of Rent, nor relieve Tenant from fulfilling any covenant or agreement hereof; however,
Landlord shall use reasonable efforts (and shall not be required to employ any workers at overtime
rates) to resume said services in a timely manner.



7. Condition of Premises. TENANT EXPRESSLY ACKNOWLEDGES THAT (A) TENANT HAS THOROUGHLY
EXAMINED THE PREMISES AND TAKES AND


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ACCEPTS THE PREMISES IN ITS “AS IS” CONDITION ON THE COMMENCEMENT DATE, (B) LANDLORD AND LANDLORD’S
AGENTS AND EMPLOYEES HAVE MADE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION OF THE
PREMISES, THE BUILDING, THE PROPERTY OR THE PARK, NOR HAS LANDLORD MADE ANY COMMITMENTS TO REMODEL,
REPAIR OR REDECORATE, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND (C) LANDLORD EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT’S INTENDED COMMERCIAL PURPOSE. TENANT
EXPRESSLY WAIVES AND RELEASES LANDLORD FROM ANY OF SAME.



8. Use.




          (a) Tenant shall use the Premises only for the Permitted Use (as defined in the Basic Lease
Information). Tenant shall not occupy or use the Premises, or permit any portion of the Premises to
be occupied or used, for any business or purpose other than the Permitted Use or for any use or
purpose which is unlawful in part or in whole or deemed by Landlord to be disreputable in any
manner or extra hazardous on account of fire, nor permit anything to be done that will in any way
invalidate or increase the rate of insurance on the Building or its contents. Tenant shall promptly
upon demand reimburse Landlord for any additional premium charged for any such insurance by reason
of Tenant’s failure to comply with the provisions of this Paragraph. Tenant will conduct its
business and control its agents, employees and invitees in such a manner as not to create any
nuisance, interfere with, annoy or disturb other tenants or interfere with Landlord in the
management of the Building, the Property or the Park. Tenant will maintain the Premises in a
clean, healthful and safe condition and will comply with all laws, ordinances, orders, rules and
regulations of all state, federal, municipal and other agencies or bodies having jurisdiction over
the Premises and governing the use, condition or occupancy of the Premises, whether existing as of
the Commencement Date or enacted subsequent thereto.




          (b) If any governmental license or permit shall be required for the proper and lawful conduct
of Tenant’s business in the Premises or any part thereof, Tenant shall duly procure and thereafter
maintain such license or permit and submit the same to Landlord. Landlord agrees to cooperate with
Tenant and to execute such applications, certificates and other documents as Tenant shall
reasonably request in order for Tenant to procure or maintain any such license or permit, provided
that same is at no cost or expense to Landlord. Tenant shall at all times comply with the terms
and conditions of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Premises, or do or permit anything to be done in the
Premises, in any manner which (i) violates the existing, permanent Certificate of Occupancy for the
Premises; (ii) causes or is likely to cause injury to the Building or any equipment, facilities or
systems therein; (iii) constitutes a violation of the Legal Requirements; (iv) materially impairs
the character, reputation or appearance of the Building as Class A office Buildings; or (v)
materially impairs the proper and economic maintenance, operation and repair of the Building and/or
its equipment, facilities or systems.




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9. Repairs and Alterations.




          (a) Tenant shall keep and maintain the Premises in a good, clean condition of repair and
maintenance. Tenant shall not damage or injure the Premises. If any repairs or maintenance required
to be performed by Tenant are not commenced within fifteen (15) days and completed within thirty
(30) days after Landlord notifies Tenant of the need for same, Landlord may make such repairs or
replacement, and Tenant shall pay the cost thereof (plus an additional charge of fifteen percent
(15%) of such cost to cover overhead) to Landlord within fifteen (15) days after Tenant’s receipt
of a statement from Landlord. Tenant further agrees not to commit or allow any waste or damage to
be committed on any portion of the Property, and at the termination of this Lease, by lapse of time
or otherwise, Tenant shall deliver up the Premises to Landlord in as good condition as at the
Commencement Date, ordinary wear and tear excepted. Except as may be set forth in Exhibit D,
Landlord shall not be required to make any improvements or repairs of any kind or character
on or to the Property, or any portion thereof, during the Lease Term. Notwithstanding the
foregoing, Landlord shall make all necessary repairs to the Building components servicing or
supporting, but located outside, the Premises, including without limitation the foundation, outside
walls, interior load-bearing walls, roof, load-bearing beams, and other major structural components
of the Building and treat such repairs as Operating Expenses (as defined in Exhibit E), unless the
need for such repair arises out of (1) the performance by Tenant of any alterations or other work,
(2) any act or omission of Tenant or its employees, invitees or contractors or (3) the installation
of any equipment, fixtures or property by Tenant in the Premises or the moving of the foregoing in
or out of the Premises, in which event Tenant shall be responsible to make the repairs.




          (b) Tenant, without the prior written consent of Landlord, shall not paint, install lighting
or decorations (except wall hangings), or install any signs, window or door lettering or
advertising media of any type on or about the Property, or any part thereof, or make any other
alterations, improvements or physical additions in or to the Property, or any part thereof. At the
termination of the Lease, at Landlord’s option and subject to the Landlord’s right to retain
improvements desired by Landlord, Tenant shall restore any portions of the Premises altered, added
to, or improved by Tenant to the original condition accepted on the “Commencement Date”.
Notwithstanding the Tenant’s duty hereunder to remove their tenant alterations, additions, or
improvements, including without limitation any HVAC, power supply, or other equipment attached to
the Premises, whether temporary or permanent in character, made in or upon the Property shall, at
Landlord’s sole discretion and option, be Landlord’s property on termination of this Lease and
shall remain on the Property without compensation to Tenant. All furniture and unattached, movable
equipment and trade fixtures kept in the Premises by Tenant shall be removed by Tenant at the
termination of this Lease. If the items are not removed, Landlord may elect that such items will
become Landlord’s property. If removal occurs, Tenant, at Tenant’s expense, shall repair and
restore to its original condition any portion of the Premises which is damaged by such removal.
All such installations, removals and restorations shall be accomplished in a good workmanlike
manner so as not to damage the Premises or the primary structure or structural qualities of the
Building or any plumbing or electrical lines or other utility


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facilities. All contractors used by Tenant in performance of any alterations or other work in the
Premises shall be subject to the approval of Landlord, such approval not to be unreasonably
withheld provided that with respect to any structural, mechanical or electrical work (regardless of
the cost thereof) Tenant will use Landlord’s contractors. If the cost of the alterations or other
work to be performed by Tenant as reasonably estimated by Landlord shall exceed $30,000 (i)
Landlord shall have the right to approve the Tenant’s architect, which approval shall not be
unreasonably withheld, unless Tenant agrees to use Landlord’s architect and (ii) Tenant may either
use Landlord, Landlord’s property manager or Landlord’s outside construction manager as
construction manager for the project and pay to such construction manager a fee equal to 3% of the
cost of such alteration work or use its own construction manager with the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Notwithstanding anything herein to the
contrary, with respect to any non-structural alteration which (i) does not affect any Building
system or any portion of the Building outside the Premises and (ii) does not cost more than
$30,000, the consent of Landlord will not be unreasonably withheld or delayed. In addition, with
respect to painting and other cosmetic work that does not cost more than $30,000 in the aggregate,
Landlord’s consent shall not be required provided Landlord receives at least 10 days advance notice
thereof. Promptly after Tenant completes any alteration, it will deliver to Landlord a set of
as-built drawings.



10. Assignment and Subletting.




          (a) Tenant shall not, either voluntarily or by operation of law, assign all or any portion of
this Lease, nor sublet the Premises or any part thereof, nor permit the Premises or any part
thereof to be occupied by any person other than Tenant or Tenant’s employees, without the prior
written consent of Landlord. If Tenant desires to assign this Lease or sublet the Premises or any
part thereof, Tenant shall so notify Landlord at least sixty (60) days prior to the date on which
Tenant desires to make such assignment or sublease, which notice shall contain all material terms
of the proposed assignment or sublease and financial information regarding the proposed assignee or
subtenant as a condition of such sublease or assignment, Landlord may require plans to verify
compliance with Building and fire codes. Landlord may assess its reasonable out of pocket costs for
review of such plans. If Tenant desires to assign this Lease, Landlord shall have the option
within thirty (30) days after receipt of such notice to notify Tenant in writing that Landlord
elects to terminate this Lease as of the date specified by Tenant for said assignment. If Tenant
desires to sublet more than 50% of the RA of the Premises, Landlord shall have the option within
thirty (30) days after receipt of such notice to notify Tenant in writing that Landlord elects to
terminate this Lease as of the date specified by Tenant for such subletting. If Landlord fails to
timely exercise the foregoing recapture right or if the requested sublease does not trigger a
recapture right on behalf of Landlord, then Landlord shall have forty-five (45) days after receipt
of such notice to notify Tenant whether Landlord consents to such an assignment or subletting.
Landlord shall not unreasonably withhold or delay its consent to a subletting provided that (a) the
sublessee under any such subletting shall be such person or entity as in the Landlord’s judgment is
of a character and engaged in a business such as is in keeping with the standards of the Park and
its occupancy, (b) the sublessee shall have


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sufficient net worth to perform its obligations under its sublease, (c) the sublessee shall not be
a (i) government or a governmental authority or a subdivision or an agency of any government or any
governmental authority, (ii) a tenant of the Landlord elsewhere in the Park, (iii) an entity or
person with whom the Landlord has negotiated (for purposes hereof, “negotiated” shall mean
exchanging of written proposals, leases being prepared or drafts distributed and modified) for a
proposed lease of space in the Park at any time during the six (6) month period prior to the
receipt of said notice by the Landlord or (iv) competitor of Landlord and (d) the space so to be
sublet shall be regular in shape. If Landlord fails to notify Tenant in writing of such election
within said forty-five (45) day period, Landlord shall be deemed to have denied consent to such
assignment or sublease. If Landlord consents to a sublease, Tenant shall provide, at its expense,
direct access from the sublet space to a public corridor of the Building in accordance with plans
and specifications approved by Landlord. No assignment or subletting by Tenant shall relieve Tenant
of any obligations under this Lease. Landlord’s consent to any assignment, sublease or other
transaction shall not be deemed a consent to any other or subsequent transaction.




          (b) If Landlord consents to any subletting or assignment by Tenant as hereinabove provided and
the rent, additional rent and other consideration received by Tenant under or relating to such
sublease exceeds the Rent payable to Landlord under this Lease, or if Tenant receives any
consideration from the assignee under any such assignment, then 100% of such excess rents and
consideration under or relating to such sublease or 100% of such consideration for any assignment
shall automatically be due and payable by Tenant to Landlord as additional rent hereunder.




          (c) Landlord may transfer and assign, in whole or in part, its rights and obligations
hereunder concurrently with the transfer and assignment of all or any portion of the Park and in
such event and upon assumption by the transferee of Landlord’s obligations hereunder (any such
transferee to have the benefit of, and be subject to, the provisions of this Lease), no further
liability or obligation shall thereafter accrue against Landlord hereunder.




          (d) If Tenant is a corporation, then any merger, consolidation, dissolution or liquidation, or
any change (whether in one or a series of transactions) in ownership or power to vote of fifty
percent (50%) or more of its outstanding voting stock shall constitute an assignment of this Lease
requiring the consent of Landlord which shall not be unreasonably withheld. If Tenant is a
partnership, joint venture or other entity, then any liquidation or dissolution, or any transfer of
ownership of interests totaling fifty percent (50%) or more of the total interests in such entity
(whether in one or a series of transactions) shall constitute an assignment of this Lease requiring
the consent of Landlord. The provisions of this clause (d) shall not be applicable so long as the
stock of Tenant is traded at a recognized regional stock exchange.




          (e) Tenant agrees that it shall not place (or permit the placement of) any signs on or about
the Premises or the Park, nor conduct (or permit anyone to conduct) any public advertising which
includes any pictures, renderings, sketches or other representations of any Building (or a portion
thereof) with respect to any proposed assignment or subletting of the


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Premises, without Landlord’s prior written consent. In all events, Tenant shall comply with all
applicable governmental regulations.




          (f) Tenant shall not mortgage, pledge, hypothecate or otherwise encumber (or grant a security
interest in) this Lease or any of Tenant’s rights hereunder




          (g) Landlord may terminate this Lease if Tenant sells, transfers, exchanges, distributes, or
otherwise disposes of more than thirty percent (30%) of its assets (except in the ordinary course
of business, in a public offering of the Tenant’s stock, or in a merger or acquisition) unless
after such disposition, the net worth of Tenant as demonstrated to the reasonable satisfaction of
Landlord is an amount acceptable to the Landlord.




          (h) If Tenant assigns this Lease or sublets all or substantially all of the Premises, any
option then held by Tenant (such as an option to renew this Lease or to expand the size of the
Premises) shall terminate automatically upon the assignment or sublease unless approved otherwise
by Landlord.




          (i) Tenant shall pay Landlord’s reasonable expenses incurred in reviewing any request by
Tenant under this Paragraph upon demand.




          (j) If the Premises or any part thereof are sublet or used or occupied by anyone other than
Tenant, whether or not in violation of this Lease, Landlord may, after default by Tenant and
expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant.
Landlord may apply the net amount collected to the Rent, but no such subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Paragraph 10 or the
acceptance of the subtenant or occupant as tenant, or a release of Tenant from the performance of
Tenant’s obligations under this Lease. Landlord’s consent to any subletting or use or occupancy by
others shall not relieve Tenant of its obligation to obtain Landlord’s written consent to any other
subletting, use or occupancy by others.



11. Compliance with Laws. Tenant shall comply with all Legal Requirements which relate to
Tenant’s use of the Premises or Tenant’s method of operation therein, or impose any violation,
order or duty on Tenant by reason thereof. Tenant shall pay all the costs, expenses, penalties and
damages which may be imposed upon Landlord by reason of Tenant’s failure to fully and promptly
comply with and observe the provisions of this Paragraph. Landlord shall comply with all
Legal Requirements which relate to the Shared Park Facilities. Landlord agrees to remedy any
non-compliance with Legal Requirements elsewhere in the Park if such non-compliance has the effect
of preventing or hindering Tenant from obtaining a permit, certificate or approval that Tenant is
entitled to obtain hereunder from local authorities.



12. Indemnity.





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     (a) Landlord shall not be liable or responsible to Tenant for any loss or damage to any
property or person occasioned by theft, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or order of governmental body or authority, or for any
damage or inconvenience that may arise through repair or alteration of any part of the Building or
any part of the Park, or failure to make any such repairs unless caused by the gross negligence or
willful misconduct of Landlord. In addition, Landlord shall not be liable to Tenant, or to
Tenant’s agents, servants, employees, customers or invitees and Tenant shall indemnify, defend and
hold harmless Landlord of and from all fines, suits, claims, demands, losses, liabilities, actions
and costs (including court costs and attorneys’ fees, at trial and on appeal) arising in whole or
in part from (i) any injury to person or damage to property caused by any act, omission or neglect
of Tenant, Tenant’s agents, servants, employees, customers or invitees, (ii) Tenant’s use of the
Premises or the conduct of Tenant’s business or profession, (iii) any activity, work, or thing
done, permitted or suffered by Tenant in or about the Premises or (d) any breach or default in the
performance of any obligation on Tenant’s part to be performed under the terms of this Lease unless
caused by the gross negligence or willful misconduct of Landlord.



     (b) Tenant shall not (i) do any act or thing in respect of the Premises, or use or occupy the
Premises, or conduct Tenant’s business in any manner, or (ii) permit or suffer to be done any act
or thing or fail to act in respect of the Premises, whereby the fire insurance or any other
insurance then in effect for the Building, the Property or any other part of the Park or any part
thereof shall become void or suspended or whereby any insurance premiums maintained by Landlord (or
imputed premiums, if Landlord self-insures) shall be higher than those which would normally have
been in effect for the occupancy contemplated under the Permitted Uses in accordance with the terms
and provisions of this Lease. In case of a breach of the provisions of this Paragraph, if
the breach is not due to circumstances beyond Tenant’s reasonable control and if Tenant shall not
have remedied the breach within ten (10) days of Landlord’s written notice of the breach to Tenant,
then in addition to all other rights and remedies of Landlord hereunder, Tenant shall (i) indemnify
and hold Landlord and its affiliates harmless from and against any loss which would have been
covered by insurance which shall have become void or suspended because of such breach by Tenant,
and (ii) pay to Landlord any and all increases of premiums (including imputed premiums) on any
insurance resulting from any such breach.



     (c) Tenant shall defend, indemnify and hold harmless Landlord, its affiliates and its or their
officers, directors, employees and agents, (“Landlord’s Indemnitees”) from and against any and all
claims arising from or in connection with (i) any work or thing whatsoever done in the Premises by
or for Tenant, (ii) any act or any condition created in the Premises by Tenant or any of its
subtenants, or its or their-agents, employees, invitees or contractors, or (iii) any accident,
bodily injury (including death) or damage to property, including damage to property or injury of
Tenant or its employees, agents, contractors, or invitees occurring in the Premises, unless (i)
caused by the gross negligence of Landlord, its agents, employees, or contractors, or (ii) caused
by or relating to any breach or default by Landlord in the full and



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prompt performance of Landlord’s obligations under this Lease which remains uncured beyond a
reasonable period of time after Landlord is given notice thereof by Tenant.



     (d) Notwithstanding any provision to the contrary, Tenant shall look solely to Landlord’s
interests in the Park in the event of any claim against Landlord arising out of this Lease. No
other properties or assets of Landlord or any agent or employee of Landlord shall be subject to
levy, execution or other enforcement procedures for the satisfaction of any remedy of Tenant
arising out of this Lease. Landlord in no event shall be liable for consequential damages arising
out of any loss of use of the Demised Premises or any equipment or facilities therein by Tenant or
any person claiming through Tenant.



     (e) The indemnity and hold harmless agreements in this Paragraph shall include
indemnification from and against any and all liability, fines, suits, demands, costs and expenses
of any kind or nature (including, without limitation, reasonable attorneys’ fees and disbursements)
incurred in or in connection with any such claim or proceeding brought thereon, and the defense
thereof, but shall be limited to the extent any proceeds actually collected by Landlord or Tenant
(as the case may be) or such injured party under policies owned by Landlord or Tenant (as the case
may be) or such injured party with respect to such damage or injury are insufficient to satisfy
same. The indemnity and hold harmless agreements in this Paragraph in favor or a party shall not
apply in cases of that party’s sole negligence.



13. Subordination.




     (a) This Lease and all rights of Tenant hereunder are and shall be subject and subordinate to
any deeds of trust, mortgages or other instruments of security (“Security Instruments”), as well as
to any ground leases or primary leases (“Master Leases”), that now or hereafter cover any of the
Property or any interest of Landlord therein, and to any and all advances made on the security
thereof, and to any and all increases, renewals, modifications, consolidations, replacements and
extensions thereof. Landlord hereby expressly reserves the right, at its option and declaration, to
place Security Instruments and Master Leases on and against any of the Property or any interest of
Landlord therein, superior in effect to this Lease and the estate created hereby. This clause shall
be self-operative and no further instrument of subordination need be required, however, upon
Landlord’s request, or upon the request of any holder (a “Holder”) under any Security Instrument,
or of any lessor (a “Lessor”) under any Master Lease, Tenant shall execute promptly any instrument
(including without limitation an amendment to this Lease that does not materially and adversely
affect Tenant’s rights or duties under this Lease) or instruments intended to subordinate this
Lease or to evidence the subordination of this Lease to any such Security Instrument or Master
Lease.



     (b) In the event of the enforcement by a Holder under any Security Instrument of the remedies
provided for by law or by such Security Instrument, or in the event of the termination of any
Master Lease, the Holder or the Lessor may terminate this Lease or may continue this Lease in full
force and effect as a direct lease between such Holder or Lessor and



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Tenant. If the Holder or Lessor continues this lease, Tenant will attorn to and automatically
become the tenant of such successor in interest without change in the terms or other provisions of
this Lease (Tenant hereby waiving any right Tenant may have to terminate this Lease or surrender
possession of the Premises) and this Lease shall continue in full force and effect; provided,
however, that such successor in interest shall not be bound by or liable for (i) any payment of
Rent for more than one month in advance, (ii) any amendment or modification of this Lease made
without the written consent of such Holder, Lessor or successor in interest, or (iii) any offset,
claim or cause of action which Tenant may have against Landlord relating to the period which is
prior to the time Tenant becomes the tenant of such successor in interest. Upon request by any
Holder, Lessor or successor in interest to either, Tenant shall execute and deliver an instrument
confirming this attornment herein provided for.



     (c) Tenant agrees that any Holder or Lessor may at any time subordinate any rights which
Holder or Lessor may hold to the rights of Tenant under this Lease.


14. Rules and Regulations. Tenant shall comply fully with the rules and regulations of the
Building, the Property and the Park that are attached hereto as Exhibit C, and made a part
hereof as though fully set out herein. Tenant shall further be responsible for the compliance with
such rules and regulations by the employees, servants, agents, contractors, visitors and invitees
of Tenant. Landlord reserves the right to amend or rescind any of the rules and regulations and to
make such other and further rules and regulations as in its reasonable judgment shall from time to
time be prudent in the operation and management of the Premises, the Property and/or the Park,
which rules and regulations shall be binding upon Tenant upon notice to Tenant of same provided
that Landlord agrees to give advance notice to Tenant of any amendment to the rules and regulations
and to consider Tenant’s comments thereto, if any.



15. Inspection and Access. Landlord and its officers, agents and representatives shall
have the right to enter into and upon any and all parts of the Premises at all reasonable hours
(or, if any emergency, at any hour) for all reasonable purposes, including without limitation
making repairs or alterations, inspecting the Premises, and showing the Premises to prospective
tenants, purchasers or lenders; and Tenant shall not be entitled to any abatement or reduction of
Rent by reason thereof, nor shall such be deemed to be an actual or constructive eviction. Unless
there is an emergency, Landlord shall give prior notice to Tenant and shall allow a representative
to accompany Landlord provided such representative does not interfere with such entry.




16. Condemnation.




     (a) If all of the Premises shall be taken by any public or quasi-public authority under the
power of condemnation, eminent domain or expropriation, or in the event of conveyance of all of the
Premises in lieu thereof, this Lease shall terminate as of the day possession shall be taken by
such authority. If thirty percent (30%) or less of the Premises shall be so taken or conveyed,
this Lease shall terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority. If more than thirty percent



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(30%) of the Premises or if an essential portion of the Property shall be so taken or conveyed,
this Lease shall terminate only in respect of the part of the Premises, so taken or conveyed as of
the day possession shall be taken by such authority, but Landlord and Tenant shall have the right
to terminate this Lease upon notice given to the other party within 30 days after such taking of
possession. Landlord shall receive any and all funds or compensation paid by the authority for
property taken or conveyed, provided that Tenant shall receive any portion of such condemnation
proceeds awarded by the authority specifically allocated to improvements paid for by Tenant to the
extend such improvements increased the value of the Premises for purposes of such award.



     (b) If this Lease shall continue in effect as to any portion of the Premises not so taken or
conveyed, the Basic Rent and the RA of the Premises shall be computed on the basis of the remainder
of the Premises as of the day possession shall be taken. Except as specifically provided herein,
in the event of any such taking or conveyance there shall be no reduction in Rent. If this Lease
shall continue in effect, Landlord shall make all necessary alterations so as to constitute the
remainder of the Premises a complete tenantable unit. Landlord shall do so at its expense, but
shall be obligated only to the extent of the net award or other compensation (after deducting all
expenses in connection with obtaining same) available to Landlord for the improvements taken or
conveyed (excluding any award or other compensation for land). Within thirty (30) days of
Landlord’s receipt of the net award or other compensation, Landlord shall advise Tenant whether
such funds are sufficient or constitute the remainder of the Premises a complete tenantable unit.
If such funds are not sufficient and if Landlord elects therefore not to proceed, or if for any
other reason Landlord does not make such alterations to constitute the remainder of the Premises a
tenantable unit, Tenant shall have the right upon notice to terminate this Lease.



     (c) All awards and compensation for any taking or conveyance, whether for the whole or a part
of the Premises, the Property or any other portion of the Park shall be property of Landlord, and
Tenant hereby assigns to Landlord all of Tenant’s right, title and interest in and to any and all
such awards and compensation. Tenant shall be entitled to claim in the condemnation proceeding
such award or compensation as may be allowed for Tenant’s personal property and for loss of
business, and the cost of Tenant’s relocation, but only if such award or compensation shall be made
by the condemning authority in addition to, and shall not result in a reduction of, the award or
compensation made by it to Landlord.


17. Fire or Other Casualty. If the Premises or the Building shall be destroyed or
materially damaged and Landlord is unable to restore the Premises or the Building to an acceptable
condition within a reasonable amount of time, then either party may terminate this Lease by notice
to the other within thirty (30) days after the occurrence of the casualty, and this Lease shall
terminate as of the date of the casualty. If neither party terminates this Lease, Landlord shall
proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the
Premises or the Building, as the case may be, and this Lease shall continue in full force and
effect. If the casualty is due wholly or in part to an act or omission of Tenant or Tenant’s
agents, employees, invitees or contractors, Tenant shall pay to Landlord any deductible under


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Landlord’s insurance policies. Notwithstanding the foregoing, if any Holder requires that the
insurance proceeds be used to retire a debt, or if any Lessor should terminate a Master Lease as a
result of any such casualty, then Landlord may elect not to rebuild and this Lease shall terminate
upon delivery to Tenant of a notice to that effect. Landlord’s obligation to rebuild and repair
under this Paragraph 17 shall in all events be limited to restoring the Premises to
substantially the condition same were in immediately preceding the casualty, excluding all signs,
fixtures, equipment or furniture of Tenant and any alterations, additions or improvements to the
Premises made by Tenant, whether prior to or after the Commencement Date. Tenant agrees that
promptly after completion of such work by Landlord, Tenant shall proceed with reasonable diligence
and at its sole cost and expense to rebuild, repair and restore all signs, furniture, equipment,
fixtures and other improvements which may have been placed by Tenant within the Premises. Provided
that the casualty did not occur by reason of any act or omission of Tenant or Tenant’s agents,
employees, invitees or contractors, Landlord shall allow Tenant a diminution of Basic Rental during
the time the Premises are unfit for occupancy, which diminution shall be based upon the proportion
of square feet which are unfit for occupancy to the total square feet in the Premises. Except as
hereinafter provided, any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or to the Premises shall be for the sole benefit of the party carrying such
insurance and under its sole control. Tenant shall be responsible for obtaining fire and extended
coverage insurance for full replacement cost upon all improvements and fixtures installed in the
Premises at Tenant’s expense, if any, and the contents of the Premises.



18. Holding Over. Should Tenant, or any of its successors in interest, hold over the
Premises, or any part thereof, after the expiration of the Lease Term, unless otherwise agreed in
writing by Landlord, such holding over shall constitute and be construed as a tenancy at will only,
at a daily rental equal to the daily Rent payable for the last month of the Lease Term plus fifty
percent (50%) of such amount. The inclusion of the preceding sentence shall not be construed as
Landlord’s consent for Tenant to hold over.



19. Taxes on Tenant’s Property. Tenant shall be liable for all taxes levied or assessed
against all personal property, furniture or fixtures placed by Tenant in the Premises. If any such
taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property and
if Landlord pays same or if the assessed value of Landlord’s property is increased by inclusion of
personal property, furniture or fixtures placed by Tenant in the Premises, and Landlord pays the
taxes based on such increase, Tenant shall pay to Landlord upon demand that part of such taxes for
which Tenant is primarily liable hereunder.



20. Events of Default. The following events shall be deemed to be events of default by
Tenant under this Lease:




     (a) Tenant shall fail to pay when due any Adjusted Rental or other sums payable by Tenant
hereunder and such failures continues for a period of five (5) days after written notice to Tenant
by Landlord (or under any other lease now or hereafter executed by Tenant in connection with space
in the Property).



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     (b) Tenant shall fail to comply with or observe any other provision of this Lease (or any
other lease now or hereafter executed by Tenant in connection with space in the Park), and such
failure continues for fifteen (15) days after delivery to Tenant of notice thereof, provided that
if such failure cannot with due diligence be cured within said 15 day period, said failure shall
not constitute an event of default if Tenant commences to cure such default within 10 days after
its occurrence and thereafter diligently proceeds to cure such default to completion.



     (c) Tenant shall make a transfer in fraud of creditors or an assignment for the benefit of
creditors.



     (d) Any petition shall be filed by or against Tenant under any appropriate federal or state
bankruptcy or insolvency law and with respect to an involuntary petition, same is not dismissed
within 60 days after its filing; or Tenant shall be adjudged bankrupt or insolvent in proceedings
filed thereunder; or Tenant shall admit that it cannot meet its financial obligations as they
become due. For additional provisions regarding Tenant’s bankruptcy see Exhibit F.



     (e) A receiver or trustee shall be appointed for all or substantially all of the assets of
Tenant.



     (f) One or more of the events enumerated in clauses (c), (d) and (e) occurs to Guarantor.



     (g) Tenant shall abandon or vacate any portion of the Premises. For purposes of this Lease,
Tenant shall be deemed to have abandoned the Premises if Tenant fails to utilize all or
substantially all of the Premises for the purpose permitted herein for ten (10) or more consecutive
days.



     (h) Tenant shall do or permit to be done anything which creates a lien upon the Premises which
is not removed within 20 days after its creation.



     (i) Tenant shall fail to execute an Estoppel Certificate in the form and time period requested
by Landlord pursuant to Paragraph 29.


21. Remedies. Upon the occurrence of any event of default by either party specified in
this Lease, the other party may pursue any and all remedies which it may then have hereunder or at
law or in equity, including, without limitation, any one or more of the remedies listed in this
section. In all cases, party agrees that it will make commercially reasonable efforts to mitigate
damages from any default by the other party.




     (a) Terminate this Lease, in which event Tenant immediately shall surrender the Premises to
Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which
it may have for possession or any arrearage in Rent hereunder or at law or in



- 26 -









 







equity, enter upon and take possession of the Premises. To the extent permitted by law, Tenant
agrees to pay to Landlord on demand the amount of all loss, cost, expense and damage which Landlord
may suffer or incur by reason of such termination, whether through inability (after a commercially
reasonable effort) to relet the Premises on satisfactory terms or otherwise, including the
following:



     (i) the worth at the time of award of any unpaid Rent which had been earned at the time of
such termination; plus



     (ii) the worth at the time of award of the amount by which the unpaid Rent which would have
been earned after termination until the time of award exceeds the amount of such rental loss which
Tenant proves could have been reasonably avoided; plus



     (iii) to the extent such damages are not mitigated by obtaining a new tenant, the amount of
the unpaid Rent for the balance of the term; plus



     (iv) any other amount, including court costs, or costs of reletting (including leasing and
refitting costs), necessary to compensate Landlord for all detriment proximately caused by Tenant’s
failure to perform Tenant’s obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom; plus



     (v) at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by applicable law; and



     (vi) all reasonable attorneys’ fees incurred by Landlord relating to the default and
termination of this Lease.



     All Rent shall be computed on the basis of the amount thereof which was due and payable to
Landlord for the month immediately prior to default. As used in subparagraphs (i) and (ii) above,
the “worth at the time of award” is to be computed by allowing interest at the Past Due Rate.



     (b) Enter upon and take possession of the Premises by virtue of the laws of the State of Utah
for summary proceedings for possession of real estate or such other proceeding as may be
applicable, and if Landlord so elects, relet all or any part of the Premises on such terms as
Landlord shall deem advisable (including, without limitation, such concessions and free rent as
Landlord deems necessary or desirable) and receive and retain all of the rent therefor; and Tenant
agrees (i) to pay to Landlord on demand any deficiency that may arise by reason of such reletting
for the remainder of the Lease Term (or any extension thereof, if the event of default occurs
during such extension term), and (ii) that Tenant shall not be entitled to any rents or other
payments received by Landlord in connection with such reletting even if such rents and other
payments are in excess of the amounts that would otherwise be payable to Landlord under this Lease.
Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting



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the Premises, including, without limitation, brokers’ commissions, reasonable attorneys’ fees
incurred in connection with the reletting and in connection with Tenant’s default hereunder,
expenses of repairing, altering and remodeling the Premises required by the reletting, and like
costs. Tenant expressly acknowledges that Landlord has no duty to relet the Premises, that Landlord
may offer all or any part of the Premises for any period, to any tenant and for any use which
Landlord may elect, and that Landlord may offer for lease any vacant space in the Project Buildings
prior to offering the Premises for lease.



     (c) Make such payments or enter upon the Premises, and perform whatever Tenant is obligated to
pay or perform under the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for
any expenditures and expenses (together with interest thereon at the Past Due Rate from the date
paid by Landlord) which Landlord may make or incur in thus effecting compliance with Tenant’s
obligations under this Lease.



     (d) Receive from Tenant all sums, the payment of which may have been waived or abated by
Landlord or which may have been paid by Landlord pursuant to any agreement to grant Tenant a rental
abatement or other monetary inducement or concession, including but not limited to any tenant
finish allowance or moving allowance, it being agreed that any such concession or abatement was
made on the basis that Tenant fully perform all obligations and covenants under the Lease for the
entire Lease Term.



     (e) Collect, from time to time, by suit or otherwise, each installment of Rent or other sum as
it becomes due hereunder, or to enforce, from time to time, by suit or otherwise, any term or
provision hereof on the part of Tenant required to be kept or performed.



     (f) No re-entry or taking possession of the Premises by Landlord shall be construed as an
election on Landlord’s part to terminate this Lease, unless a written notice of such intention be
given to Tenant. Notwithstanding any such reletting or re-entry or taking possession, Landlord may
at any time thereafter terminate this Lease for a previous default. Pursuit of any remedy set forth
herein shall not preclude pursuit of any other remedy provided herein or available at law, nor
shall pursuit of any remedy constitute a forfeiture or waiver of any Rent due to Landlord hereunder
or of any damage suffered by Landlord because of the violation of any term of this Lease.
Landlord’s acceptance of any Rent following an event of default hereunder shall not waive such
event of default. No payment by Tenant or receipt by Landlord of any amount less than the amounts
due by Tenant hereunder shall be deemed to be other than on account of the amounts due by Tenant
hereunder, nor shall an endorsement or statement on any check or document accompanying any payment
be deemed an accord and satisfaction.



     (g) If Landlord takes possession of the Premises as permitted herein, Landlord may keep in
place and use all furniture, fixtures and equipment at the Premises, including that which is owned
by or leased to Tenant at all times prior to any foreclosure thereon by Landlord or repossession
thereof by a lessor thereof or third party having a lien thereon. Landlord also may remove from the
Premises (without the necessity of obtaining a distress warrant, writ of



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sequestration or other legal process) all or any portion of such furniture, fixtures, equipment and
other property located thereon and store same at any premises within Utah County, Utah. In such
event, Tenant shall pay to Landlord all costs incurred by Landlord in connection with such removal
and storage and shall indemnify and hold Landlord harmless from all loss, damage, cost, expense and
liability in connection with such removal and storage. Landlord’s rights herein are in addition to
any and all other rights which Landlord has or may hereafter have at law or in equity.



     (h) If Landlord must notify Tenant of any failure (monetary or non-monetary) of Tenant to
comply with any provision of this Lease, that obligation to notify tenant shall terminate following
the second such notice delivered to Tenant within any twelve-month period during the Lease Term.



     22. Landlord’s Liability. Landlord shall not be in default under this Lease unless and
until it fails to perform an obligation hereunder within thirty (30) days after written notice by
Tenant to Landlord specifying the obligation which Landlord has not performed. However, if
Landlord’s obligation reasonably requires more than thirty (30) days for its performance, Landlord
shall not be in default if it commences performance within such thirty-day period and uses
reasonable efforts to complete same. Tenant has no right to claim any nature of lien against the
Building or the Property or to withhold, deduct from or offset against any Rent or other sums to be
paid to Landlord. All obligations of Landlord hereunder are binding upon Landlord only during the
period of its ownership of the Property. The term “Landlord” means only the owner, for the time
being, of the Property. In the event of the transfer by such owner of its interest in the Property,
such owner shall thereupon be released and discharged from all covenants and obligations of
Landlord thereafter accruing, but such covenants and obligations shall be binding during the Lease
Term upon each new owner for the duration of such owner’s ownership. Any liability of Landlord to
Tenant relating to this Lease shall be limited to the interest of Landlord in the Premises, and
Landlord shall not be personally liable for any deficiency.


23. Surrender of Premises. No act or thing done by Landlord or its agents during the Lease
Term shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless the same be made in writing and signed by Landlord.



24. Attorneys’ Fees. In the event that any action or proceeding is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant, the prevailing party
in such action or proceeding shall be entitled to reasonable attorneys’ fees to be fixed by the
court therein.



25. Mechanic’s Liens. Tenant will not permit any mechanic’s lien or liens to be placed
upon the Premises, the Building or any other portion of the Park, or any portion thereof, caused by
or resulting from any work performed, materials furnished or obligation incurred by or at the
request of Tenant, and in the case of the filing of any such lien, Tenant will immediately pay or
otherwise obtain the release of same. If default in compliance with this Paragraph shall


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continue for fifteen (15) days after delivery to Tenant of a notice thereof from Landlord, Landlord
shall have the right and privilege at Landlord’s option of paying the same or any portion thereof
without inquiry as to the validity thereof, and any amounts so paid, including expenses and
interest, shall be so much additional rent hereunder due from Tenant to Landlord and shall be
repaid to Landlord (together with interest at the Past Due Rate from the date paid by Landlord)
within fifteen ( 15) days after delivery to Tenant of a request from Landlord therefor.




26. Subrogation-Insurance.




     (a) Each party hereto waives any cause of action it might have against the other party on
account of any loss or damage that is insured against under any insurance policy (to the extent
that such loss or damage is recoverable under such insurance policy) that covers the Premises, the
Building, Landlord’s or Tenant’s fixtures, personal property, leasehold improvements or business
and which names Landlord or Tenant, as the case may be, as a party insured. Notwithstanding the
foregoing, the release in the preceding sentence shall be applicable and in force and effect only
so long as and to the extent that such release does not invalidate any policy or policies of
insurance now or hereafter maintained by the other party hereto. Each party hereto agrees that it
will request its insurance carrier to endorse all applicable policies waiving the carrier’s rights
of recovery under subrogation or otherwise against the other party and obtain such waiver of
subrogation if it is obtainable at no extra cost or expense to the insured (or if there is an extra
cost if the other party pays such extra cost).



     (b) Tenant shall maintain a policy of comprehensive general liability insurance pertaining to
its use and occupancy of the Premises hereunder, with the premiums thereof fully paid in advance,
issued by and binding upon a solvent insurance company qualified to do business in the State of
Utah, such insurance to name Landlord as an additional insured. Such policy shall afford minimum
protection of not less than Two Million and No/100 Dollars ($2,000,000) combined single limit for
bodily injury, death to any one person, or property damage in any one occurrence. Additionally,
Tenant shall obtain and maintain (i) a contractual liability coverage endorsement with “incidental
contract” coverage including all oral or written contracts relating to the named insured’s business
and (ii) All Risk insurance in respect to Tenant’s stock in trade, fixtures, furnishings, floor
covering, equipment and all other property of Tenant in the Premises, insuring 100% insurable value
of such property. The adequacy of the coverage afforded by said liability insurance shall be
subject to review by Landlord from time to time, and if Landlord is advised by Landlord’s insurance
agent that a prudent businessman in Utah County, Utah, using the Premises for the Permitted Use,
would increase the limits of said insurance, Tenant shall to that extent increase the insurance
coverage required by this Paragraph 26. In addition to the remedies provided in
Paragraph 21 of this Lease, if Tenant fails to maintain the insurance required by this
Paragraph 26, Landlord may, but is not obligated to, obtain such insurance without notice
to Tenant and Tenant shall pay to Landlord upon demand as additional rental the premium cost
thereof plus interest at the Past Due Rate from the date of payment by Landlord until repaid by
Tenant.



- 30 -









 





     (c) Upon Tenant’s execution of this Lease and at any time from time to time thereafter when
Landlord so requests, Tenant shall furnish a certificate of insurance and other evidence
satisfactory to Landlord of the maintenance of all insurance coverages required hereunder, and
Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord
at least thirty (30) days prior to cancellation or material change of any such insurance. All
insurance required by this Paragraph 26 shall be primary and noncontributing with any
insurance which may be carried by Landlord.


27. Brokerage. Tenant warrants that it has had no dealings with any broker or agent in
connection with the negotiation or execution of this Lease other than the Broker (as defined in the
Basic Lease Information), and Tenant agrees to indemnify Landlord against all costs, expenses,
attorneys’ fees or other liability for commissions or other compensation or charges claimed by any
broker or agent other than Broker who claims same by, through or under Tenant.



28. Building Name. Landlord reserves the right at any time to give a name to the Building
or to change the name by which the Building is designated.



29. Estoppel Certificates. Tenant agrees to furnish from time to time when requested by
(a) Landlord, (b) a Holder or a Lessor, or (c) any prospective Holder, Lessor or purchaser of the
Building or the Property, a certificate signed by Tenant confirming such factual certifications and
representations as to the terms and conditions of this Lease and amendments, if any, as may be
deemed appropriate by Landlord or any such Holder, Lessor, or purchaser, and Tenant shall, within
fifteen (15) days following Tenant’s receipt of said proposed certificate from Landlord, return a
fully executed copy of said certificate to Landlord. In the event Tenant fails to return a fully
executed copy of such certificate to Landlord within said fifteen-day period, then Tenant
conclusively shall be deemed to have approved and confirmed all of the terms, certifications and
representations contained in such certificate.



30. Notices. Each provision of this Lease, or of any applicable governmental laws,
ordinances, regulations, and other requirements with reference to the sending, mailing or delivery
of any notice, or with reference to the making of any payment by Tenant or Landlord, shall be
deemed to be complied with when and if the following specs are taken:




     (a) All Rent and other payments required to be made by Tenant to Landlord hereunder shall be
payable to, and must be received by, Landlord on the date due and at the address set forth in the
Basic Lease Information or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith.



     (b) Any notice, request or documents (excluding Rent and other payments) permitted or required
to be delivered hereunder must be in writing and shall be deemed delivered upon receipt if actually
received and whether or not received when deposited in the United States mail, postage prepaid,
certified mail (with or without return receipt requested), addressed to Tenant and Landlord (with a
copy to Landlord’s Counsel) at the respective addresses set forth in



- 31 -









 







the Basic Lease Information or at such other address as either of said parties have theretofore
specified by written notice delivered in accordance herewith. To be effective, any notice sent to
Landlord must also be sent to Landlord’s Counsel.



     If and when included within the term “Tenant” as used in this Lease there are more than one person,
firm or corporation, all shall arrange among themselves for their joint execution of such notices
specifying some individual at some specific address for the receipt of notices and payments to
Tenant. All parties included within the term “Tenant” shall be bound by notices and payments given
in accordance with the provisions of this Paragraph the same as if each had received such notice or
payment.


31. Severability. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Lease Term, then and in that event,
it is the intention of the parties hereto that the remainder of this Lease shall not be affected
thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be added as a part of this
Lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.



32. Amendments: No Waiver: Binding Effect. This Lease may not be altered, changed or
amended, except by instrument in writing signed by both parties hereto. No provision of this Lease
shall be deemed to have been waived by Landlord or Tenant unless such waiver be in writing signed
by the party making the waiver and addressed to the other party, nor shall any custom or practice
which may evolve between the parties in the administration of the terms hereof be construed to
waive or lessen the right of Landlord to insist upon the performance by Tenant in strict accordance
with the terms hereof. The terms and conditions contained in this Lease shall apply to, inure to
the benefit of, and be binding upon the parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein expressly provided.



33. Quiet Enjoyment. Tenant shall peaceably and quietly hold and enjoy the Premises for
the Lease Term, without hindrance from Landlord or Landlord’s successors or assigns, subject to (i)
the terms and conditions of this Lease, including the performance by Tenant of all of the terms and
conditions of this Lease to be performed by Tenant, including the payment of rent and other amounts
due hereunder, and (ii) actions and claims of any person or entity holding superior title to that
of Landlord, including, but not by way of limitation, any person or entity who holds an interest in
the Premises to which the leasehold interests created by this Lease is subordinate.



34. Gender. Words of any gender used in this Lease shall be held and construed to include
any other gender, and words in the singular number shall be held to include the plural, unless the
context otherwise requires.




- 32 -









 




35. Joint and Several Liability. If there be more than one Tenant, the obligations
hereunder imposed upon Tenant shall be joint and several. If there be a Guarantor of Tenant’s
obligations hereunder, the obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and Guarantor and Landlord need not first proceed against Tenant before
proceeding against Guarantor nor shall Guarantor be released from its guaranty for any reason
whatsoever, including, without limitation, in case of any amendments hereto, waivers hereof or
failure to give Guarantor any notices hereunder.



36. Certain Rights Reserved by Landlord. Landlord shall have the following rights,
exercisable without notice and without liability to Tenant for damage or injury to property, person
or business and without effecting an eviction, constructive or actual, or disturbance of Tenant’s
use or possession or giving rise to any claim for Set-off or abatement of Rent:




     (a) To decorate and to make repairs, alterations, additions, changes or improvements, whether
structural or otherwise, in and about the Premises, the Building and/or the Park, or any part
thereof, and for such purposes to enter upon the Premises, the Building or other parts of the Park
and, during the continuance of any such work, to temporarily close doors, entryways, public space
and corridors in the Premises, the Building or other parts of the Park, to store materials in the
Premises, to interrupt or temporarily suspend Building services and facilities, to change the
arrangement and location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets, or other public parts of the Building, and to change the arrangement and location
of all parking areas, sidewalks and driveways situated upon the Land or elsewhere in the Park, all
without abatement of Rent or affecting any of Tenant’s obligations hereunder, so long as the
Premises are reasonably accessible. Landlord will use its best efforts to effect such changes
without unnecessarily disrupting Tenant’s operations.



     (b) To grant to anyone the exclusive right to conduct any business or render any service in or
to the Building, provided such exclusive right shall not operate to exclude Tenant from the use
expressly permitted herein.



     (c) To prohibit the placing of vending or dispensing machines of any kind in or about the
Premises without the prior written permission of Landlord.



     (d) To take all such reasonable measures as Landlord may deem advisable for the security of
the Property and its occupants, including, without limitation, the evacuation of the Building for
cause, suspected cause, or for drill purposes, the temporary denial of access to the Building, and
the closing of the Building after Customary Business Hours and on Saturdays, Sundays and Holidays,
subject, however, to Tenant’s right to admittance when the Building is closed after Customary
Business Hours under such reasonable regulations as Landlord may prescribe from time to time which
may include, by way of example but not of limitation, that persons entering or leaving the
Building, whether or not during Customary Business Hours, use a pass key, or identify themselves to
a security officer by registration or otherwise and that such persons establish their right to
enter or leave the Building.



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37. Notice to Lender. Tenant agrees to deliver by certified mail to any Holder or Lessor a
copy of any written notice of nonperformance given by Tenant to Landlord, specifying the alleged
failure to perform in reasonable detail, provided that prior to giving any such notice to Landlord,
Tenant has been notified in writing of the address of such Holder or Lessor. Tenant further agrees
that if Landlord fails to cure any nonperformance within the time provided for in this Lease, then
any such Holder or Lessor shall have an additional forty-five (45) days within which to cure such
nonperformance, or if same cannot be cured within that time, then such additional time as may be
necessary for cure if, within such sixty-day period, such holder or lessor has commenced
performance of such obligation and diligently pursues the same to completion, including but not
limited to commencement of foreclosure proceedings necessary to effect such cure.



38. Captions. The captions contained in this Lease are for convenience of reference only,
and in no way limit or enlarge the terms and conditions of this Lease.



39. Miscellaneous.




     (a) Any approval by Landlord or Landlord’s architects and/or engineers of any of Tenant’s
drawings, plans and specifications that are prepared in connection with any construction of
improvements in the Premises shall not in any way be construed or operate to bind Landlord or to
constitute a representation or warranty of Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications, or the improvements to which they relate, for any use, purpose,
or condition, but such approval shall merely be the consent of Landlord as may be required
hereunder in connection with Tenant’s construction of improvements in the Premises in accordance
with such drawings, plans and specifications.



     (b) Each and every covenant and agreement contained in this Lease is, and shall be construed
to be, a separate and independent covenant and agreement.



     (c) There shall be no merger of this Lease or of the leasehold estate hereby created with the
fee estate in the Premises or any part thereof by reason of the fact that the same person may
acquire or hold, directly or indirectly, this Lease or the leasehold estate hereby created or any
interest in this Lease or in such leasehold estate as well as the fee estate in the Premises or any
interest in such fee estate.



     (d) Neither Landlord nor Landlord’s agents or brokers have made any representations or
promises with respect to the Property, or any portion thereof, except as herein expressly set forth
and no rights, easements or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease.



     (e) The submission of this Lease to Tenant for examination does not constitute an offer,
reservation or option in favor of Tenant, and Tenant shall have no rights with



- 34 -









 







respect to this Lease or the Premises unless and until Landlord shall execute a copy of this Lease
and deliver the same to Tenant.



     (f) This Lease shall be subject to any and all easements, rights-of-way, covenants, liens,
conditions, restrictions, outstanding mineral interest and royalty interests, if any, relating to
the Park, to the extent, and only to the extent, same still may be in force and effect and either
shown of record in the Office of the County Clerk of Utah County, Utah or apparent on the Property.



     (g) Tenant shall not bring or permit to remain on the Premises any asbestos, lead, PCBs,
petroleum or petroleum products, explosives, toxic materials, or substances defined as hazardous
wastes, hazardous materials, or hazardous substances under any federal, state, or local law or
regulation (“Hazardous Materials”). Tenant’s violation of the foregoing prohibition shall
constitute a material breach and default hereunder and Tenant shall indemnify, hold harmless and
defend Landlord from and against any claims, damages, penalties, liabilities, and costs (including
reasonable attorneys’ fees and court costs) caused by or arising out of (i) a violation of the
foregoing prohibition or (ii) the presence or any release of any Hazardous Materials on, under, or
about the Premises during Tenant’s occupancy or control of the Premises. Tenant shall clean up,
remove, remediate and repair any soil or ground water contamination and damage caused by the
presence or release of any Hazardous Materials in, on, under, or about the Premises during Tenant’s
occupancy of the Premises in conformance with the requirements of applicable law. Tenant shall
immediately give Landlord written notice of any suspected breach of this Paragraph, upon learning
of the presence or any release of any Hazardous Materials, and upon receiving any notices from
governmental agencies pertaining to Hazardous Materials which may affect the Premises. The
obligations of Tenant hereunder shall survive the expiration or earlier termination, for any
reason, of this Lease.



     (h) Tenant shall not record this Lease.



     (i) If Tenant is a corporation or association, Tenant shall deliver to Landlord upon execution
of this Lease a certified copy of a resolution of its board of directors or executive committee
authorizing the execution of this Lease and naming the officers who are authorized to execute this
Lease on behalf of Tenant. Notwithstanding the preceding sentence, Tenant shall be bound by the
signature of any officer of Tenant purporting to have the necessary authority to sign this Lease,
but Landlord may elect to terminate this Lease if Landlord has not received and approved the form
of such a resolution within sixty (60) days of the execution of this Lease.



     (j) The term “business day,” when used herein, shall mean every day that is not a Saturday,
Sunday or Holiday.



     (k) Except as expressly provided herein, whenever this Lease calls for a consent or approval
of Landlord, or the exercise of Landlord’s judgment, the granting or denial of such approval and
the exercise of such judgment shall be within the sole discretion of Landlord



- 35 -









 







and Landlord shall not, for any reason or to any extent, be required to grant such approval or
consent or exercise such judgment in any manner regardless of the reasonableness of either the
request or Landlord’s judgment.



     (l) Tenant shall have the right to use the Shared Park Facilities on a non-exclusive basis
together with Landlord and all other occupants of the Park subject to the rules and regulations
promulgated or to be promulgated by Landlord with respect to the use of the Shared Park Facilities.
Tenant shall pay to Landlord, as additional rent hereunder, a subsidy on behalf of Tenant’s
employees and invitees with respect to use of Building L located in the Park. Such subsidy shall
be based on the aggregate deficit of the cafeteria and on the RA of the Premises and the rentable
area of all Park Buildings. Landlord reserves the right at its sole discretion to discontinue the
Fitness Center, the restaurant in Building L, and other amenities as part of the Shared Facilities.
Landlord reserves the right to change the availability and use of the Shared Park Facilities.



     (m) Tenant shall summon the appropriate municipal emergency forces (police, fire department,
or ambulance, as the case may be) in the event of fire, serious injury or other emergency in the
Premises immediately upon obtaining knowledge thereof. Immediately after summoning municipal
emergency forces, Tenant shall advise Landlord and the security forces. Tenant shall cooperate
fully with local and/or regional emergency forces and with Landlord during any emergency.



     (n) All payments required to be made hereunder other than Basic Rent shall constitute
additional rent hereunder. Landlord shall have the same rights and remedies with respect to the
non-payment of additional rent as it is with respect to the non-payment of Basic Rent.




     (o) If Tenant shall default in the performance of any of Tenant’s obligations under this
Lease, Landlord, without thereby waiving such default, may (but shall not be obligated to) perform
the same for the account and at the expense of Tenant, without notice in a case of emergency, and
in any other case only if such default continues after the expiration of five (5) days from the
date Landlord gives Tenant notice of the default. Bills for any such expenses incurred by
Landlord, and bills for all reasonable costs, expenses and disbursements, including reasonable
attorneys’ fees and expenses, involved in collecting the Rent or enforcing any rights against
Tenant or Tenant’s obligations hereunder, may be sent by Landlord to Tenant immediately, and such
amounts shall be due and payable in accordance with their terms.


40. Force Majeure. If Landlord is delayed in performing an obligation of Landlord
hereunder as a result of strikes, lockouts, shortages of labor, fuel or materials, acts of God,
legal requirements, fire or other casualty, or any other cause beyond Landlord’s control, then
performance of such obligation shall be excused for the period of such delay, and the period to
perform such obligation shall be extended by the number of days equivalent to the number of


- 36 -









 






days of such delay. Landlord shall not be required to settle or compromise any strike, lockout or
other labor disputes, the resolution thereof being within the sole discretion of Landlord.



41. Applicable Law. This Lease shall be governed in all respects by the laws of the State
of Utah. Landlord and Tenant intend to conform strictly to all applicable state and federal usury
laws. All agreements between Landlord and Tenant, whether now existing or hereafter arising and
whether written or oral, are expressly limited so that in no contingency or event whatsoever shall
the amount contracted for, charged or received by Landlord for the use, forbearance or detention of
money exceed the maximum amount which Landlord is legally entitled to contract for, charge or
collect under applicable state or federal law. If, from any circumstance whatsoever, fulfillment of
any provision hereof at the time performance of such provision shall be due shall involve
transcending the limit of validity prescribed by law, then the obligation to be fulfilled shall be
automatically reduced to the limit of such validity, and if from any such circumstance, Landlord
shall ever receive as interest or otherwise an amount in excess of the maximum that can be legally
collected, then such amount which would be excessive interest shall be applied to the reduction of
the Rent; and if such amount which would be excessive interest exceed the Rent, then such
additional amount shall be refunded to Tenant.



42. Third Party Rights. Nothing herein expressed or implied is intended, or shall be
construed, to confer upon or give to any person or entity, other than the parties hereto, any right
or remedy under or by reason of this Lease.



43. Americans With Disabilities Act. Landlord and Tenant acknowledge that during the term
of this Lease, the Americans With Disabilities Act, 42 U.S.C.A. §12101 et seq. (the “Act”), may
require modifications to the Premises, the Building and to the Park. With respect to the Act,
Landlord and Tenant agree as follows:




     (a) Landlord shall be responsible for any modifications to the Premises required to bring the
Premises into compliance with the Act as it reads as of the date of commencement hereof.



     (b) Landlord shall modify the improvements which constitute the Building (other than the
Premises) and the Shared Park Facilities if required to bring the Building and the Shared Park
Facilities in compliance with the Act, as same may be modified from time to time. The cost of such
modifications shall be amortized upon such reasonable basis as Landlord may elect and shall be
included in the Operating Expenses.



     (c) If, during the term hereof, changes in the Act require modifications or alterations to the
Premises or if Tenant makes any changes to the Premises that cause the Premises to be out of
compliance with the Act, Tenant shall, following notification of Landlord, be responsible for, and
expressly agrees to pay (or reimburse Landlord) for the cost of any modifications or alterations
required to bring the Premises into compliance with the Act. All alterations and modifications to
the Premises shall be done in a good and workmanlike manner



- 37 -









 







and in accordance with the provisions of Paragraph 7 above, and with plans and
specifications approved in writing by Landlord.



     (d) Each party shall indemnify and hold the other harmless from and against any and all fines,
suits, claims, demands, losses and actions (including attorneys’ fees and costs and court costs)
arising out of or related to the other’s failure to perform any of its obligations under this
Paragraph 43.


44. Site Plan and Restrictive Covenants. Tenant agrees that it will not occupy or use the
Premises in violation of or perform any act which violates the site plan for the Park or any of the
Restrictive Covenants, as they may hereafter be amended from time to time.



45. Access Control Services. Landlord currently provides basic access control services,
which include card access, security patrols and limited camera surveillance. Landlord shall
provide one access card, without charge but subject to change without notice, to each employee at
the beginning of the Lease Term and to each new employee when they are employed. There will be a
$15.00 charge, subject to adjustment without notice, to the Tenant for each card that needs to be
replaced or changed for any reason, and that is not returned at the end of the Lease. Landlord
will provide two keys to the locks on the corridor doors entering the Premises, with additional
keys to be furnished by the Landlord at Tenant’s expense. The Landlord at Tenant’s expense shall
provide any keys or locks needed within the Premises. Landlord and Tenant shall cooperate in good
faith to coordinate access policies, procedures, and codes for employees, maintenance personnel,
security personnel, and other persons who may need access to the Premises. Landlord’s security
personnel shall have access to patrol and monitor all reasonable areas, including without
limitation server rooms, boilers, chillers, telephone rooms, conduit areas, common areas, and
office space. Notwithstanding the foregoing, any security services are provided at the complete
discretion of the Landlord and are not to be construed as an obligation of the Landlord under the
Lease, except that Landlord shall have the obligation to maintain and repair the card access
equipment as part of the Operating Expenses (defined in Exhibit E) as long as Landlord uses such
card system to control access to the building. Landlord reserves the right to change these
services upon notice. Landlord shall not be held liable for any failure to provide security
services or take other security measures for the Building or Park.



46. First Right of Refusal. Tenant shall have the right of first refusal on suite G23 in
the Building. Upon the receipt of written notice that Landlord has received a bona fide offer (the
“Offer”) for the lease of suite G23 by a third party, Tenant shall have ten (10) days to provide
Landlord with an unequivocal, irrevocable, written commitment to lease suite G23 upon the same
terms as are applicable to the other office space leased in the Building pursuant to this Lease.
However, if the Offer is made in the first year of this Lease, the rent abatement provision will
not apply to the additional space. All other terms will remain the same. If Tenant fails to
provide Landlord with such notice within such 10-day period, Landlord shall be free to lease suite
G23 to the third party pursuant to the Offer. If Landlord shall not consummate any such lease
pursuant to the Offer within three (3) months of the written notice to Tenant of such Offer,


- 38 -









 





or if the third party lease pursuant to the Offer is terminated for any reason, Tenant again shall
have the right of first refusal contemplated and specified hereunder.



47. Exhibits and Attachments. All exhibits and attachments, riders and addenda referred to
in this Lease and the exhibits listed below and attached hereto are incorporated into this Lease
and made a part hereof for all intents and purposes as if fully set out herein. All capitalized
terms used in such documents shall, unless otherwise defined therein, have the same meanings as are
set forth herein.




	 	 	 	 	 
	 

	 	Exhibit A
	 	- Site Plan of the Park
	 

	 	Exhibit A-1
	 	- Land Owned and Controlled by Landlord
	 

	 	Exhibit B
	 	- Plans of Premises located in the Building
	 

	 	Exhibit C
	 	- Rules and Regulations
	 

	 	Exhibit D
	 	- Leasehold Improvements
	 

	 	Exhibit E
	 	- Operating Expenses
	 

	 	Exhibit F
	 	- Bankruptcy
	 

	 	Exhibit G
	 	- Shared Park Facilities
	 

	 	Exhibit H
	 	- Restrictive Covenants






DATED as of the date first written.




	 	 	 
	LANDLORD:

	 	TCU Properties I, LLC, a Utah limited liability
	 

	 	          company






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	 	, 2003
	 	 
	 	By:	 	/s/ Val H. Christensen 	 	 
	 

	 	 	 	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Name: Val H. Christensen	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Title:   President	 	 






	 	 	 	 	 
	 

	 	TENANT:
	 	Omniture Inc.






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	 	, 2003
	 	 
	 	By:	 	/s/ Josh James 	 	 
	 

	 	 	 	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Name: Josh James	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Title:   CEO	 	 







- 39 -










 







EXHIBIT C




RULES AND REGULATIONS




     The following rules and regulations shall apply, where applicable, to the Property and the
Park and to each portion thereof:



     1. Smoking will not be permitted within the Building or any other Park Building. No tenant or
tenant’s agent, employee, invitee or contractor may smoke anywhere on the Land other than areas
outside the Building which are expressly designated as smoking areas.



     2. Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be
obstructed by tenants or used by any tenant for any purpose other than ingress and egress to and
from that tenant’s premises and for going from one to another part of the Park.



     3. Plumbing, fixtures and appliances shall be used only for the purposes for which designed,
and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed therein.
Damage resulting to any such fixtures or appliances from misuse by a tenant or such tenant’s
agents, employees or invitees shall be paid by such tenant and Landlord shall not in any case be
responsible therefor.



     4. No signs, advertisements or notices shall be painted or affixed on or to any windows or
doors or other exterior part of the Building (or be visible from any public or common area) unless
they are of such color, size and style and in such places as shall be first approved in writing by
Landlord. Landlord, at each tenant’s sole cost and expense, shall install all letters or numbers by
or on doors in such tenant’s premises which letters or numbers shall be in Building standard
graphics. No nails, hooks or screws shall be driven or inserted in any part of the Building outside
the premises except by any Building maintenance personnel nor shall any part of any Building be
defaced by tenants. No curtains or other window treatments shall be placed between the glass and
the Building standard window treatments.



     5. Two keys to the locks on the corridor doors entering each tenant’s premises shall be
furnished by Landlord free of charge, with any additional keys to be furnished by Landlord to each
tenant, at such tenant’s cost. Landlord shall provide all locks for other doors in each tenant’s
premises, at the cost of such tenant, and no tenant shall place any additional lock or locks on any
door in or to its premises without Landlord’s prior written consent. All such keys shall remain the
property of Landlord. Each tenant shall give to Landlord the explanation of the combination of all
locks for safes, safe cabinets and vault doors, if any, in such tenant’s premises.



     6. With respect to work being performed by tenants in any premises with the approval of
Landlord, all tenants will refer all contractors, contractors’ representatives and



D-1









 







installation technicians rendering any service to them to Landlord for Landlord’s supervision,
approval and control before the performance of any contractual services. This provision shall apply
to all work performed in the Building including, but not limited to, installations of telephones,
telegraph equipment, electrical devices and attachments, doors, entrances, and any and all
installations of every nature affecting floors, walls, woodwork, trim, windows, ceilings, equipment
and any other physical portion of the Building.



     7. Movement in or out of the Building of furniture or office equipment, or dispatch or receipt
by tenants of any bulky material or merchandise which requires use of elevators or stairways, or
movement through the Building entrances or lobby shall be restricted to such hours as Landlord
shall designate. All such movements shall be under the supervision of Landlord and in the manner
agreed between the tenants and Landlord by prearrangement before performance. Such prearrangement
initiated by a tenant will include Landlord’s determination, and be subject to Landlord’s decision
and control, as to the time, method, and routing of movement and as to limitations for safety or
other concern which may prohibit any article, equipment or any other item from being brought into
the Building. Tenants shall assume all risk as to the damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment, property and
personnel of Landlord if damaged or injured as a result of acts in connection with carrying out
this service for a tenant from time of entering the Property to completion of work; and Landlord
shall not be liable for acts of any person engaged in, or any damage or loss to any of said
property or persons resulting from, any act in connection with such service performed for a tenant.



     8. Landlord may prescribe the weight and position of safes and other heavy equipment or items,
which shall in all cases, to distribute weight, stand on supporting devices approved by Landlord.
All damages done to the Building by the installation or removal of any property of a tenant, or
done by a tenant’s property while in the Building, shall be repaired at the expense of such tenant.
Each tenant shall bear all costs incurred by Landlord or such tenant in determining the feasibility
or actual installation of any such heavy equipment. A tenant shall notify the Building manager when
safes or other heavy equipment are to be taken in or out of the Building, and the moving shall be
done under the supervision of the Building manager, after written permission from Landlord. Persons
employed to move such property must be acceptable to Landlord.



     9. Corridor doors, when not in use, shall be kept closed except those that are properly
alarmed and equipped to meet fire code standards.



     10. Each tenant shall cooperate with Landlord’s employees in keeping its premises neat and
clean.



D-2









 





     11. Landlord shall be in no way responsible to the tenants, their agents, employees or
invitees for any loss of property from the premises or public areas or for any damages to any
property thereon from any cause whatsoever.



     12. To ensure orderly operation of the Building, no ice, mineral or other water, towels,
newspapers, etc. shall be delivered to any premises except by persons appointed or approved by
Landlord in writing.



     13. Should a tenant require telegraphic, telephonic, annunciator or other communication
service, Landlord will direct the electrician where and how wires are to be introduced and placed
and none shall be introduced or placed except as Landlord shall direct. Except as provided in each
tenant’s lease, electric current shall not be used for heating or nonstandard power requirements
without Landlord’s prior written permission.



     14. Tenant shall not make or permit any improper, objectionable or unpleasant noises or odors
in the Building or otherwise interfere in any way with other tenants or persons having business
with them.



     15. Nothing shall be swept or thrown into the corridors, halls, elevator shafts or stairways.
No birds or animals shall be brought into or kept in, on or about any tenant’s premises, except as
may be allowed by law.



     16. No machinery of any kind shall be operated by any tenant in its premises without the prior
written consent of Landlord, nor shall any tenant use or keep in the Building any inflammable or
explosive fluid or substance.



     17. No portion of any tenant’s premises shall at any time be used or occupied as sleeping or
lodging quarters.



     18. Each tenant and its agents, employees and invitees shall park only in those areas
designated by Landlord for parking and shall not park on any public or private streets contiguous
to, surrounding or in the vicinity of the Building without Landlord’s prior written consent.



     19. Landlord will not be responsible for lost or stolen property, money or jewelry from any
tenant’s premises or public or common areas regardless of whether such loss occurs when the area is
locked against entry or not.EXHIBIT D



LEASEHOLD IMPROVEMENTS




D-3









 








     This Exhibit D sets forth the terms and conditions governing the design and
construction of the tenant improvements, including without limitation the preparation of the Space
Plan and Drawings and Specifications (defined below) to be installed in the Premises (“Tenant
Work”).



     1. Design.




     (a) Tenant Plans.




          (i) Space Plan: The term “Space
Plan” shall mean the plan to be
agreed upon by Landlord and Tenant and attached hereto and made a part hereof as Exhibit
D-1 to the Lease.




          (ii) Drawings and Specifications: The term “Drawings and
Specifications” shall mean the construction working drawings, the mechanical, electrical and
other technical specifications, and the finishing details, including wall finishes and
colors and technical and mechanical equipment installation, if any, all of which detail the
installation of the Tenant Work. A list of the page titles, reference numbers and dates
which constitute the fully approved Drawings and Specifications shall be initialed by each
party and attached hereto and made a part hereof as Exhibit D-2 to the Lease. The
Space Plan and Drawings and Specifications may be collectively referred to herein as the
“Tenant Plans.”



          (b) Time Periods for Design of Tenant Plans. The
following
maximum time periods shall be allowed for the following matters:



	 	 	 
	Action	 	Time Limits (Based on Business Days)
	     (i) Tenant furnishes all necessary
information to Landlord’s space
planner or other planner approved by Landlord
to enable the space planner to prepare the
Space Plan (locates partitions and doors,
indicates mechanical/ electrical/plumbing
requirements (including HVAC, lighting,
acoustical or extra floorload requirements)

	 	     (i) 10 business days after the Execution Date
	 
	 	 





D-4









 






	 	 	 
	Action	 	Time Limits (Based on Business Days)
	     (ii) Planner delivers to Tenant
draft
of Space Plan

	 	     (ii) 10 business days after receipt
of
information specified in (i).
	 
	 	 
	     (iii) Tenant approves Space Plan or
delivers to Landlord any requested
minor changes to Space Plan

	 	     (iii) 5 business days after delivery
of
Space Plan
	 
	 	 
	     (iv) If necessary, Landlord
delivers
revised Space Plan to Tenant

	 	     (iv) 5 business days after receipt
of
requested revisions
	 
	 	 
	     (v) Tenant approves revised
Space
Plan

	 	     (v) 3 business days after delivery
to
Tenant
	 
	 	 
	     (vi) Tenant furnishes information to
Landlord’s architect or other
architect approved by Landlord to the
extent required to enable Landlord’s
architect to prepare Drawings and
Specifications (i.e. mechanical,
electrical, telephones, finish
selections, etc.).

	 	     (vi) 5 business days after Tenant
approves the Space Plan
	 
	 	 
	     (vii) Architect delivers Drawings and
Specifications to Tenant

	 	     (vii) 10 business days after receipt of
information specified in (vi)
	 
	 	 
	     (viii) Tenant approves or requests
minor
changes to Drawings and Specifications.

	 	     (viii) 3 business days after delivery
of
Drawings and Specifications to Tenant.
	 
	 	 
	     (ix) If necessary, Architect delivers
revised Drawings and Specifications to
Tenant

	 	     (ix) 3 business days after receipt
of
requested revisions
	 
	 	 
	     (x) Tenant approves revised Drawings
and Specifications

	 	     (x) 2 business days after delivery to
Tenant
	 
	 	 
	     (xi) Tenant provides Landlord with
any Cost Estimates (as defined below) and
the timing for installation of Tenant
Work.

	 	     (xi) 6 business days after
agreement
upon Drawings and Specifications
	 
	 	
	          (c) Approvals by Landlord.

	 	              Each party shall evidence its






D-5









 







approval of each component of the Tenant Plans by executing same. All Tenant Plans, and any
changes, additions or modifications that Tenant desires to make to the Tenant Plans, shall be
subject to Landlord’s prior written approval.



          (d) Cosmetic Improvements. Notwithstanding the foregoing, Tenant and Landlord may
agree to perform certain cosmetic improvements such as painting or installing new carpet
immediately without the preparation of a Space Plan and Drawings and Specifications, provided such
cosmetic work is shown in the Space Plan and Drawings and Specifications.



     3. Pricing and Construction. After approval of the Drawings and Specifications,
Tenant shall obtain cost estimates for the Tenant Work (the “Cost Estimates”), and shall administer
the construction of the Tenant Work in accordance with the approved Drawings and Specifications and
approved change orders. All Tenant Work shall be constructed by Landlord’s general contractor or
another contractor approved by Landlord, which approval shall not be unreasonably withheld.



     4. Change Orders. If Tenant requests any change or addition to the Tenant Work after
Tenant’s and Landlord’s approval of the Drawings and Specifications and determination of the Cost
Estimate, Landlord shall respond to Tenant’s request for consent as soon as possible.



     5. Tenant Actions. If Tenant, with Landlord’s prior written consent, employs or acts
as its own architect to provide any portion of Tenant’s Plans, Tenant shall assume all liability
and responsibility for that portion of Tenant’s Plans provided by Tenant or Tenant’s architect for
compliance with all applicable codes and ordinances. If Tenant, with Landlord’s prior written
consent, employs or acts as its own contractor, Tenant shall assume all liability and
responsibility for the improvements to be constructed in accordance with Tenant’s Plans and all
applicable codes and ordinances. Tenant’s liability shall include, but not be limited to paying all
architectural, engineering and construction costs to correct the Tenant Work to comply with all
applicable codes and ordinance.



D-6









 





EXHIBIT E




OPERATING EXPENSES




     In addition to the Basic Rental payable by Tenant under this Lease, Tenant shall pay
additional rent determined as follows:



     (1) The Operating Expenses (as hereinafter defined) attributable to the Premises shall be
computed by multiplying the “Operating Expenses Per Square Foot of RA” (as defined in Paragraph (7)
below) by the RA of the Premises. For the purposes of this Exhibit E, the term “Operating
Expenses” shall mean the sum of (i) any and all costs, expenses and disbursements of every kind and
character, which Landlord shall incur, pay or become obligated to pay in connection with the
ownership of any estate or interest in, operation, maintenance, repair, replacement and security of
the Applicable Leased Buildings (as hereafter defined), or any portion thereof and (ii) the
Applicable Share (as hereunder defined) of all costs, expenses and disbursements of every kind and
character which Landlord shall incur, pay or become obligated to pay in connection with the
ownership, operation, maintenance, repair, replacement and security of the Shared Park Facilities
in each instance, determined in accordance with generally accepted accounting principles
consistently applied, including but not limited to the following:




	 	(a)	 	Wages, salaries and other benefits of all employees of Landlord and/or any
managing agent who are engaged in the operation, repair, replacement, maintenance and
security of the Applicable Leased Buildings and/or the Shared Park Facilities and any
property manager for the Park (including without limitation, payroll, unemployment,
social security and other taxes, insurance, vacation, holiday and sick pay and other
fringe benefits, but excluding any profit sharing benefits) management fees of any
managing agent of the Applicable Leased Buildings and/or the Shared Park Facilities
and legal fees and expenses incurred in connection with the Applicable Leased
Building and/or the Shared Park Facilities.
	 
	 	(b)	 	All supplies, equipment and materials used in the operation, maintenance,
repair, replacement and security of all or any portion of the Applicable Leased
Buildings and/or the Shared Park Facilities. A charge for depreciation of equipment
so used may be included in Operating Expenses.
	 
	 	(c)	 	Annual cost of all capital improvements made to the Applicable Leased
Buildings and/or the Shared Park Facilities which although capital in nature




D-1









 






	 	 	 	can reasonably be expected to reduce the normal operating costs of the
Applicable Leased Buildings and/or the Shared Park Facilities, as well as all
capital improvements made in order to comply with any statutes, rules,
regulations or directives of any governmental authority relating to energy
conservation, public safety or security or access for disabled individuals, as
amortized (with interest on the unamortized balance at the market rate then
generally available for such improvements) over the useful life of such
improvements by Landlord for federal income tax purposes.
	 	(d)	 	Cost of all utilities, other than the cost of excess or individually
metered utilities supplied to tenants of the Applicable Leased Buildings which is
actually reimbursed to Landlord by such tenants.
	 
	 	(e)	 	Cost of all maintenance and service agreements on equipment relating to or
in the Applicable Leased Buildings and/or the Shared Park Facilities, including
without limitation alarm service, HVAC service, security service, and elevator
maintenance, and window cleaning for the Applicable Leased Buildings and/or Shared
Park Facilities.
	 
	 	(f)	 	Cost of casualty, rental abatement and liability insurance applicable to
the Applicable Leased Building and/or the Shared Park Facilities and Landlord’s
personal property, equipment and fixtures used in connection therewith, together with
any other insurance deemed necessary or desirable by Landlord or any holder of a lien
secured by the Property, including any deductible under any policy of insurance.
	 
	 	(g)	 	Cost of repairs, replacements and general maintenance of the Applicable
Leased Buildings and/or the Shared Park Facilities or any portion thereof.
	 
	 	(h)	 	Cost of service or maintenance contracts for the operation, maintenance,
repair, replacement or security of the Applicable Leased Buildings and/or the Shared
Park Facilities or any portion thereof, including without limitation janitorial and
cleaning contracts.
	 
	 	(i)	 	Any costs incurred by reason of easements or restrictions affecting all or
any portion of the Applicable Leased Buildings and/or the Shared Park Facilities
(including without limitation any fees, charges or assessments of any property owners
association) and any costs incurred in the operation, maintenance, repair,
replacement and security of the common and public areas on or serving the Property,
or any portion thereof, including, but not limited to, the




D-2









 






	 	 	 	parking garages or parking facilities serving the Applicable Leased Buildings
and/or the Shared Park Facilities.




“Operating Expenses” shall not include capital improvements made to the Applicable Leased Buildings
and/or the Shared Park Facilities, other than (A) capital improvements described in subparagraph
(l)(c) above and (B) items which, though capital for accounting purposes, are properly considered
maintenance and repair items (such as painting of common areas, replacement of carpet, and the
like), or payments made by Tenant or other tenants of the Applicable Leased Buildings, either to
third parties or to Landlord, under agreements for direct reimbursement for services.



“Operating Expenses” shall also not include the following expenses: (i) Taxes, (ii) costs with
respect to services for which Landlord is reimbursed by tenants of the Applicable Leased Buildings
(other than pursuant to an operating expense escalation provision) provided such service is not of
a type being supplied by Landlord to Tenant under this Lease.




     (2) For purposes of determining “Excess Taxes” (as such term is defined in the Basic Lease
Information), “Taxes Per Square Foot of RA” shall mean Taxes, (hereinafter defined) attributable to
the Applicable Leased Buildings divided by the aggregate rentable square feet of office space in
the Applicable Leased Buildings. As used herein, the term “Taxes” shall mean all taxes and
assessments and government charges whether federal, state, county or municipal, and whether they be
by taxing districts or authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes or assessments attributable to the Applicable Leased Buildings and
its operations, excluding, however, federal and state taxes on income (except as specifically
permitted by this subparagraph (2), together with all costs and expenses of contesting the validity
or amount of such taxes and assessments. If at any time during the Lease Term, the present method
of taxation shall be changed so that in lieu of or in addition to the whole or any part of the
Taxes, there shall be levied, assessed or imposed on Landlord a capital levy or other tax directly
on the rents received therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents of the Applicable Leased Buildings, then all such
taxes, assessments, levies or charges, or the part thereof so measured or based, shall be deemed to
be included within the term “Taxes” for purposes of this Exhibit E. Notwithstanding the
foregoing, if during any calendar year the Applicable Leased Buildings are not separately taxed
from other portions of the Park, then the term Taxes per Square Foot of RA shall be deemed equal to
the Taxes for the entire Park multiplied by Applicable Share and divided by the aggregate rentable
square feet in the Applicable Leased Buildings.



     (3) During the Lease Term, Tenant shall pay as a component of the Adjusted Rental, the Excess
Operating Expenses and the Excess Taxes (both as defined in the Basic Lease Information). With
respect to each calendar year during the Lease Term commencing with



D-3









 







calendar year                     , Landlord shall have the option of making a good faith estimate of the Excess
Operating Expenses and the Excess Taxes for the calendar year in question or the upcoming calendar
year as the case may be, and upon thirty (30) days written notice to Tenant may require that Tenant
pay said estimated Excess Operating Expenses and estimated Excess Taxes in equal monthly
installments in the manner and at the times set forth in Paragraph 3 of the Lease for
payment of the Adjusted Rental. Alternatively, Landlord may require payment of the Excess Operating
Expenses and the Excess Taxes in a lump sum at the time when the Operating Expenses and Taxes are
available for each calendar year. For purposes of calculating the Excess Operating Expenses and the
Excess Taxes payable with respect to any fractional calendar year during the Lease Term, Landlord
may either (i) estimate Operating Expenses and Taxes for the portion of the Lease Term during such
partial year, or (ii) estimate Operating Expenses and Taxes for the entire calendar year and reduce
the same to an amount bearing the same proportion to the full amount of estimated Operating
Expenses and estimated Taxes for such year as the number of days in such fractional calendar year
bears to the total number of days in such full calendar year. All payments of Excess Operating
Expenses and Excess Taxes based upon an estimate of Landlord shall be subject to adjustment as more
particularly described in Paragraph 3 of this Exhibit E.



     (4) On or before May 1 of each calendar year during the Lease Term (or of the calendar year
immediately succeeding the termination of this Lease), or as soon thereafter as practical, Landlord
shall furnish to Tenant a statement of the Operating Expenses, the Operating Expenses Per Square
Foot of RA and the RA of the Premises for the previous calendar year. If Tenant’s total payments of
Excess Operating Expenses for any calendar year (or portion thereof) during the Lease Term (based
on Landlord’s estimate of the Excess Operating Expenses) exceed the Excess Operating Expenses
actually due during such year (or portion thereof), then Landlord, at Landlord’s sole option,
either shall credit to Tenant’s account or shall refund to Tenant any overpayment. Likewise,
Tenant shall pay to Landlord within ten (10) days after written demand, the amount by which the
Excess Operating Expenses for any calendar year (or portion thereof) during the Lease Term, exceed
the Excess Operating Expenses payments received by Landlord from Tenant for such calendar Year (or
portion thereof).



D-4









 





     (7) Definitions. As used herein,




	 	(a)	 	the term “Applicable Leased Buildings” shall mean Building ___as shown on
the site plan for the Park provided that (i) if any of said Buildings shall not be
occupied by at least one tenant of Landlord for at least 180 days during any calendar
year, then such Building shall not be deemed an Applicable Leased Building for such
calendar year and (ii) if any Park Building other than the Buildings listed above
shall be occupied by at least one tenant of Landlord for at least 180 days during any
calendar year then such Building shall be deemed an Applicable Leased Building for
such calendar year;
	 
	 	(b)	 	the term “Applicable Share” shall mean ___%, provided that if the
RA of any Applicable Leased Building or any Park Building shall increase or decrease
such percentage shall be appropriately modified, it being the intent of the parties
that Applicable Share shall mean the aggregate RA of the Applicable Leased Buildings
divided by the RA of all Park Buildings; and





     (c) the term “Operating Expenses Per Square Foot of RA” shall mean Operating Expenses during
the calendar year in question divided by the aggregate RA of the Applicable Leased Buildings.



D-5









 





EXHIBIT F




BANKRUPTCY




     (1) If a petition is filed by, or an order for relief is entered against, Tenant under Chapter
7 of the United States Bankruptcy Code (the “Code”) and the trustee of Tenant elects to assume this
Lease for the purpose of assigning it, the election or assignment, or both, may be made only if all
of the terms and conditions of subparagraph a (i) are satisfied. If the trustee fails to elect to
assume this Lease for the purpose of assigning it within sixty (60) days after his appointment,
this Lease will be deemed to have been rejected. Landlord shall then immediately be entitled to
possession of the Premises without further obligation to Tenant or the trustee, and this Lease will
be cancelled. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however,
shall survive.




	 	(a)	 	If Tenant files a petition for reorganization under Chapters 11 or 13 of the
Code or a proceeding that is filed by or against Tenant under any other chapter of the
Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as a
debtor-in-possession fails to assume this Lease within sixty (60) days from the date of
the filing of the petition or the conversion, the trustee or the debtor-in-possession
will be deemed to have rejected this Lease. To be effective, an election to assume this
Lease must be in writing and addressed to Landlord and, in Landlord’s business
judgment, all of the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable, must have been satisfied:






(i) The trustee or the debtor-in-possession has cured or has provided to Landlord
adequate assurance, as defined in this subparagraph a, that:




     (1)(A) The trustee will cure all monetary defaults under this Lease within ten
(10) days from the date of the assumption; and




     (B) The trustee will cure all nonmonetary defaults under this Lease within
thirty (30) days from the date of the assumption.




     (2) The trustee or the debtor-in-possession has compensated Landlord, or has
provided to Landlord adequate assurance, as defined in this subparagraph a, that
within ten (10) days from the date of the assumption Landlord will be compensated
for any pecuniary loss Landlord incurred arising from the default of Tenant, the
trustee, or the debtor-in-possession as recited in Landlord’s written statement of
pecuniary loss sent to the trustee or the debtor-in-possession.



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     (3) The trustee or the debtor-in-possession has provided Landlord with adequate
assurance of the future performance of each of Tenant’s obligations under this
Lease; provided, however, that:




     (A) The trustee or debtor-in-possession will also deposit with Landlord, as
security for the timely payment of rental, an amount equal to two months’ Adjusted
Rental and other monetary charges accruing under this Lease;




     (B) From and after the date of the assumption of this Lease, the trustee or
debtor-in-possession will pay when due each Adjusted Rental payment due hereunder;
and




     (C) The obligations imposed upon the trustee or the debtor-in-possession will
continue for Tenant after the completion of bankruptcy proceedings.




     (4) Landlord has determined that the assumption of this Lease will not breach
any provision in any other lease, mortgage, financing agreement, or other agreement
by which Landlord is bound relating to the Premises.




     (5) For purposes of this subparagraph a, “adequate assurance” means that:




     (A) Landlord will determine that the trustee or the debtor-in-possession has,
and will continue to have, sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure Landlord that the trustee
or the debtor-in-possession will have sufficient funds to fulfill Tenant’s
obligations under this Lease; and




     (B) An order will have been entered segregating sufficient cash payable to
Landlord and/or a valid and perfected first lien and security interest will have
been granted in property of Tenant, trustee, or debtor-in-possession that is
acceptable for value and kind to Landlord, to secure to Landlord the obligation of
the trustee or debtor-in-possession to cure the monetary or nonmonetary defaults
under this Lease within the time periods set forth above.



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	 	(b)	 	In the event that this Lease is assumed by a trustee appointed for Tenant or by
Tenant as debtor-in-possession under the provisions of subparagraph a and, thereafter,
Tenant is either adjudicated a bankrupt or files a subsequent petition for
rearrangement under Chapter 11 of the Code, then Landlord may terminate, at its option,
this Lease and all Tenant’s rights under it, by giving written notice of Landlord’s
election to terminate.
	 
	 	(c)	 	If the trustee or the debtor-in-possession has assumed this Lease, under the
terms of subparagraph a, to assign or to elect to assign Tenant’s interest under this
Lease or the estate created by that interest to any other person, that interest or
estate may be assigned only if Landlord acknowledges in writing that the intended
assignee has provided adequate assurance, as defined in this subparagraph c, of future
performance of all of the terms, covenants, and conditions of this Lease to be
performed by Tenant
	 
	 	 	 	For the purposes of this subparagraph c, adequate assurance of future performance
means that Landlord has ascertained that each of the following conditions has been
satisfied:






     (i) The assignee has submitted a current financial statement, audited by a
certified public accountant, that shows a net worth and working capital in amounts
determined by Landlord to be sufficient to assure the future performance by the
assignee of Tenant’s obligation under this Lease;




     (ii) If reasonably requested by Landlord, the assignee will obtain guarantees,
in form and substance satisfactory to Landlord, from one or more persons who satisfy
Landlord’s standards of credit worthiness: and




     (iii) Landlord has obtained all consents or waivers from any third party
required under any lease, mortgage, financing arrangement, or other agreement by
which Landlord is bound, to enable Landlord to permit the assignment.




	 	(d)	 	When, pursuant to the Code, the trustee or the debtor-in-possession is
obligated to pay reasonable use and occupancy charges for the use of all or part of the
Premises, the charges will not be less than the Adjusted Rental then required to be
paid by Tenant hereunder.
	 
	 	(e)	 	Neither Tenant’s interest in this Lease nor any estate of Tenant created in
this Lease will pass to any trustee, receiver, or assignee for the benefit of
creditors, or any other person or entity, or otherwise by operation of law under the
laws of any




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	 	 	 	state having jurisdiction of the person or property of Tenant, unless Landlord
consents in writing to this transfer. Landlord’s acceptance of rental or any other
payments from any trustee, receiver, assignee, person, or other entity will not be
deemed to affect or alter (i) the need to obtain Landlord’s consent or (ii)
Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under
this Lease without such consent.






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