Exhibit
10.1


 


BASIC
LEASE INFORMATION

CANYON PARK TECHNOLOGY CENTER

OFFICE BUILDING LEASE AGREEMENT


 

















 


	
  “Lease Date”:

  	
   

  	
  November 5, 2003

  
	
   

  	
   

  	
   

  
	
  “Tenant”:

  	
   

  	
  Sento Corporation, a
  Utah corporation

  
	
   

  	
   

  	
   

  
	
  Address of Tenant:

  	
   

  	
  808 East Utah Valley
  Dr.

  
	
   

  	
   

  	
  American Fork, UT 84003

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:  Stanley Cutler

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:    801-772-1410

  
	
   

  	
   

  	
  Sento Corporation
  Office  801-492-2000

  
	
   

  	
   

  	
   

  
	
  Address of Premises:

  	
   

  	
  600 East Timpanogos
  Circle

  
	
   

  	
   

  	
  Orem, Utah 84097

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone: 

  
	
   

  	
   

  	
   

  
	
  “Landlord”:

  	
   

  	
  TCU Properties I, LLC,
  a Utah limited liability company

  
	
   

  	
   

  	
   

  
	
  Address of Landlord:

  	
   

  	
  1501 North Technology
  Way

  
	
   

  	
   

  	
  Building A, Suite 3300

  
	
   

  	
   

  	
  Orem, Utah 84097

  
	
   

  	
   

  	
  Attention:  Allen Finlinson

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone: 801-764-0005
  Ext 399

  
	
   

  	
   

  	
   

  
	
  “Access”:

  	
   

  	
  Tenant shall have immediate
  access to Premises in Building H for space planning, Tenant Improvements,
  build out and staging of Tenant move and occupancy.

  
	
   

  	
   

  	
   

  
	
  “Adjusted Rental”:

  	
   

  	
  The sum of the annual
  Basic Rental and the annual Excess Operating Expenses and Excess Taxes.

  
	
   

  	
   

  	
   

  
	
  “Agency/Broker”:

  	
   

  	
  Sento Corporation is
  represented by NAI Utah Commercial Real Estate, Inc. (Collin Perkins) and
  Landlord is represented by Coldwell Commercial NRT (Brandon Fugal).

  
	
   

  	
   

  	
   

  
	
  “Base Year”:

  	
   

  	
  Calendar Year 2004

  
	
   

  	
   

  	
   

  
	
  “Basic Rental”:

  	
   

  	
  366,787.50
  per annum 30,565.63 per month). The first month’s rent and security
  deposit shall be due upon execution of the Lease.  The Security Deposit shall be equal to the last month’s rent.

  



 


2

















 


	
  “Building”:

  	
   

  	
  The Building located in
  the Park known as “Canyon Park Technology Center” and designated as Building
  H 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
  listed in paragraph 6a below. 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 will also be made available Sento.

  
	
   

  	
   

  	
   

  
	
  “Commencement Date”:

  	
   

  	
  December 1, 2003 for
  H12, 13 and H01 then January 1, 2004 for H22 and 23.

  
	
   

  	
   

  	
   

  
	
  “Common Roadways”:

  	
   

  	
  The private common
  roadways within the Park shown on Exhibit A.

  
	
   

  	
   

  	
   

  
	
  “Connectivity”:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Canyon
  Park Technology Center offers access to multiple fiber optic providers,
  providing unmatched connectivity. 
  Tenant currently uses AT&T Onnet and has requested to have this
  carrier provide services to the Premises. 
  In the alternative, if an existing carrier can provide Tenant with
  equivalent service and cost, then Tenant would be amenable to using the
  existing services.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Landlord
  shall allow Tenant to install four (4) network connections to each cube
  and/or office (3 data and 1 voice). Tenant will require access to the
  internal conduit within the Park right of way for installation of a single
  mode fiber, connectivity through building D into building H in park internal
  conduit. Any work or installation in Landlord’s conduit must be approved in
  writing prior to work or installation, which approval from Landlord
  shall not be unreasonably withheld.

  



 


3

















 


	
  “Estimated Excess
  Operating Expenses”:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  “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
  Base Year Operating Expenses Per Square Foot of RA (defined in Exhibit E)
  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.

  
	
   

  	
   

  	
   

  
	
  “Expansion Rights”:

  	
   

  	
  -
  See sections Option to Expand and Right of First Refusal in the Basic Lease
  Terms below

  
	
   

  	
   

  	
   

  
	
  “Escalators”:

  	
   

  	
  “Basic Rent” shall
  increase annually on each one-year anniversary of the Lease “Commencement
  Date” as follows:

  



 


	
  Year 2

  	
   

  	
  $.75 per rentable
  square foot

  
	
   

  	
   

  	
   

  
	
  Year 3

  	
   

  	
  $.75 per rentable
  square foot

  
	
   

  	
   

  	
   

  
	
  Year 4

  	
   

  	
  $.50 per rentable
  square foot

  
	
   

  	
   

  	
   

  
	
  Year 5

  	
   

  	
  $.50 per rentable
  square foot

  



 


	
  “Furniture”:

  	
   

  	
  Landlord shall allow Tenant the use of furniture at no
  charge from existing inventory in the Park, provided such furniture is not
  being used by Landlord or other tenants and subject to availability. Tenant is
  responsible for any damage to the furniture, normal wear and tear excepted.
  Landlord will use its best efforts to provide approximately 220 workstations
  as per Tenant’s space plans and to provide Tenant with furniture and
  workstations for their future growth in the 1st and 2nd
  Stages subject to availability from Canyon Park’s existing inventory that is
  not committed by Landlord or being used by other Tenants as shown below:

  



 


	
  Basic Lease:

  	
   

  	
  200-220 Modular Stations

  
	
  1st
  Stage:

  	
   

  	
  to
  be determined

  
	
  2nd
  Stage

  	
   

  	
  to
  be determined

  



 


4

















 


	
  “Land”:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  “Lease Type”

  	
   

  	
  Full Service

  
	
   

  	
   

  	
   

  
	
  “Moving and Relocation”

  	
   

  	
  Landlord
  will reimburse Tenant up to $91,700.00 to compensate Tenant for its moving
  and relocation costs These expenses must be documented and supported by
  copies of front and back of cancelled checks, signed paid invoices from
  vendor(s) providing the moving or relocation services.

  
	
   

  	
   

  	
   

  
	
  “Network
  Cabling/Wiring”:

  	
   

  	
  Tenant shall have
  access to the existing Category 5 network cabling and multi mode fiber in
  Building.

  
	
   

  	
   

  	
   

  
	
  “Option to Expand”:

  	
   

  	
  Tenant shall have the option to expand into the
  balance of the 1ST & 2nd floor, space H 11/12 &
  H 21/22, of the Building upon the following terms and conditions:  (a) Tenant shall provide Landlord with a written binding commitment to
  lease the additional space on or before June 1, 2004 at the same Basic Rental
  rate per square foot and otherwise pursuant to the same terms and conditions
  as in the Basic Lease, if notice of expansion is given to Landlord prior to
  June 1, 2004.

  
	
   

  	
   

  	
   

  
	
  “Power Costs Data Center”:

  	
   

  	
  After hours use of the Data Center shall not be
  deemed or considered after hours services, including without limitation HVAC
  or electrical service, pursuant to Paragraph 6 of the Lease and shall not be
  subject to the after hours charges. Landlord will install a meter to monitor
  the Data Center power used by Tenant, and Tenant will pay Landlord’s actual
  costs (which shall be in addition to and not a part of Operating Expenses)
  for such power (the “Power Cost Data Center”) as part of the Adjusted Rent.
  Tenant shall pay the actual costs of the Data Center power from the
  Commencement Date, which costs will be billed by Landlord with Basic Rent
  monthly.

  
	
   

  	
   

  	
   

  
	
  “Park”:

  	
   

  	
  All of the Park Buildings together with all of the
  land owned by Landlord in Canyon Park Technology Center as shown on Exhibit
  A attached hereto comprising 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 H, which Park Buildings
  are shown on the site plan of the Park attached hereto as Exhibit A.

  



 


5

















 


	
  “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.

  
	
   

  	
   

  	
   

  
	
  “Permitted Use”:

  	
   

  	
  Tenant shall use and
  occupy the Premises for teleservicing, general office, storage, or any other
  use permitted by applicable building codes or zoning ordinances.

  
	
   

  	
   

  	
   

  
	
  “Premises”:

  	
   

  	
  29,343 rentable square
  feet located on the basement, first floor and second floors of the Building
  and as outlined below:

  



 


	
  H01

  	
   

  	
  300 RSF

  
	
   

  	
   

  	
   

  
	
  H12/13

  	
   

  	
  14,413 RSF

  
	
   

  	
   

  	
   

  
	
  H22/23

  	
   

  	
  14,630 RSF

  



 


	
   

  	
   

  	
  The Premises are shown
  cross-hatched on the floor plan attached hereto as Exhibit B.  The rentable square feet of the Premises
  will be measured in accordance with BOMA standard.

  
	
   

  	
   

  	
   

  
	
  “Property”:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  “Redundant Power”:

  	
   

  	
  The Building shall have
  redundant power systems, provided by Landlord for Tenant’s use that consists
  of the existing UPS system and backup power generation.

  
	
   

  	
   

  	
   

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

  	
   

  	
  Approximately  29,343
  rentable square feet.

  
	
   

  	
   

  	
   

  
	
  “Rent Abatement”:

  	
   

  	
  Provided
  that Tenant is not in material breach of the Lease and no amount of Basic
  Rent is past due, Landlord will abate the Rent on the following schedule:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  H12/13
  and H01 - 14,713 RSF with rent commencing 12/1/03, and H22/23 – 14,630 RSF
  with rent commencing 1/1/04.

  Landlord to abate rent for 9 months on this space spread out over 24 months
  of the lease.  Landlord will abate
  rent on months 8, 10, 12, 14, 16, 18, 20, 22, & 24.

  



 


6

















 


	
   

  	
   

  	
  H21/23
  and H11/13 and balance of their respective lobby areas. For twelve (12)
  months spread out over the first twenty four (24) months of the Lease Term,
  with every other month Rent Free. Notwithstanding any other term or condition
  of this Lease, Tenant shall not pay to Landlord any Adjusted Rental for the
  Free Rent Months. All
  additional expansion space will have a period of free-rent attached during
  the first twenty-four months of the Lease Term, on an every other month
  basis, triggered by the Commencement Date of each expansion.  Free rent for additional space will be as follows:

  



 


	
  January
  1, 2004

  	
   

  	
  12
  Months

  
	
   

  	
   

  	
   

  
	
  February
  2004

  	
   

  	
  11
  Months

  
	
   

  	
   

  	
   

  
	
  March
  2004

  	
   

  	
  10
  Months

  
	
   

  	
   

  	
   

  
	
  April
  2004

  	
   

  	
  9
  Months

  
	
   

  	
   

  	
   

  
	
  May
  2004

  	
   

  	
  8
  Months

  
	
   

  	
   

  	
   

  
	
  June
  2004

  	
   

  	
  7
  Months

  
	
   

  	
   

  	
   

  
	
  July
  2004

  	
   

  	
  6
  Months

  



 


	
  “Renewal
  Term”:

  	
   

  	
  Tenant
  shall have the right at Tenant’s option, to extend the Term of the Lease for
  an additional sixty (60) months (“Renewal Term”) by giving written notice
  thereof to Landlord no later than twelve (12) months prior to the end of the
  initial Term, provided that Tenant is not in default hereunder both at the
  time of giving of the Renewal Option notice and on the first day of the
  Renewal Term. The “Basic Rental” rate on the Renewal Term is $15.50 per
  rentable square foot, and all other terms and conditions of the Lease shall
  apply during the Renewal Term. In the event that Tenant does not exercise the
  above-described option to renew for any reason (or is not entitled to
  exercise such option due to Tenant’s uncured default), Tenant shall pay
  Landlord a payment (which shall be referred to herein as the “Option
  Forbearance Payment” of four hundred fifty thousand dollars ($450,000.00) The
  “Option Forbearance Payment” shall be paid to Landlord on the first (1st)
  day of the 60th month of the Basic Lease Term (or, if the Lease is
  terminated prior to such 60th month,  on the first day of  the
  last month prior to such termination)..

  
	
   

  	
   

  	
   

  
	
  “Restrictive
  Covenants”:

  	
   

  	
  The covenants set forth
  on Exhibit G attached hereto, and any amendments or additions thereto
  pursuant to Paragraph 45.

  



 


7

















 


	
  “Right of First Refusal”:

  	
   

  	
  Tenant shall have the Right of First Refusal to
  Lease the balance of the space in Building H during the first twenty-four
  (24) months of the Lease by giving Landlord prior thirty day (30) written
  notice to Lease the space under the same Terms and Conditions of the Basic
  Lease. The second (2nd) floor of Building H (pod H 21) must be
  Leased prior to the first (1st) floor Right of First Refusal being
  exercised and Leased by Tenant.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All
  Tenant Expansion Space shall be coterminous with the Basic Lease and subject
  to the Original Lease Terms.

  
	
   

  	
   

  	
   

  
	
  “Security Deposit”:

  	
   

  	
  $36,678.75 payable upon
  execution of the Lease. Tenant shall increase the Security Deposit to
  Landlord when Tenant exercises its Option to Expand and/or Right of First
  Refusal and/or Renewal Term outlined in the Basic Lease Terms.

  
	
   

  	
   

  	
   

  
	
  “First Month’s Rent”:

  	
   

  	
  $30,565.63 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.

  
	
   

  	
   

  	
   

  
	
  “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. Tenant understands that Landlord does not currently own
  Building L and that Landlord will use its best efforts to keep building L
  operational for Tenant use. Landlord reserves the right to change the
  availability and use of the Shared Park Facilities.

  
	
   

  	
   

  	
   

  
	
  “Signage”:

  	
   

  	
  Subject
  to Paragraph 9(b) of the Lease, Tenant may construct, at Tenant’s cost and
  expense, signage for the outside of the Building, provided that (a) the size,
  design, style, color, materials, location and content of such sign are, in
  the reasonable opinion of Landlord, (i) aesthetically pleasing, (ii)
  complementary to the design, style, and materials of the Building and Park,
  and (iii)

  



 


8

















 


	
   

  	
   

  	
  consistent
  with an executive office building and (b) the lettering or signage on the
  Building is not permanent and shall be removed at  Tenant sole cost and expense upon the expiration of the Term or
  Tenant’s occupancy of the Premises and (c) Tenant receives Landlord’s written
  permission and approval of signage to be installed prior to installation. In
  addition, Tenant’s name, as set forth herein, shall be placed in the Building
  directory located in the main level of the Building. Landlord shall at
  its sole cost provide Tenant with existing building monument Signage, in
  addition to suite signage, upon Lease Commencement.  This shall be consistent with the guidelines and standards
  established for Canyon Park.

  
	
   

  	
   

  	
   

  
	
  “Space Planning”:

  	
   

  	
  Landlord shall offer
  its space planning services to Tenant at no additional cost.

  
	
   

  	
   

  	
   

  
	
  “Tenant Improvements”:

  	
   

  	
  Tenant shall accept
  Premises in its “As Is” condition. Landlord at its sole cost and expense
  shall make the
  following tenant improvements to the Premises: (a) touch-up paint as needed,
  (b) clean the carpets, (c) clean the cloth paneled exterior walls, and (d)
  clean and generally organize the existing wiring and cabling in basement data
  center space. At a mutually agreed upon shared expense, Tenant and Landlord
  shall make changes to the V-wall configuration of the Premises.

  
	
   

  	
   

  	
   

  
	
  “Term”:

  	
   

  	
  The period commencing
  on the Commencement Date (as defined above) 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 until and through
  October 30, 2008.  Tenant has the
  right to elect to extend the Term for five (5) years or sixty (60) months
  subject to the terms and conditions set forth in Paragraph 2 below.

  



 


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


 


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.


 


9

















 


	
  LANDLORD:

  	
  TCU Properties I, LLC,

  
	
   

  	
  a Utah limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:  November
        , 2003:

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
    R. Scott McQuarrie

  	
   

  
	
   

  	
  Title:

  	
    Chairman

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TENANT:

  	
  Sento Corporation,

  
	
   

  	
  an Utah corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:  November
        , 2003:

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   Michael Williams

  	
   

  
	
   

  	
  Title:

  	
   Vice President of
  Operations

  	
   

  
								



 


10

















 


TABLE OF CONTENTS


 


	
  1.

  	
  Definitions and Basic
  Provisions

  
	
   

  	
   

  
	
  2.

  	
  Lease Grant; Renewal
  Option

  
	
   

  	
   

  
	
  3.

  	
  Rent

  
	
   

  	
   

  
	
  4.

  	
  Right
  of First Offer; Expansion Option

  
	
   

  	
   

  
	
  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 

  
	
   

  	
   

  
	
  26.

  	
  Mechanic’s
  Liens

  
	
   

  	
   

  
	
  27.

  	
  No Subrogation; Insurance

  
	
   

  	
   

  
	
  28.

  	
  Brokerage

  
	
   

  	
   

  
	
  29.

  	
  Building Name

  
	
   

  	
   

  
	
  30.
  

  	
  Estoppel
  Certificates 

  
	
   

  	
   

  
	
  31.
  

  	
  Notices 

  



 

















 


	
  32.
  

  	
  Severability 

  
	
   

  	
   

  
	
  33.

  	
  Amendments; No
  Waiver; Binding Effect

  
	
   

  	
   

  
	
  34.

  	
  Quiet
  Enjoyment

  
	
   

  	
   

  
	
  35.

  	
  Gender

  
	
   

  	
   

  
	
  36.

  	
  Joint and Several
  Liability

  
	
   

  	
   

  
	
  37.

  	
  Certain Rights
  Reserved by Landlord

  
	
   

  	
   

  
	
  38.

  	
  Notice to
  Lender

  
	
   

  	
   

  
	
  39.

  	
  Captions

  
	
   

  	
   

  
	
  40.

  	
  Miscellaneous

  
	
   

  	
   

  
	
  41.

  	
  Force Majeure

  
	
   

  	
   

  
	
  42.

  	
  Applicable Law

  
	
   

  	
   

  
	
  43.

  	
  Third Party
  Rights

  
	
   

  	
   

  
	
  44.

  	
  Americans With
  Disabilities Act

  
	
   

  	
   

  
	
  45.

  	
  Restrictive
  Covenants

  
	
   

  	
   

  
	
  46.
  

  	
  Exhibits
  and Attachments 

  



 


LIST OF EXHIBITS


 




	
   

  
	
  Exhibit A - Site Plan
  of Park

  
	
  Exhibit B - Floor Plan of
  the Premises

  
	
  Exhibit C - Rules and Regulations

  
	
  Exhibit D - Parking

  
	
  Exhibit E - Operating Expenses

  
	
  Exhibit F - Bankruptcy

  
	
  Exhibit G - Restrictive
  Covenants

  
	
  Exhibit H - Leasehold Improvements

  
	
  Exhibit I - Janitorial Specifications

  
	
  Exhibit J - Security
  Specifications

  






 


2

















 


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 identified on Exhibit
A, as applicable.


 


2.                                      Lease Grant; Renewal Option.


 


(a)                                  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.


 


(b)                                 Tenant
shall have the right, at Tenant’s option, to extend the Term for one (1)
additional period of five (5) years (the “Renewal Term”) by giving written
notice thereof to Landlord no later than twelve (12) months prior to the end of
the initial Term, provided that Tenant is not in default hereunder both at the
time of giving of the renewal option notice and on the day prior to the first
day of the Renewal Term.


 


(c)                                  The “Basic Rental”
rate during the Renewal Term shall be $15.50 per rentable square foot with $.50
annual escalators. All other terms and conditions of the Lease shall apply
during the Renewal Term.


 


(d)                                 Landlord and Tenant
acknowledge that the above-described option to renew is being granted to Tenant
without additional consideration except for Tenant’s agreement to pay the
Option Forbearance Payment defined and described below. If Tenant does not
exercise the above-described option to renew for any reason (or is not entitled
to exercise such option due to Tenant’s uncured default), Tenant shall pay
Landlord a payment, which shall be referred to herein as the “Option
Forbearance Payment” of four hundred fifty thousand dollars ($450,000.00 US).
The “Option Forbearance Payment” shall be paid to Landlord on the first (1st)
day


 


1

















 


of the 60th month of the Basic Lease Term
(or, if the Lease is terminated prior to such 60th month, on the
first day of  the last month
prior to such termination).


 


3.                                      Rent.


 


(a)                                  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. All
estimated payments of Operating Expenses paid by Tenant shall be trued up with
Landlord at each year-end, through the term of the Lease Term.


 


(b)                                 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.  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.


 


(c)                                  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.


 


2

















 


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 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. 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. After Landlord’s final
computation is completed, Landlord shall return the balance of the Security
Deposit to Tenant.  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.  Landlord has not agreed and has no
obligation to construct improvements upon the Premises.  Any alterations performed by Tenant during
the Term shall be subject to the additional provisions of Exhibit H
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 for buildings
comparable to the Building located in Utah County; (iii) janitorial service to
the Premises in accordance with Exhibit I attached hereto 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;
(v) replacement of Building standard light bulbs and fluorescent tubes; and
(vi) day porter service. Also, Landlord shall maintain the structural elements
of the Building (including but not limited to exterior walls, load bearing
walls, support beams, foundation, and columns), the public and common areas of
the Building, and the Shared Park Facilities in reasonably good order and
condition, consistent with a first-class office development within the Utah
County market area; provided, however, that Tenant shall reimburse Landlord for
the cost of repairing any damage to such


 


3

















 


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 E).  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,
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.  As of the date hereof, Landlord’s overtime charge for heating and
air conditioning equals (i) $20.00 per hour for the total Building and (ii)
$5.00 per hour per pod if the Premises are separately metered for electricity
plus in either event all out of pocket labor and routine parts incurred by
Landlord in providing such overtime services. 
“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, Memorial
Day, the Fourth of July, Labor Day, Thanksgiving Day, the Friday following
Thanksgiving and Christmas Day.


 


(b)                                 Landlord
shall make available to Tenant electric power facilities in the Premises
sufficient to furnish power for lighting, personal computers, and other
machines of similar low electrical consumption; provided, however, that
Landlord shall not provide power in excess of six (6) 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)                                  The
parties acknowledge that the Basic Rent includes the cost of electricity to be
used in the Premises in accordance with Paragraph 6(b).


 


(d)                                 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.  Any riser or risers or, wiring
to meet Tenant’s excess electrical requirements will be installed by Landlord
at Tenant’s sole cost and expense (if approved by Landlord in accordance with Paragraph
9 below).  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 cost and expense (including the cost of
installation and the cost of operation and maintenance thereof).  Tenant may install supplementary air
conditioning units in the Premises


 


4

















 


at Tenant’s sole cost and
expense provided Landlord gives its approval thereto (including, without
limitation, the identity of the manufacturer and style of the units and their
location), such approval not to be unreasonably withheld and provided that the
installation thereof is performed in accordance with the terms and provisions
of this Lease.


 


(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 (including, but not limited to, Landlord’s compliance with (i)
governmental or business guidelines now or hereafter published or (ii) any
requirements now or hereafter established by any governmental agency, board or
bureau with jurisdiction over the operation and maintenance of the Building)
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 be required to employ
any worker at overtime rates) to resume said services in a timely manner.  Should any equipment or machinery furnished
by Landlord break down or cease to function properly, Landlord shall use reasonable
diligence to repair same promptly, but Tenant shall have no claim for abatement
of Rent or damages on account of any interruption in service occasioned thereby
or resulting therefrom and Landlord shall not be required to employ any workers
at overtime rates.


 


7.                                      Condition of Premises.  TENANT EXPRESSLY ACKNOWLEDGES THAT (A)
TENANT HAS THOROUGHLY EXAMINED THE PREMISES AND TAKES AND 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) provided that Tenant shall be under no obligation to operate
or conduct any business in the Premises. 
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


 


5

















 


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 a
photocopy of 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 a Class A office
building; or (v) materially impairs the proper and economic maintenance,
operation and repair of the Building and/or its equipment, facilities or
systems.


 


9.                                      Tenant’s 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


 


6

















 


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. 
Notwithstanding the Tenant’s duty hereunder to remove its, any
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 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


 


7

















 


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 thirty (30) 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.  Landlord shall have twenty (20)
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 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 twenty (20) day period, Landlord shall be deemed to have granted 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
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


 


8

















 


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. 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 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.


 


9

















 


(i)                                     Tenant
shall pay Landlord’s reasonable expenses incurred in reviewing any request by
Tenant under this Paragraph upon demand, in an amount not to exceed
$2,500.00.


 


(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 which 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 noncompliance with Legal Requirements elsewhere in the Park if such
noncompliance 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.


 


(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.


 


10

















 


(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 Indemnities”)
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 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


 


11

















 


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. Tenant hereby appoints
Landlord Tenant’s attorney in fact to execute any such instrument for and on
behalf of Tenant.


 


(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 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.


 


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(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. 
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 ten percent (10%) 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 ten percent (10%) or more
of the Premises or if a material 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 (in either event) or Tenant (only if 10% or more of the
Premises are taken) shall have the right to terminate this Lease upon notice
given to the other party within 30 days after such taking of possession.


 


(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.  In the event of any such taking
or conveyance there shall be a pro rata reduction in Rent based on the
percentage of the RA of Premises taken bears to the RA of the Premises prior to
such taking.  If this Lease shall
continue in effect, Landlord


 


13

















 


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 within one hundred eighty (180) days after the Landlord’s
receipt of the net award, Tenant shall have the right upon not less than twenty
(20) days notice to terminate this Lease, provided that if Landlord
substantially completes such alterations prior to the effective date of such
termination notice from Tenant, such notice shall be deemed voided and this
Lease shall continue in force and effect.


 


(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 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


 


14

















 


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 twenty-five percent
(25%) of such amount. The Landlord shall allow and will not terminate Tenant’s
month-to-month tenancy or charge Hold Over rent for the first three (3) months
after the expiration of the Lease Term. The inclusion of the preceding
sentences 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 owned 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 ten (10) 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).


 


(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 -twenty (20) 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.


 


15

















 


(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)                                    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.


 


(g)                                 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.


 


(h)                                 Tenant
shall fail to execute an Estoppel Certificate in the form and time period
requested by Landlord pursuant to Paragraph 39.


 


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 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


 


16

















 


(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 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


 


17

















 


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 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.


 


18

















 


(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 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.


 


19

















 


26.                               No 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 ($2,000,000.00) combined single limit
for bodily injury, death to any one person, or property damage in any one
occurrence with an additional Eight Million ($8,000,000.00) umbrella policy.
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.


 


(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
coverage’s required hereunder, and Tenant shall obtain a written obligation on
the part of each insurance company to notify Landlord at least thirty


 


20

















 


(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 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.


 


21

















 


(c)                                  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.


 


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.


 


22

















 


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.


 


(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.


 


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


 


23

















 


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 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


 


24

















 


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 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. 
Landlord reserves the right at its sole discretion to discontinue the
Fitness Center, the Retreat Food Court, and other


 


25

















 


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)                                 Tenant
acknowledges that certain of Landlord’s employees and its agents will, in
response to a signal by Landlord, assist Landlord in addressing an emergency in
the Park.  None of these personnel will
be held liable by Tenant for any actions taken in responding to an emergency in
the Park; further, Tenant shall indemnify and hold Landlord, its agents and
employees harmless from and against any and all claims brought by Tenant’s
employees, contractors, agents or invitees and any of their dependents, heirs,
successors or assigns arising out of any act or omission, including negligence,
which may occur while responding to an emergency in the Park.


 


(o)                                 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.


 


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


 


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
days of such delay. Landlord shall not be required to settle or


 


26

















 


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


 


27

















 


44.                               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.                               Security/Access
Control.
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.                               Exhibits and Attachments.  All exhibits and attachments, riders and
addenda referred to in this Lease and the exhibits listed herein 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 B - Plans of
  Premises located in Building H

  
	
  Exhibit C - Rules and Regulations

  
	
  Exhibit D - Parking

  
	
  Exhibit E - Operating Expenses

  
	
  Exhibit F - Bankruptcy

  
	
  Exhibit G - Restrictive
  Covenants

  
	
  Exhibit H - Leasehold Improvements

  
	
  Exhibit I - Janitorial Specifications

  



 


28

















 


DATED as of the date
first written.


 


 


	
   

  	
  LANDLORD:

  	
  TCU Properties I, LLC,

  
	
   

  	
   

  	
  a Utah limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:  November     , 2003:

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  R. Scott McQuarrie

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chairman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  	
  Sento Corporation, an
  Utah corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:  November     , 2003:

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mike Williams

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President of
  Operations

  	
   

  
											



 


29

















 


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, 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 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


 


30

















 


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.


 


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


 


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


 


31

















 


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.


 


32

















 


EXHIBIT
D


 


PARKING


 


Tenant and its employees,
customers and contractors shall be permitted to use the ample parking areas
situated upon the Park for, on a free and unreserved basis subject to such
terms, conditions and regulations as are from time to time applicable to
patrons of said parking area excepting parking spaces reserved by Landlord for
visitors, handicapped and security and service vehicles, and in any such event
Tenant agrees that Tenant and Tenant’s agents and employees shall not park
within the areas so designated by Landlord for visitors, handicapped and
security and service vehicles.  Landlord
shall not decrease the number or location of parking spaces available to Tenant
within the Park at any time during the Term. 
Landlord shall not be liable or responsible for any loss of or to any
car or vehicle or equipment or other property therein or damage to property or
injuries (fatal or nonfatal) from any cause whatsoever while such car or
vehicle is on the Land or parked within said parking areas.  Landlord may make, modify, and enforce rules
and regulations relating to the parking of automobiles and Tenant will abide by
such rules and regulations provided same do not materially and adversely affect
Tenant’s parking rights hereunder.


 

















 


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 8 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,
operation, maintenance, repair, replacement and security of the Building, 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:


 


1.1                                 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 Building 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 Building and/or the Shared Park Facilities
and legal fees and expenses incurred in connection with the Building and/or the
Shared Park Facilities.


 


1.2                                 All
supplies, equipment and materials used in the operation, maintenance, repair,
replacement and security of all or any portion of the Building 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, in both instances 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.


 


1.3                                 Annual
cost of all capital improvements made to the Building and/or the Shared Park
Facilities which although capital in nature reduce the normal operating costs
of the Building and/or the Shared Park Facilities.


 


1.4                                 Cost
of all utilities, other than the cost of excess or individually metered
utilities supplied to tenants of the Building which is actually reimbursed to
Landlord by such tenants.


 


1

















 


1.5                                 Cost
of all maintenance and service agreements on equipment relating to or in the
Building and/or the Shared Park Facilities, including without limitation alarm
service, HVAC service, security service, and elevator maintenance, and window
cleaning for the Building and/or Shared Park Facilities.


 


1.6                                 Cost
of casualty, rental abatement and liability insurance applicable to the
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.


 


1.7                                 Cost
of repairs, replacements and general maintenance of the Building and/or the
Shared Park Facilities or any portion thereof.


 


1.8                                 Cost
of service or maintenance contracts for the operation, maintenance, repair,
replacement or security of the Building and/or the Shared Park Facilities or
any portion thereof, including without limitation janitorial and cleaning
contracts.


 


1.9                                 Any
costs incurred by reason of easements or restrictions affecting all or any
portion of the Building and/or the Shared Park Facilities.


 


“Operating Expenses”
shall not include capital improvements made to the Building and/or the Shared
Park Facilities, other than (A) capital improvements described in subparagraph
1.3 above and (B) items which, though capital for accounting purposes, are
properly considered maintenance or repair items (such as painting of common
areas, replacement of carpet, and the like), or payments made by Tenant or
other tenants of the Building, 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 Building (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, (iii) principal and interest
payments on mortgages, (iv) refinancing costs, (v) ground rent under ground
leases, (vi) depreciation and amortization of buildings or equipment except as
otherwise specifically provided above, (vii) interest or penalties provided
Tenant timely paid all of its escalations, (viii) advertising costs, (ix)
brokerage leasing commissions, (x) any costs reimbursed by tenants other than
by escalations similar to an operating expense escalation, (xi) any costs
reimbursed by insurance, (xii) any costs reimbursed by government authorities,
(xiii) special services paid for by tenants, (xiv) legal fees for enforcing
other tenants’ leases, (xv) services performed by landlord and its related
parties at rates which are in excess of competitive rates, (xvi) artwork in the
Building, (xvii) off-site management personnel, and (xviii) overhead.


 


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
(hereafter defined) divided by the


 


2

















 


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, and stock, franchise,
capital, gift, estate and transfer taxes (except as specifically permitted by
this Paragraph 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.


 


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 calendar year 2005,
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 4 of
this Exhibit E.  Notwithstanding
the commencement of the term of this Lease on the Commencement Date and
notwithstanding anything to the contrary in this Lease including this Exhibit
E, Tenant’s obligation to pay Excess Operating Expenses and Excess Taxes
shall commence on January 1, 2005. 
Furthermore, Tenant’s obligation to pay Excess Operating Expenses is
limited to 3% annual increases, excluding increases in insurance premiums and
utility costs.


 


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


 


3

















 


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 thirty (30) 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).


 


5.                                       If
the Building shall be less than ninety-five percent (95%) occupied during any
calendar year, Operating Expenses for such calendar year shall be increased to
equal Operating Expenses for the Building as if it were 95% occupied during such
calendar year.


 


6.                                       Tenant’s
obligation to pay additional rent pursuant to this Exhibit E shall
survive any termination or expiration of this Lease, and shall continue and
shall cover all periods up to the termination date of this Lease as calculated
pursuant to the Basic Lease Information. 
If Landlord terminates this Lease without specifically waiving in
writing Landlord’s right to seek damages against Tenant, Tenant’s obligations
to pay any and all additional rent pursuant to this Lease shall not terminate
as a result thereof.


 


7.                                       If
Tenant is not then in default under this Lease and if requested by Tenant
within sixty (60) days following the receipt by Tenant of an annual statement
of Operating Expenses, then, Landlord, in substantiation of its determination
of the amounts set forth in said statement, will furnish to Tenant, within
thirty (30) days of Tenant’s request, such additional information or documents
as reasonably may be required for such purpose and as may be reasonably
necessary for the verification of such information; it being expressly
understood that (i) Landlord shall be under no duty to preserve any such
records, or any data or material related thereto, beyond such time as shall be
its customary practice with respect thereto (but in no event less than three
(3) years), and (ii) Tenant shall covenant and agree to keep such
information confidential for its use only for the purposes stated herein.  Tenant may, at Tenant’s cost and expense
employ accountants and/or attorneys for the purposes of reviewing the statement
and such information or documents provided that such statement and such
information or documents shall be kept confidential by such information or
documents shall be kept confidential by such accountants and/or attorneys and
used only for the purposes stated herein. 
If Tenant does not object to an annual statement within such 60 days
period it shall become final and binding on Tenant.  If Tenant shall timely object to an annual statement and Landlord
and Tenant do not agree on the amounts set forth in an annual statement then
Tenant shall have the right to commence an action to resolve the dispute.


 


8.                                       Definitions.  As used herein,


 


8.1                                 the
term “Applicable Leased Buildings” shall mean Building H and any other Park
Building occupied by Tenant and owned by Landlord, as shown on the site


 


4

















 


plan for the Park for
such year (at the time of Lease execution the RA in the Applicable Leased
Buildings is 67,955 square feet);


 


8.2                                 the
term “Applicable Share” shall mean the percentage obtained by dividing the RA
of the Building by the RA of all Park Buildings owned by Landlord, provided
that if the RA of the Building or any other Park Building owned by Landlord
shall increase or decrease or if any additional Park Buildings owned by
Landlord are constructed in the Park such percentage shall be appropriately
modified.  (At the time of Lease
execution, Applicable Share is 9.31%, calculated by dividing the RA of the
Building which is 67,955 square feet by the RA of all Park Buildings owned by
Landlord which is 729,907 square feet.)


 


8.3                                 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 (which at the time of Lease execution is 67,955
square feet).


 


5

















 


EXHIBIT
F


 


BANKRUPTCY


 


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
1.1 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.


 


1.                                       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:


 


1.1                                 The
trustee or the debtor-in-possession has cured or has provided to Landlord
adequate assurance, as defined in this subparagraph 1.1, that:


 


1.1.1                        The
trustee will cure all monetary defaults under this Lease within ten (10) days
from the date of the assumption; and the trustee will cure all nonmonetary
defaults under this Lease within thirty (30) days from the date of the
assumption.


 


1.1.2                        The
trustee or the debtor-in-possession has compensated Landlord, or has provided
to Landlord adequate assurance, as defined in this subparagraph 1.1, 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.


 


1.1.3                        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: (i) the trustee or debtor-in-possession
will also deposit with Landlord, as security for the timely payment of rental,
an amount equal to three months’ Adjusted Rental and other monetary charges
accruing under this Lease; (ii) from and after the date of the assumption of
this Lease, the trustee or debtor-in-possession 


 


1

















 


will pay when due each
Adjusted Rental payment due hereunder; (iii) the obligations imposed upon the
trustee or the debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.


 


1.1.4                        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.


 


1.1.5                        For
purposes of this subparagraph 1.1, “adequate assurance” means that
(i) 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 (ii) 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.


 


2.                                       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 1 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.


 


3.                                       If
the trustee or the debtor-in-possession has assumed this Lease, under the terms
of subparagraph 1, 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 3, 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 3, 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
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.


 


2

















 


4.                                       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.


 


5.                                       Except
as otherwise permitted under this Lease, 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 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 have, the need to
obtain Landlord’s consent or Landlord’s right to terminate this Lease for any
transfer of Tenant’s interest under this Lease without that consent.


 


3

















 


EXHIBIT
H


 


ALTERATIONS BY
TENANT


 


1.                                       Landlord
shall have no responsibility to perform any work or alterations for Tenant
(“Alterations”).  To the extent that
Tenant leases the Expansion Space or the Unoccupied Space and performs
alterations in such spaces, the parties hereto have agreed that Tenant shall so
perform all such Alterations to the extent and in .the manner as hereinafter
provided in this Exhibit H and Landlord shall reimburse Tenant for part
of the costs and expenses incurred in connection therewith as provided
below.  Tenant shall promptly submit to
Landlord, for the review and consent of Landlord’s architect and Landlord, such
consent of Landlord not to be unreasonably withheld (except as to any proposed
structural Alterations of the Premises or Alterations which affect a building
system as to which Landlord need not be reasonable), architectural, electrical
and mechanical working drawings and specifications showing the proposed
Alterations of the Premises (the “Work Area”) as desired by Tenant and in
keeping with the design, construction and equipment of the Building and in
conformity with its standards, all in such form and in such detail as may be
reasonably required by Landlord. The working drawings and all specifications to
be submitted to the Landlord as aforesaid shall be prepared by a competent
architect licensed in the State of Utah (in consultation with a competent
engineer licensed in. the State of Utah where required by the nature of the
Alteration), reasonably satisfactory to the Landlord, who shall be engaged by
the Tenant and who, at the Tenant’s expense, shall furnish all architectural
and engineering services necessary for the preparation of said working drawings
and specifications and in connection with securing the aforesaid consent
thereof by Landlord and with the securing by the Tenant of such consents as, by
reason of the nature of the Alterations shown on said working drawings and
specifications, may be required from any governmental or quasi- governmental
authorities.


 


2.                                       If
Landlord shall not consent to any working drawing or specification as initially
submitted by Tenant, Landlord shall notify Tenant thereof and of the
particulars of such revisions therein as are reasonably required by Landlord
for the purpose of obtaining its said consent provided that Tenant has
satisfied the conditions contained in this Exhibit H. Landlord agrees to
respond to Tenant’s request for Landlord’s consent within five (5) business
days after Landlord’s actual receipt of the initial working drawings and
specifications.  As promptly as
reasonably possible after being so informed by Landlord, Tenant shall submit to
Landlord for Landlord’s consent, a revised working drawing or specification, as
the case may be, to be reviewed and consented to by Landlord within five (5)
business days of receipt thereof (said working drawings and specifications, as
so consented to, the “Working Drawings”). 
If Landlord and Tenant have not agreed on Working Drawings within 30
days after the date hereof, Tenant may within three days after the expiration of
such 30 day period terminate this Lease by written notice to Landlord in which
event Landlord, within thirty (30) days of such termination, shall refund to
Tenant the first monthly installment of rent paid pursuant to Paragraph 3 less
Landlord’s reasonable out of pocket expenses incurred in reviewing Tenant’s
plans, specifications and drawings.  Any
such consent by Landlord, deemed or otherwise, shall not be construed to be a
representation or warranty that the same is properly designed to


 


1

















 


perform the function for
which it is intended or complies with any applicable Legal Requirement, but
only that the Alteration is compatible with the design and structure of the
Building.  Tenant shall reimburse to Landlord
any reasonable out-of-pocket expenses reasonably incurred by Landlord in
connection with the review of Tenant’s Working Drawings.


 


3.                                       Such
Working Drawings, Landlord’s review and consent thereto, the Alterations and
the performance thereof shall all be in accordance with, and subject to all of
the terms and conditions of this Lease, and shall at all times comply with (a)
all applicable Legal Requirements, and (b) with the reasonable rules,
regulations and guidelines of Landlord. Upon the consent by Landlord of the
Working Drawings, Tenant shall proceed with due dispatch to cause the
Alterations as shown on such Working Drawings to be completed at Tenant’s sole
cost and expense.


 


4.                                       Landlord
agrees that if (i) there is then no uncured default under the Lease, (ii)
Landlord receives evidence reasonably satisfactory to Landlord (as provided in
Paragraph 5 below) of the completion of such work in a manner reasonably
satisfactory to Landlord, and (iii) Landlord receives from Tenant evidence
(as provided in Paragraph 5 below) of the payment of such work performed by
Tenant, then Landlord shall reimburse to Tenant the lesser of (a) the payment
of the actual cost of such work or (b) $6 per rentable square foot multiplied
by the RA of the Expansion Space or the Unoccupied Space, as applicable.
Notwithstanding the foregoing, Tenant may request draws for such reimbursement
no more often than once a month, in lieu of a lump sum reimbursement upon
completion of the Alterations.  Such
partial reimbursement requests shall only be with respect to work for which
Tenant has not theretofore been paid by Landlord.  Each request shall be accompanied by (x) a certificate executed
by Tenant’s architect stating that the work for which payment is requested has
been completed in a good and workmanlike manner and in accordance with the
Working Drawings and all Legal Requirements and identifying the work for which
reimbursement is requested, and (y) evidence reasonably satisfactory to
Landlord from Tenant’s general contractor and contractors that all contractors,
consultants, subcontractors and materialmen have waived and released any lien
theretofore filed by it against the Premises or the Building (or if there are
mechanics liens provided that Tenant shall have bonded such liens to the
reasonable satisfaction of Landlord) and, further, have waived and released
their right to file any such lien with respect to the portion of the work for
which reimbursement was previously made by Landlord.  Within thirty (30) days after receipt of such partial
reimbursement request, and provided that Tenant is not then in default under
this Lease, Landlord shall reimburse to Tenant the amount set forth in the
approved requisition, less ten percent (10%) of the amount of such request for
retainage, and except to the extent that Landlord asserts that the Tenant’s
approval of any invoice as due and owing is not true or is in excess of the
limitation on the aggregate reimbursement referred to above.


 


5.                                       Within
one hundred twenty (120) days after substantial completion of the Alterations,
Tenant shall deliver to Landlord (i) a temporary certificate of occupancy for
the Expansion Space or the Unoccupied Space, as applicable, (ii) copies of paid
receipts certified by an officer of Tenant, (iii) general releases and waiver
of lien from all of Tenant’s general contractors, or contractors who entered
into contracts with Tenant,


 


2

















 


involved in the
performance of any of the Alterations (or if there are mechanics liens provided
that Tenant shall have bonded such liens to the reasonable satisfaction of
Landlord), (iv) a certificate from Tenant’s architect certifying that the work
has been completed not in violation of this Lease, all applicable rules and
regulations of Landlord, all Legal Requirements and in accordance with the
Working Drawings and (v) record drawings and specifications of the
Premises reflecting the work performed hereof. 
Within thirty (30) days (or such longer period as Tenant may request)
after receipt of the foregoing documents in form and manner reasonably
satisfactory to Landlord and a permanent certificate of occupancy for the
Premises and provided that there is then no uncured default by Tenant under
this Lease, Landlord shall reimburse to Tenant at any outstanding balance owed
to the Tenant hereunder, including the retainage, if any.


 


6.                                       In
the selection of contractors who will be performing the Alterations and in the
performance of the Alterations the terms and provisions of Paragraph 9
of the Lease and all other terms and provisions of the Lease will be applicable
except that (a) clause (ii) of the ninth sentence of Paragraph 9(b) referring
to construction management shall not be applicable and (b) in the event of any
conflict between the Exhibit H and the Lease relating to the initial
Alterations, the provision of this Exhibit H shall prevail.


 


3

















 


EXHIBIT
I


 


JANITORIAL
SPECIFICATIONS


 


Canyon Park
Technology Center


Building H


 


 


DAILY SERVICES:


Empty all trash cans and
replace liners as needed


Vacuum all carpeted areas


Sweep and damp mop all
tiled floors


Clean stains on walls as
needed


Clean and polish drinking
fountains


Spot clean carpets as
reasonably needed


Clean glass doors and
windows


 


Clean and vacuum elevator


Clean lunch and break
rooms


Clean conference rooms


Clean and disinfect
restrooms, restock paper supplies and soap


 


 


WEEKLY SERVICES:


Dust window ledges, all
areas below 8 feet


Dust work surfaces (when
empty)


Edge vacuum carpeted
areas


Clean doors and frames


Burnish hard floors


Clean glass on interior
side light windows


Spot clean lobby
furniture


Wash inside of
refrigerators and dispose of spoiled food.


Dust top of refrigerators


Empty recycle containers


 


 


MONTHLY SERVICES:


Clean ceiling vents


Dust blinds


Clean janitorial,
mechanical and equipment rooms


Sanitize waste containers


Machine Scrub and burnish
all tile floors


Perform management
walk-through


 


 

















 


OTHER SERVICES:


Quarterly - Clean
exterior windows Clean all perimeter windows, interior and exterior, each
spring (usually April) and fall (usually October)


Replace building light
tubes and bulbs as requested


 


 


EXTRA SERVICES (as
requested and charged directly to tenant):*


Replace desk light tubes
upon request ($1.00 per tube plus cost of tube)


Chair cleaning ($7.00 per
chair)


Partition cleaning ($6.00
per panel)


Ceiling cleaning ($.06
per square foot)


Carpet cleaning ($.09 per
square foot)


 












*Prices subject to change
without notice