**Exhibit10.1**

 

**BASICLEASE INFORMATION****CANYON PARK TECHNOLOGY CENTEROFFICE BUILDING LEASE AGREEMENT**

 

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| “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. |

 

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| “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.         |

 

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| “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            |

 

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| “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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |

 

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| “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. |

 

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|   |   | 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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |

 

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| “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)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |

 

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|                             |   | 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 LeaseInformation is hereby incorporated into and made a part of the Lease attachedhereto (the “Lease”).

 

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

 

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| 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 |   |
|                                                                   |                                   |  |  |  |  |  |  |

 

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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                                 |

 

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| 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    |

 

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**CANYON PARK TECHNOLOGY CENTER**

 

**OFFICE BUILDING LEASE AGREEMENT**

 

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

 

**1.****                                      Definitions and Basic Provisions.**  The definitions and basic provisions setforth in the Basic Lease Information (the “Basic Lease Information”) executedby Landlord and Tenant contemporaneously herewith are incorporated herein byreference for all purposes and shall be used in conjunction with and limited bythe reference thereto in the provisions of this Lease.  As used herein, the term “RA,” whenreferring to the Premises (defined in the Basic Lease Information), shall meanand refer to the rentable area of the Premises measured in accordance with theBuilding Owners and Managers Association (“BOMA”) method of measurement.  The term “RA,” when referring to theBuilding or any other Park Building, shall mean the aggregate total of all RAin the Building in question or in all of the Park Buildings identified on ExhibitA, as applicable.

 

**2.****                                      Lease Grant; Renewal Option.**

 

(a)                                  Landlord,in consideration of the rent to be paid and the other covenants and agreementsto be performed by Tenant and upon the terms hereinafter stated, does herebylease, demise and let unto Tenant the Premises commencing on the CommencementDate and ending on the last day of the Term unless sooner terminated as hereinprovided.

 

(b)                                 Tenantshall 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 writtennotice thereof to Landlord no later than twelve (12) months prior to the end ofthe initial Term, provided that Tenant is not in default hereunder both at thetime of giving of the renewal option notice and on the day prior to the firstday of the Renewal Term.

 

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

 

(d)                                 Landlord and Tenantacknowledge that the above-described option to renew is being granted to Tenantwithout additional consideration except for Tenant’s agreement to pay theOption Forbearance Payment defined and described below. If Tenant does notexercise the above-described option to renew for any reason (or is not entitledto exercise such option due to Tenant’s uncured default), Tenant shall payLandlord a payment, which shall be referred to herein as the “OptionForbearance 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

 

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

 

**3.****                                      Rent.**

 

(a)                                  Tenantshall pay to Landlord Adjusted Rental, which is the sum of the monthly BasicRental, the monthly Excess Operating Expenses and the monthly Excess Taxes (asdefined in the Basic Lease Information), as estimated by Landlord from time totime, in monthly installments in advance on the first day of each month inlawful 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. Allestimated payments of Operating Expenses paid by Tenant shall be trued up withLandlord at each year-end, through the term of the Lease Term.

 

(b)                                 Ifall of any sum due under this Lease is not received by its due date, thenTenant, 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 portionthereof) which is overdue. If a check remitted to pay any sum due to Landlordhereunder shall not be honored upon presentment for payment, then Tenant inaddition to the amount owed, shall pay to Landlord on demand a fee of fivepercent (5%) of the amount owed. Following the dishonor of any check presented for payment, Landlord mayrequire all further payments to be made hereunder to be made by certified checkor money order.  Also, if Landlord doesnot receive any Adjusted Rental within thirty (30) days after the due datethereof, or fails to pay any sum (other than Adjusted Rental) which at any timebecomes due to Landlord under any provision of this Lease as and when the samebecomes due hereunder, then, in either such event, Tenant shall pay Landlordinterest on such overdue amounts from the due date thereof until paid at anannual rate (the “Past Due Rate”) which equals the lesser of (i) eighteenpercent (18%) or (ii) the highest rate then permitted by law.  All late payment charges and fees fordishonored checks are to reimburse Landlord for additional costs and expenseswhich Landlord presently expects to incur in connection with the handling andprocessing of late or dishonored payments. Provision for such late charge, interest or fee for dishonor shall be inaddition to all other rights and remedies available to Landlord hereunder or atlaw or in equity and shall not be construed as liquidated damages or limitingLandlord’s remedies in any manner.

 

(c)                                  Tenant’scovenants and obligations to pay Adjusted Rental and all additional rental(collectively, the “Rent”) hereunder are unconditional and independent of anyother covenant or condition imposed on either Landlord or Tenant, whether underthis Lease, at law or in equity.

 

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**4.****                                      SecurityDeposit.** The Security Deposit is due upon execution of the Lease.** **Landlord shall hold the SecurityDeposit without liability for interest and as security for the performance byTenant of Tenant’s obligations under this Lease. Tenant agrees that suchdeposit will not be considered an advance payment of rental or a measure ofLandlord’s damages in case of default by Tenant. Landlord may, from time totime, without prejudice to any other remedy, use such deposit to make good anyarrearage in any amount due hereunder and to reimburse Landlord for any otherdamage, injury, expense or liability caused to Landlord by any breach of thisLease. Following any such application of the Security Deposit, Tenant shall payto Landlord on demand the amount so applied in order to restore the SecurityDeposit 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 bereturned by Landlord to Tenant within a reasonable period of time after theexpiration of this Lease. The balance of the Security Deposit shall be held byLandlord until final computation of any sums (such as the Excess OperatingExpenses) which Tenant may owe under this Lease. After Landlord’s finalcomputation is completed, Landlord shall return the balance of the SecurityDeposit to Tenant.  If Landlordtransfers its interest in the Premises during the Lease Term, Landlord mayassign the Security Deposit to the transferee and thereafter shall have nofurther liability for the return of the Security Deposit. Landlord shall not berequired to keep the Security Deposit separate from its general funds.

 

**5.****                                      Leasehold Improvements.**  Landlord has not agreed and has noobligation to construct improvements upon the Premises.  Any alterations performed by Tenant duringthe Term shall be subject to the additional provisions of Exhibit Hattached hereto.

 

**6.****                                      Landlord’s Obligations.**

 

(a)                                  Subjectto the following limitations, Landlord shall furnish Tenant while Tenant isoccupying the Premises and performing all of its obligations under this Lease,facilities to provide (i) water (hot and cold) for lavatory and cleaningpurposes at those points of supply provided for general use of tenants in theBuilding; (ii) heated and refrigerated air conditioning in season, duringCustomary Business Hours (defined below), and at such temperatures and in suchamounts as are reasonably considered by Landlord to be standard for buildingscomparable to the Building located in Utah County; (iii) janitorial service tothe Premises in accordance with Exhibit I attached hereto on weekdaysother than Holidays (as hereinafter defined) and such window-washing as mayfrom time to time in Landlord’s judgment reasonably be required; (iv) elevatorservice in common with other tenants; provided that Landlord may limit thenumber 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 elementsof the Building (including but not limited to exterior walls, load bearingwalls, support beams, foundation, and columns), the public and common areas ofthe Building, and the Shared Park Facilities in reasonably good order andcondition, consistent with a first-class office development within the UtahCounty market area; provided, however, that Tenant shall reimburse Landlord forthe cost of repairing any damage to such

 

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areas occasioned byTenant, or its employees, contractors agents or invitees.  The cost of these facilities and servicesshall be included in Operating Expenses (as defined in Exhibit E).  If Tenant desires any of the servicesspecified in this Paragraph 6 at a time or in an amount other than timesor amounts herein designated, such excess service or services shall be suppliedto Tenant, subject to availability, upon Tenant’s request for such services,which request shall be made in accordance with Landlord’s normal operatingprocedures.  Tenant shall pay toLandlord as additional rent the cost of such excess service or services (whichmay 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 andair 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 electricityplus in either event all out of pocket labor and routine parts incurred byLandlord in providing such overtime services. “Customary Business Hours” means 8:00 a.m. to 6:00 p.m. Monday throughFriday, and Saturday 9:00 a.m. to 1:00 p.m., except Holidays.  “Holidays” means New Year’s Day, MemorialDay, the Fourth of July, Labor Day, Thanksgiving Day, the Friday followingThanksgiving and Christmas Day.

 

(b)                                 Landlordshall make available to Tenant electric power facilities in the Premisessufficient to furnish power for lighting, personal computers, and othermachines of similar low electrical consumption; provided, however, thatLandlord shall not provide power in excess of six (6) watts per square foot ofRA of the Premises.  If, in Landlord’sjudgment, Tenant’s use of power exceeds that permitted by the precedingsentence, Tenant shall bear the entire cost of the excess, including withoutlimitation, the cost of any metering devices which may be necessary todetermine the amount of such excess. Landlord shall also make available electric lighting and current for thecommon areas of the Building in the manner and to the extent deemed by Landlordto be standard.

 

(c)                                  Theparties acknowledge that the Basic Rent includes the cost of electricity to beused in the Premises in accordance with Paragraph 6(b).

 

(d)                                 Landlord’sobligation to make available the utilities described in this Paragraph 6is subject to the rules and regulations of the suppliers of utilities and ofany municipal or other governmental authority regulating the business of providingutility services.  Landlord shall not beresponsible or liable to Tenant for any loss, damage or expense that Tenant maysustain or incur if either the quantity or character of any utility service ischanged.  Any riser or risers or, wiringto meet Tenant’s excess electrical requirements will be installed by Landlordat Tenant’s sole cost and expense (if approved by Landlord in accordance with Paragraph9 below).  If heat generatingmachines, equipment, fixtures or devices of any nature whatsoever which affectthe temperature otherwise maintained by the air conditioning system are used inthe Premises by Tenant, Landlord may install supplementary air conditioningunits in the Premises at Tenant’s cost and expense (including the cost ofinstallation and the cost of operation and maintenance thereof).  Tenant may install supplementary airconditioning units in the Premises

 

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at Tenant’s sole cost andexpense provided Landlord gives its approval thereto (including, withoutlimitation, the identity of the manufacturer and style of the units and theirlocation), such approval not to be unreasonably withheld and provided that theinstallation thereof is performed in accordance with the terms and provisionsof this Lease.

 

(e)                                  Landlord’sfailure to any extent to make available, or any slowdown, stoppage orinterruption of, the services set forth in this Paragraph 6 resultingfrom any cause (including, but not limited to, Landlord’s compliance with (i)governmental or business guidelines now or hereafter published or (ii) anyrequirements now or hereafter established by any governmental agency, board orbureau with jurisdiction over the operation and maintenance of the Building)shall not render Landlord liable in any respect for damages to person, propertyor business, nor be construed an eviction of Tenant or work an abatement ofRent, nor relieve Tenant from fulfilling any covenant or agreement hereof;however, Landlord shall use reasonable efforts (and shall be required to employany worker at overtime rates) to resume said services in a timely manner.  Should any equipment or machinery furnishedby Landlord break down or cease to function properly, Landlord shall use reasonablediligence to repair same promptly, but Tenant shall have no claim for abatementof Rent or damages on account of any interruption in service occasioned therebyor resulting therefrom and Landlord shall not be required to employ any workersat overtime rates.

 

**7.****                                      Condition of Premises.**  TENANT EXPRESSLY ACKNOWLEDGES THAT (A)TENANT HAS THOROUGHLY EXAMINED THE PREMISES AND TAKES AND ACCEPTS THE PREMISESIN ITS “AS IS” CONDITION ON THE COMMENCEMENT DATE, (B) LANDLORD AND LANDLORD’SAGENTS AND EMPLOYEES HAVE MADE NO REPRESENTATIONS OR WARRANTIES AS TO THECONDITION OF THE PREMISES, THE BUILDING, THE PROPERTY OR THE PARK, NOR HASLANDLORD MADE ANY COMMITMENTS TO REMODEL, REPAIR OR REDECORATE, EXCEPT ASEXPRESSLY SET FORTH HEREIN AND (C) LANDLORD EXPRESSLY DISCLAIMS ANY IMPLIEDWARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT’S INTENDED COMMERCIALPURPOSE. TENANT EXPRESSLY WAIVES AND RELEASES LANDLORD FROM ANY OF SAME.

 

**8.****                                      Use.**

 

(a)                                  Tenantshall use the Premises only for the Permitted Use (as defined in the BasicLease Information) provided that Tenant shall be under no obligation to operateor conduct any business in the Premises. Tenant shall not occupy or use the Premises, or permit any portion ofthe Premises to be occupied or used, for any business or purpose other than thePermitted Use or for any use or purpose which is unlawful in-part or in wholeor deemed by Landlord to be disreputable in any manner or extra hazardous onaccount of fire, nor permit anything to be done that will in any way invalidateor increase the rate of insurance on the Building or its contents.  Tenant shall promptly upon demand reimburseLandlord for any

 

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additional premiumcharged for any such insurance by reason of Tenant’s failure to comply with theprovisions of this Paragraph.  Tenantwill conduct its business and control its agents, employees and invitees insuch a manner as not to create any nuisance, interfere with, annoy or disturbother tenants or interfere with Landlord in the management of the Building, theProperty or the Park.  Tenant willmaintain the Premises in a clean, healthful and safe condition and will complywith all laws, ordinances, orders, rules and regulations of all state, federal,municipal and other agencies or bodies having jurisdiction over the Premisesand governing the use, condition or occupancy of the Premises, whether existingas of the Commencement Date or enacted subsequent thereto.

 

(b)                                 Ifany governmental license or permit shall be required for the proper and lawfulconduct of Tenant’s business in the Premises or any part thereof, Tenant shallduly procure and thereafter maintain such license or permit and submit aphotocopy of the same to Landlord. Landlord agrees to cooperate with Tenant and to execute suchapplications, certificates and other documents as Tenant shall reasonablyrequest 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 theterms and conditions of each such license or permit.  Tenant shall not at any time use or occupy, or suffer or permitanyone to use or occupy the Premises, or do or permit anything to be done inthe Premises, in any manner which (i) violates the existing, permanentCertificate of Occupancy for the Premises; (ii) causes or is likely to causeinjury to the Building or any equipment, facilities or systems therein; (iii)constitutes a violation of the Legal Requirements; (iv) materially impairs thecharacter, reputation or appearance of the Building as a Class A officebuilding; or (v) materially impairs the proper and economic maintenance,operation and repair of the Building and/or its equipment, facilities orsystems.

 

**9.****                                      Tenant’s Repairs and Alterations.**

 

(a)                                  Tenantshall keep and maintain the Premises in a good, clean condition of repair andmaintenance. Tenant shall not damage or injure the Premises. If any repairs ormaintenance required to be performed by Tenant are not commenced within fifteen(15) days and completed within thirty (30) days after Landlord notifies Tenantof the need for same, Landlord may make such repairs or replacement, and Tenantshall pay the cost thereof (plus an additional charge of fifteen percent (15%)of such cost to cover overhead) to Landlord within fifteen (15) days afterTenant’s receipt of a statement from Landlord. Tenant further agrees not to commit or allow any waste or damage to becommitted 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 Landlordin as good condition as at the Commencement Date, ordinary wear and tearexcepted.  Except as may be set forth inExhibit D, Landlord shall not be required to make any improvements orrepairs of any kind or character on or to the Property, or any portion thereof,during the Lease Term. Notwithstanding the foregoing, Landlord shall make allnecessary repairs to the Building components servicing or supporting, butlocated

 

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outside, the Premises,including without limitation the foundation, outside walls, interiorload-bearing walls, roof, load-bearing beams, and other major structuralcomponents of the Building and treat such repairs as Operating Expenses (as definedin Exhibit E), unless the need for such repair arises out of (1) theperformance by Tenant of any alterations or other work, (2) any act or omissionof Tenant or its employees, invitees or contractors or (3) the installation ofany equipment, fixtures or property by Tenant in the Premises or the moving ofthe foregoing in or out of the Premises, in which event Tenant shall beresponsible to make the repairs.

 

(b)                                 Tenant,without the prior written consent of Landlord, shall not paint, installlighting or decorations (except wall hangings), or install any signs, window ordoor lettering or advertising media of any type on or about the Property, orany part thereof, or make any other alterations, improvements or physicaladditions in or to the Property, or any part thereof.  At the termination of the Lease, at Landlord’s option and subjectto the Landlord’s right to retain improvements desired by Landlord, Tenantshall restore any portions of the Premises altered, added to, or improved byTenant to the original condition. Notwithstanding the Tenant’s duty hereunder to remove its, anyalterations, additions, or improvements, including without limitation any HVAC,power supply, or other equipment attached to the Premises, whether temporary orpermanent in character, made in or upon the Property shall, at Landlord’s solediscretion and option, be Landlord’s property on termination of this Lease andshall remain on the Property without compensation to Tenant.  All furniture and unattached, movableequipment and trade fixtures kept in the Premises by Tenant shall be removed byTenant at the termination of this Lease. If the items are not removed, Landlord may elect that such items willbecome Landlord’s property.  If removaloccurs, Tenant, at Tenant’s expense, shall repair and restore to its originalcondition any portion of the Premises which is damaged by such removal.  All such installations, removals andrestorations shall be accomplished in a good workmanlike manner so as not todamage the Premises or the primary structure or structural qualities of theBuilding or any plumbing or electrical lines or other utility facilities.  All contractors used by Tenant inperformance of any alterations or other work in the Premises shall be subjectto the approval of Landlord, such approval not to be unreasonably withheldprovided 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 workto 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 useLandlord’s architect and (ii) Tenant may either use Landlord, Landlord’sproperty manager or Landlord’s outside construction manager as constructionmanager 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 withthe prior written consent of Landlord, which consent shall not be unreasonablywithheld.  Notwithstanding anythingherein 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

 

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Premises and (ii) doesnot cost more than $30,000, the consent of Landlord will not be unreasonablywithheld or delayed.  In addition, withrespect to painting and other cosmetic work that does not cost more than$30,000 in the aggregate, Landlord’s consent shall not be required providedLandlord receives at least 10 days advance notice thereof.  Promptly after Tenant completes anyalteration, it will deliver to Landlord a set of as-built drawings.

 

**10.****                               Assignment and Subletting.**

 

(a)                                  Tenantshall not, either voluntarily or by operation of law, assign all or any portionof this Lease, nor sublet the Premises or any part thereof, nor permit thePremises or any part thereof to be occupied by any person other than Tenant orTenant’s employees, without the prior written consent of Landlord.  If Tenant desires to assign this Lease orsublet the Premises or any part thereof, Tenant shall so notify Landlord atleast thirty (30) days prior to the date on which Tenant desires to make suchassignment or sublease, which notice shall contain all material terms of theproposed assignment or sublease and financial information regarding theproposed 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 suchplans.  Landlord shall have twenty (20)days after receipt of such notice to notify Tenant whether Landlord consents tosuch an assignment or subletting. Landlord shall not unreasonably withhold or delay its consent to asubletting provided that (a) the sublessee under any such subletting shall besuch person or entity as in the Landlord’s judgment is of a character andengaged in a business such as is in keeping with the standards of the Park andits occupancy, (b) the sublessee shall have sufficient net worth to perform itsobligations under its sublease, (c) the sublessee shall not be a (i) governmentor a governmental authority or a subdivision or an agency of any government orany governmental authority, (ii) a tenant of the Landlord elsewhere in thePark, (iii) an entity or person with whom the Landlord has negotiated (for purposeshereof, “negotiated” shall mean exchanging of written proposals, leases beingprepared or drafts distributed and modified) for a proposed lease of space inthe Park at any time during the six (6) month period prior to the receipt ofsaid notice by the Landlord or (iv) competitor of Landlord and (d) the space soto be sublet shall be regular in shape. If Landlord fails to notify Tenant in writing of such election withinsaid twenty (20) day period, Landlord shall be deemed to have granted consent tosuch assignment or sublease.  IfLandlord consents to a sublease, Tenant shall provide, at its expense, directaccess from the sublet space to a public corridor of the Building in accordancewith plans and specifications approved by Landlord. No assignment or sublettingby Tenant shall relieve Tenant of any obligations under this Lease. Landlord’sconsent to any assignment, sublease or other transaction shall not be deemedconsent to any other or subsequent transaction.

 

(b)                                 IfLandlord consents to any subletting or assignment by Tenant as hereinaboveprovided and the rent, additional rent and other consideration received byTenant under or relating to such sublease exceeds the Rent payable to Landlordunder this

 

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Lease, or if Tenantreceives any consideration from the assignee under any such assignment, then100% of such excess rents and consideration under or relating to such subleaseor 100% of such consideration for any assignment shall automatically be due andpayable by Tenant to Landlord as additional rent hereunder.

 

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

 

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

 

(e)                                  Tenantagrees that it shall not place (or permit the placement of) any signs on orabout the Premises or the Park, nor conduct (or permit anyone to conduct) anypublic advertising which includes any pictures, renderings, sketches or otherrepresentations of any Building (or a portion thereof) with respect to anyproposed assignment or subletting of the Premises, without Landlord’s priorwritten consent. In all events, Tenant shall comply with all applicable governmentalregulations.

 

(f)                                    Tenantshall not mortgage, pledge, hypothecate or otherwise encumber (or grant asecurity interest in) this Lease or any of Tenant’s rights hereunder.

 

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

 

(h)                                 IfTenant 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 toexpand the size of the Premises) shall terminate automatically upon theassignment or sublease unless approved otherwise by Landlord.

 

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

 

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

 

**11.****                               Compliance with Laws.**  Tenant shall comply with all LegalRequirements which relate to Tenant’s use of the Premises or Tenant’s method ofoperation therein, or which impose any violation, order or duty on Tenant byreason thereof.  Tenant shall pay allthe costs, expenses, penalties and damages which may be imposed upon Landlordby reason of Tenant’s failure to fully and promptly comply with and observe theprovisions of this Paragraph.  Landlordshall comply with all Legal Requirements which relate to the Shared ParkFacilities.  Landlord agrees to remedyany noncompliance with Legal Requirements elsewhere in the Park if suchnoncompliance has the effect of preventing or hindering Tenant from obtaining apermit, certificate, or approval that Tenant is entitled to obtain hereunderfrom local authorities.

 

**12.****                               Indemnity.**

 

(a)                                  Landlordshall not be liable or responsible to Tenant for any loss or damage to anyproperty or person occasioned by theft, act of God, public enemy, injunction,riot, strike, insurrection, war, court order, requisition or order ofgovernmental body or authority, or for any damage or inconvenience that mayarise through repair or alteration of any part of the Building or any part ofthe Park, or failure to make any such repairs unless caused by the grossnegligence or willful misconduct of Landlord. In addition, Landlord shall not be liable to Tenant, or to Tenant’sagents, 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 injuryto person or damage to property caused by any act, omission or neglect ofTenant, 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 orabout the Premises or (d) any breach or default in the performance of anyobligation on Tenant’s part to be performed under the terms of this Leaseunless caused by the gross negligence or willful misconduct of Landlord.

 

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(b)                                 Tenantshall not (i) do any act or thing in respect of the Premises, or use or occupythe Premises, or conduct Tenant’s business in any manner, or (ii) permit orsuffer 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 theBuilding, the Property or any other part of the Park or any part thereof shallbecome void or suspended or whereby any insurance premiums maintained byLandlord (or imputed premiums, if Landlord self-insures) shall be higher thanthose which would normally have been in effect for the occupancy contemplatedunder the Permitted Uses in accordance with the terms and provisions of thisLease.  In case of a breach of theprovisions of this Paragraph, if the breach is not due to circumstancesbeyond Tenant’s reasonable control and if Tenant shall not have remedied thebreach within ten (10) days of Landlord’s written notice of the breach toTenant, then in addition to all other rights and remedies of Landlordhereunder, Tenant shall (i) indemnify and hold Landlord and its affiliatesharmless from and against any loss which would have been covered by insurancewhich shall have become void or suspended because of such breach by Tenant, and(ii) pay to Landlord any and all increases of premiums (including imputedpremiums) on any insurance resulting from any such breach.

 

(c)                                  Tenantshall defend, indemnify and hold harmless Landlord, its affiliates and its ortheir officers, directors, employees and agents, (“Landlord’s Indemnities”)from and against any and all claims arising from or in connection with (i) anywork or thing whatsoever done in the Premises by or for Tenant, (ii) any act orany condition created in the Premises by Tenant or any of its subtenants, orits or their-agents, employees, invitees or contractors, or (iii) any accident,bodily injury (including death) or damage to property, including damage toproperty or injury of Tenant or its employees, agents, contractors, or inviteesoccurring in the Premises, unless (i) caused by the gross negligence ofLandlord, its agents, employees, or contractors, or (ii) caused by or relatingto any breach or default by Landlord in the full and prompt performance ofLandlord’s obligations under this Lease which remains uncured beyond areasonable period of time after Landlord is given notice thereof by Tenant.

 

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

 

(e)                                  Theindemnity and hold harmless agreements in this Paragraph shall includeindemnification 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 withany such claim or proceeding brought thereon, and the defense thereof, butshall be limited

 

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to the extent anyproceeds actually collected by Landlord or Tenant (as the case may be) or suchinjured 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 tosatisfy same.  The indemnity and holdharmless agreements in this Paragraph in favor or a party shall not apply incases of that party’s sole negligence.

 

**13.****                               Subordination.**

 

(a)                                  ThisLease and all rights of Tenant hereunder are and shall be subject andsubordinate 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 anyinterest of Landlord therein, and to any and all advances made on the securitythereof, and to any and all increases, renewals, modifications, consolidations,replacements and extensions thereof. Landlord hereby expressly reserves theright, at its option and declaration, to place Security Instruments and MasterLeases 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 clauseshall be self-operative and no further instrument of subordination need berequired, however, upon Landlord’s request, or upon the request of any holder(a “Holder”) under any Security Instrument, or of any lessor (a “Lessor”) underany Master Lease, Tenant shall execute promptly any instrument (includingwithout limitation an amendment to this Lease that does not materially andadversely affect Tenant’s rights or duties under this Lease) or instrumentsintended to subordinate this Lease or to evidence the subordination of thisLease to any such Security Instrument or Master Lease. Tenant hereby appointsLandlord Tenant’s attorney in fact to execute any such instrument for and onbehalf of Tenant.

 

(b)                                 Inthe event of the enforcement by a Holder under any Security Instrument of theremedies provided for by law or by such Security Instrument, or in the event ofthe termination of any Master Lease, the Holder or the Lessor may terminatethis Lease or may continue this Lease in full force and effect as a directlease between such Holder or Lessor and Tenant. If the Holder or Lessorcontinues this lease, Tenant will attorn to and automatically become the tenantof such successor in interest without change in the terms or other provisionsof this Lease (Tenant hereby waiving any right Tenant may have to terminatethis Lease or surrender possession of the Premises) and this Lease shallcontinue in full force and effect; provided, however, that such successor ininterest shall not be bound by or liable for (i) any payment of Rent for morethan one month in advance, (ii) any amendment or modification of this Leasemade without the written consent of such Holder, Lessor or successor ininterest, or (iii) any offset, claim or cause of action which Tenant may haveagainst Landlord relating to the period which is prior to the time Tenantbecomes the tenant of such successor in interest. Upon request by any Holder,Lessor or successor in interest to either, Tenant shall execute and deliver aninstrument confirming this attornment herein provided for.

 

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

 

**14.****                               Rules and Regulations.**  Tenant shall comply fully with the rules andregulations of the Building, the Property and the Park that are attached heretoas Exhibit C, and made a part hereof as though fully set out herein.Tenant shall further be responsible for the compliance with such rules andregulations by the employees, servants, agents, contractors, visitors andinvitees of Tenant. Landlord reserves the right to amend or rescind any of therules and regulations and to make such other and further rules and regulationsas in its reasonable judgment shall from time to time be prudent in theoperation and management of the Premises, the Property and/or the Park, whichrules and regulations shall be binding upon Tenant upon notice to Tenant ofsame provided that Landlord agrees to give advance notice to Tenant of anyamendment to the rules and regulations and to consider Tenant’s commentsthereto, if any.

 

**15.****                               Inspection.** Landlord and its officers, agents and representatives shall have theright to enter into and upon any and all parts of the Premises at allreasonable hours (or, if any emergency, at any hour) for all reasonablepurposes, 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 orreduction of Rent by reason thereof, nor shall such be deemed to be an actualor constructive eviction.  Unless thereis an emergency, Landlord shall give prior notice to Tenant and shall allow arepresentative to accompany Landlord provided such representative does notinterfere with such entry.

 

**16.****                               Condemnation.**

 

(a)                                  Ifall of the Premises shall be taken by any public or quasi-public authorityunder the power of condemnation, eminent domain or expropriation, or in theevent of conveyance of all of the Premises in lieu thereof, this Lease shallterminate as of the day possession shall be taken by such authority.  If ten percent (10%) or less of the Premisesshall be so taken or conveyed, this Lease shall terminate only in respect ofthe part so taken or conveyed as of the day possession shall be taken by suchauthority.  If ten percent (10%) or moreof the Premises or if a material portion of the Property shall be so taken orconveyed, this Lease shall terminate only in respect of the part of thePremises, so taken or conveyed as of the day possession shall be taken by suchauthority, but Landlord (in either event) or Tenant (only if 10% or more of thePremises are taken) shall have the right to terminate this Lease upon noticegiven to the other party within 30 days after such taking of possession.

 

(b)                                 Ifthis Lease shall continue in effect as to any portion of the Premises not sotaken or conveyed, the Basic Rent and the RA of the Premises shall be computedon the basis of the remainder of the Premises as of the day possession shall betaken.  In the event of any such takingor conveyance there shall be a pro rata reduction in Rent based on thepercentage of the RA of Premises taken bears to the RA of the Premises prior tosuch taking.  If this Lease shallcontinue in effect, Landlord

 

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shall make all necessaryalterations so as to constitute the remainder of the Premises a completetenantable unit.  Landlord shall do soat its expense, but shall be obligated only to the extent of the net award orother compensation (after deducting all expenses in connection with obtainingsame) available to Landlord for the improvements taken or conveyed (excludingany award or other compensation for land). Within thirty (30) days of Landlord’s receipt of the net award or othercompensation, Landlord shall advise Tenant whether such funds are sufficient orconstitute the remainder of the Premises a complete tenantable unit.  If such funds are not sufficient and ifLandlord elects therefore not to proceed, or if for any other reason Landlorddoes not make such alterations to constitute the remainder of the Premises atenantable unit within one hundred eighty (180) days after the Landlord’sreceipt of the net award, Tenant shall have the right upon not less than twenty(20) days notice to terminate this Lease, provided that if Landlordsubstantially completes such alterations prior to the effective date of suchtermination notice from Tenant, such notice shall be deemed voided and thisLease shall continue in force and effect.

 

(c)                                  Allawards and compensation for any taking or conveyance, whether for the whole ora part of the Premises, the Property or any other portion of the Park shall beproperty of Landlord, and Tenant hereby assigns to Landlord all of Tenant’sright, title and interest in and to any and all such awards andcompensation.  Tenant shall be entitledto claim in the condemnation proceeding such award or compensation as may beallowed for Tenant’s personal property and for loss of business, and the costof Tenant’s relocation, but only if such award or compensation shall be made bythe condemning authority in addition to, and shall not result in a reductionof, the award or compensation made by it to Landlord.

 

**17.****                               Fire or Other Casualty.**  If the Premises or the Building shall bedestroyed or materially damaged and Landlord is unable to restore the Premisesor 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 terminateas of the date of the casualty. If neither party terminates this Lease,Landlord shall proceed with reasonable diligence and at its sole cost andexpense 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 duewholly or in part to an act or omission of Tenant or Tenant’s agents,employees, invitees or contractors, Tenant shall pay to Landlord any deductibleunder Landlord’s insurance policies. Notwithstanding the foregoing, if anyHolder requires that the insurance proceeds be used to retire a debt, or if anyLessor should terminate a Master Lease as a result of any such casualty, thenLandlord may elect not to rebuild and this Lease shall terminate upon deliveryto Tenant of a notice to that effect. Landlord’s obligation to rebuild andrepair under this Paragraph 17 shall in all events be limited torestoring the Premises to substantially the condition same were in immediatelypreceding the casualty, excluding all signs, fixtures, equipment or furnitureof Tenant and any alterations, additions or improvements to the Premises madeby Tenant, whether prior to or after the Commencement Date. Tenant agrees thatpromptly after completion of such work by Landlord, Tenant shall proceed withreasonable diligence and at its sole cost and expense to rebuild, repair andrestore all

 

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signs, furniture,equipment, fixtures and other improvements which may have been placed by Tenantwithin the Premises. Provided that the casualty did not occur by reason of anyact or omission of Tenant or Tenant’s agents, employees, invitees orcontractors, Landlord shall allow Tenant a diminution of Basic Rental duringthe time the Premises are unfit for occupancy, which diminution shall be basedupon the proportion of square feet which are unfit for occupancy to the totalsquare feet in the Premises. Except as hereinafter provided, any insurancewhich may be carried by Landlord or Tenant against loss or damage to theBuilding or to the Premises shall be for the sole benefit of the party carryingsuch insurance and under its sole control. Tenant shall be responsible forobtaining fire and extended coverage insurance for full replacement cost uponall improvements and fixtures installed in the Premises at Tenant’s expense, ifany, and the contents of the Premises.

 

**18.****                               Holding Over.** Should Tenant, or any of its successors in interest, hold over thePremises, or any part thereof, after the expiration of the Lease Term, unlessotherwise agreed in writing by Landlord, such holding over shall constitute andbe construed as a tenancy at will only, at a daily rental equal to the dailyRent 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’smonth-to-month tenancy or charge Hold Over rent for the first three (3) monthsafter the expiration of the Lease Term. The inclusion of the precedingsentences 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 leviedor assessed against all personal property, furniture or fixtures owned byTenant in the Premises.  If any suchtaxes for which Tenant is liable are levied or assessed against Landlord orLandlord’s property and if Landlord pays same or if the assessed value ofLandlord’s property is increased by inclusion of personal property, furnitureor fixtures placed by Tenant in the Premises, and Landlord pays the taxes basedon such increase, Tenant shall pay to Landlord upon demand that part of suchtaxes for which Tenant is primarily liable hereunder.

 

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

 

(a)                                  Tenantshall fail to pay when due any Adjusted Rental or other sums payable by Tenanthereunder and such failures continues for a period of ten (10) days afterwritten notice to Tenant by Landlord (or under any other lease now or hereafterexecuted by Tenant in connection with space in the Property).

 

(b)                                 Tenantshall fail to comply with or observe any other provision of this Lease (or anyother lease now or hereafter executed by Tenant in connection with space in thePark), and such failure continues for fifteen (15) days after delivery toTenant of notice thereof, provided that if such failure cannot with duediligence be cured within said -twenty (20) day period, said failure shall notconstitute an event of default if Tenant commences to cure such default within10 days after its occurrence and thereafter diligently proceeds to cure suchdefault to completion.

 

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

 

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

 

(e)                                  Areceiver or trustee shall be appointed for all or substantially all of theassets of Tenant.

 

(f)                                    Tenantshall abandon or vacate any portion of the Premises. For purposes of thisLease, Tenant shall be deemed to have abandoned the Premises if Tenant fails toutilize all or substantially all of the Premises for the purpose permitted hereinfor ten (10) or more consecutive days.

 

(g)                                 Tenantshall do or permit to be done anything which creates a lien upon the Premiseswhich is not removed within 20 days after its creation.

 

(h)                                 Tenantshall fail to execute an Estoppel Certificate in the form and time periodrequested by Landlord pursuant to Paragraph 39.

 

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

 

(a)                                  Terminatethis Lease, in which event Tenant immediately shall surrender the Premises toLandlord, and if Tenant fails to do so, Landlord may, without prejudice to anyother remedy which it may have for possession or any arrearage in Renthereunder or at law or in equity, enter upon and take possession of thePremises.  To the extent permitted bylaw, 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 suchtermination, whether through inability (after a commercially reasonable effort)to relet the Premises on satisfactory terms or otherwise, including thefollowing:

 

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

 

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

 

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

 

(iv)                              anyother amount, including court costs, or costs of reletting (including leasingand refitting costs), necessary to compensate Landlord for all detrimentproximately caused by Tenant’s failure to perform Tenant’s obligations underthis Lease or which in the ordinary course of things would be likely to resulttherefrom; plus

 

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

 

(vi)                              allreasonable attorneys’ fees incurred by Landlord relating to the default andtermination of this Lease.

 

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

 

(b)                                 Enterupon and take possession of the Premises by virtue of the laws of the State ofUtah for summary proceedings for possession of real estate or such otherproceeding as may be applicable, and if Landlord so elects, relet all or anypart of the Premises on such terms as Landlord shall deem advisable (including,without limitation, such concessions and free rent as Landlord deems necessaryor desirable) and receive and retain all of the rent therefor; and Tenantagrees (i) to pay to Landlord on demand any deficiency that may arise by reasonof such reletting for the remainder of the Lease Term (or any extensionthereof, 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 byLandlord in connection with such reletting even if such rents and otherpayments are in excess of the amounts that would otherwise be payable toLandlord under this Lease. Tenant shall be liable immediately to Landlord forall costs Landlord incurs in reletting the Premises, including, withoutlimitation, brokers’ commissions, reasonable attorneys’ fees incurred inconnection with the reletting and in connection with Tenant’s defaulthereunder, expenses of repairing, altering and remodeling the Premises requiredby the reletting, and like costs. Tenant expressly acknowledges that Landlordhas no duty to relet the Premises, that Landlord may offer all or any part ofthe Premises for any period, to any tenant and for any use which Landlord mayelect, and that Landlord may offer for lease any vacant space in the ProjectBuildings prior to offering the Premises for lease.

 

(c)                                  Makesuch payments or enter upon the Premises, and perform whatever Tenant isobligated to pay or perform under the terms of this Lease; and Tenant agrees toreimburse Landlord on demand for any expenditures and expenses (together withinterest thereon at the Past Due Rate from the date paid by Landlord) which

 

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Landlord may make orincur in thus effecting compliance with Tenant’s obligations under this Lease.

 

(d)                                 Receivefrom Tenant all sums, the payment of which may have been waived or abated byLandlord or which may have been paid by Landlord pursuant to any agreement togrant 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 basisthat Tenant fully perform all obligations and covenants under the Lease for theentire Lease Term.

 

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

 

(f)                                    Nore-entry or taking possession of the Premises by Landlord shall be construed asan election on Landlord’s part to terminate this Lease, unless a written noticeof such intention be given to Tenant. Notwithstanding any such reletting orre-entry or taking possession, Landlord may at any time thereafter terminatethis Lease for a previous default. Pursuit of any remedy set forth herein shallnot 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 Rentdue to Landlord hereunder or of any damage suffered by Landlord because of theviolation of any term of this Lease. Landlord’s acceptance of any Rentfollowing 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 amountsdue by Tenant hereunder shall be deemed to be other than on account of theamounts due by Tenant hereunder, nor shall an endorsement or statement on anycheck or document accompanying any payment be deemed an accord andsatisfaction.

 

(g)                                 IfLandlord takes possession of the Premises as permitted herein, Landlord maykeep 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 anyforeclosure thereon by Landlord or repossession thereof by a lessor thereof or thirdparty having a lien thereon. Landlord also may remove from the Premises(without the necessity of obtaining a distress warrant, writ of sequestrationor other legal process) all or any portion of such furniture, fixtures,equipment and other property located thereon and store same at any premiseswithin Utah County, Utah.  In suchevent, Tenant shall pay to Landlord all costs incurred by Landlord inconnection with such removal and storage and shall indemnify and hold Landlordharmless from all loss, damage, cost, expense and liability in connection withsuch removal and storage. Landlord’s rights herein are in addition to any andall other rights which Landlord has or may hereafter have at law or in equity.

 

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(h)                                 IfLandlord must notify Tenant of any failure (monetary or non-monetary) of Tenantto comply with any provision of this Lease, that obligation to notify tenantshall terminate following the second such notice delivered to Tenant within anytwelve-month period during the Lease Term.

 

**22.****                               Landlord’s Liability.**  Landlord shall not be in default under thisLease unless and until it fails to perform an obligation hereunder withinthirty (30) days after written notice by Tenant to Landlord specifying theobligation which Landlord has not performed. However, if Landlord’s obligationreasonably requires more than thirty (30) days for its performance, Landlordshall not be in default if it commences performance within such thirty-dayperiod and uses reasonable efforts to complete same. Tenant has no right toclaim 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 theperiod of its ownership of the Property. The term “Landlord” means only theowner, for the time being, of the Property. In the event of the transfer bysuch owner of its interest in the Property, such owner shall thereupon bereleased and discharged from all covenants and obligations of Landlordthereafter accruing, but such covenants and obligations shall be binding duringthe 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 tothe interest of Landlord in the Premises, and Landlord shall not be personallyliable for any deficiency.

 

**23.****                               Surrender of Premises.**  No act or thing done by Landlord or itsagents during the Lease Term shall be deemed an acceptance of a surrender ofthe Premises, and no agreement to accept a surrender of the Premises shall bevalid 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 enforceany term, covenant or condition of this Lease on the part of Landlord orTenant, the prevailing party in such action or proceeding shall be entitled toreasonable 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 placedupon the Premises, the Building or any other portion of the Park, or anyportion thereof, caused by or resulting from any work performed, materials furnishedor obligation incurred by or at the request of Tenant, and in the case of thefiling of any such lien, Tenant will immediately pay or otherwise obtain therelease of same. If default in compliance with this Paragraph shall continuefor fifteen (15) days after delivery to Tenant of a notice thereof fromLandlord, Landlord shall have the right and privilege at Landlord’s option ofpaying the same or any portion thereof without inquiry as to the validitythereof, and any amounts so paid, including expenses and interest, shall be somuch additional rent hereunder due from Tenant to Landlord and shall be repaidto Landlord (together with interest at the Past Due Rate from the date paid byLandlord) within fifteen ( 15) days after delivery to Tenant of a request fromLandlord therefor.

 

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**26.****                               No Subrogation; Insurance.**

 

(a)                                  Eachparty hereto waives any cause of action it might have against the other partyon account of any loss or damage that is insured against under any insurancepolicy (to the extent that such loss or damage is recoverable under suchinsurance policy) that covers the Premises, the Building, Landlord’s orTenant’s fixtures, personal property, leasehold improvements or business andwhich names Landlord or Tenant, as the case may be, as a party insured.Notwithstanding the foregoing, the release in the preceding sentence shall beapplicable and in force and effect only so long as and to the extent that suchrelease does not invalidate any policy or policies of insurance now orhereafter maintained by the other party hereto. Each party hereto agrees thatit will request its insurance carrier to endorse all applicable policieswaiving the carrier’s rights of recovery under subrogation or otherwise againstthe other party and obtain such waiver of subrogation if it is obtainable at noextra cost or expense to the insured (or if there is an extra cost if the otherparty pays such extra cost).

 

(b)                                 Tenantshall maintain a policy of comprehensive general liability insurance pertainingto its use and occupancy of the Premises hereunder, with the premiums thereoffully paid in advance, issued by and binding upon a solvent insurance companyqualified to do business in the State of Utah, such insurance to name Landlordas an additional insured. Such policy shall afford minimum protection of notless than Two Million and No/100 Dollars ($2,000,000.00) combined single limitfor bodily injury, death to any one person, or property damage in any oneoccurrence with an additional Eight Million ($8,000,000.00) umbrella policy.Additionally, Tenant shall obtain and maintain (i) a contractual liabilitycoverage endorsement with “incidental contract” coverage including all oral orwritten contracts relating to the named insured’s business and (ii) All Riskinsurance in respect to Tenant’s stock in trade, fixtures, furnishings, floorcovering, equipment and all other property of Tenant in the Premises, insuring100% insurable value of such property. The adequacy of the coverage afforded bysaid liability insurance shall be subject to review by Landlord from time totime, and if Landlord is advised by Landlord’s insurance agent that a prudentbusinessman in Utah County, Utah, using the Premises for the Permitted Use,would increase the limits of said insurance, Tenant shall to that extentincrease the insurance coverage required by this Paragraph 26. Inaddition to the remedies provided in Paragraph 21 of this Lease, ifTenant fails to maintain the insurance required by this Paragraph 26,Landlord may, but is not obligated to, obtain such insurance without notice toTenant and Tenant shall pay to Landlord upon demand as additional rental thepremium cost thereof plus interest at the Past Due Rate from the date ofpayment by Landlord until repaid by Tenant.

 

(c)                                  UponTenant’s execution of this Lease and at any time from time to time thereafterwhen Landlord so requests, Tenant shall furnish a certificate of insurance andother evidence satisfactory to Landlord of the maintenance of all insurancecoverage’s required hereunder, and Tenant shall obtain a written obligation onthe part of each insurance company to notify Landlord at least thirty

 

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(30) days prior tocancellation or material change of any such insurance. All insurance requiredby this Paragraph 26 shall be primary and noncontributing with anyinsurance which may be carried by Landlord.

 

**27.****                               Brokerage.**  Tenant warrants that it has had no dealingswith any broker or agent in connection with the negotiation or execution ofthis 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 chargesclaimed by any broker or agent other than Broker who claims same by, through orunder Tenant.

 

**28.****                               Building Name.**  Landlord reserves the right at any time to give a name to theBuilding 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 orpurchaser of the Building or the Property, a certificate signed by Tenantconfirming such factual certifications and representations as to the terms andconditions of this Lease and amendments, if any, as may be deemed appropriateby Landlord or any such Holder, Lessor, or purchaser, and Tenant shall, withinfifteen (15) days following Tenant’s receipt of said proposed certificate fromLandlord, return a fully executed copy of said certificate to Landlord. In theevent Tenant fails to return a fully executed copy of such certificate toLandlord within said fifteen-day period, then Tenant conclusively shall bedeemed to have approved and confirmed all of the terms, certifications andrepresentations contained in such certificate.

 

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

 

(a)                                  AllRent and other payments required to be made by Tenant to Landlord hereundershall be payable to, and must be received by, Landlord on the date due and atthe address set forth in the Basic Lease Information or at such other addressas Landlord may specify from time to time by written notice delivered inaccordance herewith.

 

(b)                                 Anynotice, request or documents (excluding Rent and other payments) permitted orrequired to be delivered hereunder must be in writing and shall be deemeddelivered upon receipt if actually received and whether or not received whendeposited in the United States mail, postage prepaid, certified mail (with orwithout return receipt requested), addressed to Tenant and Landlord (with acopy to Landlord’s Counsel) at the respective addresses set forth in the BasicLease Information or at such other address as either of said parties havetheretofore specified by written notice delivered in accordance herewith.  To be effective, any notice sent to Landlordmust also be sent to Landlord’s Counsel.

 

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(c)                                  Ifand when included within the term “Tenant” as used in this Lease there are morethan one person, firm or corporation, all shall arrange among themselves fortheir joint execution of such notices specifying some individual at somespecific address for the receipt of notices and payments to Tenant. All partiesincluded within the term “Tenant” shall be bound by notices and payments givenin accordance with the provisions of this Paragraph the same as if each hadreceived such notice or payment.

 

**31.****                               Severability.** If any clause or provision of this Lease is illegal, invalid orunenforceable under present or future laws effective during the Lease Term,then and in that event, it is the intention of the parties hereto that theremainder of this Lease shall not be affected thereby, and it is also theintention of the parties to this Lease that in lieu of each clause or provisionof this Lease that is illegal, invalid or unenforceable, there be added as apart 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 oramended, except by instrument in writing signed by both parties hereto. Noprovision of this Lease shall be deemed to have been waived by Landlord orTenant unless such waiver be in writing signed by the party making the waiverand addressed to the other party, nor shall any custom or practice which mayevolve between the parties in the administration of the terms hereof beconstrued to waive or lessen the right of Landlord to insist upon theperformance by Tenant in strict accordance with the terms hereof. The terms andconditions contained in this Lease shall apply to, inure to the benefit of, andbe binding upon the parties hereto, and upon their respective successors ininterest and legal representatives, except as otherwise herein expresslyprovided.

 

**33.****                               Quiet Enjoyment.**  Tenant shallpeaceably and quietly hold and enjoy the Premises for the Lease Term, withouthindrance from Landlord or Landlord’s successors or assigns, subject to (i) theterms and conditions of this Lease, including the performance by Tenant of allof the terms and conditions of this Lease to be performed by Tenant, includingthe payment of rent and other amounts due hereunder, and (ii) actions andclaims 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 aninterest in the Premises to which the leasehold interests created by this Leaseis subordinate.

 

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

 

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

 

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

 

(a)                                  Todecorate and to make repairs, alterations, additions, changes or improvements,whether structural or otherwise, in and about the Premises, the Building and/orthe Park, or any part thereof, and for such purposes to enter upon thePremises, the Building or other parts of the Park and, during the continuanceof any such work, to temporarily close doors, entryways, public space andcorridors in the Premises, the Building or other parts of the Park, to storematerials in the Premises, to interrupt or temporarily suspend Buildingservices and facilities, to change the arrangement and location of entrances orpassageways, doors and doorways, corridors, elevators, stairs, toilets, orother public parts of the Building, and to change the arrangement and locationof all parking areas, sidewalks and driveways situated upon the Land orelsewhere in the Park, all without abatement of Rent or affecting any ofTenant’s obligations hereunder, so long as the Premises are reasonablyaccessible.

 

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

 

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

 

(d)                                 Totake all such reasonable measures as Landlord may deem advisable for thesecurity of the Property and its occupants, including, without limitation, theevacuation of the Building for cause, suspected cause, or for drill purposes,the temporary denial of access to the Building, and the closing of the Buildingafter Customary Business Hours and on Saturdays, Sundays and Holidays, subject,however, to Tenant’s right to admittance when the Building is closed afterCustomary Business Hours under such reasonable regulations as Landlord may prescribefrom 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 CustomaryBusiness Hours, use a pass key, or identify themselves to a security officer byregistration or otherwise and that such persons establish their right to enteror leave the Building.

 

**37.****                               Notice to Lender.**  Tenant agreesto deliver by certified mail to any Holder or Lessor a copy of any writtennotice of nonperformance given by Tenant to Landlord, specifying the allegedfailure to perform in reasonable detail, provided that prior to giving any suchnotice to Landlord, Tenant has been notified in writing of the address of suchHolder or Lessor. Tenant further agrees that if Landlord fails to cure anynonperformance within the time provided for in this Lease, then any such Holderor Lessor shall have an additional forty-five (45) days within which to curesuch nonperformance, or if same cannot be

 

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cured within that time,then such additional time as may be necessary for cure if, within suchsixty-day period, such holder or lessor has commenced performance of suchobligation and diligently pursues the same to completion, including but notlimited to commencement of foreclosure proceedings necessary to effect suchcure.

 

**38.****                               Captions.**  The captions contained in this Lease are forconvenience of reference only, and in no way limit or enlarge the terms andconditions of this Lease.

 

**39.****                               Miscellaneous.**

 

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

 

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

 

(c)                                  Thereshall be no merger of this Lease or of the leasehold estate hereby created withthe fee estate in the Premises or any part thereof by reason of the fact thatthe same person may acquire or hold, directly or indirectly, this Lease or theleasehold estate hereby created or any interest in this Lease or in suchleasehold estate as well as the fee estate in the Premises or any interest insuch fee estate.

 

(d)                                 NeitherLandlord nor Landlord’s agents or brokers have made any representations orpromises with respect to the Property, or any portion thereof, except as hereinexpressly set forth and no rights, easements or licenses are acquired by Tenantby implication or otherwise except as expressly set forth in the provisions ofthis Lease.

 

(e)                                  Thesubmission of this Lease to Tenant for examination does not constitute anoffer, reservation or option in favor of Tenant, and Tenant shall have norights with respect to this Lease or the Premises unless and until Landlordshall execute a copy of this Lease and deliver the same to Tenant.

 

(f)                                    ThisLease shall be subject to any and all easements, rights-of-way, covenants,liens, conditions, restrictions, outstanding mineral interest and royaltyinterests, 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 Officeof the County Clerk of Utah County, Utah or apparent on the Property.

 

(g)                                 Tenantshall not bring or permit to remain on the Premises any asbestos, lead, PCBs,petroleum or petroleum products, explosives, toxic materials, or substances

 

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defined as hazardouswastes, hazardous materials, or hazardous substances under any federal, state,or local law or regulation (“Hazardous Materials”). Tenant’s violation of theforegoing prohibition shall constitute a material breach and default hereunderand Tenant shall indemnify, hold harmless and defend Landlord from and againstany claims, damages, penalties, liabilities, and costs (including reasonableattorneys’ fees and court costs) caused by or arising out of (i) a violation ofthe foregoing prohibition or (ii) the presence or any release of any HazardousMaterials on, under, or about the Premises during Tenant’s occupancy or controlof the Premises. Tenant shall clean up, remove, remediate and repair any soilor ground water contamination and damage caused by the presence or release of anyHazardous Materials in, on, under, or about the Premises during Tenant’soccupancy of the Premises in conformance with the requirements of applicablelaw. Tenant shall immediately give Landlord written notice of any suspectedbreach of this Paragraph, upon learning of the presence or any release of anyHazardous Materials, and upon receiving any notices from governmental agenciespertaining to Hazardous Materials which may affect the Premises. Theobligations of Tenant hereunder shall survive the expiration or earliertermination, for any reason, of this Lease.

 

(h)                                 Tenantshall not record this Lease.

 

(i)                                     IfTenant is a corporation or association, Tenant shall deliver to Landlord uponexecution of this Lease a certified copy of a resolution of its board ofdirectors or executive committee authorizing the execution of this Lease andnaming the officers who are authorized to execute this Lease on behalf ofTenant.  Notwithstanding the precedingsentence, Tenant shall be bound by the signature of any officer of Tenantpurporting to have the necessary authority to sign this Lease, but Landlord mayelect to terminate this Lease if Landlord has not received and approved theform of such a resolution within sixty (60) days of the execution of thisLease.

 

(j)                                     Theterm “business day,” when used herein, shall mean every day that is not aSaturday, Sunday or Holiday.

 

(k)                                  Exceptas expressly provided herein, whenever this Lease calls for a consent orapproval of Landlord, or the exercise of Landlord’s judgment, the granting ordenial of such approval and the exercise of such judgment shall be within thesole discretion of Landlord and Landlord shall not, for any reason or to anyextent, be required to grant such approval or consent or exercise such judgmentin any manner regardless of the reasonableness of either the request orLandlord’s judgment.

 

(l)                                     Tenantshall have the right to use the Shared Park Facilities on a non-exclusive basistogether with Landlord and all other occupants of the Park subject to the rulesand regulations promulgated or to be promulgated by Landlord with respect tothe use of the Shared Park Facilities. Landlord reserves the right at its sole discretion to discontinue theFitness Center, the Retreat Food Court, and other

 

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amenities as part of theShared Facilities.  Landlord reservesthe right to change the availability and use of the Shared Park Facilities.

 

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

 

(n)                                 Tenantacknowledges that certain of Landlord’s employees and its agents will, inresponse to a signal by Landlord, assist Landlord in addressing an emergency inthe Park.  None of these personnel willbe held liable by Tenant for any actions taken in responding to an emergency inthe Park; further, Tenant shall indemnify and hold Landlord, its agents andemployees harmless from and against any and all claims brought by Tenant’semployees, 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)                                 Allpayments required to be made hereunder other than Basic Rent shall constituteadditional rent hereunder.  Landlordshall have the same rights and remedies with respect to the non-payment ofadditional rent as it is with respect to the non-payment of Basic Rent.

 

(p)                                 IfTenant shall default in the performance of any of Tenant’s obligations underthis Lease, Landlord, without thereby waiving such default, may (but shall notbe 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 suchdefault continues after the expiration of five (5) days from the date Landlordgives Tenant notice of the default.  Billsfor 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 orTenant’s obligations hereunder, may be sent by Landlord to Tenant immediately,and such amounts shall be due and payable in accordance with their terms. Thesubmission of this Lease to Tenant for examination does not constitute anoffer, reservation or option in favor of Tenant, and Tenant shall have norights with respect to this Lease or the Premises unless and until Landlordshall execute a copy of this Lease and deliver the same to Tenant.

 

**40.****                               Force Majeure.**  If Landlord is delayed in performing an obligation of Landlordhereunder as a result of strikes, lockouts, shortages of labor, fuel ormaterials, acts of God, legal requirements, fire or other casualty, or anyother cause beyond Landlord’s control, then performance of such obligationshall be excused for the period of such delay, and the period to perform suchobligation shall be extended by the number of days equivalent to the number ofdays of such delay. Landlord shall not be required to settle or

 

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compromise any strike,lockout or other labor disputes, the resolution thereof being within the solediscretion of Landlord.

 

**41.****                               Applicable Law.**  This Lease shall be governed in all respects by the laws of theState of Utah.  Landlord and Tenantintend 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, areexpressly limited so that in no contingency or event whatsoever shall theamount contracted for, charged or received by Landlord for the use, forbearanceor detention of money exceed the maximum amount which Landlord is legallyentitled to contract for, charge or collect under applicable state or federallaw.  If, from any circumstance whatsoever,fulfillment of any provision hereof at the time performance of such provisionshall be due shall involve transcending the limit of validity prescribed bylaw, then the obligation to be fulfilled shall be automatically reduced to thelimit of such validity, and if from any such circumstance, Landlord shall everreceive as interest or otherwise an amount in excess of the maximum that can belegally collected, then such amount which would be excessive interest shall beapplied to the reduction of the Rent; and if such amount which would beexcessive interest exceed the Rent, then such additional amount shall berefunded to Tenant.

 

**42.****                               Third Party Rights.**  Nothing herein expressed or implied isintended, or shall be construed, to confer upon or give to any person orentity, other than the parties hereto, any right or remedy under or by reasonof this Lease.

 

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

 

(a)                                  Landlordshall be responsible for any modifications to the Premises required to bringthe Premises into compliance with the Act as it reads as of the date ofcommencement hereof.

 

(b)                                 Landlordshall modify the improvements which constitute the Building (other than thePremises) and the Shared Park Facilities if required to bring the Building andthe Shared Park Facilities in compliance with the Act, as same may be modifiedfrom time to time. The cost of such modifications shall be amortized upon suchreasonable basis as Landlord may elect and shall be included in the OperatingExpenses.

 

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

 

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**44.****                               Restrictive Covenants.**  Tenant agrees that it will not occupy or use the Premises inviolation of or perform any act which violates the site plan for the Park orany of the Restrictive Covenants, as they may hereafter be amended from time totime.

 

**45.****                               Security/AccessControl.**Landlord currently provides basic access control services, which include cardaccess, security patrols and limited camera surveillance.  Landlord shall provide one access card, withoutcharge but subject to change without notice, to each employee at the beginningof the Lease Term and to each new employee when they are employed.  There will be a $15.00 charge, subject toadjustment without notice, to the Tenant for each card that needs to bereplaced or changed for any reason, and that is not returned at the end of theLease.  Landlord will provide two keysto the locks on the corridor doors entering the Premises, with additional keysto be furnished by the Landlord at Tenant’s expense.  The Landlord at Tenant’s expense shall provide any keys or locksneeded within the Premises.  Landlordand 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 haveaccess to patrol and monitor all reasonable areas, including without limitationserver rooms, boilers, chillers, telephone rooms, conduit areas, common areas,and office space.  Notwithstanding theforegoing, any security services are provided at the complete discretion of theLandlord and are not to be construed as an obligation of the Landlord under theLease, except that Landlord shall have the obligation to maintain and repairthe card access equipment as part of the Operating Expenses (defined in ExhibitE) as long as Landlord uses such card system to control access to thebuilding.  Landlord reserves the rightto change these services upon notice.  Landlordshall not be held liable for any failure to provide security services or takeother security measures for the Building or Park.

 

**46.****                               Exhibits and Attachments.**  All exhibits and attachments, riders andaddenda referred to in this Lease and the exhibits listed herein below andattached hereto are incorporated into this Lease and made a part hereof for allintents and purposes as if fully set out herein.  All capitalized terms used in such documents shall, unlessotherwise 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                |

 

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DATED as of the datefirst 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 |   |
|        |                                                      |                                         |  |  |  |  |  |  |  |  |

 

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**EXHIBITC**

 

RULES ANDREGULATIONS

 

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

 

1.                                       Smokingwill 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 outsidethe Building which are expressly designated as smoking areas.

 

2.                                       Sidewalks,doorways, vestibules, halls, stairways and other similar areas shall not beobstructed by tenants or used by any tenant for any purpose other than ingressand egress to and from that tenant’s premises and for going from one to anotherpart 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 orplaced therein. Damage resulting to any such fixtures or appliances from misuseby a tenant or such tenant’s agents, employees or invitees shall be paid bysuch tenant and Landlord shall not in any case be responsible therefor.

 

4.                                       Nosigns, advertisements or notices shall be painted or affixed on or to anywindows or doors or other exterior part of the Building (or be visible from anypublic or common area) unless they are of such color, size and style and insuch places as shall be first approved in writing by Landlord, at each tenant’ssole cost and expense, shall install all letters or numbers by or on doors insuch tenant’s premises which letters or numbers shall be in building standardgraphics.  No nails, hooks or screws shallbe driven or inserted in any part of the Building outside the premises exceptby any Building maintenance personnel nor shall any part of any Building bedefaced by tenants.  No curtains orother window treatments shall be placed between the glass and the Buildingstandard window treatments.

 

5.                                       Twokeys to the locks on the corridor doors entering each tenant’s premises shallbe furnished by Landlord free of charge, with any additional keys to befurnished by Landlord to each tenant, at such tenant’s cost.  Landlord shall provide all locks for otherdoors in each tenant’s premises, at the cost of such tenant, and no tenantshall place any additional lock or locks on any door in or to its premiseswithout Landlord’s prior written consent. All such keys shall remain the property of Landlord.  Each tenant shall give to Landlord theexplanation of the combination of all locks for safes, safe cabinets and vaultdoors, if any, in such tenant’s premises.

 

6.                                       Withrespect to work being performed by tenants in any premises with the approval ofLandlord, all tenants will refer all contractors, contractors’ representativesand installation technicians rendering any service to them to Landlord forLandlord’s supervision, approval and control before the performance of anycontractual services. This provision shall apply to all work performed in theBuilding including, but not limited to, installations of telephones, telegraphequipment, electrical devices and attachments, doors, entrances, and any andall installations of every nature affecting

 

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floors, walls, woodwork,trim, windows, ceilings, equipment and any other physical portion of theBuilding.

 

7.                                       Movementin or out of the Building of furniture or office equipment, or dispatch orreceipt by tenants of any bulky material or merchandise which requires use ofelevators or stairways, or movement through the Building entrances or lobbyshall be restricted to such hours as Landlord shall designate.  All such movements shall be under thesupervision of Landlord and in the manner agreed between the tenants andLandlord by prearrangement before performance. Such prearrangement initiated by a tenant will include Landlord’sdetermination, and be subject to Landlord’s decision and control, as to thetime, method, and routing of movement and as to limitations for safety or otherconcern which may prohibit any article, equipment or any other item from beingbrought into the Building.  Tenantsshall assume all risk as to the damage to articles moved and injury to personsor public engaged or not engaged in such movement, including equipment,property and personnel of Landlord if damaged or injured as a result of acts inconnection with carrying out this service for a tenant from time of enteringthe Property to completion of work; and Landlord shall not be liable for actsof any person engaged in, or any damage or loss to any of said property orpersons resulting from, any act in connection with such service performed for atenant.

 

8.                                       Landlordmay prescribe the weight and position of safes and other heavy equipment oritems, which shall in all cases, to distribute weight, stand on supportingdevices approved by Landlord.  Alldamages done to the Building by the installation or removal of any property ofa tenant, or done by a tenant’s property while in the Building, shall berepaired at the expense of such tenant. Each tenant shall bear all costs incurred by Landlord or such tenant indetermining the feasibility or actual installation of any such heavyequipment.  A tenant shall notify theBuilding manager when safes or other heavy equipment are to be taken in or outof the Building, and the moving shall be done under the supervision of theBuilding manager, after written permission from Landlord.  Persons employed to move such property mustbe acceptable to Landlord.

 

9.                                       Corridordoors, when not in use, shall be kept closed.

 

10.                                 Eachtenant shall cooperate with Landlord’s employees in keeping its premises neatand clean.

 

11.                                 Landlordshall be in no way responsible to the tenants, their agents, employees orinvitees for any loss of property from the premises or public areas or for anydamages to any property thereon from any cause whatsoever.

 

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

 

13.                                 Shoulda tenant require telegraphic, telephonic, annunciator or other communicationservice, Landlord will direct the electrician where and how wires are to beintroduced and placed and none shall be introduced or placed except as Landlordshall direct.  Except as

 

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provided in each tenant’slease, electric current shall not be used for heating or nonstandard powerrequirements without Landlord’s prior written permission.

 

14.                                 Tenantshall not make or permit any improper, objectionable or unpleasant noises orodors in the Building or otherwise interfere in any way with other tenants orpersons having business with them.

 

15.                                 Nothingshall be swept or thrown into the corridors, halls, elevator shafts orstairways. No birds or animals shall be brought into or kept in, on or aboutany tenant’s premises, except as may be allowed by law.

 

16.                                 Nomachinery of any kind shall be operated by any tenant in its premises withoutthe prior written consent of Landlord, nor shall any tenant use or keep in theBuilding any inflammable or explosive fluid or substance.

 

17.                                 Noportion of any tenant’s premises shall at any time be used or occupied assleeping or lodging quarters.

 

18.                                 Eachtenant and its agents, employees and invitees shall park only in those areasdesignated by Landlord for parking and shall not park on any public or privatestreets contiguous to, surrounding or in the vicinity of the Building withoutLandlord’s prior written consent.

 

19.                                 Landlordwill not be responsible for lost or stolen property, money or jewelry from anytenant’s premises or public or common areas regardless of whether such lossoccurs when the area is locked against entry or not.

 

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**EXHIBITD**

 

PARKING

 

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

 

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**EXHIBITE**

 

OPERATING EXPENSES

 

In addition to the BasicRental payable by Tenant under this Lease, Tenant shall pay additional rentdetermined as follows:

 

1.                                       TheOperating Expenses (as hereinafter defined) attributable to the Premises shallbe computed by multiplying the “Operating Expenses Per Square Foot of RA” (asdefined 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 shallincur, pay or become obligated to pay in connection with the ownership,operation, maintenance, repair, replacement and security of the Building, orany portion thereof and (ii) the Applicable Share (as hereunder defined) of allcosts, expenses and disbursements of every kind and character which Landlordshall incur, pay or become obligated to pay in connection with the ownership,operation, maintenance, repair, replacement and security of the Shared ParkFacilities in each instance, determined in accordance with generally acceptedaccounting principles consistently applied, including but not limited to thefollowing:

 

1.1                                 Wages,salaries and other benefits of all employees of Landlord and/or any managingagent who are engaged in the operation, repair, replacement, maintenance andsecurity of the Building and/or the Shared Park Facilities and any propertymanager for the Park (including without limitation, payroll, unemployment,social security and other taxes, insurance, vacation, holiday and sick pay andother fringe benefits, but excluding any profit sharing benefits) managementfees of any managing agent of the Building and/or the Shared Park Facilitiesand legal fees and expenses incurred in connection with the Building and/or theShared Park Facilities.

 

1.2                                 Allsupplies, equipment and materials used in the operation, maintenance, repair,replacement and security of all or any portion of the Building and/or theShared Park Facilities, as well as all capital improvements made in order tocomply with any statutes, rules, regulations or directives of any governmentalauthority relating to energy conservation, public safety or security or accessfor disabled individuals, in both instances as amortized (with interest on theunamortized balance at the market rate then generally available for suchimprovements) over the useful life of such improvements by Landlord for federalincome tax purposes.

 

1.3                                 Annualcost of all capital improvements made to the Building and/or the Shared ParkFacilities which although capital in nature reduce the normal operating costsof the Building and/or the Shared Park Facilities.

 

1.4                                 Costof all utilities, other than the cost of excess or individually meteredutilities supplied to tenants of the Building which is actually reimbursed toLandlord by such tenants.

 

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1.5                                 Costof all maintenance and service agreements on equipment relating to or in theBuilding and/or the Shared Park Facilities, including without limitation alarmservice, HVAC service, security service, and elevator maintenance, and windowcleaning for the Building and/or Shared Park Facilities.

 

1.6                                 Costof casualty, rental abatement and liability insurance applicable to theBuilding and/or the Shared Park Facilities and Landlord’s personal property,equipment and fixtures used in connection therewith, together with any otherinsurance deemed necessary or desirable by Landlord or any holder of a liensecured by the Property, including any deductible under any policy ofinsurance.

 

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

 

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

 

1.9                                 Anycosts incurred by reason of easements or restrictions affecting all or anyportion of the Building and/or the Shared Park Facilities.

 

“Operating Expenses”shall not include capital improvements made to the Building and/or the SharedPark Facilities, other than (A) capital improvements described in subparagraph1.3 above and (B) items which, though capital for accounting purposes, areproperly considered maintenance or repair items (such as painting of commonareas, replacement of carpet, and the like), or payments made by Tenant orother tenants of the Building, either to third parties or to Landlord, underagreements 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 isreimbursed by tenants of the Building (other than pursuant to an operatingexpense escalation provision) provided such service is not of a type beingsupplied by Landlord to Tenant under this Lease, (iii) principal and interestpayments on mortgages, (iv) refinancing costs, (v) ground rent under groundleases, (vi) depreciation and amortization of buildings or equipment except asotherwise specifically provided above, (vii) interest or penalties providedTenant timely paid all of its escalations, (viii) advertising costs, (ix)brokerage leasing commissions, (x) any costs reimbursed by tenants other thanby escalations similar to an operating expense escalation, (xi) any costsreimbursed by insurance, (xii) any costs reimbursed by government authorities,(xiii) special services paid for by tenants, (xiv) legal fees for enforcingother tenants’ leases, (xv) services performed by landlord and its relatedparties at rates which are in excess of competitive rates, (xvi) artwork in theBuilding, (xvii) off-site management personnel, and (xviii) overhead.

 

2.                                       Forpurposes of determining, “Excess Taxes” (as such term is defined in the BasicLease Information), “Taxes Per Square Foot of RA” shall mean Taxes,(hereinafter defined) attributable to the Applicable Leased Buildings(hereafter defined) divided by the

 

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aggregate rentable squarefeet of office space in the Applicable Leased Buildings.  As used herein, the term “Taxes” shall meanall taxes and assessments and government charges whether federal, state, countyor municipal, and whether they be by taxing districts or authorities presentlytaxing or by others, subsequently created or otherwise, and any other taxes orassessments 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 bythis Paragraph 2, together with all costs and expenses of contesting thevalidity or amount of such taxes and assessments.  If at any time during the Lease Term, the present method oftaxation shall be changed so that in lieu of or in addition to the whole or anypart of the Taxes, there shall be levied, assessed or imposed on Landlord acapital levy or other tax directly on the rents received therefrom and/or afranchise tax, assessment, levy or charge measured by or based, in whole or inpart, upon such rents of the Applicable Leased Buildings, then all such taxes,assessments, levies or charges, or the part thereof so measured or based, shallbe deemed to be included within the term “Taxes” for purposes of this ExhibitE.

 

3.                                       Duringthe Lease Term, Tenant shall pay as a component of the Adjusted Rental, theExcess Operating Expenses and the Excess Taxes (both as defined in the BasicLease Information).  With respect toeach calendar year during the Lease Term commencing with calendar year 2005,Landlord shall have the option of making a good faith estimate of the ExcessOperating Expenses and the Excess Taxes for the calendar year in question orthe upcoming calendar year as the case may be, and upon thirty (30) dayswritten notice to Tenant may require that Tenant pay said estimated ExcessOperating Expenses and estimated Excess Taxes in equal monthly installments inthe manner and at the times set forth in Paragraph 3 of the Lease forpayment of the Adjusted Rental. Alternatively, Landlord may require payment of the Excess OperatingExpenses and the Excess Taxes in a lump sum at the time when the OperatingExpenses and Taxes are available for each calendar year.  For purposes of calculating the ExcessOperating Expenses and the Excess Taxes payable with respect to any fractionalcalendar year during the Lease Term, Landlord may either (i) estimate OperatingExpenses 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 andreduce the same to an amount bearing the same proportion to the full amount ofestimated Operating Expenses and estimated Taxes for such year as the number ofdays in such fractional calendar year bears to the total number of days in suchfull calendar year.  All payments ofExcess Operating Expenses and Excess Taxes based upon an estimate of Landlordshall be subject to adjustment as more particularly described in Paragraph 4 ofthis Exhibit E.  Notwithstandingthe commencement of the term of this Lease on the Commencement Date andnotwithstanding anything to the contrary in this Lease including this ExhibitE, Tenant’s obligation to pay Excess Operating Expenses and Excess Taxesshall commence on January 1, 2005. Furthermore, Tenant’s obligation to pay Excess Operating Expenses islimited to 3% annual increases, excluding increases in insurance premiums andutility costs.

 

4.                                       Onor before May 1 of each calendar year during the Lease Term (or of the calendaryear immediately succeeding the termination of this Lease), or as soonthereafter as practical, Landlord shall furnish to Tenant a statement of theOperating Expenses, the Operating

 

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Expenses Per Square Footof RA and the RA of the Premises for the previous calendar year.  If Tenant’s total payments of ExcessOperating Expenses for any calendar year (or portion thereof) during the LeaseTerm (based on Landlord’s estimate of the Excess Operating Expenses) exceed theExcess Operating Expenses actually due during such year (or portion thereof),then Landlord, at Landlord’s sole option, either shall credit to Tenant’saccount or shall refund to Tenant any overpayment.  Likewise, Tenant shall pay to Landlord within thirty (30) daysafter written demand, the amount by which the Excess Operating Expenses for anycalendar year (or portion thereof) during the Lease Term, exceed the ExcessOperating Expenses payments received by Landlord from Tenant for such calendarYear (or portion thereof).

 

5.                                       Ifthe Building shall be less than ninety-five percent (95%) occupied during anycalendar year, Operating Expenses for such calendar year shall be increased toequal Operating Expenses for the Building as if it were 95% occupied during suchcalendar year.

 

6.                                       Tenant’sobligation to pay additional rent pursuant to this Exhibit E shallsurvive any termination or expiration of this Lease, and shall continue andshall cover all periods up to the termination date of this Lease as calculatedpursuant to the Basic Lease Information. If Landlord terminates this Lease without specifically waiving inwriting Landlord’s right to seek damages against Tenant, Tenant’s obligationsto pay any and all additional rent pursuant to this Lease shall not terminateas a result thereof.

 

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

 

8.                                       Definitions.  As used herein,

 

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

 

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

 

8.2                                 theterm “Applicable Share” shall mean the percentage obtained by dividing the RAof the Building by the RA of all Park Buildings owned by Landlord, providedthat if the RA of the Building or any other Park Building owned by Landlordshall increase or decrease or if any additional Park Buildings owned byLandlord are constructed in the Park such percentage shall be appropriatelymodified.  (At the time of Leaseexecution, Applicable Share is 9.31%, calculated by dividing the RA of theBuilding which is 67,955 square feet by the RA of all Park Buildings owned byLandlord which is 729,907 square feet.)

 

8.3                                 theterm “Operating Expenses Per Square Foot of RA” shall mean Operating Expensesduring the calendar year in question divided by the aggregate RA of theApplicable Leased Buildings (which at the time of Lease execution is 67,955square feet).

 

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**EXHIBITF**

 

BANKRUPTCY

 

If a petition is filedby, or an order for relief is entered against, Tenant under Chapter 7 of theUnited States Bankruptcy Code (the “Code”) and the trustee of Tenant elects toassume 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 subparagraph1.1 are satisfied.  If the trustee failsto 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 beenrejected.  Landlord shall thenimmediately be entitled to possession of the Premises without furtherobligation to Tenant or the trustee, and this Lease will be cancelled.  Landlord’s right to be compensated fordamages in the bankruptcy proceeding, however, shall survive.

 

1.                                       IfTenant files a petition for reorganization under Chapters 11 or 13 of the Codeor a proceeding that is filed by or against Tenant under any other chapter ofthe Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee orTenant 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 trusteeor the debtor-in-possession will be deemed to have rejected this Lease.  To be effective, an election to assume thisLease must be in writing and addressed to Landlord and, in Landlord’s businessjudgment, all of the following conditions, which Landlord and Tenantacknowledge to be commercially reasonable, must have been satisfied:

 

1.1                                 Thetrustee or the debtor-in-possession has cured or has provided to Landlordadequate assurance, as defined in this subparagraph 1.1, that:

 

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

 

1.1.2                        Thetrustee or the debtor-in-possession has compensated Landlord, or has providedto Landlord adequate assurance, as defined in this subparagraph 1.1, thatwithin ten (10) days from the date of the assumption Landlord will becompensated for any pecuniary loss Landlord incurred arising from the defaultof Tenant, the trustee, or the debtor-in-possession as recited in Landlord’swritten statement of pecuniary loss sent to the trustee or thedebtor-in-possession.

 

1.1.3                        Thetrustee or the debtor-in-possession has provided Landlord with adequateassurance of the future performance of each of Tenant’s obligations under thisLease; provided, however, that: (i) the trustee or debtor-in-possessionwill also deposit with Landlord, as security for the timely payment of rental,an amount equal to three months’ Adjusted Rental and other monetary chargesaccruing under this Lease; (ii) from and after the date of the assumption ofthis Lease, the trustee or debtor-in-possession 

 

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

 

1.1.4                        Landlordhas determined that the assumption of this Lease will not breach any provisionin any other lease, mortgage, financing agreement, or other agreement by whichLandlord is bound relating to the Premises.

 

1.1.5                        Forpurposes of this subparagraph 1.1, “adequate assurance” means that(i) Landlord will determine that the trustee or the debtor-in-possessionhas, and will continue to have, sufficient unencumbered assets after thepayment of all secured obligations and administrative expenses to assureLandlord that the trustee or the debtor-in-possession will have sufficientfunds to fulfill Tenant’s obligations under this Lease, and (ii) an order willhave been entered segregating sufficient cash payable to Landlord and/or avalid and perfected first lien and security interest will have been granted inproperty of Tenant, trustee, or debtor-in-possession that is acceptable forvalue and kind to Landlord, to secure to Landlord the obligation of the trusteeor debtor-in-possession to cure the monetary or nonmonetary defaults under thisLease within the time periods set forth above.

 

2.                                       Inthe event that this Lease is assumed by a trustee appointed for Tenant or byTenant as debtor-in-possession under the provisions of subparagraph 1 and,thereafter, Tenant is either adjudicated a bankrupt or files a subsequentpetition for rearrangement under Chapter 11 of the Code, then Landlord mayterminate, at its option, this Lease and all Tenant’s rights under it, bygiving written notice of Landlord’s election to terminate.

 

3.                                       Ifthe trustee or the debtor-in-possession has assumed this Lease, under the termsof subparagraph 1, to assign or to elect to assign Tenant’s interest under thisLease or the estate created by that interest to any other person, that interestor estate may be assigned only if Landlord acknowledges in writing that theintended assignee has provided adequate assurance, as defined in thissubparagraph 3, of future performance of all of the terms, covenants, andconditions of this Lease to be performed by Tenant.  For the purposes of this subparagraph 3, adequate assurance offuture performance means that Landlord has ascertained that each of thefollowing conditions has been satisfied: (i) the assignee has submitted a current financial statement, audited bya certified public accountant, that shows a net worth and working capital inamounts determined by Landlord to be sufficient to assure the futureperformance by the assignee of Tenant’s obligation under this Lease; (ii) ifrequested by Landlord, the assignee will obtain guarantees, in form andsubstance satisfactory to Landlord, from one or more persons who satisfyLandlord’s standards of credit worthiness: and (iii) Landlord has obtained allconsents or waivers from any third party required under any lease, mortgage,financing arrangement, or other agreement by which Landlord is bound, to enableLandlord to permit the assignment.

 

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4.                                       When,pursuant to the Code, the trustee or the debtor-in-possession is obligated topay reasonable use and occupancy charges for the use of all or part of thePremises, the charges will not be less than the Adjusted Rental then requiredto be paid by Tenant hereunder.

 

5.                                       Exceptas otherwise permitted under this Lease, neither Tenant’s interest in thisLease 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 orentity, or otherwise by operation of law under the laws of any state havingjurisdiction of the person or property of Tenant, unless Landlord consents inwriting to this transfer.  Landlord’sacceptance of rental or any other payments from any trustee, receiver,assignee, person, or other entity will not be deemed to have, the need toobtain Landlord’s consent or Landlord’s right to terminate this Lease for anytransfer of Tenant’s interest under this Lease without that consent.

 

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**EXHIBITH**

 

ALTERATIONS BYTENANT

 

1.                                       Landlordshall have no responsibility to perform any work or alterations for Tenant(“Alterations”).  To the extent thatTenant leases the Expansion Space or the Unoccupied Space and performsalterations in such spaces, the parties hereto have agreed that Tenant shall soperform all such Alterations to the extent and in .the manner as hereinafterprovided in this Exhibit H and Landlord shall reimburse Tenant for partof the costs and expenses incurred in connection therewith as providedbelow.  Tenant shall promptly submit toLandlord, for the review and consent of Landlord’s architect and Landlord, suchconsent of Landlord not to be unreasonably withheld (except as to any proposedstructural Alterations of the Premises or Alterations which affect a buildingsystem as to which Landlord need not be reasonable), architectural, electricaland mechanical working drawings and specifications showing the proposedAlterations of the Premises (the “Work Area”) as desired by Tenant and inkeeping with the design, construction and equipment of the Building and inconformity with its standards, all in such form and in such detail as may bereasonably required by Landlord. The working drawings and all specifications tobe submitted to the Landlord as aforesaid shall be prepared by a competentarchitect licensed in the State of Utah (in consultation with a competentengineer licensed in. the State of Utah where required by the nature of theAlteration), reasonably satisfactory to the Landlord, who shall be engaged bythe Tenant and who, at the Tenant’s expense, shall furnish all architecturaland engineering services necessary for the preparation of said working drawingsand specifications and in connection with securing the aforesaid consentthereof by Landlord and with the securing by the Tenant of such consents as, byreason of the nature of the Alterations shown on said working drawings andspecifications, may be required from any governmental or quasi- governmentalauthorities.

 

2.                                       IfLandlord shall not consent to any working drawing or specification as initiallysubmitted by Tenant, Landlord shall notify Tenant thereof and of theparticulars of such revisions therein as are reasonably required by Landlordfor the purpose of obtaining its said consent provided that Tenant hassatisfied the conditions contained in this Exhibit H. Landlord agrees torespond to Tenant’s request for Landlord’s consent within five (5) businessdays after Landlord’s actual receipt of the initial working drawings andspecifications.  As promptly asreasonably possible after being so informed by Landlord, Tenant shall submit toLandlord for Landlord’s consent, a revised working drawing or specification, asthe case may be, to be reviewed and consented to by Landlord within five (5)business days of receipt thereof (said working drawings and specifications, asso consented to, the “Working Drawings”). If Landlord and Tenant have not agreed on Working Drawings within 30days after the date hereof, Tenant may within three days after the expiration ofsuch 30 day period terminate this Lease by written notice to Landlord in whichevent Landlord, within thirty (30) days of such termination, shall refund toTenant the first monthly installment of rent paid pursuant to Paragraph 3 lessLandlord’s reasonable out of pocket expenses incurred in reviewing Tenant’splans, specifications and drawings.  Anysuch consent by Landlord, deemed or otherwise, shall not be construed to be arepresentation or warranty that the same is properly designed to

 

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perform the function forwhich it is intended or complies with any applicable Legal Requirement, butonly that the Alteration is compatible with the design and structure of theBuilding.  Tenant shall reimburse to Landlordany reasonable out-of-pocket expenses reasonably incurred by Landlord inconnection with the review of Tenant’s Working Drawings.

 

3.                                       SuchWorking Drawings, Landlord’s review and consent thereto, the Alterations andthe performance thereof shall all be in accordance with, and subject to all ofthe 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 theWorking Drawings, Tenant shall proceed with due dispatch to cause theAlterations as shown on such Working Drawings to be completed at Tenant’s solecost and expense.

 

4.                                       Landlordagrees that if (i) there is then no uncured default under the Lease, (ii)Landlord receives evidence reasonably satisfactory to Landlord (as provided inParagraph 5 below) of the completion of such work in a manner reasonablysatisfactory to Landlord, and (iii) Landlord receives from Tenant evidence(as provided in Paragraph 5 below) of the payment of such work performed byTenant, then Landlord shall reimburse to Tenant the lesser of (a) the paymentof the actual cost of such work or (b) $6 per rentable square foot multipliedby the RA of the Expansion Space or the Unoccupied Space, as applicable.Notwithstanding the foregoing, Tenant may request draws for such reimbursementno more often than once a month, in lieu of a lump sum reimbursement uponcompletion of the Alterations.  Suchpartial reimbursement requests shall only be with respect to work for whichTenant has not theretofore been paid by Landlord.  Each request shall be accompanied by (x) a certificate executedby Tenant’s architect stating that the work for which payment is requested hasbeen completed in a good and workmanlike manner and in accordance with theWorking Drawings and all Legal Requirements and identifying the work for whichreimbursement is requested, and (y) evidence reasonably satisfactory toLandlord from Tenant’s general contractor and contractors that all contractors,consultants, subcontractors and materialmen have waived and released any lientheretofore filed by it against the Premises or the Building (or if there aremechanics liens provided that Tenant shall have bonded such liens to thereasonable satisfaction of Landlord) and, further, have waived and releasedtheir right to file any such lien with respect to the portion of the work forwhich reimbursement was previously made by Landlord.  Within thirty (30) days after receipt of such partialreimbursement request, and provided that Tenant is not then in default underthis Lease, Landlord shall reimburse to Tenant the amount set forth in theapproved requisition, less ten percent (10%) of the amount of such request forretainage, and except to the extent that Landlord asserts that the Tenant’sapproval of any invoice as due and owing is not true or is in excess of thelimitation on the aggregate reimbursement referred to above.

 

5.                                       Withinone hundred twenty (120) days after substantial completion of the Alterations,Tenant shall deliver to Landlord (i) a temporary certificate of occupancy forthe Expansion Space or the Unoccupied Space, as applicable, (ii) copies of paidreceipts certified by an officer of Tenant, (iii) general releases and waiverof lien from all of Tenant’s general contractors, or contractors who enteredinto contracts with Tenant,

 

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involved in theperformance of any of the Alterations (or if there are mechanics liens providedthat Tenant shall have bonded such liens to the reasonable satisfaction ofLandlord), (iv) a certificate from Tenant’s architect certifying that the workhas been completed not in violation of this Lease, all applicable rules andregulations of Landlord, all Legal Requirements and in accordance with theWorking Drawings and (v) record drawings and specifications of thePremises 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 reasonablysatisfactory to Landlord and a permanent certificate of occupancy for thePremises and provided that there is then no uncured default by Tenant underthis Lease, Landlord shall reimburse to Tenant at any outstanding balance owedto the Tenant hereunder, including the retainage, if any.

 

6.                                       Inthe selection of contractors who will be performing the Alterations and in theperformance of the Alterations the terms and provisions of Paragraph 9of the Lease and all other terms and provisions of the Lease will be applicableexcept that (a) clause (ii) of the ninth sentence of Paragraph 9(b) referringto construction management shall not be applicable and (b) in the event of anyconflict between the Exhibit H and the Lease relating to the initialAlterations, the provision of this Exhibit H shall prevail.

 

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**EXHIBITI**

 

JANITORIALSPECIFICATIONS

 

Canyon ParkTechnology Center

Building H

 

 

DAILY SERVICES:

Empty all trash cans andreplace liners as needed

Vacuum all carpeted areas

Sweep and damp mop alltiled floors

Clean stains on walls asneeded

Clean and polish drinkingfountains

Spot clean carpets asreasonably needed

Clean glass doors andwindows

 

Clean and vacuum elevator

Clean lunch and breakrooms

Clean conference rooms

Clean and disinfectrestrooms, restock paper supplies and soap

 

 

WEEKLY SERVICES:

Dust window ledges, allareas below 8 feet

Dust work surfaces (whenempty)

Edge vacuum carpetedareas

Clean doors and frames

Burnish hard floors

Clean glass on interiorside light windows

Spot clean lobbyfurniture

Wash inside ofrefrigerators 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 burnishall tile floors

Perform managementwalk-through

 

 

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OTHER SERVICES:

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

Replace building lighttubes and bulbs as requested

 

 

EXTRA SERVICES (asrequested and charged directly to tenant):*

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

Chair cleaning ($7.00 perchair)

Partition cleaning ($6.00per panel)

Ceiling cleaning ($.06per square foot)

Carpet cleaning ($.09 persquare foot)

 

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*Prices subject to changewithout notice

 

 

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