\n Year 1 $17,101.33 $205,216.00
\n Year2 $17,614.37 $211,372.48
\n Year 3 $18,142.80 $217,713.65
\n Year 4 $18,687.09 $224,245.06
\n Year 5 $19,247.70 $230,972.42
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 5.2 PAYMENT OF RENT. Except as otherwise expressly provided in this
\nLease, all Rent shall be due in advance monthly installments on the first day of
\neach calendar month during the Term. Rent shall be paid to Landlord at its
\naddress recited in Section 26.7, or to such other person or at such other
\naddress as Landlord may from time to time designate in writing. Rent shall be
\npaid without notice, demand, abatement, deduction or offset in legal tender of
\nthe United States of America. If the Term commences or ends on other than the
\nfirst or the last day of a calendar month, the Rent for the partial month shall
\nbe prorated on the basis of the number of days during~ such month for which the
\nTerm was in effect<\/p>\n
5.3 DELINQUENT PAYMENTS AND HANDLING CHARGE. All Rent, if not paid
\nwithin five (5) days after the date due, shall bear interest from and after the
\nfifth day after being due until paid and all other payments required of Tenant
\nhereunder shall bear interest from the date due until the date paid at the rate
\nof interest specified in Section 26.13. In addition to interest, if any such
\nRent or other payment is not received within ten (10) days from the date it is
\ndue, Tenant shall pay to Landlord a late charge equal to five (5%) percent of
\nthe amount of such Rent or other payment to reimburse Landlord for its cost and
\ninconvenience incurred as a consequence of Tenant’s delinquency. In no event,
\nhowever, shall the charges permitted under this Section 5.3 or elsewhere in this
\nLease, to the extent the same are considered to be interest under applicable
\nlaw, exceed the maximum rate of interest allowable under applicable law.<\/p>\n
5.4 SECURITY DEPOSIT. On the date of this Lease, Tenant shall deposit
\nwith Landlord the Security Deposit as security for the faithful performance by
\nTenant under this Lease. The Security Deposit shall be returned (without
\ninterest) to Tenant (or, at Landlord’s option, to the last permitted assignee of
\nTenant’s interest under this Lease) after the expiration of the Term, or sooner
\ntermination of this Lease and delivery of possession of the Premises to Landlord
\nin accordance with Article XMV if, at such time, Tenant is not in default under
\nthis Lease. If Landlord’s interest in this Lease is conveyed, transferred or
\nassigned, Landlord shall transfer or credit the Security Deposit to Landlord’s
\nsuccessor in interest, and Landlord shall be released from any liability for the
\nreturn of the Security Deposit. Landlord may intermingle the Security Deposit
\nwith Landlord’s own funds, and shall not be deemed to be a trustee of the
\nSecurity Deposit. If Tenant fails to timely pay or perform any obligation under
\nthis Lease, Landlord may, prior to, concurrently with or subsequent to
\nexercising any other right or remedy, use, apply or retain all or any part of
\nthe Security Deposit for the payment of any monetary obligation due under this
\nLease, or to compensate Landlord for any other expense, loss or damage which
\nLandlord may incur by reason of Tenant’s failure, including any damage or
\ndeficiency in the reletting of the Premises. If all or any portion of the
\nSecurity Deposit is so used, applied or retained, Tenant shall immediately
\ndeposit with Landlord cash in an amount sufficient to restore the Security
\nDeposit to the original amount. Landlord may withhold the Security Deposit after
\nthe expiration of the Term or sooner termination of this Lease Until Tenant has
\npaid in full all amounts payable by Tenant under this Lease. The Security
\nDeposit is not a limitation on Landlord’s damages or other rights under this
\nLease, a payment of liquidated damages or prepaid Rent, and shall not be applied
\nby Tenant to the Rent for the last (or any) month of the Term, or to any other
\namount due under this Lease. If this Lease is terminated due to any default of
\nTenant, any portion of the Security Deposit remaining at the time of such
\nterminations shall immediately inure to the benefit of Landlord ac partial
\ncompensation for the costs and expenses incurred by Landlord in connection with
\nthis Lease.<\/p>\n
ARTICLE VI: CONSTRUCTION OF IMPROVEMENTS.<\/p>\n
6.1 GENERAL. Subject to events of Force Majeure, Landlord shall install,
\nfurnish, perform, and apply, at its expense, the Landlord’s Work as specified in
\nthe Work Letter. Performance of the Landlord’s Work shall constitute Landlord’s
\nsole construction obligation to Tenant under this Lease.<\/p>\n
6.2 ACCESS BY TENANT PRIOR TO COMMENCEMENT DATE. Provided that Tenant
\nobtains and delivers to Landlord the certificates of policies of insurance
\ncalled for in Section 17.1, Landlord, in its sole discretion, may permit Tenant
\nand its employees, agents, contractors and suppliers to enter the Premises
\nbefore the Commencement Date (and such entry alone shall not constitute Tenant’s
\ntaking possession of the Premises for the purpose of Section 6.3), to prepare
\nthe Premises for Tenant’s occupancy. Tenant and each other person or firm who or
\nwhich enters the Premises before the Commencement Date shall conduct itself so
\nas to not interfere with Landlord or other occupants of the Complex. Landlord
\nmay withdraw any permission granted under this Section 6.2 upon twenty-four (24)
\nhours’ notice to Tenant if Landlord, in its sole discretion, determines that any
\nsuch interference has been or may be caused. Any prior entry shall be under all
\nthe terms of this Lease (other than the obligation to pay Base Rent or
\nAdditional Rent) and at Tenant’s sole risk. Landlord shall not be liable in any
\nway for personal injury, death or property damage (including damage to any
\npersonal property which Tenant may bring into, or any work which Tenant may
\nperform in, the Premises) which may occur in or about the Complex by Tenant or
\nsuch other person or firm as a result of any prior entry.<\/p>\n
3<\/p>\n
6.3 COMMENCEMENT DATE: ADJUSTMENTS TO COMMENCEMENT DATE. For purposes of
\nthis Lease, the “COMMENCEMENT DATE” shall mean the earliest of (a) the date on
\nwhich Landlord substantially completes the Landlord’s Work and tenders
\npossession of the Premises to Tenant, (b) the date on which Landlord would have
\nsubstantially completed the Landlord’s Work and tendered possession of the
\nPremises to Tenant but for (i) the delay or failure of Tenant to furnish
\ninformation or other matters required in the Work Letter, (ii) Tenant’s request
\nfor changes in the plans or non-Building Standard items, or (iii) any other
\naction or inaction of Tenant, or any person or firm employed or retained by
\nTenant, or (c) the date on which Tenant takes possession of the Premises. If by
\nthe scheduled Commencement Date specified in Section 3, the Landlord’s Work has
\nnot been substantially completed, and such failure to substantially complete
\nrenders the Premises unsuitable for the commencement of Tenant’s business on the
\nPremises as reasonably determined by Landlord and Tenant, then the Commencement
\nDate (and the commencement of payment of Base Rent and Additional Rent) shall be
\npostponed until the Landlord’s Work is substantially completed as reasonably
\ndetermined by Landlord and Tenant or until possession of the Premises is
\ntendered to Tenant, as the case may be. Such postponement shall extend the
\nscheduled expiration of the Term for a number of days equal to the postponement.
\nThe postponement of the payment of Base Rent and Additional Rent under this
\nSection 6.3 shall be Tenant’s exclusive remedy for Landlord’s delay in
\ncompleting the Landlord’s Work or tendering possession of the Premises to
\nTenant.<\/p>\n
ARTICLE VII: UTILITIES AND SERVICE TO BE FURNISHED BY LANDLORD<\/p>\n
7.1 UTILITIES. Tenant shall be solely responsible for, and pay when due,
\nall charges for all utilities supplied to or used in the Premises other than
\nwater, including, but not limited to, gas, heat, light, power, telephone, and
\nother utilities or services used by or supplied to Tenant or to the Premises,
\ntogether with any taxes thereon, during the term of this Lease.<\/p>\n
7.2 SERVICES PROVIDED BY LANDLORD. Subject to applicable Legal
\nRequirements, the provisions of this Lease, and Tenant’s performance of its
\nobligations hereunder, Landlord shall use all reasonable efforts to furnish
\nwater at those points of supply common to the entire Premises for lavatory and
\ndrinking purposes only. If water service or other services provided by Landlord
\npursuant to other provisions of this Lease are interrupted, Landlord shall use
\nreasonable diligence to promptly restore the same. However, neither the
\ninterruption nor cessation of such services, nor the failure of Landlord to
\nrestore same, shall render Landlord liable for damages to person or property,
\nexcept in cases of gross negligence by Landlord, or be construed as an eviction
\nof Tenant, or work an abatement of Rent or relive Tenant from fulfilling any of
\nits other obligations hereunder. If not previously installed, Landlord may cause
\na water meter to be installed in the Premises in order to measure the amount of
\nwater consumed for any such use.<\/p>\n
7.3 KEYS. Landlord shall furnish Tenant, at Landlord’s expense, with two
\nkeys, and at Tenant’s expense with such additional keys as Tenant may request,
\nto unlock each exterior door entering the Premises. Tenant may, at Tenant’s
\nexpense and subject to the provisions of this Section 7.3 and Article XI,
\ninstall a card-key access system. Landlord shall, however, be entitled at all
\ntimes to possession of a duplicate of all keys and\/or access cards to all
\nexterior doors to the Premises. All keys and\/or access cards referred to in this
\nSection 7.3 shall constitute the property of the Landlord. Upon the expiration
\nor termination of the Term, Tenant shall surrender to Landlord all keys and\/or
\naccess cards to all exterior and interior doors to the Premises and shall
\ndeliver to Landlord the combination to all locks on all safes, cabinets, and
\nvaults which will remain in the Premises. Landlord shall be entitled to install,
\noperate and maintain security systems on or about the exterior of the Premises
\nand the Complex which monitor, by closed circuit television or otherwise, all
\npersons leaving or entering the Complex and the Premises.<\/p>\n
7.4 TENANT IDENTITY. Subject to the provisions of Article XI and this
\n7.4 and subject to Tenant’s complying, at Tenant’s expense with all applicable
\nLegal Requirements, Tenant shall have the right to install, at Tenant’s expense,
\na monument sign advertising Tenant’s location in the Complex at a location in
\nthe Common Areas of the Complex reasonably acceptable to Landlord. Tenant shall
\nnot place or suffer to be placed on any exterior door, wall or window of the
\nPremises, on any part of the inside of the Premises which is visible from the
\noutside of the Premises, or elsewhere on the Complex, any sign decoration,
\nlettering, attachment, advertising matter or other thing of any kind, without
\nfirst obtaining Landlord’s written approval. Landlord may, at Tenant’s cost, and
\nwithout notice or liability to Tenant, enter the Premises and remove any item
\nerected in violation of this Section. Landlord may establish rules and
\nregulations governing the size, type and design of all such items and Tenant
\nshall abide by such rules and regulations. All approved signs or letterings on
\ndoors shall be printed, painted and affixed at the sole cost of Tenant by a
\nperson approved by Landlord, and shall comply with all Legal Requirements. At
\nTenant’s sole cost, Tenant shall maintain all permitted signs and shall, on the
\nexpiration of the Term or sooner termination of this Lease, remove all such
\npermitted signs and repair any damage caused by such removal.<\/p>\n
7.5 OPERATING HOURS. Subject to such rules and regulations regarding the
\nuse of the Common Areas as Landlord may from time to time adopt, the Complex
\nshall be open to the public during the Building Operating Hours and the Premises
\nshall be open to Tenant during hours other than Building Operating Hours.<\/p>\n
ARTICLE VIII: REPAIR AND MAINTENANCE<\/p>\n
8.1 BY LANDLORD. Landlord shall maintain the structural components of
\nthe Building, the roof of the Building, elevator, HVAC System and other Major
\nEquipment ~ a~ the roof of the Building a good and operable condition, and shall
\nmake such repairs and replacements as may be required to maintain the Building
\nin such condition. This Section 8.1 shall not apply to damage resulting from a
\nTaking (as to which Section XlV shall apply), or damage resulting from a
\ncasualty (as to which Section 15.1 shall apply ), or to damage for which Tenant
\nis otherwise responsible under this Lease.<\/p>\n
8.2 BY TENANT. Except as provided otherwise in Section 8.1 above,
\nTenant, at Tenant’s sole cost, shall maintain the Premises and every part of the
\nPremises (including, without limitation, all floors, walls and ceilings and
\ntheir coverings, windows, doors, and locks, furnishings, trade fixtures,
\nsignage, leasehold improvements, equipment and other personal<\/p>\n
4<\/p>\n
property from time to time situated in or on the Premises) in good order,
\ncondition and repair, and in a clean, safe, operable, attractive and sanitary
\ncondition. Tenant will not commit or allow to remain any waste or damage to any
\nportion of the Premises. Tenant shall repair or replace, subject to Landlord’s
\ndirection and supervision, any damage to the Building and\/or the Complex
\n(including the structural components and the roof of the Building) caused by
\nTenant or Tenant’s agents, contractors or invitees. If Tenant fails to make such
\nrepairs or replacements, Landlord may make the same at Tenant’s cost. Such cost
\nshall be payable to Landlord by Tenant on demand as Additional Rent. All
\ncontractors, workmen, artisans and other persons which or whom Tenant proposes
\nto retain to perform work in the Premises (or the Complex, pursuant to this
\nSection) pursuant to this Section 8.2 or Article XI shall be approved by
\nLandlord prior to the commencement of any such work.<\/p>\n
8.3 HAZARDOUS SUBSTANCES. Tenant (a) shall at all times comply with, or
\ncause to be complied with, any “Environmental Law” governing the Premises or the
\nuse thereof by Tenant or any of Tenant’s employees, agents, contractors,
\ninvitees, licensees, customers, or clients, (b) shall not use, store, generate,
\ntreat, transport, or dispose of, or permit any of Tenant’s employees, agents,
\ncontractors, invitees, licensees, customers, or clients to use, store, generate,
\ntreat, transport, or dispose of, any “Hazardous Substance” on the Premises
\nwithout first obtaining Lessor’s written approval, (c) shall promptly and
\ncompletely respond to and cleanup any release or presence of any Hazardous
\nSubstances upon the Premises in accordance with applicable laws and regulations
\nand (d) shall pay all costs incurred as a result of the environmental state,
\ncondition and quality of the Premises, including, but not limited to, the costs
\nof any Environmental Cleanup Work (hereinafter defined) and the preparation of
\nany closure or other required plans (all of the foregoing obligations of Tenant
\nunder this Section 8.3 are hereinafter collectively “Tenant’s Environmental
\nObligations”). Tenant shall indemnify, defend and hold Landlord harmless from
\nand against any and all claims, actions, damages, penalties, fines, liabilities
\nand expenses, including reasonable attorneys’ fees, which are directly or
\nindirectly, in whole or in part, caused by or arise out of Tenant’s
\nEnvironmental Obligations. Tenant shall promptly deliver to Landlord true and
\ncomplete copies of any and all notices or correspondence or request from any
\ngovernmental authority or third parties relating to the presence, release, use,
\nstorage, treatment, transportation, or disposal of Hazardous Substances, which
\nnotices, correspondence, or requests relate, in any way, to the Premises. Tenant
\nshall permit Landlord and Landlord’s agents to enter into and upon the Premises,
\nwithout notice, at all reasonable times for the purpose of inspecting the
\nPremises and verifying Tenant’s compliance with these covenants. The provisions
\nof this Section 8.3 shall survive the expiration or other termination of this
\nLease.<\/p>\n
ARTICLE IX: TAXES ON TENANT’S PROPERTY<\/p>\n
Tenant shall be liable for and shall pay, before they become delinquent,
\nall taxes and assessments levied against any personal property placed by Tenant
\nin the Premises (even if same becomes a fixture by operation of law or the
\nproperty of Landlord by operation of this Lease), including any additional
\nImpositions which may be assessed, levied, charged or imposed against Landlord
\nor the Building by reason of non-Building Standard Items in the Premises. Tenant
\nmay withhold payments of any taxes and assessments described in this Article IX
\nso long as Tenant contests its obligation to pay in accordance with applicable
\nlaw and non-payment thereof does not pose a threat of loss or seizure of the
\nBuilding or any interest of Landlord therein.<\/p>\n
ARTICLE X: TRANSFER BY TENANT.<\/p>\n
10.1 GENERAL. Without the prior written consent of Landlord, which
\nconsent shall not be unreasonably withheld, Tenant shall not effect or suffer
\nany Transfer. Any attempted Transfer without such consent shall be void. If
\nTenant desires to effect a Transfer, it shall deliver to Landlord written notice
\nthereof in advance of the date on which Tenant proposes to make the Transfer,
\ntogether with all the terms of the proposed Transfer and the identity of the
\nproposed Transferee. Landlord shall have thirty (30) days following receipt of
\nthe notice and information within which to notify Tenant in writing whether
\nLandlord elects (a) to refuse to consent to the Transfer and to terminate this
\nLease as to the space proposed to be Transferred as of the date so specified by
\nTenant, in which event Tenant will be relieved of all further obligations
\nhereunder as to such space, (b) to refuse to consent to the Transfer and to
\ncontinue this Lease in full force as to the entire Premises, or (c) to permit
\nTenant to effect the proposed Transfer. If Landlord fails to notify Tenant of
\nits election within said thirty (30) day period, Landlord shall be deemed to
\nhave elected the option specified in Section l 0.1(b). The consent by Landlord
\nto a particular Transfer shall not be deemed a consent to any other Transfer. If
\na Transfer occurs without the prior written consent of Landlord as provided
\nherein, Landlord may nevertheless collect rent from the Transferee and apply the
\nnet amount collected to the Rent payable hereunder, but such collection and
\napplication shall not constitute a waiver of the provisions hereof or a release
\nof Tenant from the further performance of its obligations hereunder. No consent
\nby Landlord to any Transfer shall relieve Tenant of any obligation to be
\nperformed by Tenant under this Lease, whether such obligation arises prior to or
\nafter such consent.<\/p>\n
10.2 CONDITIONS. The following conditions shall automatically apply to
\neach Transfer, without the necessity of same being stated or referred to in
\nLandlord’s written consent:<\/p>\n
(a) Tenant shall execute, have acknowledged and deliver to Landlord, and
\ncause the Transferee to execute, have acknowledged and deliver to Landlord, an
\ninstrument in form and substance acceptable to Landlord in which (1) the
\nTransferee adopts this Lease and agrees to perform, jointly and severally with
\nTenant, all of the obligations of Tenant hereunder, as to the space Transferred
\nto it,(2) The Transferee agrees to use and occupy the Transferred space solely
\nfor the purpose specified in Article IV and otherwise in strict accordance with
\nthis Lease, and (3) Tenant acknowledges that, notwithstanding the Transfer,
\nTenant remains directly and primarily liable for the performance of all the
\nobligations of Tenant hereunder (including, without limitation, the obligation
\nto pay all Rent), and Landlord shall be permitted to enforce this Lease against
\nTenant or the Transferee, or both, without prior demand upon or proceeding in
\nany way against any other persons; and<\/p>\n
(b) Tenant shall deliver to Landlord a counterpart of all instruments
\nrelative to the Transfer executed by all parties to such transaction (except
\nLandlord).<\/p>\n
5<\/p>\n
(c) If Tenant requests Landlord to consent to a proposed Transfer,
\nTenant shall pay to Landlord, whether or not consent is given, Landlord’s
\nreasonable attorney’s fees incurred in connection with such request.<\/p>\n
10.3 LIENS. Without in any way limiting the generality of the foregoing,
\nTenant shall not grant, place or suffer, or permit to be granted, placed or
\nsuffered, against the Complex or any portion thereof, any lien, security
\ninterest, pledge, conditional sale contract, claim, charge or encumbrance
\n(whether constitutional, statutory, contractual or otherwise) and, if any of the
\naforesaid does arise or is asserted, Tenant will, promptly upon demand by
\nLandlord and at Tenant’s expense, cause the same to be released.<\/p>\n
ARTICLE XI: ALTERATIONS<\/p>\n
Tenant shall not make (or permit to be made) any change, addition or
\nimprovement to the Premises (including, without limitation, the attachment of
\nany fixture or equipment) unless such change, addition or improvement (a) equals
\nor exceeds the Building Standard and utilizes only new and first-grade
\nmaterials, (b) is in conformity with all Legal Requirements, and is made after
\nobtaining any required permits and licenses, (c) is made with prior written
\nconsent of Landlord, (d) is made pursuant to plans and specifications approved
\nin writing in advance by Landlord and prepared by an architect approved in
\nwriting in advance by Landlord, (e) is made after Tenant has provided to
\nLandlord such indemnification, insurance, and\/or bonds requested by Landlord,
\nincluding, without limitation, a performance and completion bond in such form
\nand amount as may be satisfactory to Landlord to protect against claims and
\nliens for labor performed and materials furnished, and to insure the completion
\nof any change, addition or improvement, (f) is carried out by persons approved
\nin writing by Landlord who, if required by Landlord, deliver to Landlord before
\ncommencement of their work proof of such insurance coverage as Landlord may
\nrequire, with Landlord named as an additional insured, and (g) is done only at
\nsuch time and in such manner as Landlord may reasonably specify. All such
\nalterations, improvements and additions (including all articles attached to the
\nfloor, wall or ceiling of the Premises) shall become the property of Landlord
\nand shall, at Landlord’s election, be (1) surrendered with the Premises as part
\nthereof at the termination or expiration of the Term, without any payment,
\nreimbursement or compensation therefore, or (2) removed by Tenant, at Tenant’s
\nexpense with all damage caused by such removal repaired by Tenant. Tenant may
\nremove Tenant’s trade fixtures, office supplies, movable office furniture and
\nequipment not attached to the Building, provided such removal is made prior to
\nthe expiration of the Term, no uncured Event of Default has occurred and Tenant
\npromptly repairs all damage caused by such removal. Tenant shall indemnify,
\ndefend and hold harmless Landlord from and against all liens, claims, damages,
\nlosses, liabilities and expenses, including attorneys’ fees, which may arise out
\nof, or be connected in any way with, any such change, addition or improvement.
\nWithin ten (10) days following the imposition of any lien resulting from any
\nsuch change, addition or improvement, Tenant shall cause such lien to be
\nreleased of record by payment of money or posting of a proper bond.<\/p>\n
ARTICLE XII: PROHIBITED USES<\/p>\n
Tenant will not (a) use, occupy or permit the use or occupancy of the
\nPremises for any purpose or in any manner which is or may be, directly or
\nindirectly, violative of any Legal Requirement, or dangerous to life or
\nproperty, or a public or private nuisance, or disruptive of obstructive of any
\nother tenant or of the Complex, (b) keep or permit to be kept any substance in,
\nor conduct or permit to be conducted any operation from, the Premises which
\nmight emit offensive odors or conditions into other portions of the Complex, or
\nmake undue noise or create undue vibrations, (c) commit or permit to remain any
\nwaste to Premises, (d) install or permit to remain any improvements to the
\nPremises (other than window coverings which have first been approved by
\nLandlord) which are visible from the outside of the Premises, or exceed the
\nstructural loads of floors or walls of the Building, or adversely affect the
\nmechanical, plumbing or electrical systems of the Building, or affect the
\nstructural integrity of the Building in any way, or (e) commit or permit to be
\ncommitted any action or circumstance in or about the Building which, directly or
\nindirectly, would or might justify any insurance carrier in canceling or
\nincreasing the premium on the fire and extended coverage insurance policy
\nmaintained by Landlord on the Building or contents, and if any increase results
\nfrom any act of Tenant, then Tenant shall pay such increase promptly upon demand
\ntherefore by Landlord.<\/p>\n
ARTICLE XIII: ACCESS BY LANDLORD<\/p>\n
Except as provided below in this Article XIII, Landlord, its employees,
\ncontractors, agents, and representatives, shall have the right (and Landlord,
\nfor itself and such persons and firms, hereby reserves the right) to enter the
\nPremises at all hours (a) to inspect, maintain, repair, replace or alter the
\nPremises, (b) to show the Premises to prospective purchasers (or, during the
\nlast twelve (12) months of the Term, to prospective tenants), (c) to determine
\nwhether Tenant is performing its obligations hereunder and, if it is not, to
\nperform same at Landlord’s option and Tenant’s expense, or (d) for any other
\npurpose deemed reasonable by Landlord. In an emergency, Landlord (and such
\npersons and firms) may use any means to open any door into or in the Premises
\nwithout any liability therefore. Entry into the Premises by Landlord or any
\nother person or firm named in the first sentence of this Article XIII for any
\npurpose permitted herein shall not constitute a trespass or an eviction
\n(constructive or otherwise), or entitle Tenant to any abatement or reduction of
\nRent, or constitute grounds for any claim (and Tenant hereby waives any claim)
\nfor damages for any injury to or interference with Tenant’s business, for loss
\nof occupancy or quiet enjoyment, or for consequential damages. Notwithstanding
\nanything to the contrary in this Article XIII, Tenant may designate certain
\nareas of the Premises as “Secured Areas” should Tenant require such areas for
\nthe purpose of securing certain valuable property or confidential information.
\nLandlord may not enter Secured Areas without providing Tenant with forty-eight
\n(48) hours’ prior written notice of the specific date and time of entry by
\nLandlord.<\/p>\n
ARTICLE XIV: CONDEMNATION<\/p>\n
If all of the Premises is taken, or if so much of the Premises is Taken
\nthat, in Landlord’s opinion, the remainder cannot be restored to an economically
\nviable, quality office building, or if the awards payable to Landlord as a
\nresult of any Taking are, in Landlord’s opinion, inadequate to restore the
\nremainder to an economically viable,<\/p>\n
6<\/p>\n
quality office building, Landlord may, at its election, exercisable by the
\ngiving of written notice to Tenant within sixty (60) days after the date of the
\nTaking, terminate this Lease as of the date of Taking or the date Tenant is
\ndeprived of possession of the Premises (whichever is later). If this Lease is
\nnot terminated as a result of a Taking, Landlord shall restore the Premises
\nremaining after the Taking to a Building Standard condition. During the period
\nof restoration, Base Rent shall be abated to the extent the Premises are
\nrendered untenantable and, after the period of restoration, Base Rent shall be
\nreduced in the proportion that the area of the Premises Taken or otherwise
\nrendered untenantable bears to the area of the Premises just prior to the
\nTaking. If any portion of Base Rent is abated under this Article XIV, Landlord
\nmay elect to extend the expiration date of the Term for the period of the
\nabatement. All awards, proceeds, compensation or other payments from or with
\nrespect to any Taking of the Complex or any portion thereof shall belong to
\nLandlord, and Tenant hereby assigns to Landlord all of its right, title,
\ninterest and claim to same. Whether or not this Lease is terminated as a
\nconsequence of a Taking, all damages or compensation awarded for a partial or
\ntotal Taking, including any award for severance damage and any sums compensating
\nfor diminution in the value of or deprivation of the leasehold estate under this
\nLease, shall be the sole and exclusive property of Landlord. Tenant may assert a
\nclaim for and recover from the condemning authority, but not from Landlord, such
\ncompensation as may be awarded on account of Tenant’s moving and relocation
\nexpenses, and depreciation to and loss of Tenant’s moveable personal property.
\nTenant shall have no claim against Landlord for the occurrence of any Taking, or
\nfor the termination of this Lease or a reduction in the Premises as a result of
\nany Taking.<\/p>\n
ARTICLE XV: CASUALTY<\/p>\n
15.1 GENERAL. Tenant shall give prompt written notice to Landlord of any
\ncasualty to the Complex of which Tenant is aware and any casualty to the
\nPremises. If the Complex or the Premises are totally destroyed, or if the
\nPremises are partially destroyed but in Landlord’s opinion they cannot be
\nrestored to an economically viable, quality office building complex, or if the
\ninsurance proceeds payable to Landlord as a result of any casualty are, in
\nLandlord’s opinion, inadequate to restore the portion remaining to an
\neconomically viable, quality office building, Landlord may, at its election
\nexercisable by the giving of written notice to Tenant within sixty (60) days
\nafter the casualty, terminate this Lease as of the date of the casualty or the
\ndate Tenant is deprived of possession of the Premises (whichever is later). If
\nthis Lease is not terminated as a result of a casualty, Landlord shall (subject
\nto Section 15.2) restore the Premises to a Building Standard condition. During
\nthe period of restoration, Base Rent shall be abated to the extent the Premises
\nare rendered untenantable and, after the period of restoration, Base Rent shall
\nbe reduced in the proportion that the area of the Premises remaining tenantable
\nafter the casualty bears to the area of the Premises just prior to the casualty.
\nIf any portion of Base Rent is abated under this Section 15.1, Landlord may
\nelect to extend the expiration date of the Term for the period of the abatement.
\nExcept for abatement of Base Rent, if any, and except in cases of gross
\nnegligence on the part of Landlord, Tenant shall have no claim against Landlord
\nfor any loss suffered by reason of any such damage, destruction, repair or
\nrestoration, nor may Tenant terminate this lease as the result of any statutory
\nprovision in effect on or after the date of this Lease pertaining to the damage
\nand destruction of the Premises. The proceeds of all insurance carried by Tenant
\non Tenant’s furnishings, trade fixtures, leasehold improvements, equipment,
\nmerchandise and other personal property shall be held in trust by Tenant for the
\npurpose of the repair and replacement of the same. Landlord shall not be
\nrequired to repair any damage to or to make any restoration of any furnishings,
\ntrade fixtures, leasehold improvements, equipment, merchandise and other
\npersonal property installed in the Premises by Tenant or at the direct or
\nindirect expense of Tenant.<\/p>\n
15.2 ACTS OF TENANT. Notwithstanding any provisions of this Lease to the
\ncontrary, if the Premises or the Complex are damaged or destroyed as a result of
\na casualty arising from the acts or omissions of Tenant, or any of Tenant’s
\nofficers, directors, shareholders, partners, employees, contractors, agents,
\ninvitees or representatives, (a) Tenant’s obligation to pay Rent and to perform
\nits other obligations under this Lease shall not be abated, reduced or altered
\nin any manner, (b) Landlord shall not be obligated to repair or restore the
\nPremises or the Complex, and (c) subject to Section 17.2, Tenant shall be
\nobligated, at Tenant’s cost, to repair and to restore the Premises or the
\nComplex to the condition they were in just prior to the damage or destruction
\nunder the direction and supervision of, and to the satisfaction of, Landlord and
\nany Landlord’s Mortgagee.<\/p>\n
ARTICLE XVI: SUBORDINATION AND ATTORNMENT.<\/p>\n
16.1 GENERAL. This Lease, Tenant’s leasehold estate created hereby, and
\nall Tenant’s rights, titles and interests hereunder and in and to the Premises
\nare subject and subordinate to any Mortgage presently existing or hereafter
\nplaced upon all or any portion of the Complex. However, Landlord and Landlord’s
\nMortgagee may, at any time upon the giving of written notice to Tenant and
\nwithout any compensation or consideration being payable to Tenant, make this
\nLease, and the aforesaid leasehold estate and rights, titles and interests,
\nsuperior to any Mortgage. Upon the written request by Landlord or by Landlord’s
\nMortgagee to Tenant, and within five (5) days of the date of such request, and
\nwithout any compensation or consideration being payable to Tenant, Tenant shall
\nexecute, have acknowledged and deliver a recordable instrument confirming that
\nthis Lease, Tenant’s leasehold estate in the Premises and all of Tenant’s
\nrights, titles and interests hereunder are subject and subordinate (or, at the
\nelection of Landlord or Landlord’s Mortgagee, superior) to the Mortgage
\nbenefiting Landlord’s Mortgagee.<\/p>\n
16.2 ATTORNMENT. Upon the written request of any person or party
\nsucceeding to the interest of Landlord under this Lease, Tenant shall
\nautomatically become the tenant of and attorn to such successor in interest
\nwithout any change in any of the terms of this Lease. No successor in interest
\nshall be (a) bound by any payment of Rent for more than one month in advance,
\nexcept payments of security for the performance by Tenant of Tenant’s
\nobligations under this Lease, or (b) subject to any offset, defense or damages
\narising out of a default or any obligations of any preceding Landlord. Neither
\nLandlord’s Mortgagee nor its successor in interest shall be bound by any
\namendment of this Lease entered into after Tenant has been given written notice
\nof the name and address of Landlord’s Mortgagee and without the written consent
\nof Landlord’s Mortgagee or such successor in interest. The subordination,
\nattornment and mortgagee protection clauses of this Article XVI shall be
\nself-operative and no further instruments of subordination attornment or
\nmortgagee protection need be required by any Landlord’s Mortgagee or successor
\nin interest thereto. Nevertheless, upon the written request<\/p>\n
7<\/p>\n
therefor and without any compensation or consideration being payable to Tenant,
\nTenant agrees to execute, have acknowledged and deliver such instruments as may
\nbe requested to confirm the same. Tenant shall from time to time, if so
\nrequested by Landlord and if doing so will not materially and adversely affect
\nTenant’s economic interests under this Lease, join with Landlord in amending
\nthis Lease so as to meet the needs or requirements of any lender that is
\nconsidering making or that has made a loan secured by all or any portion of the
\nComplex.<\/p>\n
ARTICLE XVII: INSURANCE.<\/p>\n
17.1 GENERAL. Tenant shall obtain and maintain throughout the Term the
\nfollowing policies of insurance:<\/p>\n
(a) Commercial general liability insurance with a combined single limit
\nfor bodily injury and property damage of not less than One Million Dollars
\n($1,000,000) per occurrence, including, without limitation, contractual
\nliability coverage for the performance by Tenant of the indemnity agreements set
\nforth in Article XVIII.<\/p>\n
(b) Hazard insurance with special causes of loss, including theft
\ncoverage, insuring against fire, extended coverage risks, vandalism and
\nmalicious mischief, and including boiler and sprinkler leakage coverage, in an
\namount equal to the full replacement cost (without deduction for depreciation)
\nof all furnishings, trade fixtures, leasehold improvements, equipment,
\nmerchandise and other personal property from time to time situated in or on the
\nPremises.<\/p>\n
(c) Worker’s compensation insurance satisfying Tenant’s obligations
\nunder the worker’s compensation laws of the State of Utah.<\/p>\n
(d) Such other policy or policies of insurance as Landlord may
\nreasonably require or as Landlord is then requiring from one or more other
\ntenants in the Complex.<\/p>\n
Such minimum limits shall in no event limit the liability of Tenant under this
\nLease. Such liability insurance shall name Landlord, and any other person
\nspecified from time to time by Landlord, as an additional insured; such property
\ninsurance shall name Landlord as a loss payee as Landlord’s interests may
\nappear; and both such liability and property insurance shall be with companies
\nacceptable to Landlord, having a rating of not less than A:X1I in the most
\nrecent issue of Best’s Key Rating Guide. Propertv-Casualty. All liability
\npolicies maintained by Tenant shall contain a provision that Landlord and any
\nother additional insured, although named as an insured, shall nevertheless be
\nentitled to recover under such policies for any loss sustained by Landlord and
\nLandlord’s agents and employees as a result of the acts or omissions of Tenant.
\nTenant shall furnish Landlord with certificates of coverage. No such policy
\nshall be cancelable or subject to reduction of coverage or other modification
\nexcept after thirty (30) days’ prior written notice to Landlord by the insurer.
\nAll such policies shall be written as primary policies, not contributing with
\nand not in excess of the coverage which Landlord may carry, and shall only be
\nsubject to such deductibles as may be approved in writing in advance by
\nLandlord. Tenant shall, at least ten (10) days prior to the expiration of such
\npolicies, furnish Landlord with renewals of, or binders for, such policies.
\nLandlord and Tenant waive all rights to recover against each other, against any
\nother tenant or occupant of the Complex, and against the officers, directors,
\nshareholders, partners, joint ventures, employees, agents, customers, invitees
\nor business visitors of each other, or of any other tenant or occupant of the
\nComplex, for any loss or damage arising from any cause covered by any insurance
\ncarried by the waiving party, to the extent that such loss or damage is actually
\ncovered. Tenant shall cause all other occupants of the Premises claiming by,
\nthrough or under Tenant to execute and deliver to Landlord a waiver of claims
\nsimilar to the waiver contained in this Section and to obtain such waiver of
\nsubrogation rights endorsements. Any Landlord’s Mortgagee may, at Landlord’s
\noption, be afforded coverage under any policy required to be secured by Tenant
\nunder this Lease by use of a mortgagee’s endorsement to the policy concerned.<\/p>\n
17.2 WAIVER OF SUBROGATION. Landlord hereby waives all claims, rights of
\nrecovery and causes of action that Landlord or any party claiming by, through or
\nunder Landlord may now or hereafter have by subrogation or otherwise against
\nTenant or against any of Tenant’s officers, directors, shareholders, members,
\npartners or employees for any loss or damage that may occur to the Complex, the
\nPremises, Tenant’s improvements or any of the contents of any of the foregoing
\nby reason of fire or other casualty, or by reason of any other cause except
\ngross negligence, willful misconduct, or the failure by Tenant to observe any of
\nTenant’s obligations under this Lease (thus including simple negligence of the
\nTenant or Tenant’s officers, directors, shareholders, members, partners or
\nemployees), that could have been insured against under the terms of the standard
\nfire and extended coverage insurance policies available in the state where the
\nComplex is located at the time of the casualty; provided, however, that the
\nwaiver set forth in this Section 17.2 shall not apply to any deductibles on
\ninsurance policies carried by Landlord or to any coinsurance penalty which
\nLandlord might sustain. Tenant hereby waives all claims, rights of recovery and
\ncauses of action that Tenant or any party claiming by, through or under Tenant
\nmay now or hereafter have by subrogation or otherwise against Landlord or
\nagainst any of Landlord’s officers, directors, members, shareholders, members,
\npartners or employees for any loss or damage that may occur to the Complex, the
\nPremises, Tenant’s improvements or any of the contents of any of the foregoing
\nby reason of fire or other casualty, or by reason of any other cause except
\ngross negligence or willful misconduct (thus including simple negligence of the
\nLandlord or Landlord’s officers, directors, shareholders, members, partners or
\nemployees), that could have been insured against under the terms of the fire and
\nextended coverage insurance policies required to be obtained and maintained
\nunder Section 17.1. Landlord and Tenant shall cause an endorsement to be issued
\nto their respective insurance policies recognizing this waiver of subrogation.<\/p>\n
ARTICLE XVIII: TENANT’S INDEMNITY<\/p>\n
Subject to Section 17.2, Tenant shall defend, indemnify and hold
\nharmless Landlord and Landlord’s officers, directors, shareholders, members,
\npartners and employees from and against liabilities, obligations, losses,
\ndamages, penalties, claims, actions, suits, costs, expenses and disbursements
\n(including court costs and reasonable attorneys’ fees) resulting from any
\ninjures to or death of any person or damage to any property occurring during the
\nTerm in the Premises, on the Complex, and\/or in the Common Areas.<\/p>\n
8<\/p>\n
ARTICLE XIX: THIRD PARTIES: ACTS OF FORCE MAJEURE<\/p>\n
Landlord shall have no liability to Tenant, or to Tenant’s officers,
\ndirectors, shareholders, partners, employees, agents, contractors or invitees,
\nfor bodily injury, death, property damage, business interruption, loss of
\nprofits, loss of trade secrets or other tenant or such other direct or
\nconsequential damages occasioned by (a) the acts or omissions of any other
\ntenant’s officers, directors, shareholders, partners, employees agents,
\ncontractors or other invitees within the Complex, (b) Force Majeure, (c)
\nvandalism, theft, burglary and other criminal acts (other than those committed
\nby Landlord and its employees), (d) water leakage, or (e) the repair,
\nreplacement, maintenance, damage, destruction or relocation of the Premises,
\nexcept, with respect to both (d) and (e) in the case of gross negligence by
\nLandlord.<\/p>\n
ARTICLE XX: CONTROL OF COMMON AREAS<\/p>\n
Landlord shall have the exclusive control over the Common Areas.
\nLandlord may, from time to time, create different Common Areas, close or
\notherwise modify the Common Areas, and adopt and\/or modify rules and regulations
\nregarding the use thereof<\/p>\n
ARTICLE XXI: QUIET ENJOYMENT<\/p>\n
Provided Tenant has performed all its obligations under this Lease,
\nTenant shall and may peaceably and quietly have, hold, occupy, use and enjoy the
\nPremises during the Term subject to the provisions of this Lease. Landlord shall
\nwarrant and forever defend Tenant’s right to occupancy of the Premises against
\nthe claims of any and all persons whosoever lawfully claiming the same or any
\npart thereof, by, through or under Landlord, but not otherwise, subject to the
\nprovisions of this Lease.<\/p>\n
ARTICLE XXII: DEFAULT BY TENANT.<\/p>\n
22.1 EVENTS OF DEFAULT. Each of the following occurrences shall
\nconstitute Event of Default (herein so called):<\/p>\n
(a) The failure of Tenant to pay Rent as and when due hereunder and
\ncontinuance of such failure for a period of five (5) days after written notice
\nfrom Landlord to Tenant specifying the failure; provided, however, after
\nLandlord has seven Tenant written notice pursuant to this Section 22.1(a) on two
\nseparate occasions, Landlord shall not be required to give Tenant any further
\nnotice under this Section 22.1(a);<\/p>\n
(b) The failure of Tenant to perform, comply with or observe any other
\nagreement, obligation or undertaking of Tenant, or any other term, condition or
\nprovision in this Lease, and the continuance of such failure for a period of ten
\n(10) days after written notice from Landlord to Tenant specifying the failure;<\/p>\n
(c) The abandonment of the Premises by Tenant or the failure of Tenant
\nto occupy the Premises or any significant portion thereof;<\/p>\n
(d) The filing of a petition by or against Tenant (the term “Tenant”
\nalso meaning, for the purpose of this Section 22.1 (d), any guarantor of the
\nnamed Tenant’s obligations hereunder) (1) in any bankruptcy or other insolvency
\nproceeding, (2) seeking any relief under the Bankruptcy Code or any similar
\ndebtor relief law, (3) for the appointment of a liquidator or receiver for all
\nor substantially all of Tenant’s property or for Tenant’s interest in this
\nLease, or (4) to reorganize or modify Tenant’s capital structure; and<\/p>\n
(e) The admission by Tenant in writing that it cannot meet its
\nobligations as they become due or the making by Tenant of an assignment for the
\nbenefit of its creditors.<\/p>\n
22.2 REMEDIES OF LANDLORD. Upon any Event of default, Landlord may, at
\nLandlord’s option and in addition to all other rights, remedies and recourse
\nafforded Landlord hereunder or by law or equity, of an one or more of the
\nfollowing:<\/p>\n
(a) At Landlord’s option and without waiving any default by Tenant,
\nLandlord shall have the right to continue this Lease in full force and effect
\nand to collect all Base Rent, Additional Rent, and any other amounts to be paid
\nby Tenant under ~is Lease as and when due. During any period that Tenant is in
\ndefault, Landlord shall have the right, pursuant to legal proceedings or
\npursuant to any notice provided for by law, to enter and take possession of the
\nPremises, without terminating this Lease, for the purpose of reletting the
\nPremises or any part thereof and making any alterations and repairs that may be
\nnecessary or desirable in connection with such reletting. Any such reletting or
\nrelettings may be for such term or terms (including periods that exceed the
\nbalance of the term of this Lease), and upon such other terms, covenants and
\nconditions as Landlord may in Landlord’s sole discretion deem advisable. If the
\nrent or rents received during any month and applied as provided above shall be
\ninsufficient to cover all such amounts including the Base Rent and any other
\namounts to be paid by Tenant pursuant to this Lease for such month, Tenant shall
\npay to Landlord any deficiency; such deficiencies shall be calculated and paid
\nmonthly. No entry or taking possession of the Premises by Landlord shall be
\nconstrued as an election by Landlord to terminate this Lease, unless Landlord
\ngives written notice of such election to Tenant or unless such termination shall
\nbe decreed by a court of competent jurisdiction. Notwithstanding any reletting
\nby Landlord without termination, Landlord may at any time thereafter terminate
\nthis Lease for such previous default by giving written notice thereof to Tenant.<\/p>\n
9<\/p>\n
(b) Terminate Tenant’s right to possession by notice to Tenant, in which
\ncase this Lease shall terminate and Tenant shall immediately surrender
\npossession of the Premises to Landlord. In such event Landlord shall be entitled
\nto recover from Tenant all damages incurred by Landlord by reason of Tenant’s
\ndefault, including without limitation the following: (1) all unpaid Rent which
\nhas been earned at the time of such termination plus (2) the amount by which the
\nunpaid Rent which would have been earned after termination until the time of
\naward exceeds the amount of such rental loss that is proved could have been
\nreasonably avoided. Upon any such re-entry Landlord shall have the right to make
\nany reasonable repairs, alterations or modifications to the Premises, which
\nLandlord in Landlord’s sole discretion deems reasonable and necessary.<\/p>\n
(c) If an Event of Default specified in Section 22.1 (c) occurs,
\nLandlord may remove and store any property that remains on the Premises and, if
\nTenant does not claim such property within ten (10) days after Landlord has
\ndelivered to Tenant notice of such storage, Landlord may appropriate, sell,
\ndestroy or otherwise dispose of the property in question without notice to
\nTenant or any other person, and without an obligation to account for such
\nproperty.<\/p>\n
22.3 PAYMENT BY TENANT. Upon any Event of Default, Tenant shall also pay
\nto Landlord all costs and expenses incurred by Landlord, including court costs
\nand reasonable attorneys’ fees, in (a) retaking or otherwise obtaining
\npossession of the Premises, (b) removing and storing Tenant’s or an other
\noccupant’s property, (c) repairing, restoring, altering, remodeling or otherwise
\npuking the Premises into condition acceptable to a new tenant or tenants, (d)
\nreletting all or an part of the Premises, (e) paying or performing the
\nunderlying obligation which Tenant failed to pay or perform, and (f) enforcing
\nany of Landlord’s rights, remedies of recourse arising as a consequence of the
\nEvent of Default.<\/p>\n
22.4 RELETTING. Upon termination of this Lease or upon termination of
\nTenant’s right to possession of the Premises, Landlord shall use reasonable
\nefforts to relet the Premises on such terms and conditions as Landlord in its
\nsole discretion may determine (including a term different than the Term, rental
\nconcession, and alterations to and improvements of the Premises); however,
\nLandlord shall not be obligated to relet the Premises before leasing other
\nportions of the Complex. Landlord shall not be liable for, nor shall Tenant’s
\nobligations hereunder be diminished because of, Landlord’s failure to relet the
\nPremises or collect rent due with respect to such reletting. If Landlord relets
\nthe Premises, rent Landlord receives from such reletting shall be applied to the
\npayment of: first, any indebtedness from Tenant to Landlord other than Rent (if
\nany); second, all costs, including for maintenance and alterations, incurred by
\nLandlord in reletting; and third, Rent due and unpaid. In no event shall Tenant
\nbe entitled to the excess of any rent obtained by reletting over the Rent herein
\nreserved.<\/p>\n
22.5 LANDLORD’S RIGHT TO PAY OR PERFORM. Upon an Event of Default,
\nLandlord may, but without obligation to do so and without thereby waiving or
\ncuring such Event of Default, pay or perform the underlying obligation for the
\naccount of Tenant, and enter the Premises and expend the Security Deposit, if
\nany, and any other sums for such purpose.<\/p>\n
22.6 NO WAIVER: NO IMPLIED SURRENDER. Provisions of this Lease may only
\nbe waived by the party entitled to the benefit of the provision evidencing the
\nwaiver in writing. Thus, neither the acceptance of Rent by Landlord following an
\nEvent of Default (whether known to Landlord or not), nor any other custom or
\npractice followed in connection with this Lease, shall constitute a waiver by
\nLandlord of such Event of Default or an other Event of Default. Further, the
\nfailure by Landlord to complain of any action or inaction by Tenant, or to
\nassert that any action or inaction by Tenant constitutes (or would constitute,
\nwith the giving of notice and the passage of time) an Event of Default,
\nregardless of how long such failure continues, shall not extinguish, waive or in
\nany way diminish the rights, remedies and recourse of Landlord with respect to
\nsuch action or inaction. No waiver by Landlord of any provision of this Lease or
\nof any breach by Tenant of any obligation of Tenant hereunder shall be deemed to
\nbe a waiver of any other provisions hereof, or of any subsequent breach by
\nTenant of the same or any other provision hereof; Landlord’s consent to any act
\nby Tenant requiring Landlord’s consent shall not be deemed to render unnecessary
\nthe obtaining of Landlord’s consent to any subsequent act of Tenant. No act or
\nomission by Landlord (other than Landlord’s execution of a document
\nacknowledging such surrender) or Landlord’s agents, including the delivery of
\nthe keys to the Premises, shall constitute an acceptance of a surrender of the
\nPremises.<\/p>\n
ARTICLE XXIII: DEFAULT BY LANDLORD<\/p>\n
Landlord shall not be in default under this Lease, and Tenant shall not
\nbe entitled to exercise any right, remedy or recourse against Landlord or
\notherwise as a consequence of any alleged default by Landlord under this Lease,
\nunless Landlord fails to perform any of its obligations hereunder and said
\nfailure continues for a period of thirty (30) days after Tenant gives Landlord
\nand (provided that Tenant shall have been giving the name and address of
\nLandlord’s Mortgagee) Landlord’s Mortgagee written notice thereof specifying,
\nwith reasonable particularity, the nature of Landlord’s failure. If, however,
\nthe failure cannot reasonably be cured within the thirty (30) day period,
\nLandlord shall not be in default hereunder if Landlord or Landlord’s Mortgagee
\ncommences to cure the failure within the thirty (30) days and thereafter pursues
\nthe curing of same diligently to completion. If Tenant recovers a money judgment
\nagainst Landlord for Landlord’s default of its obligations hereunder or
\notherwise, the judgment shall be limited to Tenant’s actual direct, but no
\nconsequential, damages therefore and shall be satisfied only out of the interest
\nof Landlord in the Complex as the same may then be encumbered, and Landlord
\nshall not otherwise be liable for any deficiency. In no event shall Tenant have
\nthe right to levy execution against any property of Landlord other than its
\ninterest in the Complex. The foregoing shall not limit any right that Tenant
\nmight have to obtain specific performance of Landlord’s obligations hereunder.<\/p>\n
ARTICLE XXIV: RIGHT OF RE-ENTRY<\/p>\n
10<\/p>\n
24.1 SURRENDER OF PREMISES. Upon the expiration or termination of the
\nTerm for whatever cause, or upon the exercise by Landlord of its right to
\nre-enter the Premises without terminating this Lease, Tenant shall immediately,
\nquietly and peaceably surrender to Landlord possession of the Premises in “broom
\nclean” and good order, condition and repair, except only for ordinary wear and
\ntear, damage by casualty not covered by Section 15.2 and repairs to be made by
\nLandlord pursuant to Section 15.1. If Tenant is in default under this Lease,
\nLandlord shall have a lien on such personal property, trade fixtures and other
\nproperty as set forth in Section 38-3-1, et ~9,., of the Utah Code Ann. (Or any
\nreplacement provision). Landlord may require Tenant to remove any personal
\nproperty, trade fixtures, other property, alterations, additions and
\nimprovements made to the Premises by Tenant or by Landlord for Tenant, and to
\nrestore the Premises to their condition on the date of this Lease. All personal
\nproperty, trade fixtures and other property of Tenant not removed from the
\nPremises on the abandonment of the Premises or on the expiration of the Term or
\nsooner termination of this Lease for any cause shall conclusively be deemed to
\nhave been abandoned and may be appropriated, sold, stored, destroyed or
\notherwise disposed of by Landlord without notice to, and without any obligation
\nto account to, Tenant or any other person. Tenant shall pay to Landlord all
\nexpenses incurred in connection with the disposition of such property in excess
\nof any amount received by Landlord from such disposition. Tenant shall not be
\nreleased from Tenant’s obligations under this Lease in connection with surrender
\nof the Premises until Landlord has inspected the Premises and delivered to
\nTenant a written release. While Tenant remains in possession of the Premises
\nafter such expiration, termination or exercise by Landlord of its re-entry
\nright, Tenant shall be deemed to be occupying the Premises as a
\ntenant-at-sufferance, subject to all of the obligations of Tenant under this
\nLease, except that the daily Rent shall be twice the per-day Rent in effect
\nimmediately before such expiration, termination or exercise by Landlord. No such
\nholding over shall extend the Term. If Tenant fails to surrender possession of
\nthe Premises in the condition herein required, Landlord may, at Tenant’s
\nexpense, restore the Premises to such condition.<\/p>\n
24.2 HAZARDOUS SUBSTANCES. No spill, deposit, emission, leakage or other
\nrelease of Hazardous Substance in the soils, groundwaters or waters shall be
\ndeemed to result in either (a) wear and tear that would be normal for the term
\nof the Lease; or (b) a casualty to the Premises. Tenant shall be responsible to
\npromptly and completely cleanup any such release as shall occur on the Premises
\nduring the term of the Lease and shall surrender the Premises free of any
\ncontamination or other damage caused by such occurrence during the term of the
\nLease. Tenant’s obligation to cleanup the Premises pursuant to the provisions of
\nthis Article XMV shall survive the expiration or other termination of this
\nLease.<\/p>\n
ARTICLE XXV: TENANT’S RIGHT TO TERMINATE LEASE<\/p>\n
Subject to the provisions of this Article XXV and provided that no Event
\nof Default has occurred and is then continuing and no event has occurred and is
\nthen continuing which, with the giving of notice or lapse of time, or both,
\nwould become an Event of Default, Tenant shall have the option exercisable at
\nany time after the third anniversary of the Commencement Date to terminate this
\nLease and Tenant’s rights in and to the Premises (hereinafter the “Termination
\nOption”). The Termination Option shall only be exercisable by (a) Tenant giving
\nLandlord at least one hundred and eighty (180) days prior written notice of (1)
\nTenant’s intention to exercise the Termination Option and (2) the date on which
\nthe Lease and Tenant’s rights in and to the Premises are to terminate
\n(hereinafter the “Termination Date”) and (b) Tenant paying to Landlord
\nconcurrently with the giving of such notice, in cash or other immediately
\navailable funds, an amount equal to the unamortized cost of Landlord’s Work as
\nof the Termination Date. For purposes of this Article XXV, the unamortized cost
\nof Landlord’s Work shall be determined by amortizing the total cost of
\nLandlord’s Work on a straight line basis over a term of five years, with such
\nfive year period commencing on the Commencement Date. The total cost of
\nLandlord’s Work shall be equal to the sum of the Construction Allowance and the
\nExcess Tenant Improvement Costs.<\/p>\n
ARTICLE XXVI: GENERAL PROVISIONS<\/p>\n
26.1 INDEPENDENT OBLIGATIONS; NO OFFSET. The obligations of Tenant to
\npay Rent and to perform the other undertakings of Tenant hereunder constitute
\nindependent unconditional obligations to be performed at the times specified
\nhereunder, regardless of any breach or default by Landlord hereunder. Tenant
\nshall have no right, and Tenant hereby waives and relinquishes all rights which
\nTenant might otherwise have, to claim any nature of lien against the Complex or
\nto withhold, deduct form or offset against any Rent or other sums to be paid to
\nLandlord by Tenant, unless a default by Landlord hereunder remains uncured for
\nlonger than sixty (60) days after written notice of such default from Tenant to
\nLandlord.<\/p>\n
26.2 TIME OF ESSENCE. Time is of the essence with respect to each date
\nor time specified in this Lease by which an event is to occur.<\/p>\n
26.3 APPLICABLE LAW. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN
\nACCORDANCE WITH, THE LAWS OF THE STATE OF UTAH. ALL MONETARY AND OTHER
\nOBLIGATIONS OF LANDLORD AND TENANT ARE PERFORMABLE IN THE COUNTY WHERE THE
\nCOMPLEX IS LOCATED<\/p>\n
26.4 ASSIGNMENT BY LANDLORD. Landlord shall have the right to assign, in
\nwhole or in part, any or all of its rights, titles or interests in and to the
\nComplex or this Lease and, upon any such assignment, Landlord shall be relieved
\nof all unaccrued liabilities and obligations hereunder to the extent of the
\ninterest so assigned.<\/p>\n
26.5 ESTOPPEL CERTIFICATES: FINANCIAL STATEMENTS. Tenant shall, from
\ntime to time and within ten (10) days of written request from either Landlord or
\nLandlord’s Mortgagee, and without compensation or consideration execute, have
\nacknowledged and deliver a certificate setting forth the following: (a) a
\nratification of this Lease; (b) the Commencement Date and expiration date; (c)
\nthat this Lease is in full force and effect and has not been assigned, modified,
\nsupplemented or amended (except by such writing as shall be stated); (d) that
\nthis Lease, as modified, supplemented or amended (if such is the case)
\nconstitutes the complete agreement between Landlord and Tenant with respect to
\nthe Premises and the Complex and that Tenant does not hold an option to purchase
\nthe Complex or any interest therein, (e) that all conditions under this Lease<\/p>\n
11<\/p>\n
to be performed by Landlord have been satisfied or, in the alternative, those
\nclaimed by Tenant to be unsatisfied; (f) that no defenses or offsets exist
\nagainst the enforcement of this Lease by Landlord or, in the alternative, those
\nclaimed by Tenant to exist; (g) whether within the knowledge of Tenant there are
\nany existing breaches or defaults by Landlord hereunder and, if so, stating the
\ndefaults with reasonable particularity; (h) the amount of advance Rent, if any
\n(or none if such is the case), paid by Tenant; (i) the date to which Rent has
\nbeen paid; the amount of the Security Deposit, if any; and (k) such other
\ninformation as Landlord or Landlord’s Mortgagee may request. Landlord’s
\nMortgagee and purchasers from either Landlord’s Mortgagee or Landlord shall be
\nentitled to rely on any estoppel certificate executed by Tenant. Tenant shall,
\nwithin ten (10) days after Landlord’s request, furnish to Landlord current
\nfinancial statements for Tenant, prepared in accordance with generally accepted
\naccounting principles consistently applied and certified by Tenant to be true
\nand correct.<\/p>\n
26.6 SIGNS. COMPLEX NAME AND BUILDING ADDRESS. Landlord may, from time
\nto time at its discretion, maintain any and all signs anywhere in the Complex,
\nand may change the name and street address of the Complex. Tenant shall not use
\nthe name of the Complex for any purpose other than as the address of the
\nbuilding for the business to be conducted by Tenant from the Premises<\/p>\n
26.7 NOTICES. All notices and other communications given pursuant to
\nthis Lease shall be in writing and shall either be mailed by first class United
\nStates mail, postage prepaid, registered or certified with return receipt
\nrequested, and addressed as set forth in this Section 26.7, or delivered in
\nperson to the intended addressee, or sent by prepaid telegram, cable or telex
\nfollowed by a confirmatory letter. Notice mailed in the aforesaid manner shall
\nbecome effective three (3) business days after deposit; notice given in any
\nother manner, and any notice given to Landlord, shall be effective only upon
\nreceipt by the intended addressee. For the purposes of notice, the address of
\n(a) Landlord shall be at the Complex manager’s office at the Complex, and (b)
\nTenant shall be, prior to the Commencement Date, the address recited on the
\nsignature page hereof, and after the Commencement Date, the Premises. Each party
\nshall have the continuing right to change its address for notice hereunder by
\nthe giving of fifteen (15) days’ prior written notice to the other party in
\naccordance with this Section 26.7.<\/p>\n
26.8 ENTIRE AGREEMENT. AMENDMENT AND BINDING EFFECT. This Lease
\nconstitutes the entire agreement between Landlord and Tenant relating to the
\nsubject matter hereof, and all prior agreements relative hereto which are not
\ncontained herein are terminated. This Lease may be amended only by a written
\ndocument duly executed by Landlord and Tenant (and, if a Mortgage is then in
\neffect, by the Landlord’s Mortgagee entitled to the benefits thereof), and any
\nalleged amendment which is not so documented shall not be effective as to either
\nparty. The provision of this Lease shall be binding upon and inure to the
\nbenefit of the parties hereto and their heirs, executors, administrators,
\nsuccessors and assigns; provided, however, that this Section 26.8 shall not
\nnegate, diminish or alter the restrictions on Transfer applicable to Tenant set
\nforth elsewhere in this Lease this Lease shall be binding upon and inure to the
\nbenefit of the parties hereto and their heirs, executors, administrators,
\nsuccessors and assigns; provided, however, that this Section 26.8 shall not
\nnegate, diminish or alter the restrictions on Transfer applicable to Tenant set
\nforth elsewhere in this Lease.<\/p>\n
26.9 SEVERABILITY. This Lease is intended to be performed in accordance
\nwith AND only to the extent permitted by all Legal Requirements. If any
\nprovision of this Lease or the application thereof to any person or
\ncircumstances shall, for any reason and to any extent, be invalid or
\nunenforceable, but the extent of the invalidity or unenforceability does not
\ndestroy the basis of the bargain between the parties as contained herein, the
\nremainder of this Lease and the application of such provision to other persons
\nor circumstances shall not be affected thereby, but rather shall be enforced to
\nthe greatest extent permitted by law.<\/p>\n
26.10 NUMBER AND GENDER. CAPTIONS AND REFERENCES. As the context of this
\nLease may require, pronouns shall include natural persons and legal entities of
\nevery kind and character, the singular number shall include the plural, and the
\nneuter shall include the masculine and the feminine gender. Section headings in
\nthis Lease are for convenience of reference only and are not intended, to any
\nextent and for any purpose, to limit or define any section hereof. Whenever the
\nterms “hereof,” “hereby,” “herein,” “hereunder,” or words of similar import are
\nused in this Lease, they shall be construed as referring to this Lease in its
\nentirety rather than to a particular section or provision, unless the context
\nspecifically indicates to the contrary. Any reference to a particular “Section”
\nshall be construed as referring to the indicated section of this Lease.<\/p>\n
26.11 ATTORNEY’S FEES. In the event either party commences a legal
\nproceeding to enforce any of the terms of this Lease, the prevailing party in
\nsuch action shall have the right to recover reasonable attorneys” fees and costs
\nfrom the other party, to be fixed by the court in the same action. “Legal
\nproceedings” includes appeals from a lower court judgment as well as proceedings
\nin the Federal Bankruptcy Court (“Bankruptcy Court”), whether or not they are
\nadversary proceedings or contested matters. The “prevailing party” (a) as used
\nin the context of proceedings in the Bankruptcy Court means the prevailing party
\nin an adversary proceeding or contested matter, or an other actions taken by the
\nnon-bankrupt party which are reasonably necessary to protect its rights under
\nthis Lease, and (b) as used in the context of proceedings in any court other
\nthan the Bankruptcy Court means the party that prevails in obtaining a remedy or
\nrelief which most nearly reflects the remedy or relief which the party sought;
\nso that, for example, the prevailing party may be a party which is ordered to
\npay One Hundred Dollars ($100) where the obligation to pay Eighty Dollars ($80)
\nwas undisputed and the claiming party alleged that it was entitled to One
\nThousand Dollars ($1,000).<\/p>\n
26.12 BROKERS. Tenant and Landlord hereby warrant and represent unto the
\nother that it has not incurred or authorized any brokerage commission, finder’s
\nfees or similar payments in connection with this Lease, other than that which is
\ndue to Cottonwood Realty, which payment shall by paid by Landlord. Each party
\nshall defend, indemnify and hold the other harmless from or the maximum rate
\nallowed by law from the date such payment is due until paid, but the payment of
\nsuch interest shall not excuse or cure the default in payment.<\/p>\n
26.14 AUTHORITY. The person executing this Lease on behalf of Tenant
\npersonally warrants and represents to landlord that (a) Tenant is a duly
\norganized and existing legal entity, in good standing in the State of Utah, (b)
\nTenant has full right and authority to execute, deliver and perform this Lease,
\n(c) the person executing this Lease on<\/p>\n
12<\/p>\n
behalf of Tenant was authorized to do so, and (d) upon request of Landlord, such
\nperson will deliver to Landlord satisfactory evidence of his or her authority to
\nexecute this Lease on behalf of Tenant.<\/p>\n
26.15 RECORDING. Neither this Lease (including any Exhibit hereto) nor
\nany memorandum hereto shall be recorded without the prior written consent of
\nLandlord.<\/p>\n
26.16 RENEWAL OPTION. Tenant shall have the right to renew the Term of
\nthe Lease for an additional period of thirty-six months in accordance with the
\nprovisions of Exhibit D attached hereto and by this reference made a part
\nhereof.<\/p>\n
26.17 RIGHT OF FIRST REFUSAL.. Tenant shall have a right of first
\nrefusal with respect to other space located in the Complex in accordance with
\nthe provisions of Exhibit E attached hereto and by this reference made a part
\nhereof.<\/p>\n
26.18 EXHIBITS. All Exhibits and written addenda hereto are incorporated
\nherein for any and all purposes.<\/p>\n
26.19 MULTIPLE COUNTERPARTS. This Lease may be executed in two or more
\ncounterparts, each of which shall be an original, but all of which shall
\nconstitute but one instrument<\/p>\n
26.20 MISCELLANEOUS. Any guaranty delivered in connection with this
\nLease is an integral part of this Lease and constitutes consideration given to
\nLandlord to enter into this Lease. No amendment to this Lease shall be binding
\non Landlord or Tenant unless reduced to writing and signed by both parties. Each
\nprovision to be performed by Tenant shall be construed to be both a covenant and
\na condition. Venue on any action arising out of this Lease shall be proper only
\nin the District Court of Utah County, State of Utah. Landlord and Tenant waive
\ntrial by jury in any action, proceeding or counterclaim brought by either of
\nthem against the other on all matters arising out of this Lease or the use and
\noccupancy of the Premises. The submission of this Lease to Tenant is not an
\noffer to lease the Premises for Tenant. Landlord shall not be bound to Tenant
\nuntil Tenant has duly executed and delivered duplicate original copies of this
\nLease to Landlord and Landlord has duly executed and delivered one of those
\nduplicate original copies to Tenant<\/p>\n
EXECUTED as of the date and year above first written.<\/p>\n
Landlord and Landlord has duly executed and delivered one of those duplicate
\noriginal copies to Tenant<\/p>\n
EXECUTED as of the date and year above first written.<\/p>\n
TENANT ACKNOWLEDGES THAT LANDLORD HAS MADE NO WARRANTIES TO TENANT AS TO THE
\nCONDITION OF THE PREMISES, EITHER EXPRESS OR IMPLED, AND LANDLORD AND TENANT
\nEXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR
\nTENANT’S INTENDED COMMERCIAL PURPOSE, AND TENANT’S OBLIGATION TO PAY RENT
\nHEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES FOR THE
\nPERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND TENANT SHALL CONTINUE
\nTO PAY THE RENT, WITHOUT ABATEMENT (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
\nHEREIN), SET OFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS
\nDUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.<\/p>\n
TENANT: CALDERA, INC.<\/p>\n
BY: \/s\/ Douglas S. Cooper
\n ————————————–
\nTITLE: Controller
\n ————————————–
\nNAME: Douglas S. Cooper
\n ————————————–
\nDATE: October 9, 1997
\n ————————————–
\nADDRESS: 633 South 550 East, Provo, Utah 84606
\n ————————————–<\/p>\n
LANDLORD: ESNET PROPERTIES, L.C., a Utah
\n limited liability company<\/p>\n
BY: \/s\/ Daniel W. Campbell
\n ————————————–
\nTITLE: Managing Member
\n ————————————–
\nNAME: Daniel W. Campbell
\n ————————————–
\nDATE: October 10, 1997
\n ————————————–<\/p>\n
13<\/p>\n
ADDRESS: 5152 North Edgewood Drive, Suite 350 Provo, Utah 84604
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