Exhibit 99.13
BASIC LEASE INFORMATION
CANYON PARK TECHNOLOGY CENTER
EXECUTIVE OFFICE BUILDING LEASE AGREEMENT
"Lease Date": July 26, 2005.
"Tenant": Vista, Inc.
"Address of Tenant/Premises": 0000 X. Xxxxxxxxxx Xxx Xxxx, Xxxx 00000
"Contact": Xxxxxx X. Xxxxxxx
"Telephone": 000-000-0000
"Landlord": Canyon Park Management Company
Agents for: TCU Properties II, LLC, a Utah
limited liability company
"Address of Landlord": 0000 Xxxxx Xxxxxxxxxx Xxx
Xxxxxxxx X, Xxxxx 0000
Orem. Utah 84097
"Contact": Xxxxx Xxxxxxxxx - Vice President/GM
"Telephone": 801-764-0005 Ext 399
"Agency": None
"Annual Increases": $0.50 annual increase on each one-year
anniversary of Lease Commencement.
"Base Year": 2005
"Basic Rental": $6,194.25 per month. The Security Deposit shall
be equal to the last month's rent.
"Building": Building A on the site plan of the Park attached
hereto as Exhibit A.
"Building J Auditorium": Subject to availability and scheduling. Landlord
shall allow Tenant four (4) hours of free use of
the auditorium in Building J each year. Tenant's
free use of such auditorium does not include an
A/V technician or additional A/V equipment
requested over and above that equipment already
available in the auditorium.
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"Building Services": Landlord shall provide heating, ventilating and
air conditioning (HVAC), electrical, janitorial
and security services, and all other services
typically provided by Landlords in a "Class A"
environment
"Commencement Date": July 1, 2005
"Expansion Rights": Tenant will have on-going expansion rights on
all space on the 1st floor as it at Canyon Park
Technology Center.
"Adjusted Rental": The sum of the annual Basic Rental and the
annual Excess operating Expenses and Excess
Taxes.
"Excess Operating Expenses": (i) The amount by which the Operating Expenses
Per Square Foot of RA (defined in Exhibit E
attached) for any calendar year or portion
thereof during the Lease Term exceeds the
Operating Expenses Per Square Foot of RA
(defined in Exhibit E attached) during the Base
Year multiplied by (ii) the RA of the Premises.
"Excess Taxes": The product of (i) the amount by which the Taxes
per Square Foot of RA 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.
"Executive Boardroom": Subject to availability and scheduling, Landlord
shall allow Tenant three (3) days of free use
(Monday through Friday during business hours) of
the executive board room in Building L annually,
for company executive use.
"Furniture": Landlord shall allow Tenant to use the furniture
currently in the Premises at no charge to
Tenant, and upon Tenant's reasonable advance
request, shall provide at no charge additional
furniture from existing inventor) in the Park,
provided such furniture is not being used by
Landlord or other tenants and subject to
availability. Tenant is responsible for all
additional setup costs to reconfigure
furniture from the current set up and for
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any damage to the furniture, normal wear and
tear excepted.
"Lease Rate": $13.50 per square foot
"Option to Expand": Provided that Tenant is not in breach of the
Lease and no amount of Basic Rental is past due,
Tenant shall have the Option to Expand into
35,000 RSF on the Park at the then market rates.
With ninety (90) days written notice from Tenant
if Landlord is unable to provide reasonably
similar expansion space, Landlord will allow
Tenant to Terminate this lease.
"Parking": Parking shall be open and available on an
unreserved basis in the parking areas shown on
Exhibit E. 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
general and executive offices and for no other
use or purpose.
"Premises": Offices located on the first floor of the
Building. The Premises are shown cross-hatched
on the floor plan attached hereto as Exhibit B.
"Rentable Area of the Approximately 5,506 rentable square feet.
Premises":
"First Right of Refusal": Provided that Tenant is not in material breach
of the Lease and no amount of Basic Rental is
past due, Tenant shall have the First Right of
Refusal on any space that is vacant or space as
it becomes available on the 1st floor (the
"First Right of Refusal Space") of Building A
during the Lease Term. Tenant's Upon Tenant's
receipt of written notice that Landlord has
received a bona fide offer (the "Offer") for the
lease of any First Right of Refusal Space by a
third party, which notice shall include the
principal terms of the Offer and shall be
delivered by Landlord promptly following
Landlord's receipt of an Offer, Tenant shall
have
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five (5) business days to provide Landlord with
an unequivocal, irrevocable, written commitment
to lease said space in the Building. In the
event Tenant elects to exercise its First Right
of Refusal, such space shall be leased to Tenant
upon the terms and conditions set forth in the
Offer. If Tenant fails to provide Landlord with
such notice within such five (5) business day
period, Landlord shall be free to lease the
subject First Right of Refusal Space to the
third party pursuant to the Offer.
"Security Deposit": $6,423.67 payable upon execution of the Lease.
Tenant currently has a security Deposit of
$1,013.54 which will be applied to the Security
Deposit above.
"Security Services": Landlord currently provides basic security
services and limited camera surveillance.
Landlord shall provide access cards, without
charge but subject to a $25.00 deposit for each
access card issued to Tenant or Tenant's
employees. Cost of access cards are subject to
adjustment without notice to Tenant. Each card
that needs to be replaced or changed for any
reason and that is not returned at the end of
the Lease, Landlord shall retain the $25.00
deposit on each access card and or xxxx Tenant
for the access cards not returned at the end or
termination of the Lease. Landlord will provide
one key 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 lock needed within the
Premises. Landlord reserves the right to change
these services upon notice.
"Signage": Tenant shall have the right to placement on the
building monument sign and suite signage to
Canyon Park Standard. Tenant shall not place any
signs in the lobby or on the building without
receiving prior written approval from the
Landlord. This shall be consistent with the
guidelines and standards established for Canyon
Park. Tenant shall have signage rights on the
exterior building monument sign, main level
lobby directory and
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additional premise entry signage placed there by
Landlord only.
"Tenant Improvements": Tenant accepts the space "As Is" with no Tenant
Improvements provided.
"Term": The Period commencing on the Commencement Date
(as defined below) and, subject to and upon the
terms and conditions set forth herein, or in any
exhibit or addendum hereto, continuing for 36
calendar months thereafter, provided, however,
that if the Commencement Date falls on a date
other than (he first day of a calendar month,
the expiration date of the primary term shall be
extended so as to give effect to the full term
specified above in addition to the remainder of
the calendar month during which the Commencement
Date falls.
Termination Rights: Tenant shall have the right to terminate this
Lease after the twenty fourth month of Basic
Lease payment, provided Landlord has received
three (3) months prior written notice of
unequivocal and irrevocable termination.
The foregoing Basic Lease Information is hereby incorporated into and made a
part of the Lease attached hereto (the "Lease").
Each reference in the Lease to any of the information and definitions set forth
in the Basic Lease Information shall mean and refer to the information and
definitions hereinabove set forth and shall be used in conjunction with and
limited by all references thereto in the provisions of the Lease. In the event
of any conflict between any Basic Lease Information and the Lease, the Lease
shall control.
LANDLORD: TCU Properties II, LLC, a Utah limited
liability company
Date: July 26, 2005 By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President-GM
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TENANT: 10x Marketing, a Utah LLC
Date: July 26, 2005 By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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CANYON PARK TECHNOLOGY CENTER
OFFICE BUILDING LEASE
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THIS LEASE is entered into as of this 26th day of July, 2005 (the "Lease
Date") among l0x Marketing ("Tenant"), and TCU Properties II, LLC, a Utah
limited liability company ("Landlord").
1. Lease Grant and Term. Landlord, in consideration of the rent to be paid and
the other covenants and agreements to be performed by Tenant, dose hereby lease,
demise and let unto Tenant certain premises (the "Premises") located in Building
A (the "Building") of Canyon Park Technology Center (the "Park") as shown in
Exhibit A and Exhibit B hereto commencing on the 1st day of July 2005 (the
"Commencement Date") and ending on midnight on the last day of the month of June
30, 2008 (the "Term"). In addition to the Premises, Tenant shall have reasonable
access to and use of all access ways, lobbies, lavatories, hallways, and parking
areas common to the Premises and other areas of the Building (the "Common
Areas"), provided that any use of the Common Areas shall he subject to the rules
and regulations set forth in Exhibit C hereto and any other reasonable rules and
regulations as Landlord may establish from time to time and provide to Tenant in
writing.
2. Rent. Tenant shall pay to Landlord the sum of $6,194.25 (the "Rent") each
month in advance on the first day of each month in lawful money of the United
States to Landlord at 0000 X xxxxxxxxxx xxx Xxxxxxxx X, Xxxxx 0000 Xxxx, Xxxx
00000 (or such other address as Landlord shall designate in writing to Tenant)
without notice or demand and without any abatement, deduction or set-off, for
each month of the entire Term. The Rent for the first month shall be payable by
Tenant to Landlord upon the execution of this Lease. The next monthly
installment of Rent shall be due and payable without demand beginning on the
first day of the calendar month immediately following the month in which the
Commencement Date occurs and continuing thereafter on or before the first day of
each succeeding calendar month during the Lease Term. Rent for any fractional
month at the beginning of the Lease Term shall be prorated based on one-three
hundred sixty fifth (1/365) of the current annual Rent for each day of the
partial month this Lease is in effect. If all of any sum due under this Lease is
not received by its due date, then Tenant shall pay, in addition to the sum
owed, a late payment charge equal to ten percent (10%) of the sum (or portion
thereof) which is overdue. If a check remitted to pay any sum due to Landlord
hereunder shall not be honored upon presentment for payment, then Tenant in
addition to the amount owed, shall pay to Landlord on demand a fee of five
percent (5%) of the amount owed.
3. Security Deposit. The Security Deposit equal to $6,423.67 month of Rent is
due upon execution of the Lease. Landlord shall hold the Security Deposit
without liability for interest and as security for the performance by Tenant of
Tenant's obligations under this Lease. Tenant agrees that such deposit will not
be considered an advance payment of rental or a measure of Landlord's damages in
case of default by Tenant. Landlord may, from time to time, without prejudice to
any other remedy, use such deposit to make good any arrearage in any amount due
hereunder and to reimburse Landlord for any other damage, injury, expense or
liability caused to Landlord by any breach of this Lease. Following any such
application of the Security Deposit, Tenant shall pay to
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Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount.
4. Utilities, Services and Furniture. Subject to the following limitations,
landlord shall furnish Tenant while Tenant is occupying the Premises and
performing all of its obligations under this Lease (i) heating, ventilation, and
air conditioning ("HVAC") in season, during customary business hours as
reasonably defined by Landlord, and at such temperatures and in such amounts as
are reasonably considered by Landlord to be standard; (ii) janitorial service to
the Common Areas and Premises as is reasonably considered by Landlord to be
standard on weekdays other than Holidays (as hereinafter defined) and such
window-washing as may from time to time in Landlord's judgment reasonably be
required; (iii) elevator service in common with other tenant; (iv) replacement
of Building standard light bulbs and fluorescent tubes; and (v) electric power
in the Premises sufficient to furnish power for lighting, personal computers,
typewriters, voice writers, calculating machines and other machines of similar
low electrical consumption standard to executive offices. Also, Landlord shall
maintain the Common Areas of the Building in reasonably good order and
condition; provided, however, that Tenant shall reimburse Landlord for the cost
of repairing any damage to such areas occasioned by Tenant, or its employees,
contractors, agents or invitees. Landlord's Obligation to make available the
utilities described in this paragraph 4 is subject to the rules and regulations
of the suppliers of utilities and of any municipal or other governmental
authority regulating the business of providing utility services. Landlord shall
not be responsible or liable to Tenant for any loss, damage or expense that
Tenant may sustain or incur if either the quality or character of any utility
services is changed. Landlord failure to any extent to make available, or any
slowdown, stoppage or interruption of, the service set forth in this Paragraph 4
resulting from any cause beyond Landlord's control shall not render Landlord
liable in any respect for damage to person, property or business, nor be
construed an eviction of Teanat or work an abatement of Rent, nor relive Tenant
from fulfilling any covenant or agreement hereof; however, Landlord shall use
reasonable efforts (and shall not be required to employ any workers at overtime
rates) to resume said services in a timely manner. Subject to availability,
Landlord shall provide furniture for the Premises at no additional cost from
existing inventory in the Park, provided such furniture is not being used by
Landlord or other tenants or is not reasonably reserved for other tenants.
Tenant is responsible for any damage to such furniture used by Tenant, normal
wear and tear excepted
5. Condition of Premises. TENANT EXPRESSLY ACKNOWLEDGES THAT (A) TENANT HAS
THOROUGHLY EXAMINED THE PREMISES AND TAKES AND ACCEPT THE PREMISES IN ITS "AS
IS" CONDITION ON THE COMMENCEMENT DATE, (B) LANDLORD AND LANDLORD'S AGENTS AND
EMPLOYEES HAVE MADE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION OF THE
PREMISES, THE BUILDING, THE PROPERTY OR THE PARK NOR HAS LANDLORD MADE ANY
COMMITMENTS TO REMODEL, REPAIR OR REDECORATE, EXCEPT AS EXPRESSLY SET FORTH
HEREIN AND (C) LANDLORD EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR TENANTS INTENDED COMMERCIAL PURPOSE. TENANT EXPRESSLY
WAIVES AND RELEASES LANDLORD FROM ANY IMPLIED WARRANTY NOT SET HEREIN
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6. Permitted Use. Tenant shall use the Premises only for executive offices (the
"Permitted Use"). Tenants shall not occupy or use the Premises, or permit any
portion of the Premises to be occupied or used, for any business or purpose
other than the permitted Use or for any use or purpose which is unlawful in part
or in whole or deemed by Landlord to be disreputable in any manner, nor permit
anything to be done that will in any way invalidate or increase the rate of
insurance on the Building or its contents. Tenants shall promptly upon demand
reimburse Landlord for any additional premium charged for any such insurance by
reason of Tenant's failure to comply with the provisions of this Paragraph.
Tenant will conduct its business and control its agents, employees and invitees
in such a manner as not to create any nuisance, interfere with, annoy or disturb
other tenants or interfere with Landlord in the management of the Building, the
Property or the Park. Tenant will maintain the Premises in a clean, healthful
and safe condition and will comply with all laws, ordinances, orders, rules,
regulations, or restrictions of or recorded by all state, federal, municipal and
other agencies or bodied having jurisdiction over the Premises and governing the
use, condition or occupancy of the Premises, whether existing as of the
Commencement Date or enacted subsequent thereto.
7. Repairs and Alterations. Tenants shall keep and maintain the Premises in a
good, clean condition of repair and maintenance. Tenant shall not damage or
injure the Premises. Tenant further agrees not to commit or allow any waste or
damage to be committed on any portion of the Building or Premises, and at the
termination of this Lease, by lapse of time or otherwise. Tenant shall deliver
up the Premises to Landlord in as good condition as at the Commencement Date.,
ordinary wear and tear expected. Tenant shall not, without the prior written
consent of Landlord, paint, install lightning or decorations (except wall
hangings), or install any signs, window or door lettering or advertising media
of any type on or about the Building or Premises, or any part thereof, or make
any other alterations, improvements or physical additions in or to the Building
or Premises, or any part thereof. At the termination of the Lease, at Landlord's
option and subject to the Landlord's right to retain improvements desired by
Landlord, Tenant shall remove its alterations, additions, and improvements, and
restore any portions of the Premises altered, added to, or improved by Tenant to
the original condition.
8. Assignment and Subletting. Tenant shall not, either voluntarily or by
operation of law, assign all or any portion of this Lease, nor sublet the
Premises or any part thereof, nor permit the Premises or any part thereof to be
occupied by any person other than Tenant or Tenant's employees, without the
Prior written consent of Landlord.
9. Indemnity. Landlord shall not be liable or responsible to Tenant for any loss
or damage to any property or person occasioned by theft, act of a God, public
enemy, injunction, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority, or for any damage or inconvenience that
may arise through repair or alteration of any part of the Building or any part
of the Park, or failure to make any such repairs unless caused by the gross
negligence or willful misconduct of Landlord. In addition, Landlord shall not be
liable to Tenant, or to Tenant's agents, servants, employees, customers or
invitees for, and Tenant shall indemnify, defend and hold harmless Landlord of
and form, all fines, suits, claims, demand, losses,
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liabilities, actions and costs (including court costs and attorneys' fees, at
trial and on appeal) arising in whole or in part from (i) any injury to person
or damage to property caused by any act, omission or neglect of Tenant, Tenant's
agents, servants, employees, customers or invitees, (ii) Tenant's use of the
Premises or the conduct of Tenant's business or profession, (iii) any activity,
work, or thing done, permitted or suffered by Tenant in or about the Premises or
(iv) any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this lease.
(a) Tenant shall defend, indemnify and hold harmless Landlord, its
affiliates and its or their officers, directors, employees and agents,
("Landlord's Indemnities") from and against any and all claims arising from or
in connection with (i) any act or any condition created in the Premises by
Tenant or Tenant's agents, employees, invitees or contractors, or (ii) any
accident, bodily injury (including death) or damage to property, including
damage to property or injury of Tenant or its employees, agents, contractors, or
invitees occurring in the Premises, unless (i) caused by the gross negligence of
Landlord, its agents, employees, or contractors, or (ii) caused by or relating
to any breach or default by Landlord in the full and prompt performance of
Landlord's obligations under this Lease which remains uncured beyond a
reasonable period of time after Landlord is given notice thereof by Tenant.
(b) Notwithstanding any provision to the contrary, Tenant shall look
solely to Landlord's interests in the Park in the event of any claim against
Landlord arising out of this Lease. No other properties or assets of Landlord or
any agent or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any remedy of Tenant arising out
of this Lease. Landlord in no event shall be liable for consequential damages
arising out of any loss of use of the Demised Premises or any equipment or
facilities therein by Tenant or any person claiming through Tenant.
(c) Tenant shall maintain a policy of comprehensive general liability
insurance pertaining to its use and occupancy of the Premises hereunder, with
the premiums thereof fully paid in advance, issued by and binding upon a solvent
insurance company qualified to do business in the State of Utah, such insurance
to name Landlord as an additional insured. Such policy shall afford minimum
protection of not less One Million and No/100 Dollars ($1,000,000.00) combined
single limit for bodily injury, death to any one person, or property damage in
any one occurrence. Additionally, Tenant shall obtain and maintain "all risk"
insurance in respect to Tenant's stock in trade, fixtures, furnishings, floor
covering, equipment and all other property of Tenant in the Premises, insuring
100% insurable value of such property. Landlord and the Tenant hereby waive any
and all rights of recovery against the other or against the officers, agents,
employees, and representatives of loss or damage occasioned to the Tenant or its
property of others under its control, to the extent that such loss or damage is
covered under any insurance policies carried by the Landlord or the Tenant, as
the case may be, and in force at the time of such loss or damage.
10. Subordination. This Lease and all rights of Tenant hereunder are and shall
be subject and subordinate to any deeds of trust, mortgages or other instruments
of security ("Security
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Instruments"), as well as to any ground leases or primary leases ("Master
Leases"), that now or hereafter cover any of the Property or any interest of
Landlord therein, and to any and all advances made on the security thereof, and
to any and all increases, renewals, modifications, consolidations, replacements
and extensions thereof. Landlord hereby expressly reserves the right, at its
option and declaration, to place Security Instruments and Master Leases on and
against any of the Building or Premises or any interest of Landlord therein,
superior in effect to this Lease and the estate created hereby. This clause
shall be self-operative and no further instrument of subordination need be
required, however, upon Landlord's request, or upon the request of any holder (a
"Holder") under any Security Instrument, or of any lessor (a "Lessor") under any
Master Lease, Tenant shall execute promptly any instrument (including without
limitation an amendment to this Lease that does not materially and adversely
affect Tenant's rights or duties under this Lease) or instruments intended to
subordinate this Lease or to evidence the subordination of this Lease to any
such Security Instrument or Master Lease. Tenant hereby appoints Landlord
Tenant's attorney in fact to execute any such instrument for and on behalf of
Tenant. In the event of the enforcement by a Holder under any Security
Instrument of the remedies provided for by law or by such Security Instrument,
or in the event of the termination of any Master Lease, the Holder or the Lessor
may terminate this Lease or may continue this Lease in full force and effect as
a direct lease between such Holder or Lessor and Tenant. If the Holder or Lessor
continues this lease, Tenant will attorn to and automatically become the tenant
of such successor in interest without change in the terms or other provisions of
this Lease (Tenant hereby waiving any right Tenant may have to terminate this
Lease or surrender possession of the Premises) and this Lease shall continue in
full force and effect; provided, however, that such successor in interest shall
not be bound by or liable for (i) any payment of Rent for more than one month in
advance, (ii) any amendment or modification of this Lease made without the
written consent of such Holder, Lessor or successor in interest, or (iii) any
offset, claim or cause of action which Tenant may have against Landlord relating
to the period which is prior to the time Tenant becomes the tenant of such
successor in interest. Upon request by any Holder, Lessor or successor in
interest to either, Tenant shall execute and deliver an instrument confirming
this attornment herein provided for. Tenant agrees that any Holder or Lessor may
at any time subordinate any rights, which Holder or Lessor may hold to the
rights of Tenant under this Lease.
11. Rules and Regulation. Tenant shall comply fully with the rules and
regulations of the Building and the Park attached hereto as Exhibit C, and any
applicable restrictive covenants, which may be attached hereto as Exhibit D,
which exhibits are made a part hereof as though fully set out herein. Tenant
shall further be responsible for the compliance with such rules and regulations
by the employees, servants, agents, contractors, visitors and invitees of
Tenant. Landlord reserves the right to amend or rescind any of the rules and
regulations and to make such other and further rules and regulations as in its
reasonable judgment shall from time to time be prudent in the operation and
management of the Premises, the Building, and/or the Park, which rules and
regulations shall be binding upon Tenant upon notice to Tenant of same.
12. Inspection and Access. Landlord and its officers, agents and representatives
shall have the right to enter into and upon any and all parts of the Premises at
all reasonable hours (or, if
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any emergency, at any hour) for all reasonable purposes, including without
limitation making repairs or alterations, inspecting the Premises, and showing
the Premises to prospective tenants, purchasers or lenders.
13. Condemnation and Casualty. If any or all of the Premises shall be taken by
any public or quasi-public authority under the power of condemnation, eminent
domain or expropriation, or in the event of conveyance of all of the Premises in
lieu thereof, this Lease shall terminate as of the day possession shall be taken
by such authority. All awards and compensation for any taking or conveyance,
whether for the whole or a part of the Premises or Building, shall be property
of Landlord, and Tenant hereby assigns to Landlord all of Tenant's right, title
and interest in and to any and all such awards and compensation. If the Premises
or the Building shall be destroyed or materially damaged and Landlord is unable
to restore the Premises or the Building to an acceptable condition within a
reasonable amount of time, then either party may terminate this Lease by notice
to the other within thirty (30) days after the occurrence of the casualty, and
this Lease shall terminate as of the date of the casualty.
14. Holding Over. Should Tenant hold over in the Premises after the expiration
of the Lease Term, such tenancy shall constitute and be construed as a tenancy
at will at a rental equal to the Rent plus fifty percent (50%) of such amount,
subject to the other terms and conditions of this Lease. The inclusion of the
preceding sentence shall not be construed as Landlord's consent for Tenant to
hold over.
15. Unauthorized Tenancy. Tenant shall not occupy space in the Building that is
not included under the Terms of the Lease. Should Tenant occupy such space in
the Building that is not include under the Terms of the Lease, such occupancy
shall constitute and be construed as a tenancy at will at a rental equal to the
Rent plus fifty percent (50%) of such amount, subject to the other terms and
conditions of this Lease. The inclusion of the preceding sentence shall not be
construed as Landlord's consent for Tenant to occupy space that is not included
under this Lease.
16. Default. If Tenant or Guarantor (i) fails to pay when due any Rent or other
sum payable by Tenant hereunder and such failure continues for a period of three
(3) days after written notice to Tenant by Landlord, (ii) fails to comply with
or observe any other provision of this Lease within fifteen (15) days after
delivery to Tenant of notice thereof, (iii) makes a transfer in fraud of
creditors or an assignment for the benefit of creditors, (iv) files or is named
as a debtor in a bankruptcy petition, or (v) shall abandon or vacate or fails to
utilize or vacate any portion of the Premises for the Permitted Use for ten (10)
or more consecutive days, (vi) fails to execute an Estoppels Certificate in the
form and time period requested by Landlord pursuant to Paragraph 19, (vii)
Tenant shall do or permit to be done anything which create a lien upon the
Premises which is not removed within twenty (20) days after its creation.
Landlord may pursue any and all remedies which it may then have hereunder or at
law or in equity, including, without limitation the following:
(a) Without releasing Tenant from liability for the remainder of the
Term, Landlord may Terminate this Lease, in which event Tenant immediately shall
surrender the
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Premises to Landlord, and if Tenants fails to do so, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearage in
rent, enter upon and take possession of the Premises. Tenant agrees to pay to
Landlord on demand the amount of all loss, cost, expense and damage which
Landlord may suffer or incur by reason of such termination, including without
limitation any loss caused by Landlord's inability (after a commercially
reasonable effort) to relet the Premises on terms or conditions reasonably
satisfactorily to Landlord.
(b) Without releasing Tenant from liability for the remainder of the
Term, Landlord may enter upon and take possession of the Premises by virtue of
the laws of the State of Utah for summary proceedings for possession of real
estate or such other proceeding as may be applicable, and if Landlord so elects,
relet all or any part of the Premises on such terms as Landlord shall deem
advisable (including, without limitation, such concessions and free rent as
Landlord deems necessary or desirable) and receive and retain all of the rent
therefor; and Tenant agrees (i) to pay to Landlord on demand any deficiency that
may arise by reason of such reletting for the remainder of the Lease Term, and
(ii) that Tenant shall not be entitled to any rents or other payments are in
excess of the amounts that would otherwise be payable to Landlord under this
Lease. Tenant shall be liable immediately to Landlord for all costs Landlord
incurs in reletting the Premises, including, without limitation, broker's
commissions, reasonable attorneys' fees incurred in connection with the
reletting and in connection with Tenant's default hereunder, expenses of
repairing, altering and remodeling the Premises required by the reletting, and
like costs. Tenant expressly acknowledges that Landlord has no duty to relet the
Premises, that Landlord may offer all or any part of the Premises for any
period, to any tenant and for any use which Landlord may elect, and that
Landlord may offer for lease any vacant space in the Project Building prior to
offering the Premises for lease.
(c) Landlord may make such payments or enter upon the Premises, and
perform whatever Tenant is obligated to pay or perform under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any expenditures
and expenses (together with interest thereon at the rate of eighteen percent
(18%) from the date paid by Landlord) which Landlord may make or incur in thus
effecting compliance with Tenant's obligations under this Lease.
(d) If Landlord takes possession of the Premises as permitted herein,
Landlord may keep in place and use all furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by a lessor
or third party having a lien thereon. Tenant shall pay to Landlord all costs
incurred by Landlord in connection with any removal, disposal, or storage of
Tenant's personal property and shall indemnify and hold Landlord harmless from
all loss, damage, cost, expense and liability in connection with such removal,
disposal, or storage. Landlord's rights herein are in addition to any other
rights Landlord may have at law or equity.
17. Landlord's Liability. Landlord shall not be in default under this Lease
unless and until it fails to perform an obligation hereunder within fifteen (15)
days after written notice by Tenant to
14
Landlord specifying the obligation which Landlord has not performed. However, if
Landlord's obligation reasonably requires more than 15 days for its performance,
Landlord shall not be in default if it commences performance within such 15 day
period and uses reasonable efforts to complete the same. Tenant has no right to
claim any nature of lien against the Building or to withhold, deduct from or
offset against any Rent or other sums to be paid to Landlord. All obligations of
Landlord hereunder are binding upon Landlord only during the period of its
ownership of the Building or Premises. The term "Landlord" means only the owner,
for the time being, of the Building or Premises. In the event of the transfer by
such owner of its interest in the Building or Premises, such owner shall
thereupon be released and discharged from all covenants and obligations of
Landlord thereafter accruing, but such covenants and obligations shall be
binding during the Lease Term upon each now owner for the duration of such
owner's ownership. Any liability of Landlord to Tenant relating to this Lease
shall be limited to the interest of Landlord in the Premises, and Landlord shall
not be personally liable for any deficiency.
18. Attorneys' Fees. In the event that any action or proceeding is brought to
enforce any term, covenant or condition of this Lease on the part of Landlord or
Tenant, the prevailing party in such action or proceeding shall be entitled to
reasonable attorney's fees to be fixed by the court therein.
19. Estoppel Certificates. Tenant agrees to furnish from time to time when
requested by (a) Landlord, (b) a Holder or a Lessor, or (c) any prospective
Holder, Lessor or purchaser of the Building, a certificate signed by Tenant
confirming such factual certifications and representations as to the terms and
conditions of this Lease and amendments, if any, as may be deemed appropriate by
Landlord or any such Holder, Lessor, or purchaser, and Tenant shall, within
fifteen (15) days following Tenant's receipt of said proposed certificate from
Landlord, return a fully executed copy of said certificate to Landlord. In the
event Tenant fails to return a fully executed copy of such certificate to
Landlord within said fifteen-day period, then Tenant conclusively shall be
deemed to have approved and confirmed all of the terms, certifications and
representations contained in such certificate.
20. Notices. Any notice, request or documents (excluding Rent and other
payments) permitted or required to be delivered hereunder must be in writing and
shall be deemed delivered upon receipt if actually received and whether or not
received when deposited in the United States mail, postage prepaid, certified
mail (with return receipt requested), addressed to Tenant and Landlord (with a
copy to Landlord's Counsel) at the respective addresses set forth in this
paragraph or at such other address as either of said parties have theretofore
specified by written notice delivered in accordance herewith. To be effective,
any notice sent to Landlord must also be sent to Landlord's Counsel.
Address of Landlord: Attn: Xxxxx Xxxxxxxxx
Canyon Park Management
0000 X Xxxxxxxxxx Xxx
Xxxxx 0000
00
Xxxx, Xxxx 00000
Telephone: (000) 000-0000 ex. 399
Landlord's Counsel: Attn: Monte Deere
Xxxxxxx Xxxxxxx Xxxxxxx & Deere
0000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Address of Tenant: Attn:
Xxxxxx X. Xxxxxxx
0000 X. Xxxxxxxxxx Xxx
Xxxx, Xxxx 00000
21. Severability. If any clause or provision of this Lease is illegal, invalid
or unenforceable under present or future laws effective during the Lease Term,
it is the intention of the parties hereto that (i) the remainder of this Lease
shall not be affected thereby and (ii) in lieu of each clause or provision of
this Lease that is illegal, invalid or unenforceable, there be added as a part
of this Lease a clause or provision as similar as possible in terms to such
invalidated clause or provision as may be legal, valid and enforceable.
22. Amendments; No Waiver; Binding Effect. This Lease may not be altered,
changed or amended, except by instrument in writing signed by both parties
hereto. No provision of this Lease shall be deemed to have been waived by
Landlord or Tenant unless such waiver be in writing signed by the party making
the waiver and addressed to the other party, noR shall any custom or practice
which may evolve between the parties in the administration of the terms hereof
be construed to waive or lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. The terms and
conditions contained in this Lease shall apply to, inure to the benefit of, and
be binding upon the parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein expressly
provided.
23. Quiet Enjoyment. Tenant shall peaceably and quietly hold and enjoy the
Premises for the Lease Term, without hindrance from Landlord or Landlord's
successors or assigns, subject to (i) the terms and conditions of this Lease,
including the performance by Tenant of all of the terms and conditions of this
Lease to be performed by Tenant, including the payment of rent and other amounts
due hereunder, and (ii) actions and claims of any person or entity holding
superior title to that of Landlord, including, but not by way of limitation, any
person or entity who holds an interest in the Premises to which the leasehold
interests created by this Lease is subordinate.
24. Miscellaneous.
(a) Each and every covenant and agreement contained in this Lease is,
and shall be construed to be, a separate and independent covenant and agreement.
16
(b) Neither Landlord nor Landlord's agents or brokers have made any
representations or promises with respect to the Building or Premises, or any
portion thereof, except as herein expressly set forth and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease.
(c) This lease shall be subject to any all easements, rights-of-way,
covenants, liens, conditions, restrictions, outstanding mineral interest and
royalty interests, if any, relating to the Park, to the extent, and only to the
extent, same still may be in force and effect and either shown of record in the
Office of the County Clerk of Utah County, Utah or apparent on the Building or
Premises.
(d) Tenant shall not record this lease.
(e) If Tenant is a corporation or association, Tenant shall deliver to
Landlord upon execution of this Lease a certified copy of a resolution of its
board of directors or executive committee authorizing the execution of this
Lease and naming the officers who are authorized to execute this Lease on behalf
of Tenant. Notwithstanding the preceding sentence, Tenant shall be bound by the
signature of any officer of Tenant purporting to have the necessary authority to
sign this Lease, but Landlord may elect to terminate this Lease if Landlord has
not received and approved the form of such a resolution within sixty (60) days
of the execution of this lease.
(f) Tenant acknowledges that certain of Landlord's employees and
security vendors will, in response to a signal by Tenant or Landlord, assemble
to address an emergency anywhere in the Park. None of these personnel will be
held liable by Tenant for any actions taken in responding to an emergency in the
Park; further, Tenant shall indemnify and hold Landlord, its agents and
employees harmless from and against any and all claims brought by Tenant's
employees, contractors, agents or invitees and any of their dependents, heirs
successors or assigns arising out of any act or omission, including negligence,
of the members of the Emergency Control Force which may occur while carrying out
their duties in responding to an emergency in the Park.
(g) All payments required to be made hereunder shall constitute
additional Rent hereunder. Landlord shall have the same rights and remedies with
respect to the non-payment of additional Rent as it is with respect to the
non-payment of Rent.
25. Force Majeure. If Landlord is delayed in performing an obligation of
Landlord hereunder as a result of strikes, lockouts, shortages of labor, fuel or
materials, acts of God, legal requirements, fire or other casualty, or any other
cause beyond Landlord's control, then performance such obligation shall be
extended by the number of days equivalent to the number of days of such delay.
Landlord shall not be required to settle or compromise any strike, lockout or
other labor disputes, the resolution thereof being within the sole discretion of
Landlord.
17
26. Access Control Services. Landlord currently provides basic access control
services, which include card access, security patrols and limited camera
surveillance. Landlord shall provide access cards for Tenant and Tenant's
employees, without charge but subject to change without notice, to Tenant at the
beginning of the Lease Term. There will be a $25.00 charge, subject to
adjustment without notice, to the Tenant for each additional card or for any
card that needs to be replaced or changed for any reason or 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. Landlord reserves the right to change these
services upon notice. Landlord shall not be held liable for any failure to
provide security services or take other security measures for the Building or
Park.
28. Exhibits. All exhibits and attachments referred to in this Lease and the
exhibits listed below and attached hereto are incorporated into this Lease and
made a part hereof for all intents and purposes as if fully set out herein. All
capitalized terms used in such documents shall, unless otherwise defined
therein, have the same meanings as are set forth herein.
Exhibit A - Site Plan of Park Showing Building
Exhibit B - Floor Plan of Premises located in the Building
Exhibit C - Rules and Regulations
Exhibit D - Restrictive Covenants deemed Rules and Regulations
Exhibit E - Operating Expenses
18
This Lease is hereby executed by Landlord, Tenant, and Guarantor as of the
date first written above.
LANDLORD: TCU Properties II, LLC, a Utah Limited
Liability company
By: Technology Center of Utah Management
Company, Inc., a Utah corporation,
Manager of TCU Management II, LLC
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President-GM
Date: July 26, 2005
TENANT: 10X Marketing a Utah LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
Date: July 26, 2005
19
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Building or Premises and the Park and to each portion thereof:
1. Smoking will not be permitted within the Building or any other Park
Building. No tenant or tenant's agent, employee, invitee or contractor may smoke
anywhere on the Land other than areas outside the Building which are expressly
designated as smoking areas.
2. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from that tenant's premises and for going
from one to another part of the Park.
3. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or such tenant's agents, employees or
invitees shall be paid by such tenant and landlord shall not in any case be
responsible therefore.
4. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors or other exterior part of the Building (or be visible from
any pubic or common area) unless they are of such color, size and style and in
such places as shall be first approved in writing by Landlord. Landlord, at each
tenant's sole cost and expense, shall install all letters or numbers by or on
doors in such tenant's premises which letters or numbers shall be in Building
standard graphics. No nails, hooks or screws shall be driven or inserted in any
part of the Building outside the premises except by any Building maintenance
personnel nor shall any part of any Building be defaced by tenants. No curtains
or other window treatment shall be placed between the glass and the Building
standard window treatments.
5. One key to the locks on the corridor doors entering each tenant's
premises shall be furnished by Landlord free of charge, with any additional keys
to be furnished by Landlord to each tenant, at such tenant's cost. Landlord
shall provide all locks for other doors in each tenant's premises, at the cost
of such tenant, and no tenant shall place any additional lock or locks on any
door in or to its premises without Landlord's prior written consent. All such
keys shall remain the property of Landlord. Each tenant shall give to Landlord
the explanation of the combination of all locks for safes, safe cabinets and
vault doors, if any, in such tenant's premises.
6. With respect to work being performed by tenants in any premises with the
approval of Landlord, all tenants will refer all contractors, contractor's
representatives and installation technicians rending any service to them to
Landlord for Landlord'd supervision, approval and control before the performance
of any contractual services. This provision shall apply to all work performed in
the Building including, but not limited to, installations of telephones,
telegraph equipment, electrical devices and attachments, doors, entrances, and
any and all installations of every nature affecting floors, walls, woodwork,
trim, windows, ceilings, equipment and any other physical portion of the
Building.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material or merchandise which
requires use of elevators or stairways, or movement through the Building
entrances or lobby shall be restricted to such hours as Landlord shall
designate. All such movements shall be made under the supervision of Landlord
and in the manner agreed between the tenants and Landlord by prearrangement
before performance. Such prearrangement initiated by a tenant will include
Landlord's determination, and to be subject to Landlord's decision and control,
as to the time, method, and routing of movement and as to limitations for safety
or other concern which may prohibit any article, equipment or any other item
from being brought into the Building. Tenants shall assume all risk as to the
damage to articles moved and injury to persons or public engaged or not engaged
in such movement, including movement, property and personnel of Landlord if
damaged or injured as a result of acts in connection with carrying out this
service for a tenant from time of entering the Building or Premises to
completion of work; and Landlord shall not be liable for acts of any person
engaged in, or any damage or loss to any of said property or persons resulting
from, any act in connection with such service performed for a tenant.
8. Landlord may prescribe the weight and position of safes and other heavy
equipment or items, which shall in all case, to distribute weight, stand on
suppoting devices approved by Landlord. All damages done to the Building by the
installation or removal of any property of tenant, or done by a tenant's
property while in the Building, shall be repaired at the expense of such tenant.
Each tenant shall shall bear all costs incurred by Landlord or such tenant in
determining the feasibility or actual installation of any heavy equipment. A
tenant shall notify the Building manager when safes or other heavy equipment. A
shall notify the Building Manager when safes or other heavy equipment are to be
taken in or out of the Building, and the moving shall be done under the
supervision of the Building Manager, after written permission from Landlord,
Perons employed to move such property must be acceptable to Landlord.
9. Coridor doors, when not in use, shall be kept closed.
10. Each tenant shall cooperate with Landlord's with Landlord's employees
in keeping its premises neat and clean.
11. Landlord shall be in no way responsible to the tenants, their agents,
employees or invitees for any loss of property from the premises or public areas
or for any damages to any property thereon from any cause whatsoever.
12. To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any premises except by
persons appointed or approved by Landlord in writing.
13. Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electrician where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Except as provided in each tenant's lease, electric
current shall not be used for heating or nonstandard power requirements without
Landlord's prior written permission.
14. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
15. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept in, on or
about any tenant's premises, except as may be allowed by law.
16. No machinery of any kind shall be operated by any tenant in its
premises without the prior written consent of Landlord, nor shall any tenant use
or keep in the Building any inflammable or explosive fluid or substance.
17. No portion of any tenant's premises shall at any time be used or
occupied as sleeping or lodging quarters.
18. Each tenant and its agents, employees and invites shall park only in
those areas designated by Landlord for parking and shall not park on any public
or private streets contiguous to, surrounding or in the vicinity of the Building
without Landlord's prior written consent.
19. Landlord will not be responsible for lost or stolen property, money or
jewelry from any tenant's premises or public or common areas regardless of
whether such loss occurs when the area is locked against entry or not.
EXHIBIT E
OPERATING EXPENSES
In addition to the Basic Rental payable by Tenant under this Lease, Tenant
shall pay additional rent determined as follows:
(1) The Operating Expenses (as hereinafter defined) attributable to the
Premises shall be computed by multiplying the "Operating Expenses Per Square
Foot of RA" (as defined in Paragraph (7) below) by the RA of the Premises. For
the purposes of this Exhibit E, the term "Operating Expenses" shall mean the sum
of (i) any and all costs, expenses and disbursements of every kind and
character, which Landlord shall incur, pay or become obligated to pay in
connection with the ownership of any estate or interest in, operation,
maintenance, repair, replacement and security of the Applicable Leased Buildings
(as hereafter defined), or any portion thereof and (ii) the Applicable Share (as
hereunder defined) of all costs, expenses and disbursements of every kind and
character which Landlord shall incur, pay or become obligated to pay in
connection with the ownership, operation, maintenance, repair, replacement and
security of the Shared Park Facilities in each instance, determined in
accordance with generally accepted accounting principles consistently applied,
including but not limited to the following:
(a) Wages, salaries and other benefits of all employees of Landlord and/or
any managing agent who are engaged in the operation, repair,
replacement, maintenance and security of the Applicable Leased
Building and/or the Shared Park Facilities and any property manager
for the Park (including without limitation, payroll, unemployment,
social security and other taxes, insurance, vacation, holiday and sick
pay and other fringe benefits, but excluding any profit sharing
benefits) management fees of any managing agent of the Applicable
Leased Buildings and/or the Shared Park Facilities and legal fees and
expenses incurred in connection with the Applicable Leased Building
and/or the Shared Park Facilities.
(b) All supplies, equipment and materials used in the operation,
maintenance, repair, replacement and security of all or any portion of
the Applicable Leased Building and/or the Shared Park Facilities. A
charge for depreciation of equipment so used may be included in
Operating Expenses.
(c) Annual cost of all capital improvements made to the Applicable Leased
Building and/or the Shared Park Facilities which although capital in
nature can reasonably be expected to reduce the normal operating costs
of the Applicable Leased Building and/or the Shared Park Facilities,
as well as all
capital improvements made in order to comply with any statutes, rules,
regulations or directives of any governmental authority relating to
energy conservation, public safety or security or access for disabled
individuals, as amortized (with interest on the unamortized balance at
the market rate then generally available for such improvements) over
the useful life of such improvements by Landlords for federal income
tax purposes.
(d) Cost of all utilities, other than the cost of excess or individually
metered utilities supplied to tenants of the Applicable Leased
Buildings which is actually reimbursed to Landlord by such tenants.
(e) Cost of all maintenance and service agreements on equipment relating
to or in the Applicable Leased Buildings and/or the Shared Park
Facilities, including without limitation alarm service, HVAC service,
security service, and elevator maintenance, and window cleaning for
the Applicable Leased Buildings and/or Shared Park Facilities.
(f) Cost of casualty, rental abatement and liability insurance applicable
to the Applicable Leased Building and/or the Shared Park Facilities
and Landlord's personal property, equipment and fixtures used in
connection therewith, together with any other insurance deemed
necessary or desirable by Landlord or any holder of a lien secured by
the Property, including any deductible under any policy of insurance.
(g) Cost of repairs, replacements and general maintenance of the
Applicable Leased Buildings and/or the Shared Park Facilities or any
portion thereof.
(h) Cost of service or maintenance contracts for the operation,
maintenance, repair, replacement or security of the Applicable Leased
Buildings and/or the Shared Park Facilities or any portion thereof,
including without limitation janitorial and cleaning contracts.
(i) Any costs incurred by reason of easements or restrictions affecting
all or any portion of the Applicable Leased Buildings and/or the
Shared Park Facilities (including without limitation any fees, charges
or assessments of any property owners association) and any costs
incurred in the operation, maintenance, repair, replacement and
security of the common and public areas on or serving the Property, or
any portion thereof, including, but not limited to, the parking
garages or parking facilities serving the Applicable Leased Buildings
and/or Shared Park Facilities.
"Operating Expenses" shall not include capital improvements made to the
Applicable Leased Buildings and/or the Shared Park Facilities, other than (A)
capital improvements described in subparagraph (1)(c) above and (B) items which,
though capital for accounting purposes, are properly considered maintenance and
repair items (such as painting of common areas, replacement of carpet, and the
like), or payments made by Tenant or other tenants of the Applicable Leased
Buildings, either to third parties or to Landlord, under agreements for direct
reimbursement for services.
"Operating Expenses" shall also not include the following expenses: (i) Taxes,
(ii) costs with respect to services for which Landlord is reimbursed by tenants
of the Applicable Leased Buildings (other than pursuant to an operating expense
escalation provision) provided such service is not of a type being supplied by
Landlord to Tenant under this Lease
(2) For purposes of determining "Excess Taxes" (as such term is defined in
the Basic Lease Information), "Taxes Per Square Foot of RA" shall mean Taxes,
(hereinafter defined) attributable to the Applicable Leased Buildings divided by
the aggregate rentable square feet of office space in the Applicable Leased
Buildings. As used herein, the term "Taxes" shall mean all taxes and assessments
and government charges whether federal, state, county or municipal, and whether
they be by taxing districts or authorities presently taxing or by others,
subsequently created or otherwise, and any other taxes or assessments
attributable to the Applicable Leased Buildings and its operations, excluding,
however, federal and state taxes on income (except as specifically permitted by
this subparagraph (2), together with all costs and expenses of contesting the
validity or amount of such taxes and assessments. If at any time during the
Lease Term, the present method of taxation shall be changed so that in lieu of
or in addition to the whole or any part of the Taxes, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly on the
rents received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents of the Applicable
Leased Buildings, then all such taxes, assessments, levies or charges, or the
part thereof so measured or based, shall be deemed to be included within the
term "Taxes" for purposes of the Exhibit E. Notwithstanding the foregoing, if
during any calendar year the Applicable Leased Buildings are not separately
taxed from other portions of the Park, then the term Taxes per Square Foot of RA
shall be deemed equal to the Taxes for the entire Park multiplied by Applicable
Share and divided by the aggregate rentable square feet in the Applicable Leased
Buildings.
(3) During the Lease Term, Tenant shall pay as a component of the Adjusted
Rental, the Excess Operating Expenses and the Excess Taxes (both as defined in
the Basic Lease Information). With respect to each calendar year during the
Lease Term commencing with calendar year 2003, Landlord shall have the option of
making a good faith estimate of the Excess
Operating Expenses and the Excess Taxes for the calendar year in question or the
upcoming calendar year as the case may be, and upon thirty (30) days written
notice to Tenant may require that Tenant pay said estimated Excess Operating
Expenses and estimated Excess Taxes in equal monthly installments in the manner
and at the times set forth in Paragraph 3 of the Lease for payment of the
Adjusted Rental. Alternatively, Landlord may require payment of the Excess
Operating Expenses and the Excess Taxes in a lump sum at the time when the
Operating Expenses and Taxes are available for each calendar year. For purposes
of calculating the Excess Operating Expenses and the Excess Taxes payable with
respect to any fractional calendar year during the Lease Term, Landlord may
either (i) estimate Operating Expenses and Taxes for the portion of the Lease
Term during such partial year, or (ii) estimate Operating Expenses and Taxes for
the entire calendar year and reduce the same to an amount bearing the same
proportion to the full amount of estimated Operating Expenses and estimated
Taxes for such year as the number of days in such fractional calendar year bears
to the total number of days in such full calendar year. All payments of Excess
Operating Expenses and Excess Taxes based upon an estimate of Landlord shall be
subject to adjustment as more particularly described in Paragraph 3 of this
Exhibit E.
(4) On or before May 1 of each calendar year during the Lease Term (or of the
calendar year immediately succeeding the termination of this Lease), or as soon
thereafter as practical, Landlord shall furnish to Tenant a statement of the
Operating Expenses, the Operating Expenses Per Square Foot of RA and the RA of
the Premises for the previous calendar year. If Tenant's total payments of
Excess Operating Expenses for any calendar year (or portion thereof) during the
Lease Term (based on Landlord's estimate of the Excess Operating Expenses)
exceed the Excess Operating Expenses actually due during such year (or portion
thereof), then Landlord, at Landlord's sole option, either shall credit to
Tenant's account or shall refund to Tenant any overpayment. Likewise, Tenant
shall pay to Landlord within ten (10) days after written demand, the amount by
which the Excess Operating Expenses for any calendar year (or portion thereof)
during the Lease Term, exceed the Excess Operating Expenses payments received by
Landlord from Tenant for such calendar Year (or portion thereof).
(5) Definitions. As used herein,
(a) the term "Applicable Leased Buildings" shall mean Building __ as shown
on the site plan for the Park provided that (i) if any of said
Buildings shall not be occupied by at least one tenant of Landlord for
at least 180 days during any calendar year, then such Building shall
not be deemed an Applicable Leased Building for such calendar year and
(ii) if any Park Building other than the Buildings listed above shall
be occupied by at least one tenant of Landlord for at least one tenant
of Landlord for at least 180 days during any calendar year then such
Building shall be deemed an Applicable Leased Building for such
calendar year;
(b) the term "Applicable Share" shall mean ____%, provided that if the RA
of any Applicable Leased Building or any Park Building shall increase
or decrease such percentage shall be appropriately modified, it being
the intent of the parties that Applicable Share shall mean the
aggregate RA of the Applicable Leased Buildings divided by the RA of
all Park Buildings; and
(c) the term "Operating Expenses Per Square Foot of RA" shall mean
Operating Expenses during the calendar year in question divided by the
aggregate RA of the Applicable Leased Buildings.
