Sample Contracts - UT-Orem-Canyon Park Technology Center Lease - TCU Properties I LLC and Omniture Inc.


Lease Date:		As of , 2003.

“Tenant”:		Omniture, Inc.

Address of Tenant		756 East Technology Avenue Orem, Utah 84097

Contact:		Josh James Telephone: 801-722-7000

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

Address of Landlord:		Canyon Park Management Company 1501 North Technology Way Orem, Utah 84097 Contact: Allen Finlinson Telephone: (801) 764-0005 Ext 399

Landlord’s Counsel:		Attn: Monte Deere Bennett Tueller Johnson & Deere 3865 S. Wasatch Blvd., Suite 300 Salt Lake City, Utah 84109

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

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

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

“Base Year”:		Calendar Year 2003

“Basic Rental”:		$223,533 per annum ($18,627.75 per month) The security deposit shall be due upon execution of the Lease. The Security Deposit shall be equal to the last month’s rent.

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“Broker”:		None.

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

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

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

“Commencement Date”:		, 2003.

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

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

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

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

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

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

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

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

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

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

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

“Guarantor”:		None

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

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

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

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

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

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

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

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

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

Rentable Area (or “RA”) of the Premises:		Approximately 16,558 rentable square feet.

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

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

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

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

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

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

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

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

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

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TABLE OF CONTENTS

Paragraph
No.

1. Definitions and Basic Provisions
2. Lease Grant
3. Rent
4. Security Deposit
5. Leasehold Improvements
6. Landlord’s Obligations
7. Condition of Premises
8. Use
9. Tenant’s Repairs and Alterations
10. Assignment and Subletting
11. Compliance with Laws
12. Indemnity
13. Subordination
14. Rules and Regulations
15. Inspection
16. Condemnation
17. Fire or Other Casualty
18. Holding Over
19. Taxes on Tenant’s Property
20. Events of Default
21. Remedies
22. Landlord’s Liability
23. Surrender of Premises
24. Attorneys’ Fees
25. Mechanic’s Liens
26. No Subrogation-Insurance
27. Brokerage
28. Building Name
29. Estoppel Certificates
30. Notices
31. Severability
32. Amendments; No Waiver; Binding Effect
33. Quiet Enjoyment
34. Gender
35. Joint and Several Liability
36. Certain Rights Reserved by Landlord
37. Notice to Lender

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CANYON PARK TECHNOLOGY CENTER
OFFICE BUILDING LEASE AGREEMENT

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

1. Definitions and Basic Provisions.

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

2. Lease Grant.

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

3. Rent.

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

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

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

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

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

4. Security Deposit.

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

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

5. Leasehold Improvements.

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

6. Landlord’s Obligations.

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

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

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

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

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

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

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

8. Use.

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

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

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9. Repairs and Alterations.

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

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

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

10. Assignment and Subletting.

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

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

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

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

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

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

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

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

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

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

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

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

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

12. Indemnity.

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

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

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

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

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

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

13. Subordination.

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

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

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

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

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

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

16. Condemnation.

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

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

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

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

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

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

18. Holding Over. Should Tenant, or any of its successors in interest, hold over the Premises, or any part thereof, after the expiration of the Lease Term, unless otherwise agreed in writing by Landlord, such holding over shall constitute and be construed as a tenancy at will only, at a daily rental equal to the daily Rent payable for the last month of the Le

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