Exhibit 10.3
OFFICE LEASE
[RiverPark Corporate Center--Building Three]
THIS OFFICE LEASE (this "Lease") is entered into as of the 21st day of
January, 2005, between RIVERPARK THREE, LLC, a Utah limited liability company
("Landlord"), whose address is 2875 South ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and ARKONA, INC., a Delaware corporation ("Tenant"),
whose address is 10757 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇.
FOR THE SUM OF TEN DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Landlord
and Tenant agree as follows:
1. Definitions. As used in this Lease, each of the following terms
shall have the meaning indicated:
1.1. "Basic Monthly Rent" means the following amount(s) per
calendar month for the period(s) indicated; provided, however, that if the
Commencement Date occurs on a date other than the date set forth in Paragraph
1.3, the periods set forth below shall begin on such other date (as memorialized
in the Commencement Date Certificate attached as Exhibit D) and shall shift
accordingly(1):
Annual Cost Per
Period(s) Basic Monthly Rent Rentable Square Foot
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Commencement Date through $11,469.33(2) $5.50
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June 30, 2005, inclusive
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July 1, 2005 through $38,161.60 per month $18.30
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June 30, 2006, inclusive
July 1, 2006 through $39,204.27 per month $18.80
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June 30, 2007, inclusive
July 1, 2007 through $40,246.93 per month $19.30
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June 30, 2008, inclusive
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(1) ; provided further, however, that so long as the Commencement Date occurs on
or before July 1, 2005, the periods (and the Basic Monthly Rent payable for the
periods) set forth below shall not shift.
(2) This amount shall be prorated on a per diem basis if the Commencement Date
occurs after June 1, 2005.
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July 1, 2008 through $41,289.60 per month $19.80
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June 30, 2009, inclusive
July 1, 2009 through $42,332.27 per month $20.30
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June 30, 2010, inclusive
The Expense Stop is included in the Basic Monthly Rent.
1.2. "Building" means the building with the street address of
10757 South River Front Parkway, in South Jordan, Utah.
1.3. "Commencement Date" means(3) July 1, 2005; provided,
however, that if Landlord's construction obligations with respect to the
Premises have not been fulfilled on or before such date, the "Commencement Date"
shall be the date on which such obligations are fulfilled, subject only to the
completion by Landlord of any "punch list" items that do not materially
interfere with Tenant's use and enjoyment of the Premises. If for any reason
Landlord cannot deliver possession of the Premises to Tenant on the date set
forth in the first line of this definition, this Lease shall not be void or
voidable, and Landlord shall not be liable to Tenant for any resultant loss or
damage.
1.4. "Expense Stop" means $137,632.00 (on an annual basis).
The Expense Stop is computed by multiplying the number of rentable square feet
of the Premises by $5.50 per square foot.
1.5. "Expiration Date" means the date which is five (5) years
after the Commencement Date, plus any partial calendar month occurring between
the Commencement Date and the first day of the first full calendar month
following the Commencement Date, if the Commencement Date does not occur on the
first day of a calendar month.
1.6. "Improvements" means the Building and all other
improvements related to the Building.
1.7. "Occupants" means any assignee, subtenant, employee,
agent, licensee or invitee of Tenant.
1.8. "Permitted Use" means general office purposes only, and
no other purpose.
1.9. "Premises" means Suite 400 on the fourth floor,
consisting of approximately 21,380 usable square feet and approximately 25,024
rentable square feet, shown on the attached Exhibit B, and located in the
Building, which contains approximately 79,973 usable square feet and
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(3) the earlier of (a) the date on which Tenant takes occupancy of the Premises,
or (b)
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approximately 94,751 rentable square feet. The Premises do not include, and
Landlord reserves, the exterior walls and roof of the Premises, the land and
other area beneath the floor of the Premises, the pipes, ducts, conduits, wires,
fixtures and equipment above the suspended ceiling of the Premises and the
structural elements that serve the Premises or comprise the Building. Landlord's
reservation includes the right to install, inspect, maintain, use, repair, alter
and replace those areas and items and to enter the Premises in order to do so.
For all purposes of this Lease, the calculation of "usable square feet" and
"rentable square feet" contained within the Premises and the Building shall be
subject to final measurement and verification by Landlord's architect according
to ANSI/BOMA Standard Z65.1-1996 (or any successor standard) and, in the event
of a variation, Landlord and Tenant shall amend this Lease accordingly, amending
each provision that is based on usable or rentable square feet, including,
without limitation, Basic Monthly Rent, Expense Stop, Security Deposit, Tenant's
Parking Stall Allocation, Tenant's Percentage of Operating Expenses and tenant
improvement allowance, if any.
1.10. "Property" means the Improvements and the land owned by
Landlord and serving the Improvements.
1.11. "Security Deposit" means $42,500.00.
1.12. "Tenant" means each person executing this Lease as a
Tenant under this Lease. If more than one person is set forth on the signature
line as Tenant, their liability under this Lease shall be joint and several. If
more than one Tenant exists, any notice required or permitted by the terms of
this Lease may be given by or to any one Tenant, and shall have the same force
and effect as if given by or to all persons comprising Tenant.
1.13. "Tenant's Parking Stall Allocation" means one hundred
seven (107) parking stalls.
1.14. "Tenant's Percentage of Operating Expenses" means 26.410
percent, which is the result obtained by dividing the rentable square feet of
the Premises by the rentable square feet of all premises within the Building.
1.15. "Term" means the period commencing at 12:01 a.m. of the
Commencement Date and expiring at midnight of the Expiration Date.
2. Agreement of Lease; Work of Improvement; Construction of Building.
2.1. Agreement of Lease. Landlord leases the Premises to
Tenant and Tenant leases the Premises from Landlord for the Term, together with
such rights of ingress and egress over and across the Property that are
reasonably necessary for the use of the Premises, in accordance with the
provisions set forth in this Lease.
2.2. Work of Improvement. The respective obligations (if any)
of Landlord and Tenant to prepare the Premises for occupancy are described on
the attached Exhibit C. Landlord and Tenant shall perform or have such work
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performed promptly, diligently and in a first-class and workmanlike manner. On
occupancy of the Premises by Tenant, all of the obligations of Landlord set
forth on the attached Exhibit C shall be deemed to be completed satisfactorily,
except for any items set forth in a "punch list" prepared by Landlord and Tenant
pursuant to a walk-through of the Premises within ten (10) days after the
Commencement Date. Except as set forth on the attached Exhibit C(4), the
Premises shall be delivered by Landlord and accepted by Tenant in their "as-is"
condition, and Landlord shall not be obligated to make any improvements or
repairs to the Premises.
2.3. Construction of Building. If the Building in which the
Premises are to be located is not presently completed, Landlord shall construct
and complete the Building and perform Landlord's work as set forth on the
attached Exhibit C as soon as reasonably possible.
3. Term; Commencement Date. Tenant's obligation to pay rent under this
Lease shall commence on the Commencement Date (unless otherwise set forth in
Paragraph 1.1), and shall be for the Term. On Landlord's request, Landlord and
Tenant shall execute a written acknowledgement of the Commencement Date in the
form of the attached Exhibit D, which acknowledgement shall be deemed to be a
part of this Lease and, if requested by Landlord, shall be consented to by any
guarantor of this Lease on Landlord's standard form. If a dispute exists over
when the Premises are ready for occupancy, the(5) decision of Landlord's
architect or contractor shall be final.
4. Basic Monthly Rent. Tenant covenants to pay to Landlord without
abatement (except as expressly provided in this Lease), deduction, offset, prior
notice or demand the Basic Monthly Rent in lawful money of the United States at
such place as Landlord may designate, in advance on or before the first day of
each calendar month during the Term, commencing on the Commencement Date (unless
otherwise set forth in Paragraph 1.1). If the first day on which Basic Monthly
Rent is due under this Lease is not the first day of a calendar month, on or
before such due date the Basic Monthly Rent shall be paid for the initial
fractional calendar month prorated on a per diem basis and for the first full
calendar month following such due date. If this Lease expires or terminates on a
day other than the last day of a calendar month, the Basic Monthly Rent for such
fractional month shall be prorated on a per diem basis. Notwithstanding the
foregoing, concurrently with its execution of this Lease, Tenant shall pay to
Landlord in advance the Basic Monthly Rent for the first full calendar month
following the Commencement Date in which full Basic Monthly Rent is payable.
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(4) , in the immediately preceding sentence or in any other provision of this
lease
(5) commercially reasonable
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5. Operating Expenses.
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5.1. Definitions. As used in this Lease, each of the following
terms shall have the meaning indicated:
5.1.1. "Estimated Operating Expenses" means the
projected amount of Operating
Expenses for any given Operating Year as estimated by Landlord, in Landlord's
reasonable discretion.
5.1.2. "Operating Expenses" means all reasonable
costs, expenses and fees incurred or
payable by Landlord in connection with this Lease and the ownership, operation,
management, maintenance and repair of the Property, determined in accordance
with the reasonable accounting procedures and business practices customarily
employed by Landlord(6), including, without limitation, the costs, expenses and
fees of the following: real and personal property taxes and assessments (and any
tax levied in whole or in part in lieu of or in addition to such taxes and
assessments); rent and gross receipts taxes; assessments for the RiverPark
Corporate Center levied under a common maintenance regime; removal of snow, ice,
trash and other refuse; landscaping, cleaning, janitorial, parking and security
services; fire protection; utilities; supplies and materials; insurance;
licenses, permits and inspections; administrative services, including, without
limitation, legal, consulting and accounting services; labor and personnel;
reasonable reserves for Operating Expenses; rental or a reasonable allowance for
depreciation of personal property; improvements to and maintenance and repair of
the Building and all equipment used in the Building; management services; and
that part of office rent or the rental value of space in the Building used by
Landlord to operate the Property. All Operating Expenses shall be computed on an
annual basis. Tenant shall have sole responsibility for and shall pay when due
all taxes, assessments, charges and fees levied by any governmental or
quasi-governmental authority on Tenant's use of the Premises or any leasehold
improvements, personal property or fixtures kept or installed in the Premises by
Tenant. Notwithstanding the foregoing, Operating Expenses shall not include
depreciation of the Improvements or debt service related to the Property.
5.1.3. "Operating Year" means each calendar year, all
or a portion of which falls
within the Term.
5.1.4. "Tenant's Estimated Share of Operating
Expenses" means the result obtained by
multiplying Tenant's Percentage of Operating Expenses by the Estimated Operating
Expenses and then subtracting from the result the Expense Stop. Tenant's
Estimated Share of Operating Expenses for any fractional Operating Year shall be
calculated by determining Tenant's Estimated Share of Operating Expenses for the
relevant Operating Year and then prorating such amount over such fractional
Operating Year.
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(6) and in a manner that is consistent with those procedures and practices
generally employed by owners and managers of Class "A" office buildings in the
Salt Lake City metropolitan area.
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5.1.5. "Tenant's Share of Operating Expenses" means
the result obtained by multiplying Tenant's Percentage of Operating Expenses by
the Operating Expenses actually incurred in any given Operating Year and then
subtracting from the result the Expense Stop. Tenant's Share of Operating
Expenses for any fractional Operating Year shall be calculated by determining
Tenant's Share of Operating Expenses for the relevant Operating Year and then
prorating such amount over such fractional Operating Year.
5.2. Payment of Operating Expenses. In addition to the Basic
Monthly Rent, Tenant covenants to pay to Landlord without abatement, deduction,
offset, prior notice (except as provided in this Paragraph 5) or demand Tenant's
Share of Operating Expenses in lawful money of the United States at such place
as Landlord may designate, in advance on or before the first day of each
calendar month during the Term, commencing on the Commencement Date, in
accordance with the provisions of this Paragraph 5. On or prior to the
Commencement Date and prior to each Operating Year after the Commencement Date,
if reasonably practicable, Landlord shall furnish Tenant with a written
statement (the "Estimated Operating Expenses Statement") showing in reasonable
detail the computation of Tenant's Estimated Share of Operating Expenses. On or
prior to the Commencement Date, and on the first day of each month following the
Commencement Date, Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant's
Estimated Share of Operating Expenses as specified in the Estimated Operating
Expenses Statement for such Operating Year. If Landlord fails to give Tenant an
Estimated Operating Expenses Statement prior to any Operating Year, Tenant shall
continue to pay on the basis of the Estimated Operating Expenses Statement for
the prior Operating Year until the Estimated Operating Expenses Statement for
the current Operating Year is received. If at any time it appears to Landlord
that the Operating Expenses will vary from Landlord's original estimate,
Landlord may deliver to Tenant a revised Estimated Operating Expenses Statement
for such Operating Year, and subsequent payments by Tenant for such Operating
Year shall be based on such revised Estimated Operating Expenses Statement.
Within a reasonable time after the expiration of any Operating Year, Landlord
shall furnish Tenant with a written statement (the "Actual Operating Expenses
Statement") showing in reasonable detail the computation of Tenant's Share of
Operating Expenses for such Operating Year and the amount by which Tenant's
Share of Operating Expenses exceeds or is less than the amounts paid by Tenant
during such Operating Year. If the Actual Operating Expenses Statement indicates
that the amount actually paid by Tenant for the relevant Operating Year is less
than Tenant's Share of Operating Expenses for such Operating Year, Tenant shall
pay to Landlord such deficit within thirty (30) days after delivery of the
Actual Operating Expenses Statement. Such payments by Tenant shall be made
notwithstanding that the Actual Operating Expenses Statement is furnished to
Tenant after the expiration of the Term or sooner termination of this Lease. If
the Actual Operating Expenses Statement indicates that the amount actually paid
by Tenant for the relevant Operating Year exceeds Tenant's Share of Operating
Expenses for such Operating Year, such excess shall, at Landlord's(7) option,
either be applied against any amount then payable or to become payable by Tenant
under this Lease, or promptly refunded to Tenant. No failure by Landlord to
require the payment of Tenant's Share of Operating Expenses for any period shall
constitute a waiver of Landlord's right to collect Tenant's Share of Operating
Expenses for such period or for any subsequent period. If the Expense Stop
exceeds Tenant's Share of Operating Expenses for any full or partial Operating
Year, Tenant shall not be entitled to any refund, credit or adjustment of Basic
Monthly Rent. Notwithstanding the foregoing to the contrary, the Operating
Expenses that vary with occupancy and are attributable to any part of the Term
in which less than ninety-five percent (95%) of the rentable area of the
Building is occupied by tenants, will be adjusted by Landlord to the amount that
Landlord reasonably believes the Operating Expenses would have been if
ninety-five percent (95%) of the rentable area of the Building had been
occupied.
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(7) Tenant's
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5.3. Resolution of Disagreement. Every statement given to
Tenant by Landlord under this Lease, including, without limitation, any
statement given to Tenant pursuant to Paragraph 5.2, shall be conclusive and
binding on Tenant unless within fifteen (15)(8) days after the receipt of such
statement Tenant notifies Landlord that Tenant disputes the correctness of such
statement, specifying the particular respects in which the statement is claimed
to be incorrect. Pending the determination of such dispute by agreement between
Landlord and Tenant, Tenant shall, within thirty (30) days after receipt of such
statement, pay the amounts set forth in such statement in accordance with such
statement, and such payment shall be without prejudice to Tenant's position. If
such dispute exists and it is subsequently determined that Tenant has paid
amounts in excess of those then due and payable under this Lease, Landlord, at
Landlord's(9) option, shall either apply such excess to an amount then payable
or to become payable under this Lease or return such excess to Tenant.(10)
Landlord shall grant to an independent certified public accountant retained by
Tenant reasonable access to Landlord's books and records for the purpose of
verifying Operating Expenses incurred by Landlord, at Tenant's sole cost.
6. Security Deposit. On the date of this Lease, Tenant shall deposit
with Landlord the Security Deposit as security for the faithful performance by
Tenant under this Lease. The Security Deposit shall be returned (without
interest) to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest under this Lease) after the expiration of the Term or sooner
termination of this Lease and delivery of possession of the Premises to Landlord
in accordance with Paragraph 17 if, at such time, Tenant is not in default under
this Lease. If Landlord's interest in this Lease is conveyed, transferred or
assigned, Landlord shall transfer or credit the Security Deposit to Landlord's
successor in interest, and Landlord shall be released from any liability for the
return of the Security Deposit. Landlord may intermingle the Security Deposit
with Landlord's own funds, and shall not be deemed to be a trustee of the
Security Deposit. If Tenant fails to pay or perform in a timely manner any
obligation under this Lease, Landlord may, prior to, concurrently with or
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(8) thirty
(9) Tenant's
(10) If such dispute is not resolved between Landlord and Tenant within sixty
(60) days, at the request of either Landlord or Tenant, such dispute shall be
resolved by an independent certified public accountant, whose decision shall be
binding. Landlord and Tenant, acting reasonably and in good faith, shall
mutually select, and equally share the cost of, such accountant.
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subsequent to, exercising any other right or remedy, use, apply or retain all or
any part of the Security Deposit for the payment of any monetary obligation due
under this Lease, or to compensate Landlord for any other expense, loss or
damage which Landlord may incur by reason of Tenant's failure, including any
damage or deficiency in the reletting of the Premises. If all or any portion of
the Security Deposit is so used, applied or retained, Tenant shall immediately
deposit with Landlord cash in an amount sufficient to restore the Security
Deposit to the original amount. Landlord may withhold the Security Deposit after
the expiration of the Term or sooner termination of this Lease until Tenant has
paid in full Tenant's Share of Operating Expenses for the Operating Year in
which such expiration or sooner termination occurs and all other amounts payable
under this Lease. The Security Deposit is not a limitation on Landlord's damages
or other rights under this Lease, a payment of liquidated damages or prepaid
rent and shall not be applied by Tenant to the rent for the last (or any) month
of the Term, or to any other amount due under this Lease. If this Lease is
terminated due to any default of Tenant, any portion of the Security Deposit
remaining at the time of such termination shall immediately inure to the benefit
of Landlord as partial compensation for the costs and expenses incurred by
Landlord in connection with this Lease(11), and shall be in addition to any
other damages to which Landlord is otherwise entitled.
7. Use. Tenant shall not use or occupy or permit the Premises to be
used or occupied for any purpose other than for the Permitted Use, and shall not
do or permit anything to be done by Tenant's Occupants which may (a) increase
the existing rate or violate the provisions of any insurance carried with
respect to the Property, (b) create a public or private nuisance, commit waste
or interfere with, annoy or disturb any other tenant or occupant of the Building
or Landlord in the operation of the Building, (c) overload the floors or
otherwise damage the structure of the Building, (d) constitute an improper,
immoral or objectionable purpose, (e) increase the cost of any utility service
beyond the level permitted(12) by Paragraph 8, (f) violate any present or future
laws, ordinances, regulations or requirements or any covenants, conditions and
restrictions existing with respect to the Property, (g) subject Landlord or any
other tenant to any liability to any third party, or (h) lower the first-class
character of the Building. Tenant shall, at Tenant's sole cost, (v) use the
Premises in a careful, safe and proper manner(13), (w) comply with all present
and future laws, ordinances, regulations and requirements and any covenants,
conditions and restrictions existing with respect to the Property, including,
without limitation, those relating to hazardous substances, hazardous wastes,
pollutants or contaminants and those relating to access by disabled persons, (x)
comply with the requirements of any board of fire underwriters or other similar
body relating to the Premises, (y) keep the Premises free of objectionable
noises and odors, including, without limitation, cigar, pipe and similar smoke
odors, and (z) not store, use or dispose of any hazardous substances, hazardous
wastes, pollutants or contaminants on the Property. Landlord may, in Landlord's
sole discretion, designate some or all of the Building (including the Premises)
as a non-smoking area.
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(11) to the extent that such costs or expenses are actually incurred or payable
by Landlord.
(12) contemplated
(13) consistent with normal business practices
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8. Utilities and Services.
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8.1. Landlord's Obligations. Landlord shall cause to be
furnished to the Premises electricity for normal lighting and office computers
and equipment, heat and air-conditioning, light janitorial services (emptying
wastebaskets, dusting and vacuuming) and window washing, snow removal,
landscaping, grounds keeping and elevator service(14). If Landlord provides
electric current to the Premises in excess of normal office usage levels to
enable Tenant to operate any data processing or other equipment requiring extra
electric current, or if Landlord provides any other utility or service which is
in excess of that typically required for routine office purposes, including
additional cooling necessitated by Tenant's equipment, Landlord shall reasonably
determine or calculate the cost of such additional electric current, utility or
service, and Tenant shall pay such cost on a monthly basis to Landlord. Landlord
may cause an electric or water meter to be installed in the Premises in order to
measure the amount of electricity or water consumed for any such use, and the
cost of such meter shall be paid promptly by Tenant. Tenant, at Tenant's sole
cost, shall provide telephone service to the Premises. Tenant may be separately
billed for and, if billed, shall pay the cost of, any electricity, heating,
ventilating and air-conditioning used during any period other than Monday
through Friday from 7:00 a.m. to 6:00 p.m., and Saturday from 8:00 a.m. to 1:00
p.m.
8.2. Landlord's Liability. Landlord shall not be liable for
and Tenant shall not be entitled to terminate this Lease, to effectuate any
abatement or reduction of rent or to collect any damages by reason of Landlord's
failure to provide or furnish any of the utilities or services set forth in
Paragraph 8.1 if such failure was occasioned by any strike or labor controversy,
any act or default of Tenant, the inability of Landlord(15) to obtain services
from the company supplying the same or any other cause beyond the reasonable
control of Landlord or(16) by the making of necessary repairs or improvements to
the Property. In no event shall Landlord be liable for loss or injury to persons
or property, however arising, occurring in connection with or attributable to
any failure to furnish such utilities or services even if within the control of
Landlord, excepting only Landlord's willful misconduct or gross negligence.
9. Maintenance and Repairs; Alterations; Access to Premises.
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9.1. Maintenance and Repairs. Landlord shall maintain in good
order, condition and repair and in a clean and sanitary condition the Property,
excepting the Premises and portions of the Building leased by persons not
affiliated with Landlord. Tenant, at Tenant's sole cost, shall maintain the
Premises and every part of the Premises (including, without limitation, all
floors, walls and ceilings and their coverings, doors and locks, and Tenant's
furnishings, trade fixtures, signage, leasehold improvements, equipment and
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(14) in a manner comparable to other Class "A" office buildings in the Salt Lake
metropolitan area.
(15) after exercising commercially reaonable diligence
(16) , provided that such repairs or improvements are undertaken in a
commercially reasonable manner,
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other personal property from time to time situated in or on the Premises) in
good order, condition and repair and in a clean and sanitary condition(17).
9.2. Alterations. Tenant shall not make any change, addition
or improvement to the Premises (including, without limitation, the attachment of
any fixture or equipment, or the addition of any pipe, line, wire, conduit or
related facility for water, electricity, natural gas, telephone, sewer or other
utility), unless such change, addition or improvement (a) equals or exceeds the
then-current standard for the Building and utilizes only new and first-grade
materials, (b) is in conformity with all applicable laws, ordinances,
regulations and requirements, and is made after obtaining any required permits
and licenses, (c) is made with the prior written consent of Landlord, (d) is
made pursuant to plans and specifications approved in writing in advance by
Landlord, (e) is made after Tenant has provided to Landlord such indemnification
or bonds, including, without limitation, a performance and completion bond, in
such form and amount as may be satisfactory to Landlord, to protect against
claims and liens for labor performed and materials furnished, and to insure the
completion of any change, addition or improvement, (f) is carried out by persons
approved in writing by Landlord, who, if required by Landlord, deliver to
Landlord before commencement of their work proof of such insurance coverage as
Landlord may require, with Landlord named as an additional insured, and (g) is
done only at such time and in such manner as Landlord may reasonably specify.
Any such change, addition or improvement shall immediately become the property
of Landlord. Tenant shall promptly pay the entire cost of any such change,
addition or improvement. Tenant shall indemnify, defend and hold harmless
Landlord from and against all liens, claims, damages, losses, liabilities and
expenses, including attorneys' fees, which may arise out of, or be connected in
any way with, any such change, addition or improvement. Within ten (10) days
following the imposition of any lien resulting from any such change, addition or
improvement, Tenant shall cause such lien to be released of record by payment of
money or posting of a proper bond.
9.3. Access to Premises. Landlord and Landlord's agents,
employees and contractors may enter the Premises at reasonable times on
reasonable notice to Tenant for the purpose of cleaning, inspecting, altering
and repairing the Premises and ascertaining compliance with the provisions of
this Lease by Tenant. Landlord shall have free access to the Premises in an
emergency. Landlord may also show the Premises to prospective purchasers,
tenants or mortgagees at reasonable times. Tenant waives any claim for any
damage, injury or inconvenience to, or interference with, Tenant's business,
occupancy or quiet enjoyment of the Premises and other loss occasioned by such
entry, unless caused by Landlord's willful misconduct or gross negligence.
Landlord shall at all times have a key with which to unlock all of the doors in
the Premises (excluding Tenant's vaults, safes and similar areas designated in
writing by Tenant in advance).
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(17) , subject to normal and reasonable wear and tear.
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10. Assignment.
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10.1. Prohibition. Tenant shall not, either voluntarily or by
operation of law, assign, transfer, mortgage, encumber, pledge or hypothecate
this Lease or Tenant's interest in this Lease, in whole or in part, permit the
use of the Premises or any part of the Premises by any persons other than Tenant
or Tenant's employees, or sublease the Premises or any part of the Premises,
without the prior written consent of Landlord. Any transfer of this Lease from
Tenant by merger, consolidation, liquidation or transfer of assets shall
constitute an assignment for the purposes of this Lease. If Tenant is a
corporation, an unincorporated association or a partnership, the assignment,
transfer, mortgage, encumbrance, pledge or hypothecation of any stock or
interest in such corporation, association or partnership in the aggregate in
excess of forty-nine percent (49%) shall be deemed an assignment within the
meaning of this Paragraph. Consent to any assignment or subleasing shall not
operate as a waiver of the necessity for consent to any subsequent assignment or
subleasing and the terms of such consent shall be binding on any person holding
by, through or under Tenant. At Landlord's option, any assignment or sublease
without Landlord's prior written consent shall be void ab initio (from the
beginning).(18)
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(18) Landlord shall not unreasonably withhold or delay its consent to an
assignment of this Lease or a subleasing of the whole or a portion of the
Premises for substantially the remainder of the term, provided that:
(a) Tenant prvides to Landlord (i) any information
reasonably required by Landlord with respect to the nature and character of the
proposed assignee or subtenant and its business, activities and intended use of
the Premises, (ii) any references and current financial information reasonably
required by Landlord with respect to the net worth, credit and financial
responsibility of the proposed assignee or subtenant, and (iii) an executed
counterpart of the assignment or sublease agreement;
(b) the nature and character of the proposed assignee
or subtenant and its business, activities and intended use of the Premises are,
in Landlord's reasonable judgment, suitable to and in keeping with the standards
of the Building and the floor or floors on which the Premises ared located, and
in compliance with all applicable laws, ordinances, rules and regulations;
(c) the proposed assignee or subtenant is a reputable
party whose net worth, credit and financial responsibility are, considering the
responsibilities involved, reasonably satisfactory to Landlord;
(d) the proposed assignee or subtenant is not then an
occupant of any part of the Building or of any other building within the
RiverPark Corporate Center development or a party who dealt with the Landlord or
any employee, agent or representative of Landlord (directly or through a broker)
with respect to space in the Building or of any other building within the
RiverPark corporate Center development during the twelve (12) months immediately
preceding Tenant's request for Landlord's consent; and
(e) Tenant shall have complied with the provisions in
Paragraph 10.2 and Landlord shall not have made any of the elections provided
for in such Paragraph.
If Tenant believes that Landlord has unreasonably withheld its
consent, Tenant's sole remedy shall be to seek a declaratory judgment that
Landlord has unreasonably withheld its consent or an order of specific
performance or mandatory injunction of Landlord's agreement to give its consent.
In no event shall Tenant have any right to damages.
-11-
10.2. Termination. If Tenant requests Landlord's consent to an
assignment of this Lease or to a subleasing of the whole or any part of the
Premises, Tenant shall submit to Landlord the terms of such assignment or
subleasing, the name and address of the proposed assignee or subtenant, such
information relating to the nature of such assignee's or subtenant's business
and finances as Landlord may reasonably require and the proposed effective date
(the "Effective Date") of the proposed assignment or subleasing (which Effective
Date shall be neither less than thirty (30) nor more than ninety (90) days
following the date of Tenant's submission of such information). On receipt of
such request and all such information from Tenant, Landlord may, by notice
within thirty (30)(19) days after such receipt, terminate this Lease if the
request is to assign this Lease or to sublease all of the Premises or, if the
request is to sublease a portion of the Premises only, terminate this Lease with
respect to such portion, in each case as of the Effective Date, unless within
five (5) business days after notice from Landlord to Tenant of such termination,
Tenant withdraws such request. Such right to terminate shall be for any reason,
including, without limitation, the right to retain all profits of such
assignment or sublease. If Landlord exercises such termination right, Tenant
shall surrender possession of the entire Premises or the portion that is the
subject of the right, as the case may be, on the Effective Date in accordance
with the provisions of Paragraph 17. If this Lease is terminated as to a portion
of the Premises only, the rent payable by Tenant under this Lease shall be
reduced proportionately commencing as of the Effective Date, based on the
percentage of the Premises as to which this Lease has been terminated.
10.3. Landlord's Rights. If this Lease is assigned or if all
or any portion of the Premises is subleased or occupied by any person other than
Tenant without obtaining Landlord's consent, Landlord may collect rent and other
charges from such assignee or other party, and apply the amount collected to the
rent and other charges payable under this Lease, but such collection shall not
constitute consent or waiver of the necessity of consent to such assignment or
subleasing, nor shall such collection constitute the recognition of such
assignee or subtenant as Tenant under this Lease or a release of Tenant from the
further performance of all of the covenants and obligations of Tenant contained
in this Lease. No consent by Landlord to any assignment or subleasing by Tenant
shall relieve Tenant of any obligation to be paid or performed by Tenant under
this Lease, whether occurring before or after such consent, assignment or
subleasing, but rather Tenant and Tenant's assignee or subtenant, as the case
may be, shall be jointly and severally primarily liable for such payment and
performance. Tenant shall reimburse Landlord for Landlord's(20) attorneys' and
other fees and costs incurred in connection with both determining whether to
give consent and giving consent. No assignment or subleasing under this Lease
shall be effective unless and until Tenant provides to Landlord an executed
counterpart of the assignment or sublease agreement, which shall specifically
state that (a) such agreement is subject to all of the provisions of this Lease,
(b) in the case of an assignment, the assignee assumes and agrees to perform all
of Tenant's obligations under this Lease, (c) the assignee or subtenant, as the
---------------------
(19) fifteen (15)
(20) Landlord may require Tenant to reimburse Landlord for Landlor's reasonable
-12-
case may be, may not further assign such agreement, or allow the Premises to be
used by others, without the prior written consent of Landlord in each instance,
(d) a consent by Landlord to such assignment or subleasing shall not be deemed
or construed to modify, amend or affect the provisions of this Lease or Tenant's
obligations under this Lease, which shall continue to apply to the Premises and
the occupants of the Premises as if the assignment or sublease had not been
made, (e) if Tenant defaults in the payment of any amounts due under this Lease,
Landlord is authorized to collect any rents or other amounts due from any
assignee, subtenant or other occupant of the Premises and to apply the net
amounts collected to the sums payable under this Lease, and (f) the receipt by
Landlord of any amounts from an assignee, subtenant or other occupant of any
part of the Premises shall not be deemed or construed as releasing Tenant from
Tenant's obligations under this Lease or the acceptance of that party as a
direct tenant. If all or any portion of the Premises is assigned or subleased
and the compensation to be received by Tenant exceeds the Basic Monthly Rent (or
pro rata portion of the Basic Monthly Rent, as the case may be) applicable to
the portion being assigned or subleased, Tenant shall pay such excess to
Landlord on the first day of each calendar month.
11. Indemnity; Waiver and Release.
-----------------------------
11.1. Indemnity. Tenant shall indemnify, defend and hold
harmless Landlord and Landlord's employees and agents from and against all
demands, claims, causes of action, judgments, losses, damages, liabilities,
fines, penalties, costs and expenses, including attorneys' fees, arising from
the occupancy or use of the Property by Tenant or Tenant's Occupants, any
hazardous substances, hazardous wastes, pollutants or contaminants deposited,
released or stored by Tenant or Tenant's Occupants on the Property, the conduct
of Tenant's business on the Property, any act or omission done, permitted or
suffered by Tenant or any of Tenant's Occupants, any default or nonperformance
by Tenant under this Lease, any injury or damage to the person, property or
business of Tenant or Tenant's Occupants or any litigation commenced by or
against Tenant to which Landlord is made a party without willful misconduct or
gross negligence on the part of Landlord. If any action or proceeding is brought
against Landlord or Landlord's employees or agents by reason of any of the
matters set forth in the preceding sentence, Tenant, on notice from Landlord,
shall defend Landlord at Tenant's expense with counsel reasonably satisfactory
to Landlord. The provisions of this Paragraph 11.1 shall survive the expiration
of the Term or sooner termination of this Lease.
11.2. Waiver and Release. Tenant waives and releases all
claims against Landlord and Landlord's employees and agents with respect to all
matters for which Landlord has disclaimed liability or responsibility pursuant
to the provisions of this Lease. In addition, Landlord and Landlord's employees
and agents shall not be liable for any loss, injury, death or damage to persons,
property or Tenant's business resulting from any theft, act of God, public
enemy, injunction, riot, strike, insurrection, war, court order, requisition,
order of governmental body or authority, fire, explosion, falling object, steam,
water, rain, snow, ice, wind and other weather-related occurrences, breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air-conditioning or lighting fixtures, construction, repair or
alteration of the Premises or other cause beyond Landlord's reasonable control.
-13-
12. Insurance. On or before the date of this Lease, Tenant shall, at
Tenant's sole cost, procure and continue in force the following insurance
coverage: (a) commercial general liability insurance with a combined single
limit for bodily injury and property damage of not less than $1,000,000 per
occurrence, including, without limitation, contractual liability coverage for
the performance by Tenant of the indemnity agreements set forth in Paragraph
11.1; (b) property insurance with special causes of loss including theft
coverage, insuring against fire, extended coverage risks, vandalism and
malicious mischief, and including boiler and sprinkler leakage coverage, in an
amount equal to the full replacement cost (without deduction for depreciation)
of all furnishings, trade fixtures, leasehold improvements, equipment and other
personal property from time to time situated in or on the Premises; and (c)
workers' compensation insurance satisfying Tenant's obligations under the
workers' compensation laws of the state of Utah. Such minimum limits shall in no
event limit the liability of Tenant under this Lease. Such liability insurance
shall name Landlord and any other person specified from time to time by Landlord
as an additional insured, such property insurance shall name Landlord as a loss
payee as Landlord's interests may appear, and both such liability and property
insurance shall be with companies acceptable to Landlord having a rating of not
less than A:XII in the most recent issue of Best's Key Rating Guide,
Property-Casualty. All liability policies maintained by Tenant shall contain a
provision that Landlord and any other additional insured, although named as an
insured, shall nevertheless be entitled to recover under such policies for any
loss sustained by Landlord and Landlord's agents and employees as a result of
the acts or omissions of Tenant. Tenant shall furnish Landlord with certificates
of coverage. No such policy shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days' prior written
notice to Landlord by the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of the coverage that Landlord
may carry, and shall only be subject to such deductibles as may be approved in
writing in advance by Landlord. Tenant shall, at least ten (10) days prior to
the expiration of such policies, furnish Landlord with renewals of, or binders
for, such policies. Landlord and Tenant waive all rights to recover against each
other, against any other tenant or occupant of the Building and against the
officers, directors, shareholders, partners, joint venturers, employees, agents,
customers, invitees or business visitors of each other or of any other tenant or
occupant of the Building, for any loss or damage arising from any cause covered
by any insurance carried by the waiving party, but only to the extent that such
loss or damage is actually covered. Landlord and Tenant shall cause their
respective insurance carriers to issue appropriate waivers of subrogation rights
endorsements to all policies of insurance carried in connection with the
Premises or the contents of the Premises. Tenant shall cause all other occupants
of the Premises claiming by, through or under Tenant to execute and deliver to
Landlord a waiver of claims similar to the waiver contained in this Paragraph
and to obtain such waiver of subrogation rights endorsements. Any mortgage
lender holding an interest in any part of the Property may, at Landlord's
option, be afforded coverage under any policy required to be secured by Tenant
under this Lease by use of a mortgagee's endorsement to the policy concerned.
13. Damage or Destruction. If the Premises are partially damaged or
destroyed by any casualty insured against under any insurance policy maintained
by Landlord, Landlord shall, on receipt of the insurance proceeds, repair the
Premises to substantially the condition in which the Premises were immediately
-14-
prior to such damage or destruction. Landlord's obligation under the preceding
sentence shall not exceed the lesser of the cost of the standard improvements
installed by Landlord in the Premises, or the proceeds received by Landlord from
any insurance policy maintained by Landlord. Until such repair is complete, the
Basic Monthly Rent shall be abated proportionately commencing on the date of
such damage or destruction as to that portion of the Premises rendered
untenantable, if any. If (a) by reason of such occurrence the Premises are
rendered wholly untenantable, (b) the Premises are damaged as a result of a risk
not covered by insurance, (c) the Premises are damaged in whole or in part
during the last twelve (12) months of the Term, (d) the Premises or the Building
(whether or not the Premises are damaged) is damaged to the extent of
twenty-five percent (25%) or more of the then-replacement value of either or to
the extent that it would take, in Landlord's opinion, in excess of ninety (90)
days to complete the requisite repairs, or (e) insurance proceeds adequate to
repair the Property are not available to Landlord for any reason, Landlord may
either elect to repair the damage or cancel this Lease by notice of cancellation
within thirty (30) days after such event, and on such notice Tenant shall vacate
and surrender the Premises to Landlord. If Landlord elects to repair any such
damage, any abatement of Basic Monthly Rent shall end on notice given by
Landlord to Tenant that the Premises have been repaired(21). If the damage is
caused by the negligence of Tenant or Tenant's Occupants, Basic Monthly Rent
shall not ▇▇▇▇▇. Except for abatement of Basic Monthly Rent, if any, Tenant
shall have no claim against Landlord for any loss suffered by reason of any such
damage, destruction, repair or restoration,(22) nor may Tenant terminate this
Lease as the result of any statutory provision in effect on or after the date of
this Lease pertaining to the damage and destruction of the Premises or the
Building. The proceeds of all insurance carried by Tenant on Tenant's
furnishings, trade fixtures, leasehold improvements, equipment and other
personal property shall be held in trust by Tenant for the purpose of the repair
and replacement of the same. Landlord shall not be required to repair any damage
to, or to make any restoration or replacement of, any furnishings, trade
fixtures, leasehold improvements, equipment and other personal property
installed in the Premises by Tenant or at the direct or indirect expense of
Tenant. Unless this Lease is terminated by Landlord pursuant to this Paragraph,
Tenant shall be required to restore or replace such furnishings, trade fixtures,
leasehold improvements, equipment and other personal property on damage or
destruction in at least a condition equal to that existing prior to such event.
14. Condemnation. As used in this Paragraph, the term "Condemnation
Proceedings" means any actions or proceedings in which any interest in the
Property is taken for any public or quasi-public purpose by any lawful authority
through exercise of the power of eminent domain or by purchase or other means in
lieu of such exercise. If the whole of the Premises is taken through
Condemnation Proceedings, this Lease shall automatically terminate as of the
date of the taking. The phrase "as of the date of the taking" means the date of
taking actual physical possession by the condemning authority or such earlier
date as the condemning authority gives notice that it is deemed to have taken
possession. If part, but not all, of the Premises is taken, either Landlord or
----------------------
(21) , provided that the Premises are, in fact, repaired
(22) unless caused by the gross negligence, willful misconduct or breach of this
Lease by Landlord or its employees or agents,
-15-
Tenant may terminate this Lease. Landlord may terminate this Lease if any
portion of the Property (whether or not including the Premises) is taken which,
in Landlord's reasonable judgment, substantially interferes with Landlord's
ability to operate or use the Property for the purposes for which the Property
was intended. Any such termination must be accomplished through written notice
given no later than thirty (30) days after, and shall be effective as of, the
date of such taking. In all other cases, or if neither Landlord nor Tenant
exercises its right to terminate, this Lease shall remain in effect. If a
portion of the Premises is taken and this Lease is not terminated, the Basic
Monthly Rent shall be reduced in the proportion that the floor area taken bears
to the total floor area of the Premises immediately prior to the taking. Whether
or not this Lease is terminated as a consequence of Condemnation Proceedings,
all damages or compensation awarded for a partial or total taking, including any
award for severance damage and any sums compensating for diminution in the value
of or deprivation of the leasehold estate under this Lease, shall be the sole
and exclusive property of Landlord, provided that Tenant shall be entitled to
any award for the loss of, or damage to, Tenant's trade fixtures or loss of
business and moving expenses, if a separate award is actually made to Tenant and
if the same will not reduce Landlord's award. Tenant shall have no claim against
Landlord for the occurrence of any Condemnation Proceedings, or for the
termination of this Lease or a reduction in the Premises as a result of any
Condemnation Proceedings.
15. Landlord's Financing. This Lease shall be subordinate to any
existing first mortgage, first deed of trust, ground lease, declaration of
covenants, conditions, easements and restrictions and all renewals,
modifications, amendments, consolidations, replacements and extensions of any
such instruments. No documentation other than this Lease shall be required to
evidence such subordination. If the holder of any mortgage or deed of trust
elects to have this Lease superior to the lien of its mortgage or deed of trust
and gives written notice of such election to Tenant, this Lease shall be deemed
prior to such mortgage or deed of trust. Tenant shall execute such documents as
may(23) be required by Landlord to confirm such subordination or priority within
ten (10) days after request, provided that the lender concerned concurrently
provides to Tenant a non-disturbance agreement. Tenant shall from time to time
if so requested by Landlord and if doing so will not materially and adversely
affect Tenant's economic interests under this Lease, join with Landlord in
amending this Lease so as to meet the needs or requirements of any lender that
is considering making or that has made a loan secured by all or any portion of
the Property. Any sale, assignment or transfer of Landlord's interest under this
Lease or in the Premises, including any such disposition resulting from
Landlord's default under a debt obligation, shall be subject to this Lease and
Tenant shall attorn to Landlord's successors and assigns and shall recognize
such successors or assigns as Landlord under this Lease, regardless of any rule
of law to the contrary or absence of privity of contract.
16. Default.
--------
16.1. Default by Tenant. The occurrence of any of the
following events shall constitute a default by Tenant under this Lease: (a)
Tenant fails to pay in a timely manner any installment of Basic Monthly Rent,
--------------------
(23) reasonably
-16-
Tenant's Share of Operating Expenses or any other sum due under this Lease
within three (3)(24) business days after written notice is given to Tenant that
the same is past due; (b) Tenant fails to observe or perform in a timely manner
any other term, covenant or condition to be observed or performed by Tenant
under this Lease within three (3) business(25) days after written notice is
given to Tenant of such failure; provided, however, that if more than three (3)
business(26) days is reasonably required to cure such failure, Tenant shall not
be in default if Tenant commences such cure within such three (3)(27) day period
and diligently prosecutes such cure to completion; (c) Tenant or any guarantor
of this Lease dies (if an individual), files a petition in bankruptcy, becomes
insolvent, has taken against such party in any court, pursuant to state or
federal statute, a petition in bankruptcy or insolvency or for reorganization or
appointment of a receiver or trustee, petitions for or enters into an
arrangement for the benefit of creditors or suffers this Lease to become subject
to a writ of execution; (d) Tenant vacates or abandons the Premises; or (e) any
guarantor of this Lease attempts to rescind or terminate its guaranty.
16.2. Remedies. On any default by Tenant under this Lease,
Landlord may at any time, without waiving or limiting any other right or remedy
available to Landlord, (a) perform in Tenant's stead any obligation that Tenant
has failed to perform, and Landlord shall be reimbursed promptly for any cost
incurred by Landlord with interest from the date of such expenditure until paid
in full at the greater of the prime rate then charged by Zions First National
Bank, Salt Lake City (or any other bank designated by Landlord), plus four
percent (4%), or eighteen percent (18%)(28) per annum (the "Interest Rate"), (b)
terminate Tenant's rights under this Lease by written notice, (c) reenter and
take possession of the Premises by any lawful means (with or without terminating
this Lease), or (d) pursue any other remedy allowed by law. Tenant shall pay to
Landlord the cost of recovering possession of the Premises, all costs of
reletting, including reasonable renovation, remodeling and alteration of the
Premises, the amount of any commissions paid by Landlord in connection with such
reletting, and all other costs and damages arising out of Tenant's default,
including attorneys' fees and costs. Notwithstanding any termination or reentry,
the liability of Tenant for the rent payable under this Lease shall not be
extinguished for the balance of the Term, and Tenant agrees to compensate
Landlord on demand for any deficiency, whether arising from (v) reletting the
Premises at a lesser rent than applies under this Lease, (w) reletting the
Premises for a term shorter than the remaining Term, (x) reletting less than all
of the Premises, (y) any default in the payment of rent by any person to whom
Landlord relets the Premises, or (z) any other cause whatsoever. No reentry to
or taking possession of the Premises or other action by Landlord or its agents
----------------------
(24) five (5)
(25) ten (10) calendar
(26) ten (10) calendar
(27) ten (10)
(28) twelve percent (12%)
-17-
on or following the occurrence of any default by Tenant shall be construed as an
election by Landlord to terminate this Lease or as an acceptance of any
surrender of the Premises, unless Landlord provides Tenant written notice of
such termination or acceptance.
16.3. Past Due Amounts. If Tenant fails to pay(29) when due
any amount required to be paid by Tenant under this Lease, such unpaid amount
shall bear interest at the Interest Rate from the due date of such amount to the
date of payment in full, with interest. In addition, Landlord may also charge a
sum of five percent (5%) of such unpaid amount as a service fee. This late
payment charge is intended to compensate Landlord for Landlord's additional
administrative costs resulting from Tenant's failure to perform in a timely
manner Tenant's obligations under this Lease, and has been agreed on by Landlord
and Tenant after negotiation as a reasonable estimate of the additional
administrative costs which will be incurred by Landlord as a result of such
failure. The actual cost in each instance is extremely difficult, if not
impossible, to determine. This late payment charge shall constitute liquidated
damages and shall be paid to Landlord together with such unpaid amount. The
payment of this late payment charge shall not constitute a waiver by Landlord of
any default by Tenant under this Lease. All amounts due under this Lease are and
shall be deemed to be rent or additional rent, and shall be paid without
abatement, deduction, offset, prior notice or demand (unless expressly provided
by the terms of this Lease). Landlord shall have the same remedies for a default
in the payment of any amount due under this Lease as Landlord has for a default
in the payment of Basic Monthly Rent.
16.4. Default by Landlord. Landlord shall not be in default
under this Lease unless Landlord fails to perform an obligation required of
Landlord under this Lease within thirty (30) days after written notice by Tenant
to Landlord and the holder of any mortgage or deed of trust covering the
Property whose name and address have been furnished to Tenant in writing,
specifying the respects in which Landlord has failed to perform such obligation,
and such holder fails to perform such obligation within a second thirty (30) day
period commencing on the expiration of such first thirty (30) day period. If the
nature of such obligation is such that more than thirty (30) days are reasonably
required for performance or cure, Landlord shall not be in default if Landlord
or such holder commences performance within their respective thirty (30) day
periods and after such commencement diligently prosecutes the same to
completion. In no event may Tenant terminate this Lease or withhold the payment
of rent or other charges provided for in this Lease as a result of Landlord's
default.
17. Expiration or Termination.
--------------------------
17.1. Surrender of Premises. On the expiration of the Term or
sooner termination of this Lease, Tenant shall, at Tenant's sole cost, (a)
promptly and peaceably surrender the Premises to Landlord "broom clean," in good
order and condition, (b) repair any damage to the Property caused by or in
--------------------
(29) within five (5) calendar days after the date
-18-
connection with the removal of any property from the Premises by or at the
direction of Tenant, (c) repair, patch and paint in a good and workmanlike
manner all holes and other marks in the floors, walls and ceilings of the
Premises to Landlord's reasonable satisfaction, and (d) deliver all keys and
access cards to the Premises to Landlord. Before surrendering the Premises,
Tenant shall, at Tenant's sole cost, remove Tenant's movable personal property
and trade fixtures (including signage) only, and all other property shall,
unless otherwise directed by Landlord, remain in the Premises as the property of
Landlord without compensation; however, Tenant shall not remove any personal
property or trade fixtures from the Premises without Landlord's prior written
consent if such removal will impair the structure of the Building or Tenant is
in default under this Lease. If Tenant is in default under this Lease, Landlord
shall have a lien on such personal property, trade fixtures and other property
as set forth in Section 38-3-1, et seq., of the Utah Code ▇▇▇. (or any
replacement provision). Landlord may require Tenant to remove any personal
property, trade fixtures, other property, alterations, additions and
improvements made to the Premises by Tenant or by Landlord for Tenant including,
without limitation, any computer lines, wiring, cabling and facilities and other
similar improvements, and to restore the Premises to their condition as of the
Commencement Date. All personal property, trade fixtures and other property of
Tenant not removed from the Premises on the abandonment of the Premises or on
the expiration of the Term or sooner termination of this Lease for any cause
shall conclusively be deemed to have been abandoned and may be appropriated,
sold, stored, destroyed or otherwise disposed of by Landlord without notice to,
and without any obligation to account to, Tenant or any other person. Tenant
shall pay to Landlord all expenses incurred in connection with the disposition
of such property in excess of any amount received by Landlord from such
disposition. No surrender of the Premises shall be effected by Landlord's
acceptance of the keys or of the rent or by any other means without Landlord's
written acknowledgement of such acceptance as a surrender. Tenant shall not be
released from Tenant's obligations under this Lease in connection with surrender
of the Premises until Landlord has inspected the Premises and delivered to
Tenant a written release.
17.2. Holding Over. Tenant shall indemnify, defend and hold
harmless Landlord from and against all claims, liabilities and expenses,
including attorneys' fees, resulting from delay by Tenant in surrendering the
Premises in accordance with the provisions of this Lease. If Tenant remains in
possession of the Premises after the expiration of the Term or sooner
termination of this Lease with the prior written consent of Landlord, such
occupancy shall be a tenancy from month to month at a rental (and not as a
penalty) in the amount of one hundred fifty percent (150%) of the last monthly
rental, plus all other charges payable under this Lease, and on all of the terms
of this Lease applicable to a month-to-month tenancy.
17.3. Survival. The provisions of this Paragraph 17 shall
survive the expiration of the Term or sooner termination of this Lease.
18. Estoppel Certificate; Financial Statements.
-------------------------------------------
18.1. Estoppel Certificate. Tenant shall, within ten (10) days
after Landlord's request, execute and deliver to Landlord an estoppel
certificate in favor of Landlord and such other persons as Landlord shall
request setting forth the following: (a) a ratification of this Lease; (b) the
Commencement Date and Expiration Date; (c) that this Lease is in full force and
-19-
effect and has not been assigned, modified, supplemented or amended (except by
such writing as shall be stated); (d) that all conditions under this Lease to be
performed by Landlord have been satisfied or, in the alternative, those claimed
by Tenant to be unsatisfied; (e) that no defenses or offsets exist against the
enforcement of this Lease by Landlord or, in the alternative, those claimed by
Tenant to exist; (f) the amount of advance rent, if any (or none if such is the
case), paid by Tenant; (g) the date to which rent has been paid; (h) the amount
of the Security Deposit; and (i) such other information as Landlord may request.
Landlord's mortgage lenders and purchasers shall be entitled to rely on any
estoppel certificate executed by Tenant.
18.2. Financial Statements. Tenant shall, within ten (10)(30)
days after Landlord's request, furnish to Landlord current financial statements
for Tenant, prepared in accordance with generally accepted accounting principles
consistently applied and certified by Tenant to be true and correct(31).
19. Parking; Signage.
-----------------
19.1. Parking. Tenant shall have the non-exclusive right to
use a number of parking stalls located on the Property equal to Tenant's Parking
Stall Allocation only, and shall not use a number of parking stalls greater than
Tenant's Parking Stall Allocation. The use by Tenant of a number of parking
stalls greater than Tenant's Parking Stall Allocation shall be a default under
this Lease following the giving of notice and the expiration of the applicable
cure period described in Paragraph 16.1. Automobiles of Tenant and Tenant's
Occupants shall be parked only within parking areas not otherwise reserved by
Landlord or specifically designated for use by any other tenant or Occupants
associated with any other tenant. Landlord may from time to time designate
parking spaces for Tenant and make such other rules and regulations as Landlord
reasonably determines to be necessary or appropriate. Landlord and Landlord's
representatives may, without any liability to Tenant or Tenant's Occupants,
cause to be removed any automobile of Tenant or Tenant's Occupants that may be
parked wrongfully in a prohibited or reserved parking area, and Tenant agrees to
indemnify, defend and hold harmless Landlord from and against all claims,
liabilities and expenses, including attorneys' fees, arising in connection with
such removal.
19.2. Signage. Tenant shall be entitled to Building standard
signage on the Building interior directory and exterior monument sign. Tenant
shall not place or suffer to be placed on any exterior door, wall or window of
the Premises, on any part of the inside of the Premises which is visible from
outside of the Premises or elsewhere on the Property, any sign, decoration,
lettering, attachment, advertising matter or other thing of any kind, without
first obtaining Landlord's written approval. Landlord may, at Tenant's cost, and
----------------------
(30) thirty (30)
(31) , but Tenant shall not be required to do so more often than twice every
twelve (12) months
-20-
without notice or liability to Tenant, enter the Premises and remove any item
erected in violation of this Paragraph. Landlord may establish rules and
regulations governing the size, type and design of all such items and Tenant
shall abide by such rules and regulations. All approved signs or letterings on
doors shall be printed, painted and affixed at the sole cost of Tenant by a
person approved by Landlord, and shall comply with the requirements of the
governmental authorities having jurisdiction over the Property. At Tenant's sole
cost, Tenant shall maintain all permitted signs and shall, on the expiration of
the Term or sooner termination of this Lease, remove all such permitted signs
and repair any damage caused by such removal.
*****[Item 20 crossed out on original]*****
20. Substitution. At any time after the execution of this Lease,
Landlord may substitute for the Premises other premises (the "New Premises") in
the Building or within the RiverPark Corporate Center development, in which
event the New Premises shall as of the effective date of substitution be deemed
to be the Premises for all purposes under this Lease. Such substitution may be
made (a) if the New Premises are similar to the Premises in area, and (b)
provided Tenant is occupying the Premises at the time of such substitution, if
Landlord pays the actual out-of-pocket expense of moving Tenant and Tenant's
property to the New Premises and, at Landlord's sole cost, improves the New
Premises with improvements substantially similar to those located in the
Premises. Landlord shall not be responsible for any other costs that may be
incurred by Tenant in connection with such substitution.
21. Rules. Tenant and Tenant's Occupants shall faithfully observe and
comply with all of the rules set forth on the attached Exhibit A, and Landlord
may from time to time amend, modify or make additions to or deletions from such
rules(32). Such amendments, modifications, additions and deletions shall be
effective on notice to Tenant. On any breach of any of such rules, Landlord may
exercise any or all of the remedies provided in this Lease on a default by
Tenant under this Lease and may, in addition, exercise any remedies available at
law or in equity including the right to enjoin any breach of such rules.
Landlord shall not be responsible to Tenant for the failure of any other tenant
or person to observe any such rules.
22. General Provisions.
-------------------
22.1. No Partnership. Landlord does not by this Lease, in any
way or for any purpose, become a partner or joint venturer of Tenant in the
conduct of Tenant's business or otherwise.
22.2. Force Majeure. If either Landlord or Tenant is delayed
or hindered in or prevented from the performance of any act required under this
Lease by reason of acts of God, strikes, lockouts, other labor troubles,
inability to procure labor or materials, fire, accident, failure of power,
restrictive governmental laws, ordinances, regulations or requirements of
general applicability, riots, civil commotion, insurrection, war or other reason
not the fault of the party delayed, hindered or prevented and beyond the control
of such party (financial inability excepted), performance of the action in
---------------------
(32) in a commercially reasonable and non-discriminatory manner
-21-
question shall be excused for the period of delay and the period for the
performance of such act shall be extended for a period equivalent to the period
of such delay. The provisions of this Paragraph shall not, however, operate to
excuse Tenant from the prompt payment of rent or any other amounts required to
be paid under this Lease.
22.3. Notices. Any notice or demand to be given by Landlord or
Tenant to the other shall be given in writing by personal service, telegram,
express mail, Federal Express, DHL or any other similar form of courier or
delivery service, or mailing in the United States mail, postage prepaid,
certified, return receipt requested and addressed to such party as follows:
If to Landlord:
---------------
RiverPark Three, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
with a required copy to:
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Parr, Waddoups, ▇▇▇▇▇, Gee & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to Tenant:
-------------
Arkona, Inc.
------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
------------------------
Either Landlord or Tenant may change the address at which such party desires to
receive notice on written notice of such change to the other party. Any such
notice shall be deemed to have been given, and shall be effective, on delivery
to the notice address then applicable for the party to which the notice is
directed; provided, however, that refusal to accept delivery of a notice or the
inability to deliver a notice because of an address change which was not
properly communicated shall not defeat or delay the giving of a notice.
22.4. Severability. If any provision of this Lease or the
application of any provision of this Lease to any person or circumstance shall
to any extent be invalid, the remainder of this Lease or the application of such
provision to persons or circumstances other than those as to which such
provision is held invalid shall not be affected by such invalidity. Each
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
22.5. Brokerage Commissions. Except as agreed in writing by
Landlord, Tenant represents and warrants that no claims exist for brokerage
commissions or finder's fees in connection with this Lease and agrees to
-22-
indemnify, defend and hold harmless Landlord from and against all claims,
liabilities and expenses, including attorneys' fees, arising from any such
brokerage commissions or finder's fees.
22.6. Use of Pronouns. The use of the neuter singular pronoun
to refer to Landlord or Tenant shall be deemed a proper reference even though
Landlord or Tenant may be an individual, partnership, association, limited
liability company, corporation or a group of two or more individuals,
partnerships, associations, limited liability companies or corporations. The
necessary grammatical changes required to make the provisions of this Lease
apply in the plural sense where more than one Landlord or Tenant exists and to
individuals, partnerships, associations, limited liability companies,
corporations, males or females, shall in all instances be assumed as though in
each case fully expressed.
22.7. Successors. Except as otherwise provided in this Lease,
all provisions contained in this Lease shall be binding on and shall inure to
the benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. On any sale or assignment (except for
purposes of security or collateral) by Landlord of the Premises or this Lease,
Landlord shall, on and after such sale or assignment, be relieved entirely of
all of Landlord's obligations under this Lease and such obligations shall, as of
the time of such sale or assignment, automatically pass to Landlord's successor
in interest.
22.8. Recourse by Tenant. Anything in this Lease to the
contrary notwithstanding, Tenant shall look solely to the equity of Landlord in
the Premises(33), subject to the prior rights of the holder of any mortgage or
deed of trust, for the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord on any default or breach by Landlord
with respect to any of the terms, covenants and conditions of this Lease to be
observed or performed by Landlord, and no other asset of Landlord or any other
person shall be subject to levy, execution or other procedure for the
satisfaction of Tenant's remedies.
22.9. Quiet Enjoyment. On Tenant paying the rent payable under
this Lease and observing and performing all of the terms, covenants and
conditions on Tenant's part to be observed and performed under this Lease,
Tenant shall have quiet enjoyment of the Premises for the Term without
interference from Landlord, or anyone claiming by, through or under Landlord,
subject to all of the provisions of this Lease.
22.10. Waiver. No failure by any party to insist on the strict
performance of any covenant, duty or condition of this Lease or to exercise any
right or remedy consequent on a breach of this Lease shall constitute a waiver
of any such breach or of such or any other covenant, duty or condition. Any
party may, by notice delivered in the manner provided in this Lease, but shall
be under no obligation to, waive any of its rights or any conditions to its
obligations under this Lease, or any covenant or duty of any other party. No
waiver shall affect or alter the remainder of this Lease but each other
----------------------
(33) Property and the rents, issues and profits therefrom
-23-
covenant, duty and condition of this Lease shall continue in full force and
effect with respect to any other then existing or subsequently occurring breach.
22.11. Rights and Remedies. The rights and remedies of
Landlord and Tenant shall not be mutually exclusive and the exercise of one or
more of the provisions of this Lease shall not preclude the exercise of any
other provisions. The parties confirm that damages at law may be an inadequate
remedy for a breach or threatened breach by any party of any of the provisions
of this Lease. The parties' respective rights and obligations under this Lease
shall be enforceable by specific performance, injunction or any other equitable
remedy.
22.12. Authorization. Each individual executing this Lease
does represent and warrant to each other so signing (and each other entity for
which another person may be signing) that he has been duly authorized to deliver
this Lease in the capacity and for the entity set forth where he signs.
22.13. Attorneys' Fees. If any action is brought to recover
any rent or other amount under this Lease because of any default under this
Lease, to enforce or interpret any of the provisions of this Lease, or for
recovery of possession of the Premises, the party prevailing in such action
shall be entitled to recover from the other party reasonable attorneys' fees
(including those incurred in connection with any appeal), the amount of which
shall be fixed by the court and made a part of any judgment rendered. Tenant
shall be responsible for all expenses, including, without limitation, attorneys'
fees, incurred by Landlord in any case or proceeding involving Tenant or any
assignee or subtenant of Tenant under or related to any bankruptcy or insolvency
law. The foregoing provisions of this Paragraph 22.13 shall survive the
expiration of the Term or sooner termination of this Lease.
22.14. Merger. The surrender of this Lease by Tenant, the
cancellation of this Lease by agreement of Landlord and Tenant or the
termination of this Lease on account of Tenant's default shall not work a
merger, and shall, at Landlord's option, either terminate any subleases of part
or all of the Premises or operate as an assignment to Landlord of any of those
subleases. Landlord's option under this Paragraph 22.14 may be exercised by
notice to Tenant and all known subtenants in the Premises.
22.15. Miscellaneous. The captions to the Paragraphs of this
Lease are for convenience of reference only and shall not be deemed relevant in
resolving questions of construction or interpretation under this Lease. Exhibits
referred to in this Lease and any addendums, riders and schedules attached to
this Lease shall be deemed to be incorporated in this Lease as though a part of
this Lease. Tenant shall not record this Lease or a memorandum or notice of this
Lease. This Lease and the exhibits, riders and addenda, if any, attached,
constitute the entire agreement between the parties. Any guaranty delivered in
connection with this Lease is an integral part of this Lease and constitutes
consideration given to Landlord to enter into this Lease. No amendment to this
Lease shall be binding on Landlord or Tenant unless reduced to writing and
signed by both parties. Unless otherwise set forth in this Lease, all references
to Paragraphs are to Paragraphs in this Lease. Each provision to be performed by
-24-
Tenant shall be construed to be both a covenant and a condition. This Lease
shall be governed by and construed and interpreted in accordance with the laws
of the state of Utah. Venue on any action arising out of this Lease shall be
proper only in the District Court of Salt Lake County, state of Utah. Landlord
and Tenant waive trial by jury in any action, proceeding or counterclaim brought
by either of them against the other on all matters arising out of this Lease or
the use and occupancy of the Premises. Time is of the essence of each provision
of this Lease. The submission of this Lease to Tenant is not an offer to lease
the Premises or an agreement by Landlord to reserve the Premises for Tenant.
Landlord shall not be bound to Tenant until Tenant has duly executed and
delivered duplicate original copies of this Lease to Landlord, and Landlord has
duly executed and delivered one of those duplicate original copies to Tenant.
-25-
LANDLORD AND TENANT have executed this Lease on the respective dates
set forth below, to be effective as of the date first set forth above.
LANDLORD:
RIVERPARK THREE, LLC, by
its Manager:
RIVERPARK HOLDINGS,
a Utah limited liability company
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Manager
Date January 28, 2005
----------------------------------------
TENANT:
ARKONA, INC.
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Print or Type Name of Signatory:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Its Chief Financial Officer
-----------------------------------------
Date January 28, 2005
----------------------------------------
-26-
EXHIBIT A
to
OFFICE LEASE
================================================================================
RULES
The rules set forth in this Exhibit are a part of the
foregoing Office Lease (the "Lease"). Whenever the term "Tenant" is used in
these rules, such term shall be deemed to include Tenant and Tenant's Occupants.
The following rules may from time to time be modified by Landlord in the manner
set forth in the Lease. The terms capitalized in this Exhibit shall have the
same meaning as set forth in the Lease.
1. Obstruction. Any sidewalks, entries, exits, passages, corridors,
halls, lobbies, stairways, elevators or other common facilities of the Building
shall not be obstructed by Tenant or used for any purpose other than ingress or
egress to and from the Premises. Tenant shall not place any item in any of such
locations, whether or not such item constitutes an obstruction, without the
prior written consent of Landlord. Landlord may remove any obstruction or any
such item without notice to Tenant and at the sole cost of Tenant. Any
sidewalks, entries, exits, passages, corridors, halls, lobbies, stairways,
elevators or other common facilities of the Building are not for the general
public, and Landlord shall in all cases retain the right to control and prevent
access to them by all persons whose presence, in the judgment of Landlord, would
be prejudicial to the safety, character, reputation or interests of the Property
or Landlord's tenants. Tenant shall not go on the roof of the Building.
2. Deliveries. All deliveries and pickups of supplies, materials,
garbage and refuse to or from the Premises shall be made only through such
access as may be designated by Landlord for deliveries and only during the
ordinary business hours of the Building. Tenant shall not obstruct or permit the
obstruction of such access. Tenant shall be liable for the acts and omissions of
any persons making such deliveries or pickups.
3. Moving. Furniture and equipment shall be moved in and out of the
Building only through such access as may be designated by Landlord for
deliveries and then only during such hours and in such manner as may be
prescribed by Landlord. If Tenant's movers damage any part of the Improvements,
Tenant shall pay to Landlord on demand the amount required to repair such
damage.
4. Heavy Articles. No safe or article, the weight of which may, in the
reasonable opinion of Landlord, constitute a hazard of damage to the Building,
shall be moved into the Premises. Other safes and heavy articles shall be moved
into, from or about the Building only during such hours and in such manner as
shall be prescribed by Landlord, and Landlord may designate the location of such
safes and articles.
-27-
5. Building Security. On Saturdays, Sundays and legal holidays, and on
other days between the hours of 6:00 p.m. that evening and 8:00 a.m. the
following day, access to the Building, the halls, corridors, elevators or
stairways in the Building or to the Premises may be refused unless the person
seeking access is known to the person or employee of the Building in charge or
has a pass and is properly identified. Landlord shall in no case be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. In the event of an invasion, mob, riot, public
excitement or other commotion, Landlord reserves the right to prevent access to
the Building during the continuance of the same by closing the doors of the
Building or any other reasonable method, for the safety of the tenants and
protection of the Building and property in the Building. Landlord may from time
to time adopt appropriate systems and procedures for the security or safety of
the Building. Tenant shall be entitled to receive a number of key cards for
after-hours access to the Building equal to Tenant's Parking Stall Allocation.
Replacements cards for any key cards that are lost or stolen may be issued by
Landlord for a handling fee to be reasonably determined by Landlord, but such
fee will not be less than $10 per replacement card.
6. Pass Key. The janitor of the Building may at all times keep a pass
key to the Premises, and such janitor and other agents of Landlord shall at all
times be allowed admittance to the Premises.
7. Locks, Access Cards and Keys. No additional lock or locks shall be
placed by Tenant on any door in the Building and no existing lock shall be
changed unless written consent of Landlord shall first have been obtained. A
reasonable number of access cards and keys to the Premises and to the toilet
rooms, if locked by Landlord, will be furnished by Landlord, and Tenant shall
not have any additional access cards or keys made. At the termination of this
tenancy, Tenant shall promptly return to Landlord all access cards and keys to
offices and toilet rooms and provide Landlord with all combinations and keys for
any locks, safes, cabinets and vaults remaining in the Premises. Tenant shall
keep the doors of the Premises closed and securely locked when Tenant is not at
the Premises.
8. Use of Water Fixtures. Water closets and other water fixtures shall
not be used for any purpose other than that for which the same are intended. No
foreign substances of any kind shall be placed in them, and any damage resulting
to the same from use on the part of Tenant shall be paid for by Tenant. No
persons shall waste water by tying back or wedging the faucets or in any other
manner. On leaving the Premises, Tenant shall shut off all water faucets and
major electrical apparatus located within the Premises.
9. No Animals; Excessive Noise. No animals shall be allowed in the
Building, other than guide dogs for hearing or vision-impaired persons. No
persons shall disturb the occupants of the Building or adjoining buildings or
space by the use of any electronic equipment or musical instrument or by the
making of loud or improper noises.
-28-
10. Bicycles. Bicycles and other vehicles shall not be permitted
anywhere inside or on the sidewalks outside of the Building, except in those
areas designated by Landlord for bicycle parking.
11. Trash. Tenant shall not allow anything to be placed on the outside
of the Building, nor shall anything be thrown by Tenant out of the windows or
doors, or down the corridors or ventilating ducts or shafts, of the Building.
All trash and refuse shall be placed in receptacles provided by Landlord for the
Building or by Tenant for the Premises.
12. Exterior Windows, Walls and Doors. No window shades, blinds,
curtains, shutters, screens or draperies shall be attached or detached by Tenant
and no awnings shall be placed over the windows without Landlord's prior written
consent.
13. Hazardous Operations and Items. Tenant shall not install or operate
any steam or gas engine or boiler, or carry on any mechanical business in the
Premises without Landlord's prior written consent. Tenant shall not use or keep
in the Premises or the Building any kerosene, gasoline or other inflammable or
combustible fluid or material, or use any method of heating or air-conditioning
other than that supplied by Landlord. Explosives or other articles deemed extra
hazardous shall not be brought into the Building.
14. Hours for Repairs, Maintenance and Alteration. Any repairs,
maintenance and alterations required or permitted to be done by Tenant under the
Lease shall be done only during the ordinary business hours of the Building
unless Landlord shall have first consented in writing to such work being done at
other times. If Tenant desires to have such work done by Landlord's employees on
Saturdays, Sundays, holidays or weekdays outside of ordinary business hours,
Tenant shall pay the extra cost for such labor.
15. No Defacing of Premises. Except as permitted by Landlord by prior
written consent, Tenant shall not ▇▇▇▇ on, paint signs on, cut, drill into,
drive nails or screws into, or in any way deface the walls, ceilings, partitions
or floors of the Premises or of the Building, and any defacement, damage or
injury directly or indirectly caused by Tenant shall be paid for by Tenant.
Pictures or diplomas shall be hung on tacks or small nails; Tenant shall not use
adhesive hooks for such purposes.
****(Item 16 crossed out on original)*****
16. Chair Pads. Tenant shall, at Tenant's sole cost, install and
maintain under all caster chairs a chair pad to protect the carpeting.
17. Solicitation; Food and Beverages. Landlord reserves the right to
restrict, control or prohibit canvassing, soliciting and peddling within the
Building. Tenant shall not grant any concessions, licenses or permission for the
sale or taking of orders for food or services or merchandise in the Premises,
install or permit the installation or use of any machine or equipment for
dispensing food or beverage in the Building, nor permit the preparation,
serving, distribution or delivery of food or beverages in the Premises, without
the prior written approval of Landlord and only in compliance with arrangements
prescribed by Landlord. Only persons approved by Landlord shall be permitted to
-29-
serve, distribute or deliver food and beverage within the Building or to use the
public areas of the Building for that purpose. No cooking shall be done or
permitted by Tenant on the Premises.(34) Tenant may use a microwave oven and
coffee pot in connection with its use of the Premises.(35)
18. Directory. Any bulletin board, directory or monument sign for
Building tenants shall be provided exclusively for the display of the name and
location of Building tenants only and Landlord reserves the right to exclude any
other names. Landlord reserves the right to review and approve all signage and
directory listings. Tenant shall pay Landlord's reasonable charges for changing
any directory listing at Tenant's request.
19. Building Name. Landlord may, without notice or liability to Tenant,
name the Building and change the name, number or designation by which the
Building is commonly known. Tenant shall not use the name of the Building for
any purpose other than the address of the Building.
20. Expulsion. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
21. Public Areas. Landlord may control and operate the public portions
of the Building, and the public facilities, and heating and air-conditioning, as
well as facilities furnished for the common use of the tenants, in such manner
as Landlord deems best for the benefit of the tenants generally.
--------------------------
(34) Notwithstanding the foregoing to the contrary,
(35) Nothing in this Paragraph 17 shall limit Tenant or its employees from
ordering and consuming typical and customary take-out food such as pizza,
Chinese, etc., with beverages.
-30-
EXHIBIT B
to
OFFICE LEASE
DESCRIPTION OF PREMISES
The Premises referred to in the foregoing instrument are shown on the
attached diagram(s).
-31-
EXHIBIT C
to
OFFICE LEASE
PREPARATION OF PREMISES FOR OCCUPANCY
Landlord shall improve the Premises in accordance the following
attachments:
1. Tenant Floorplan
2. Description of Tenant Improvements
3. Building Standards and Specifications
Any additional improvements shall be at Tenant's sole cost and expense.
-32-
EXHIBIT D
to
OFFICE LEASE
COMMENCEMENT DATE CERTIFICATE
THE UNDERSIGNED, Landlord and Tenant, respectively, under that certain
Office Lease (the "Lease"), dated , 20 , agree that the "Commencement Date," as
defined in Paragraph 1.3 of the Lease, is , 20 , and that the "Expiration Date,"
as defined in Paragraph 1.5 of the Lease, is . As used in the Lease, "Basic
Monthly Rent" means the following amount(s) per calendar month for the period(s)
indicated:
Annual Cost Per
Period(s) Basic Monthly Rent Rentable Square Foot
--------- ------------------ --------------------
through $ per month $
-------------------------- ------------------- --------
, inclusive
-----------------------------
through $ per month $
-------------------------- ------------------- --------
, inclusive
-----------------------------
through $ per month $
-------------------------- ------------------- --------
, inclusive
-----------------------------
through $ per month $
-------------------------- ------------------- --------
, inclusive
-----------------------------
through $ per month $
-------------------------- ------------------- --------
, inclusive
-----------------------------
-33-
LANDLORD AND TENANT have executed this Commencement Date Certificate on
the respective dates set forth below.
LANDLORD:
RIVERPARK THREE, LLC, by
its Manager:
RIVERPARK HOLDINGS,
a Utah limited liability company
By
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Manager
Date
----------------------------------------
TENANT:
ARKONA, INC.
By
------------------------------------------
Print or Type Name of Signatory:
Its
-----------------------------------------
Date
----------------------------------------
-34-