UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
For the transition period form ______________ to ______________
Commission file number: 0-18271
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MAGELLAN TECHNOLOGY, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Utah 87-0467614
------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization
13526 South 110 West
Draper, Utah 84020
------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (801) 495-2211
--------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities and Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No___
----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date:
Outstanding at
Class June 30, 1997
----- ---------------
Common Stock, $.0002 par value 13,628,338 shares
<PAGE>
FORM 10-QSB
Financial Statements and Schedules
Magellan Technology, Inc.
For the Quarter Ended June 30, 1997
The following financial statements and schedules of the registrant and
its consolidated subsidiaries are submitted herewith:
Part I - Financial Information
------------------------------
Item 1. Financial Statements
Condensed consolidated balance sheet
for June 30, 1997 and year-end
for December 31, 1996 2
Condensed consolidated statement of
operations for the three and six months
ended June 30, 1997 and 1996 4
Condensed statement of cash flows for the
six months ended June 30, 1997
and 1996 5-6
Notes to condensed consolidated
financial statements 7
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations 8-9
Part II - Other Information
---------------------------
Item 1. Legal Proceedings 10
Item 2. Changes in Securities 10
Item 3. Defaults upon Senior Securities 10
Item 4. Submission of Matters to a Vote of
Security Holders 10
Item 5. Other information 10
Item 6(a) Exhibits 10
Item 6(b) Reports on Form 8-K 10
<PAGE>
MAGELLAN TECHNOLOGY, INC.
AND SUBSIDIARIES
Condensed Consolidated Balance Sheet
ASSETS 30-Jun-97 Dec. 31, 1996
(Unaudited) (Audited)
-------------- --------------
Current Assets:
Cash $ 51,228 $ 88,687
Other Current Assets 103,815 6,125
-------------- --------------
Current Assets 155,043 94,812
-------------- --------------
Property and Equipment:
Property and Equipment 95,849 72,384
Accumulated Depreciation (14,447) (6,777)
-------------- --------------
Net Property and Equipment 81,402 65,607
-------------- --------------
Investment in Joint Venture 1,430,375 1,468,933
-------------- --------------
Total Assets $ 1,666,820 $ 1,629,352
============== ===============
2
<PAGE>
MAGELLAN TECHNOLOGY, INC.
AND SUBSIDIARIES
Condensed Consolidated Balance Sheet
LIABILITIES AND STOCKHOLDERS' EQUITY 30-Jun-97 Dec. 31, 1996
(Unaudited) (Audited)
-------------- --------------
Current Liabilities:
Current Portion of long-term debt $ 41,787 $ 38,516
Line of Credit 730,000 -
Notes Payable 100,000
Accounts Payable 97,727 43,947
Accrued Liabilities 91,721 75,253
-------------- --------------
Current Liabilities 1,061,235 157,716
Long-Term Debt 526,504 542,390
-------------- --------------
Total Liabilities 1,587,739 700,106
-------------- --------------
Stockholders' Equity:
Common Stock, par value $.0002
per share; 25,000,000 shares
authorized, 13,628,338 shares
issued and outstanding 2,724 2,724
Additional Paid-in Capital 6,316,853 6,309,353
Retained Deficit (6,240,496) (5,382,831)
-------------- --------------
Total Stockholders' equity 79,081 929,246
-------------- --------------
Total Liabilities and
Stockholder's Equity $ 1,666,820 $ 1,629,352
3
<PAGE>
MAGELLAN TECHNOLOGY, INC.
AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(Unaudited)
<TABLE>
<S> <C> <C> <C> <C>
Three Months Ended Six Months Ended
June 30, June 30,
----------------------------------- ------------------------------------
1997 1996 1997 1996
----------------- ----------------- ----------------- -----------------
Revenue from Sales: $ - $ 473,311 $ - $ 985,916
Cost of Sales: - 304,112 - 625,549
----------------- ----------------- ----------------- -----------------
Gross Margin: - 169,199 - 360,367
Operating Expenses:
Selling, General and Administrative 239,877 109,585 466,585 212,601
Depreciation & Amortization 4,536 45,532 7,892 117,601
R & D Expenses 154,643 - 291,667 -
----------------- ----------------- ----------------- -----------------
Total Operating Expenses 399,056 155,117 766,144 330,202
----------------- ----------------- ----------------- -----------------
Income (Loss) from Operations: (399,056) 14,082 (766,144) 30,165
Other Income (Expense):
Equity in Loss of Joint Venture 6,129 - (38,558) -
Interest Expense (28,855) (8,600) (45,925) (24,878)
Other, net (7,790) 1,153 (7,038) 9,589
----------------- ----------------- ----------------- -----------------
Net Income (Loss) $ (429,572) $ 6,635 $ (857,665) $ 14,876
================= ================= ================= =================
Net Income (Loss) per share $ (0.03) $ 0.00 $ (0.06) $0.00
================= ================= ================= =================
Weighted average shares outstanding 13,628,338 7,535,933 13,628,338 7,535,933
================= ================= ================= =================
</TABLE>
4
<PAGE>
MAGELLAN TECHNOLOGY, INC.
AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(Unaudited)
Six Months Ended
June 30,
-----------------------------
Cash Flows form Operating Activities: 1997 1996
-------------- --------------
Net Income (Loss) $ (857,665) $ 14,876
Adjustments to Reconcile Net Income (Loss)
to Net Cash used in Operating Activities:
Depreciation 7,892 83,437
Equity in Loss of Joint Venture 38,558 -
(Increase) Decrease in:
Accounts Receivable - (28,119)
Other Current Assest (97,690) (41,647)
Cash Deposits - (41,648)
Capitalized Software, Net - (45,243)
Increase (Decrease) in:
Accounts Payable 53,780 (32,941)
Accrued Liabilities 31,468 (28,713)
Deferred Revenue - (1,093)
-------------- --------------
Net Cash used in Operating Activities (823,657) (121,091)
Cash Flows from Investing Activities:
Purchase of Machinery and Equipment (23,687) (90,734)
Investment in Subsidiary - (300,000)
-------------- --------------
Net Cash used in Investing Activities (23,687) (390,734)
Cash Flows from Financing Activities:
Proceeds from Notes Payable and Line of Credit 830,000 348,783
Proceeds from the Issuance of Common Stock 7,500 310,000
Reduction of Long-Term Debt (27,615) (279,827)
-------------- --------------
Net Cash Provided by (Used in)
Financing Activities: 809,885 378,956
-------------- --------------
Net Decrease in cash (37,459) (132,869)
Cash, Beginning of Period 88,687 149,778
-------------- --------------
Cash, End of Period $ 51,228 $ 16,909
============== ==============
5
<PAGE>
MAGELLAN TECHNOLOGY, INC.
AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(Unaudited)
Six Months Ended
June 30,
-----------------------------
1997 1996
-------------- --------------
Cash paid during the period for:
Interest $ 28,379 $ 16,330
============== ==============
Income Taxes $ - $ -
============== ==============
Nonmonetary Financing and Investing Activities
During the first quarter of 1996 the Company acquired $30,060 of
computer equipment, furniture and fixtures with additional debt.
6
<PAGE>
MAGELLAN TECHNOLOGY, INC.
AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(1) The unaudited condensed consolidated financial statements include the
accounts of Magellan Technology, Inc. (The Company) and its wholly
owned subsidiaries, SkyHook Technologies, Inc. (SkyHook), Satellite
Image Systems, Inc. (SIS, Inc.) and SIS Jamaica, LTD (SIS Jamaica).
The Company acquired SkyHook effective October 15, 1996. The
acquisition of SkyHook included the issuance of 4,874,936 shares of
Magellan common stock and cash for all of the outstanding shares of
SkyHook common stock. The transaction was accounted for as a purchase
transaction. On August 1, 1996 the Company transferred its interest
in the assets, liabilities, and operations conducted by SIS, Inc. to
Satellite Image Systems, LLC (SIS,LLC), a joint venture. The Company
received a 49% interest in SIS, LLC whose assets include those
transferred by the Company as well as $3,000,000 cash transferred by
the other party to the transaction. The financial statements reflect
the investment in SIS, LLC under the equity method of accounting.
(2) The unaudited condensed consolidated financial statements include all
adjustments (consisting of normal recurring items) which are, in the
opinion of management, necessary to present fairly the financial
position as of June 30, 1997 and the results of operations for the six
months ended June 30, 1997 and 1996 and cash flows for the six months
ended June 30, 1997 and 1996. The results of operations for the six
months ended June 30, 1997 are not necessarily indicative of the
results to be expected for the entire year.
(3) (Loss) per share is based on the weighted average number of shares
outstanding at June 30, 1997 and 1996, respectively. Shares
outstanding for 1996 and 1997 reflect the 2:1 reverse stock split that
occurred on March 8, 1996.
(4) During the six months ended June 30, 1997, the Company borrowed
$730,000 on its line-of-credit agreement. The funds were used to
finance operations. The line-of-credit matures on December 31, 1997
and is secured by inventory and the personal guarantee to the Company's
Chief Executive Officer.
(5) During the month of June the Company borrowed $100,000 from the
Company's Chief Executive Officer under a note payable agreement.
The note bears interest at 12% and is payable upon demand. The
funds were used to finance operations.
7
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 2 - Management's Discussion and Analysis of Financial Condition and
---------------------------------------------------------------
Results of Operations
---------------------
Six month period ended June 30, 1997 compared to the six month period ended
June 30, 1996
Due to the formation of SIS, LLC effective August 1, 1996 and the acquisition
of SkyHook Technologies, Inc. effective October 15, 1996 the focus of the
company for the six month period ended June 30, 1997 has changed significantly
when compared to the activities of the six month period ended June 30, 1996.
Accordingly, no comparison between current and prior year's operating results
is meaningful.
Operations for the three months ended June 30, 1997
During the three months ended June 30, 1997 the Company continued to
aggressively pursue development and marketing of the SkyHook Cargo
Management System (SkyHook CMS). Pre-production models of the SkyHook
CMS were tested and demonstrated with potential customers. Marketing and sales
professionals have participated in trade shows and other marketing activities.
These activities included demonstrations of the product, visits to potential
customers, and integration of customer feedback into final production design.
The SkyHook CMS product continues to receive favorable reviews in industry
publications. Sales and marketing expenses averaged approximately $48,000 per
month during the three months ended June 30, 1997. Notwithstanding these
continued favorable preliminary results, there is no assurance that marketing
of the SkyHook CMS will be successful.
As of June 30, 1997 the company had relocated the operations of SkyHook
Technologies, Inc. to a new facility in Draper, Utah. The facility provides
SkyHook with needed additional office and production space. The Company has
also relocated its Magellan Technology, Inc. (Parent Company) functions to the
Draper, Utah facility. The Company entered into a lease agreement in
connection with the move. The lease has a term of three years with one three
year option.
Results of SIS, LLC
Since the formation of SIS, LLC, the Company has accounted for the earnings and
transactions of SIS, LLC under the equity method of accounting. For the three
months ended June 30, 1997 the Company's books reflect net income of $6,129,
its 49% share of the income of SIS, LLC for the Quarter. SIS, LLC in total
earned $12,508 on revenues of $998,173 for the three months ended
June 30, 1997. These results compare favorably with the three month period
ended March 31, 1997 during which SIS, LLC incurred a net loss of $97,198 on
revenues of $722,172.
Operations for the Six-month period ended June 30, 1997
During the six month period ended June 30, 1997, in addition to the activity
related above, the SkyHook CMS product was successfully demonstrated during a
prolonged war games exercise with a branch of the United States Military during
the month of March 1997.
8
<PAGE>
Liquidity and Capital Resources
During the six months ended June 30, 1997, the Company borrowed $730,000 on its
line-of-credit agreement. The funds were used to finance operations. The
line-of-credit matures on December 31, 1997 and is secured by inventory and the
personal guarantee to the Company's Chief Executive Officer.
On June 2, 1997 the Board of Directors approved a financing agreement for the
Company to borrow up to $600,000 in unsecured notes. The notes bear interest
at 12% and are payable on demand. The Company borrowed $100,000 from the
Company's Chief Executive Officer under the financing agreement during the
month of June.
SkyHook Technologies, Inc. is still in the development stage and is not
expected to generate any revenue through sales of products or services until
the fourth quarter of 1997. As a result, the Company must rely solely on its
line-of-credit and its ability to raise additional debt and equity financing
in order to finance the continued product development and marketing and sales
activities for the SkyHook CMS. On-going operations of the Company are
currently consuming approximately $135,000 of cash each month and the Company
expects to continue to incur substantial additional expenses in connection
with the finalization of the development of the SkyHook CMS and its
introduction into the market place. There can be no assurance that the Company
will be able to obtain needed financing on terms favorable to the Company.
If the company is unable to raise additional capital, the ability of the
Company to successfully market and distribute the SkyHook CMS and its financial
condition would be materially adversely affected.
9
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal proceedings: None.
Item 2. Changes in Securities: None.
Item 3. Defaults upon Senior Securities: None.
Item 4. Submission of Matters to a Vote of Security Holders: None.
Item 5. Other information:
On June 18, 1997 the Company signed a Letter of Intent to acquire
BioSource, Inc. of Orem, Utah. BioSource is an international leader in Electro
Dermal Screening (EDS), a revolutionary computer-based technology used to
assist healthcare practitioners to screen a broad range of health disorders.
Joe Galloway, President of BioSource , said, "In order to maintain
our Company's rapid growth, we needed additional executive and financial
resources. After considering several offers, our management unanimously
agreed to join Magellan." BioSource is expected to increase the revenues of
Magellan's subsidiary, SIS, Inc. SIS, Inc. through a Joint Venture with
UICI (NASDAQ) uses data capture technology and imaging to convert payer
documents into electronic claims submission formats for the healthcare
industry.
William A. Fresh, Chairman and CEO of Magellan Technology indicated
that the addition of BioSource compliments one of the Company's present
missions: Providing technology for health services.
Item 6. Exhibits and Reports on Form 8-K:
(a) Exhibit 10.1 - Lease Agreement dated June 25, 1997 between
SkyHook Technologies, Inc. and Cottonwood Heights LLC.
(b) None.
10
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
MAGELLAN TECHNOLOGY, INC.
---------------------------------
(Registrant)
/s/ Douglas M. Angus August 7, 1997
- --------------------- --------------
Douglas M. Angus Date
Vice President - Finance
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AGELLAN
TECHNOLOGY, INC. JUNE 30, 1997 FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 51,228
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 155,043
<PP&E> 95,849
<DEPRECIATION> (14,447)
<TOTAL-ASSETS> 1,666,820
<CURRENT-LIABILITIES> 1,061,235
<BONDS> 1,398,291
0
0
<COMMON> 2,724
<OTHER-SE> 76,357
<TOTAL-LIABILITY-AND-EQUITY> 1,666,820
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 766,144
<OTHER-EXPENSES> 91,521
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 45,925
<INCOME-PRETAX> (857,665)
<INCOME-TAX> 0
<INCOME-CONTINUING> (857,665)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (857,665)
<EPS-PRIMARY> (0.06)
<EPS-DILUTED> (0.06)
</TABLE>
EXHIBIT 10.1
COMMERCIAL LEASE
TMS LEASE (the "Lease") dated this 25 day of June, 1997, is
entered into by and between COTTONWOOD HEIGHTS, LLC, a Utah
limited partnership ("Landlord"), and SKYHOOK TECHNOLOGIES,
INC., a Utah corporation, ("Tenant").
1. PREMISES.
(a) Description. Landlord hereby leases to Tenant, and
-----------
Tenant hereby leases from Landlord, for the term and subject to
the terms and conditions hereinafter set forth, to each and all
of which Landlord and Tenant hereby mutually agree, those
certain premises (the "Premises"), highlighted on Exhibit A
attached hereto, which include approximately 4,200 square feet
of office space, approximately 3,300 square feet of warehouse
space and approximately one half of the fenced yard on the
southeast side of the building. The location of the Premises is
commonly known as 13526 South 110 West, Draper, Utah.
(b) Additional Use. In addition, the Premises shall
--------------
include the appurtenant right to use, in common with others, the
site, parking and landscaped areas. Landlord shall provide
Tenant, at no additional charge, the use of all parking stalls
located along the north side of the building and an additional
ten (10) parking stalls on-the south side of the building.
(c) Acceptance of Premises. Unless otherwise notified by
----------------------
Tenant within thirty (30) days of taking possession, by entry
hereunder Tenant accepts the Premises as being in the condition
in which Landlord is obligated to deliver the Premises. Tenant
shall at the end of the term and any extension herein surrender
to Landlord the Premises and all alterations, additions and
improvements thereto in the same condition as when received;
ordinary wear and tear, damage by fire, earthquake, or act of
God excepted. Landlord has no liability and has made no
representation to alter, improve, repair, or paint the Premises
or any part thereof, except as specified in Article 2(c), 2(d) &
6 herein.
2. TERM, OPTION, TENANT IMPROVEMENTS.
(a) Lease Term. The initial Lease Term shall be three (3)
----------
years and shall commence July 1, 1997 ("Commencement Date"),
which Commencement Date is subject to the substantial completion
of Tenant Improvements. If Landlord is solely responsible for
not delivering possession of the Premises to Tenant within
forty-five (45) days of the Commencement Date, Tenant may upon
ten (10) days written notice terminate the Lease. In the event
<PAGE>
of Tenant's termination due to late delivery, Landlord shall not
be liable to tenant for any damage of any kind resulting from
such late delivery or failure to deliver possession of the
Premises.
(b) Option. Provided that Tenant is not in default under
------
the Lease, Tenant may by written notice to Landlord, not later
than one hundred eighty (180) days prior to the expiration of
the Lease, extend the Lease by exercising a (one-time) 3-year
option on a timely basis. Tenant shall possess the Premises
during the Option period upon the same terms and conditions of
the Lease, except that Base Rent under Article 4(a) herein will be
adjusted for the Option period to the then fair market rate for
similar space in similar condition in the surrounding area.
(c) Base Building Improvements. At Landlord's sole cost
--------------------------
and expense, Landlord shall design, construct and install the
Building's roof and structural elements ("Shell"), shall provide
basis utility access to and an initial HVAC unit for the
Premises, and shall design and construct the common areas of the
Premises and Building, as more specifically outlined in Exhibit
B - Base Building Improvements (collectively "Base Building
Improvements").
(d) Tenant Improvements. At execution of the Lease,
-------------------
Landlord shall commence the building design, construction and
installation of agreed-upon Tenant Improvements requested by
Tenant, as more specifically outlined in Exhibit C - Tenant
improvements (collectively "Tenant Improvements"). Tenant is
responsible for any costs of Tenant Improvements above $12,000,
and Tenant shall pay Landlord all such costs and expenses on or
before thirty (30) days after occupancy. Tenant Improvements
shall include all improvements to the Premises, but exclude the
Base Building Improvements.
(e) Substantial Completion of Tenant Improvements. The
---------------------------------------------
Premises shall be deemed complete when Landlord has
substantially completed the Tenant Improvements. "Substantial
Completion" shall mean when (i) installation of Tenant
Improvements has occurred, (ii) Basic utility services are
available to the Premises, (iii) Landlord's Architect/Contractor
shall have issued a Certificate of Substantial Completion with
respect to Premises or that portion of the Building within which
they are contained, whether or not Substantial Completion of the
entire Building itself shall has occurred, and (iv) issuance of
a temporary Certificate of Occupancy. Substantial Completion
shall be deemed to have occurred notwithstanding a requirement
to complete "punch-list" work, which shall be completed within a
reasonable time by Landlord. Landlord shall use its best
efforts to advise Tenant of Substantial Completion at least
thirty (30) days prior to such date, but the failure to give
such notice shall not constitute a default hereunder by
Landlord.
2
<PAGE>
3. NON-OCCUPANCY OF IMPROVED SPACE.
In the event Tenant does not occupy the Premises and fails
to pay Rents as required in Article 4 of the Lease, all costs for Tenant
Improvements become due and payable upon invoicing by Landlord, subject to
reasonable mitigation by Landlord for use with next tenant.
Further, such invoicing by Landlord does not waive any other
rights or remedies Landlord may have against Tenant for failure
to occupy.
4. RENT.
(a) Base Rent. Total Base Rent shall be $5,900 per month for the
---------
first year; $6,100 per month for the second year; and, $6,300 per month for
the third year, payable in advance on or before the lst day of each
month during the duration of the Lease, with the first monthly
rental payment being due upon the execution of the Lease. Any
partial months shall be prorated accordingly. Base Rent during
the Term of the Lease or any option period shall never decrease.
All base Rent and Additional Rent (collectively "Rents") shall
be paid as follows, unless otherwise directed in writing:
Cottonwood Heights, LLC, 13526 South 1 10 West, Draper, UT
84020, Attn: Guy Wadsworth.
(b) Additional Rent. All obligations payable by Tenant under
---------------
the Lease other than Base Rent are called "Additional Rent".
Additional Rent shall be paid monthly with Base Rent pursuant to
the Lease, unless otherwise invoiced by Landlord.
(c) Interest, Late Charges, Costs and Attorneys' Fees. If Tenant
-------------------------------------------------
fails to pay within ten (10) days of the date due any Rents which Tenant is
obligated to pay under the Lease, the unpaid amount shall bear interest at ten
(10%) percent per annum. Tenant acknowledges that any
late payments of Rents shall cause Landlord to lose the use of
that money and incur costs and expenses not contemplated under
the Lease, including without limitation administrative,
collection and accounting costs, the exact amount of which is
difficult to ascertain. Therefore, in addition to interest, any
late payments shall be accompanied by a payment of a late charge
equal to five (5 %) percent of the late Rents. Further, as
Additional Rent, Tenant shall be liable to Landlord for costs
and attorneys' fees incurred as a result of late payments or
non-payments. Acceptance of any interest, late charge, costs or
attorneys' fees shall not constitute a waiver of any default by
Tenant nor prevent Landlord from exercising any other rights or
remedies under the Lease or at
law.
5. USE.
(a) The Premises shall be used for general office use and research and
development and any other lawful purpose incidental to Tenant's current
business, and no other, unless consented to in writing by Landlord. Tenant
shall not do or permit to be done in or about the Premises or Building anything
3
<PAGE>
which is prohibited by or in any way in conflict with any and
all laws, statutes, ordinances, rules and regulations now in
force or which may hereafter be enacted or promulgated or which
is prohibited by the standard form of fire insurance policy, or
which will increase the existing rate of or affect any fire or
other insurance upon the Premises or Building or any of its
contents, or cause a cancellation of any insurance policy
covering the Premises or Building or any part thereof or any of
its contents. Tenant shall not handle, use, store or otherwise
put any hazardous material on the Premises, without first
notifying Landlord of its intention to do so and identifying the
hazardous material and safety plan which shall ensure that any
such hazardous material is properly controlled, safeguarded, and
disposed of, and obtaining Landlord's prior written consent,
which consent may be reasonably withheld and may be conditioned
upon absolute indemnification by Tenant and accompanying bond.
Tenant shall not do or permit anything to be done in or about
the Premises or Building which will in any way violate Rules or
Regulations reasonably promulgated by Landlord throughout the
Lease, obstruct or interfere with the rights of other tenants,
or injure them, or use or allow the Premises or Building to be
used for any improper, immoral, or unlawful purpose, nor shall
Tenant cause, maintain or permit any nuisance, in, on or about
the Premises or Building or commit or suffer to be committed any
waste in, on or about the Premises or Building.
(b) Tenant shall not use the name of the Building in which the
Premises are located, in connection with any business carried on
in said Premises (except as Tenant's address) without written
consent of Landlord.
6. LANDLORD'S SERVICES.
Landlord, at its sole cost and expense, is responsible to maintain
the roof and structural elements ("Shell") of the Premises and Building and is
further responsible for property taxes and property management expenses.
All other expenses, including but not limited to common area
utilities, common area janitorial, sewer and garbage on the
Premises, Building, and common areas shall be coordinated by
Landlord, but are the financial responsibility of the Tenant
through prorated billings as more fully outlined in Article 7
herein.
7. OPERATING EXPENSES.
Since the Premises is part of a Building or group of buildings,
Tenant is responsible for a prorated share of Operating Expenses, including
but not limited to common area utilities, common area janitorial (not
specific tenant janitorial), water, sewer and garbage, incurred
in the operation and management of the Premises, Building, and
common areas as shall be reasonably determined by the Landlord.
For purposes of the Lease, Operating Expenses specifically
exclude electric, gas, and janitorial expenses for the office
space portion (excluding common areas) of Tenant's Premises
which are separately billed to Tenant and which are the sole
responsibility of Tenant. Proration shall be on a square
footage basis with all other tenants and Tenant's proration
shall be calculated by multiplying the Operating Expenses by an
4
<PAGE>
equation, the numerator being the Rentable square feet of the
Premises and the denominator being the total Rentable square
feet of the Building. The Operating Expenses shall be prorated
to Tenant and be payable by Tenant as Additional Rent on a
monthly basis, and subject to the following terms and
conditions:
(a) Prorated Share. Tenant's prorated share of the Operating
--------------
Expenses shall be computed and paid in twelve (12) equal monthly
estimated payments as determined in the Landlord's reasonable
discretion. Such Additional Rent shall be paid by Tenant on or
before the lst day of each month with the Base Rent. As soon as
is reasonably possible, but in any event within ninety (90) days
following the end of each calendar year, Landlord shall furnish
to Tenant a statement showing the Premises' and Building's
actual Operating Expenses for the preceding calendar year. In
the case of a deficiency, Tenant shall promptly remit its
prorated share of such deficiency to Landlord. In the case of a
surplus, Landlord shall apply said surplus to the next
Additional Rent due from Tenant.
(b) Right to Review. Tenant may review at his sole cost and
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expense any Operating Expenses prorated to Tenant by Landlord.
Landlord shall make available the applicable Operating Expenses'
invoices and statements. However, any such review must be
requested and completed within sixty (60) days of receipt of the
annual statement.
8. ALTERATIONS.
(a) Tenant will not make or suffer to be made any alterations,
additions or improvements in excess of $1,000, excluding the
initial Tenant Improvements, (collectively "Alterations") to or
upon the Premises, Building, or any part thereof, or attach any
fixtures or equipment thereto, without first obtaining
Landlord's written approval, which shall not be unreasonably
withheld or delayed. Any Alterations to or upon the Premises
shall be made by Tenant at Tenant's sole cost and expense and
any contractor selected by Tenant to make the same shall be
subject to Landlord's reasonable prior written approval. All
such Alterations permanent in character, made in or upon the
Premises either by Tenant or Landlord, may at the option of
Landlord, become Landlord's property and, at the end of the term
or any extension hereof, shall remain on the Premises without
compensation to Tenant unless Landlord requests that Tenant
remove any such Alterations. Notwithstanding the above,
Tenant's work stations and other items of personal property
shall remain Tenant's property.
(b) Any Alterations shall, when completed, be of such a
character as not to lessen the value of the Premises or such
improvements as may be then located thereon. Any Alterations
shall be made promptly and in a good workmanlike manner and in
compliance with all applicable permits and authorizations and
building and zoning laws and with all other laws, ordinances,
orders, rules, regulations and requirements of all federal,
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state and municipal governments, departments, commissions,
boards and offices. The costs of any such Alterations shall be
paid by Tenant, so that the Premises be free of liens, for
services performed, labor and material supplied or claimed to
have been supplied. Before any Alterations shall be commenced,
Tenant shall pay any increase in premiums on insurance policies
(provided for herein) or ensure adequate coverage is in place
for all risks related to the construction of such Alterations
and the increased value of the Premises.
9. PERSONAL PROPERTY & SIGNAGE.
Tenant may place high quality block letter signage on the face
of the building. Placement of the signage, including the type, size and
lighting of the signs, must be approved in writing by Landlord prior to
their installation. Such personal property must be removed at the end of
the Lease Term, any Option period herein if applicable, or upon Tenant's
failing to have possession of the Premises.
10. LIENS.
Tenant shall keep the Premises and the Building free from any
mechanics' and/or materialmen's liens or other liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Tenant
shall notify Landlord in writing at least seventy-two (72) hours before any
work or activity is to commence on the Premises which may give rise to such
liens to allow Landlord to post and keep posted on the Premises any
notices which Landlord may deem to be proper for the protection
of Landlord and the Premises from such liens.
11. DESTRUCTION OR DAMAGE.
(a) If the Premises is partially damaged by fire,
earthquake, or other Act of God, Landlord shall repair the same at Landlord's
expense, subject to the provisions of this Article and provided such repairs
can, in Landlord's reasonable opinion, be made within sixty (60) days.
During such repairs, the Lease shall remain in full force and
effect, except that if there shall be damage to the Premises and
such damage is not the result of the negligence or willful
misconduct of Tenant, Tenant's employees, agents, or invites, an
abatement of Rents shall be allowed Tenant for such portion of
Premises and period of time as the Premises was unusable by Tenant.
(b) If in Landlord's reasonable opinion the partially
damaged Premises can be repaired, but not within sixty (60)
days, the Landlord may elect, upon written notice to Tenant
within thirty (30) days of such damages, to repair such damages
over a longer time period and continue the Lease in full force
and effect, but with Rents partially abated as provided in
Article 11 (a). In the event such repairs cannot be made within
sixty (60) days, Tenant shall have the option to terminate the
Lease provided that written notice is given to Landlord within
thirty (30) days of receipt of Landlord's notice stated in this
paragraph.
(c) If the partially damaged Premises is to be repaired
under this Article, Landlord shall repair such damages to the
Premises itself, and to the Tenant Improvements supplied by
Landlord herein. Except in the event of Landlord's gross
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negligence or willful misconduct, Tenant shall be responsible
for Tenant's equipment, furniture and fixtures, and other
alterations, additions and improvements made by Tenant to the
Premises and Building.
(d) If in Landlord's reasonable opinion, the Premises is
totally or substantially destroyed by fire or other casualty,
the Lease shall terminate upon notice by Landlord.
12. SUBROGATION.
Landlord and Tenant shall each, prior to Tenant's taking
possession or immediately after the execution of the Lease, procure from
each of the insurers under all policies of fire, theft, public liability,
workmen's compensation and other insurance now or hereafter existing
during the term and any extension hereof and purchased by either
of them insuring or covering the Premises and/or Building or any
portion thereof or operations therein, a waiver of all rights of
subrogation which the insurer might otherwise, if at all, have
against the other.
13. INDEMNIFICATION.
Tenant and Landlord hereby agree to indemnify and hold the
other party harmless from any damage to any property, including
the release of any hazardous materials, or injury to or death of
any person arising from the use of the Premises, Building, or
common areas by Tenant or the ownership, management or
maintenance of the Premises, Building, or common areas by
Landlord, except such as is caused by reason of the negligent or
willful act of the other party, its agents, employees or
contractors. The foregoing indemnity obligation of Tenant and
Landlord shall include reasonable fees, investigation costs and
all other reasonable costs and expenses incurred by Landlord or
Tenant from the first notice that any claim or demand is made,
except in the event of the other party's negligence or willful
misconduct. The provisions of this Article shall survive the
Lease's termination with respect to any damage, injury or death
occurring prior to such termination.
14. COMPLIANCE WITH LEGAL REQUIREMENTS.
Tenant shall, at its sole cost and expense, promptly comply
with all laws, statutes, ordinances and governmental rules,
regulations or requirements now in force or which may hereafter
by in force, the requirements of any board of fire underwriters
or other similar body now or hereafter constituted, any
direction or occupancy certificate issued pursuant to any law by
any public officer or officers, as well as the provisions of all
recorded documents affecting the Premises, (collectively the
"Applicable Laws"), insofar as any thereof relate to or affect
the use or occupancy of the Premises, Building, or common areas,
excluding requirements of structural changes now related to or
affected by improvements made by or for Tenant.
Landlord shall, at its sole cost and expense, promptly
comply with all Applicable Laws, including the American with
Disabilities Act ("ADA"), insofar as any thereof relate to or
affect Landlord's obligations under the Lease, or its ownership
of the Premises, Building, or common areas, except for Tenant's
requirements in the immediately preceding paragraph herein.
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15. INSURANCE.
(a) Commercial General Liability. Tenant shall,
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maintain a Commercial General liability policy including all
coverages normally provided therein. Such policies shall
specifically name Landlord as an additional insured, with a
cancellation period of thirty (30) days prior written notice of
an cancellation. A Certificate of Insurance shall be provided
to Landlord. All polices of insurance shall be issued by
responsible insurance companies licensed to do business in the
State of Utah.
The minimum limits of coverage acceptable are:
(i) $1,000,000 Each Occurrence Combined Single Limit for
Bodily Injury and Property Damage; and
(ii) $2,000,000 Annual Aggregate
(b) Premises and Building Insurance. Landlord shall insure the
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Premises and Building, including Landlord supplied Core and Shell and Tenant
Improvements as deemed necessary in Landlord's reasonable discretion. Landlord
shall be responsible for the cost of such insurance.
(c) Tenant's Additional Insurance. Tenant may, at its
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sole cost and expense, cause all equipment, machinery, furniture
and fixtures, personal property, and Tenant Improvements
supplied by Tenant from time to time used or intended to be used
in connection with the operation and maintenance of the
Premises, to be insured by Tenant against loss or damage.
Except for losses caused by Landlord's gross negligence or
willful misconduct, Landlord is in no way liable for any
uninsured Tenant's property.
16. ASSIGNMENT AND SUBLETTING.
In the event Tenant should desire to assign the Lease or
sublet the Premises, Tenant shall give Landlord written notice
of such desire at least ninety (90) days in advance of the date
on which Tenant desires to make such assignment or sublease.
Landlord shall then have a period of thirty (30) days following
receipt of such notice within which to notify Tenant in writing
that Landlord elects either (i) to terminate the Lease as of the
date so specified by Tenant, in which event Tenant will be
relieved of all further obligations hereunder, or (ii) to permit
Tenant to assign or sublet such space, subject to prior written
approval of the proposed assignee by Landlord, such consent not
to be unreasonably withheld or delayed, so long as the use of
the Premises by the proposed assignee would be a permitted use
and the proposed assignee is of sound financial condition as
determined in Landlord's reasonable discretion. If Landlord
should fail to notify Tenant in writing of such election within
said thirty (30) day period, Landlord shall have deemed to have
waived option (i) above, but written approval by Landlord of the
proposed assignee shall still be required. Failure by Landlord
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to approve a proposed assignee shall not cause a termination of
the Lease. Any rents or other consideration realized by Tenant
under any such sublease and assignment in excess of the Rents
hereunder, after amortization of the reasonable costs of extra
tenant improvements for which Tenant has paid and reasonable
subletting and assignment costs, shall be divided and paid sixty
(60 %) percent to Landlord and forty (40 %) percent to Tenant.
Notwithstanding the above, Tenant shall have the right to
sublease or assign all or any portion of the Premises during the
Term or any Option period to any related entity, subsidiary, or
affiliate of Tenant, having at least fifty-one (51 %) percent
direct common ownership, without having to receive Landlord's
consent, but still requiring written notice to Landlord on or
before such sublease or assignment. No assignment or subletting
by Tenant shall relieve Tenant of any obligation under the
Lease. Any assignment or subletting which conflicts with the
provisions hereof shall be void.
17. ENTRY BY LANDLORD.
The Landlord may enter the Premises or Building at
reasonable hours and upon 24 hours reasonable written notice to
Tenant to (a) inspect the same, (b) show the same to prospective
purchasers, lenders or tenants, (c) determine whether Tenant is
complying with all of Tenant's obligations hereunder, (d) post
notices of non-responsibility or (e) make repairs required of
Landlord under the Lease, repairs to adjoining space or utility
service, or make repairs, alterations or improvements to the
Building, provided that an such. work shall be done as promptly
as possible and with as little interference to Tenant as
reasonably possible. Tenant hereby waives any claim for damages
for any inconvenience to or interference with Tenant's business,
any loss of occupancy or quiet enjoyment of the Premises
occasioned by such entry. Landlord shall at all times have and
retain a key to unlock all doors in, on or about the Premises
(excluding Tenant's vaults, safes and similar areas designated
in writing by Tenant). In the event of an emergency, Landlord
shall have the right to use any and all means which Landlord may
deem proper to enter the Premises, without notice, for the
limited purpose of abating as possible said emergency. Such
emergency entrance shall not be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or
an eviction, actual or constructive, of Tenant from the
Premises, or any portion thereof.
18. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events
("Events of Default"), shall constitute a breach of the Lease by
Tenant: (a) if Tenant fails to pay Rents when and as the same
becomes due and payable and such failure continues for more than
ten (10) days after written notice thereof, or (b) if Tenant
fails to pay any other sum when and as the same becomes due and
payable and such failure continues for more than ten (10) days
after written notice thereof; or (c) if Tenant fails to perform
or observe any material term or condition of the Lease, such
failure continues for more than thirty (30) days after written
notice from Landlord, and Tenant does not within such period
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begin with due diligence and dispatch the curing of such
default, or, having so began, thereafter fails or neglects to
complete with due diligence and dispatch the curing of such
default; or (d) if Tenant shall make a general assignment for
the benefit of creditors, or shall admit in writing its
inability to pay its debts as they become due or shall file a
petition in bankruptcy, or shall be adjudicated as bankrupt or
insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or
regulatory, or shall file any answer admitting or shall fail
timely to contest the material allegations of a petition filed
against it in any such proceeding, or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or any material part of its properties; or
(e) if within sixty (60) days after the commencement of any
proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or
regulation, such proceeding shall not have been dismissed, or
if, within sixty (60) days after the appointment without the
consent or acquiescence of Tenant, of any trustee, receiver or
liquidator of Tenant or of any material part of its properties,
such appointment shall not have been vacated; or (f) vacation or
abandonment of the Premises for a continuous period in excess of
fifteen (15) days after initial occupancy, or (g) if the Lease
or any estate of Tenant hereunder shall be levied upon under any
attachment or execution and such attachment or execution is not
vacated within thirty (30) days of receipt thereof by Tenant.
19. TERMINATION UPON TENANT'S DEFAULT.
If an Event of Default shall occur, Landlord at any time
thereafter may give a written termination notice to Tenant, and
on the date specified in such notice (which shall not be less
than three (3) days after service) Tenant's right to possession
shall terminate and the Lease shall terminate, unless on or
before such date all Rents, arrearages and other sums due by
Tenant under the Lease, including reasonable costs and
attorneys' fees incurred by or on behalf of Landlord, shall have
been paid by Tenant and all other Events of Default by Tenant
shall have been fully cured to the satisfaction of Landlord.
Upon such termination, Landlord may recover from Tenant:
(a) the worth at the time of award of the unpaid Rents which
had been earned at the time of termination; plus
(b) the worth at the time of award of the amount by
which the unpaid Rents which would have been earned after
termination until the time of award exceeds the amount of such
Rents loss that Tenant proves could have been reasonably
avoided; plus
(c) the worth at the time of award of the amount by which
the unpaid Rents for the balance of the term of the Lease after
the time of award exceeds the amount of such Rents loss that
Tenant proves could be reasonably avoided; and plus
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(d) any other amount reasonably necessary to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under the Lease or which in
the ordinary course of things would be likely to result
therefrom; and/or
(e) At Landlord's elections, such other amounts in
addition or in lieu of the foregoing as may be permitted from
time to time herein or by applicable law.
The "worth at the time of award" of the amounts referred to
in clauses (a) and (b) above is computed by allowing interest at
the rate of 10% per annum. The "worth at the time of award" of
the amount referred to in clause (c) above means the monthly sum
of the Rents under the Lease. Failure of Landlord to declare
any default immediately upon occurrence thereof, or delay in
taking any action in connection therewith, shall not waive such
default, but Landlord shall have the right to declare any such
default at any time thereafter.
20. CONTINUATION AFTER DEFAULT.
Even though Tenant has defaulted the lease and abandoned the
Premises, the Lease shall continue in effect as long as Landlord
does not terminate Tenant's right to possession, and Landlord
may enforce all of its rights and remedies under the Lease,
including the right to recover the Rents as they become due
under the Lease. Acts of maintenance or preservation or efforts
to relet the Premises or the appointment of a receiver upon
initiative of Landlord to protect Landlord's interest under the
Lease shall not constitute a termination of Tenant's right to
possession. If any fixture, equipment, improvement,
installation or appurtenance shall be required to be removed
from the Premises and/or Building by Tenant, then Landlord (in
addition to all other rights and remedies) may, at its election
by written notice to Tenant, deem that the same has been
abandoned by Tenant to Landlord, or Landlord may remove and
store the same and restore the Premises to its original
condition at the reasonable expense of Tenant, as Additional
Rent to be paid within ten (10) days after written notice to
Tenant of such expense.
21. LANDLORD'S DEFAULT.
If Landlord fails to perform or observe any of its material
Lease obligations herein and such failure continues for thirty
(30) days after written notice from Tenant, or such additional
time, if any, that is reasonably necessary to promptly and
diligently cure such failure after receiving written notice,
Landlord shall be in breach of the Lease (a "Default"). If
Landlord commits a Default, Tenant may pursue any remedies given
in the Lease or under law.
22. LANDLORD'S RIGHT TO CURE DEFAULTS.
All terms and provisions to be performed by Tenant under the
Lease shall be at Tenant's sole cost and expense and without any
abatement of Rents. If Tenant fails to pay any sum of money,
other than Rents, required hereunder or fails to perform any
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other act required hereunder and such failure continues for
thirty (30) days after notice by Landlord, Landlord may, but
shall not be obligated, and without waiving or releasing Tenant
from any obligations of Tenant, make any such payment or perform
any such act on Tenant's part to be made or performed as
provided in the Lease. All sums paid by Landlord and all
incidental costs shall be deemed Additional Rent hereunder and
shall be payable within ten (10) days of written notice of such
sums paid.
23. OTHER RELIEF.
The remedies provided for in the Lease are in addition to
any other remedies available to Landlord at law or in equity by
statute or otherwise.
24. ATTORNEYS' FEES.
In the event either party places the enforcement of the
Lease, or any part thereof, or the collection of any Rents, or
recovery of the possession of the Premises, or files suit upon
the same, then the prevailing party shall recover its reasonable
attorneys' fees and costs.
25. EMINENT DOMAIN.
If all or any part of the Premises shall be taken or
conveyed as a result of the exercise of the power of eminent
domain, the Lease shall terminate as to the part so taken as of
the date of taking, and, in the case of a partial taking, either
Landlord or Tenant shall have the right to terminate the Lease
as to the balance of the Premises by written notice to the other
within (30) days after such date; provided, however, that a
condition to the exercise by Tenant of such right to terminate
shall be that the portion of the Premises taken or conveyed
shall be of such extent and nature as substantially to handicap,
impede or impair Tenant's use of the balance of the Premises.
In the event of any taking, Landlord shall be entitled to any
and all compensation, damages, income, rent awards or any
interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against
Landlord for the value of any unexpired term of the Lease or
otherwise, provided that Tenant shall be entitled to any and all
compensation, damages, income, rent or awards paid for or on
account of Tenant's moving expenses, trade fixtures, equipment
and any leasehold improvements in the Premises, the cost of
which was borne by Tenant, to the extent of the then unamortized
value of such improvements for the remaining term of the Lease.
In the event of a taking of the Premises which does not result
in a termination of the Lease, the monthly rental herein shall
be apportioned as of the date of such taking so that thereafter
the rent to be paid by Tenant shall be in the ratio that the
area of the Premises not so taken bears to the total area of the
Premises prior to such taking.
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26. SUBORDINATION, ATTORNMENT & NONDISTURBANCE AND ESTOPPEL
CERTIFICATE.
At Landlord's request, Tenant agrees to execute, acknowledge,
and deliver within ten (10) days to Landlord a Subordination,
Attornment & Nondisturbance Agreement ("Subordination
Agreement"), subject to Landlord's reasonably proposed form(s).
Such Subordination Agreement shall subordinate the Lease to any
ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the
Premises, Building or common areas, or any part thereof, to any
and all advances made on the security, and to all renewals,
modification, consolidations, replacements and extensions
thereof, whether the Lease is dated prior or subsequent to the
date of said ground lease, mortgage, deed of trust or other
hypothecation or the date of recording thereof. Further, at
Landlord's request, Tenant agrees to execute, acknowledge, and
deliver within ten (10) days to Landlord an Estoppel
Certificate, subject to Landlord's reasonably proposed form(s).
Such Subordination Agreement and Estoppel Certificate may be
relied upon by any prospective purchaser, mortgagee, or
beneficiary under any ground lease, mortgage, deed of trust, or
any other hypothecation of the Premises, Building, or common
areas, or any part thereof. Notwithstanding such Subordination
Agreement, Tenant's right to quiet possession of the Premises
shall not be disturbed so long as Tenant is not in default under
the Lease, unless the Lease is otherwise terminated pursuant to
its terms.
In the event that Tenant fails to execute, acknowledge, and
deliver to Landlord such Subordination Agreement and Estoppel
Certificate within fifteen (15) days of Landlord's request, the
parties herein expressly agree that Tenant shall be deemed in
default of the Lease without further notice. In such event, the
parties herein further expressly agree that the Subordination
Agreement and Estoppel Certificate are deemed to have been
executed by Tenant.
27. NO MERGER.
The voluntary or other surrender of the Lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and shall,
at the option of Landlord terminate all or any existing
subleases or subtenancies, or may, at the option of Landlord,
operate as an assignment to it of any or all such subleases or
subtenancies.
28. SALE.
In the event the original Landlord hereunder, or any successor
owner of the Premises, Building, and common areas shall sell or
convey the Premises, Building, and common areas, and the
purchaser assumes the obligations of Landlord under the Lease,
all liabilities and obligation on the part of the original
Landlord, or such successor owner, under the Lease accruing
after such Sale shall terminate, and thereupon all such
liabilities and obligations shall be binding upon the new owner.
Tenant agrees to attorn to such new owner.
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29. NO LIGHT OR VIEW EASEMENT.
Any diminution or shutting off of light or view by any structure
erected on lands adjacent to the Building shall in no way affect
the I-ease or impose any liability on Landlord.
30. HOLDING OVER.
If, without objection by Landlord, Tenant holds possession of
the Premises after expiration of the Term or any Option period
of the Lease, Tenant shall become a tenant from month to month
upon the terms herein specified, but at a monthly Base Rent
equivalent to 125 % of the Base Rent at the end of the term or
extension period pursuant to Article 4, payable in advance on or
before the lst day of each month. All Additional Rent shall
also apply. Each party shall give the other notice at least one
month prior to the date of termination of such monthly tenancy
of its intention to terminate such tenancy.
31. ABANDONMENT.
If Tenant shall abandon or surrender the Premises, or be
dispossessed by process of law ,or otherwise, any personal
property belonging to Tenant and left on the Premises shall be
deemed to be abandoned, at the option of Landlord, except such
property as may be mortgaged to Landlord.
32. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon execution of the
Lease a security deposit in an amount of $11,800 ("Security
Deposit"). The Security Deposit shall be held by Landlord as
security for the faithful performance by Tenant of all of the
provisions of the Lease to be performed or observed by Tenant.
In the event Tenant fails to perform or observe any of the
provisions of the Lease to be performed or observed by it, then,
at the option of the Landlord, Landlord may (but shall not be
obligated to do so) apply the Security Deposit, or so much
thereof as may be necessary to remedy such default or to repair
damages to the Premises caused by Tenant. In the event Landlord
applies any portion of the Security Deposit to remedy any such
default or to repair damages to the Premises caused by Tenant,
Tenant shall pay to Landlord, within thirty (30) days after
written demand for such payment by Landlord, all monies
necessary to restore the Security Deposit up to the original
amount. Any portions of the Security Deposit remaining upon
termination of the Lease shall be returned.
33. WAIVER.
All waivers by either party herein must be in writing and
signed by such party. The waiver of any term or conditions
herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other agreement, condition or
provision herein contained, nor shall any custom or practice
which may grow upon between the parties in the administration of
the terms hereof be construed to waive or to lessen the right of
either party to insist upon the performance by the other party
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in strict accordance with said terms. The subsequent acceptance
of Rents hereunder by Landlord shall not be deemed to be a
waiver of any breach by Tenant of any term or condition of the
Lease, regardless of Landlord's knowledge of such breach at the
time of acceptance of such Rents.
34. NOTICES.
All notices and demands which may or are required to be
given by either party to the other under the Lease shall be in
writing and shall be deemed to have been fully given when
deposited in the United States mail, certified or registered,
postage prepaid, and addressed as follows: to Tenant at Skyhook
Technologies, Inc., 13526 South 1 10 West, Draper, UT 84020,
Attn: Vice President of Finance or to such other place as Tenant
may from time to time designate in a notice to Landlord; to
Landlord at Cottonwood Heights, LLC, 13526 South 110 West,
Draper, UT 84020, Attn: Guy Wadsworth, or to such other place as
Landlord may from time to time designate in a notice to Tenant,
or in the case of Tenant, delivered to Tenant at the Premises.
Tenant hereby appoints as its agent to receive the service of
all dispossessory or distraint proceedings and notices hereunder
the person in charge of or occupying the Premises at the time,
and if no person shall be in charge of or occupying the same,
then service may be made by attaching same on the main entrance
of the Premises.
35. COMPLETE AGREEMENT.
There are no oral agreements between Landlord and Tenant
affecting the Lease, and the
Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any,
between Landlord and Tenant with respect to the subject matter
of the Lease. The Lease may not be altered, changed or amended,
except by an instrument in writing signed by both parties
hereto.
36. CORPORATE AUTHORITY.
The person(s) executing the Lease on behalf of the parties
herein hereby covenants and warrants that (a) such party is a duly authorized
and validly existing entity under the laws in which it was formed, (b) such
party has and is qualified to do business in Utah, (c) such
entity has full right and authority to enter into the Lease, and
(d) each person executing the Lease on behalf of such entity is
authorized to do so.
37. GUARANTEE OF LEASE.
Tenant guarantees, upon execution of the Lease, to occupy
the Premises. Any failure to occupy the Premises does not
release the Tenant from the obligation of paying Rents or any
other terms set forth herein.
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38. MISCELLANEOUS.
(a) The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. If there be more
than one Tenant, the obligations hereunder imposed upon Tenant
shall be joint and several.
(b) Time is of the essence on the Lease and each and all of its
terms and conditions.
(c) The terms and conditions herein shall apply to and bind the
heirs, executors, administrators, successors and assigns of the
parties hereto.
(d) The captions of the Lease are solely to assist the parties and
are not a part of the terms or conditions of the Lease.
(e) The Lease shall be governed by and construed in
accordance with the laws of the State of Utah, and is deemed to
be executed within the State of Utah.
39. SEVERABILITY.
If any term provision of the Lease, or the application
thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of the Lease, or the
application of such provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not
be affected thereby, and each provision of the Lease shall be
valid and shall be enforceable to the extent permitted by law.
40. BROKERS.
Landlord is represented by Prime Commercial, Inc. and
Tenant is represented by Consolidated Realty Group.
IN WITNESS WHEREOF, the parties have executed the Lease
dated the day and year first above written.
TENANT, LANDLORD,
SKYHOOK TECHNOLOGIES, INC. COTTONWOOD HEIGHTS, LLC
By:________________________ By:_________________________
Its: Vice President - Finance Its: Partner
17
<PAGE>
EXHIBIT A
FINAL SPACE PLAN
(Attached)
<PAGE>
EXHIBIT B
BASE BUILDING IMPROVEMENTS
The Base Building Improvements and systems as described below
shall be furnished by Landlord at Landlord's sole cost and
expense. These include:
1 . The Building structure will be designed for a minimum floor
load of 50 lb. Live load plus a 20 lb. partition dead load.
2. The Building shell will include a core consisting of: 2
stairwell enclosures, 1 men's and 1 women's rest-room on
the main floor and a unisex restroom on the second floor,
finished lobbies and exterior perimeter walls and windows
and all building columns.
3. A Concrete floor will be installed with a smoothed trowel
finish for installation of glued-down carpet. The Floor
will be poured level and finished in accordance with
current ACI Standard Specifications 117.
4. Electrical distribution will be provided to the main panel
boxes in the electrical closet on each floor. The
electrical system shall be sized for seven (7) watts per
usable square foot (120-208-3 Phase) for Tenant's
consumption, over and above base building electrical
requirements.
5 . The Building will be equipped with a packaged-unit heating,
ventilation and air conditioning system sufficient for
Tenant's anticipated occupancy requirements. The system
will be designed to maintain a space temperature between
70'-78' degrees F on a year-round basis, based on a maximum
average occupancy of one (1) person for each 150 square
feet of usable area. The requirements for ventilation
shall comply with present ASHRAE (American Society of
Heating, Refrigeration and Air-Conditioning Engineers)
standard 62-1989 as a minimum requirement. Tenant shall be
furnished with a price per ton for package unit if
additional air conditioning is required. All distribution
and controls of HVAC, within tenant space, shall be subject
to Tenant Improvement allowance.
6. Telephone service, as provided by the local utility, will
be brought to Tenant's or Building's main telephone room.
7. Common corridor walls and walls between tenant suites will
be provided with the side finished only to the common
areas.
8. All roadways necessary for Tenant's access to and egress
from the Building will be completed, along with parking,
landscaping and sprinklers for irrigation.
<PAGE>
EXHIBIT C
TENANT IMPROVEMENTS
Landlord shall design, construct and install the agreed-upon
Tenant Improvements, provided, however, that the Tenant is
responsible for any costs of Tenant Improvements above $12,000,
and Tenant shall pay Landlord all such costs and expenses on or
before thirty (30) days after occupancy. These include:
Above Tenant Improvements do not include the demising partition
in the warehouse which will be built at Landlord's expense.
