Exhibit 10.6
Master Lease
LANDLORD
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PARKWAY TOWER, L.L.C.
TENANT
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SUNDOG TECHNOLOGIES, INC.
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TABLE OF CONTENTS
1. OPERATIVE FACTS.................................................. 1
1.1 Premises & Preparation.................................. 1
1.2 Term.................................................... 1
1.3 Projected Commencement Date ............................ 1
1.4 Basic Monthly Rent ..................................... 2
1.5 LANDLORD'S Operating Expenses .......................... 2
1.6 TENANT'S Operating Expenses............................. 2
1.7 Security Deposit........................................ 2
2. PARKING ........................................................ 2
2.1 Landlord................................................ 2
3. TERM ........................................................ 2
3.1 Length of Term.......................................... 2
3.2 Actual Commencement Date................................ 2
3.3 Acknowledgment of Actual Commencement Date.............. 3
4. MONTHLY RENT..................................................... 3
4.1 Basic Monthly Rent...................................... 3
4.2 Additional Rent......................................... 3
4.3 Consumer Price Index Escalation......................... 3
5. TENANT'S RESPONSIBILITY FOR OPERATING EXPENSES................... 3
5.1 Definitions............................................. 3
5.2 Statement of Operating Expenses and
Estimated Operating Expenses.......................... 4
5.3 Payment of Additional Rent.............................. 5
5.4 Resolution of Disagreement.............................. 5
5.5 Limitation.............................................. 6
6. SECURITY DEPOSIT................................................. 5
7. USE ........................................................ 6
7.1 Use of Premises......................................... 6
7.2 Prohibition of Certain Activities or Uses............... 6
7.3 Affirmative Obligations with Respect to Use............. 6
7.4 Suitability............................................. 7
7.5 Taxes................................................... 7
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8. UTILITIES AND SERVICE............................................ 7
8.1 Obligations of LANDLORD................................. 7
8.2 Additional Services..................................... 8
8.3 Utilities Consumption................................... 8
8.4 TENANT'S Obligations.................................... 8
8.5 Non Business Hour HVAC and
Overhead Lighting..................................... 8
8.6 Limitations LANDLORD'S Liability........................ 9
9. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS..................... 9
9.1 Maintenance and Repairs by LANDLORD..................... 9
9.2 Maintenance and Repairs by TENANT....................... 9
9.3 Alterations............................................. 9
9.4 LANDLORD'S Access to Leased Premises....................10
10. LIENS ........................................................11
11. ASSIGNMENT.......................................................11
11.1 General ................................................11
11.2 Submission of Information ..............................12
11.3 Payments to LANDLORD ...................................12
11.4 Prohibited Transfers ...................................12
12. INDEMNITY........................................................12
12.1 Indemnification of LANDLORD.............................12
12.2 Release of LANDLORD.....................................12
12.3 Notice..................................................13
12.4 Litigation..............................................13
13. INSURANCE........................................................13
13.1 LANDLORD'S Insurance ...................................13
13.2 TENANT'S Insurance .....................................13
13.3 Forms of Policies.......................................14
14. DAMAGE OR DESTRUCTION............................................14
14.1 LANDLORD'S Obligations..................................14
14.2 TENANT'S Obligation ....................................15
15. CONDEMNATION.....................................................15
15.1 Total Condemnation......................................15
15.2 Partial Condemnation....................................15
15.3 LANDLORD'S Option to Terminate..........................15
15.4 Award...................................................15
15.5 Definition..............................................16
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16. LANDLORD'S RIGHT TO CURE.........................................16
17. SUBORDINATION; AMENDMENT; ATTORNMENT.............................16
17.1 Subordination...........................................16
17.2 Amendment...............................................16
17.3 Attornment..............................................17
18. DEFAULT; REMEDIES; ABANDONMENT; PAST SUMS DUE;
PENALTY ......................................................17
18.1 Default by TENANT.......................................17
18.2 LANDLORD'S Remedies.....................................17
18.3 Certain Damages.........................................18
18.4 Continuing Liability After Termination..................18
18.5 Cumulative Remedies.....................................18
18.6 Waiver of Redemption....................................19
18.7 Past Due Sums; Penalty..................................19
19. RENT ABATEMENT...................................................19
20. END OF TERM .....................................................19
21. ESTOPPEL CERTIFICATE.............................................19
21.1 LANDLORD'S Right to Estoppel Certificate................19
21.2 Effect of Failure to Provide Estoppel Certificate.......20
22. COMMON AREAS.....................................................20
22.1 Definition of Common Ares...............................20
22.2 License to Use Common Areas.............................20
22.3 Deliveries..............................................20
22.4 Parking.................................................20
23. SIGNS, AWNINGS AND CANOPIES......................................21
24. REQUIREMENTS OF LAW; FIRE INSURANCE .............................21
24.1 General.................................................21
24.2 Hazardous Materials.....................................21
24.3 Certain Insurance Risks.................................22
25. LANDLORD'S RESERVED RIGHTS.......................................22
26. RULES AND REGULATION.............................................22
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27. MISCELLANEOUS PROVISIONS.........................................22
27.1 No Partnership..........................................22
27.2 Force Majeure...........................................22
27.3 Modification for Lender.................................23
27.4 No Light, Air or View Easement..........................23
27.5 Holding Over............................................23
27.6 Notices.................................................23
27.7 Captions; Attachments...................................23
27.8 Recording...............................................23
27.9 Partial Invalidity......................................23
27.10 Brokers Commission......................................24
27.11 TENANT Defined; Use of Pronouns.........................24
27.12 Provisions Binding, etc.................................24
27.13 Entire Agreement, etc...................................24
27.14 Recourse by TENANT......................................24
27.15 Choice of Law...........................................25
27.16 Time of Essence.........................................25
27.17 No Waiver...............................................25
27.18 Right and Remedies......................................25
27.19 Authorization...........................................25
27.20 No Construction Against Drafting Party..................25
27.21 Not Used................................................25
27.22 No Merger...............................................25
27.23 Financial Report........................................25
27.24 LANDLORD'S Fees.........................................26
27.25 Attorney Fees...........................................26
27.26 Successors..............................................26
Signatures ....................................................26, 27
EXHIBITS:
"A" Legal Description
"B" Preliminary Plans
"C" Exterior Elevations
"D" Building Floor Plans
"E" TENANT Improvements
"E1" Preliminary TENANT Space Plan
"E2" Final Plans
"F" Rules and Regulations
"G" Guarantee
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LEASE AGREEMENT
THIS LEASE AGREEMENT (Lease) is entered into this ___ day of May, 2000, by and
between PARKWAY TOWER, L.L.C., a Utah Limited Liability Company, hereinafter
referred to as LANDLORD, and SUNDOG TECHNOLOGIES, INC., hereinafter referred to
as TENANT.
WITNESSETH:
WHEREAS, this Lease relates to a three story office building located at
10542 South Jordan Gateway (400 West), South Jordan City, Salt Lake County, Utah
84095; and further referenced in Exhibit "A" hereto; and,
WHEREAS, LANDLORD and TENANT are desirous of entering into
this Lease.
NOW, THEREFORE, for and in consideration of the mutual promises and
provisions herein contained and for other good and valuable consideration the
receipt and sufficiency whereof are hereby acknowledged, the parties mutually
certify and agree to the following terms and conditions:
1. OPERATIVE FACTS. This Agreement (hereafter referred to as the
"Lease") is made with respect to the following salient facts and definitions:
1.1 Premises & Preparation.
1.1.1 LANDLORD does hereby lease to TENANT and TENANT
hereby leases from LANDLORD, that certain office space commonly known
as Suite 200, as indicated on Exhibit "D" attached and by this
reference made a part hereof (herein called "Premises"), said Premises
being agreed, for the purpose of this Lease, to have a net rentable
area of 8,340 square feet and being situated on the 2nd floor of that
certain building known as Parkway Towers 3 story office building at
10542 South Jordan Gateway, South Jordan, Utah (hereinafter referred to
as the "Building.") Net rentable area is defined as the net useable
area, 7,089 square feet, plus a 15% building load factor for common
areas and is calculated by dividing the net useable area by .85. Said
Lease is subject to the terms, covenants and conditions herein set
forth and the TENANT covenants, as a material part of the consideration
for this Lease, to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this
Lease is made upon the condition of said performance.
1.1.2 The respective obligations, if any, of LANDLORD
and TENANT to perform the work and supply the necessary materials and
labor to prepare the Premises for occupancy by TENANT are described in
detail on Exhibit "B" attached hereto and by this reference made a part
hereof. LANDLORD and TENANT shall expend all funds and do all acts
required of them as described on Exhibit "B" and shall perform or have
such work promptly and diligently completed in a first-class and
workmanlike manner.
1.1.3 LANDLORD and TENANT shall complete the work
required of each party, as specified in Exhibit "B" as soon as
reasonably possible. Notwithstanding anything to the contrary contained
in this Lease, upon occupancy of the Premises by Tenant, all of the
obligations of LANDLORD set forth in Exhibit "B" shall be deemed to be
satisfactory completed, "Punch List" items excepted. "Punch List" items
are defined as being minor construction defects or incomplete work, the
non-completion of which will not materially interfere with the use of
the Premises.
1.2 Term. Five (5) Lease years. (60 months)
1.3 Projected Commencement Date. May 1, 2000.
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1.4 Basic Monthly Rent. Thirteen Thousand, Two Hundred and
Five Dollars ($13,205.00). Basic monthly rent is calculated at the Lease rate of
$19.00 per square foot (annual) times the net rentable square foot of the
Premises adjusted to the monthly payment. Net rentable size of the Premises
includes a 15 % common area load factor.
1.5 LANDLORD'S Operating Expenses. LANDLORD'S share of
Operating Expenses is computed by multiplying the number of net rentable square
feet applicable to the Premises by $5.25 per square foot.
1.6 TENANT'S Operating Expenses. TENANT'S share of Operating
Expenses shall be computed pursuant to Subsection 5.1.4.
1.7 Security Deposit. $13,205.00.
2. PARKING. The Building shall have uncovered parking spaces.
Approximately five percent (5%) of these spaces will be reserved for visitor
parking with sixty (60) minute time limits, a minimum of four (4) spaces shall
be reserved for handicap parking and up to twenty (20) spaces shall be available
as reserve parking at a reasonable monthly fee. The remaining parking spaces
shall be available to all TENANTS on a "first-come-first-serve" basis and shall
be at no cost to TENANT or other TENANTS.
2.1 LANDLORD, or its agents (if LANDLORD has delegated such
privileges) shall have the right to cause to be removed any cars of TENANT, its
employees or agents that are parked in violation hereof or in violation of the
rules and regulations of the Building, without liability of any kind to TENANT,
its agents or employees, and TENANT agrees to hold LANDLORD harmless from and
defend it against any and all claims, losses, or damages and demands asserted or
arising in respect to or in connection with the removal of any such automobiles
as aforesaid. TENANT shall from time to time, upon request of LANDLORD, supply
LANDLORD with a list of license plate numbers of all automobiles owned by its
employees or agents who are to have parking privileges hereunder. LANDLORD may,
as part of the regulations promulgated by it for use of the parking areas
require than TENANT cause an identification sticker issued by LANDLORD to be
affixed to the bumpers or other designated location of all automobiles of TENANT
and its employees or agents who are authorized to park in the parking areas.
2.2 Parking Privileges. Parking privileges for the Building
shall be provided on a first come first serve basis and are further regulated as
provided for in Section 22.4 of the Lease.
3. TERM.
3.1 Length of Term. The initial term of this Lease shall be
for the period defined as the Term, plus the partial calendar month, if any,
occurring after the Actual Commencement Date (as hereinafter defined) if the
Actual Commencement Date occurs other than on the first day of a calendar month.
Lease Year shall include twelve (12) calendar months, except that first Lease
Year will also include any partial calendar month beginning after the Actual
Commencement Date.
3.2 Actual Commencement Date. The actual commencement date
(Actual Commencement Date) of the Term shall be the earliest of the following
dates:
3.2.1 The date on which the Premises are ready for
Occupancy as outlined in Exhibit "B" hereto; 3.2.2 The date on
which the Premises would have been Ready for Occupancy had
there been no delay due to changes in the Final Plans
requested by TENANT, if any; or
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3.2.3 The date TENANT, with prior written consent of
LANDLORD, actually commences to do business on the Premises.
3.3 Acknowledgment of Actual Commencement Date. Within five
(5) days after LANDLORD'S or TENANT'S request to do so, LANDLORD and TENANT
shall execute a written acknowledgment of the Actual Commencement Date, which
acknowledgment shall be deemed to be part of this Lease.
4. MONTHLY RENT.
4.1 Basic Monthly Rent. TENANT agrees to pay LANDLORD, at 310
East 4500 South, Suite 100 Murray, Utah 84107 or at such other address
designated by LANDLORD, the Basic Monthly Rent, without prior demand therefore,
without offset or deduction and in advance before the end of first day of each
calendar month during the Term, commencing on the Actual Commencement Date.
TENANT shall thereafter, subject to any other adjustment contained in the Lease,
pay the amount of $13,205.00 in monthly Lease payments until the expiration of
the Lease term. In the event the Actual Commencement Date occurs on a day other
than the first day of a calendar month, then the Basic Monthly Rent to be paid
on the first day rent is due shall include both the Basic Monthly Rent for the
first full calendar month occurring after the first day rent is due, plus the
Basic Monthly Rent for the initial fractional calendar month prorated on a
per-diem basis (based upon a thirty (30) day month).
4.2 Additional Rent. All charges required to be paid by TENANT
hereunder, including, without limitation, payments for Operating Expenses, and
any other amounts payable hereunder, shall be considered additional rent for the
purposes of this lease (Additional Rent), and TENANT shall pay Additional Rent
upon written demand by LANDLORD with reasonable justification or otherwise as
provided in this lease.
4.3 Basic Monthly Rent Escalation.
4.3.1 TENANT'S Basic Monthly Rent shall be increased
by $ .50 per rentable square feet on the first year
anniversary of the first day of the first full calendar month
of the lease Term and on each annual anniversary date
thereafter until the end of the lease Term.
5. TENANT'S RESPONSIBILITY FOR OPERATING EXPENSES.
5.1 Definitions. The following words and phrases shall have
the meanings set forth below:
5.1.1 Operating Year means each calendar year ending
during the Term and the calendar year ending immediately
following the last day of the Term.
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5.1.2 Operating Expenses means all actual costs and
expenses incurred by LANDLORD in connection with the
ownership, operation, management and maintenance of the
Building and the Property and the related improvements located
thereon (the Improvements), including, but not limited to, all
expenses incurred by LANDLORD as a result of LANDLORD'S
compliance with any and all of its obligations under this
Lease (or under similar leases with other TENANTS) other than
the performance by LANDLORD of its construction obligations
under Section 1 hereof or similar provisions of leases within
other TENANT spaces. In explanation of the foregoing, and not
in limitation thereof Operating Expenses shall include (except
as set forth in Subsection 8.6 hereof) all fees, costs and
expenses incurred by LANDLORD relating to the following: all
real and personal property taxes and assessments whether
general or special and any tax or assessment levied or charged
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in lieu thereof, whether assessed against LANDLORD and/or
TENANT and whether collected from LANDLORD and/or TENANT, snow
and trash removal, utilities, supplies, public liability and
fire insurance with extended coverage, licenses, permits and
inspection, legal fees incurred with respect to enforcing
rules and regulations of the building and evictions,
accounting fees relating to operations of the Building,
services of independent contractors, reasonable fees and
expenses incurred in property management, including, without
limitation, compensation, employment taxes and fringe benefits
of all persons who perform regular and recurring duties
connected with day-to-day operation, maintenance and repair of
the Building, its equipment and the adjacent parking area,
driveways, walks and landscaped areas, including without
limitation janitorial, scavenger, gardening, security, parking
(whether underground, on the surface or in an elevated ramp),
elevator, painting, plumbing, electrical, carpentry, heating,
ventilation, air-conditioning, window washing, signing, but
excluding persons performing services not uniformly available
to or performed for substantially all TENANTS of the Building;
rental or a reasonable allowance for depreciation of personal
property used in the maintenance, operation and repair of the
Building. All Operating Expenses shall be computed on an
annual basis. Operating Expenses shall not include
depreciation on the Building and the Improvements, income
taxes of LANDLORD, costs specifically charged to and recovered
from other TENANTS, insurance and condemnation proceeds, costs
for corrections of defects in the original construction of the
Building, lease commissions pertaining to the initial rental
of office space in the Building, capital additions to the
Building or amounts paid toward principal or interest on loans
to LANDLORD. The foregoing sentence notwithstanding, if
LANDLORD incurs any cost in making capital improvements or
structural repairs to the Building or Property to effect labor
savings, reduce Operating Expenses or comply with any law,
ordinance, rule or regulation of a governmental or
quasi-governmental authority, after the Actual Commencement
Date, such costs shall be amortized over the useful life of
the capital improvement or structural repair as an Operating
Expense.
5.1.3 Estimated Operating Expenses means the
projected amount of Operating Expenses for any given Operating
Year as estimated by LANDLORD, in its sole discretion.
5.1.4 TENANT'S share of Operating Expenses for the
first calendar year shall be the amount in excess of $5.25 per
net rentable square foot applicable to the Premises.
5.1.5 TENANT'S Share of Operating Expenses for any
fractional calendar year shall be calculated by determining
TENANT'S share of Operating Expenses for the relevant calendar
year and then prorating such amount over the fractional period
of such calendar year.
5.1.6 TENANT'S Share of Estimated Operating Expenses
for a calendar year means Operating Expenses reasonably
estimated by LANDLORD to be in excess of $5.25 per net
rentable square foot applicable to the Premises, subject to
the limitation set forth in paragraph 5.1.4.
5.1.7 TENANT'S share of Estimated Operating Expenses
for any fractional calendar year shall be calculated by
determining TENANT'S Share of Estimated Operating Expenses for
the relevant calendar year and then prorating amount over the
fractional period of such calendar year.
5.1.8. TENANT'S share of operating expenses for the
first full calendar year and any fraction thereof shall be
determined as provided for herein.
5.2 Statement of Operating Expenses and Estimated Operating
Expenses.
5.2.1 Within One Hundred Twenty (120) days after the
expiration of any Operating Year, LANDLORD shall furnish
TENANT with a written statement showing in reasonable detail
the computation of TENANT'S Share of Operating Expenses if
any, for such year and the amount by which such amount exceeds
or is less than the amounts paid by TENANT during such year
pursuant to Subsection 5.1.2.
5.2.2 LANDLORD, in its sole discretion, may also
furnish TENANT from time to time, written statements showing
in reasonable detail the computation of TENANT'S Share of
Estimated Operating Expenses.
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5.3 Payment of Additional Rent. TENANT shall pay as additional
rent (Additional Rent) the following amounts at the times indicated:
5.3.1 Within thirty (30) days after delivery of the
written statement referred to in Subsection 5.2.1 hereof,
TENANT shall pay to LANDLORD, without offset or deduction, the
amount by which TENANT'S Share of Operating Expenses, as
specified in such written statement, exceeds the amount of
Estimated Operating Expenses actually paid by TENANT for the
year at issue. Payments by TENANT shall be made pursuant to
this Subsection 5.3.1 notwithstanding that a statement
pursuant to subsection 5.2.1 is furnished to TENANT after the
expiration of the Term.
5.3.2 With each payment of Basic Monthly Rent made
pursuant to Section 4 hereof, TENANT shall pay to LANDLORD,
without offset or deduction, one-twelfth (1/12th) of TENANT'S
Share of Estimated Operating Expenses as specified in the last
written statement delivered to TENANT pursuant to Subsection
5.2.2.
5.3.3 If the written statement delivered pursuant to
Subsection 5.2.1 indicates that the amount actually paid by
TENANT pursuant to subsection 5.3.1 for any year exceeds
TENANT'S Share of Operating Expenses for the same year,
LANDLORD, at its election, may either (i) pay the amount of
such excess to TENANT or (ii) apply such excess against any
amount payable by TENANT.
5.3.4 No failure by LANDLORD to require the payment
of Additional Rent by TENANT for any period shall constitute a
waiver of LANDLORD'S right to collect such Additional Rent for
such period or for any subsequent period.
5.4 Resolution of Disagreement. Every statement given by
LANDLORD pursuant to Subsection 5.2 hereof shall be conclusive and
binding upon TENANT unless within thirty (30) days after the receipt of
such statement TENANT notifies LANDLORD in writing that it disputes the
correctness thereof, 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 Additional Rent
in accordance with LANDLORD'S statement, and such payment shall be
without prejudice to TENANT'S position. If the dispute shall be
determined in TENANT'S favor, LANDLORD shall forthwith apply the amount
of TENANT'S overpayment of rents resulting from compliance with
LANDLORD'S statement, without interest being due thereon, in accordance
with Subsection 5.3.3 hereof. LANDLORD agrees to 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 expense.
5.5 Limitation. Nothing contained in this Section 5 shall be
construed so as to reduce the installments of Basic Monthly Rent
payable hereunder below the amount set forth in Section 1.
6. SECURITY DEPOSIT. Upon execution of this lease, TENANT will deposit
the security deposit as provided for in Section 1.7 with LANDLORD as security
for the full, faithful, and timely performance of every provision of this lease
to be performed by TENANT. If TENANT defaults with respect to any provision of
this lease, including but not limited to the provisions relating to the payment
of rent, LANDLORD may use, apply, or retain all or any part of the security
deposit for the payment of any rent, or any other sum in default, or for the
payment of any other amount LANDLORD may spend or become obligated to spend by
reason of TENANT'S default, or to compensate LANDLORD for any other loss or
damage LANDLORD may suffer by reason of TENANT'S default. If any portion of the
security deposit is so used, applied, or retained, TENANT will within 5 days
after written demand deposit cash with LANDLORD in an amount sufficient to
restore the security deposit to its original amount. LANDLORD will not be
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required to keep the security deposit separate from its general funds, and
TENANT will not be entitled to interest on the security deposit. The security
deposit will not be deemed a limitation on LANDLORD'S damages or a payment of
liquidated damages or a payment of the monthly rent due for the last month of
the term. If TENANT fully, faithfully, and timely performs every provision of
this lease to be performed by it, the security deposit or any balance of the
security deposit will be returned to TENANT within 30 days after the expiration
of the term. LANDLORD may deliver the funds deposited under this lease by TENANT
to the purchaser of the building in the event the building is sold, and after
such time LANDLORD will have no further liability to TENANT with respect to the
security deposit.
7. USE.
7.1 Use of Premises. TENANT shall not use or permit the
Premises or any part thereof to be used for any purpose other than for
general office purposes, including the usual and customary purposes for
software development companies
7.2 Prohibition of Certain Activities or Uses.
7.2.1 TENANT shall not do or permit anything to be
done in the Building or on the Land which may:
7.2.1.1 Increase the existing rate or
violate the provisions of any insurance carried with
respect to the Building or any contents of such
Building.
7.2.1.2 Create any public or private
nuisance, commit waste, or disturb the quiet
enjoyment of any other occupant of the Building.
7.2.1.3 Violate any present or future law,
ordinance, regulation or requirement of any
governmental authority or any restriction or covenant
existing with respect to the Premises or Building or
Land whereon it is located.
7.2.1.4 Overload the floors or otherwise
damage the structure of the Building.
7.2.1.5 Constitute an immoral or illegal
purpose.
7.2.1.6 Increase the cost of electricity,
natural gas or other utility service beyond that
level permitted below by Section 8.
7.2.1.7 Subject LANDLORD or any other TENANT
to any liability to any third party.
7.2.2 TENANT shall not bring into or permit the
placing within the Premises of any machine, personal property
or fixture heavier than customarily used in connection with
general office purposes.
7.2.3 Subject to the provisions of Paragraph 23,
Exhibit B or Exhibit F, TENANT shall not place any holes in
any part of the Premises or place any exterior signs or
interior drapes, blinds or similar items visible from outside
the Premises or the Building without prior written consent of
LANDLORD.
7.3 Affirmative Obligations with Respect to Use. TENANT shall,
at its sole cost and expense:
7.3.1 Comply with all present and future governmental
laws, ordinances, regulations and requirements in its
occupancy of the Premises.
7.3.2 Comply with the requirements of any board of
fire underwriters or other similar body relating to the
Premises, excluding structural changes not caused by the
Improvements or the nature of TENANT'S occupancy of the
Premises.
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7.3.3 Keep the Premises in a clean and orderly
condition, free of objectional noises, odors or nuisances
subject to LANDLORD'S janitorial service requirements.
7.4 Suitability. TENANT acknowledges that, except as expressly
set forth in this Lease, neither LANDLORD nor any other person has made
any representation or warranty with respect to the Premises or any
other portion of the Building or Improvements, nor has LANDLORD agreed
to undertake any modification, alteration or improvement thereof.
Specifically, but not in limitation of the foregoing, no representation
has been made or relied upon concerning the suitability of the Premises
or any other portion of the Building or Improvements for the conduct of
TENANT'S business. As to matters that are identifiable by visual
inspection, the Premises, Building and Improvements (and each and every
part thereof) shall be deemed to be in satisfactory condition unless,
on or before the Actual Commencement Date, TENANT shall give LANDLORD
written notice specifying, in reasonable detail, the respects in which
the Premises, Building or Improvements are not in satisfactory
condition.
7.5 Taxes. Notwithstanding Subsection 5.1.2 or any other Lease
provision, TENANT shall have sole responsibility for and shall pay all
taxes, assessments, charges and fees which during the Term may be
imposed, assessed or levied by any governmental or public authority
against or upon TENANT, TENANT'S use of the Premises or any personal
property or fixture kept or installed therein by TENANT.
8. UTILITIES AND SERVICE.
8.1 Obligations of LANDLORD. During the Term of this lease,
subject to the limitation in Subsection 8.6, and so long as TENANT is
not in material default under this lease, LANDLORD agrees to cause to
be furnished to the Premises during customary business hours and during
generally recognized business days, in such manner as is customary in
similar buildings in the same geographical areas, as determined by
LANDLORD, the following utilities and services (the cost of which shall
be included within Operating Expenses):
8.1.1 Electricity, water, gas and sewer service shall
be provided to TENANT'S Premises 24 hours per day.
8.1.2 Telephone connection to the core space on the
ground floor of the building but not including wiring from the
core or telephone stations and equipment (it being expressly
understood and agreed that TENANT shall be responsible for the
ordering, installation, and cost of telephone lines and
equipment from the ground floor telephone room.
8.1.3 Snow and trash removal service.
8.1.4 Landscaping and grounds-keeping service.
8.1.5 Elevator service 24 hours per day.
8.1.6 Reasonable daily janitorial service, weekends
and holidays excluded; provided, that if TENANT'S floor
covering or other improvements are other than standard for the
Building, TENANT shall pay the additional cleaning costs, if
any, attributable thereto as Additional Rent upon presentation
of a written statement relating thereto by LANDLORD.
8.1.7 Heating, overhead lighting, ventilation and air
conditioning reasonably necessary for the comfortable use and
occupancy of the Premises during customary business hours. For
purposes of this Subsection, customary business hours shall be
from 7:00 a.m. to 6:00 pm, Monday through Friday, and from
7:30 a.m. to 12:00 noon on Saturday, excluding legal holidays.
8.1.8 Window washing of the exterior windows; not
more than three times or less than 1 time per annum.
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8.2 Additional Services. LANDLORD shall have no obligation to
provide utilities, overhead lighting, heating, air conditioning and/or
cleaning services to TENANT beyond the standard services set forth in
Subsection 8.1 above, or at times other than during the Business Hours,
as defined in the Rules and Regulations, but if LANDLORD elects to
provide such additional services at TENANT'S request, TENANT shall pay
LANDLORD'S reasonable charge for such special services as Additional
rent.
8.3 Utilities Consumption. TENANT shall not, without the prior
written consent of LANDLORD, use any apparatus or device in the
Premises which will in any way increase the amount of gas, electricity
or water usually furnished or supplied for use of the Premises as
general office space; nor connect with electric current, except through
existing electrical outlets in the Premises, or water pipes or gas
outlets, any apparatus or device for the purposes of using gas,
electrical current or water. If TENANT shall require water or electric
current or any other service in excess of that usually furnished or
supplied for use on the Premises as general office space, TENANT shall
first obtain the prior written consent of LANDLORD, which LANDLORD will
not unreasonably withhold, for the use thereof, and LANDLORD may cause
a special meter to be installed in the Premises so as to measure the
amount of water, electric current or other service consumed. The cost
of any such meters and of installation, maintenance, and repair thereof
shall be paid for by TENANT, and TENANT agrees to pay LANDLORD promptly
upon demand by LANDLORD for all such water, electric current or other
service consumed, as shown by said meters, at rates charged by the
local public utility furnishing the same, plus any additional expense
incurred in keeping account of the water, electric current or other
service so consumed. In each such case, the costs for administering
such methods shall be borne by TENANT.
8.4 TENANT'S Obligations. TENANT shall arrange and pay for,
prior to delinquency, the entire cost and expense of all telephone
wiring from the first floor telephone closet to Premises. Telephone
stations, and phone equipment, wiring inside the Premises, use charges,
and all other communication materials and services shall be provided
and paid for by TENANT.
8.5 Non Business Hour HVAC and Overhead Lighting. LANDLORD
shall provide TENANT, at TENANT'S request, with heat and air
conditioning and overhead lighting outside the customary Business
hours, as defined in the Rules and Regulations, at the rate of Twenty
Dollars ($20.00) per hour. LANDLORD shall determine the amount of such
usage during Non Business Hours by the installation of a separate time
meter or other measuring device. LANDLORD shall deliver to TENANT a
statement (Statement), on a monthly basis, of TENANT'S Non Business
Hours use of heat and air conditioning and overhead lighting for the
previous month. TENANT shall pay the amount owing to LANDLORD as set
forth in the Statement, as Additional Rent, within five (5) days after
TENANT'S receipt of the Statement. If the HVAC or lighting System of
the Building is modified or LANDLORD'S operating costs change and as a
result of such modification or change LANDLORD offers a rate for after
hours usage lower or higher than Twenty Dollars ($20.00) per hour to
the Building in general, LANDLORD shall accept, and TENANT shall pay,
such lower or higher amount. Notwithstanding the foregoing, LANDLORD
shall have no obligation to provide TENANT with heat and air
conditioning and overhead lighting during Non Business Hours if a
material Event of Default exists under this Lease.
8.6 Limitation on 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 Subsection 8 hereof if such failure
was occasioned by any strike or labor controversy, any act or default
of TENANT, the inability of LANDLORD to obtain services from the
company supplying the same or any cause beyond the reasonable control
of LANDLORD; provided, however, that if such delay or service
interruption continues for a period in excess of ten (10) consecutive
days or for ten (10) days in a twenty (20) day period, and such delay
or interruption renders the Premises or any portion thereof
untenantable for TENANT'S normal business operations, the rent shall
thereafter be abated in proportion to the unusable portion of the
Premises for the period of such non-useability. 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.
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9. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS.
9.1 Maintenance and Repairs by LANDLORD. LANDLORD as part of
operating expense shall maintain in good order, condition and repair
the Building, the Common Areas and the Improvements, excluding the
Premises and those other portions of the Building leased, rented or
otherwise occupied by persons not affiliated with LANDLORD. LANDLORD
shall supply and pay for regular janitorial and cleaning services
reasonably required, exclusive of weekends and holidays, to keep the
Building and Improvements in a clean, sanitary and orderly condition,
the cost and expense of which shall be included in Operating Expenses.
9.2 Maintenance and Repairs by TENANT. Subject to LANDLORD'S
obligation to provide janitorial service, TENANT shall maintain the
Premises in good order, condition and repair, reasonable wear and tear
excepted, including without limitation, the following: electric light
bulbs (but not including fluorescent lights and ballasts used in
overhead fixtures originally installed in the Premises, which LANDLORD
shall maintain and replace as necessary); the interior surfaces of the
ceilings, walls, interior windows; and all equipment and fixtures
installed by TENANT. In the event that TENANT fails to maintain the
Premises in good order, condition and repair, LANDLORD shall give
TENANT notice to do such acts as are reasonably required to so maintain
the Premises. In the event that TENANT fails to promptly commence such
work and diligently prosecute it to completion, LANDLORD shall have the
right to do such acts and expend such funds at the expense of TENANT as
are reasonably required to perform such work. Any amount so expended by
LANDLORD shall be paid by TENANT promptly upon demand therefore with
interest thereon from the date of such expenditure at the prime or base
rate then charged by Zions First National Bank of Utah, N.A. provided
however in no event shall the rate be less than 12% per annum. LANDLORD
shall have no liability to TENANT for any damage, inconvenience or
interference with the use of the Premises by TENANT as a result of
performing any such work.
9.3 Alterations.
9.3.1 General.
9.3.1.1 During the term, TENANT will not
make or allow to be made any alterations, additions,
or improvements to or of the premises or any part of
the premises, or attach any fixtures or equipment to
the premises, without first obtaining LANDLORD'S
written consent. All such alterations, additions, and
improvements consented to by LANDLORD, and capital
improvements that are required to be made to the
project as a result of the nature of TENANT'S use of
the premise shall:
9.3.1.1.1 Be performed by
contractors approved by LANDLORD and subject to
conditions specified by LANDLORD (which may include
requiring the posting of a mechanic's or
materialmen's lien bond,) certificates issued by
applicable insurance companies evidencing that
workmen's compensation, personal injury liability and
property damage insurance are in force and effect and
are maintained by all contractors and subcontractors;
and,
9.3.1.1.2 Conform to the applicable
building codes, A.D.A. and any applicable fire codes;
and,
9.3.1.1.3 At LANDLORD'S option, will
be made by LANDLORD for TENANT'S account, and TENANT
will reimburse LANDLORD for their cost (including 15%
for LANDLORD'S overhead) within 10 days after receipt
of a statement of such cost.
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9.3.1.2 Alterations, additions, fixtures,
and improvements, including but not limited to built
in cabinetry and work stations, whether temporary or
permanent in character, made in or upon the premises
either by TENANT or LANDLORD, will immediately become
LANDLORD'S property and at the end of the term will
remain on the premises without compensation to
TENANT, unless when consenting to such alterations,
additions, fixtures, or improvements, LANDLORD has
advised TENANT in writing that such alterations,
additions, fixtures, or improvements must be removed
at the expiration or other termination of this Lease.
9.3.1.3 Notwithstanding the provisions of
paragraph 9.3.1.1 above, LANDLORD consents to TENANT
making alterations to the Premises so long as the
cost does not exceed Five Hundred Dollars ($500.00)
per alteration and so long as such alterations do not
unreasonably increase power usage. LANDLORD will not
require approval of the contractor or the posting of
a performance bond, nor will LANDLORD charge TENANT
an overhead charge for said alterations performed by
TENANT.
9.3.2 Free-Standing Partitions. TENANT will have the
right to install free-standing work station partitions,
without LANDLORD'S prior written consent, so long as no
building or other governmental permit is required for their
installation or relocation; however, if a permit is required,
LANDLORD will not unreasonably withhold its consent to such
relocation or installation. The free-standing work station
partitions for which TENANT pays will be part of TENANT'S
trade fixtures for all purposes under this Lease. All other
partitions installed in the Premises are and will be
LANDLORD'S property for all purposes under this Lease.
9.3.3 Removal. If LANDLORD has required TENANT to
remove any or all alterations, additions, fixtures, and
improvements that are made in or upon the Premises pursuant to
this Section 9 prior to the expiration date, TENANT will
remove such alterations, additions, fixtures, and improvements
at TENANT'S sole cost and will restore the Premises to the
condition in which they were before such alterations,
additions, fixtures, improvements, and additions were made,
reasonable wear and tear excepted.
9.4 LANDLORD'S Access to Leased Premises. LANDLORD shall have
the right to place, maintain and repair all utility equipment of any
kind in, over, upon and under the Premises as may be necessary for the
servicing of the Premises and any other portion of the Building.
LANDLORD also shall have the right to enter the Premises at all
reasonable times in order to inspect the same, to supply janitorial
service and any other service to be provided by LANDLORD to TENANT
hereunder, to exhibit the Premises to prospective purchasers,
mortgagees, TENANTS and lessees, and to make such repairs, additions,
alterations or improvements as LANDLORD may deem desirable. LANDLORD
shall be allowed to take all material upon the Premises that may be
required therefore without the same constituting an actual or
constructive eviction of TENANT in whole or in part and the rents and
other monetary obligations reserved herein shall in no wise abate,
except as expressly provided in Subsection 8.6, while such work is in
progress by reason of loss or interruption of TENANT'S business or
otherwise. TENANT hereby expressly waives any claim for damages for any
injury or inconvenience to or interference with TENANT'S business, any
loss of occupancy or quiet enjoyment of the Premises, and any other
loss occasioned thereby. Except in emergency any such showings shall be
during reasonable hours, with reasonable notice to TENANT and shall not
materially interfere with TENANT'S business. LANDLORD shall at all
times have and retain a key with which to unlock all the doors in, upon
and about the Premises, excluding TENANT'S vaults and safes. LANDLORD
shall have the right to use any and all means which LANDLORD may deem
proper to open such doors in an emergency in order to obtain entry to
the Premises. Any entry to the Premises obtained by LANDLORD shall not
under any circumstances be construed or deemed to be a forcible or
unlawful entry into or detainer of the Premises or an eviction of
TENANT from any portion of the Premises. LANDLORD shall be permitted to
show the premises to prospective lessees during the last 12 months of
the Lease. Any such showings shall be during reasonable hours, with
reasonable notice to TENANT and shall not materially interfere with
TENANT'S business.
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10. LIENS. TENANT shall keep the building and the property free from
any liens arising out of work performed on or materials furnished to the
Premises or obligations incurred by TENANT and shall indemnify, hold harmless
and defend LANDLORD from any liens and encumbrances arising out of any work
performed or any materials furnished by or at the direction of TENANT. In the
event that within ten (10) days following the imposition of any such lien or
encumbrance TENANT shall not cause such lien or encumbrance to be released of
record by payment or posting of a proper bond, LANDLORD shall have, in addition
to all other remedies provided herein and by law the right, but not the
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien or encumbrance.
All such sums paid by LANDLORD and all expenses incurred by LANDLORD in
connection therewith including attorney's fees and costs shall be payable to
LANDLORD by TENANT upon demand with interest thereon at the Interest Rate.
LANDLORD shall have the right at all times to post and keep posted on the
Premises any notices permitted or required by law, or which LANDLORD shall deem
proper, for the protection of LANDLORD and the Premises and any other party
having an interest therein from mechanics' and materialmen's liens, and TENANT
shall give to LANDLORD at least ten (10) business days prior written notice of
the expected date of commencement of any work relating to alterations or
additions to the Premises.
11. ASSIGNMENT.
11.1 General. TENANT, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors, and
assigns, covenants that it will not assign, mortgage, or encumber this
Lease, nor sublease, nor permit the premises or any part of the
premises to be used or occupied by others, without the prior written
consent of LANDLORD in each instance, which consent will not be
unreasonably withheld or delayed. Any assignment or sublease in
violation of this Lease will be void. If this Lease is assigned, or if
the premises or any part of the premises are subleased or occupied by
anyone other than TENANT, LANDLORD may, after default by TENANT,
collect rent from the assignee, subtenant, or occupant, and apply the
net amount collected to rent. No assignment, sublease, occupancy, or
collection will be deemed (a) a waiver of the provisions of this Lease;
(b) the acceptance of the assignee, subtenant, or occupant as TENANT;
or (c) a release of TENANT from the further performance by TENANT of
covenants on the part of TENANT contained in this Lease. The consent by
LANDLORD to an assignment or sublease will not be construed to relieve
TENANT from obtaining LANDLORD'S prior written consent in writing to
any further assignment or sublease. No permitted subtenant may assign
or encumber its sublease or further sublease all or any portion of its
subleased space, or otherwise permit the subleased space or any part of
its subleased space to be used or occupied by others, without
LANDLORD'S prior written consent in each instance.
11.2 Submission of Information. If TENANT requests LANDLORD'S
consent to a specific assignment or subletting, TENANT will submit in
writing to LANDLORD (a) the name and address of the proposed assignee
or subtenant; (b) the business terms of the proposed assignment or
sublease; (c) reasonably satisfactory information as to the nature and
character of the business of the proposed assignee or subtenant, and as
to the nature of its proposed use of the space; (d) banking, financial,
or other credit information reasonably sufficient to enable LANDLORD to
determine the financial responsibility and character of the proposed
assignee or subtenant; and (e) the proposed form of assignment or
sublease for LANDLORD'S approval.
11.3 Payments to LANDLORD. If LANDLORD consents to a proposed
assignment or sublease, then LANDLORD will have the right to require
TENANT to pay to LANDLORD a sum equal to (a) 1/2 of any rent or other
consideration paid to TENANT by any proposed transferee that (after
first deducting the costs of TENANT, if any, in effecting the
assignment or sublease, including reasonable alterations costs,
commissions, legal fees, TENANT'S relocation costs and the unamortized
portion of TENANT Improvements installed by TENANT) is in excess of the
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rent allocable to the transferred space then being paid by TENANT to
LANDLORD pursuant to this Lease; (b) 1/2 of any other profit or gain
(after first deducting any necessary expenses incurred) realized by
TENANT from any such sublease or assignment; and (c) LANDLORD'S
reasonable attorneys' fees and costs incurred in connection with
negotiation, review, and processing of the transfer. All such sums
payable will be payable to LANDLORD at the time the next payment of
monthly rent is due.
11.4 Prohibited Transfers. The transfer of a majority of the
issued and outstanding capital stock of any corporate TENANT or
subtenant of this Lease, or a majority of the total interest in any
partnership TENANT or subtenant in a single transaction, will be deemed
an assignment of this Lease or of such sublease requiring LANDLORD'S
consent in each instance. For purposes of this Lease, the transfer of
outstanding capital stock of any corporate TENANT will not include any
sale of such stock by persons other than those deemed "insiders" within
the meaning of the Securities Exchange Act of 1934, as amended,
effected through the "over-the-counter market" or through any
recognized stock exchange.
12. INDEMNITY.
12.1 Indemnification. Each party hereto shall indemnify,
defend and hold the other harmless from and against (i) any and all
liability, penalties, losses, damages, costs and expenses, demands,
causes of action, claims or judgements arising from or growing out of
any injury to any person or persons or any damage to any property as a
result of any accident or other occurrence during the Term occasioned
in any way as a result of the indemnifying parties officers',
employees', agents', servants', subtenants', concessionaires',
licensees', contractors', or invites' use, maintenance, alteration,
occupation, or operation of the Premises, Building or Improvements
during the Term, and (ii) from and against all costs and charges,
including attorneys' fees and investigation costs, incurred in and
about any of such matters and the defense of any action arising out of
the same or in discharging the parcel or any part thereof from any and
all liens, charges or judgements which may accrue or be placed thereon
by reason of any act or omission of the indemnifying party. The
indemnifying party's obligations pursuant to the foregoing indemnity
shall survive the termination of this Lease. In case any proceeding is
brought against the indemnified party by reason of any such claim, the
indemnifying party, upon notice from the indemnified party, shall
defend the same at the indemnifying party's expense by counsel
reasonably satisfactory to the indemnified party.
12.2 Release. LANDLORD and TENANT each hereby release and
relieve the other, and each waives its entire right of recovery against
the other, or against any other TENANT or occupant of the Building, or
against the officers, directors, shareholders, partners, joint
venturers, employees, agents, customers, invitees, or business visitors
of such other party or of such other TENANT or occupant of the
Building, for loss or damage arising out of or incident to the perils
which the releasing party is required to insure against under
provisions of Paragraph 13, which perils occur in, on, or about the
premises or the building of which the premises are a part, whether due
to the negligence of LANDLORD or TENANT or their respective agents,
employees, contractors, or invites, if and to the extent that such loss
or damage (i) is actually compensated by insurance or (ii) would have
been compensated by insurance except for the fact that the insuring
company availed itself of a defense arising from the action or failure
to act of the releasing party, its employees or agents. Each party
shall, upon obtaining the policies of insurance which it is required to
maintain under this Lease, give notice to its insurance company or
companies that the foregoing mutual waiver of subrogation is contained
in this lease. Each party shall cause each such insurance policy
obtained by it to provide that the insurance company waive all rights
of recovery by way of subrogation against either party in connection
with any damage or liability covered by such policy. If any insurance
policy cannot be obtained with a waiver of subrogation, or is
obtainable only by the payment of an additional premium charge above
that charged by insurance companies issuing policies with out waiver of
subrogation, the party undertaking to obtain the insurance shall notify
the other party of such fact. The other party shall have a period of
ten (10) days after receiving the notice either to place the insurance
with a company that is reasonably satisfactory to the other party and
that will carry the insurance with a waiver of subrogation, or to agree
to pay the additional premium if such a policy is obtainable at
additional cost. If the insurance cannot be obtained with a waiver of
subrogation or the party in whose favor a waiver of subrogation is
desired refuses to pay the additional premium charge, the other party
shall be relieved of the obligation to obtain a waiver of subrogation
rights with respect to that particular insurance policy.
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12.3 Notice. TENANT shall give notice to LANDLORD in case of
fire or material accidents in the Premises or of material defects
therein or in any fixtures or equipment thereon located.
12.4 Litigation. In case LANDLORD, without fault on its part,
shall be made a party to any litigation commenced by or against TENANT,
TENANT shall protect and hold LANDLORD harmless and shall pay all
costs, expenses, and reasonable attorneys' fees incurred therein. In
case TENANT, without fault on its part, shall be made a party to any
litigation commenced by or against LANDLORD, LANDLORD shall protect and
hold TENANT harmless and shall pay all costs, expenses, and reasonable
attorneys' fees incurred therein.
13. INSURANCE.
13.1 LANDLORD'S Insurance. At all times during the term,
LANDLORD will carry and maintain:
13.1.1 Fire and extended coverage insurance covering
the Building, its equipment, common area furnishings, and
leasehold improvements in the Premises to the extent of the
TENANT finish allowance;
13.1.2 Bodily injury and property damage insurance
with a combined single occurrence limit of not less than
$2,000,000; and
13.1.3 Such other insurance as LANDLORD reasonably
determines from time to time.
The insurance coverages and amounts in this Section 13.1 will
be reasonably determined by LANDLORD, based on coverages
carried by prudent owners of comparable buildings in the
vicinity of the project, and such insurance as may reasonably
be required by mortgage lenders.
13.2 TENANT'S Insurance. At all times during the term, TENANT
will carry and maintain, at TENANT'S expense, the following insurance,
in the amounts specified below or such other amounts as LANDLORD may
from time to time reasonably request, with insurance companies and on
forms satisfactory to LANDLORD:
13.2.1 Bodily injury and property damage liability
insurance, with a combined single occurrence limit of not less
than $3,000,000. All such insurance will be equivalent to
coverage offered by a commercial general liability form,
including without limitation personal injury and contractual
liability coverage for the performance by TENANT of the
indemnity agreements set forth in this Lease;
13.2.2 Insurance covering all of TENANT'S furniture
and fixtures, machinery, equipment, stock, and any other
personal property owned and used in TENANT'S business and
found in, on, or about the project, and any leasehold
improvements to the premises in excess of the allowance, if
any, in an amount not less than the full replacement cost.
Property forms will provide coverage on a broad form basis
insuring against "all risks of direct physical loss." All
policy proceeds will be used for the repair or replacement of
the property damaged or destroyed; however, if this Lease
ceases under the provisions of section 14, TENANT will be
entitled to any proceeds resulting from damage to TENANT'S
furniture and fixtures, machinery, equipment, stock, and any
other personal property;
13.2.3 Worker's compensation insurance insuring
against and satisfying TENANT'S obligations and liabilities
under the worker's compensation laws of the state in which the
premises are located, including employer's liability insurance
in the limits required by the laws of the state in which the
project is located; and
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13.2.4 If TENANT operates owned, hired, or nonowner
vehicles on the Property, comprehensive automobile liability
at a limit of liability not less than $500,000 combined bodily
injury and property damage.
13.3 Forms of Policies. Certificates of insurance, together
with copies of the endorsements, when applicable, naming LANDLORD and
any others specified by LANDLORD as additional insures, at the sole
discretion of LANDLORD, will be delivered to LANDLORD prior to TENANT'S
occupancy of the premises and from time to time at least 10 days prior
to the expiration of the term of each such policy. All general
liability and property policies maintained by TENANT will be written as
primary policies, not contributing with and not supplemental to the
coverage that LANDLORD may carry.
14. DAMAGE OR DESTRUCTION.
14.1 LANDLORD'S Obligations. If the Premises shall be
partially damaged by any casualty insured against under any insurance
policy maintained by LANDLORD, LANDLORD shall, upon receipt of the
insurance proceeds, repair the Premises within 180 days of the date of
damage. Until such repair is complete, the Basic Monthly Rent and
Additional Rent shall be abated from the date of damage proportionately
as to that portion of the Premises rendered untenantable, if any.
Notwithstanding the foregoing, if (a) by reason of such occurrence the
Premises are rendered wholly untenantable; or (b) the Premises are
damaged as a result of a risk which is not covered by insurance; or (c)
the Premises are damaged in whole or in part during the last six (6)
months of the term hereof or of any renewal hereof; or (d) the Premises
or the Building (whether the Premises are damaged or not) is damaged to
the extent of fifty percent (50%) or more of then-monetary value
thereof, LANDLORD may either elect to repair the damage or may cancel
this Lease by notice of cancellation within sixty (60) days after such
event and there upon this Lease shall expire, and TENANT shall vacate
and surrender the Premises to LANDLORD. TENANT'S liability for rent
upon the termination of this Lease shall cease as of the effective date
of such termination. In the event LANDLORD elects to repair any such
damage, any abatement of rent shall end five (5) days after notice by
LANDLORD to TENANT that the Premises have been repaired and TENANT has
accepted said repairs, which acceptance TENANT shall not unreasonably
withhold. If the damage is caused by the gross negligence of TENANT or
its employees, agents, invites or concessionaires, there shall be no
abatement of rent . Except for abatement of rent, if any, TENANT shall
have no claim against LANDLORD for any damage suffered by reason of
such damage, destruction, repair or restoration, nor shall TENANT have
the right to terminate this Lease as a result of any statutory
provision now or hereafter in effect pertaining to the damage and
destruction of the Premises or the Building, except as expressly herein
provided. The proceeds of all insurance carried by TENANT on its
property and fixtures shall be held in trust by TENANT for the purpose
of said repair and replacement. TENANT shall have the right to
terminate this Lease if (a) the repairs to the Premises are not
completed within 180 days of the date of damage; or (b) by reason of
such occurrence the Premises are rendered wholly untenantable; or (c)
the Premises are damaged in whole or in part during the last six (6)
months of the term hereof and the Premises or the Building (whether the
Premises are damaged or not) is damaged to the extent of fifty percent
(50%) or more of then-monetary value thereof.
14.2 TENANT'S Obligation. LANDLORD shall not be required to
repair any injury or damage caused by fire or any other cause, or to
make any restoration or replacement of any paneling, decoration,
partition, railing, floor covering, office fixture or any other
improvement or 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 Subsection 15.1 hereof, TENANT shall be
required to restore or replace such improvements and property in the
event of injury or damage in at least a condition equal to that
existing prior to the destruction or casualty.
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15. CONDEMNATION.
15.1 Total Condemnation. If the whole of the Premises shall be
acquired or taken by condemnation proceeding, this Lease shall cease
and terminate as of the date of title vesting in such condemnor.
15.2 Partial Condemnation. If any part of the Premises shall
be acquired or taken by condemnation proceeding, and such partial
taking shall render that portion not so taken unsuitable for the
business of TENANT, then this Lease shall cease and terminate as of the
date of title vesting in such condemnor. If such partial taking does
not render the Premises unsuitable for the business of TENANT, this
Lease shall continue in effect except that the Basic Monthly Rent and
Additional Rent shall be reduced from the time of taking in the same
proportion that the portion of the Premises taken bears to the total
rented area of the Premises immediately prior to the taking. LANDLORD
shall, upon receipt of the award in condemnation, make all necessary
repairs or alterations to the Building in which the Premises are
located; provided, however, that LANDLORD shall not be required to
expend for such work an amount in excess of the amount received by
LANDLORD as damages for the part of the Premises so taken. Amount
received by LANDLORD shall mean that part of the award in condemnation
which is free and clear to LANDLORD of any collection by mortgage
lenders for the value of the diminished fee.
15.3 LANDLORD'S Option to Terminate. If more than twenty
percent (20%) of the Building shall be acquired or taken by
condemnation proceeding, LANDLORD may, by written notice to TENANT,
terminate this Lease. If this Lease is terminated as provided in this
Subsection 15.3, rent shall be paid up to the day that possession is so
taken by public authority and LANDLORD shall make an equitable refund
of any rent paid by TENANT in advance.
15.4 Award. TENANT shall not be entitled to any condemnation
award for any taking, whether whole or partial and whether for
diminution in value of the leasehold or the fee, and assigns to
LANDLORD all rights of TENANT, if any, to receive such award, although
TENANT shall have the right, to the extent that the same shall not
reduce LANDLORD'S award, to claim from the condemnor, but not from
LANDLORD, such compensation as may be recoverable by TENANT in its own
right for TENANT'S relocation costs and for damages to TENANT'S
business and fixtures.
15.5 Definitions. As used in this Section 15 the term
condemnation proceeding means any action or proceeding in which any
interest in the Premises is taken for any public or quasi-public
purpose by any lawful authority through exercise of the power of
eminent domain or right of condemnation or by purchase or otherwise in
lieu of and under threat of condemnation. The definition of Premises
shall be expanded to include elevators, parking and common areas.
16. LANDLORD'S RIGHT TO CURE. In the event of any noncompliance
hereunder by LANDLORD, TENANT shall, before exercising any right or remedy
available to it, give LANDLORD written notice of such noncompliance. If prior to
its giving such notice TENANT has been notified in writing (by way of Notice of
Assignment of Rents and Leases, or otherwise) of the address of a Lender which
has furnished any of the financing referred to in Section 17 hereof,
concurrently with giving the aforesaid notice to LANDLORD, TENANT shall, by
registered or certified mail postage prepaid, transmit a copy thereof to such
Lender. For the thirty (30) days following the giving of the notice(s) required
by the foregoing portion of this Section 16 (or such longer period of time as
may be reasonably required to cure a matter which, due to its nature, cannot
reasonably be rectified within thirty (30) days), LANDLORD shall have the right
to cure the noncompliance involved. If LANDLORD has failed to effect such cure
within such period, any such Lender shall have an additional thirty (30) days
within which to cure the same or, if such default cannot be cured within that
period, such additional time as may be necessary, if within such thirty (30) day
period said Lender has commenced and is diligently pursuing the actions or
remedies necessary to cure the noncompliance involved (including, but not
limited to, commencement and prosecution of proceedings to foreclose or
otherwise exercise its rights under its mortgage or other security instrument,
if necessary to effect such cure), in which event this Lease shall not be
terminated by TENANT so long as such actions or remedies are being diligently
pursued by said Lender. LANDLORD shall not be liable to TENANT for any default
under this Lease which occurs after the sale of the Building by LANDLORD, and
TENANT agrees that its rights with respect to any such default, if asserted,
shall be asserted against LANDLORD'S successor in interest, and not against
LANDLORD.
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Not withstanding the above and except for financial default, i.e.; any
payments required by TENANT as provided for in the Lease Agreement and those
matters not relative to TENANT issues such as LANDLORD, lender, and/or building
sale related matters, TENANT shall have the same right to cure as LANDLORD.
17. SUBORDINATION; AMENDMENT; ATTORNMENT.
17.1 Subordination. This Lease, at LANDLORD'S option, shall be
subordinate to any existing or future mortgage, deed of trust, ground
lease or declaration of covenants (regarding maintenance and use of any
areas contained in any portion of the Building), declaration of planned
unit development, including, without limitation, the Declaration of
Covenants, Conditions and Restrictions of South Towne, any and all
advances made under any mortgage or deed of trust and all renewals,
modifications, amendments, consolidations, replacements and extensions
thereof. TENANT agrees that with respect to any of the foregoing
documents, no documentation, other than this Lease, shall be required
to evidence such subordination. If any holder of a mortgage or deed of
trust shall elect to have this Lease superior to the lien of its
mortgage or deed of trust and shall give written notice thereof to
TENANT, this Lease shall be deemed prior to such mortgage or deed of
trust or to the date of recording thereof. TENANT agrees to execute
such documents which may be required by LANDLORD to confirm such
subordination or priority within ten (10) days of request therefor from
LANDLORD. Notwithstanding anything to the contrary contained in this
Subsection 17.1, so long as TENANT fulfills all its obligations under
this Lease, TENANT'S rights under this Lease shall not be disturbed or
impaired by any holder of a mortgage or a deed of trust, or by any
person claiming through or under LANDLORD. TENANT shall not subordinate
its interests hereunder or in the Premises to any lien or encumbrance
other than those encumbrances described in this Subsection 17.1 without
the prior consent of LANDLORD. Any attempted unauthorized subordination
by TENANT shall be void and of no force or effect.
17.2 Amendment. TENANT agrees that from time to time it shall,
if so requested by LANDLORD and if doing so will not materially and
adversely affect TENANT'S economic interests hereunder, join with
LANDLORD in amending this Lease so as to meet the needs or requirements
of any Lender which is considering making or which has made a loan
secured by the Building and/or related Land. Any change in the Basic
Monthly Rent or Additional Rent shall be deemed adverse or material.
17.3 Attornment. 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.
18. DEFAULT; REMEDIES; ABANDONMENT; PAST SUMS DUE; PENALTY.
18.1 Default by TENANT. Upon the occurrence of any of the
following events, LANDLORD shall have the remedies set forth in
Subsection 18.2:
18.1.1 TENANT fails to pay any installment of Basic
Monthly Rent or Additional Rent or any other sum due hereunder
within five (5) calendar days of when the same shall be due.
18.1.2 TENANT fails to perform any other term,
condition, or covenant to be performed by it pursuant to this
Lease within thirty (30) days after written notice of such
default shall have been given to TENANT by LANDLORD or if cure
would reasonably require more than thirty (30) days to
complete if TENANT fails to commence performance within the
thirty (30) day period or fails to diligently pursue such cure
to completion.
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18.1.3 TENANT or any guarantor of this Lease shall
become bankrupt or insolvent or file any debtor proceedings or
have taken against such party in any court pursuant to state
or federal statute, a petition in bankruptcy or insolvency,
reorganization, or appointment of a receiver of trustee; or
TENANT petitions for or enters into an arrangement; or suffers
this Lease to be taken under a writ of execution.
18.1.4 If an abandonment of the Premises by TENANT
has occurred, as defined in Section 78-36-12.3 of the Utah
Code Ann. (or similar replacement provision).
18.2 LANDLORD'S Remedies. If any one or more of the events of
default set forth in Section 18.1 occurs and is not cured, then
LANDLORD shall have, besides other rights and remedies it may have at
law or equity, the following remedies:
18.2.1 To give TENANT written notice of LANDLORD'S
intention to terminate this Lease on the earliest date
permitted by law or on any later date specified in such
notice, in which case TENANT'S right to possession of the
premises will cease and this Lease will be terminated, except
as to TENANT'S liability, as if the expiration of the term
fixed in such notice were the end of the term;
18.2.2 Without further demand or notice, to reenter
and take possession of the premises or any part of the
premises, repossess the same, expel TENANT and those claiming
through or under TENANT, and remove the effects of both or
either, using such force for such purposes as may be
necessary, without being liable for prosecution, without being
deemed guilty of any manner of trespass, and without prejudice
to any remedies for arrears of monthly rent or other amounts
payable under this Lease or as a result of any preceding
breach of covenants or conditions; or
18.2.3 Without further demand or notice to cure any
event of default and to charge TENANT for the cost of
effecting such cure, including without limitation reasonable
attorneys' fees and interest on the amount so advanced at the
Interest Rate set forth in Section 9.2, provided that LANDLORD
will have no obligation to cure any such event of default of
TENANT.
18.2.4 Should LANDLORD elect to reenter as provided
in subsection (b), or should LANDLORD take possession pursuant
to legal proceedings or pursuant to any notice provided by
law, LANDLORD may, from time to time, without terminating this
Lease, relet the premises or any part of the premises in
LANDLORD'S or TENANT'S name, but for the account of TENANT,
for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of
the term) and on such conditions and upon such other terms
(which may include concessions of free rent and alteration and
repair of the premises) as LANDLORD, in its reasonable
discretion, may determine, and LANDLORD may collect and
receive the rent. No such reentry or taking possession of the
premises by LANDLORD will be construed as an election on
LANDLORD'S part to terminate this Lease unless a written
notice of such intention is given to TENANT. No written notice
from LANDLORD under this Section or under a forcible or
unlawful entry and detainer statute or similar law will
constitute an election by LANDLORD to terminate this Lease
unless such notice specifically so states. LANDLORD reserves
the right following any such reentry or reletting to exercise
its right to terminate this Lease by giving TENANT such
written notice, in which event this Lease will terminate as
specified in such notice.
18.3 Certain Damages. In the event that LANDLORD does not
elect to terminate this Lease as permitted in Section 18.2.1, but on
the contrary elects to take possession as provided in Section 18.2.2,
TENANT will pay to LANDLORD monthly rent and other sums as provided in
this Lease that would be payable under this Lease if such repossession
had not occurred, less the net proceeds, if any, of any reletting of
the premises after deducting all of LANDLORD'S reasonable expenses in
connection with such reletting, including without limitation all
repossession costs, brokerage commissions, attorneys' fees, expenses of
employees, alteration and repair costs, and expenses of preparation for
such reletting. If, in connection with any reletting, the new Lease
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term extends beyond the existing term, or the premises covered by such
new Lease include other premises not part of the premises, a fair
apportionment of the rent received from such reletting and the expenses
incurred in connection with such reletting as provided in this Section
will be made in determining the net proceeds from such reletting, and
any rent concessions will be equally apportioned over the term of the
new Lease. TENANT will pay such rent and other sums to LANDLORD monthly
on the day on which the monthly rent would have been payable under this
Lease if possession had not been retaken, and LANDLORD will be entitled
to receive such rent and other sums from TENANT on each such day.
18.4 Continuing Liability After Termination. If this Lease is
terminated on account of the occurrence of an event of default, TENANT
will remain liable to LANDLORD for damages in an amount equal to
monthly rent and other amounts that would have been owing by TENANT for
the balance of the term, had this Lease not been terminated, less the
net proceeds, if any, of any reletting of the premises by LANDLORD
subsequent to such termination, after deducting all of LANDLORD'S
expenses in connection with such reletting, including without
limitation the expenses enumerated in Section 18.3. LANDLORD will be
entitled to collect such damages from TENANT monthly on the day on
which monthly rent and other amounts would have been payable under this
Lease if this Lease had not been terminated, and LANDLORD will be
entitled to receive such monthly rent and other amounts from TENANT on
each such day.
18.5 Cumulative Remedies. Any suit or suits for the recovery
of the amounts and damages set forth in Sections 18.3 and 18.4 may be
brought by LANDLORD, from time to time, at LANDLORD'S election, and
nothing in this Lease will be deemed to require LANDLORD to await the
date upon which this Lease or the term would have expired had there
occurred no event of default. Each right and remedy provided for in
this Lease is cumulative and is in addition to every other right or
remedy provided for in this Lease or now or after the Lease date
existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by LANDLORD of any one or more of
the rights or remedies provided for in this Lease or now or after the
Lease date existing at law or in equity or by statute or otherwise will
not preclude the simultaneous or later exercise by LANDLORD of any or
all other rights or remedies provided for in this Lease or now or after
the Lease date existing at law or in equity or by statute or otherwise.
All costs incurred by LANDLORD in collecting any amounts and damages
owing by TENANT pursuant to the provisions of this Lease or to enforce
any provision of this Lease, including reasonable attorneys' fees from
the date any such matter is turned over to an attorney, whether or not
one or more actions are commenced by LANDLORD, will also be recoverable
by LANDLORD from TENANT.
18.6 Waiver of Redemption. TENANT waives any right of
redemption arising as a result of LANDLORD'S exercise of its remedies
under this Section 18.
18.7 Past Due Sums; Penalty. Except as otherwise expressly
provided for in this Lease, if TENANT fails to pay, when the same is
due and payable, or within five (5) calendar days thereafter, any sum
required to be paid by it hereunder, such unpaid amount shall bear
interest from the due date thereof to the date of payment at a
fluctuating rate equal to five percent (5%) per annum above the prime
rate of interest charged by Zions First National Bank, Salt Lake City,
Utah. In addition thereto, LANDLORD may charge a sum of five percent
(5%) of such unpaid amounts as a service fee. Notwithstanding the
foregoing, LANDLORD'S right concerning such interest and service fee
shall be limited by the maximum amount which legally may be charged by
LANDLORD for such purposes under applicable law.
19. RENT ABATEMENT. As a consideration for TENANT to enter into the
Lease, LANDLORD has agreed to abate the rent payment and the obligation for
TENAN'S share of operating expenses if any for the two (2) months of June 2000
and June 2001.
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20. END OF TERM. At the end of this Lease, TENANT will promptly quit
and surrender the premises broom-clean, in good order and repair, ordinary wear
and tear excepted. If TENANT is not then in material default, TENANT may remove
from the premises any trade fixtures, equipment, and movable furniture placed in
the premises by TENANT, whether or not such trade fixtures or equipment are
fastened to the building; TENANT will not remove any trade fixtures or equipment
without LANDLORD'S prior written consent if such fixtures or equipment are used
in the operation of the building, or if the removal of such fixtures or
equipment will result in impairing the structural strength of the building.
Whether or not TENANT is in default, TENANT will remove such alterations,
additions, improvements, trade fixtures, equipment, and furniture as LANDLORD
has requested in accordance with Section 9.3: TENANT will fully repair any
damage occasioned by the removal of any trade fixtures, equipment, furniture,
alterations, additions, and improvements. All trade fixtures, equipment,
furniture, inventory, effects, alterations, additions, and improvements on the
Premises 10 days after the end of the term will be deemed conclusively to have
been abandoned and may be appropriated, sold, stored, destroyed, or otherwise
disposed of by LANDLORD without written notice to TENANT or any other person and
without obligation to account for them. TENANT will pay LANDLORD for all
expenses incurred in connection with the removal of such property, including but
not limited to the cost of repairing any damage to the building or premises
caused by the removal of such property. TENANT'S obligation to observe and
perform this covenant will survive the expiration or other termination of this
Lease.
21. ESTOPPEL CERTIFICATE.
21.1 LANDLORD'S Right to Estoppel Certificate. TENANT shall,
within five (5) days after LANDLORD'S request therefore, execute and
deliver to LANDLORD an Estoppel Certificate in recordable form setting
forth the following: (a) a ratification of this Lease; (b) the Actual
Commencement Date and termination date hereof; (c) a certification that
this Lease is in full force and 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 a statement of any conditions not
satisfied; (e) that there are no defenses or offsets against the
enforcement of this Lease by LANDLORD, or, in the alternative, those
claimed by TENANT; (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 security deposited with LANDLORD; and (i) such
other information as LANDLORD (or its mortgagees or potential
purchasers of the Premises) may reasonably request. In the event TENANT
fails within five (5) days after LANDLORD has delivered to TENANT an
Estoppel Certificate pursuant to this Subsection 21.1 to properly
execute and deliver the same to LANDLORD, TENANT shall be deemed to
have consented to such Estoppel Certificate as written. LANDLORD'S
mortgage lenders and/or purchasers shall be entitled to rely upon such
declaration.
21.2 Effect of Failure to Provide Estoppel Certificate.
TENANT'S failure to furnish any Estoppel Certificate pursuant to
Subsection 21.1 hereof within fifteen (15) days after request is made
by LANDLORD therefore, it shall be conclusively presumed that (a) this
Lease is in full force and effect without modification in accordance
with the terms set forth in the request; (b) there are no breaches or
defaults on the part of LANDLORD; and (c) no more than one month's rent
has been paid in advance.
22. COMMON AREAS.
22.1 Definition of Common Areas. Common Areas means all areas,
space, equipment and special services provided for the joint or common
use and benefit of the TENANTS or occupants of the Building and related
Land or portions thereof, and their employees, agents, licensees and
other invites (collectively referred to herein as Occupants), including
without limitation, the following: parking areas, access roads,
driveways, plaza retaining walls, landscaped areas, service ways,
loading docks, pedestrian walks, courts, stairs, ramps and sidewalks,
common corridors, monuments, water features, lobby elevators, rooms and
rest rooms, air conditioning, fan, janitorial, electrical and telephone
rooms or closets, and all other areas within the Building which are not
specified for exclusive use or occupancy by LANDLORD or any TENANT
(whether or not they are Leased or occupied).
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22.2 License to Use Common Areas. The Common Areas shall be
available for the common use of all Occupants and to the extent such
access to the Common Areas has been or shall be granted, also shall be
used by the general public. If the amount of such areas shall be
changed or diminished, LANDLORD shall not be subject to any liability
to TENANT in any respect, provided LANDLORD will take no action
permitted under this section 22 in such a manner as to materially
impair or adversely affect TENANT'S substantial benefit and enjoyment
of the premises. All common Areas shall be subject to the exclusive
control and management of LANDLORD.
22.3 Deliveries. All deliveries to and from the Premises shall
be made using those areas of the Building designated for deliveries by
LANDLORD, during the time periods reasonably specified by LANDLORD, and
so as to cause the minimum amount of interference with the business of
other TENANTS of the Building or impedance of traffic corridors or
blockage of stairwells or fire exits from the Building.
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22.4 Parking. Subject to TENANT'S rights under Section 2
hereof, automobiles of TENANT and all Occupants associated with TENANT
shall be parked only within parking areas not otherwise reserved by
LANDLORD or specifically designated to use by any other tenant and/or
occupants associated with any other tenant, and shall observe visitor
parking time limitations. LANDLORD or its agents, shall, without any
liability to TENANT or its occupants have the right (but not the
obligation) to cause to be removed any automobile that may be
wrongfully parked in a prohibited or reserved parking area, and TENANT
agrees to indemnify, defend and hold harmless LANDLORD from and against
any and all claims asserted or arising with respect to or in connection
with any such removal of an automobile of TENANT. TENANT shall from
time to time, upon request of LANDLORD, supply LANDLORD with a list of
license plate numbers of all automobiles owned by TENANT or its
day-to-day Occupants. TENANT shall not allow its employees or agents to
park in uncovered parking spaces overnight without prior written
consent of LANDLORD. Upon 24 hours notice, TENANT shall temporarily
relocate all TENANT owned vehicles to a location designated by LANDLORD
for the duration of any parking lot maintenance activities. TENANTS of
the Building may exercise and will be subject to, the parking rights as
contained herein on any portion of the adjacent Towers Phase III
subdivision properties which are asphalted and improved for parking.
23. SIGNS, AWNINGS AND CANOPIES. LANDLORD, at LANDLORD'S expense shall
install identification signs for TENANT, in accordance with LANDLORD'S signage
standards. TENANT shall not place or suffer to be placed or maintained on any
exterior door, exterior wall or window of the Premises, or in the Premises
visible to the Common Areas of the Building, or elsewhere in the Building, any
sign, awning, marquee, decoration, lettering, attachment, canopy, advertising
matter or other thing of any kind, without first obtaining LANDLORD'S written
approval. Signs inside the Premises not visible from the Common Areas of the
Building are not prohibited by this paragraph. LANDLORD may, at TENANT'S cost,
and without liability to TENANT, enter the Premises and remove any item erected
in violation of this Section 23. All signage shall further be subject to
approval by the City of South Jordan.
24. REQUIREMENTS OF LAW; FIRE INSURANCE.
24.1 General. At its sole cost and expense, TENANT will
promptly comply with all laws, statutes, ordinances, and governmental
rules, regulations, or requirements now in force or in force after the
Lease date, with the requirements of any board of fire underwriters or
other similar body constituted now or after the date, with any
direction or occupancy certificate issued pursuant to any law by any
public officer or officers, as well as with the provisions of all
recorded documents affecting the premises, insofar as they relate to
the condition, use, or occupancy of the premises, excluding
requirements of structural changes to the premises or the building,
unless required by the unique nature of TENANT'S use or occupancy of
the premises.
24.2 Hazardous Materials.
24.2.1 For purposes of this Lease, "hazardous
materials" means any explosives, radioactive materials,
hazardous wastes, or hazardous substances, including without
limitation substances defined as "hazardous substances" in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ## 9601-9657; the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. ##
1801-1812; the Resource Conservation and Recovery Act of 1976,
42 U.S.C. ## 6901-6987; or any other federal, state, or local
statute, law, ordinance, code, rule, regulation, order, or
decree regulating, relating to, or imposing liability or
standards of conduct concerning hazardous materials, waste, or
substances now or at any time hereafter in effect
(collectively, "hazardous materials laws").
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24.2.2 Except in compliance with hazardous waste
laws, TENANT will not cause or permit the storage, use,
generation, or disposition of any hazardous materials in, on,
or about the premises or the project by TENANT, its agents,
employees, or contractors. TENANT will not permit the premises
to be used or operated in a manner that may cause the premises
or the project to be contaminated by any hazardous materials
in violation of any hazardous materials laws. TENANT will
immediately advise LANDLORD in writing of (1) any and all
enforcement, cleanup, remedial, removal, or other governmental
or regulatory actions instituted, completed, or threatened
pursuant to any hazardous materials laws relating to any
hazardous materials affecting the premises; and (2) all claims
made or threatened by any third party against TENANT,
LANDLORD, or the premises relating to damage, contribution,
cost recovery, compensation, loss, or injury resulting from
any hazardous materials on or about the premises. Without
LANDLORD'S prior written consent, TENANT will not take any
remedial action or enter into any agreements or settlements in
response to the presence of any hazardous materials in, on, or
about the premises.
24.2.3 TENANT will be solely responsible for and will
defend, indemnify and hold LANDLORD, its agents, and employees
harmless from and against all claims, costs, and liabilities,
including attorneys' fees and costs, arising out of or in
connection with TENANT'S breach of its obligations in this
Section 24. TENANT will be solely responsible for and will
defend, indemnify, and hold LANDLORD, its agents, and
employees harmless from and against any and all claims, costs,
and liabilities, including attorneys' fees and costs, arising
out of or in connection with the removal, cleanup, and
restoration work and materials necessary to return the
premises and any other property of whatever nature located on
the project to their condition existing prior to the
appearance of TENANT'S hazardous materials on the premises.
TENANT'S obligations under this Section 24 will survive the
expiration or other termination of this Lease.
24.3 Certain Insurance Risks. TENANT will not do or permit to
be done any act or thing upon the premises or the project which would
(a) jeopardize or be in conflict with fire insurance policies covering
the project and fixtures and property in the project; (b) increase the
rate of fire insurance applicable to the project to an amount higher
than it otherwise would be for general office use of the project; or
(c) subject LANDLORD to any liability or responsibility for injury to
any person or persons or to property by reason of any business or
operation being carried on upon the premises.
25. LANDLORD'S RESERVED RIGHTS. Without liability to TENANT (except for
damages caused by the reckless or willful misconduct of LANDLORD or its agents),
LANDLORD shall have the right at any time or from time to time (a) upon at least
twenty (20) days' prior notice to TENANT, change the name or street address of
the Building; (b) without notice, install and maintain signs on the exterior of
the Building; (c) upon notice to TENANT, enter the Premises and perform any
obligation of TENANT hereunder which TENANT has failed to perform
satisfactorily; (d) without notice, make changes, alterations and additions to
the Building or the Property; (e) exhibit the Premises to prospective tenants,
mortgagees and purchasers upon reasonable notice; and (f) without notice, enter
into the Premises to take such measures as LANDLORD may deem advisable for the
safety, security and welfare of the Building and its Occupants and for such
purposes, to bring into and through the Premises or any part of the Building,
all required tools, equipment and materials and to temporarily suspend the use
of doors, corridors or other facilities of the Building.
26. RULES AND REGULATIONS. The Rules and Regulations set forth on
Exhibit Fare hereby made a part of this Lease. LANDLORD may from time to time
amend, modify, delete or add rules and regulations for the use and care of the
Building and the Land, provided that changes in the Rules and Regulations shall
not unreasonably affect TENANT. Such amendment, modification, deletion or
addition shall be effective upon notice thereof to TENANT from LANDLORD. TENANT
will cause its employees, agents or any other persons permitted by TENANT to
occupy or enter the Premises to at all times abide by all of such Rules and
Regulations. In the event of any breach of any of such Rules or Regulations,
LANDLORD may exercise any or all of the remedies in this Lease which are
provided for in the event of default by TENANT and may, in addition, exercise
any remedies available at law or in equity including the right to enjoin any
breach of such Rules and Regulations. No act performed by LANDLORD or its agents
during the term of the Lease to enforce such Rules and Regulations shall
constitute an eviction of TENANT by LANDLORD, nor shall it be deemed an
acceptance or surrender of the Premises. LANDLORD shall not be responsible to
TENANT for the failure by any other tenant or person to observe any such Rules
and Regulations.
22
<PAGE>
27. MISCELLANEOUS PROVISIONS.
27.1 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 its business or otherwise.
27.2 Force Majeure. LANDLORD shall be excused for the period
of any delay in the performance of any obligations hereunder when
prevented from so doing by cause or causes beyond LANDLORD'S control,
including labor disputes, civil commotion, war, governmental
regulations or controls, fire or other casualty, inability to obtain
any material or service or acts of God.
27.3 Modification for Lender. If, in connection with obtaining
construction, interim, or permanent financing for the Building or the
Property, the lender shall request reasonable modifications in this
Lease as a condition to such financing, TENANT will not unreasonably
withhold, delay, or defer its consent thereto, provided that such
modifications do not increase the obligations of TENANT hereunder or
materially adversely affect the Leasehold interest hereby created or
TENANT'S rights hereunder. TENANT shall execute any documentation that
LANDLORD or the lender deems reasonably necessary within five (5) days
after written request by LANDLORD.
27.4 No Light, Air or View Easement. Any diminution or
shutting off of light, air or view by any structure which may be
erected on lands adjacent to or in the vicinity of the Building shall
in no way affect this Lease or impose any liability on LANDLORD.
27.5 Holding Over. Because unauthorized holding over after the
expiration of the term hereof or of any renewal term will cause
substantial damage to LANDLORD which cannot be estimated at the time of
execution of the Lease, any such holding over shall be construed to be
a tenancy from month-to-month at one and one half (1 1/2) times the
Basic Monthly Rent plus all other sums, rents and charges herein
specified (pro-rated on a monthly basis) and shall, so far as possible,
otherwise be on the terms herein specified. The preceding sentence
shall not be construed as LANDLORD'S permission for TENANT to hold
over.
27.6 Notices. Any notice, request, demand, consent, approval,
or other communication required or permitted under this lease must be
in writing and will be deemed to have been given when personally
delivered, sent by facsimile with receipt acknowledged, deposited with
any nationally recognized overnight carrier that routinely issues
receipts, or deposited in any depository regularly maintained by the
United States Postal Service, postage prepaid, certified mail, return
receipt requested, addressed to the party for whom it is intended.
Notice for LANDLORD shall be addressed and sent to PARKWAY TOWER,
L.L.C., Attention: Dana Howland, 348 East 4500 South, Suite 100, Salt
Lake City, Utah 84107; The address for TENANT set forth in Section 1,
Subsection 1.1 of this Lease shall be the effective location for
notices to TENANT. Either party may designate such other address as
shall be given by written notice.
27.7 Captions; Attachments.
27.7.1 The captions to the Sections and Subsections
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.
23
<PAGE>
27.7.2 Exhibits referred to in this Lease and any
addendum, riders and schedules attached to this Lease shall
be deemed to be incorporated in this Lease as though a part
of Lease.
27.8 Recording. TENANT shall not record this Lease or a
memorandum hereof without the written consent of LANDLORD. LANDLORD, at
its option and at any time, may file this Lease or a memorandum hereof
for record with the Recorder of the County in which the Property is
located, and LANDLORD shall notify TENANT of the same.
27.9 Partial Invalidity. If any provision of this Lease or the
application thereof 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 it
is held invalid shall not be affected thereby and each provision of
this Lease shall be valid and enforced to the fullest extent permitted
by law. In lieu of each provision of this lease that is illegal,
invalid, or unenforceable a provision will be added as a part of this
lease as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and enforceable.
27.10 Brokers Commission. Brandon Fugal of Coldwell Banker
Commercial as agent for LANDLORD shall be entitled to a Lease
commission equal to 5% of the Lease amount. Lease commission shall be
calculated as follows: initial annual Lease payment plus annual
increase amounts, times 5 (lease years) times 5% = commission. This
amount will be paid by LANDLORD, 1/2 upon execution by LANDLORD and
TENANT to Lease agreement and 1/2 within ten (10) days of TENANT
occupying the Premises.
27.11 TENANT Defined; Use of Pronouns. The word TENANT shall
be deemed to mean each and every person or party executing this
document as a TENANT hereunder. If there is more than one person or
organization set forth on the signature line as TENANT, their liability
hereunder shall be joint and several. If there is more than one TENANT,
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 TENANTS. 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, corporation or a group of two or more individuals,
partnerships or corporations. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense
where there is more than one LANDLORD or TENANT and to corporations,
associations, partnerships, individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
27.12 Provisions Binding, etc. Except as otherwise provided,
all provisions herein shall be binding upon and shall inure to the
benefit of the parties, their legal representatives, heirs, successors
and assigns. Each provision to be performed by TENANT shall be
constructed to be both a covenant and a condition, and if there shall
be more than one TENANT, they shall all be bound, jointly and
severally, by such provisions. In the event of any sale or assignment
(except for purposes of security or collateral) by LANDLORD of the
Building, the Premises or this Lease, LANDLORD shall, from and after
the Actual Commencement Date (irrespective of when such sale or
assignment occurs), be entirely relieved of all of its obligations
hereunder and such obligations shall, as of the time of such sale or
assignment or on the Actual Commencement Date, whichever is later,
automatically pass to LANDLORD'S successor in interest.
27.13 Entire Agreement, etc. This Lease and the Exhibits,
Riders and/or addenda, if any, attached hereto, constitute the entire
agreement between the parties. Any guaranty attached hereto is an
integral part of this Lease and constitutes consideration given to
LANDLORD to enter into this Lease. Any prior conversations or writings
are merged herein and extinguished. No subsequent amendment of this
Lease shall be binding upon LANDLORD or TENANT unless reduced to
writing and signed. Submission of this Lease for examination does not
constitute an option for the Premises and this Lease becomes effective
as a Lease only upon execution and delivery thereof by LANDLORD to
TENANT. It is hereby agreed that this Lease contains no restrictive
covenants or exclusions in favor of TENANT.
24
<PAGE>
27.14 Recourse by TENANT. Anything in this Lease to the
contrary notwithstanding, TENANT agrees that it shall look solely to
the equity of LANDLORD in the Building in which the Premises are
located and the Land upon which the Building is situated, subject to
prior rights of any mortgagee (including mortgagees, advancing monies
after the date of this Lease), for the collection of any judgment (or
other judicial process) requiring the payment of money by LANDLORD in
the event of any default or breach by LANDLORD with respect to any of
the terms, covenants and conditions of this Lease to be observed and/or
performed by LANDLORD, and no other assets of LANDLORD shall be subject
to levy, execution or other procedures for the satisfaction of TENANT'S
remedies. Nothing herein shall preclude TENANT from seeking injunctive
relief or specific performance or insurance proceeds to which they are
entitled. The amount of any judgement obtained by TENANT against
LANDLORD can be used by TENANT as an offset against unpaid rent.
27.15 Choice of Law. This Lease shall be governed by and
construed in accordance with the laws of the State of Utah.
27.16 Time of Essence. Time is of the essence of this Lease.
27.17 No Waiver. The waiver by LANDLORD of any agreement,
condition, or provision contained in this Lease will not be deemed to
be a waiver of any subsequent breach of the same or any other
agreement, condition, or provision contained in this Lease, nor will
any custom or practice that may grow up between the parties in the
administration of the terms of this Lease be construed to waive or to
lessen the right of LANDLORD to insist upon the performance by TENANT
in strict accordance with the terms of this Lease. The subsequent
acceptance of rent by LANDLORD will not be deemed to be a waiver of any
preceding breach by TENANT of any agreement, condition, or provision of
this Lease, other than the failure of TENANT to pay the particular rent
so accepted, regardless of LANDLORD'S knowledge of such preceding
breach at the time of acceptance of such rent.
27.18 Rights and Remedies. The rights and remedies of LANDLORD
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. TENANT confirms that damages at law may be an inadequate
remedy for a breach or threatened breach by TENANT of any of the
provisions hereof. LANDLORD'S rights and TENANT'S obligations hereunder
shall be enforceable by specific performance, injunction or any other
equitable remedy, but nothing herein contained is intended or shall
limit or affect any rights at law or by statute or otherwise of
LANDLORD against TENANT for a breach or a threatened breach of any
provision hereof, it being the intention by this Section to make clear
the agreement of the parties hereto and the right of LANDLORD and
obligations of TENANT hereunder shall be enforceable in equity as well
as at law or otherwise.
27.19 Authorization. Each individual executing this Lease does
thereby 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.
27.20 No Construction Against Drafting Party. LANDLORD and
TENANT acknowledge that each of them and their counsel have had an
opportunity to review this Lease and that this Lease will not be
construed against LANDLORD merely because LANDLORD has prepared it.
25
<PAGE>
27.21 Not Used.
27.22 No Merger. The voluntary or other surrender of this
Lease by TENANT or the cancellation of this Lease by mutual agreement
of TENANT and LANDLORD or the termination of this Lease on account of
TENANT'S default will not work a merger, and will, at LANDLORD'S
option, (a) terminate all or any subleases and subtenancies or (b)
operate as an assignment to LANDLORD of all or any subleases or
subtenancies. LANDLORD'S option under this Section 27.22 will be
exercised by written notice to TENANT and all known sublessees or
subtenants in the premises or any part of the premises.
27.23 Financial Reports. Within 15 days after LANDLORD'S
request, TENANT will furnish TENANT'S most recent audited financial
statements (including any notes to them) to LANDLORD, or, if no such
audited statements have been prepared, such other financial statements
(and notes to them) as may have been prepared by an independent
certified public accountant or, failing those, TENANT'S internally
prepared financial statements. TENANT will discuss its financial
statements with LANDLORD and will give LANDLORD access to TENANT'S
books and records in order to enable LANDLORD to verify the financial
statements. LANDLORD will not disclose any aspect of TENANT'S financial
statements that TENANT designates to LANDLORD as confidential except
(a) to LANDLORD'S lenders or prospective purchasers of the property,
(b) in litigation between LANDLORD and TENANT, and (c) if required by
court order.
27.24 LANDLORD'S Fees. Whenever TENANT requests LANDLORD to
take any action or give any consent required or permitted under this
Lease, TENANT will reimburse LANDLORD for all of LANDLORD'S reasonable
costs incurred in reviewing the proposed action or consent, including
without limitation reasonable attorneys', engineers' or architects'
fees, within 10 days after LANDLORD'S delivery to TENANT of a statement
of such costs. TENANT will be obligated to make such reimbursement
without regard to whether LANDLORD consents to any such proposed
action.
27.25 Attorney's Fees. In the event that at any time during
the term of this Lease either LANDLORD or TENANT institutes any action
or proceeding against the other relating to the provisions of this
Lease or any default hereunder, the unsuccessful party in such action
or proceeding shall reimburse the successful party for the reasonable
expenses of such action including reasonable attorneys' fees incurred
therein by the successful party.
27.26 Successors. LANDLORD shall not be liable to TENANT for
any default or breach under this Lease which occurs after the sale of
the Building or Premises by LANDLORD, provided new owner accepts
LANDLORD'S responsibilities as provided for in Lease Agreement.
IN WITNESS WHEREOF, LANDLORD and TENANT have executed this
Lease on the day first set forth above.
LANDLORD:
PARKWAY TOWER, L.L.C., A Utah Limited Liability Company
By:
--------------------------------------
Its Managing Member
TENANT:
SUNDOG TECHNOLOGIES, INC.
By:
-------------------------------------
Its:
-------------------------------------
26
<PAGE>
EXHIBIT A - 1 -
EXHIBIT A
LEGAL DESCRIPTION
Parcel #27-13-176-036. Beginning North 89degree07'37" East along the section
line 1,768.700 feet and North 73.011 feet from the West Quarter Corner of
Section 13, Township 3 South, Range 1 West, Salt Lake Base & Meridian; thence
running North 0degree14'35" West 58.247 feet; thence 25degree45'06" East 60.076
feet; thence North 45degree14'34" West 13.750 feet; thence North 25o45'06" East
199.35 feet; thence North 0degree52'23" West 88.637 feet; thence North
89degree07'37" East 149.814 feet to the West right-of-way line of 400 West
Street; thence South 0degree52'23" East along said line 388.627 feet to the said
North right-of-way lien of South Jordan Parkway (10600 South); thence South
89degree07'37" West along said North line 257.10 feet to the point of beginning.
1.80 acres.
Parcel #27-13-176-037. Beginning North 89degree07'37" East 1,768.70 feet and
North 73.01 feet from the West Quarter Corner of Section 13, Township 3 South
Range 1 West, Salt Lake Base & Meridian; thence running South 89degree07'17"
West 30 feet; thence North 01degree14'35" West 76.34 feet; thence North
44degree45'25" East 65 feet; thence south 25degree45'06" West 60.08 feet; thence
South 0degree14'35" East 58.25 feet to the point of beginning. 0.08 acre.
<PAGE>
EXHIBIT B
PRELIMINARY PLANS
-----------------
1. Preliminary Plans. LANDLORD and TENANT have approved the preliminary
plans and outline specifications (Preliminary Plans) for the construction of the
TENANT Improvements to the Premises, said Preliminary Plans are attached to this
Lease as Exhibit E1 and by this reference incorporated herein.
2. Final Plans. At LANDLORD'S cost, LANDLORD shall prepare final plans
and specifications (Final Plans) substantially in conformity with the
Preliminary Plans. LANDLORD shall complete preparation of the Final Plans within
4 weeks or sooner from the date TENANT approves the Preliminary Plans. Both
parties shall initial the Final Plans and attach a copy of the Final Plans to
this Lease as Exhibit E2. TENANT shall not object to any logical development or
refinement of the Preliminary Plans or any changes necessitated by applicable
law. Final Plans shall be subject to approval by LANDLORD and TENANT, which
approval shall not be unreasonably withheld.
3. Construction of Premises. LANDLORD shall construct the TENANT
Improvements to the Premises substantially in accordance with the Final Plans.
All construction work shall be performed by LANDLORD'S contractor. LANDLORD
shall use its diligent best efforts to complete the TENANT Improvements and the
Premises shall be Ready for Occupancy, as defined in Subsection 4.1 below, by
the Projected Commencement Date, provided, however, that the Projected
Commencement Date shall be extended for a period equal to the period of any
delay encountered by LANDLORD affecting the work of construction because of
fire, earthquake, inclement weather, acts of God, acts of the public enemy,
riot, insurrection, governmental regulation of the sales of materials or
supplies or the transportation thereof, strikes or boycotts, shortages of
material or labor, TENANT'S early entry to the Premises or, changes in the Final
Plans as provided for in the Lease, or any causes beyond the control of
LANDLORD. Construction shall be in compliance with building safety and fire
codes and the Americans With Disabilities Act at the time building permits are
issued. LANDLORD'S cost for improvement of TENANT'S Premises shall be limited to
the TENANT Matrix in Exhibit E. Any costs in excess of Matrix allowance shall be
paid for by TENANT to LANDLORD prior to construction of TENANT improvements.
4. Failure to Complete Construction.
4.1 LANDLORD Remedies. If, despite LANDLORD'S diligent best
efforts to complete the TENANT Improvements, the Premises are not Ready for
Occupancy within 45 days following the Projected Commencement Date, the sole
remedy of LANDLORD shall be to terminate this Lease by delivering to TENANT
written notice within ten (10) days after the 45 day period following the
Projected Commencement Date. Upon termination of this Lease pursuant to this
Subsection 4.1, LANDLORD shall have no further liability for any damage, costs
or claims which arise in connection with the Premises and this Lease, other than
daily liquidated damages which may arise pursuant to paragraph 4.2.
4.2. TENANT Remedies. If the Premises are not Ready for
Occupancy within 45 days following the Projected Commencement Date, TENANT shall
have the option to terminate this Lease by delivering to LANDLORD written notice
within two (2) business days after the expiration of the 45 day period following
the Projected Commencement Date, or TENANT may elect to continue the Lease in
effect and LANDLORD shall pay to TENANT daily liquidated damages for every day
the Premises are not Ready for Occupancy after said 45 day period has expired,
up to a maximum of thirty (30) days. Daily liquidated damages shall be
calculated by dividing the Basic Monthly Rent by 30. If the Premises are not
<PAGE>
Ready for Occupancy within 75 days from the Projected Commencement Date, the
sole remaining remedy of TENANT shall be to terminate this Lease by delivering
to LANDLORD written notice within ten (10) days after the 75 day period
following the Projected Commencement Date. Upon termination of this Lease
pursuant to this Subsection 4.2, LANDLORD shall refund to TENANT any
construction deposits made by TENANT and the Security Deposit and TENANT shall
have no further liability for any damage, costs or claims which arise in
connection with the Premises and this Lease.
5. Completion and Delivery. The Premises shall be ready for occupancy
(Ready for Occupancy) when construction is substantially completed in accordance
with the Final Plans, as reasonably determined by LANDLORD and as accepted by
TENANT, which acceptance shall not be unreasonably withheld. LANDLORD shall
prepare, certify by LANDLORD'S signature and deliver in duplicate to TENANT a
written statement certifying (i) that the Premises are substantially completed
in accordance with the Final Plans and any properly authorized changes or
amendments thereof; and (ii) the date of such completion. LANDLORD shall
diligently complete any items of work not completed when the Premises are Ready
for Occupancy.
6. Early Entry. With the prior written consent of LANDLORD, TENANT may,
prior to the Actual Commencement Date as defined below, at TENANT'S sole risk,
enter the Premises and install trade fixtures and equipment in the Premises;
provided, however, that (i) TENANT'S early entry shall not interfere with
construction of the Premises or cause labor difficulties, (ii) TENANT shall by
reason of entry therein indemnify and hold harmless LANDLORD from any accident
or injury or any liability therefore that should befall TENANT or any agent or
subcontractor of TENANT. TENANT shall not use the Premises for storage of
inventory or otherwise do business on the Premises prior to the Actual
Commencement Date without the express prior written consent of LANDLORD.
<PAGE>
EXHIBIT C
EXTERIOR ELEVATIONS
[ Attach Exterior Elevations]
<PAGE>
EXHIBIT D
BUILDING FLOOR PLANS
[ Attach Building Floor Plans ]
<PAGE>
EXHIBIT E
TENANT IMPROVEMENTS
A. Common Areas.
1. Definition. Common areas are defined to include entry ways,
general access hallways, stairways, elevators, rest rooms,
parking areas, landscaping areas and sidewalks.
a. Restricted common areas. (See rules & regulations)
2. Construction.
a. Entry ways, hallways, elevators and bathrooms will be
finished by LANDLORD with materials and colors
substantially similar to those depicted in the material
and color board which TENANT has previously reviewed.
b. Stairways, parking, landscaping and sidewalks will be
completed by LANDLORD but not necessarily according to
the material and color board.
B. Net Usable Areas - TENANT Premises.
1. Standard Improvement - TENANT Matrix.
a. Definition. Standard improvement are defined to
include the following items which will include all
related materials, labor, supervision and overhead to
construct the improvements.
(1) TENANT Standard Improvement - Typical Suite
Walls - metal studs and drywall Paint - prime
and finish coat (per color board) Lighting
Fixture - parabolic 2 x 4 Carpet - 30 oz (per
color board) Ceiling - 2/2 grid Base - rubber
(per color board) Entry Doors - 3' x 8' oak
(stained per color board) Interior Doors - 3' x
6'8" oak veneer (stained per color board)
Hardware - bright brass HVAC service stubbed
out to each TENANT'S space Suspension system
for ceiling grid
<PAGE>
(2) TENANT Finish Improvements (per 1,000 sf).
<TABLE>
<CAPTION>
<S> <C>
Partitions - interior 73 lf/1,000 sf
Doors - Entry 1/3,000 sf
Lighting Fixture 10/1,000 sf
Electrical Outlets 8/1,000 sf
Electrical Light Switches 6/1,000 sf
Telephone Outlets 6/1,000 sf
HVAC Zone 12 zones per floor
</TABLE>
b. Construction. LANDLORD shall construct TENANT
Improvements per the Final Plans attached hereto as
Exhibit E2. LANDLORDS cost shall include all items as
referenced in the TENANT Matrix allowance. TENANTS cost
shall be for any improvements in excess of the TENANT
Matrix and shall be paid for by TENANT as provided for
in Optional Improvements below.
2. Optional Improvements.
a. Definition. Optional improvements are defined to be
improvements in excess of common area improvements plus
standard improvements to the net usable area.
b. Request. Optional improvements shall be requested by
TENANT in writing.
c. Construction. LANDLORD may, at LANDLORD'S option,
construct all optional improvements on the Premises.
d. Costs. The cost and expense for optional improvements
installed by LANDLORD shall be paid for by TENANT prior
to commencement of construction of said improvements
unless otherwise agreed to in writing by the parties.
Section 18.7 of the Lease shall apply to any amounts not
paid to LANDLORD in the time period provided for herein.
e. TENANT Improvements. TENANT improvements (optional)
in excess of agreed upon 60/40 improvements are equal to
1,418 per sq. ft. @ $18 per sq. ft., plus kitchen
cabinets and sink @ $3,245.
<PAGE>
EXHIBIT E1
PRELIMINARY TENANT SPACE PLAN
[ Attach Preliminary Space Plan When Complete ]
<PAGE>
EXHIBIT F
RULES AND REGULATIONS
The Rules and Regulations set forth in this Exhibit F shall be and hereby
are made a part of the Tenancy in the Building. Whenever the term TENANT is used
in these Rules and Regulations, it shall be deemed to include TENANT, its
employees or agents and any other persons permitted by TENANT to occupy or enter
the Premises. The following Rules and Regulations may from time to time be
modified by LANDLORD.
1. Obstruction. The sidewalks, entries, passages, corridors,
halls, lobbies, stairways, elevators and other common facilities of the
Building shall be controlled by LANDLORD and 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 any such item constitutes an obstruction, without the prior written
consent of LANDLORD. LANDLORD shall have the right to remove any obstruction
or any such item without notice to TENANT and at the expense of TENANT.
2. Ordinary Business Hours. Whenever used in these Regulations,
the ordinary business hours of the Building shall be from 7:00 a.m. to 6:00
p.m., Monday through Friday, and from 7:30 a.m. to 12:00 noon on Saturday,
excluding legal holidays. All persons entering or leaving the Building during
hours other than ordinary business hours, as defined above, may be required
to do so under such regulations as the LANDLORD may impose.
3. Deliveries. TENANT shall insure that all deliveries of
supplies to 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. LANDLORD may impose upon said deliveries restrictions
or conditions to insure that deliveries are effectuated without damage to the
building. If any person delivering supplies to TENANT damages any part of the
Building, TENANT shall pay to LANDLORD upon demand the amount required to
repair such damage.
4. 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 Building,
TENANT shall pay to LANDLORD upon demand the amount required to repair such
damage.
5. Freight Unloading & Service Area. All deliveries and freight
service required by TENANT shall be regulated to any designated loading and
unloading area on the north side of the Building. All deliveries shall enter
or leave the building through the northwest entrance to the Building.
Elevator pads are available in the management office, and should be used by
TENANT when moving large or bulky items.
6. Heavy Articles. No safe or article, the weight of which may,
in the opinion of LANDLORD, constitute a hazard of damage to the Building or
its equipment shall be moved into the Premises. Safes and other heavy
equipment, the weight of which will not constitute a hazard or damage the
Building or its equipment shall be moved into, from or about the Building
only during such hours and in such manner as shall be prescribed by LANDLORD
in its sole and absolute discretion.
7. Nuisance. TENANT shall not do or permit anything to be done in
the Premises, or bring or keep anything therein which would in any way
constitute a nuisance or waste, or obstruct or interfere with the rights of
other TENANTS of the Building, or in any way injure or annoy them, or
conflict with the laws relating to fire, or with any regulations of the fire
department, or with any insurance policy upon the Building or any part
thereof, or conflict with any of the rules or ordinances of the Department of
Health of the County and the City in which the Building is located.
<PAGE>
8. Building Security. LANDLORD may require identification of
persons entering and leaving the Building during the period outside of the
ordinary business hours of the Building and, for this purpose, may issue
building passes to TENANTS of the Building.
9. Pass Key. The janitor of the Building may at all times keep a
pass key to the Premises, and he and other agents of LANDLORD shall at all
times be allowed reasonable admittance to the Premises.
10. Locks and Keys for Premises. 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 keys to the Premises and to the toilet
rooms, if locked by LANDLORD, will be furnished by LANDLORD, and TENANT shall
not have any duplicate key made. At the termination of this tenancy, TENANT
shall promptly return to LANDLORD all keys for any locks, safes, cabinets and
vaults remaining in the Premises.
11. 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, 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. Upon leaving the Premises, TENANT
shall shut off all water faucets and major electrical apparatus located
within the Premises.
12. No Animals; Excessive Noise. No animals shall be allowed in
the offices, halls or corridors in the Building. No persons shall disturb the
Occupants of this Building or adjoining buildings of space by the use of any
phonograph, radio, tape player or musical instrument or by the making of loud
or improper noises.
13. Bicycles. Bicycles or 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.
14. Trash. TENANT shall not allow trash or debris to be placed
outside of the Building, in the landscape, parking, or other common areas,
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 shall
be placed in receptacles provided by LANDLORD for the Building or TENANT for
the Premises.
15. Windows. No window shades, blinds, screens or draperies will
be attached or detached by TENANT and no awnings shall be placed over the
windows without LANDLORD'S prior written consent.
16. 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, which
consent may be withheld in LANDLORD'S absolute discretion. The use of oil,
gas or inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous
shall not be brought into the Building.
17. 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 weekday ordinary business hours of
the Building unless LANDLORD shall have first consented in writing to such
work being done outside of such 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.
<PAGE>
18. No Defacing of Premises. Except as permitted by LANDLORD by
prior written consent, TENANT shall not mark upon, paint signs upon, 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.
19. Smoking. Smoking is not allowed in the building or within 25
feet of any entrance to or exit from the Building. Smoking is allowed on the
grounds in areas designated by LANDLORD. TENANTS and employees of TENANTS who
smoke in designated areas will properly dispose of butts, wrappers, ashes,
etc. in trash receptacles and not on the ground or in the landscaping.
LANDLORD reserves the right to revoke and/or restrict smoking privileges of
TENANT, or Employees of TENANTS, who abuse the smoking privileges or
improperly dispose of smoking related trash.
20. 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, nor install or permit the installation or use of any machine or
equipment for dispensing goods or foods or beverages 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 serve, distribute, or deliver food
and beverages within the building, or to use the public areas of the Building
for that purpose.
21. Restricted Common Areas. Mechanical and electrical rooms, and
janitor and phone service closets on each floor of the building are
restricted common areas. Theses areas are necessary for the full service
operation of the building but are restricted either because of the hazards
they pose to unqualified personnel or to the operating equipment of the
building or other tenants. Access to these areas will be regulated and
supervised at the discretion of the LANDLORD.
22. Captions. The caption for each of these Rules and Regulations
is added as a matter of convenience only and shall be considered of no effect
in the construction of any provision or provisions of these Rules and
Regulations.
<PAGE>
EXHIBIT G
CORPORATE GUARANTEE
In consideration of the execution of said Lease by LANDLORD, for the
premises located at 10542 South Jordan Gateway, the undersigned hereby
unconditionally and irrevocably guarantees the full performance of each and all
of the terms, covenants and conditions of said Lease to be kept and performed by
said SUNDOG TECHNOLOGIES, INC. (TENANT), including the payment of all rentals
and other charges to accrue. The undersigned further agrees as follows:
1. That this covenant and agreement on its part shall continue in
favor of the LANDLORD notwithstanding any extension, modification or
alteration of said Lease entered into by and between LANDLORD and TENANT, or
their successors and assigns, or notwithstanding any assignment of said
Lease, with or without the consent of LANDLORD, and no extension,
modification, alteration or assignment of the above referred to Lease shall
in any manner release or discharge the undersigned and the undersigned hereby
consents to same.
2. This Guarantee will continue unchanged by any bankruptcy,
reorganization or insolvency of the TENANT or any successor or assignee
thereof or by any disaffirmance or abandonment by a trustee of TENANT.
3. LANDLORD, may, without notice, assign this Guaranty in whole
or in part and no assignment or transfer of the Lease shall operate to
extinguish or diminish the liability of the undersigned.
4. The liability of the undersigned under this Guaranty shall be
primary, and in any right of action which shall accrue to LANDLORD under the
Lease, the LANDLORD may at its option, proceed against the undersigned
without having commenced any action, or having obtained any judgment against
the TENANT.
5. To pay LANDLORD'S reasonably attorneys` fees and all costs and
other expenses incurred in any collection or attempted collection or in any
negotiations relative to the obligations hereby guaranteed or enforcing this
Guarantee against the undersigned, individually and jointly.
6. The undersigned hereby waives notice of any demand by the
LANDLORD, as well as any notice of default in the payment of rent or any
other amount contained or reserved in the Lease.
If Guarantor shall be a Corporation, the authorized officers must sign on
behalf of the corporation and indicate the capacity in which they are signing.
This Guaranty must be executed by the president or vice-president and the
secretary or assistant secretary unless the bylaws or a resolution of the board
of directors shall otherwise provide, in which event the bylaws or a certified
copy of the resolution, as the case may be must be attached to this Lease.
The use of the singular herein shall include the plural. The obligation of
two (2) or more parties shall be joint and several. The terms and provisions of
this Guaranty shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties herein named.
SUNDOG TECHNOLOGIES, INC.
By:
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By:
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