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Exhibit 10.7
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), dated as of the date set forth
below, is between XXXXXXX II. LLC, a Utah limited liability company
("Landlord"), and TOMAX TECHNOLOGIES, INC., a Utah corporation ("Tenant").
I. PREMISES AND TERMS AND PROVISIONS
This Lease demises to Tenant the land described in Attachment I (the
"Land") and the other property included in the Premises as defined in Section
1.01 of Attachment II and is made upon the terms and provisions set forth in
this Lease and Attachment II, all of which Landlord and Tenant respectively
agree to perform or comply with.
II. CERTAIN INFORMATION AND DEFINED TERMS
The following information and defined terms are made part of this Lease:
Date of this Lease: December 15, 1999
Commencement Date: October 1, 2000
Expiration Date: September 30, 2010
Renewals: One 5 year and two 2 year consecutive renewal
options, exercised by notice given to Landlord at
least one hundred twenty (120) days before the end
of the then-current term
Rental Factor: Eleven percent (11%) (See Section 15.03)
Actual Cash Value: $10,300,000 (See Section 5.02 and 1.01(b))
Basic Rent: For the twenty four month period beginning
with the Commencement Date, Basic Rent shall be the
monthly amount of $69,009, and thereafter until the
Expiration Date shall be the monthly amount of
$107,648.
After Hours Parking Landlord shall be permitted to charge
all persons, other than non-Tenant employees and
invitees, for use of all parking areas on the
Premises during the hours between 6:00 p.m. and
6:00 a.m.
Development Costs Landlord has budgeted and shall spend not
more than $5,160,412.57 to alter and improve the
Premises prior to the
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Commencement Date. In the event that improvement
costs to the Premises exceed such amount, such
shall be done at Tenant's expense and shall become
Tenant Alterations or Tenant Equipment within the
meaning of Section 13.01 of Attachment II.
Renewal Rent:
The Rent shall be subject to adjustment: (i) at
the beginning of the fifth anniversary of the
Commencement Date; and (ii) at the beginning of
any renewal term (the "Adjustment Date"), as
follows:
The base for computing the adjustment shall be the
Consumer Price Index for All Urban Consumers
(1982-84 = 100) U.S. City Average, All Items,
published by the United States Department of Labor,
Bureau of Labor Statistics (the "Index"), which was
last published on the date of the commencement of
the primary term of this Lease (the "Beginning
Index"). If the Index last published on the
Adjustment Date (the "Extension Index") has
increased over the Beginning Index, the monthly
Rent for the renewal term and until the next rental
Adjustment Date shall be set by multiplying the
Basic Rent by a fraction, the numerator of which is
the Extension Index and the denominator of which is
the Beginning Index. PROVIDED, HOWEVER, in no event
shall the rent be decreased for any renewal term.
In the event the Index shall hereafter be converted
to a different standard reference base or otherwise
revised, the determination of any increase in the
Index shall be made with the use of such conversion
factor, formula or table for converting the Index
as may be published by the Bureau of Labor
Statistics. In the event the Bureau of Labor
Statistics ceases publication of the Index at any
time during the term of this Lease but substitutes
and commences publication of an index designed and
designated to serve the same basic purposes as the
Index, Lessor and Lessee shall use such substituted
index as the Index hereunder.
The place for the giving of notices, consents, requests, demands and other
communications under Article 12:
(a) If to Landlord: Xxxxxxx II. LLC
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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(b) If to Tenant: Tomax technologies, inc.
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Director of Operations and Finance
Facsimile: (000) 000-0000
When used in this Lease, unless the context otherwise requires: (i) each
of the terms "Improvements" and "Premises" shall be deemed to be followed by the
words "or any part thereof"; (ii) the terms "include," "includes," and
"including" shall be deemed to be followed by the words "without limitation";
(iii) the words "herein", "hereof", "hereinafter" and "hereunder" and other
words of similar import refer to this Lease as a whole and not to any particular
Article, Section, Subsection or other subdivision; (iv) any reference to any
agreement or other instrument is to it as amended, supplemented, or replaced,
from time to time; and any reference to a law, statute, regulation or rule is to
it as amended, supplemented, or replaced or as enacted or promulgated after the
date of this Lease; (v) the headings to the Articles have been inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Lease; and (vi) all terms and provisions
of this Lease shall be deemed and construed to be "covenants" and "conditions"
to be performed or complied with by the respective parties.
III. INTEGRATION OF DOCUMENTS
This Lease consists of this Lease and Attachments I and II, all of which
shall constitute a single agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the Date of this Lease set forth above.
LANDLORD: TENANT:
XXXXXXX II. LLC TOMAX TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
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Its: Manager Its: Manager
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ATTACHMENT I.
THE LAND
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That certain real property situated in Salt Lake City, Salt Lake County,
State of Utah, described as follows:
PARCEL 1:
COMMENCING 110 feet North of the Southeast corner of Xxx 0, xx Xxxxx 00,
Xxxx "X", Xxxx Xxxx Xxxx Survey, and running thence North 140 feet;
thence West 165 feet; thence South 140 feet; and thence East 165 feet to
the place of beginning, same constituting the Southerly 140 feet of the
Northerly 220 feet of the length, by the full width, of said Lot 8.
PARCEL 2:
COMMENCING at the Southeast corner of Xxx 0, xx Xxxxx 00, Xxxx "X", Xxxx
Xxxx Xxxx Survey, and running thence North 110 feet; thence West 247 1/2
feet; thence South 110 feet; and thence East 247 1/2 feet to the place
of beginning, same constituting the Southerly 110 feet of the length by
the full width of said Lot 8, and the Southerly 110 of the length, by
the full width, of the East half of Lot 7 in the same Block, plat and
survey.
PARCEL 3:
BEGINNING 2 1/2 rods East of the Northwest corner of Xxx 0, Xxxxx 00,
Xxxx "X", Xxxx Xxxx Xxxx Survey, and running thence East 53 3/4 feet;
thence South 98 1/3 feet; thence West 53 3/4 feet; thence North 98 1/3
feet to the place of BEGINNING.
PARCEL 4:
BEGINNING at the Northeast corner of Xxx 0, Xxxxx 00, Xxxx "X", Xxxx
Xxxx Xxxx Survey, and running thence South 220 feet; thence West 82.5
feet; thence South 110 feet; thence West 82.5 feet; thence North 330
feet; thence East 165 feet to the point of BEGINNING.
LESS AND EXCEPTING therefrom the following described parcel:
A part of Xxx 0, Xxxxx 00, Xxxx "X", Xxxx Xxxx Xxxx Survey in
Salt Lake City, Salt Lake County, Utah:
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BEGINNING at the Northwest corner of said Lot 7 and running
thence North 89 degrees58'13" East 0.65 feet along the North line
of said Lot 7 and the South line of 000 Xxxxx Xxxxxx to a point
on the projection of the East edge of an existing brick building;
thence South 0 degrees11'13" East 44.9 feet along said East edge
of an existing building to the Southeast corner thereof; thence
South 89 degrees48'47" West 0.78 feet along South edge of said
existing building to a point on the West line of said Lot 7;
thence North 0 degrees01'07" West 44.9 feet along said West line
of Lot 7 to the point of BEGINNING.
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ATTACHMENT II.
TERMS AND PROVISIONS
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ARTICLE 1.
PREMISES AND LEASE TERM
1.01. Upon and subject to the terms and provisions hereinafter set forth,
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
following property (collectively, the "Premises") for the term (the "Lease
Term") hereinafter provided:
(a) the Land; and
(b) all buildings, structures and improvements now or hereafter
erected on such Land either prior to the Commencement Date or during the Lease
Term, and all fixtures, equipment and other property (other than Tenant
Equipment, as hereinafter defined) now or hereafter installed therein either
prior to the Commencement Date or during the Lease Term (collectively, the
"Improvements").
SUBJECT, HOWEVER, to zoning ordinances and regulations, covenants, restrictions,
easements, liens, charges, encumbrances, title conditions and exceptions
affecting the Premises as of the Commencement Date.
1.02. (a) Except as hereinafter provided, the Lease Term shall commence
on the Commencement Date and shall expire at midnight on the Expiration Date.
(b) If possession of the Premises is not available to Tenant on the
Commencement Date, either because a prior tenant is holding over or construction
or alteration of the Improvements has not yet been substantially completed, or
for any reason not within the reasonable control of Landlord, then Landlord
shall give notice to Tenant when the Premises is ready for occupancy by Tenant
and specifying the Commencement Date (which shall not be less than ten (10) days
after giving of such notice) and the Expiration Date. Landlord shall have no
liability on account of any such change in the Commencement Date, and the
validity and binding effect of this Lease shall be unaffected thereby.
(c) If Tenant shall use or occupy the Premises prior to the
Commencement Date, such use or occupancy shall be deemed to be under all the
terms and provisions of this Lease, including the obligation to pay Basic Rent
and Additional Rent as hereinafter provided.
ARTICLE 2.
BASIC RENT AND ADDITIONAL RENT
2.01. Tenant shall pay to Landlord Basic Rent over and above the other
and additional payments to be made by Tenant.
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2.02. Basic Rent shall be absolutely net to Landlord so that this Lease
shall yield net to Landlord the Basic Rent throughout the Lease Term.
2.03. Tenant shall pay, as additional rent, all other amounts,
liabilities, obligations and other payments which Tenant herein assumes or
agrees to pay (collectively, "Additional Rent"), and, in the event of any
failure on the part of Tenant to pay any item of Additional Rent, Landlord shall
have all rights, powers and remedies provided for herein or by law in the case
of nonpayment of Basic Rent.
2.04. Basic Rent and Additional Rent for the first month or partial month
(calculated on the basis of the actual number of days of such partial month) of
the Lease Term shall be paid to Landlord prior to the Commencement Date, and
thereafter, payment shall be made on the first day of each month, without notice
or demand, at the address specified by Landlord.
2.05. All payments of Basic Rent and Additional Rent shall be made without
notice, demand, counterclaim, setoff, deduction or defense, and without
abatement, suspension, deferment, diminution or reduction for any reason
whatsoever, except as hereinafter otherwise specifically provided. Should any
payment of Basic Rent or Additional Rent be received by Landlord subsequent to
the 10th day of the month for which it is due, then Tenant shall pay to Landlord
as Additional Rent, at that time, a late charge equal to two percent (2%) of the
amount due under this Section.
2.06. On the Expiration Date or earlier termination of this Lease, Tenant
shall remove its goods and effects and peacefully yield up the Premises to
Landlord in the order and condition required by the provisions of Sections 10.01
and 10.03. Tenant shall not be obligated to return the Premises with a fair
market value equivalent to the fair market value of the Premises at the
Commencement Date.
2.07. If the Lease Term shall terminate prior to the Expiration Date
(except pursuant to Section 6.01), then Basic Rent and Additional Rent paid with
respect to periods occurring after the termination of the Lease Term shall be
refunded to Tenant, subject, however, to Landlord's right of setoff with respect
to any uncured default by Tenant in the performance of its obligations under
this Lease.
ARTICLE 3.
TAXES, ASSESSMENTS AND UTILITY CHARGES
3.01. For the purpose of this Lease, "Applicable Taxes" shall mean:
(a) ad valorem real and personal property taxes assessed and levied
against the Premises and Tenant Equipment (as hereinafter defined);
(b) all taxes, assessments, levies and charges which are now or
hereafter may be assessed, levied or imposed in addition to, in replacement of
or in substitution for ad valorem real or personal property taxes, including
such taxes, levies and charges which, in whole or in
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part, are measured or calculated by or based upon Basic Rent and/or Additional
Rent, including, without limitation, gross income, gross receipts, license,
occupation, privilege, value added, documentary stamp, transfer, excise, sales
and use taxes (but excluding special assessments and any tax on or measured by
the net income of Landlord); and
(c) all taxes, assessments, levies and charges including gross
income, gross receipts, license, occupation, privilege, value added, documentary
stamp, transfer, excise, sales and use taxes (but excluding special assessments
and any tax on or measured by the net income of Landlord) and all license,
permit and authorization fees now or hereafter levied or imposed upon, assessed
against, attributable to or becoming a lien upon the Premises, the appurtenances
thereto, the streets or sidewalks adjacent thereto, this Lease, the leasehold
estate created hereby, the instrument creating the same, the occupancy or use of
the premises, the business conducted thereon, Basic Rent or Additional Rent
payable under this Lease.
3.02. Landlord shall give notice designating Tenant as addressee for
payment of taxes and shall promptly forward to Tenant any tax bills received by
Landlord. Tenant shall remit to the appropriate collecting authorities before
the delinquency date or dates all Applicable Taxes required to be borne by
Tenant hereunder. In addition, Tenant shall remit to the appropriate collecting
authorities, before the delinquency date or dates, all Applicable Taxes levied
or imposed upon or assessed against Tenant and which become due and payable
during, or which are levied, imposed or assessed for Tax Periods within the
Lease Term. Within ten (10) days after request therefor, Tenant shall furnish to
Landlord (or any person or entity specified by Landlord) receipts or any other
evidence of payment of the Applicable Taxes required to be remitted by Tenant.
3.03. Tenant shall bear (a) Applicable Taxes for all Tax Periods which
fall wholly within the Lease Term and (b) a portion of the Applicable Taxes for
Tax Periods in which the Commencement Date or Expiration Date occurs in the
proportion that the number of days the Lease Term exists within each such Tax
Period bears to the total number of days in such Tax Period. Tenant shall bear
Applicable Taxes regardless of whether such taxes are required to be remitted by
Landlord or Tenant. Nothing in this Article shall be deemed to affect any right
or remedy of Landlord under any provision of this Lease or any statute or rule
of law to pay any of such Applicable Taxes if not timely paid by Tenant and to
collect from Tenant as Additional Rent the amount so paid, together with
interest at the rate specified in Section 14.03. For the purposes of this Lease,
"Tax Period" shall mean the calendar year.
3.04. Special assessments which become due in full or any and all
installments of special assessments which become due during the Lease Term
(whether or not such assessments or the first of such installments become due
prior to the Commencement Date) shall be borne by Tenant as Additional Rent and
shall be remitted by Landlord. For purposes of this Section 3.05, payment in
installments over the longest possible term will be deemed to have been elected
in any instance where a determinable option so to pay existed or may exist,
notwithstanding that an assessment may have been or may hereafter be paid in
full, and Tenant shall bear the expense of only such installments as would have
been required to have been paid during the Lease Term had the installment option
been elected.
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3.05. (a) Tenant shall not have the right to contest the amount or
validity, in whole or in part, of Applicable Taxes or special assessments,
unless Tenant shall have obtained the prior consent of Landlord thereto, which
consent shall not be unreasonably withheld or delayed, whereupon:
(i) all contest proceedings shall be conducted in good faith
and with due diligence by Tenant and by counsel, if any, reasonably satisfactory
to Landlord, and copies of all pleadings and other related documents involved in
the contest shall be submitted to Landlord prior to the filing with any
administrative or judicial body;
(ii) the cost of any such contest shall be borne solely by
Tenant; and
(iii) any consent to such contest given by Landlord shall not
relieve Tenant of its obligation to make the payments to Landlord specified in
Sections 3.03 and 3.04.
(b) If Landlord elects, or has elected prior to the Commencement
Date, to contest the amount or validity, in whole or in part, of Applicable
Taxes or special assessments, the benefits and expenses resulting from any such
contest shall be shared and borne ratably by Landlord and Tenant in the same
manner in which Applicable Taxes are required to be borne by each pursuant to
this Article 3 in the absence of a contest; provided, however, Tenant shall not
be required to bear expenses in an amount which shall exceed the benefits in
reduced Applicable Taxes or special assessments accruing to Tenant as a result
of such contest. Where the contest involves or involved Applicable Taxes or
special assessments which are payable over a period longer than one year, such
benefits will be deemed to be the aggregate of the benefits for the portion of
the Lease Term in which such amounts are payable.
3.06. Personal property taxes on property located upon the Premises, and
used therewith, shall be borne and remitted by Tenant, and Tenant shall file any
and all personal property tax returns that may be required in relation thereto.
3.07. Tenant shall pay or cause to be paid all charges and taxes incurred
by Tenant for or on account of water, sewer, gas, electricity, light, heat and
power and for protective, telephone and other communication services and for all
other public or private utility services which may be used, rendered or supplied
upon, to or in connection with the Premises at any time during the Lease Term.
ARTICLE 4.
AUTHORIZED USE
4.01. Tenant shall use and occupy the Premises only for lawful purposes;
provided, however, that Tenant shall not use and occupy the Premises for any
sexually oriented business or for the storage of hazardous substances, hazardous
materials or hazardous wastes listed by the U.S. Environmental Protection Agency
or the State of Utah.
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4.02. If any law, ordinance, ruling, order or regulation (collectively,
"Prohibition") now exists or is hereinafter enacted, adopted or issued,
prohibiting or substantially impairing the use and occupancy of the Premises as
a software development business, then, at any time within one (1) year after the
Prohibition becomes effective, Tenant (unless the Prohibition results from any
act or omission by Tenant) or Landlord, by giving notice to the other, may
designate a date on which this Lease shall terminate (which date shall be no
later than sixty (60) days after the giving of such notice); and, thereupon, on
the date fixed in such notice, this Lease shall terminate as if such a date were
the Expiration Date.
ARTICLE 5.
INSURANCE
5.01. Tenant shall maintain general or public liability insurance against
claims for bodily injury, death or property damage occurring on, in or about the
Premises and the streets and alleys adjoining the Premises, affording protection
of at least $3,000,000 single limit per occurrence of loss or damage. If
underground storage tanks are present on the premises, such coverage shall
provide protection for underground storage tanks as required by the EPA
regulations published October 26, 1988 (and any subsequent provisions or
amendments thereto) and will include providing protection for taking corrective
action and for compensating third parties for bodily injury and property damage
caused by accidental releases arising from the operation of underground storage
tanks. All such insurance shall be effected at Tenant's expense under valid and
enforceable policies issued by insurers of recognized responsibility which are
qualified to do business in the State where the Premises are located and which
are approved by Landlord, which approval shall not be unreasonably withheld.
Such policies shall be for a minimum term of one year, shall name Landlord,
Tenant and all mortgagees as insureds, and shall, to the extent obtainable,
contain an agreement by the insurer that such policies shall not be canceled or
substantially modified without at least thirty (30) days' prior notice to
Landlord. Originals or duplicate originals of such policies shall be delivered
by Tenant to Landlord prior to the Commencement Date, and similar replacement
policies shall be delivered by Tenant to Landlord at least fifteen (15) days
prior to the expiration dates of expiring policies. If Tenant does not provide
such evidence to Landlord of valid liability insurance coverage, then Landlord,
at its option, may provide said coverage at any time and without notice to
Tenant. The cost thereof will be charged to Tenant as Additional Rent.
5.02. (a) Tenant shall obtain and maintain throughout the Lease Term, fire
and broad form extended coverage insurance covering the Premises (i) in an
amount not less than the greater of (A) 80% of the then actual cash value of the
Improvements, actual cash value being the cost of replacing the Improvements
exclusive of the cost of excavation, foundations and footings below the lowest
basement floor, less depreciation of the Improvements, (B) the amount which
would cause Tenant to be considered a co-insurer under such insurance, and (ii)
subject to such deductibles as Tenant shall determine in its reasonable
discretion from time to time.
(b) Actual cash value is deemed to be in the amount specified in
the Term Sheet, as of the Commencement Date, and shall at the written request of
Landlord be determined from time to time during the Lease Term (but not more
frequently than once in any 36 calendar
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months) by an appraiser, engineer, architect or contractor designated by Tenant,
approved in writing by Landlord and paid by Landlord.
5.03. Tenant, at its sole cost and expense, shall carry such other
insurance as customarily is maintained by operators of similar property, or as
reasonably may be required by Landlord from time to time for its protection
against any loss, hazard, or liability to which Landlord may be exposed.
5.04. Landlord hereby waives: (a) any obligation on the part of Tenant to
make repairs to the Premises necessitated or occasioned by fire or other
casualty that is an insured risk under such insurance policies and (b) any right
of recovery against Tenant for any loss occasioned by fire or other casualty
that is an insured risk under such policies. Tenant hereby waives any right of
recovery against Landlord, or anyone claiming under Landlord, for any loss
occasioned by fire or other casualty which is an insured risk under Tenant's
policies of fire and extended coverage insurance covering the property of
Tenant.
5.05. Notwithstanding any other provision of this Article, by Notice to
Landlord, Tenant may elect to self-insure any of the risks covered by this
Article, subject to prior credit approval by Landlord.
ARTICLE 6.
REMEDIES IN CASE OF DEFAULT
6.01. If any one or more of the following events shall occur and be
continuing:
(a) default shall be made by Tenant in the due and punctual
payment of Basic Rent as and when the same becomes due and
payable, and such default shall continue for a period of ten
(10) days after notice from Landlord to Tenant; or
(b) default shall be made by Tenant in the performance of any
other term or provision of this Lease and such default shall
continue for a period of twenty (20) days after notice by
Landlord to Tenant; or
(c) Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent or shall file any
petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under any present or future bankruptcy or other
applicable law, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of Tenant's property
or its leasehold interest in the Premises, or shall make any
general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as
they become due; or
(d) (i) a court of competent jurisdiction shall enter an order,
judgment or decree approving a petition filed against Tenant
seeking any reorganization,
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arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future
bankruptcy or other applicable law, or (ii) any trustee,
receiver or liquidator of Tenant or of all or any
substantial part of Tenant's property or its leasehold
interest in the Premises shall be appointed without the
consent or acquiescence of Tenant; and such order, judgment,
decree or appointment shall remain unvacated or unstayed for
an aggregate of sixty (60) days (whether or not
consecutive); or
(e) default shall be made by Tenant in the performance of any term
or provision of any lease or sublease (other than this Lease)
covering any premises used for software development business
purposes in conjunction with the Premises;
then, in any such event, Landlord, at its option, by notice to Tenant, may
designate a date not less than thirty (30) days from the giving of such notice
on which this Lease shall terminate in all respects as if such a date were the
Expiration Date.
6.02. Upon any such termination, Tenant shall quit and peacefully
surrender its interest in the Premises to Landlord, and Landlord, upon and at
any time after such termination, without further notice, may reenter and
repossess the Premises, either by force, summary proceedings or otherwise,
without being subject to any prosecution therefor.
6.03. At any time and from time to time after such termination of this
Lease, Landlord may relet the Premises or any part thereof for such term or
terms and on such conditions as Landlord in its discretion may determine, and
Landlord may collect and receive the rents therefor. Landlord in no way shall be
responsible or liable for any failure to relet the Premises or any part thereof
or for any rent upon any such reletting.
6.04. No such termination of this Lease shall relieve Tenant of its
liabilities and obligations under this Lease, and such liabilities and
obligations shall survive any such termination. In the event of any such
termination, whether or not the Premises or any part thereof shall have been
relet, Tenant shall pay Basic Rent and Additional Rent required to be paid under
this Lease by Tenant up to the time of such termination. Thereafter, until the
Expiration Date, Tenant shall pay to Landlord as liquidated damages for its
default (a) Basic Rent and Additional Rent which would have been payable by
Tenant under this Lease were it still in effect, less (b) the net proceeds of
reletting, if any, effected pursuant to Section 6.03, after deducting all
expenses of Landlord in connection with such reletting. Tenant shall pay such
liquidated damages on the days on which Basic Rent and Additional Rent would
have been payable under this Lease if it were still in effect.
6.05. At any time after a termination of this Lease pursuant to Section
6.01, whether or not Landlord shall have collected any liquidated damages
pursuant to Section 6.04, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord on demand, as and for liquidated final damages for
Tenant's default ("Final Damages") and in lieu of all liquidated damages
pursuant to Section 6.04 beyond the date of such demand, an amount equal to the
excess if any of (a) Basic Rent which would be payable under this Lease from (i)
the date to
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which Tenant shall have satisfied in full its obligations to pay liquidated
damages pursuant to Section 6.04, to (ii) the Expiration Date, over (b) the then
fair net rental value (net after Additional Rent) of the Premises for the same
period, both discounted to present worth at the rate of six percent (6%) per
annum, compounded annually. However, if any statute or rule of law shall limit
the amount of Final Damages to an amount less than the above agreed-upon amount,
Landlord shall be entitled to prove as Final Damages the maximum amount
allowable under such statute or rule of law.
6.06. In the event of any expiration or termination of the Lease Term,
Tenant, so far as permitted by law, hereby expressly waives (a) the service of
any notice of intention to reenter provided for by law, (b) the institution of
legal proceedings for reentry or repossession, and (c) any and all rights to
redeem, reenter or repossess the Premises, or to restore the operation of this
Lease. Tenant also waives any right to trial by jury in the event that, upon any
expiration or termination of the Lease Term, legal proceedings shall be
instituted by Landlord and further waives the benefits of any and all laws now
or hereafter in force exempting property from liability for rent or for debt.
The terms "enter", "reenter", "entry" or "reentry" as used in this Lease are not
restricted to their technical legal meaning.
ARTICLE 7.
ENVIRONMENTAL MATTERS
AND UNDERGROUND STORAGE TANKS
7.01. Landlord has obtained a Phase I environmental assessment (the
"Commencement Assessment") of the Premises and has delivered a copy to Tenant.
Tenant has reviewed the Commencement Assessment prior to entering into this
Lease.
7.02. If the Commencement Assessment (or any further environmental
assessment which Tenant may seek to obtain at its expense) shall disclose the
existence emanating from and/or upon, above or beneath the Premises of any
Hazardous Substance which (a) is required by law or regulation to be cleaned up,
removed or otherwise remediated, or (b) in Tenant's judgment should be
remediated (both of the foregoing collectively "Remediation") Landlord shall be
responsible for undertaking Remediation and for dealing with all governmental
bodies having jurisdiction over the Premises or the Remediation. Landlord shall
also be responsible for removal of any in-ground hoists existing on the Premises
(the "Hoists") and installation of any necessary oil-water separators and
above-ground storage tank secondary containment facilities, at its expense,
within 180 days after the Commencement Date, and for any Remediation necessary
in connection with such removal or the existence of the Hoists, all of which
shall constitute Remediation for the purposes of this Lease.
7.03. If the Commencement Assessment discloses the existence of any
underground storage tanks on the Premises, either Landlord or Tenant shall have
the right, at any time during the Lease Term, to remove any such underground
storage tanks and related pumps, piping and appurtenances (collectively,
"USTs"), and shall have the right, but, not the obligation to replace any UST
during or at the end of the Term. The Cost of Work for removing USTs, or other
Remediation associated therewith, and the cost of installing any replacement
USTs shall be borne
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by Landlord. However, if Landlord or Tenant receives reimbursement from an
insurer or governmental authority for any such costs, any such amount shall be
paid to Landlord.
7.04. Pursuant to the terms of Article 14, Landlord shall have the right,
upon notice to Tenant, to enter upon the Premises at any time during the Lease
Term to conduct an inspection or environmental assessment, and if such
inspection or assessment discloses the presence of any Hazardous Substance
emanating from and/or upon, above or beneath the Premises, to undertake the
Remediation of such Hazardous Substance even if such Remediation is the
obligation of Tenant under Article 10. In any case in which the Remediation of
such Hazardous Substance is the obligation of Tenant under Article 10, the Cost
of Work for such Remediation shall be borne by Tenant and shall be remitted to
Landlord as Additional Rent, upon Landlord incurring such expense, or portions
thereof, promptly upon demand. Tenant hereby releases Landlord from any damages
or claims of damages arising from any loss of business or from any increase in
operating costs of Tenant's business resulting directly or indirectly from any
work performed by Landlord or its agent upon, above or beneath the Premises
pursuant to the provisions of this Article 7, whether or not due to Landlord's
negligence.
7.05. For purposes of this Article 7 and of Article 10, the term "Cost of
Work" shall mean, when applied to environmental assessments, removal or
replacement of USTs or Remediation the following:
(i) the total contract price paid by Landlord to its
contractors to assess the Premises (including the cost
and expense of environmental consultants and
inspections, soil borings, tests and evaluations),
whether or not incurred in connection with the removal,
disposal or replacement of USTs or Remediation of the
Premises;
(ii) the total contract price paid by Landlord to its
contractors to close, remove, repair or dispose of USTs
(including the disposition of any materials in the USTs
and the restoration of soil, landscaping and paving in
the area of the USTs), or to install new USTs;
(iii) the total contract price paid by Landlord to its
contractors in connection with any Remediation of the
Premises (including the soil or ground water under the
Premises or the air above the Premises); and
(iv) the cost of any additions or changes under any contract
contemplated by subsections (i), (ii) and (iii) above,
including costs, expenses and charges for consultants
and inspections, soil borings, tests and evaluations,
site restoration, construction cost estimates, surveys,
attorneys', architects' and engineers' services,
licenses and permits, and premiums on fire, extended
coverage and other insurance, and uninsured casualty
losses, together with interest, compounded monthly, at
the rate of interest specified in Section 14.03 hereof.
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7.06. For the purpose of this Article 7 and of Article 10, the term
"Hazardous Substance" means any substance: (i) the presence of which requires
investigation or Remediation under any federal, state or local statute,
regulation, ordinance, order, action, policy or common law; or (ii) which is or
becomes defined as a "hazardous waste," "hazardous substance," pollutant or
contaminant under any federal, state or local statute, regulation, rule or
ordinance or amendments thereto, including the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9601, et seq.)
and/or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et
seq.); or (iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, the State where the Premises are
located, or any political subdivision thereof; or (iv) the presence of which on
the Premises causes or threatens to cause a nuisance upon the Premises to
adjacent properties or poses or threatens to pose a hazard to the health or
safety of persons on or about the Premises; or (v) without limitation which
contains gasoline, diesel fuel or other petroleum hydrocarbons.
ARTICLE 8.
DISCHARGE OF LIEN
8.01. In the event that the Premises or Tenant's leasehold interest
therein shall become subject to any vendor's, mechanic's, laborer's,
materialman's or other lien, encumbrance or charge based upon the furnishing of
materials or labor to or at the direction of Tenant, Tenant shall cause the
same, at Tenant's sole cost and expense, to be discharged within 30 days after
notice thereof to Tenant given by or on behalf of the lienor.
ARTICLE 9.
INDEMNIFICATION OF LANDLORD
9.01. Tenant shall indemnify and save harmless Landlord against and from
any and all liabilities, obligations, damages, penalties, claims, costs, charges
and expenses (including fees and expenses of attorneys, expert witnesses,
architects, engineers and other consultants) which may be imposed upon, incurred
by or asserted against Landlord by reason of any of the following occurring
during the Lease Term:
(a) any work or thing done by Tenant or any agent, contractor, employee,
licensee or invitee of Tenant in, on or about the Premises;
(b) any use, nonuse, possession, occupation, condition, operation,
maintenance or management of the Premises, or of any street, alley,
sidewalk, curb, passageway or space adjacent thereto, or any Tenant
Equipment;
(c) any negligent or tortious act of Tenant or any agent, contractor,
employee, licensee or invitee of Tenant;
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(d) any accident, injury or damage to any person or property occurring
in, on or about the Premises or any street, alley, sidewalk, curb,
passageway or space adjacent thereto; and
(e) any failure by Tenant to perform its obligations under this Lease.
In the event that any action or proceeding shall be brought against Landlord by
reason of any claim covered by this Section 9.01, Tenant, upon notice from
Landlord, at Tenant's sole cost and expense, shall resist or defend the same
with counsel approved by Landlord. To the extent of the proceeds received by
Landlord under any insurance furnished to Landlord by Tenant, Tenant's
obligation to indemnify and save harmless Landlord against the hazard which is
the subject of such insurance shall be deemed to be satisfied pro tanto.
9.02. Tenant is fully familiar with the physical condition of the Premises
and accepts it as is. Landlord has made no representations of whatever nature in
connection with the condition of the Premises, and Landlord shall not be liable
for any latent or patent defect therein.
9.03. Tenant shall indemnify Landlord against all costs and expenses,
including fees and expenses of attorneys, expert witnesses, architects,
engineers and other consultants, incurred by Landlord in
(i) obtaining possession of the Premises after default by Tenant;
or
(ii) obtaining possession of the Premises after Tenant's default in
surrendering possession on the Expiration Date or earlier
termination of the Lease Term; or
(iii) enforcing any obligation of Tenant under this Lease.
ARTICLE 10.
REPAIRS AND COMPLIANCE WITH LAWS
10.01. (a) Tenant shall keep and maintain the Premises (including the
roofs, walls, floors, ceilings and windows, the heating, air conditioning,
electrical, water, power and plumbing systems and equipment, the paved or
blacktopped areas and the adjacent alleys, sidewalks and curbs) and Tenant
Equipment (hereinafter defined) in the condition that existed on the
Commencement Date, reasonable wear and tear excepted (including periodic
painting, washing and general refurbishing) and free of accumulations of trash,
rubbish, snow and ice, and any Hazardous Substance or other contaminants. Except
as provided in Section 5.04, Tenant shall make all repairs, replacements,
alterations, additions and betterments, ordinary and extraordinary, structural
and non-structural, foreseen and unforeseen (including the roofs, walls, floors,
ceilings and windows, the heating, air conditioning, electrical, water, power
and plumbing systems and equipment, the paved or blacktopped areas and the
adjacent alleys, sidewalks and curbs) as may be necessary or desirable in order
to keep and maintain the Premises and Tenant Equipment in the condition that
existed on the Commencement Date, reasonable wear and tear excepted and in
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a condition suitable for the operation and conduct of Tenant's business. Tenant
shall clean up and remove any release of Hazardous Substance or other
contaminants on or under the Premises.
(b) Except for the initial construction or alteration of the
Improvements, if any, undertaken by Landlord and except as provided in Section
10.02, Landlord shall not be required to make any repair, replacement,
alteration, addition or betterment to or in the Premises, Tenant hereby assuming
the full and sole responsibility therefor and for the condition and maintenance
thereof during the Lease Term.
10.02. (a) Tenant shall give notice promptly to Landlord if the Premises
or any Tenant Equipment shall be damaged or destroyed by fire or other casualty,
specifying the date, nature and extent of such damage or destruction. Tenant
shall take whatever steps may be necessary to prevent further damage or
destruction to the Premises or Tenant Equipment.
(b) If prior to or during the Lease Term (i) the Improvements shall
be damaged or destroyed by fire or other casualty insured against by Tenant's
fire and extended coverage policy covering the Improvements, (ii) Landlord shall
not have elected to terminate this Lease as provided in Subsection 10.02(c), and
(iii) Tenant shall have paid to Landlord, upon demand, the amount of the
deductible under the insurance covering the Improvements, then Landlord shall
repair or restore the Improvements so damaged or destroyed. Landlord shall have
no obligation to repair or restore any Tenant Equipment. If the Premises shall
be rendered untenantable as a result of such damage or destruction, there shall
be a reduction in Basic Rent to the extent and for the period of such
untenantability, all as shall be determined by Landlord in its reasonable
discretion.
(c) If prior to or during the Lease Term the Improvements shall be
so damaged or destroyed by fire or other casualty that Landlord, in its
reasonable discretion, shall determine that substantial repairs or
reconstruction of the Improvements shall be required, then Landlord, within one
hundred twenty (120) days after such fire or other casualty, by notice given to
Tenant, may designate a date on which this Lease shall terminate (which date
shall be no later than sixty (60) days after the giving of such notice).
Thereupon, on the date fixed in such notice, this Lease shall terminate as if
such date were the Expiration Date.
(d) Other than as specifically provided in Subsection 10.02(b),
there shall be no abatement of Basic Rent or Additional Rent on account of any
casualty or destruction to or untenantability of the Premises, any statute or
rule of law to the contrary notwithstanding.
10.03. Tenant, at its sole cost and expense, shall comply with all laws,
rules and regulations (whether now existing or hereafter enacted or promulgated)
of governmental authorities relating to Tenant's use and occupancy of the
Premises, including all laws, rules, and regulations relating to the
environmental condition of the Premises or the use and presence of any Hazardous
Substances on the Premises and all orders, rules and regulations of the board of
fire underwriters or any other body hereafter exercising similar functions
relating to use and occupancy of the Premises. Tenant likewise shall comply with
the requirements of all governmental permits and certificates and all policies
of public liability, fire and other insurance
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at any time in force with respect to the Premises. Without limiting the
foregoing, Tenant shall promptly deliver to Landlord copies of any notice or
other correspondence sent by Tenant to any governmental body, or received by
Tenant from any governmental body, concerning the environmental conditions of
the Premises.
10.04. Tenant hereby assigns to Landlord all contractors' warranties and
guarantees received by Tenant in connection with the performance by Tenant of
its obligations under Section 10.01 or of any other work in or upon the
Premises. If a defect in workmanship or materials is discovered by Tenant which
is covered by a contractor's warranty or guaranty received by Landlord, and
Landlord refuses to enforce such warranty or guaranty after demand by Tenant,
then Landlord agrees to assign to Tenant, upon demand by Tenant, all rights of
Landlord to enforce such warranty or guaranty to the extent that the same
relates to the defect in question.
ARTICLE 11.
ASSIGNMENT OR SUBLETTING
11.01. Tenant may not assign or pledge this lease or any interest herein
or sublease all or part of the Premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed.
11.02. During any assignment of this Lease or subleasing of the Premises,
Tenant shall remain liable for the payment of the Rents and for the performance
or observance of all of the covenants, conditions and undertakings of Tenant
hereunder, unless released therefrom in writing by Landlord.
ARTICLE 12.
NOTICES
12.01. All notices, consents, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
mailed by certified mail or by prepaid overnight delivery service providing
written evidence of delivery, addressed as specified in the Lease or to such
other address as either party may designate to the other by notice. Any notice
by certified mail shall be deemed to have been given on the date of
certification thereof. Any notice by prepaid overnight delivery service shall be
deemed to have been given on the day following the date same was delivered to
the overnight mail service.
ARTICLE 13.
ALTERATIONS AND TENANT EQUIPMENT
13.01. Tenant, at its expense, may make additions, alterations, and
improvements to the Premises (collectively, "Alterations") and may install
therein or thereon fixtures, machinery, equipment and advertising signs
(collectively, "Tenant Equipment"). No consent of the Landlord shall be
necessary for any of the foregoing, except that any structural alterations or
improvements shall be made only with the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. All Tenant
Equipment (except painting and wall coverings) shall remain Tenant's property,
and at Tenant's election, may be removed prior to termination of
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this Lease; provided, however, that Tenant shall repair any physical damage to
the Premises occasioned by removal thereof.
13.02. In no event shall the Rents be changed because of any additions,
improvements, alteration or betterment by Landlord or any other party (including
but not limited to Tenant or any subtenant) unless this Lease shall be amended
in writing and any adjustment in the Rents specifically stated in the amendment.
ARTICLE 14.
RIGHT OF ENTRY
14.01. Landlord and its authorized representatives, including, without
limitation, mortgagees and lessors of all underlying or ground leases, shall
have the right to enter the Premises at all times for the purpose of (a)
exercising any right, power or remedy reserved to Landlord in this Lease or (b)
after not less than 10 days' prior notice to Tenant, performing any obligation
of Tenant with respect to which Tenant is in default under this Lease.
14.02. Landlord and its authorized representatives, including mortgagees
and lessors of all underlying or ground leases, shall have the right to enter
the Premises at all reasonable times during normal business hours for the
purpose of (a) examining or inspecting the Premises or (b) showing the Premises
to prospective purchasers, mortgagees or tenants.
14.03. All payments made by Landlord and all costs and expenses (including
fees and expenses of attorneys, expert witnesses, architects, engineers and
other consultants) incurred by Landlord in connection with the exercise of its
rights under Section 14.01, together with interest at the rate of twelve percent
(12%) per annum (or if twelve percent (12%) per annum shall be in excess of the
highest rate of interest permitted by law to be collected from Tenant, then at
such highest rate permitted by law), from the respective dates of the making of
such payments or the incurring of such costs and expenses, shall constitute
Additional Rent and shall be payable to Landlord by Tenant on demand.
14.04. The exercise of any right reserved to Landlord or its authorized
representatives in Sections 14.01 or 14.02 shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of Basic Rent or Additional Rent or relieve Tenant from any of its
obligations under this Lease or impose any liability on Landlord or its
authorized representatives by reason of inconvenience or annoyance to Tenant or
injury to or interruption of Tenant's business or otherwise.
14.05. In any case in which Landlord enters the Premises for any of the
purposes set forth in this Article 14, Tenant shall not interfere, directly or
in any manner or form, with the conduct of any work being performed by or for
Landlord. Tenant hereby releases Landlord from any damages or claims of damages
arising from any loss of business or from any increase in operating costs of
Tenant's business, resulting directly or indirectly from the conduct of any such
work, whether or not due to Landlord's negligence.
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ARTICLE 15.
CONDEMNATION
15.01. The term "Taking" shall mean a taking prior to or during the Lease
Term (but, in any event, subsequent to the execution of this Lease) of the
Premises as the result of condemnation or by agreement between Landlord and the
condemning authority. The term "Date of Taking" shall mean the date on which
title is vested in the condemning authority.
15.02. In the event of a Taking of the whole of the Premises, this Lease
shall terminate on the Date of Taking as if such date were the Expiration Date.
15.03. In the event of a Taking of less than all the Improvements, Tenant,
within one hundred twenty (120) days after the Date of Taking, may terminate
this Lease on a date as shall be specified in a notice given to Landlord by
Tenant, which date shall be not later than sixty (60) days after the giving of
such notice. If Tenant shall not give notice of termination of this Lease within
one hundred twenty (120) days after the Date of Taking, then this Lease shall
remain in full force and effect with respect to the part of the Premises not the
subject of the Taking. If Landlord shall receive any award or other compensation
(collectively, "Award") on account of the Taking, then: (a) any portion of such
award attributable to the value of Alterations and Tenant Equipment shall be
paid to Tenant; and (b) Basic Rent payable from and after the Date of Taking
shall be reduced by an amount equal to one-twelfth of the Rental Factor
(expressed as a percentage) multiplied by the lesser of: (i) the Award received
by Landlord as a result of the Taking, less all amounts to be paid to Tenant
under clause (a) and costs and expenses incurred by Landlord in collecting the
Award or (ii) the cost of that part of the Premises so taken, as determined by
Landlord on the basis of Landlord's property accounts, less, in the case of
either (i) or (ii), all costs and expenses incurred by Landlord in connection
with any rebuilding, alteration, or restoration of the Premises undertaken by
Landlord as a result of the Taking.
15.04. Except as provided in Section 15.03, Landlord shall be entitled to
receive the entire Award for any Taking, and to such extent Tenant hereby
assigns to Landlord all its right, title and interest in and to such Award.
However, Tenant shall be entitled to make a claim against the condemning
authority and shall be entitled to receive compensation for the value of any
Tenant's moving expenses which may be compensable as a result of the Taking.
Landlord shall have the right to settle any threatened or filed condemnation
proceeding.
ARTICLE 16.
RIGHTS OF OTHER PARTIES
In the event that the Premises or any portion thereof is subject to a
mortgage whose lien would otherwise be superior to Tenant's interest under this
Lease, then this Lease shall not become effective until such time as Landlord,
Tenant and all of the parties holding any such mortgage (collectively, the
"Lender", whether one or more) have executed a non-disturbance agreement in form
reasonably acceptable to Landlord and Tenant which provides, inter alia, that if
the Lender forecloses such mortgage or otherwise acquires title to the Premises
or any portion thereof: (i) the Lender will not join Tenant as a party to such
foreclosure or seek to terminate this
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Lease or otherwise affect Tenant's occupancy of the Premises under this Lease so
long as Tenant is in compliance with its obligations under this Lease; and (ii)
Tenant shall recognize, and attorn to, the Lender or other party which acquires
title to the Premises by such foreclosure or transfer. In the event that
Landlord shall grant a mortgage covering any portion of the Premises which would
otherwise be inferior to Tenant's interest under this Lease, Tenant, Landlord
and Lender shall enter into an agreement which contains the provisions set out
in the previous sentence and which further provides that Tenant shall
subordinate its interest under this Lease to the Lender's interest under its
mortgage.
ARTICLE 17.
MISCELLANEOUS
17.01. No failure by Landlord or Tenant to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease or to
exercise any right, power or remedy consequent upon a breach thereof, and no
acceptance of full or partial rent by Landlord during the continuance of any
such breach by Tenant shall constitute a waiver of any such breach, covenant,
agreement, term or condition. No waiver of any breach, covenant, agreement, term
or condition shall affect or alter this Lease, but each and every covenant,
agreement, term and condition of this Lease otherwise shall continue in full
force and effect.
17.02. The rights and obligations contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and, except as otherwise provided
herein, their respective personal representatives, successors and assigns.
However, the obligations of Landlord under this Lease shall no longer be binding
upon Landlord after any sale, assignment, or transfer by Landlord (or upon any
subsequent landlord after the sale, assignment, or transfer by any such
subsequent landlord) of its interest in the Premises. In the event of any such
sale, assignment or transfer, such obligations shall thereafter be binding upon
the grantee, assignee, or other transferee of such interest, and any such
grantee, assignee, or transferee, by accepting such interest, shall be deemed to
have assumed such obligations. A Lease of the entire Premises, other than for
occupancy thereof, shall be deemed a transfer within the meaning of this
Section.
17.03. Each right, power and remedy of Landlord provided for in this Lease
shall be cumulative and concurrent with every other right, power or remedy
provided for in this Lease or now or hereafter 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 such rights, powers or remedies shall not
preclude the simultaneous or later exercise by Landlord of any or all other such
rights, powers or remedies. In the event of any breach or threatened breach by
Tenant of any of the provisions of this Lease, Landlord shall be entitled by
injunction to restrain such breach or threatened breach or to compel performance
of such provisions.
17.04. If any provision of this Lease or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and
enforceable to the extent permitted by law.
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17.05. This Lease shall be construed and enforced in accordance with the
laws of the State where the Premises are located.
17.06. This Lease contains the entire agreement between the parties, and
all prior negotiations and agreements are merged herein. Neither Landlord nor
Landlord's representatives have made any representations or warranties with
respect to the Premises, the Improvements, or this Lease, except as expressly
set forth herein, and no rights or remedies are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth herein.
17.07. A Short Form or Memorandum of Lease shall be recorded promptly upon
execution of this Lease.
17.08. The relationship between the parties hereto is solely that of
landlord and tenant and nothing contained herein shall constitute or be
construed as establishing any other relationship between the parties, including
the relationship of principal and agent, employer and employee, or parties
engaged in a partnership or joint venture. Without limiting the foregoing, it is
specifically understood that neither party is the agent of the other and neither
is in any way empowered to bind the other or to use the name of the other in
connection with the construction, maintenance or operation of the Premises,
except as otherwise specifically provided herein.
17.09. The indemnification provisions provided for in this Lease shall
survive the expiration or termination of this Lease, whether by lapse of time or
otherwise, for a period of one (1) year only.
17.10. The prevailing party in any action brought to enforce or interpret
this Lease shall be entitled to recover its attorney fees and costs (including
expert witness fees) incurred in connection with such action.
END OF ATTACHMENT II
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FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement ("First Amendment") is made and
entered into this day of August, 2000, by and between XXXXXXX II, LLC, a Utah
limited liability company ("Landlord") and TOMAX TECHNOLOGIES INC., a Utah
corporation ("Tenant").
WITNESSETH:
The parties entered into a Lease Agreement effective December 15, 1999
and desire to amend certain provisions therein as set forth hereinafter.
NOW THEREFORE, in consideration of the mutual agreements and promises
set forth hereinafter, the parties hereto hereby agree as follows:
1. The provision regarding the Commencement Date shall be amended to
read in its entirety as follows:
December 1, 2000.
2. The provision regarding Basic Rent shall be amended to read in its
entirety as follows:
For the twenty-four month period beginning with the
Commencement Date, Basic Rent shall be the monthly
amount of $84,543.25, and thereafter until the
Expiration Date shall be the monthly amount of
$107,648.00.
Capitalized terms used in this First Amendment have the meanings ascribed to
them in the Lease Agreement. Except as modified as set forth in this First
Amendment, the Lease Agreement shall continue in full force and effect.
DATED as of the date set forth above.
XXXXXXX II, LLC
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Title: Manager
-----------------------------------
TOMAX TECHNOLOGIES INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Title: CTO
-----------------------------------
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SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement ("Second Amendment") is made and
entered into this day of February, 2001 by and between Xxxxxxx II LLC, a Utah
limited liability company ("Landlord"), and Tomax Corporation, a Delaware
corporation, formerly known as Tomax technologies inc., a Utah corporation
("Tenant").
RECITALS:
WHEREAS, Landlord and Tenant entered into a Lease Agreement effective
December 15, 1999 ("Lease"); and
WHEREAS, the parties entered into a First Amendment to Lease Agreement in
August 2000; and
WHEREAS, the parties desire to enter into this Second Amendment to further
amend certain provisions in the Lease, as such amendments are set forth
hereinafter; and
WHEREAS, Tomax technologies inc., a Utah corporation, has merged with and
into its wholly owned subsidiary Tomax Corporation, a Delaware corporation, with
the purpose and intent of effectuating a change of domicile from the State of
Utah to the State of Delaware, and all obligations of Tomax technologies inc.
under the Lease have, as a result of such merger, been assumed by Tomax
Corporation, which shall for all purposes be substituted as the Tenant under the
Lease Agreement as amended; and
WHEREAS, the Land and Premises leased pursuant to the Lease constitute an
existing structure formerly known as the "Sweet's Candy Building," which
building was purchased by Landlord in December 1999 and has been remodeled,
reconstructed and refurbished during calendar year 2000 for occupation by Tenant
commencing February 8, 2001; and
WHEREAS, the initial Lease was entered into between the parties prior to
the commencement of reconstruction and was based on certain assumptions and
understandings relative to the amount of finished space available, as well as
the type of such finished space, with an anticipated move-in date of October 1,
2000; and
WHEREAS, each of the basement, main, second, third and fourth floors is
comprised of 19,143 square feet, and a mezzanine between the main and second
floors is comprised of 9,551 square feet; and
WHEREAS, the initial Lease contemplated that Tomax would occupy the second,
third and fourth floors, comprising in the aggregate 57,429 square feet, at the
office space rental rate of $13.50 per square foot, together with 10,563 square
feet of storage space in the basement at a rental rate of $5.00 per square foot,
for a total initial Basic Rent monthly payment of $69,009.00. Such rental rate
was intended to be effective from October 2000 through October 2002, at which
time Tomax was obligated to additionally lease 8,580 square feet of basement
office space at a
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rate of $12.00 per square foot, 16,007 square feet on the main level at a rate
of $13.50 per square foot, storage/shipping/receiving space on the main floor of
3,136 square feet at a rate of $5.00 per square foot, and 9,551 square feet on
the mezzanine level at a rate of $13.50 per square foot, which, together with
the initial rent payments, required aggregate monthly lease payments of
$107,648.00 from October 2002 through the end of the lease; and
WHEREAS, as construction has neared completion, Landlord and Tenant have
mutually agreed to improve the finish for the storage areas and increase the
rate from $5.00 per square foot to $7.00 per square foot, to reduce the amount
of basement storage space, and to increase the amount of finished office space
in the basement to be currently rented by Tomax, with the parties acknowledging
that Landlord has incurred significant additional expenses to finish and outfit
such basement space; and
WHEREAS, the parties now desire and agree that Tenant shall, for the period
of February 8, 2001 through February 7, 2003, rent 73,794 square feet of office
space at the rate of $13.50 per square foot, together with 6,092 square feet of
storage space at the rate of $7.00 per square foot, for a total rent payable per
month of $86,572.00 during the initial period; and
WHEREAS, the parties further agree that Tenant shall lease and pay for, at
the earlier of occupancy or February 8, 2003, an additional 25,380 square feet
of finished office space at the rate of $13.50 per square foot on the basement,
main and mezzanine levels, thus bringing the aggregate monthly lease payment
commencing not later than February 8, 2003, to the amount of $115,124.00; and
WHEREAS, the Premises shall be ready for Tenant's occupancy on February 8,
2001; and
WHEREAS, regardless of the fact that Tenant does not or may not occupy the
entire Premises prior to February 8, 2003, the parties nevertheless intend that
Tenant shall control the entire Premises from the Commencement Date; and
WHEREAS, the parties desire to make other minor changes to the Lease as set
forth herein;
NOW THEREFORE, in consideration of the mutual agreements and promises set
forth hereinafter, the parties hereto hereby agree as follows:
1. Recitals. The Recitals set forth hereinabove are incorporated into
this Second Amendment by this reference.
2. Commencement Date. The provision in the Lease regarding the
Commencement Date shall be amended to read in its entirety as follows: February
8, 2001.
3. Basic Rent. The provision in the Lease regarding Basic Rent shall be
amended to read in its entirety as follows:
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For the twenty-four month period beginning with the Commencement Date
and ending February 7, 2003, Basic Rent shall be the monthly amount of
$86,572.00, and thereafter until the expiration date shall be the
monthly amount of $115,124.00; provided, however, that in the event
Tenant desires, prior to February 8, 2003, to lease all or any portion
of the additional 25,410 square feet which it becomes obligated to
lease on February 8, 2003, it shall increase its Basic Rent for the
additional leased space at the rate of $13.50 per square foot, and
such additional amount shall be added on to the Basic Rent as of
actual occupancy, if such is prior to February 8, 2003.
4. After Hours Parking. The provision regarding After Hours Parking shall
be amended to read in its entirety as follows:
Landlord shall be permitted to charge all persons, other than Tenant
employees and invitees, for use of all parking areas on the Premises
during the hours between 6:00 p.m. and 6:00 a.m.
Capitalized terms used in this Second Amendment have the meanings ascribed
to them in the Lease. Except as modified as set forth in this Second Amendment,
the Lease shall continue in full force and effect.
DATED as of the date set forth above.
XXXXXXX II LLC
By: /s/ XXXX XXXXXXX
--------------------------------------
Xxxx Xxxxxxx, Manager
TOMAX CORPORATION
By: /s/ XXXX XXXXXXX
--------------------------------------
Xxxx Xxxxxxx, Chief Financial Officer
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