LEASE BETWEEN
WordCruncher Internet Technologies
AND
SLT III, LLC, a Utah Limited Liability Company,
at 000 Xxxx 00000 Xxxxx Xxxxx X,
Xxxxxx, Xx. 00000
FOR SPACE XX
XXXX XXXXXX
XXXXXXXXXXXX XXXXX, XXXX. XX
405 East 00000 Xxxxx Xxxxx X
XXXXXX, XX 00000
April 1, 2000
-------------
DATE
TABLE OF CONTENTS
ARTICLE PAGE
1 DEFINITIONS AND ENUMERATION OF EXHIBITS.............................. 1
2 CONSTRUCTION AND ACCEPTANCE OF LEASED PREMISES....................... 2
3 RENT................................................................. 3
5 COMMON AREAS......................................................... 4
6 SECURITY DEPOSIT..................................................... 5
7 USE AND CARE OF LEASED PREMISES...................................... 6
8 TENANT'S COVENANT.................................................... 6
9 MAINTENANCE AND REPAIR OF LEASED PREMISES, ALTERATIONS
AND LANDLORDS RIGHT OF ACCESS........................................ 6
10 SIGNS, STORE FRONTS AND ROOF......................................... 8
11 UTILITIES............................................................ 8
12 INDEMNITY AND NON-LIABILITY.......................................... 8
13 INSURANCE............................................................ 9
14 DAMAGE BY CASUALTY................................................... 10
15 EMINENT DOMAIN....................................................... 10
16 ASSIGNMENT AND SUBLETTING............................................ 11
17 TAXES................................................................ 12
18 DEFAULTS AND REMEDIES................................................ 12
19 HOLDING OVER EXPIRATION OR TERMINATION............................... 15
20 SUBORDINATION........................................................ 15
21 MISCELLANEOUS........................................................ 16
LIST OF SCHEDULES
1 EXHIBIT "A" SITE PLAN
2 EXHIBIT "B" DESCRIPTION OF LANDLORDS WORK
3 EXHIBIT "C" TENANT'S WORK
4 EXHIBIT "D" SIGN CRITERIA
5 EXHIBIT "E" Deleted
6 EXHIBIT "F" Deleted
7 EXHIBIT "G" COMMENCEMENT DATE CERTIFICATE (Sign at Occupancy)
LEASE
This lease made, April 1, 2000, between
SLT, III, a Utah Limited Liability Company, at 405 East 00000 Xxxxx
Xxxxx X, Xxxxxx, Xxxx, 00000, referred to as ("Landlord"),
and
WordCruncher Internet Technologies, 000 X. 00000 Xx., Xxx. X, Xxxxxx,
Xx. 00000, referred to as ("Tenant")
RECITALS
In consideration of the obligation of Tenant to pay rent as herein provided and
in consideration of the other terms, covenants, and conditions hereof, Landlord
hereby leases to Tenant, and Tenant hereby takes from Landlord, the Leased
Premises, as defined in Section 1.1(b), for the term at the rental, and subject
to and upon all of the terms and conditions set forth below:
ARTICLE ONE
Definitions and Enumeration of Exhibits
1.1 In addition to other terms which are elsewhere defined in this Lease, the
following terms when used in the Lease shall have the meanings set forth in this
Section, and only such meanings, unless such meanings are expressly limited or
expanded elsewhere herein.
(a) Office building Town Square Professional Plaza Phase II, ("Building"),
situated in Xxxxxx Xxxx, Xxxxxx xx Xxxx Xxxx, Xxxxx of Utah, which as of the
date hereof is as shown on Exhibit "A".
(b) The Leased Premises: That portion of Building which is shown as the
crosshatched area on Exhibit "A". The Leased Premises are deemed to contain
1,997 square feet of Gross Rentable Area ("Tenants Square Footage"), but
reserving and excepting to Landlord the use of the roof and exterior walls and
beneath the floor of the Leased Premises and the right to install, maintain, use
repair, and replace pipes, ducts, conduits, wires, and appurtenant fixtures,
leading through the Leased Premises in locations which will not materially
interfere with the Tenants used thereof. Total Square Footage of the Building
shall mean 24,960 square feet of Gross Rentable Area. Space Designated Ste. L,
shall have useable square footage of 1,800 square feet which shall consist of
the net square feet from the outside of the exterior walls within the designated
leased premises exclusive of any common areas in the Building.
(c) Ready For Occupancy: When Landlords Work on the Leased Premises as described
in Exhibit "B", hereto attached, as been substantially completed (except for
minor finishing operations or items necessarily awaiting performances of Tenants
Work).
(d) Rental Commencement Date: Either (i) April 3, 2000 provided the Leased
Premises are ready for occupancy, or the earlier of (ii) thirty (30) days
following the date on which the Leased Premises are Ready for Occupancy or (iii)
the date upon which Tenant opens the Leased Premises to the public.
(e) Lease Term or Term: 24 months as hereinafter defined. This Lease shall
terminate on the last day of the calendar month in which such date falls.
Landlord and Tenant agree that upon the demand of the other they shall execute a
document establishing the date on which the Term commenced as soon as such date
has been established in Exhibit "G". Termination Date: March 31, 2002.
-----------------
(f) Scheduled Completion Date: April 3, 2000.
--------------
(g) Base Rent: 1st year - $11.48 p.u.s.f. per year, $1,910.46 per month,
$22,925.56 per year - Base Rent: 2nd year - $11.71 p.u.s.f. per year, $1,948.74
per month, $23,384.87 per year - Base Rent: 3rd year - $11.94 p.u.s.f. per year,
$1,987.02 per month, $23,844.18 per year.
Adjustment Date shall mean the first day of April in each year of the Lease Term
commencing 2001.
(h) DELETED
(i) Advance Deposit: $2,576.13 applied as first month's rent and CAM fee (Due at
occupancy). --------
(j) Security Deposit: N/A equal to (1) months base rental amount and CAM fee
(Due at lease signing). ---
(k) Tenant's Trade Name: WordCruncher Internet Technologies
(l) Tenant's Work: Those items set forth in Exhibit "C" to be performed by
Tenant.
(m) Landlord's Work: Those items set forth in Exhibit "B".
(n) Landlord's Mailing Address: SLT, III, a Utah Limited Liability Company, 405
East 00000 Xxxxx Xxxxx X, Xxxxxx, Xxxx, 00000, or such other address as may from
time to time be designated by Landlord in a written notice to Tenant.
(o) Tenant's Mailing Address: (street) 000 X. 00000 Xx. Ste. L, (city) Xxxxxx,
(state) Utah, (zip code) 84020, (county) Salt Lake.
(p) Use of Leased Premises: The Leased Premises may be used only for general
business office (provided that Landlord make no representation or warranty that
such use is permitted under applicable law), and for no other purpose.
(q) Common Areas: Those areas of the Building which are from time to time open
for joint use by tenants of the Building or by the public including, without
limiting the generality of the foregoing, parking areas, driveways, security
areas, truckways, delivery passages, walkways, concourses, planted areas,
landscaped areas, and public restrooms, break rooms, mechanical room, common
truck loading and receiving areas which are not leased to or reserved for
individual tenants based upon a (%) percentage of Tenant's gross square footage.
Common Area Maintenance Fee ("CAM"); $665.67. An estimated monthly amount based
on $4.00 per square foot of gross rentable area.
(r) Gross Rentable Area: In consideration of the Base Rent and the provisions of
this Lease, Landlord leases to Tenant and Tenant accepts from Landlord the
Leased Premises. Tenant's Square Footage is a stipulated amount based on
Landlord's method of determining Total Gross Square Footage for rental purposes
and may not reflect the actual amount of useable floor space available for
Tenant's use.
(s) Liability Insurance Limits: Tenant shall, at its own expense, procure and
maintain during the Lease Term comprehensive general liability insurance with
respect to the Leased Premises and Tenant's activities in the Leased Premises,
providing bodily injury, broad form property damage with a maximum $1,000
deductible, as follows:
(1)......$1,000,000 with respect to bodily injury or death to any one person.
(2)......$2,000,000 with respect to bodily injury or death arising out of any
one occurrence.
(3)......$1,000,000 with respect to property damage or other loss arising out of
any one occurrence.
(4)......fire and extended casualty insurance covering Tenant's trade fixtures,
merchandise and other personal property in an amount not less than
100% of their actual replacement cost, and
(5)......worker's compensation insurance in at least the statutory amounts.
(t) Occupancy Date: In the event that the Occupancy Date of this Lease precedes
the Rental Commencement Date, the parties hereto agree to be bound by all the
terms and provisions hereof, with the exception of Tenant's obligation to pay
rent, as of the Occupancy Date. The foregoing shall in no way affect the
obligations of the parties under all terms and conditions of the Lease as of the
Rental Commencement Date.
(u) Tenant means each person executing this Lease as a Tenant under this Lease.
If more than one person is set forth on the signature line as Tenant, their
liability under this Lease shall be joint and several. If more than one Tenant
exists, any notice required or permitted by the terms of this Lease may be given
by or to any one Tenant, and shall have the same force and effect as if given by
or to all persons comprising Tenant.
(v) Tenant's Percentage of Operating Expenses means 13.86% percent, which is the
result obtained by dividing the gross rentable square feet of the Leased
Premises by the gross rentable square feet of all premises within the Building
as reasonably determined by Landlord. Throughout this agreement, the term
"Operating Expenses" is used synonymously with "Common Area Maintenance Fees or
CAM".
(w) Tenants Federal ID # 00-0000000.
1.2 The exhibits enumerated in this Section (if used) and attached to this Lease
are incorporated in this Lease by this reference and area to be construed as a
part of this Lease.
(a)......Exhibit "A" Site Plan
(b)......Exhibit "B" Landlord's Work
(c)......Exhibit "C" Tenant's Work
(d)......Exhibit "D" Sign Criteria
(e)......Exhibit "E" Deleted
(f)......Exhibit "F" Deleted
(g)......Exhibit "G" Commencement Date Certificate
ARTICLE TWO
Construction and Acceptance of Leased Premises
2.1 Landlord's Work. Landlord agrees that it will complete Landlord's Work as
defined on Exhibit "B" with such minor variations as Landlord may deem
advisable. Tenant shall have no right to enter or occupy the Leased Premises
until the Leased Premises are Ready for Occupancy. If Landlord shall for any
reason fail to complete that part of Landlord's Work which is required in the
Leased Premises prior to the Scheduled Completion Date, Landlord shall not be
deemed to be in default hereunder or otherwise liable for damages to Tenant nor
shall the Term or any provision of the Lease be affected. Should Landlord fail
to complete Landlord's Work and deliver possession of the Leased Premises to
Tenant within one month of the date hereof, either party may terminate this
Lease by written notice to the other party. In such event, Landlord shall return
Tenant's Advance Deposit and Security Deposit and this Lease shall be null and
void and the parties shall have no liability to each other.
2.2 Tenant's Work. Tenant agrees to submit to Landlord within thirty (30) days
after the date of the Lease, plans and specifications in such detail as Landlord
may reasonably request covering Tenant's Work (Tenant finish on leased premises)
as specified in Exhibit "C", and any other work which Tenant proposes to do in
the Leased Premises. Such plans and specifications shall comply with all
requirements set forth in Exhibit "B". Tenant shall not commence any work in the
Leased Premises until Landlord has approved such plans and specifications in
writing, which approval shall not be unreasonably withheld or delayed.
2.3 Occupancy. When the Leased Premises are Ready for Occupancy, Tenant agrees
to accept possession thereof and to proceed with due diligence to perform
Tenant's Work as described in Tenants approved plans and specifications, and to
install its fixtures, furniture and equipment in the Leased Premises. By
occupying the Leased Premises, Tenant shall be deemed to have acknowledged that
the Landlord has complied with all of its covenants and obligations with respect
to the construction of the Leased Premises except for latent defects of which
Tenant advises Landlord within one (1) year of the date of delivery of the
Leased Premises to Tenant. In the event of any dispute concerning work performed
or required to be performed in the Leased Premises by Landlord or Tenant, the
matter in dispute shall be submitted to Landlord's architect for determination
and his certificate with respect thereto shall be binding on Landlord and
Tenant.
2.4 Parking. Landlord may, from time to time, change, alter and expand the
buildings, and/or the Common Areas then existing around the Buildings and/or the
Common Areas to be constructed, in the Building, provided that in no event shall
there be provided less than the minimum parking facilities as set forth in
Section 4.1 hereof, or required by the municipality regulations.
2.5 Notices. Any notice or other communication required or permitted to be given
under this Lease must be in writing and shall be effectively given or delivered
if hand delivered to the addresses for Landlord and Tenant stated below, or if
sent by certified United States Mail, return receipt requested, to said
addresses. Notice effected by hand delivery shall be deemed to have been
received at the time of actual delivery. Any notice mailed shall be deemed to
have been received upon the earlier of (a) actual receipt, (b) refusal thereof,
or (c) three (3) days after mailing of same. Either party shall have the right
to change its address to which notices shall thereafter be sent and the party to
whose attention such notice shall be delivered by giving the other party notice
thereof in accordance with the provisions of this Paragraph 20.1. Until such
time as either party shall change its address for notices, notices shall be
forwarded as follows:
To Landlord: SLT III, LLC
......... 000 Xxxx 00000 Xxxxx Xxxxx X
......... Xxxxxx, XX 00000
......... ATTN: Xxxxxxx X. Xxxxx
To Tenant: WordCruncher Internet Technologies
......... 405 E. 12450 So., Ste. L
......... Xxxxxx, Xxxx 00000
......... ATTN: Xxx Xxxx
ARTICLE THREE
Rent
3.1 Place of Payment. Rental and other charges due and payable hereunder shall
accrue hereunder from the Rental Commencement Date until the termination of the
Lease and shall be payable in advance, without demand, deduction or set-off at
Landlord's mailing address or at such place as Landlord may designate.
3.2 Date of Payment. Tenant covenants and agrees to pay to Landlord the Base
Rent in twelve (12) equal monthly installments. The first such monthly
installment shall be due and payable on or before the Rental Commencement Date
(except that if the Rental Commencement Date falls on a day other than the first
day of a calendar month, the first payment shall be an amount equal to that
percentage of a monthly installment which the number of days from the Rental
Commencement Date to the end of such calendar month bears to the total number of
days in such month).
3.3 Annual Increase. On the annual anniversary date of the lease period, the
landlord shall be entitled to increase the base rent (2%) of the prior (12)
month period lease payment, which shall be added to the monthly base rent and
paid on a monthly basis at the same time as is required for the base rent.
ARTICLE FOUR
Common Areas
4.1 Parking. Landlord agrees that it will maintain parking facilities adjacent
to the Building or in reasonable proximity thereto, which shall contain at all
times after Tenant has opened the Premises to the public for business adequate
parking spaces, provided, however, that if a portion or portions of the parking
area shall be taken for any public or quasi-public use under any governmental
law, ordinance or regulation or by right of eminent domain or by private
purchase under threat thereof, Landlord shall be relieved of its obligations to
provide parking facilities in accordance with this Section to the extent that
such parking facilities cannot be provided without unreasonable expenses, or in
reasonable proximity to the Building.
4.2 Use. Tenant, and its licensees, concessionaires, employees and customers
shall have the non-exclusive right to use the Common Areas as constituted from
time to time, such use to be in common with Landlord, other tenants of the
Building and other persons entitled to use the Common Areas, subject to such
reasonable rules and regulations as Landlord may from time to time prescribe.
Tenant shall not interfere with the rights of other persons to use the Common
Areas. Landlord may temporarily close any part of the parking facilities or
other portions of the Common Areas for such period of time as may be necessary
for (i) temporary use as a work property, (ii) repairs or alterations in or to
the Common Areas or to any sewers, utility facilities or distribution lines
located with the Common Areas, (iii) preventing the public from obtaining
prescriptive rights in or to the Common Areas, (iv) security reasons or (v)
doing and performing such other acts (whether similar or dissimilar to the
foregoing) in, to and with respect to, the Common Areas as in the use of good
business judgment the Landlord shall determine to be appropriate for the
Building, provided however, that Landlord shall use reasonable efforts not to
unduly interfere with or disrupt Tenant's business.
4.3 Common Area Maintenance Costs. Tenant agrees to pay as additional rent, as
hereinafter provided, its proportionate share of expense incurred by Landlord at
its discretion for the operation and maintenance of the Building, ("Operating
Expenses"), including without limiting the generality of the foregoing, costs,
if any, incurred for lighting, painting, cleaning, Quarterly HVAC maintenance,
central trash disposal, traffic control, policing, licenses, permits,
inspecting, removal of snow and ice, landscaping, activities, management
services, administrative services, including, without limitation, labor and
personnel, and in general, all costs of labor, materials supplies, equipment and
tools required for maintaining, repairing and replacing the Common Areas, costs
expended by the Landlord to place and keep the Landlord's property in compliance
with all future governmental regulations, or any part thereof together with a
reasonable allowance for Landlord's direct overhead, deprecation of maintenance
equipment, hazard and public liability insurance and property damage insurance,
the costs, expenses and fees of the following real and personal property taxes
and assessments (and any tax levied in whole or in part in lieu of or in
addition to such taxes and assessments), rent and gross receipts, taxes, or
other person under a common maintenance regime (janitorial), all water,
electricity, natural gas, sewer use consumed in the Building which is not
separately metered to tenants (single or multiple) but excluding depreciation of
Landlord's original investment in the Building, legal services, real estate
brokerage and lease commissions, Landlord's income taxes, income tax accounting,
interest, general corporate overhead or capital improvements to the Building
except for capital improvements installed for the purpose of reducing or
controlling expenses. If any expense, though paid in one year, relates to more
than one calendar year, at option of Landlord, such expense may be
proportionately allocated among such related calendar years. Tenant shall have
sole responsibility for and shall pay when due all taxes, assessments, charges
and fees levied by any governmental or quasi-governmental authority on Tenant's
use of the Leased Premises or any leasehold improvements, personal property or
fixtures kept or installed in the Leased Premises by Tenant. If any of Tenant's
leasehold improvements, personal property or fixtures are assessed and taxed
with the Building, Tenant shall within ten (10) days after delivery to Tenant of
a written statement setting forth the amount of taxes applicable to Tenant's
leasehold improvements, personal property or fixtures, pay such amount to
Landlord, pertaining to the percentage of the premises occupied by the tenant.
In addition to the excluded Common Area Maintenance Costs cited above, the
following expense items are also excluded: mortgage payments; expenses incurred
to the sole benefit of (or arising from) other tenants in the complex, including
but not limited to: a) the leasing of other portions of the complex; b) rent
collection from other tenants of the complex; c) litigation, property damage,
building additions and/or modifications to the sole benefit (or arising from)
other tenants of the complex. Landlord agrees to use best efforts to minimize
the Common Area Maintenance costs while complying with Landlord's
responsibilities in a competent and professional manner. Upon written request by
Tenant, Landlord agrees to furnish reasonable documentation of CAM fee
calculations.
Each of the following words and phrases shall have the meaning set forth:
(a) "Operating Year" means each calendar year ending during the Term and the
calendar year ending on or immediately following the last day of the Term.
(b) "Operating Expenses" means collectively, all reasonable costs, expenses and
fees incurred or payable by Landlord in connection with the Lease and the
ownership, operation, management, maintenance and repair of the Building,
determined in accordance with the reasonable accounting procedures and business
practices customarily employed by Landlord, including, without limitation, those
costs listed above in this Paragraph 4.3.
(c) "Estimated Operating Expenses" means the projected amount of Operating
Expenses for any given Operating Year as estimated by Landlord in Landlord's
reasonable discretion.
(d) "Tenant's Estimated Share of Operating Expenses" means the result obtained
by multiplying Tenant's Percentage of Operating Expenses by the Estimated
Operating Expenses. Tenant's Estimated Share of Operating Expenses for any
fractional Operating Year shall be calculated by determining Tenant's Estimated
Share of Operating Expenses to the such fractional Operating Year.
(e) "Tenant's Share of Operating Expenses" means the result obtained by
multiplying Tenant's Percentage of Operating Tenant's Share of Operating
Expenses for any fractional Operating Year shall be calculated by determining
Tenant's Share of Operating Expenses for the relevant Operating Year and then
prorating such amount over such fractional Operating Year.
Tenant's proportionate share of Operating Expenses shall be computed by
multiplying Operating Expenses by a fraction, the numerator of which shall be
the number of square feet of Gross Rentable Area within the building. In
additional to the Base Rent, Tenant covenants to pay to Landlord without
abatement, deduction, offset, prior notice (except as provided in this Paragraph
4.3) or demand Tenant's Share of Operating Expenses in lawful money of the
United States at such place as Landlord may designate in accordance with the
provisions of this Paragraph 4.3, in advance on or before the first day of each
calendar month during the Term, commencing on the Commencement Date and prior to
each Operating Year after the Commencement Date. If reasonably practicable,
Landlord shall furnish Tenant with a written statement (the "Estimated Operating
Expenses Statement") showing in reasonable detail the computation of Tenant's
Estimated Share of Operating Expenses. On or prior to the Commencement Date, and
on the first day of each month following the Commencement Date, Tenant shall pay
to Landlord one-twelfth (1/12th) of Tenant's Estimated Share of Operating
Expenses as specified in the Estimated Operating Expenses as specified in the
Estimated Operating Expenses Statement for such Operating Year. If Landlord
fails to give Tenant an Estimated Operating Expenses Statement prior to any
Operating Year, Tenant shall continue to pay on the basis of the Estimated
Operating Expenses Statement for the Operating Year until the Estimated
Operating Expenses Statement for the current Operating Year is received. If at
any time it appears to Landlord that the Operating Expenses will vary from
Landlord's original estimate, Landlord may deliver to Tenant a revised Estimated
Operating Expenses Statement for such Operating Year, and subsequent payments by
Tenant for such Operating Year shall be based on such revised statement. Within
a reasonable time after the expiration of any Operating Year, and subsequent
payments by Tenant for such Operating Year, Landlord shall furnish Tenant with a
written statement (the "Actual Operating Expenses Statement") showing in
reasonable detail the computation of Tenant's Share of Operating Expenses for
such Operating Year and the amount by which such amount exceeds or is less than
the amounts paid by Tenant during such Operating Year. If the Actual Operating
Expenses Statement indicates that the amount actually paid by Tenant for the
relevant Operating Year is less than Tenant's Share of Operating Expenses for
such Operating Year, Tenant shall pay to Landlord such deficit within thirty
(30) days after delivery of the Actual Operating Expenses Statement. Such
payments by Tenant shall be made notwithstanding that the Actual Operating
Expenses Statement is furnished to Tenant or within three (3) months of
terminating this lease. If the Actual Operating Expenses Statement indicates
that the amount actually paid by Tenant for the relevant Operating Year exceeds
Tenant's Share of Operating Expenses to such Operating Year, such excess shall
be applied against any amount then payable or to become payable by Tenant under
this Lease. No failure by Landlord to require the payment of Tenant's Share of
Operating Expenses for any period shall constitute a waiver of Landlord's right
to collect such amount for such period or for any subsequent period. Nothing
contained in this paragraph shall be constructed so as to reduce the Base Rent.
Every statement given to Tenant by Landlord under this Lease, including, without
limitation, any statement given to Tenant pursuant to Paragraph 4.3, shall be
conclusive and binding on Tenant unless within forty-five (45) days after the
receipt of such statement, Tenant notified Landlord that Tenant disputes the
correctness of such statement, specifying the particular respects in which the
statement is claimed to be incorrect. Pending the determination of such dispute
by agreement between Landlord and Tenant, Tenant shall within thirty (30) days
after receipt of such statement, pay the amounts set forth in such statement in
accordance with such statement and such payment shall be without prejudice to
Tenant's position. If such dispute exists and it is subsequently determined that
Tenant has paid amounts in excess of those then due and payable under this
Lease, Landlord, at Landlord's option, shall either apply such excess to an
amount to become payable under this Lease or return such excess to Tenant.
Landlord shall grant to an independent certified public accountant retained by
Tenant reasonable access to Landlord's books and records for the purpose of
verifying Operating Expenses incurred by Landlord at Tenant's expense.
ARTICLE FIVE
Security Deposit
5.1 Payment and Refund. On the date of Signing this Lease, Tenant shall deposit
with Landlord the Security Deposit as security for the faithful performance by
Tenant under this Lease. The Security Deposit shall be returned (without
interest) to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest under this Lease) after the expiration of the Term or earlier
termination of this Lease and delivery of possession of the Leased Premises to
Landlord in accordance with Paragraph 18.2 if, at such time, Tenant is not in
default under the Lease. If Landlord's interest in the Lease is conveyed,
transferred or assigned, Landlord shall transfer or credit the Security Deposit
to Landlord's successor in interest, and Landlord shall be released from any
liability for the return of the Security Deposit. Landlord may intermingle the
Security Deposit with Landlord's own funds, and shall not be deemed to be a
trustee of the Security Deposit. If Tenant fails to timely pay or perform any
obligation under this Lease, Landlord may, prior to, concurrently with or
subsequent to, exercising any other right or remedy, use, apply or retain all or
any party of the Security Deposit for the payment of any monetary obligation due
under this Lease, or to compensate Landlord for any other expenses, loss or
damage which Landlord may incur by reason of Tenant's failure, including any
damage or deficiency in the reletting of the Leased Premises. If all or any
portion of the Security Deposit is so used, applied or retained, Tenant shall
immediately deposit with Landlord cash in an amount sufficient to restore the
Security Deposit to the original amount. Landlord may withhold the Security
Deposit after the expiration of the Term or earlier termination of the Lease
until Tenant has paid in full Tenant's Share of Operating Expenses for the
Operating Year in which such expiration or earlier termination occurs. The
Security Deposit is not a limitation on Landlord's damages or other rights under
this Lease, a payment of liquidated damages or prepaid rent and shall not be
applied by Tenant to the rent for the last (or any) month of the term, or to any
other amount due under this Lease. If this Lease is terminated due to any
default of Tenant, any portion of the Security Deposit remaining at the time of
such termination shall immediately inure to the benefit of Landlord as partial
compensation for the costs and expenses incurred by Landlord in connection with
this Lease and shall be in addition to any other damages to which Landlord is
otherwise entitled.
ARTICLE SIX
Use and Care of Leased Premises
6.1 Use. Tenant shall in good faith continuously throughout the Term of this
Lease conduct and carry on in the entire Leased Premises the type of business
described in Section 1.1(p) and the Leased Premises shall not be used for any
other purpose. Tenant shall use Tenant's Trade Name in the transaction of
business in the Leased Premises. Tenant shall not sell, display or solicit sales
in the Common Areas. Tenant shall not use or permit the use of any vending
machines or public telephones on, at, or about the Leased Premises except any
located in non-public areas for the benefit of Tenant's employees, without the
prior written consent of Landlord. Tenant shall not commit waste, perform any
acts or carry on any practices which may injure the Building or be a nuisance or
menace to other tenants in the Building.
6.2 Compliance With Law. In the use and occupancy of the Leased Premises, Tenant
shall comply with all laws and ordinances and all valid rules and regulations of
the United States; all governmental units or agencies having jurisdiction and
any other applicable government or agency thereof and all requirements of any
public or private agency having authority over insurance rates.
6.3 Temperature. Tenant shall at all times keep the Leased Premises at a
temperature sufficiently high to prevent freezing of water pipes and fixtures.
6.4 Hazardous Materials. Tenant agrees that Tenant, its agents and contractors,
licensees, or invitees shall not handle, use, manufacture, store or dispose of
any flammables, explosives, radioactive materials, hazardous wastes or
materials, toxic wastes or materials, or other similar substances, petroleum
products or derivatives (collectively "Hazardous Materials") on, under, or about
the Leased Premises, without Landlord's prior written consent (which consent may
be given or withheld in Landlord's sole discretion), provided that Tenant may
handle, store, use or dispose of products containing small quantities of
Hazardous Materials, which products are of a type customarily found in offices
and households (such as aerosol cans containing insecticides, toner for copies,
paints, paint remover, and the like), provided further that Tenant shall handle,
store, use and dispose of any such Hazardous Materials in a safe and lawful
manner and shall not allow such Hazardous Materials to contaminate the Leased
Premises or the environment.
6.5 Hold Harmless. Without limiting the above, Tenant shall reimburse, defend,
indemnify and hold Landlord harmless from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys' fees
and costs, arising out of or in any way connected with the use, manufacture,
storage, or disposal of Hazardous Materials by Tenant, its agents or contractors
on, under or about the Leased Premises, including without limitation the costs
of any required or necessary investigation, repair, cleanup or detoxification
and the preparation of any closure or other required plans in connection
herewith, whether voluntary or compelled by governmental authority. The
indemnity obligations of Tenant under this clause shall survive any termination
of the Lease.
6.6 Third Parties. Notwithstanding anything set forth in this Lease, Tenant's
obligation under Paragraph 6.5 shall apply only to Hazardous Materials brought
on the Leased Premises by Tenant or the agents or contractors during the Lease
Term and during any other periods of time during which Tenant is in actual or
constructive possession of the Leased Premises. Tenant shall take reasonable
precautions to prevent the contamination of the Leased Premises with Hazardous
Materials by third parties.
ARTICLE SEVEN
Tenant's Covenant
7.1 Conduct of Business. Tenant shall use space as stated in accordance with
Section 1.1(p).
7.2 Nuisance. (i) will keep all mechanical apparatus free of vibration or noise
which may be transmitted beyond the confines of the Leased Premises; (ii) will
not cause or permit odors to emanate from the Leased Premises; (iii) will not
load or unload or permit the loading or unloading of merchandise, supplies or
other property except within the area designated by Landlord from time to time;
and (iv) will not permit the parking or standing outside of such designated
area, of trucks, trailers or other vehicles or equipment engaged in such loading
or unloading; (v) Tenant has the right to ship small to medium freight from the
Leased Premises via overnight carriers.
7.3 Cleanliness. Tenant (i) will keep the inside and outside of all glass in the
doors and windows of the Leased Premises; (ii) will replace promptly at its own
expense with glass of like kind and quality any plate or window glass; (iii)
will replace doors or door hardware of the Leased Premises which may for any
reason become cracked or broken; (iv) will maintain the Leased Premises in a
clean, orderly and sanitary conditions and free of insects, rodents, vermin, and
other pests; (v) will not permit undue accumulation of garbage, trash, rubbish
or other refuse in the Leased Premises; (vi) will keep such refuse in proper
containers inside the Leased Premises until such time as same is called for to
be removed, and (vii) will cause diffusers and grease traps (if any) to be
cleaned not less frequently than monthly and fire extinguisher to be checked not
less frequently than annually.
ARTICLE EIGHT
Maintenance and Repair of Leased Premises,
Alterations and Landlord's Right of Access
8.1(a) Landlord's Responsibility. Landlord shall keep the foundation, the roof
and the exterior walls of the Leased Premises (except plate glass doors, door
closures, door frames, store fronts, windows and window frames located in
exterior building walls) in good repair, except that Landlord shall not be
required to make any repairs occasioned by the act or neglect of Tenant, its
permitted assignees, sublessees, servants, agents, employees, licensees, or
concessionaires or the servants, agents, employees, licensees, or
concessionaires of Tenant's permitted assignees or sublessees or any damage
caused by or as a result of Tenant's occupancy of Leased Premises, or any damage
caused by break-in, burglary, or other similar acts in or to the Leased
Premises. In the event that the Leased Premises shall become in need of repairs
required to be made by Landlord hereunder, Tenant shall give prompt written
notice thereof to Landlord, and Landlord shall not be responsible in any way for
failure to make any such repairs until a reasonable time shall have elapsed
after the giving of such written notice.
(b) Landlord's Responsibility (covered under "CAM"). Landlord
shall at its sole cost and expense and discretion of the CAM fee, keep the
Leased Premises in a safe, sightly, and serviceable condition, and hereof, make
all needed maintenance, repairs, and replacements for the proper operation of
Tenant's business within the leased premises, including, but not limited to, all
maintenance, repairs, and replacements to (i) the heating, ventilating, and air
conditioning system serving the Leased Premises; (ii) all plumbing and sewage
facilities within the Leased Premises, including free flow up to the connection
to the main sewer line; (iv) all electrical systems serving the Leased Premises
(whether or not located within the Leased Premises); (v) all sprinkler systems
serving the Leased Premises; (vi) all repairs, replacements, or alterations
required by any governmental authority (including, but not limited to),
alterations as shall be required for compliance with the Americans with
Disabilities Act of 1990, as now or hereafter amended, and the rules and
regulations from time to time promulgated thereunder.
8.2 Tenant Responsibility. Tenant shall, at its sole costs and expense, keep the
Leased Premises in a safe, sightly, and serviceable condition hereof, make all
needed maintenance, repairs, and replacements for the proper operation of
Tenant's business within the Leased Premises, including, but not limited to, all
maintenance, repairs, and replacements to (i) all trade fixtures within the
Leased Premises; (ii) all interior walls, floors, and ceilings; (iii) any of
Tenant's Work; (iv) all necessary repairs and replacement of Tenant's trade
fixtures required for the proper conduct and operation of Tenant's business.
8.3 Tenant Alterations and Repairs. Tenant shall not make any alterations,
additions or replacements to the Leased Premises, or any repairs required of
Landlord under Paragraph 8.1 of this Lease, without the prior written consent of
Landlord, except for Tenant's Work and the installation of unattached moveable
fixtures which may be installed without drilling, cutting, or otherwise defacing
the Leased Premises. All alterations, additions and improvements made in and to
the Leased Premises and all floor covering that is cemented or adhesively fixed
to the floor and all fixtures (other than trade fixtures) which are installed in
the Leased Premises shall remain in and be surrendered with the Leased Premises
and shall become the property of Landlord at the expiration or earlier
termination of this Lease. So long as Tenant is not in default hereunder, Tenant
shall have the right to remove its trade fixtures from the Leased Premises,
provided that Tenant shall repair and restore any damage to the Leased Premises,
caused or occasioned by such removal.
8.4 Approval of Work. All Tenant's work and all repairs, alterations,
additionals and improvements done by Tenant within the Leased Premises shall be
performed in a good and workmanlike manner, in compliance with all governmental
requirements, and at such times and in such manner as will cause a minimum of
interference with other construction in progress and with the transaction of
other tenants in the Building. Whenever Tenant proposes to do any construction
work within the Leased Premises, Tenant shall first furnish to Landlord plans
and specifications covering such work in such detail as Landlord may reasonably
request. Such plans and specifications shall comply with such requirements as
Landlord may from time to time prescribe to construction within the Building and
shall be in compliance with all applicable laws and governmental and
quasi-governmental rules and regulations, including without limitation, the
Americans with Disabilities Act of 1990, as now or hereafter amended. In no
event shall any construction work be commenced within the Leased Premises
without Landlord's written approval of such plans and specifications. Landlord's
approval shall be conclusively deemed given unless Landlord objects or comments
within thirty (30) days following tender of said plans and specifications. At
least thirty (30) days prior to the commencement of any approved construction
work, Tenant agrees to deliver or cause to be delivered to Landlord, policies or
certificates of insurance in companies licensed to do business in the state in
which the Building is located, and in a form satisfactory to Landlord, providing
public liability insurance coverage of not less than $2,000,000 single limit
coverage, said policy or policies naming Tenant, its general contractor, all
subcontractors, Landlord and its employees as insured parties and covering any
and all liability arising out of or in any manner connected with the work to be
performed on the Leased Premises by Tenant and additionally Tenant shall deliver
a policy or certificate of insurance evidencing worker's compensation coverage.
All such certificates and policies shall provide that Landlord shall be given a
minimum of thirty (30) days written notice by any insurance company prior to
cancellation, termination or change of any coverage.
8.5 Inspection. Landlord shall have the right, but not the duty, to enter the
Leased Premises at any time for the purpose of inspecting the same, or of making
repairs to the Leased Premises, or of making repairs, alterations, or additions
to adjacent property, or of showing the Leased Premises to lenders or
prospective lenders or to prospective purchaser or tenants with (24) hours
notice, except in the case of emergency. Landlord may place "For Rent" signs on
the windows of the Leased Premises ninety (90) days prior to the expiration of
the Lease.
8.6 Liens. Tenant shall not suffer or permit any materialmen's, mechanics'
artisans' or other liens to be filed or placed or exist against the land or
building or which the Leased Premises are a part, or Tenant's interest in the
Leased Premises by reason of work, services or materials supplied or claimed to
have been supplied to Tenant or anyone holding the Leased Premises or any part
thereof through or under the Tenant, and nothing contained in this Lease shall
be deemed or construed in any way as constituting the consent or request of
Landlord, expressed or implied, to any contractor, subcontractor, laborer or
materialmen to the performance of any labor or the furnishing of any materials
for any improvements, alterations or repairs of the Leased Premises or any part
thereof, nor as giving Tenant any right, power or authority to contract for or
permit the rendering of any services of the furnishing of any materials that
would give rise to the filing of a materialmen's, mechanics' or other lien
against the Leased Premises or the Building. If any such lien should, at any
time, be filed, Tenant shall cause the same to be discharged of record within
fifteen (15) days after the date of filing the same. If Tenant shall fail to
discharge such lien within such period, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same either by paying the amount claimed to be due or by procuring the discharge
of such lien by a deposit in court or by posting a bond. Any amount paid by
Landlord by any of the aforesaid purposes, or for the satisfaction of any other
lien not caused by Landlord, and all reasonable expenses of Landlord in
defending any such action or in procuring the discharge of such lien, shall be
deemed additional rent hereunder and shall be repaid by Tenant to Landlord on
demand.
8.7 Tenant Liability. Landlord shall not be liable to Tenant for any
interruption of Tenant's business or inconvenience caused Tenant or Tenant's
permitted assignees, sublessees, customers, invitees, employees, licensees or
concessionaires in the Leased Premises on account of Landlord's performance of
any repair, maintenance or replacement in the Leased Premises or any other work
therein pursuant to Landlord's right or obligations under the Lease.
ARTICLE NINE
Signs
9.1 Modifications Prohibited. Tenant shall not (i) paint, decorate or make any
changes to the front of the Leased Premises, (ii) install any exterior lighting,
awning, or protrusions, or any exterior signs, advertising matter, decorations
or painting, (iii) install any drapes, blinds, shades or other coverings on
exterior windows and doors, (iv) affix any window or door lettering, placards,
decorations, or advertising media of any type which can be viewed from the
exterior of the Leased Premises, excepting only dignified displays of customary
type. All approved signs or letterings on doors shall be printed, painted and
affixed at the sole cost of Tenant by a person approved by Landlord, and shall
comply with the requirements of the governmental authorities having jurisdiction
over the Building. Tenant shall at all times keep all signs in good condition,
in proper operating order and in accordance with all applicable government
regulations. Landlord may, at Tenant's cost, and without notice or liability to
Tenant, enter the Leased Premises and remove any item erected in violation of
this Paragraph 9.1. Landlord may establish rules and regulations governing the
size, type and design of all such items and Tenant shall abide by such rules and
regulations. Use of roof of the Leased Premises is reserved to Landlord, and
Landlord may install upon the roof equipment, signs, antenna, displays, and
other objects and may construct additional space above the Leased Premises,
provided any such use does not unreasonably interfere with Tenant's occupancy of
the Leased Premises.
If Landlord should undertake any remodeling or renovation of the Building, which
requires modification of Tenant's signs, then Tenant shall, if required by
Landlord, conform to the standard Sign Criteria used for such remodeling or
renovation.
ARTICLE TEN
Utilities
10.1 Landlord Provider. Landlord agrees to cause to be provided such mains,
conduits and other facilities necessary to supply electricity, water, sewer,
telephone and gas (if available) to the Leased Premises, in accordance with and
subject to any special provisions contained in Exhibit "B".
10.2 Tenant Responsibility. Tenant shall promptly pay all charges for telephone
furnished to the Leased Premises, including any and all connection fees, or a
portion thereof, attributable to Tenant's use of such services. Tenant shall for
all other utilities to the unit through the monthly CAM assessment.
10.3 Interruption. Landlord shall not be liable in the event of any interruption
in the supply of any utilities. Tenant agrees that it will not install any
equipment which will exceed or overload the capacity of any utility facilities
serving the Leased Premises and that if any equipment installed by Tenant shall
require additional utility facilities, the same shall be installed at Tenant's
expense in accordance with plans and specifications to be approved in writing by
Landlord.
10.4 Deleted.
ARTICLE ELEVEN
Indemnity and Non-Liability
11.1 Hold Harmless. Tenant does hereby agree to indemnify and hold harmless
Landlord from and against any and all liability for any injury or the death of
any person or persons or any damage to property in any way arising out of or
connected with the condition, use or occupancy of the Leased Premises, or in any
way arising out of the activities of Tenant, its permitted assigns or sublessees
or of the respective agents, employees, licensees, concessionaires or invitees
of Tenant in the Leased Premises, Common Areas or other portions of the Building
and from all costs, expenses and liabilities, including but not limited to court
costs and reasonable attorney's fees, incurred by Landlord in connection
therewith, excepting however, liability caused by Landlord's gross negligence.
11.2 Non-Liability. Tenant covenants and agrees that Landlord shall not be
liable to Tenant for any injury to or death of any person or persons or for
damage to any property of Tenant, or any person claiming through Tenant, arising
out of any accident or occurrence in the Leased Premises or any other portion of
the Building, including, without limiting the generality of the foregoing,
injury, death or damage caused by the Leased Premises or other portions of the
Building becoming out of repair or caused by any defect in or failure of
equipment, pipes, or wiring, or caused by broken glass, or caused by the backing
up of drains, or caused by gas, water, steam, electricity, or oil leaking,
escaping or flowing into the Leased Premises, or caused by fire or smoke, or
caused by the acts of omissions of other tenants of the Building, excepting
however, liability caused by Landlord's gross negligence.
11.3 Loss. Landlord shall not be responsible or liable at any time for any loss
or damage to Tenant's merchandise, equipment, fixtures or other personal
property or to Tenant's business.
ARTICLE TWELVE
Insurance
12.1 Party. As used in this Article, the term "Insuring party" shall mean the
party who has the obligation to obtain the insurance required hereunder. Where
the insuring party is Tenant, Tenant shall pay the cost of such insurance
directly, where the insuring party is Landlord, such cost shall be included in
the Operating Expenses, unless otherwise provided herein.
12.2 (a)... Landlord Responsibility. Landlord, as insuring party, under this
Article, shall obtain and keep in force during the Term of this Lease an
insurance policy or policies of all-risk fire, extended coverage, theft,
vandalism, malicious mischief and other casualty, covering loss or damages to
the Building and the Common Areas, as well as all improvements thereto,
structural improvements to and permanent fixtures in the Leased Premises,
including the heating, air-conditioning and ventilation system originally
installed in the Leased Premises ("HVAC") to the extent of at least eighty
percent (80%) of their replacement cost. Landlord shall not be responsible for
insuring carpeting installed in the Leased Premises.
(b).... Common Areas. Landlord, as the insuring party under this
Article, shall also obtain and keep in force during the Term of this Lease such
other insurance in such amounts and with such policy provisions as if shall deem
necessary or appropriate, including without limitation, the following:
Comprehensive commercial general liability insurance pertaining to the Building
death and property damage arising or occurring therein, worker's compensation
insurance covering Landlord's personnel, fidelity bonds for Landlord's
personnel; insurance against liability for assault and batter, defamation and
claims of false arrest; and plate glass insurance for glass exclusively securing
the Common Areas or not otherwise payable by particular tenants.
(c).... Reimbursement. Tenant shall reimburse Landlord for any
increase in the cost of any of Landlord's insurance pertaining to the Building
if said increase is caused by or results from Tenant's use or occupancy of the
Leased Premises, the breach of this Lease by tenant, or the acts, omissions, or
negligence of Tenant, its agents, employees, officers, concessionaires,
licensees, assignees, subtenants, customers, invitees, contractors or
subcontractors.
12.3 Tenant's Responsibility. Tenant shall, at Tenant's sole cost and expense,
obtain and maintain in force during the Term of this Lease the following
insurance coverage with respect to the insurable losses contemplated by this
section, insuring Landlord, Tenant and any lender of record encumbering the
Leased Premises.
(a)......All Risk. Against fire, extended coverage, vandalism,
malicious mischief perils, and standard "all risk" protection with replacement
cost endorsement on tenant's personally and trade fixtures in the Leased
Premises including but not limited to carpeting, furnishings, equipment,
excluding HVAC equipment, furniture, inventory , and stock, "all risk"
protection includes, but is not limited to, sprinkler leakage, vandalism and
malicious mischief perils.
(b)......Electrical. Coverage under this section shall also extend to
miscellaneous electrical apparatus and all other insurable objects owned or
operated by Tenant or by others (other than Landlord) on behalf of Tenant in the
Leased Premises, or relating to or serving the Leased Premises.
(c)......Liability. Against any liability arising out of the ownership,
use, occupancy, operation, or conduct of business from, or maintenance of, the
Premises and all areas appurtenant thereto; such insurance shall be on an
occurrence rather than a claims-made basis and shall be in the form of a
combined single limit comprehensive commercial general liability insurance
policy in an amount as stated in Paragraph 1.1(s), and to insure performance by
Tenant of the indemnity provisions of the Lease, and to contain a broad form
general liability endorsement, it being further understood and agreed to by
Tenant that reasonable opinion of Landlord, the amount of liability insurance
required hereunder is not adequate; provided, however, that in no event shall
the amount of the liability insurance increase by more than fifty percent (50%)
the amount thereof during the preceding year of the Term of this Lease, and
provided further, the failure of Landlord to require additional insurance
coverage shall not be deemed to relieve Tenant from any obligations under this
Lease.
(d)......Interruptions. Business interruption insurance in such amount
as will reimburse Tenant for direct or indirect loss of earnings attributable to
all such perils insured against and cover Tenant's obligation to the Base Rent,
Percentage Rent, and Operating Expenses due Landlord during said interruption,
and,
(e)......Worker's Compensation. Worker's compensation insurance in the
statutorily required amounts covering all Tenant's employees working in the
Leased Premises.
12.4 Reimbursement. The limits of Tenant's insurance shall not limit the
liability of Tenant under this Lease. If Tenant shall fail to procure or
maintain any insurance required of Tenant hereunder, Landlord may, at its sole
option, but shall not be required to, procure and maintain the same at the cost
and expense of Tenant, and Tenant agrees to reimburse Landlord for same as
additional rent due hereunder within fifteen (15) days after receiving notice of
the amount thereof from Landlord.
12.5 Standard. All insurance required hereunder shall be by companies holding a
"General Policyholders Rating" of A or better as set forth in the most current
issue of "Best's Insurance Guide". The insuring party shall deliver to the other
party copies of policies of such insurance or certificates evidencing the
existence and amounts of such insurance with loss payable clauses satisfactory
to Landlord. No insurance policy of Tenant shall be cancelable, non-renewed, or
subject to reduction of coverage or other modification except after thirty (30)
days prior written notice to Landlord. If Tenant is the insuring party, Tenant
shall, within fifteen (15) days prior to the expiration of such policies,
furnish Landlord with renewals or "binders" thereof. Tenant shall not do or
permit to be done anything which shall invalidate the insurance policies Tenant
is required to maintain under this Lease.
12.6 Waiver. All fire and extended coverage insurance carried by Landlord on
Tenant covering losses arising out of destruction of or damage to the Leased
Premises or its contents or to the other portions of the Building shall, to the
extent reasonably obtainable, without additional premium, provide for waiver of
subrogation against Landlord, Tenant and other tenants in the Building, on the
part of the insurance carrier. Should an additional premium be charged, the
party benefiting from said waiver shall reimburse the party obtaining said
waiver for the cost of said additional premium, failing which there shall be no
obligation to obtain the waiver of subrogation otherwise required hereunder.
Evidence of the existence of such waiver will be furnished by either party to
the other party on request.
12.7 Lender Coverage. Notwithstanding any provisions to the contrary contained
in this Lease, the insuring party shall also provide insurance against damage by
such other perils as any party holding a mortgage, deed to secure debt, deed of
trust or other instrument in the nature thereof on the Building including the
Leased Premises, may from time to time require.
12.8 Applicable. If at any time during the Term of this Lease the insuring party
shall have in full force and effect a blanket policy of general liability
insurance an d/or property insurance as applicable, which complies with the
requirements described above applicable to such insuring party, as well as
coverage of other premises and properties of the insuring party or in which the
insuring party has some interest, such blanket insurance shall satisfy the
requirements hereof.
ARTICLE THIRTEEN
Damage by Casualty
13.1 Notice, Restoration. Tenant shall give immediate written notice to Landlord
of any damage to the Leased Premises caused by fire or other casualty, and if
Landlord does not elect to terminate the Lease as hereinafter provided, Landlord
shall proceed with reasonable diligence and at its sole cost and expense to
rebuild and repair the Leased Premises. Notwithstanding the foregoing, in the
event that (i) the insurance proceeds collected by Landlord in connection with
such damage and destruction shall be insufficient to make such restoration, (ii)
the building in which the Leased Premises are located shall be destroyed or
substantially damaged by casualty not covered by standard fire or extended
coverage insurance, (iii) said building, in which the Leased Premises are
located shall be destroyed or rendered untenantable by any casualty to the
extent of at least fifty percent (50%) of the Gross Rentable Area of said
building, (iv) Landlord shall not have actual and unconditional receipt of the
insurance proceeds payable in connection with such damage and destruction, (v)
the holder of any mortgage deed to secure debt, deed of trust, or other
instrument in the nature thereof which encumbers Landlord's interest hereunder
or in the Leased Premises shall require that such proceeds shall be applied
against any indebtedness owed to such holder, or (vi) there shall be less than
two (2) years remaining in the Term, or any extension or renewal thereof, then,
in any of such events, Landlord may elect either to terminate the Lease or to
proceed to rebuild and repair the Leased Premises. Landlord shall give written
notice to Tenant of such election within ninety (90) days after th e occurrence
of such casualty.
13.2 Liability of Parties. Landlord's obligation to rebuild and repair the
Leased Premises under this Article Thirteen shall in any event be limited to
restoring Landlord's Work to substantially the condition in which the same
existed prior to the casualty and Tenant agrees that promptly after the
completion of such work by Landlord, Tenant will proceed with reasonable
diligence and at its sole cost and expense to restore Tenant's Work to
substantially the condition in which the same existed prior to the casualty.
13.3 Reconstruction. Tenant agrees that during any period of reconstruction or
repair of the Leased Premises, it will continue the operation of its business
within the Leased Premises to the extent practicable. During the period from the
occurrence of a casualty until Landlord's repairs are completed, the Base Rent
shall be reduced and abated in proportion to the amount of Gross Rentable Area
of the Leased Premises which is tendered untenantable as a result of such
casualty, provided, however, that if such damage or destruction is caused by the
intentional or negligent acts or omissions by Tenant, its permitted assignees,
sublessees, servants, agents, employees, licensees, or concessionaires, or the
servants, agents, employees, licensees, or concessionaires of Tenants permitted
assignees or sublessees, the, and in that event, the Base Rent shall not xxxxx.
Tenant shall not be entitled to and hereby waives, releases, and relinquishes
any and all claims against Landlord for any compensation or damage for loss of
use of all or any part of the Leased Premises or for any inconvenience or
annoyance occasioned by any such damage, destruction, repair, or restoration of
the Leased Premises.
13.4 Termination. In the event that fifty percent (50%) or more of the Gross
Rentable Area of the Building shall be destroyed or substantially damaged by any
casualty, notwithstanding that the Leased Premises may be unaffected by such
casualty, Landlord may terminate this Lease by giving to Tenant thirty (30) days
prior written notice of Landlord's election to do so, which notice shall be
given if at all, within ninety (90) days following the date of said occurrence.
Rent shall be adjusted as of the date of such termination.
ARTICLE FOURTEEN
Eminent Domain
14.1 Termination Upon Taking. If more than ten percent (10%) of the Gross
Rentable Area of the Leased Premises is taken for any public or quasi-public use
under any governmental law, ordinance, or regulation, or by right of eminent
domain, or by private purchase under threat thereof, this Lease shall terminate
upon the election of either party effective on the date possession of a portion
of the Leased Premises is taken by the condemning authority.
14.2 Rent Reduction. If less than ten percent (10%) of the Gross Rentable Area
of the Leased Premises is taken for any public or quasi-public use under any
governmental law, ordinance, or regulation, or by right of eminent domain, or by
private purchase under threat thereof, this Lease shall not terminate, or if
more than ten percent (10%) of the Gross Rentable Area of the Leased Premises is
so taken and the Lease is not terminated in accordance with Section 13.1, then
in either of such events the Base Rent (but not Percentage Rental) payable
hereunder during the unexpired portion of the Term shall be reduced by the
percentage which the area taken bears to the area of the Leased Premises prior
to the date possession of such portion of the Leased Premises is taken by the
condemning authority.
14.3 Common Area. If any portion of the Common Area should be taken for any
public or quasi-public use under any governmental law, ordinance, or regulation,
or by right of eminent domain, or by private purchase under threat thereof, th
is Lease shall not terminate, nor shall the rent payable hereunder be reduced,
nor shall Tenant be entitled to any part of the award to such taking, except
that either Landlord or Tenant may terminate this Lease if the area of the
Common Areas remaining following such taking, plus any additional parking area
provided within a reasonable time by Landlord in reasonable proximity to t he
Building, shall be less than as stated in Paragraph 14.1.
14.4 Notice. Any election to terminate this Lease following condemnation, shall
be evidenced by written notice of termination, delivered to the other party
within thirty (30) days after the date by which both Landlord and Tenant are
notified of such taking or such sale, and, in the event that neither Landlord
nor Tenant shall so exercise such election to terminate the Lease, then this
Lease shall continue in full force and effect.
14.5 Repairs. If this Lease is not terminated following any condemnation,
Landlord shall make all necessary repairs or alterations within the scope of
Landlord's Work, necessary to make the Leased Premises an architectural whole,
and Tenant agrees that promptly after completion of such work by Landlord,
Tenant will proceed with reasonable diligence and at its sole cost and expense
to make all necessary repairs or alterations within the scope of Tenant's work
necessary to make the Leased Premises an architectural whole.
14.6 Compensation. All compensation awarded for any taking (or the proceeds of
private sale under threat thereof), whether for the whole or a part of the
Leased Premises, shall be the property of Landlord, whether such award is
compensation for damage to Landlord's or Tenant's interest in the Leased
Premises, and Tenant hereby assigns all of its interest or any such award to
Landlord, provided, however, Landlord shall have no interest in any award made
to Tenant for loss of business, for the taking of Tenant's fixtures and personal
property within the Leased Premises, or for moving expenses, if a separate award
for such items is made to Tenant.
ARTICLE FIFTEEN
Assignment and Subletting
15.1 Consent Required. Tenant, for itself, its heirs, its distributees,
executors, administrators, legal representatives, successors, and assigns,
covenants that it will not assign, mortgage or encumber the Lease, nor sublease
or permit the Leased Premises or any part of the Leased Premises to be used or
occupied by others, without the prior written consent of Landlord in such
instance. Landlord shall not unreasonably delay or withhold said approval. The
transfer of control or of a majority of the issued and outstanding capital stock
of any corporate tenant or subtenant of this Lease or a majority interest in any
partnership tenant or subtenant whether in a single transaction or in a series
of transactions, will be an assignment of the Lease or of such sublease
requiring Landlord's prior written consent in each instance, provided that
Landlord's consent shall not be required in the event of demise and inheritance.
The transfer of outstanding capital stock of any corporate tenant for purposes
of this Article, will not include any sale of such stock by persons other than
those deemed "insiders" within the meaning of the Securities Exchange Act of
1923 as amended, and which sale is effected through the
"over-the-counter-market" or through any recognized stock exchange.
15.2 Conditions. Landlord and Tenant hereby agree that the granting of consent
by Landlord shall be preconditioned upon the fulfillment of the following, and
other reasonable, requirements of Landlord.
(a)......Landlord shall be provided with at least thirty (30) days
written notice prior to any proposed assignment or subletting.
(b)......Tenant shall remain liable under this Lease until released
from obligations of t his Lease in writing by the Landlord.
(c)......Any proposed assignee or sublessee shall assume in a writing
acceptable to Landlord, all of the obligation of Tenant hereunder.
(d)......No use shall be employed in connection with the Leased
Premises other than the permitted use set forth in this Lease.
(e)......The Leased Premises shall remain intact. Any alterations must
be approved in writing by the landlord, which approval will not be unreasonably
delayed or withheld.
(f)......The use of the Leased Premises by the proposed
subtenant/assignee will not violate or create any potential violation of any
laws, nor will it violate any other agreements affecting the Leased Premises,
Landlord or other tenants of the Building, and
(g)......The proposed assignee or sublessee will not create traffic
congestion or an unreasonable burden on existing parking.
15.3 Hazardous Materials. It shall not be unreasonable for Landlord to withhold
its consent to any proposed assignment or sublease if (i) the proposed
assignee's or sublessee's anticipated use of the Leased Premises involves the
generation, storage, use, treatment or disposal of Hazardous Materials; (ii) the
proposed assignee or sublessee has been required by any prior Landlord, lender,
or governmental authority to take remedial action in connection with Hazardous
Materials contaminating a property if the contamination resulted from such
assignee's or sublessee's actions or use of the property in question; or (iii)
the proposed assignee or sublessee is subject to an enforcement order issued by
any governmental authority in connection with the use, disposal, or storage of
Hazardous Material.
15.4 Tenant Responsible. Any assignment or sublease in violation of this Article
shall be void. If this Lease is assigned, or if the Leased Premises or any part
of the Leased 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 Base Rent. No assignment,
sublease, occupancy, or collection will be deemed (a) a waiver of the provisions
of this Article or (b) the acceptance of the assignee, subtenant, or occupant as
tenant, or (c) release 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 n to be construed to relieve Tenant from
obtaining Landlord's prior written consent in writing to any further assignment
or sublease. No permitted subtenant will assign or encumber its sublease of
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.
15.5 Waiver. Tenant will not be entitled to make, or will Tenant make, any
claim, and Tenant by this Paragraph 16 waives any claim, for money damages (nor
will Tenant claim any money damages by way of set-off, counterclaim or defense)
based upon any claim connected with Landlord's non-granting of consent to a
proposed assignee or sublessee of Tenant. Tenant's sole remedy will be an action
or proceeding to enforce any such provision, or for specific performance,
injunction, or declaratory judgment.
ARTICLE SIXTEEN
Taxes
16.1 Personal Property Taxes. Tenant shall be liable to and shall pay all taxes
levied against its personal property, fixtures, and Tenant's Work in the Leased
Premises. If taxes to which Tenant is liable hereunder are levied against
Landlord or Landlord's property and if Landlord elects to pay the same or if the
assessed value of Landlord's property is increased by inclusion of any such
terms and Landlord elects to pay the taxes based on such increase, Tenant shall
pay to landlord an additional rent, upon demand that part of such taxes to which
Tenant is liable hereunder.
16.2 Real Property Taxes. Tenant agrees to pay as additional rent, its share of
general real estate taxes, assessments, and governmental charges levied against
the Building for each calendar year beginning with the Rental Commencement Date
and during the Lease Term and any renewals or extensions thereof. Said taxes,
assessments, and governmental charges shall be appropriately pro-rated during
the first and last years of the Lease Term if such years are less than full
calendar years. The proportionate share to be paid by Tenant shall be that
percentage of said general real estate taxes, assessments, and governmental
charges which the Gross Rental Area of the Leased Premises bears to the Gross
Rentable Area of the Building. Landlord may, at its option, make monthly or
other periodic charges based upon the estimated annual taxes, payable in
advance, but subject to adjustment after receipt of the tax statement by
Landlord. Landlord shall have the sole, absolute and unrestricted right, but not
the obligation, to contest the validity or amount of any tax, assessment to
governmental charge to appropriate proceedings, and Tenant shall pay its
proportionate share of the costs incurred by Landlord in the course of such
proceedings as additional rent.
16.3 Rental Taxes. Tenant agrees to pay as additional rent, any rent tax or
other tax imposed upon rent payments or imposed upon Landlord based upon rent
payments by Tenant to Landlord; however, Tenant shall not be required to pay any
income tax of Landlord.
ARTICLE SEVENTEEN
Defaults and Remedies
17.1 Interest. Any installment of rent or any other charge or money obligation
herein required to be paid by Tenant which is not paid when due shall be subject
to a late fee of (4%) of the late payment to be assessed on the Fifth day such
payment is due. All unpaid amounts overdue (30) days shall bear interest at the
rate of eighteen percent (18%) per annum or at the maximum rate allowed by law,
whichever is less, from the due date until paid and the Landlord may treat any
such charge or money obligation as additional rent hereunder, or Tenant shall,
pay a processing charge for late payments of Fifty Dollars ($50.00). Tenant
shall either pay interest on the late rent or pay the late fee, which ever is
the greater amount.
17.2 Events of Default. The occurrence of any of the following shall constitute
an event of default hereunder by Tenant:
(a)......The rent payable under this Lease (including Base Rent, and
any additional rent) or any other sum of money due hereunder is not paid when
due and such failure to pay continues to more than five (5) days after Tenant's
receipt of notice thereof from Landlord. Provided however, that Landlord shall
not be required to provide Tenant with the notice and five-day period set forth
in the Subparagraph 18.2(a) more than three (3) times during the Term of this
Lease, and the fourth and each subsequent failure to timely pay such sums shall
immediately constitute an event of default hereunder.
(b)......The Leased Premises are deserted, vacated, or not used as
regularly or consistently as would normally be expected for similar premises put
to the same or similar purposes as set forth herein, even though the Tenant
continues to pay the stipulated rent, and such condition is not corrected within
(10) days of Tenant's receipt of notice thereof from Landlord. Provided however,
that Landlord shall not be required to provide Tenant with the notice and ten
day period set forth in this Subparagraph 17.2(b) more than once during the Term
of this Lease and the second and each subsequent occurrence of such condition
shall immediately constitute an event of default hereunder.
(c)......Tenant files any petition for debt relief under any section or
chapter of the national or federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar act.
(d)......Any petition is filed against Tenant under any section or
chapter of the national or federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar act, and such petition
is not dismissed within sixty (60) days after the date of such filing.
(e)......Tenant shall become insolvent or transfer property to defraud
creditors.
(f)......Tenant makes material misrepresentations to Landlord prior to
or contemporaneously with the execution of this Lease.
(g)......Tenant shall make an assignment to the benefit of creditors.
(h)......A receiver is appointed to any of Tenant's assets and such
receiver is not removed within (60) days of Tenant's receipt of notice from
Landlord to obtain such removal.
(i)......A lien is filed against the Leased Premises or landlord's
estate therein by reason of any work, labor, services or materials performed or
furnished or alleged to have been performed or furnished, for or to Tenant or
anyone holding the Leased Premises by, through or under Tenant, and Tenant fails
to cause the same to be vacated and cancelled of record, or bonded off in accord
with the provisions of this Lease, within twenty (20) days after the filing date
thereof, or,
(j)......Tenant fails to observe, perform and keep each and every one
of the covenants, agreements, provisions, stipulations, and conditions contained
in this Lease to be observed, performed and kept by Tenant, including without
limitation the "Rules and Regulations" for the project of which the Leased
Premises is a part, and unless otherwise specified herein, Tenant persists in
such failure for twenty (20) days after receipt of notice by Landlord requiring
that Tenant correct such failure.
17.3 Landlord Options. Upon the occurrence of an event of default, Landlord
shall have the option to do and perform any one or more of the following, in
addition to, and not in limitation of, any other right or remedy available to
Landlord at law or in equity or elsewhere under the Lease.
(a)......Terminate. Termination of this Lease, in which event Tenant
shall immediately surrender the Leased Premises to Landlord, but if Tenant shall
fail to do so, Landlord may, without further notice and without prejudice to any
other remedy Landlord may have for possession or arrearages in rent, enter upon
the Leased Premises and expel or remove Tenant and Tenant's effects, by force if
necessary, without being subject to prosecution or liable for any claim for
damages therefor, and Tenant agrees to indemnify Landlord for all loss and
damage which Landlord may suffer by reason of such termination, whether through
inability to relet the leased Premises or through decrease in rent, or
otherwise, and/or
(b)......Enter. Terminate Tenant's right of possession of the Leased
Premises without terminating this Lease, and enter the Leased Premises as the
agent of Tenant, by force if necessary, without being subject to prosecution or
liable for any claim for damages therefor, and relet the Leased Premises as the
agent of Tenant, by force if necessary, without being subject to prosecution or
liable for any claim for damages therefor, and relet the Leased Premises as the
agent of Tenant without advertisement and by private negotiations and to any
term Landlord deems proper, and receive the rent thereto, and Tenant shall pay
Landlord upon demand any deficiency that may arise by reason of such reletting,
but Tenant shall not be entitled to any surplus funds generated by such
reletting. Tenant shall reimburse Landlord for all costs of reletting the Leased
Premises including, but not limited to, advertising expenses and commissions
and/or
(c)......Meet Provisions of Lease. As agent of Tenant, do whatever
Tenant is obligated to do by the provisions of this Lease and enter the Leased
Premises, by force if necessary, without being subject to prosecution or liable
for any claims for damages therefor, in order to accomplish the purpose. Tenant
agrees to reimburse Landlord immediately upon demand for any expenses which
Landlord may incur in thus effecting compliance with the Lease on behalf of
Tenant, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action, whether caused by the negligence
of Landlord or otherwise, and/or
(d)......Damages. In addition to all rent and other amounts previously
due and unpaid under the terms and conditions of this Lease, Landlord shall be
entitled to collect actual damages associated with termination of the lease.
(e)......Recover Costs. If the Landlord exercises any of the remedies
set forth in Subparagraphs (a), (b), or (c) of this Paragraph 18.3 in addition
to all other costs and expenses Landlord shall be entitled to recover under this
Lease. Landlord shall also be entitled to recover (i) all sums expended by
Landlord and not previously reimbursed to Landlord by Tenant in connection with
improving or repairing the Lease Premises to Tenant's specifications, and (ii)
all costs and expenses incurred by Landlord in connection with the termination
of this Lease and eviction of Tenant, including attorney's fees.
(f)......Store Property. In the event that Landlord elect to terminate
this Lease, or to terminate Tenant's right of possession of the Leased Premises
without terminating the Lease, as provided in this Paragraph 17.3 or the Lease
is terminated by authority of law, Landlord shall be entitled, but not required
to store in a commercially reasonable manner any personal property of Tenant or
any subtenant which shall remain in the Leased Premises after the termination of
this Lease and the removal of Tenant or subtenant from the Leased Premises.
Landlord shall have a lien on such property, which may be discharged by Tenant
upon payment of arrearage due under the Lease, plus payment of Landlord's
storage and administrative costs. At the end of the sixty (60) day period
following termination of the Lease, or termination of Tenant's right of
possession, such property shall be conclusively deemed to have been abandoned by
Tenant. The foregoing provisions of this Paragraph 18.3 shall be without
prejudice to any election by Landlord that Tenant's failure to remove its
property constitutes a holding over by Tenant.
17.4 Other Remedies. Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy, herein provided constitute a
forfeiture or waiver of any rent or other sum due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the
covenants and provisions herein contained. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of such default.
17.5 Bankruptcy. It is understood and agreed that the following shall apply in
the event of the bankruptcy or insolvency of Tenant:
(a)......Chapter 7. If a petition is filed by, or an order for relief
is entered against Tenant under Chapter 7 of the Bankruptcy Code, and the
trustee of Tenant elects to assume this Lease for the purpose of assigning it,
such election or assignment or both may be made only if all of the terms and
conditions of Subparagraphs 17.5(b) and (d) below are satisfied. To be
effective, an election to assume this Lease must be in writing and addressed to
Landlord and in Landlord's business judgment, all of the conditions hereinafter
stated, which Landlord and Tenant acknowledge to be commercially reasonable,
must have been satisfied. If the trustee fails so to elect to assume this Lease
within sixty (60) days after the bankruptcy petition is filed, this Lease will
be deemed to have been rejected and Landlord shall then immediately be entitled
to possession of the Leased Premises without further obligation to Tenant or the
trustee, and the Lease shall be terminated. Landlord's right to be compensated
to damage in the bankruptcy proceeding, however, shall survive such termination.
(b)......Chapter 11. If Tenant files a petition for reorganization
under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or
against Tenant under any other chapter of the Bankruptcy Code is converted to a
Chapter 11 or 13 proceeding, and Tenant's trustee, or Tenant as
debtor-in-possession, fails to assume this Lease within sixty (60) days from the
date of the filing of such petition or conversion, then the trustee or the
debtor-in-possession shall be deemed to have rejected the Lease. To be
effective, any election to assume this Lease must be in writing addressed to
Landlord and in Landlord's business judgment, all of the following conditions
which Landlord and Tenant acknowledge to be commercially reasonable, must have
been satisfied.
.........(i) The trustee of the debtor-in-possession has cured, or has
provided to Landlord adequate assurance, as hereinafter defined, that the
trustee will cure, all monetary defaults under this Lease within ten (10) days
from the date of assumption, and will compensate Landlord for all pecuniary
losses it has incurred as a result of the Tenant's default.
.........(ii) The Trustee or the debtor-in-possession has provided
Landlord with adequate assurance f the future performance of each of Tenant's
obligations under this Lease.
.........(iii) For purposes of this Subparagraph, "adequate assurance"
shall mean that:
......... (1) Landlord determines that the debtor-in possession has and
will continue to have, sufficient unencumbered assets, after the payment of all
secured obligations and administrative expenses, to assure Landlord that the
trustee or the debtor-in-possession will have sufficient funds to fulfill, in a
timely manner, Tenant's obligations under this lease, and (2) An order shall
have been entered segregating sufficient cash payable to Landlord, and/or a
valid and perfected first lien on and security interest in property of Tenant,
trustee, or debtor-in-possession shall have been granted, which is acceptable in
value and kind to Landlord, to secure to Landlord the obligation of the trustee
or debtor-in-possession to cure all monetary and nonmonetary defaults under this
Lease within the time period set forth above.
(c)......Trustee. In the event this Lease is assumed by a trustee
appointed for Tenant, or by Tenant as debtor-in-possession, under the provisions
of Subparagraph 17.5(b) above, and t hereafter Tenant is either adjudicated
bankrupt, or files a subsequent petition for arrangement under Chapters 11 or 13
of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease
and all the Tenant's rights under it, by giving written notice of Landlord's
election so to terminate.
(d)......Assignment. Pursuant to Subparagraph 17.5(a) or (b) above, if
the trustee or the debtor-in-possession has assumed this Lease to assign or
elect to assign Tenant's interest under this lease, or the estate created by
that interest, to any other person, such interest or estate may be assigned only
if the intended assignee has provided adequate assurance of future performance,
as defined below, of all of the terms, covenants, and conditions of this Lease.
For the purposes of this Subparagraph 17.5(d), "adequate assurance of future
performance" means that Landlord has ascertained that each of the following
conditions has been satisfied.
.........(i) The assignee has submitted to Landlord a current financial
statement, audited by a certified public accountant, which shows a net worth and
working capital in amounts determined by Landlord to be sufficient to assure the
future performance by the assignee of the Tenant's obligations under this Lease.
.........(ii) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to Landlord, from one or more
persons who satisfy Landlord's standards of credit worthiness, and, (iii) To
enable landlord to permit such assignment, Landlord has obtained consents or
waivers from any third parties which may be required under any lease, mortgage,
financing arrangement or other agreement by which Landlord is bound.
(e)......Use Fees. When pursuant to the Bankruptcy Code, the trustee or
the debtor-in-possession is obligated to pay reasonable use and occupancy
charges for the use of all or part of the Leased Premises, it is agreed that
such charges will not be less than the Base Rent as defined in this Lease, plus
additional rents and other monetary obligations of Tenant included herein.
(f)......Consent. Neither Tenant's interest in this Lease or any estate
of Tenant created in this Lease, shall pass to any trustee, receiver, or
assignee for the benefit of creditors, or any person or entity, nor otherwise by
operation of law under the laws of the state having jurisdiction of the person
or property of Tenant, unless Landlord consents in writing to such transfer.
Landlord's acceptance of rent or any other payments from any trustee, receiver,
assignee, person, or other entity will not be deemed to have waived or waive
either the requirement of Landlord's consent or, in the event of any transfer of
Tenant's interest, in the Lease without such consent, the Landlord's right to
terminate this Lease.
17.6 Writing Required. No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Leased
Premises, and no agreement to accept a surrender of the Leased Premises shall be
valid unless the same is in writing and executed by Landlord. Any waiver of or
redress to any violation of any covenant or condition contained in this Lease or
any of the Rules and Regulations now or hereafter adopted by Landlord, shall not
prevent a subsequent act, which should have originally constituted a violation,
from having all the force and effect of an original violation.
17.7 Deleted.
17.8 Deposit. Landlord hereby acknowledges receipt from Tenant of the Advance
Deposit set forth in Section 1.1(i), which shall be applied to the first
accruing installments of rent. Landlord further acknowledges receipt from Tenant
of the Security Deposit as set forth in Section 1.1(j) which shall be held by
Landlord without interest as security for the Lease, it being expressly
understood that such deposit is not an advance payment of rent or measure of
Landlord's damages in case of default by Tenant. Upon the occurrence of any
event of default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein, or provided by law, use the Security
Deposit to the extent necessary to make good any arrears of rent and any other
damage, injury, expense or liability caused to Landlord by such event of
default. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not then in default hereunder, any
remaining balance of the Security Deposit shall be returned by Landlord to
Tenant upon termination of this Lease and surrender of possession of the Leased
Premises to Landlord as herein provided.
ARTICLE EIGHTEEN
Holding Over Expiration or Termination
18.1 Deleted.
18.2 Surrender. On the expiration of the Term or earlier termination of this
Lease, Tenant shall at Tenant's own cost, (a) promptly and peaceably surrender
the Leased Premises to Landlord "broom clean," in good order and condition, (b)
repair any damage to the Building caused by or in connection with the removal of
any property from the Leased Premises by or at the direction of Tenant, (c)
repair, patch and paint in a good and workmanlike manner satisfactorily to
Landlord all holes and other marks in the floors, walls and ceilings of the
Leased Premises, and, (d) deliver all keys to the Leased Premises to Landlord.
Before surrendering the Leased Premises, Tenant shall at Tenant's sole cost,
remove Tenant's movable personal property and trade fixtures (including signage)
only, and all other property shall, unless otherwise directed by Landlord,
remain in the Leased Premises as the property of Landlord without prior written
consent if such removal will impair the structure of the Building or Tenant is
in default under this Lease. If Tenant is in default under this Lease, Landlord
shall take a lien on such personal property, trade fixtures and other property
as set forth in Section 38-3-1, et seq., of the Utah Code Xxx. (or any
replacement provision). Landlord may require Tenant to remove any personal
property, trade fixtures, other property, alterations, additions and
improvements made to the Leased Premises by Tenant or by Landlord for Tenant,
and to restore the Leased Premises to their condition at the date of this Lease.
All personal property, trade fixtures and other property of Tenant not removed
from the Leased Premises on the abandonment of the Leased Premises or on the
expiration of the Term or earlier termination of this lease for any cause shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord without notice to, and
without any obligation to account to Tenant or any other person. Tenant shall
pay to Landlord all expenses incurred in connection with the disposition of such
property in excess of any amount received by Landlord from such disposition. No
surrender of Leased Premises shall be effected by Landlord's acceptance of the
keys or of the rent or by any other reasons without Landlord's written
acknowledgements of such acceptance as a surrender. Tenant shall not be released
from Tenant's obligations under this Lease in connection with surrender of the
Leased Premises until Landlord has inspected the Leased Premises and delivered
to tenant a written release.
ARTICLE NINETEEN
Subordination
19.1 First Priority. This lease and all rights of Tenant hereunder are and shall
be subject and subordinate to the lien of any first priority mortgage, deed to
secure debt, deed of trust, or other instrument in the nature thereof which may
now or hereafter affect Landlord's fee title to the Leased Premises or
Landlord's interest hereunder and to any modifications, renewals,
consolidations, extensions, or replacements of any of the foregoing.
This clause shall be self-operative and no further instrument of subordination
shall be required by any mortgages. In confirmation of such subordination,
Tenant shall, upon demand at any time or times, execute, seal and deliver to
Landlord, without expense to Landlord, any and all instruments in recordable
form that may be requested by Landlord to evidence the subordination of this
Lease and all rights hereunder to the lien of any such mortgage, deed to secure
debt, deed of trust or other instrument in the nature thereof, and each renewal,
modification, consolidation, replacement, and extension thereof, and if Tenant
shall fail at any time to execute, seal and deliver any such instrument,
Landlord in addition to any other remedies available to it in consequence
thereof, may execute, seal and deliver the same as the attorney in fact of
Tenant and in Tenant's name, place and stead and Tenant hereby irrevocably
makes, constitutes, and appoints Landlord, its successors and assigns, as such
attorney in fact for that purpose.
In addition Tenant shall upon Landlord's request, at any time or times, execute,
seal and deliver to Landlord without expense to Landlord , any and all
instruments that may be necessary to make this Lease superior to the lien of any
such mortgage, deed to secure debt, deed of trust, or other instrument in the
nature thereof, and such renewal, modification, consideration, replacement, and
extension thereof, and, if Tenant shall fail at any time to execute, seal and
deliver such instrument, Landlord in addition to any other remedies available to
it in place and stead, and Tenant hereby irrevocably makes, constitutes, and
appoints Landlord its successors and assigns such attorney in fact for that
purpose.
19.1 (a)......Lease to Continue - Attornment. If the holder of any mortgage,
deed to secure debt, deed of trust, or other instrument in the nature thereof,
shall hereafter succeed to the rights of Landlord, under this Lease, then, at
the option of such holder this Lease shall remain in effect. Tenant shall attorn
to and recognize such successor as Tenant's Landlord under this Lease, and shall
promptly execute and delivery any instrument that may be necessary to evidence
such attornment.
(b)......Advance Rent. Upon the attornment provided for in subsection
(a) above, this Lease shall continue in full force and effect as a direct Lease
between such successor Landlord and Tenant subject to all the terms, covenants,
and conditions of this Lease, including advance rent.
ARTICLE TWENTY
Miscellaneous
20.1 Notices. Tenant agrees that upon the request of either Landlord or the
holder of any first priority mortgage, deed to secure debt, deed of trust, or
other security instrument in the nature thereof encumbering Landlord's interest
hereunder or in the Leased Premises, Tenant shall send to such holder copies of
all notices sent to Landlord, such copies to be forwarded to such holder as and
when such notices are sent to Landlord at the mailing address from time to time
provided to Tenant by either Landlord or such holder. In addition, Tenant agrees
that it may not exercise any of its remedies on account of a default by Landlord
under this Lease unless and until such holder shall have received written notice
of such default from Tenant and a period of thirty (30) days after receipt of
such notice fur curing such default shall thereafter have elapsed.
20.2 Captions. The captions and the table of contents used in this Lease are for
convenience only and do not in any way limit or amplify the terms and provisions
hereof. Whenever the singular number is used the same shall include the plural,
and words, of any gender shall include each other gender.
20.3 Waiver. One or more waivers of any covenant, term or condition of this
Lease by either party shall not be constituted as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent or similar act.
20.4 Quiet Enjoyment. Landlord hereby covenants and agrees that if Tenant shall
perform all of the covenants and agreements herein required to be performed on
the part of Tenant, Tenant shall subject to the terms of this Lease, at all
times during the continuance of this Lease have the peaceable and quiet
enjoyment and possession of the Leased Premises.
20.5 Entire Agreement. This Lease contains and exhibits the entire agreement
between the parties and no agreement, representation or inducement shall be
effective to change, modify, or terminate this lease in whole or in part unless
in writing and signed by the parties.
20.6 Deleted.
20.7 Estoppel Certificate. At any time and from time to time, Tenant shall,
within five (5) days after Landlord's request, execute and deliver to Landlord
an estoppel certificate in favor of Landlord and other persons as Landlord shall
request setting forth the following: (a) a ratification of the Lease, (b) the
Commencement Date and Expiration Date, (c) 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 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 the
Security Deposit; and (i) such other information as Landlord may request;
Landlord's mortgage lenders and purchasers shall be entitled to rely on any
estoppel certificate.
Each certificate delivered pursuant to this Section 20.7 may be relied on by any
prospective purchaser or transferee of the Building or of Landlord's interest
hereunder or by any mortgagee of the Building or of Landlord's interest
hereunder or by any assignee of any such mortgage.
20.8 Binding. The terms, provisions and covenants contained in this Lease shall
apply to, inure to the benefit of, and be binding upon the parties hereto and if
permitted hereunder their respective heirs, assigns, successors in interest and
legal representatives.
20.9 Time. Time is of the essence in this agreement.
20.10. Applicable Law. The laws of the state in which the Building is located
shall govern the interpretation, validity, performance, and enforcement of this
Lease. If any provision of this Lease shall be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Lease shall not be affected thereby.
20.11 Surrender. Tenant shall, on or before the last day of the Term or if the
Lease is terminated prior thereto as herein provided, peaceably and quietly
leave, surrender and yield up unto Landlord the Leased Premises, together with
all alterations, additions, improvements, betterments, fixtures and equipment
installed therein or pertaining thereto but excluding non-attached trade
fixtures and other personal property of Tenant, any permitted assignee,
sublessee, licensee or concessionaire of Tenant, or any other occupant of the
Leased Premises. Such alterations, additions, improvements, betterments,
fixtures and equipment to be in good order and repair; ordinary wear and tear,
obsolescence, damage by fire or other casualty, acts of God, condemnation, civil
riot and common excepted. All such trade fixtures and other personal property
shall be removed by Tenant on or before the last day of the Term thereof, and
all such property not so removed shall be deemed abandoned by Tenant and
conveyed to Landlord unless Landlord shall give notice to Tenant to remove all
or any part thereof, in which event Tenant shall promptly at its expense remove
same, or Landlord may do so at Tenant's expense.
20.12 Agency. Nothing herein contained shall be deemed or construed by the
parties hereto, not by any third party, as creating the relationship of
principal and agent or of partnership or joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
rent, nor any other provision contained herein, nor any acts of the parties
hereto, shall be deemed to create any relationship between the parties hereto
other than the relationship of Landlord and Tenant.
20.13 Controlling. To the extent that the Special Stipulations, if any, set
forth in Exhibit "E" conflict with any of the printed provisions of this Lease,
such Special Stipulations shall control.
20.14 Execution Required. The submission of this Lease for examination does not
constitute a reservation of or option for the Leased Premises and the Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant. If Tenant is a corporation or partnership, Tenant shall
furnish Landlord with such evidence as Landlord reasonably requires to evidence
the binding effect on Tenant of the execution and delivery of this Lease.
20.15 Limitation of Actions. In the event Landlord commences any summary
proceedings or actions for non-payment of rent or other charges provided for in
this Lease, Tenant and Landlord both waive a trial by jury of any or all issues
arising in any action or proceeding between the parties hereto or their
successors, under or connected with this Lease, or any of its provisions.
20.16 Representations. Tenant acknowledges that neither Landlord nor Landlord's
agents, employees or contractors have made any representations or promises with
respect to the Leased Premises, the Building or this Lease except as expressly
set forth herein.
20.17. Deleted.
20.18. Deleted.
20.19. Deleted.
IN WITNESS WHEREOF the parties have executed this Lease, or caused this Lease to
be executed by their duly authorized officers, and have sealed this Lease as of
the day and year first written above.
LANDLORD:
SLT, III, LLC, a Utah Limited Liability Company
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Its Managing Member
Date 4/3/2000
---------------------------
TENANT:
WordCruncher Internet Technologies
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Its Chairman
EXHIBIT "G"
Commencement Date Certificate
THE UNDERSIGNED, Landlord and Tenant, respectively, under that certain Office
Building Lease (the "Lease") dated April 1, 2000, agree that the "Commencement
Date" as defined in paragraph 1.1 of the lease is April 3, 2000, that the "Base
Rent Adjustment Date," as defined in Paragraph 1.1(g) of the lease is April 1,
2001, and therefore the "Termination Date," is March 31, 2002.
LANDLORD AND TENANT have executed the Commencement Date Certificate of the
respective dates set forth below.
LANDLORD:
SLT, III, LLC, a Utah Limited Liability Company
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Its Managing Member
Date 4/3/2000
TENANT:
WordCruncher Internet Technologies
By: /s/ Xxxxxxx X. Xxxx
------------------------------
By:
Date:
