Exhibit 10.9
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of this
25 day of January, 1996, by and between XXXXX IOMEGA, A UTAH LIMITED LIABILITY
COMPANY, BY THE XXXXX COMPANY, L.C., ITS MANAGER (the "Landlord"), and IOMEGA
CORPORATION (the "Tenant").
For and in consideration of the rental to be paid by Tenant and of the
covenants and agreements herein set forth to be kept and performed by Tenant,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, the
Leased Premises (as hereafter defined) and certain other areas, rights and
privileges for the term, at the rental and subject to and upon all of the
terms, covenants and agreements hereinafter set forth.
I. PREMISES
1.1 Description of Premises. Landlord does hereby demise, lease
and let unto Tenant, and Tenant does hereby take and receive from
Landlord the following:
(a) That certain office building (the "Building") located at the
Executive Business Park, Roy, Utah, on the real property (the
"Property") described on Exhibit "A" attached hereto and by this
reference incorporated herein. The space occupied by Tenant consists
of approximately 70,788 gross rentable square feet (the "Leased
Premises") as shown on Exhibit "B" which is attached hereto and by this
reference incorporated herein.
(b) Such non-exclusive rights-of-way, easements and similar
rights with respect to the Building and Property as may be reasonably
necessary for access to and egress from, the Leased Premises.
(c) The exclusive right to use those areas designated and
suitable for vehicular parking, including the exclusive right to the use
of three hundred twenty-eight (328) parking stalls.
1.2 Work of Improvement. The obligation of Landlord to perform
the work and supply the necessary materials and labor to prepare the
Leased Premises for occupancy shall be in accordance with plans and
specifications prepared by architect and approved by Tenant.
1.3 Construction of Building. If the Leased Premises and the
Building in which the Leased Premises are located are not currently in
existence, landlord shall, at its own cost and expense, construct and
complete such Building and cause all of the construction which is to be
performed by it in completing the Building and the Leased Premises ready
for Tenant to install its fixtures and equipment as soon as reasonably
possible, but in no event later than twelve (12) months after the
commencement of construction. In the event that Landlord's construction
of obligations has not been fulfilled upon the expiration of said twelve
(12) month period, Landlord shall pay to Tenant $594.16 per day for each
day premises are not ready past the 12 month period.
1.4 Changes to Building. Following the Rental Commencement Date
of this Lease Agreement, Landlord hereby reserves the right at any time
and from time to time to make changes, alterations or additions the
Building or the Property required by reason of health, safety or
governmental regulation. Tenant shall not, in such event, claim or be
allowed any damages for injury or inconvenience occasioned thereby and
shall not be entitle to terminate this Lease. Provided, however, that
in the event that such alterations, changes or additions create undue
interference with the Tenant's operations, Landlord agrees to give
Tenant adequate written notice of such work, and agrees to provide
Tenant with alternate, temporary space suitable for the maintenance of
its operations.
II. TERM
2.1 Length of Term. The term of this Lease (the "Primary Term"),
shall be for a period of ten (10) years commencing on the Rental
Commencement Date (as defined below). Tenant shall have two (2)
successive options to renew this Lease for a five (5) year renewal term
(the "Renewal Term") for each option on the same terms provided in this
Lease; provided, however, that the rental rate for each Renewal Term
shall be the fair market rental value of the Leased Premises as of the
beginning of the Renewal Term. If the parties cannot agree upon such
fair market value, then each party shall designate a real estate
appraiser with experience in commercial rental properties. If the two
appraisers cannot agree upon a fair market value, then they shall
designate a third appraiser, and each appraiser shall provide a good
faith determination of the fair market rental value. The highest and
lowest appraised value shall be discarded and the fair market value
shall be the remaining appraisal. Each party shall pay its own
appraiser, and the fees of the third appraiser shall be divided equally
between the parties. Each option to renew shall be exercised by Tenant
giving written notice to Landlord of its exercise of the option to renew
at least six (6) months prior to the expiration of the Primary Term or
the next preceding Renewal Term.
2.2 Rental Commencement Date; Obligation to Pay Rent. The term
of this Lease and Tenant's obligation to pay rent hereunder shall
commence on the date five (5) days following Tenant's receipt from
Landlord of the Certificate of Occupancy (the "Rental Commencement
Date").
Tenant agrees to enter upon the Leased Premises as early as it is
feasible (with the permission of the supervising contractor), and to use
its best efforts to complete fixturing thereof. Exhibit "C"
acknowledges the Rental Commencement Date of the Lease.
2.3 Acknowledgment of Rental Commencement Date. Landlord and
Tenant shall execute a written acknowledgment of the Rental Commencement
Date in the form attached hereto as Exhibit "C".
III. RENTAL PAYMENTS
3.1 Annual Rent. Tenant agrees to pay to Landlord as annual
rental payments (the "Annual Rental") at such place as Landlord may
designate, without prior demand therefore, Seven Hundred Sixty-five
Thousand Two Hundred Eighteen and no/100 Dollars ($765,218.00).
The aforementioned Annual Rental shall be due and payable in twelve (12)
equal monthly installments to be paid in advance on or before the first
day of each calendar month during the term of the Lease. Simultaneously
with the execution hereof, Tenant has paid to Landlord the first month's
rent, receipt whereof is hereby acknowledged, subject to collection,
however, if made by check. In the event the Rental Commencement Date
occurs on a day other than the first day of a calendar month, then rent
shall be paid on the Rental Commencement Date for the initial fractional
calendar month prorated on a per-diem basis (based upon a thirty (30)
day month).
3.2 Additional Monetary Obligations. Tenant shall also pay as
rental (in addition to the Annual Rent) all other sums of money as shall
become due and payable by Tenant to Landlord under this Lease. Landlord
shall have the same remedies in the case of a default in the payment of
said other sums of money as are available to landlord in the case of a
default in the payment of one or more installments of Annual Rent.
3.3 Rental Escalations. Annual Rental shall be increased at the
commencement of the sixth year of this Lease by multiplying the Annual
Rental then in effect by fifty percent (50%) of the percentage change
in the Consumer Price Index (National CPI-U Urban Consumer-All Items-Salt
Lake City Area) cost-of-living index from the beginning month to
the ending month of the then preceding five year period. For example,
if the CPI at the lease commencement of September, 1994 was 210 and the
CPI for the ending month of that five year period, i.e., August 1999 was
230, then the percentage change in the CPI would be 230 minus 210
divided by 210 times 50%, which equals a 4.76% increase in rent to
commence at the beginning of the sixth year and continuing through the
last month of the tenth year of the lease term.
IV. ADDITIONAL RENT
It is the intent of both parties that the Annual Rental herein specified
shall be absolutely net to the Landlord throughout the term of this Lease and
that all necessary and reasonable costs, expenses and obligations relating to
the Leased Premises that arise or become due during the term of this Lease
shall be paid by Tenant. Notwithstanding the foregoing, Tenant shall not be
responsible to Landlord for (a) any "overhead" of Landlord or "similar
indirect expenses" relating to the operations of the Leased Premises or the
Building, or (b) any costs, expenses or obligations specifically assumed by
Landlord under this Lease, including, without limitation, costs incurred in
connection with the construction of the Building and the maintenance of its
structural components.
V. USE
5.1 Use of Leased Premises. The Leased Premises shall be used
and occupied by Tenant for general office purposes or for any lawful
purposes.
5.2 Prohibition of Certain Activities or Uses. The Tenant and
Landlord shall not do or permit anything to be done in or about, or
bring or keep anything in the Leased Premises which is prohibited by
this Lease, or will, in any way or to any extent:
(a) Adversely affect any fire, liability or other insurance
policy carried with respect to the Building, the Improvements or any of
the contents of the Building (except with Landlord's express written
permission, which will not be unreasonably withheld, but which may be
contingent upon Tenant's agreement to bear any additional costs,
expenses or liability for risk that may be involved).
(b) Conflict with or violate any law, statute, ordinance, rule,
regulation or requirement of any governmental unit, agency or authority
(whether existing or enacted as promulgated in the future, known or
unknown, foreseen or unforeseen).
(c) Adversely overload the floors or otherwise damage the
structural soundness of the Leased Premises or Building, or any part
thereof (except with Landlord's express written permission, which will
not be unreasonably withheld, but which may be contingent upon Tenant's
agreement to bear any additional costs, expenses or liability for risk
that may be involved).
5.3 Affirmative Obligations with Respect to Use. Tenant and
Landlord will comply with all governmental laws, ordinances,
regulations, and requirements, now in force or which hereafter may be
in force, of any lawful governmental body or authorities having
jurisdiction over the Leased Premises, will keep the Premises and every
part thereof in a clean, neat, and orderly condition, free of
objectionable noise, odors, or nuisances, will in all respects and at
all times fully comply with all health and policy regulations, and will
not suffer, permit, or commit any waste.
5.4 Suitability. The Leased Premises, Building and Improvements
(and each and every part thereof) shall be deemed to be in satisfactory
condition unless, within sixty (60) days after the Rental Commencement
Date, Tenant shall give Landlord written notice specifying, in
reasonable detail, the respects in which the Leased Premises, Building
or Improvements are not in satisfactory condition.
5.5 Taxes. Tenant shall pay all taxes, assessments, charges, and
fees which during the term hereof may be imposed, assessed or levied by
any governmental or public authority against or upon Tenant's use of the
Leased Premises or any personal property or fixture kept or installed
therein by Tenant and on the value of leasehold improvements to the
extent that the same exceed Building allowances.
VI. UTILITIES AND SERVICE
6.1 Obligation of Landlord. During the term of this Lease the
Landlord agrees to cause to be furnished to the Leased Premises the
following utilities and services, the cost and expense of which shall
be paid by Tenant:
(a) Electricity, water, gas and sewer service.
(b) Telephone connection, but not including telephone stations
and equipment (it being expressly understood and agreed that Tenant
shall be responsible for the ordering and installation of telephone
lines and equipment which pertain to the Leased Premises).
(c) Heat and air-conditioning to such extent and to such levels
as is reasonably required for the comfortable use of occupancy of the
Leased Premises subject however to any limitations imposed by any
governmental agency.
6.2 Tenant's Obligations. Tenant shall arrange for and shall pay
the entire cost and expense of all telephone stations, equipment and use
charges, electric light bulbs and all other materials and services not
expressly required to be provided and paid for pursuant to the
provisions of Section 6.1 above, including the following:
(a) Janitorial service.
(b) Security (including the lighting of common halls, stairways,
entries and restrooms) to such extent as is usual and customary in
similar buildings in Xxxxx County, Utah.
(c) Snow removal service.
(d) Landscaping and groundskeeping service.
(e) Property Taxes assessed against the Leased Premises.
It is expressly agreed and understood that Tenant will make no
alterations, additions or betterment to, or installations upon the
Leased Premises without the prior written approval of Landlord, which
approval shall not be unreasonably withheld.
6.3 Limitation on Landlord's Liability. Following the Rental
Commencement Date of this Lease Agreement, Landlord shall not be liable
for and Tenant shall not be entitled to terminate this Lease or to
effectuate any abatement or reduction of rent by reason of Landlord's
failure to provide or furnish any of the foregoing utilities or services
if such failure was reasonably beyond the control of Landlord. In no
event shall Landlord be liable for loss or injury to persons or
property, however, arising or occurring in connection with or
attributable to any failure to furnish such utilities or services unless
such failure to furnish is caused by the gross negligence or willful
misconduct of Landlord.
VII. MAINTENANCE AN REPAIRS; ALTERATIONS; ACCESS
7.1 Maintenance and Repairs by Landlord. Landlord, at Tenant's
sole cost and expense, shall maintain in good, first-class order,
condition and repair the structural components of the Leased Premises,
including without limitation roof, exterior walls and foundations for
the term of the Lease following the warranty period under any
construction warranties. Landlord, at Landlord's sole cost and expense,
shall perform maintenance and repair specified in this paragraph during
the warranty period under any construction warranties.
7.2 Maintenance and Repairs by Tenant. Tenant, at Tenant's sole
cost and expense and without prior demand being made, shall maintain the
Leased Premises in good order, condition and repair, and will be
responsible for the painting, carpeting or other interior design work
of the Leased Premises beyond the initial construction phase as
specified in Section 2.3 of the Lease and shall maintain all building
equipment and fixtures in accordance with generally accepted maintenance
standards, which standards shall be approved by Landlord. If repainting
or recarpeting is required and authorized by Tenant, the cost for such
are the sole obligations of Tenant and shall be paid for by Tenant
immediately following the performance of said work and a presentation
of an invoice for payment.
7.3 Alterations. Tenant shall not make or cause to be made any
structural alterations, additions or improvement to the building,
without first obtaining Landlord's written approval, which approval
shall not be unreasonably withheld. Notwithstanding anything contained
in this Paragraph to the contrary, Tenant shall be allowed to make
non-structural improvements in the Leased Premises up to a cost of Five
Thousand and no/100 Dollars ($5,000.00) without Landlord's approval.
Tenant shall present to the Landlord plans and specifications for such
work at the time approval is sought. In the event Landlord consents to
the making of any alterations, additions, or improvements to the Leased
Premises by Tenant, the same shall be made by Tenant at Tenant's sole
cost and expense. Tenant may make non-structural improvements,
alterations, or additions to the Leased Premises without Landlord
approval at Tenant's sole cost and expense. All such work with respect
t any alterations, additions, and changes shall be done in a good and
workmanlike manner and diligently prosecuted to completion such that,
except as absolutely necessary during the course of such work, the
Leased Premises shall at all times be a complete operating unit. Any
such alterations, additions, or changes shall be performed and done
strictly in accordance with all laws and ordinances relating thereto.
Any alterations, additions, or improvements to or of the Leased
Premises, including, but not limited to, wall covering, paneling, and
built-in cabinet work, but excepting movable furniture and equipment,
shall at once become a part of the realty and shall be surrendered with
the Leased Premises unless Landlord otherwise elects at the end of the
term hereof.
7.4 Landlord's Access to Leased Premises. Landlord shall have
the right to place, maintain, and repair all utility equipment of any
kind in, upon, and under the Leased Premises as may be necessary for the
servicing of the Leased Premises and other portion of the Building.
Landlord shall upon providing adequate notice to Tenant, also have the
right to enter the Leased Premises at all times to inspect or to exhibit
the same to prospective purchasers, mortgagees, tenants, and lessees and
to make such repairs, additions, alterations, or improvements as
Landlord may deem desirable. In the event that Landlord must make
unavoidable repairs, Landlord shall be allowed to take all material upon
said Leased Premises that may be required therefor without the same
constituting an actual or constructive eviction of Tenant in whole or
in part and the rents reserved herein shall in no wise xxxxx while said
work is in progress by reason of loss or interruption of Tenant's
business or otherwise, and Tenant shall have no claim for damages.
Provided, however, that in the event that such repairs create undue
interference with Tenant's operations, Landlord agrees to give Tenant
adequate written notice of such work, and agrees to provide the Tenant
with alternate, temporary space suitable for the maintenance of its
operations. During the three (3) months prior to expiration of this
Lease or of any renewal term, Landlord may place upon the Leased
Premises "For Lease" or "For Sale" signs which Tenant shall permit to
remain thereon.
VIII. ASSIGNMENT
8.1 Assignment Prohibited. Tenant shall not transfer, assign,
mortgage, hypothecate this Lease, in whole or in part, or permit the use
of the Leased Premises by any person or persons other than Tenant, or
sublet the Leased Premises, or any part thereof, without the prior
written consent of Landlord in each instance, which consent shall not
be unreasonably withheld, provided sufficient information is provided
to Landlord to accurately represent the financial condition of those to
whom this Lease will be transferred, assigned, mortgaged, or
hypothecated. Such prohibition against assigning or subletting shall
include any assignment or subletting by operation of law. Any transfer
of this Lease from the Tenant by merger, consolidation, transfer of
assets, or liquidation shall constitute an assignment for purposes of
this Lease. In the event that Tenant hereunder is a corporation, an
unincorporated association, or a partnership, the transfer, assignment,
or hypothecation of any stock or interest in such corporation,
association, or partnership (except for transfers to Tenant's affiliates
or to family members of existing shareholders of Tenant) in the
aggregate in excess of forty-nine percent (49%) shall be deemed an
assignment within the meaning of this Section.
8.2 Consent Required. Any assignment or subletting without
Landlord's consent shall be void, and shall constitute a default
hereunder which, at the option of Landlord, shall result in the
termination of this Lease or exercise of Landlord's other remedies
hereunder, if such assignment of subletting is not revoked by Tenant
within thirty (30) days after written demand by Landlord. Consent to
any assignment or subletting shall not operate as a waiver of the
necessity for consent to any subsequent assignment or subletting and the
terms of such consent shall be binding upon any person holding by,
under, or through Tenant.
8.3 Landlord's Right in Event of Assignment. If this Lease is
assigned or if the Leased Premises or any portion thereof are sublet or
occupied by any persons other than the Tenant, Landlord may collect rent
and other charges from such assignee or other party, and apply the
amount collected to the rent and other charges reserved hereunder, but
such collection shall not constitute consent or waiver of the necessity
of consent to such assignment, subleasing, or other transfer, nor shall
such collection constitute the recognition of such assignee, sublessee,
or other party as the Tenant hereunder or a release of Tenant from the
further performance of all of the covenants and obligations, including
obligation to pay rent, of Tenant herein contained. In the event that
Landlord shall consent to a sublease or assignment hereunder, Tenant
shall pay to Landlord reasonable fees, not to exceed $100.00, incurred
in connection with processing of documents necessary to the giving of
such consent.
IX. INDEMNITY
9.1 Mutual Indemnification. Each of Tenant and Landlord shall
indemnify the other and save each other harmless from and against any
and all suits, bodily or personal injury, or property damage arising
from or out of any occurrence in, upon, at or from the Leased Premises,
or occasioned wholly or in part by any act or omission of the
indemnifying party, its agents, contractors, employees, servants,
invitees, licensees or concessionaires. All insurance policies carried
by Tenant and/or Landlord shall include a waiver of subrogation
endorsement which specifies that the insurance carrier(s) will waive any
right of subrogation against Tenant and/or Landlord arising out of any
insurance claim.
9.2 Notice. Tenant shall give prompt notice to Landlord in case
of fire or accidents in the Leased Premises or of defects therein or in
any fixtures or equipment.
X. INSURANCE
10.1 Fire and "All Risk" Insurance. At all times during the term
of this Lease, Tenant shall keep in force at its sole cost and expense,
fire and "All Risk" (including vandalism and malicious mischief)
insurance equal to the replacement cost of Tenant's fixtures,
furnishings, equipment, and contents upon the Leased Premises, and all
improvements made by Tenant to the Leased Premises, and the Building
(excluding fixtures, furnishings, equipment, and contents belonging to
tenants other than Landlord and all improvements or additions made by
tenants other than Landlord). Landlord shall be named as an additional
insured on all such policies.
10.2 Property Coverage. Landlord shall obtain and maintain in
force "All Risk" insurance, including vandalism and malicious mischief,
required to cover any loss or destruction that the Leased Premises
herein may experience during the Lease period and any extension thereof,
and including, at Landlord's discretion, flood and earthquake coverage
if commercially available at reasonable rates. Such insurance shall
also include coverage against loss of rents. Landlord shall submit to
Tenant copies of all the proposed policies for Tenant to review.
Landlord and Tenant shall jointly arrive at the coverage to be purchased
on the Leased Premises and Landlord's personal property, which coverage
shall be reasonably satisfactory to Landlord's lender. Tenant shall pay
Landlord, as a separate consideration, all reasonable costs to purchase
the insurance called for in this paragraph on the Leased Premises.
10.3 Liability Insurance. Tenant shall, during the entire term
hereof, keep in full force and effect a policy of public liability and
property damage insurance with respect to the Leased Premises and
Building, with a combined single limit for personal or bodily injury and
property damage of not less than $1,000,000.00. The policy shall name
Landlord, any person, firms, or corporations designated by Landlord, and
Tenant as insureds, and shall contain a clause that the insurer will not
cancel or materially change the insurance pertaining to the Leased
Premises without first giving Landlord ten (10) days written notice.
Tenant shall at all times during the term hereof provide Landlord with
evidence of current insurance coverage. All public liability, property
damage, and other liability policies shall be written as primary
policies, not contributing with coverage which Landlord may carry. All
such policies shall contain a provision that Landlord, although named
as an insured, shall nevertheless be entitled to recover under said
policies for any loss occasioned to it, its servants, agents, and
employees by reason of the negligence of Tenant. All such insurance
shall specifically insure the performance by Tenant of the indemnity
agreement as to liability for injury to or death of persons or injury
or damage to property contained in Part IX.
10.4 Waiver of Subrogation. Tenant and Landlord each waives its
right of subrogation against each other for any reason whatsoever.
10.5 Lender. Any mortgage lender interest in any part of the
Building or Improvements may, at Landlord's option, be afforded coverage
under any policy required to be secured by Tenant hereunder, by use of
a mortgagee's endorsement to the policy concerned.
XI. DESTRUCTION
If the Leased Premises shall be partially damaged by any casualty
insured against under any insurance policy maintained by Landlord, Landlord
shall, upon receipt of the insurance proceeds, repair the Leased Premises, and
until repair is complete the Basic Annual Rent and Additional Rent shall be
abated proportionately as to that portion of the Leased Premises rendered
untenantable. Notwithstanding the foregoing, if (a) the Leased Premises by
reason of such occurrence are rendered wholly untenantable, or (b) the Leased
Premises should in whole or in part during the last six (6) months of the term
or of any renewal hereof, or (c) the Leased Premises or the Building (whether
the Leased Premises are damaged or not) should be damaged to the extent of
fifty percent (50%) or more of the then-monetary value thereof, then and in
any such events, Landlord may either elect to repair the damage or may cancel
this Lease by notice of cancellation within ninety (90) days after such event
and thereupon this Lease shall expire, and Tenant shall vacate and surrender
the Leased Premises to Landlord. Tenant's liability for rent upon the
termination of this Lease shall cease as of the day following Landlord's
giving notice of cancellation. In the event Landlord elects to repair any
damage, any abatement of rent shall end five (5) days after notice by Landlord
to Tenant that the Leased Premises have been repaired. If the damage is
caused by the negligence of Tenant or its employees, agents, invitees, or
concessionaires, there shall be no abatement of rent. Unless this Lease is
terminated by Landlord, Tenant shall repair and refixture the interior of the
Leased Premises in a manner and in at least a condition equal to that existing
prior to the destruction or casualty and the proceeds of all insurance carried
by Tenant on its property and fixtures shall be held in trust by Tenant for
the purpose of said repair and replacement.
XII. CONDEMNATION
12.1 Total Condemnation. If the whole of the Leased Premises
shall be acquired or taken by condemnation proceeding, then this Lease
shall cease and terminate as of the date of title vesting in such
proceeding.
12.2 Partial Condemnation. If any part of the Leased Premises
shall be taken as aforesaid, and such partial taking shall render that
portion not so taken unsuitable for Tenant's operations, then this Lease
shall cease and terminate as aforesaid. If such partial taking is not
extensive enough to render the Leased Premises unsuitable for Tenant's
operations, then this Lease shall continue in effect except that the
Annual Rental and Additional Rent shall be reduced in the same
proportion that the portion of the Leased Premises (including basement,
if any) taken bears to the total area initially demised, and Landlord
shall, upon receipt of the award in condemnation, make all necessary
repairs or alterations to the Building in which the Leased Premises are
located, provided that Landlord shall not be required to expend for such
work an amount in excess of the amount received by Landlord as damages
for the part of the Leased Premises so taken. "Amount received by
Landlord" shall mean that part of the award in condemnation which is
free and clear to Landlord of any collection by mortgage lenders for the
value of the diminished fee.
12.3 Landlord's Option to Terminate. If more than twenty percent
(20%) of the Building shall be taken as aforesaid, Landlord or Tenant
may, by written notice to the other party, terminate this Lease. If
this Lease is terminated as provided in this Section, rent shall be paid
up to the day that possession is so taken by public authority and
Landlord shall make an equitable refund of any rent paid by Tenant in
advance.
12.4 Award. Tenant shall be entitled to any condemnation award
for any taking, whether whole or partial, to the extent such award is
specifically given for diminution in value of Tenant's Leasehold.
Tenant shall also be entitled to such other amounts as may be
recoverable by Tenant in its own right for damages to Tenant's business
and fixtures.
12.5 Definition. As used in this Part XII the term "condemnation
proceeding" means any action or proceeding in which any interest in the
Leased Premises is taken for any public or quasi-public purpose by any
lawful authority through exercise of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof.
XIII. LANDLORD'S RIGHT TO CURE
13.1 General Right. In the event of breach, default, or
noncompliance hereunder by Landlord, following the Rental Commencemnet
Date of this Lease Agreement, Tenant shall, before exercising any right
or remedy available to it, give Landlord written notice of the claimed
breach, default, or noncompliance. If prior to its given such notice
Tenant has been notified in writing (by way of Notice of Assignment of
Rents and Leases, or otherwise) of the address of a lender which has
furnished any of the financing referred to in Part XIV hereof,
concurrently with giving the aforesaid notice to Landlord, Tenant shall,
by registered mail, transmit a copy thereof to such lender. For the
thirty (30) days following the giving of the notice(s) required by the
foregoing portion of this section (or such longer period of time as may
be reasonably required to cure a matter which, due to its nature, cannot
reasonably be rectified within thirty (30) days), if within such thirty
(30) day period Landlord has commenced and is diligently pursuing the
actions or remedies necessary to cure the reach, default or
noncompliance involved, Landlord shall have the right to cure the
breach, default, or noncompliance involved. If Landlord has failed to
cure a default within said period, any such lender shall have an
additional thirty (30) days within which to cure the same or, if such
default cannot be cured within that period, such additional time as may
be necessary if within such thirty (30) day period said lender has
commenced and is diligently pursuing the actions or remedies necessary
to cure the breach default, or noncompliance involved (including, but
not limited to, commencement and prosecution of proceedings to foreclose
or otherwise exercise its rights under its mortgage or other security
instrument, if necessary to effect such cure), in which event this Lease
shall not be terminated by Tenant so long as such actions or remedies
are being diligently pursued by said lender.
13.2 Mechanic's Lien. Should any mechanic's or other lien be
filed against the Leased Premises or any part thereof by reason of
Tenant's acts or omissions or because of a claim against Tenant, Tenant
shall cause the same to be canceled and discharged of record by bond or
otherwise within ten (10) days after notice by Landlord; provided,
however, that Tenant may contest the amount or validity of any such lien
in good faith so long as Tenant ensures that the lien is satisfied or
released prior to any final foreclosure sale thereof.
XIV. FINANCING; SUBORDINATION
14.1 Subordination. Tenant acknowledges that it might be
necessary for Landlord or its successors or assigns to secure mortgage
loan financing or refinancing affecting the Leased Premises. Tenant
also acknowledges that the lender interested in any given loan may
desire that Tenant's interest under this Lease be either superior or
subordinate to the mortgage then held or to be taken by said Lender.
Accordingly, Tenant agrees that at the request of Landlord at any time
and from time to time Tenant shall execute and deliver to Landlord an
instrument, in form reasonably acceptable to Landlord and Tenant,
whereby Tenant subordinates its interest under this Lease and in the
Leased Premises to such of the following encumbrances as may be
specified by Landlord. Any mortgage or trust deed and customary related
instruments are herein collectively referred to merely as a "Mortgage"
and securing a loan obtained by Landlord or its successors or assigns
for the purpose of enabling acquisition of the Building and/or
construction of additional improvements to provide permanent financing
for the Building, or for the purpose of refinancing any such
construction, acquisition, standing or permanent loan. Provided,
however, that any such instrument or subordination executed by Tenant
shall provide that so long as Tenant continues to perform all of its
obligations under this Lease its tenancy shall remain in full force and
effect notwithstanding Landlord's default in connection with the
Mortgage concerned or any resulting foreclosure or sale or transfer in
lieu of such proceedings. Tenant shall not subordinate its interests
hereunder or in the Leased Premises to any lien or encumbrance other
than the Mortgages described in and specified pursuant to this Section
14.1 without the prior written consent of Landlord and of the lender
interested under each mortgage then affecting the Leased Premises. Any
such unauthorized subordination by Tenant shall be void and of no force
or effect whatsoever.
14.2 Amendment. Tenant recognizes that Landlord's ability from
time t time to obtain construction, acquisition, standing and/or
permanent mortgage loan financing for the Building and/or the Leased
Premises may in part be dependent upon the acceptability of the terms
of this Lease to the lender concerned. Accordingly, Tenant agrees that
from time to time it shall, if so requested by Landlord and if doing so
will not adversely affect Tenant's interests hereunder join with
Landlord in amending this Lease so as to meet the needs or requirements
of any lender which is considering making or which has made a loan
secured by a mortgage affecting the Leased Premises.
14.3 Attornment. Any sale, assignment, or transfer of Landlord's
interest under this Lease or in the Leased Premises including any such
disposition resulting from Landlord's default under a mortgage, shall
be subject to this Lease and also Tenant shall attorn to Landlord's
successor and assigns and shall recognize such successor or assigns as
Landlord under this Lease, regardless of any rule of law to the contrary
or absence of privity of contract.
XV. EVENTS OF DEFAULT; REMEDIES OF LANDLORD AND TENANT
15.1 Default by Tenant. Upon the occurrence of any of the
following events, Landlord shall have the remedies set forth in Section
15.2:
(a) Tenant fails to pay any installment of Annual Rental or
Additional Rent or any other sum due hereunder within ten (10) days
after Tenant receives written notice of rent due.
(b) Tenant fails to perform any other term, condition, or
covenant to be performed by it pursuant to this Lease within thirty (30)
days after written notice of such default shall have been given to
Tenant by Landlord or, if cure would reasonably require more than thirty
(30) days to complete, if Tenant fails to commence performance within
the thirty (30) day period or fails diligently to pursue such cure to
completion.
(c) Tenant or any guarantor of this Lease shall become bankrupt
or insolvent or file any debtor proceedings or have taken against such
party in any court pursuant to state or federal statute, a petition in
bankruptcy or insolvency, reorganization, or appointment of a receiver
or trustee; or Tenant petitions for or enters into an arrangement; or
suffers this Lease to be taken under a writ of execution.
15.2 Remedies. In the event of any material default by Teannt
hereunder, Landlord may at any time, without waiving or limiting any
other right or remedy available to it, terminate Tenant's rights under
this Lease by written notice, re-enter and take possession of the
Premises by any lawful means (with or without terminating this Lease),
or pursue any other remedy allowed by law. Tenant agrees to pay to
Landlord the reasonable cost of recovering possession of the Premises,
all reasonable costs of reletting, and all other reasonable costs and
damages arising out of Tenant's default (excluding consequential
damages), including reasonable attorneys' fees. Notwithstanding any
re-entry, the liability of Teannt for the rent reserved herein shall not
be extinguished for the balance of the Term, and Tenant agrees to
compensate Landlord upon demand for any deficiency arising from
reletting the Premises at a lesser rent that applies under this Lease.
15.3 Past due Sums; Penalty. If Tenant fails to pay, when the
same is due and payable, any Annual Rental, Additional Rent, or other
sum required to be paid by it hereunder, such unpaid amounts shall bear
interest from the due date thereof to the date of payment at a
fluctuation rate equal to two percent (2%) per annum above the prime
rate of interest charged by First Security Bank of Utah, Salt Lake City,
Utah. In addition thereto, if any such annual rental, additional rent,
or other sum is not paid within ten (10) days of its due date, Tenant
shall pay a sum of five percent (5%) of such unpaid amounts as a service
fee. Notwithstanding the foregoing, however, Landlord's right
concerning such interest and service fee shall be limited by the maximum
amount which may properly be charged by Landlord for such purposes under
applicable law.
XVI. PROVISIONS APPLICABLE AT TERMINATION OF LEASE
16.1 Surrender of Premises. At the expiration of this Lease,
except for changes made by Tenant that were approved by Landlord, Tenant
shall surrender the Leased premises in the same condition, less
reasonable wear and tear, as they were in upon delivery of possession
thereto under this Lease and shall deliver all keys to Landlord. Before
surrendering the Leased Premises, Tenant shall remove all of its
personal property and trade fixtures and such property or the removal
thereof shall in no way damage the Leased Premises, and Tenant shall be
responsible for all costs, expenses and damages incurred in the removal
thereof. If Tenant fails to remove its personal property and fixtures
upon the expiration of this Lease, the same shall be deemed abandoned
and shall become the property of Landlord.
16.2 Holding Over. Any holding over after the expiration of the
term hereof or of any renewal term shall be construed to be a tenancy
from month to month at such rates as landlord may designate and on the
terms herein specified so far as possible.
XVII. ATTORNEYS' FEES
In the event that at any time during the term of this Lease either
Landlord or the Tenant institutes any action or proceeding against the other
relating to the provisions of this Lease or any default hereunder, then the
unsuccessful party in such action or proceeding agrees to reimburse the
successful party for reasonable attorneys' fees, incurred therein by the
successful party.
XVIII. ESTOPPEL CERTIFICATE
18.1 Landlord's Right to Estoppel Certificate. Tenant shall,
within fifteen (15) days after Landlord's request, execute and deliver
to Landlord a written declaration, in form and substance similar to
Exhibit "C", in recordable form (a) ratifying this Lease; (b) expressing
the Commencement Date and termination date hereof; (c) certifying
whether or not this Lease is in full force and effect and whether or not
it has been assigned, modified, supplemented or amended (except by such
writing as shall be stated); (d) whether or not all conditions under
this Lease to be performed by Landlord have been satisfied; (e) that
there are no defenses or offsets against the enforcement of this Lease
by the Landlord, or stating those claimed by Tenant; (f) the amount of
advance rental, if any, (or none if such is the case) paid by Tenant;
(g) the date to which rental has been paid; (h) the amount of security
deposited with Landlord; and (i) such other information as Landlord may
reasonably request. Landlord's mortgage lenders and/or purchasers shall
be entitled to rely upon such declaration.
18.2 Effect of Failure to Provide Estoppel Certificate. Tenant's
failure to furnish any Estoppel Certificate within fifteen (15) days
after request therefor shall be deemed a default hereunder and moreover,
it shall be conclusively presumed that (a) this Lease is in full force
and effect without modification in accordance with the terms set forth
in the request; (b) that there are no unusual breaches or defaults on
the part of the Landlord; and (c) no more than one (1) month's rent has
been paid in advance.
XIX. SIGNS, AWNINGS, AND CANOPIES
Signs, awnings, and canopies are allowed as long as they are within
local law and building codes.
XX. MISCELLANEOUS PROVISIONS
20.1 No Partnership. Landlord does not by this Lease, in any way
or for any purpose become a partner or joint venturer of Tenant in the
conduct of its business or otherwise.
20.2 Force Majeure. Landlord and Tenant shall be excused for the
period of any delay in the performance of any obligations hereunder when
prevented from so doing by cause or causes beyond Landlord's or Tenant's
control, including labor disputes, civil commotion, war, governmental
regualtions or controls, fire or other casualty, inability to obtain any
material or service not related to Landlord's negligence, or acts of
God.
20.3 No Waiver. Failure of either party to insist upon the strict
performance of any provision or to exercise any option hereunder shall
not be deemed a waiver of such breach. No provision of this Lease shall
be deemed to have been waived unless such waiver be in writing signed
by the waiving party.
20.4 Notice. Any notice, demand, request, or other instrument
which may be or is required to be given under this Lease shall be
delivered in person or sent by United States certified or registered
mail, postage prepaid and shall be addressed (a) if to Landlord, at the
place specified for payment of rent, and (b) if to Tenant, either at the
Demised Premises or at any other current address for Tenant which is
known to Landlord. Either party may designate such other address as
shall be given by written notice.
20.5 Captions; Attachments; Defined Terms
(a) The captions to the Section of this Lease are for convenience
of reference only and shall not be deemed relevant tin resolving
questions of construction or interpretation under this Lease.
(b) Exhibits referred to in this Lease, and any addendums and
schedules attached to this Lease and initialed by the parties shall be
deemed to be incorporated in this Lease as though part thereof.
20.6 Recording. Tenant may record this Lease or a memorandum
thereof with the written consent of Landlord, which consent shall not
be unreasonably withheld. Landlord, at its option and at any time, may
file this Lease for record with the Recorder of the County in which the
Building is located.
20.7 Partial Invalidity. If any provisions of this Lease or the
application thereof to any person or circumstance shall to any extent
be invalid, the remainder of this Lease or the application of such
provision to persons or circumstances other than those as to which it
is held invalid shall not be affected thereby and each provision of this
Lease shall be valid and enforced to the fullest extent permitted by
law.
20.8 Broker's Commissions. Each party represents and warrants
that there are no claims for brokerage commissions or finder's fees
other than those of Xxx XxXxxx in connection with this Lease and agrees
to indemnify the other party against and hold it harmless from all
liabilities arising from such claim, including any attorneys' fees
connected therewith.
20.9 Tenant Defined: Use of Pronouns. The word "Tenant" shall be
deemed and taken to mean each and every person or party executing this
document as a Tenant herein. If there is more than one person or
organization set forth on the signature line as the Tenant, their
liability hereunder shall be joint and several. If there is more than
one Tenant, any notice required or permitted by the terms of this Lease
may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The use of the neuter singular
pronoun to refer to Landlord or Tenant shall be deemed a proper
reference even though Landlord or Tenant may be an individual, a
partnership, a corporation, or a group of two or more individuals or
corporation. The necessary grammatical changed required to make the
provision of this Lease apply in the plural sense where there is more
than one Landlord or Tenant and to corporations, associations,
partnerships, or individuals, males or females, shall in all instances
be assumed as though in each case fully expressed.
20.10 Provision Binding, Etc. Except as otherwise provided,
all provisions herein shall be binding upon and shall inure to the
benefit of the parties, their legal representative, heirs, successors,
and assigns. Each provision to be performed by Tenant shall be
construed to be both a covenant and a condition, and if there shall be
more than one Tenant, they shall be bound, jointly and severally, by
such provisions.
20.11 Entire Agreement, Etc. This Lease and the Exhibits,
Riders, the Business Agreement, and/or Addenda, if any, attached hereto,
constitute the entire agreement between the parties. All Exhibits,
Riders, the Business Agreement, and/or Addenda mentioned in this Lease
are incorporated herein by reference. Any Guaranty attached hereto is
an integral part of this Lease and constitutes consideration given to
Landlord to enter in this Lease. Any prior conversations or writings
are merged herein and extinguished. No subsequent amendment to this
Lease shall be binding upon Landlord or Tenant unless reduced to writing
and signed. Submission of this Lease for examination does not
constitute an option for the Leased Premises and becomes effective as
a lease only upon execution and delivery thereof by Landlord to Tenant.
If any provision contained in Rider or Addenda is inconsistent with a
provision in the body of this Lease, the provision contained in said
Rider or Addenda shall control. It is hereby agreed that this Lease
contains no restrictive covenants or exclusives in favor of Tenant. The
captions and Section numbers appearing herein are inserted only as a
matter of convenience and are not intended to define, limit, construe,
or describe the scope or intent of any Section or Paragraph.
20.12 Choice of Law. This Lease shall be governed by and
construed in accordance with the laws of the State of Utah.
20.13 Quiet Enjoyment. Landlord hereby warrants that Landlord
(and no other person or corporation) has the right to lease the property
and the Leased Premises, and that Tenant shall have peaceful and quiet
use and possession of the Leased Premises without hindrance on the part
of Landlord, and that Landlord shall warrant and defend Tenant and its
successors and assigns in such peaceful and quiet use and possession
against the claims of all persons or corporations whatsoever claiming
by, under and through Landlord.
20.14 Option to Purchase.
(a) Purchase Option: Landlord hereby grants Tenant exclusive
right to purchase (the "Purchase Option") the property at any time
between the date of this Lease Agreement and the date of rental
commencement (the "Option Period").
To exercise the Purchase Option, Tenant shall give notice in writing
(the "Notice") to Landlord at any time during the Option Period.
(b) Purchase Price: In the event the Tenant exercises the
Purchase Option, the Purchase Price for the property (the "Purchase
Price") shall be $6,279,000.00.
(c) Closing: If the Purchase Option is exercised, the closing
shall occur on the date specified in the Notice but in no event later
than the date that is thirty (30) days after the rental commencement
date. Closing shall be conducted at the property or at such other place
as Landlord and Tenant agree. At closing, Tenant shall pay the Purchase
Price in immediately available funds, and Landlord shall deliver to
Tenant fee simple title to the property. Any conveyance or transfer
taxes, stamp taxes, and any other recording fees and expenses shall be
divided equally between the Landlord and Tenant at closing. Real estate
taxes shall be pro-rated between Landlord and Tenant at closing. At
closing, Landlord shall, at its expense, provide Tenant with (a) an ALTA
Survey of the property prepared by a certified, licensed land surveyor,
which survey shall show the courses and distance of the property and the
number of acres included therein; and (b) a standard Owner's Title
Insurance Policy prepared by a title insurance company acceptable to
Tenant, insuring Tenant's fee simple title to the property.
(d) Construction Warranties: If the Purchase Option is exercised,
all construction warranties provided by contractors shall continue in
full force and effect and shall be conveyed by Landlord to Tenant.
(e) Contract: If the Purchase Option is exercised, the Lease
Agreement shall constitute a binding contract for the purchase and sale
of the property on the terms described herein.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease on
the day first set forth above.
LANDLORD: XXXXX IOMEGA, L.C., A UTAH LIMITED
LIABILITY COMPANY, BY THE XXXXX
COMPANY, ITS MANAGER
By: /s/ Xxx X. Xxxxxxx
XXX X. XXXXXXX
PRESIDENT AND MANAGER
TENANT: IOMEGA CORPORATION
By: /s/ C. Xxxxx Xxxxxxx
Its: Director of Corporate Facilities
